(Jnraell Slam Srljonl ffiihrary 
 
Cornell University Library 
 KE 930.W19 1920 
 
 Mechanics' Hen laws In Canada with the 
 
 3 1924 018 105 209 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018105209 
 
MECHANICS' LIEN LAWS 
 
 IN CANADA 
 
 WITH THE ACTS OP ALBERTA, BRITISH COLUMBIA, MANITOBA, 
 
 NEW BRUNSWICK, NOVA SCOTIA, ONTARIO, AND 
 
 SASKATCHEWAN, RELATING THERETO, 
 
 AND ANNOTATIONS AND FORMS 
 
 OF PROCEEDINGS. 
 
 THEREUNDER. 
 
 AND ALSO THE ARTICLES OF THE QUEBEC CIVIL CODE 
 
 DEALING WITH MECHANICS' LIENS, AND A 
 
 DIGEST OF CASES IN CONNECTION 
 
 THEREWITH. 
 
 BY 
 
 WILLIAM BERNARD WALLACE, LL.B. 
 
 EDITOR OF "DECISIONS OF SUPREME COURT OF NOVA SCOTIA HITHERTO 
 
 UNREPORTED " (40 N.S.R.) I INGPEN ON EXECUTORS AND 
 
 ADMINISTRATORS, CANADIAN NOTES, 
 
 ETC., ETC. 
 
 TORONTO: 
 CANADA LAW BOOK COMPANY. 
 
 1920. 
 
Copyright, Canada, 1920, by B. K. Oeomaett, Toronto. 
 
PREFACE 
 
 The Mechanics' Lien legislation enacted in the various Pro- 
 vinces in Canada is published in this volume, with the exception 
 of the Mechanics' Lien Act of Prince Edward, Island, which Act, 
 with ' amendments, may be found in Chapter 8 of the Prince 
 Edward Island Acts of 1879, Chapter 11, 1881, and Chapter 11, 
 1892. There are no reported decisions under this Act, but the 
 Act itself is similar to the earlier Ontario legislation. 
 
 The framers of Mechanics' Lien legislation in attempting to 
 do justice to workmen and to the suppliers of building materials, 
 while at the same time avoiding injustice to the owners of pro- 
 perty, have grappled with a difficult problem. Legislation which 
 may have the effect of charging one man's land with another's 
 man's debt must be worded with very great care, if injustice is to 
 be avoided. Since the last consolidation of the Ontario Mechanics' 
 and Wage-earners' Lien Act, however, it would seem that this 
 statutory remedy, in Ontario., at all events, is as fair and just to 
 all parties interested as any legislation of this character can be, 
 although like all other human laws it may occasionally fail to 
 secure complete justice. 
 
 A large number of new decisions, Canadian and American, are 
 published in this volume. As to these decisions, it must be pointed 
 out, that as the legislation varies in different Provinces, or States, 
 the decisions cannot be attentively studied without closely examin- 
 ing the provisions of the Mechanics' Lien Act existing in the par- 
 ticular jurisdiction where the question arose. 
 
 A doctrine that should be favorably regarded, in the construc- 
 tion of a Mechanics' Lien Act, is that when a statute already in 
 force in one jurisdiction is enacted in another, the judicial construe- 
 
IV , -PBEFACE. 
 
 tions placed upon the statute in the first jurisdiction are received 
 in the second jurisdiction as in effect part of the statute, (a) 
 
 The Canadian Bar Association is doing excellent work in endea- 
 voring to secure uniformity of legislation throughout the various 
 Provinces in relation to many important subjects, but uniformity 
 of judicial decision would seem to be as desirable as uniformity of 
 legislation. 
 
 W. B. W. 
 Halifax, N.S., 
 
 October, 1920. 
 
 (o) Commonwealth v. Hartnett, 3 Gray (Mass.) 450. 
 
PREFACE TO SECOND EDITION 
 
 Since the first edition of this book important amendments have 
 been made to various Mechanics' Lien Acts in Canada and many 
 valuable judicial decisions relating to this legislation have been 
 given. These statutory amendments and decisions will be found 
 noted in this volume. A selection has also been made from recent 
 decisions of American courts interpreting provisions of similar 
 legislation in the United States. The writer adheres to his view, 
 expressed in the earlier Preface, concerning the value of such 
 American decisions. 
 
 It is difficult to group the cases on this subject according to 
 any logical scheme of classification. The various Mechanics' Lien 
 Acts differ in their terms, and, in some instances, amendments 
 seem to result in inconsistent provisions in the same Act. But 
 there is apparent in recent judicial decisions in various Provinces 
 a growing tendency towards uniformity, in gratifying contrast to 
 the labyrinth of former conflicting decisions. Any seeming con- 
 flict in some recent decisions is probably traceable to the varying 
 provincial statutory provisions. 
 
 In a recent case in Alberta,* Beck, J., stated that where a 
 statutory provision, is adopted from another jurisdiction, after 
 having been in force there for a long period of time, he would be 
 disposed to follow the judicial decisions of that jurisdiction upon 
 its interpretation, unless there were very strong reasons for a 
 contrary view. The general adoption of such a commendable 
 ' attitude would greatly aid in securing uniformity in the practical 
 operation of this beneficial legislation. 
 
 In this edition Canadian decisions down to December, 1912, 
 have been noted as far as practicable. 
 
 W. B. W. 
 
 Halifax, January, 1913. 
 
 * Ward v. Serrell (1910) , 3 Alta. L. R., at p. 141. 
 
PREFACE TO FIRST EDITION 
 
 The decisions upon the Mechanics' Lien Acts existing 1 in vari- 
 - ous Provinces in Canada and the amendments to the Statutes 
 dealing with this subject have been so numerous of recent years, 
 and the subject itself has become so extensive as to warrant the 
 publication of a new treatise. While fully sensible of imperfec- 
 tions in the execution of this work, it is., nevertheless, hoped that 
 it may prove useful to the profession: 
 
 There are some variations in the Statutes of the different 
 Provinces on this subject, but very few of them' are substantial, 
 and the main sections of the. various Statutes are so nearly alike 
 as to make the decisions in one Province of value to the practi- 
 tioners in the other . Provinces. Moreover, it is thought that 
 judicial interpretations of similar sections in the Statutes exist- , 
 ing in various States in the adjoining Eepublic will be useful 
 to the practitioners in Canada. Statutes in New York, Massachu- 
 setts, Pennsylvania and other States of the Union, on this subject 
 use, with very little variation., the phrases of the sections used in 
 the Mechanics' Lien Acts existing in various Provinces in Canada, 
 and it is felt that, as there are certain principles common to the 
 jurisprudence of both countries, the decisions that have expounded 
 the Statutes which have been enacted in various States of the 
 Union will aid either directly, or by analogy, in the construction 
 of similar Acts passed by our Provincial Legislatures. 
 
 Bramwell, B., in Osborn, v. Gillett, (1873) L. R. 8 Exch. 93, 
 said, in, speaking of United States decisions on another branch of 
 the law: — ' 
 
 " The American authorities are not binding on us indeed, but. 
 are entitled to respect as the opinion of professors of English ' 
 law and entitled to respect according to the positions of those 
 ■professors and the reason they give for their opinions." 
 
 The late Mr. Justice Thompson, of, Nova Scotia, in one case 
 referred to the value of United States decisions and quoted 
 
Vlll i ' PREFACE. 
 
 approvingly what Chief Justice Cockburn said in Scaramanga v. 
 Stamp; L., E. 5 C. P. D. 303: "Although the decisions of the 
 American courts are, of course, not binding on us, yet the sound 
 and enlightened views of American lawyers in the administration 
 and development of the law, a law, except so far as altered by 
 statutory enactment, derived from a common source with out own, 
 entitle their decisions to the utmost respect and confidence on 
 our part." Such observations must apply with special force to 
 decisions of United States courts construing Statutes which, bhe 
 Provincial Legislatures in Canada have utilized in framing their 
 own Mechanics' Lien Acts. , 
 
 Times have greatly changed since the Court of Queen's Bench 
 of Upper Canada, under the presidency of Chief Justice Draper, 
 actually declined to make a note of any United States case cited 
 on any question of law. 
 
 As the Mechanics' Lien Act of Ontario, the parent Statute, is, 
 in its main provisions, similar to the legislation on the same sub- 
 ject in Manitoba, British Columbia, Nova Scotia, New Brunswick, 
 Alberta and Saskatchewan, and the largest amount of judicial 
 interpretation has been given to the Ontario Statute, it has been 
 deemed best to group, under appropriate sections of that Statute, 
 all the decisions given in Canada that have been obtainable and 
 to publish the Mechanics' Lien Acts of the other- Provinces with 
 merely the essential notes and cross-references. The Articles of the 
 Civil Code of Quebec dealing with the same subject are also pub- 
 lished, with decisions of the courts of Quebec relating to them. 
 
 The writer must acknowledge his obligations to Mr. A. A. 
 Mackay, B.A., LL.B., Law Clerk of the Nova Scotia Assembly,' 
 whose valuable services have greatly improved the volume. 
 
 In the. selection of cases illustrating the Quebec law valu- 
 able aid has been given by Mr. H. J, Kavanagh, K.C., of the 
 Quebec Bar. 
 
 W. B. W. 
 
 September, 1905. I 
 
CONTENTS 
 
 PAET I. 
 
 G-ENEEAL LAW EELATING TO MECHANICS' LIENS. 
 
 CHAPTEE I. 
 Historical — The Development of the Lien 1 
 
 CHAPTEE II. 
 Natithe and Scope op the Lien 10 
 
 CHAPTEE III. 
 Construction of Mechanics' Lien Acts 33 
 
 CHAPTEE IV. 
 Property which may be Subject to Lien 48 ' 
 
 CHAPTEE V. 
 Who may Acquire a Lien 69 
 
 CHAPTEE VI. 
 Lien of Sub-contractor and Wage-earners 93 
 
 CHAPTEE VII. 
 The Lien of the Materialman 105 
 
 CHAPTEE VIII. 
 The " Owner " and his " Interest " 129 
 
X CONTENTS. 
 
 CHAPTEK IX. 
 Essentials to bind an • " Owner " _ 141 
 
 CHAPTEE X. 
 Waives of Lien and Estoppel . • • • 150- 
 
 CHAPTEE XI. 
 Priorities 167 
 
 CHAPTEE XII. 
 
 Computing the Statutory Time 186 
 
 CHAPTEE XIII. 
 Damages . . ..." 197 
 
 CHAPTEE XIV.. 
 
 Mechanics' Liens on Personal Property- 201 
 
 PAET II. 
 
 PEOVINCIAL LEGISLATION. 
 
 The Alberta Mechanics' Lien Act, with Annotations . . 228 , 
 The British Columbia Mechanics' Lien Act, with Anno- 
 tations 269 
 
 The Manitoba Mechanics' L™n Act, with Annotations. 307 
 The New Brunswick Mechanics' Lien Act, with Anno- 
 tations . 349 
 
 The Nova Scotia Mechanics' Lien Act, with Annota- 
 tions 1 385 
 
 The Ontario Mechanics' Lien Act, with Annotations . . 420 
 
 The Quebec Law Eelating to Mechanics' Liens 534 
 
 The Saskatchewan Mechanics' Lien Act, with Anno- 
 tations 569 
 
TABLE OF GASES CITED 
 
 PAGE 
 
 Abbot Gamble Co., In re, 195 Fed. 465 119 
 
 Abelman v. Meyer, 122 App. Div. CN.Y.) 470 474 
 
 Abhari v. Grassie, 262 111. 636 i 76 
 
 Abramovitch v. Vrondressi, 11 D.L.R. 352 139,, 334 
 
 Adams v. McGreevy, 17 Man. L.R. 115 84 
 
 Adamson v. Rogers, 22 O.A.R. 415 351 
 
 aJschhlimann v. Presbyterian Hospital, 165 N.Y. 296 165 
 
 .2Etna Elevator Co. v. Deeves, 125 App. Div. (N.Y.) 842 146, 147 
 
 Ahem & Soper v. N.Y. Trust Co., 42 S.C.R. 267 537 
 
 Alberta Building Co. v. Calgary, 16 W.L.R. 443 78 
 
 Albion I. Works v. A.O.U.W., 5 B.C.R. 122 47, 271 
 
 Allen v. Deane, 14 W.L.R. 622 '. 271 
 
 Allen v. Harrison. 9 W.L.R. 198 30, 104, 122 
 
 Allen v. Smith, 12 C.B.N.S. 645 193, 221 
 
 Alslip v. Monkman, 22 W.L.R. 667 322 
 
 Alslip v. Robinson, 18 W. L. R. 39 78, 121, 322 
 
 Alvey v. Reed, 115 Ind. 148 54, 63 
 
 American Car Co. v. Alexandria, 215 Pa. 520 481 
 
 American Mortgage Co. v. Merrick, 120' App. Div. N.Y. 150 167, 183 
 
 Anderson v. Archibald, 1 Alta. 524 253 
 
 Anderson v. Armstead, 69 111. 453 62 
 
 Anderson v. Berg, 174 Mass. 404 139 
 
 Anderson v. Fort William Commercial Chambers, 25 D.L.R. 319 . . . 153 
 
 Anderson v. Godsall, 7 B.C.R. 404 138 
 
 Anderson v. Huff, 49 N.J. Eq 93 
 
 Anderson v. Kootenay Gold Mines, 18 B.C.R. 643 175 
 
 Anderson v. Wade, 6 Atl. Rep. 48 187 
 
 Andrews v. Wade (Penn.) , 6 Atl. Rep. 48 214 
 
 Angel v. Joy (1911), 1 K.B. 666 141 
 
 Angler v. Bay State Co., 178 Mass. 163 66, 154, 216 
 
 Anglo-Egyptian Navigation Co. v. Rennie, 10 L.R.C.P. 271 327 
 
 Anglo-Italian Bank v. Davies, L.R. 9 Ch. D. 289 164 
 
 Angus v. McLachlan, L.R. 23 Ch. D. 335 .-. . .216, 225 
 
 Angus v. Scully, 176 Mass. 357 78, 85 
 
 Anly v. Holy Trinity Church, 2 Man. L.R. 248 93 
 
 Antil v. Godwin, 15 Times Rep. 462 79 
 
 Appleby v. Meyers, 2 L.R.C.P. 651 , 226 
 
 Archibald v. Hubley, 18 S.C.R. 116 35 
 
 Argles v. McMath, 26 O.R. 224, 23 O.A.R. 44 64 
 
 Arkansas River Co. v. Florin, 33 Pac. 1006 474 
 
 Armigo v. Mountain Electric Co., 67 Pac. . Rep. 726 445 
 
 Armstrong Cork Co. v. Merchants' Ref. Co., 184 Fed. 199 64 
 
 Arnbery v. Thornton, 6 P.R. 190 512 
 
 Arnold! v. Gouin, 22 Gr. 314 -. 11/ 70 
 
 Arthbutnot & Co. v. Winnipeg M. Co., 16 Man. L.R. 401 155, 335 , 
 
 Ashfield v. Edgell, 21 O. R. 195 ; 79 
 
 Ashford v. Booth, 7 C. & P. 108 227 
 
Xll v CASES CITED. 
 
 PAGE 
 
 Ashmore v. Cox, (1899) 1 Q.B. 436 89 
 
 Atkinson Co. v. Shields Const. Co., 76 N.J.L. 751 129 
 
 Avery & Sons v. Woodruff, 144 Ky. 227 115 
 
 Badgley v. Dickson, 13 O.A.R. 494 166 
 
 Badger Lumber Co. v. Marion, 15 L.R.A. 652 16 
 
 Badger Lumber' Co. v. Mulhback, 190 Mo. App. 646 162 
 
 Badger Lumber Co. v. Parker, 35 L.R.A. 901 191 
 
 Baldridge v. Morgan, 24 Am. & Bng. Am. Cas. 377 430 
 
 Bagshaw V. Johnson. 3 O.L.R. 58 91 
 
 Baker v. Ambrose, (1896) 2 Q.B. 372 477 
 
 Baker & Stewart L. Co. v. Marathon, 146 Wis. 12 116 
 
 Baker v. Uplands, 24 W. L. R. 768 54, 103 
 
 Baker v. Waldroh, 92 Me. 17 17, 19 
 
 Baker v. Williams, 23 B.C.R. 124 , .' 73 
 
 Baines v. Curley, 33 D. L. R. 309 '.26, 32, 42 
 
 Bank of Charleston v. Curtis, 18 Conn. 342 26 
 
 Bank of Montreal v. Condon, 11 Man. L.R. 366 387 
 
 Bank of Montreal v. Haffner, 10 O.A.R. 599 5, 6, 29, 135 
 
 Banque Jacques Cartier v. Picard, 18 Que. '.S.C. 502 " 539 
 
 Banque La d'Hochelaga v. Stevenson, 9 Que. Q.B. 282, (1900) A.C. 
 
 600 . . 35 
 
 Banque d'Hochlaga v. Montreal Co., M.L.R. 1 S.C. 146 538 
 
 Barker v. Brown, 138 Mass. 340 217 
 
 Barker Lum. Co. v. Marathon, 146 Wis. 12 115 
 
 Barker & Steward Lumber Co. v. Marathon, 36 L.R.A., 875 120 
 
 Barnard v. Wheeler, 24 Me. 412 204 
 
 Barr & Anderson v. Percy, 21 W.L.R. 236 20, 120,' 276 
 
 Barrington v. Martin. 16 O.L.R. 635 .7, 41 
 
 Barry v. Ross, 19 S.C.R. 360 82' 
 
 Bartlett v. Kingan, 19 Penn. 341 487 
 
 Bastrup v. Prendergast, 179 111. 553 161 
 
 Batchelder v. Hutchinson, 161 Mass. 462 23, 180 
 
 Bathurst Lumber Co. v. Nepisiquit, 11 B.L.R. 552 2.15 
 
 Bauer v. Long, 147 Mich. 35 59 
 
 Baughman Automobile Co. v. Emanuel, 38 L.R.A. 97 227 
 
 Beam v. Methodist Episcopal Church, 3 Clark (Pa.) 343 53 
 
 Bean v. Bolton, 3 Phila. (Pa.) 87 215 
 
 Bear Lake & R. W. Co. v. Garland, 164 U.S. 1 47 
 
 Beatty v. Parker, 141 Mass. 523 16 
 
 Beaver Lumber Co. v. Miller. 32 D.L.R. 428 '. 573 
 
 Beck v. Catholic University, 6 App. Div. (N.Y.) 599 139 
 
 Beck v. Duncan, 12 D.L.R. 762 59 
 
 Bellamy v. Davy, (1891) 3 Ch. 540 2 
 
 Belleau v. Pitou, 13 Que. L. R. 337 264 
 
 Belnap v. Condon, 23 L.R.A 148 
 
 Bender v. Carrier, 15 S.C.R. 19 88 
 
 Bennett v. Shackford. 11 Allen, (Mass.) 444 75, 105 
 
 Bennet v. Devitt, 25 Man. L.R. 421 455 
 
 Benson v. Smith & Son, 31 D. L. R. 416 51, 187 
 
 Benton v. Wickwire. 54 N.Y. 229 48 
 
 Berlin Interior Hardware Co. v. Colonial, Ac., 38 D.L.R. 463 152 
 
 Bermingham v. Gill, 164 111. App. 536 .149 
 
 Bernal v. Pirn, 1 Gale, 17 212 
 
CASES CITED. Xlll 
 
 PAGE 
 
 Bernhardt v. Fry, 2 Sask. L.R. 315 96 
 
 Beseloff v. The White Resort Co., 22 B.C.R. 33 275 
 
 Bevan v. Thackera, 143 Pa. 182 60, 62 
 
 Bevan v. Waters, Moo. & Malk. 236 202 
 
 Beveridge v. Hawes, 2 O.W.R. 619 76 
 
 Bickerton v. Dakin, 20 O.R. 192, 695 15, 38, 74 
 
 Bigelowv. Heaton, 6 Hill (N.Y.) 43...' 174, 223 
 
 Billings v. Brand, 187 Mass. 417 160, 194 
 
 Birkett v. Brewder, 7 O.W.R. 62 25 
 
 Bishop v. Boyle, 9 Ind. 159 54 
 
 Bitner"s Estate, Re, 196 Pa. 90 183 
 
 Blackburn v. Macdonald, 6 U.C.C.P. 380 201 
 
 Black v. Hughes, 22 C.L.T. 220 443 
 
 Black v. Wiebe, 15 Man. L.R. 260 81, 86, 275, 324 
 
 Blake v. Nicholson, 3 M. & S. 167 203, 204 
 
 Blanchard- v. Ely, 179 Mass. 586 140 
 
 Bleadon v. Hancock, 4 C. & P. 152 202 
 
 Bligh v. Davies, 28 Beav. 211 207 
 
 Blight v. Ray, 23 O.R. 415 74; 129, 134 
 
 Boake Mfg. Co. v. McCrimmon, 6 O.W.N. 979 450 
 
 Boarcette v. Williams, 73 Mich. 208 48 
 
 Boardman v. Sill, 1 Camp. 410 . . . , 214 
 
 Bock v. Gorrissen, 2 DeG. F. & J. 443 201 
 
 Bohem v. Seabury, 141 Penn. 594 105 
 
 Bond v. Treahey, 37 U.C.Q.B. 360 89 
 
 Booth v. Booth, 3 O.L.R. 294 20, 22, 61, 120 
 
 Borden v. Mercer, 163 Mass. 7 135, 140 
 
 Boucher V. Belle Isle, 14 D.L.R. 146 361 
 
 Bowers v. Jarrell, 210 111. App. 256 151 
 
 Bowes, Re, (1886) 33 Ch. D. 586 215 
 
 Bowes v. N.Y. Christian Home, 54 How. Pr. 509 498 
 
 Bowden v. Duggan, 91 Me. 141 215 
 
 Boyce v. Huxtable (unreported) 89, 187, 399, 488 
 
 Boyce v. Kennedy (unreported) 391 
 
 Boyer v. Kelly, 258 111. 106 145 
 
 Boynton v. Holcomb, 49 111. App. 503 ; 50 
 
 Boyd v. Mole, 9 Phila. 118 . .- . 441 
 
 Brabazon v. Allen, 41 Con. 361 18 
 
 Braddyl v. Ball, 1 Br. C.C. 427 219 
 
 Braden v. Brown, 24 B.C.R. 374 77, 94 
 
 Bradford, Neill & M. Co., 76 111. App. 488 ' 156 
 
 Bradley v. Huber Co., 146 App. Diy. (N.Y.) 630 : . . 46 
 
 Bradley Co. v. Gaghan, 208 Pa. 511 121 
 
 Bradshaw v. Saucerman, 4 D.L.R. 476 30, 71 
 
 Brant v. City of New York. 186 N.Y. 599 '. 441 
 
 Brassard v. Chisholm, 4 R.Q. dej. 419 542 
 
 Breckenridge v. Travis, 2 Alta. L.R. 71 155, 254 
 
 Breeze v. Midland Ry. Co., 26 Gr. 225 55 
 
 Brett v. Rogers, (1897) 1 Q.B. 525 442 
 
 Brewer Co. v. B. & A. R. Co.; 179 Mass. 228 502 
 
 Brewster v. Warner, 136 Mass. 57 223 
 
 Briggs v. Lee, 27 Gr. 464 456 
 
 Briggs v. Mclnnes (unreported) 393 
 
XIV CASES CITED. 
 
 PAGE 
 
 Brienzi v. Samuel, 12 O.W.R. 1232 468 
 
 Bristol Corporation v. Aird, (1913) A.C. 241 78 
 
 Bristol v. Wilsmore, 1 B. & C. 614 208 
 
 Brynjolfson v. Oddson, 32 D.L.R. 270 187, 192 
 
 British Columbia Mills v. Horrebin, 12 B.C.R. 426 275 
 
 British Columbia Granitoid Co. v. Domn. Ship. Co., (1918) 2 
 
 "W.W.R. 919 11, 70, 176 
 
 British Columbia Timber & T. Co. v. Leberry, 22 C.L.T. 273 137, 271 
 
 British Wagon Co. v. Lea, 5 Q.B.D. 149 213 
 
 Brookfield v. Hopgood (unreported) Ill, 389 
 
 Brooks v. Mundy, 16 D.L.R. 119 100, 102 
 
 Brooks-Sanford Co. v. Theodore Telier Co., 22 O.L.R. 176... 16, 40, 
 
 : 105, 107, 108, 117, 119, 124, 188 
 
 Brooks-Sanford Co. v. Hampden, 204 Mass. 494 116 
 
 Broomhead, Re, 16 L.J.Q.B. 355 223 
 
 Brougham, Lord v. Cauvin, 37 L.J. Ch. N.S. 691 ' . . 224 
 
 Broughton v. Smallpiece, 25 Gr. 290 . . , 456 
 
 Brown v. Bathurst, 28 D.L.R. 295 ". 363 
 
 Brown v. Allan, 13 D.L.R. 350 .32, 95, 274, 363 
 
 Brown v. Bannatyne School, etc., 22 Man. L.R. 260 1 88, 200 
 
 Brown v. Haddock, 199 Mass. 480 146 
 
 Brown v. Myers, 145 Pa. 17 121 
 
 Brown v. Wyman, 41 Am. Rep. 117 19 
 
 Bruce v. Eveson, 1 Cab. & Ellis, 18 225 
 
 Bruce Lumber Co. v. Hoos, 67 Mo. App. 264 160 
 
 Bruck v. Bowermaster, 26 111. App. 510 61 
 
 Bruner v. Moore (1904) , 1 Ch. 305 87 
 
 Brunswicke-Balke Collender Co. v. Racette, 49 Que. S.C. 50 71, 559 
 
 Bruntnall v. Smith, 166 Mass. 353 217 
 
 Brusk Elec. Co. v. Warwick, 6 Ohio -. 16 
 
 Bryant v. Grady, 98 Me. 389 157 
 
 Brydon v. Lutes, 9 Man. L.R. 463 75, 86, 325 
 
 Buchanan v. Einstein, 87 N.J.L. 307 46 
 
 Budd v. Trustees, 51 N.J.L. 36 471 
 
 Builders Material Co. v. Johnson, 158 111. App. 413 37, 115, 116 
 
 Builders Supply Co. v. Huddleston, 25 Man. 718 17, 20, 21, 26, 32 
 
 Bunting v. Bell, 23 Gr. 584 473 
 
 Burns v. Lane, 23 111. App. 504 92 
 
 Burke v. Ireland, 26 N.Y. App. Div. 487 36 
 
 Burnside v. O'Hara; 35 111. App. 150 479 
 
 Burritt v. Renihan, 25 Gr. 183 493 
 
 Burt v. Wallace, 17 C.L.J. 70 '. 514 
 
 Burton v. Hookworth, 48 D.L.R. 339 12, 101, 122 
 
 BusHeld v. Wheeler, 14 Allen (Mass. ) ; 130- 202, 223 
 
 Busfleld, In re. 32 Ch. D. 123 509 
 
 Buser v. Shepard, 107 Ind. 417 49, 184 
 
 Butterfield v. Byron, 153 Mass. 617 78, 85 
 
 Caldwell v. Glazier, 138 App. Div. (N.Y.) 826 67 
 
 Caldwell v. Schumlback, 175 Fed. 429 89 
 
 Calhoun v. Mahar. 14 Pa. 56 46 
 
 California Power Works v. Blue Tent Mines, 22 Pac. Rep. 391 472 
 
 Camirand v. Durand, 10 Q.P.R. 174 454 
 
 Campbell v. John Taylor Co., 62 N.J. Eq. 30 . '. 66 
 
CASES CITED. XV 
 
 PAGE 
 
 Campbell v. Jacobson, 145 111. 389 59 
 
 C. P. R. Co. v. Canadian Wheat Growing Co. (1919), 2 W.W.R. 
 
 313 , 245 
 
 Canada Foundry Co. v. Edmonton Portland Cement Co. (1919) 2 
 
 W.W.R. 310 254 
 
 Canada Foundry Co. v. Edmonton (1919) 2 W.W.R. 310 254 
 
 Canada Sand, Lime, Brick Co. v. Ottaway, 10 O.W.R. 686 196 
 
 Canada Sand, Land & Brick v. Ottaway, 15 O.L.R. 128 997 
 
 Canada Sand, etc., Co. v. Poole, 10 O.W.R. 1041 509 
 
 Canada Steel and Wire Co. v. Ferguson, 21 D.L.R. 771 214 
 
 Canadian Bank of Commerce v. Lewis, 12 B.C.R. 398 64 
 
 Canadian Equipment Co. v. Bell, 11 D.L.R. 820 112, 127, 154 
 
 Canadian Gas Power v. Schofield, 15 O.W.R. 847 207 
 
 Canadian General Elec. Co. v. Can. R. Co., 52 Can. S.C.R. 349 198 
 
 Canadian Lumber v. Ferguson (1920) 1 W.W.R. 256 572 
 
 Canadian Western Foundry & Supply Co. v. Hoover (1917) 3 W. 
 
 W.R. 594 83 
 
 Canton Roll Co. v. Rolling Mills Co., 155 Fed. 321 164 
 
 Canton v. Chevalier, 52 Que. S.C. 97 557 
 
 Canty v. Clarke, 44 U.C.R. 505 78 
 
 Capper v. Gillespie, 11 W.L.R. 310 : 20 
 
 C. P. R. Co. v. Notre Dame de Bonsecours, (1899) A.C. 367 57 
 
 Carew v. Rutherford, 106 Mass. 1 225 
 
 C'arew v. Stubbs, 155 Mass. 549 85, 167 
 
 Carey v. Brown, 92 UjS. 171 225 
 
 Carey-Lombard Lumber Co. v. Jones, 187 111. 203. 154 
 
 Carignan v. Gilbert, 7 Q.P.R. 364 529 
 
 Carriere v. Sigouin, Q.R. 33 S.C. 423; 18 K.B. 176 540, 549 
 
 Carriere v. Milot, 15 R. de J. 89 , 540 
 
 Carson & Co. v. Shelton, 15 L.R.A. 509 120 
 
 Carroll v. McVicar, 15 Man. L.R. 379 94, 103, 189 
 
 Carroll v. Shooting the Chutes Co., 85 Mo. App. 563 204 
 
 Carter, Re, 55 L.J. Ch. 230 223 
 
 Casey v. Weaver, 141 Mass. 280 499 
 
 Cassels v. Holden, &c, (1914) 84 K.B. 834 202 
 
 Castellatn v. Thompson, 13 C.B.N.S. 105 205 
 
 Central Lumber Co. v. Braddock Land, 84 Ark. 560 127 
 
 Chadwick v. Hunter, 1 Man. L.R. 363 29, 122 
 
 Chambers v. Davidson, L.R. 1 P.C. 305 215 
 
 Chambers v. Goldthorpe, 70 L.J.K.B. 482 77, 87 
 
 Champion v. The World, 27 D.L.R. 506 175, 280 
 
 Chapin v. Persse, 30 Conn. 461 110, 122 
 
 Charpenter v. Lapointe, 7 R. de J. 92 543 
 
 Charters v. MoCracken, 29 D.L.R. 756 170 
 
 Chase v. Westmore, 5 M. & S. 180 202, 205 
 
 Chatham v. Rowland, 92 N.C. 340 139 
 
 Chew v. Traders Bank of Canada, 19 O.L.R. 74 215 
 
 Chicago & Alton R. R. Co. v. Union R.MX)., 109 U.S. 720 152 
 
 Chicago Artesian Wells Co. v. Covey, 60 111. 73 118 
 
 Chicago Lumber Co. v. Dillon, 13 Colo. App. 196 140 
 
 Chicago Lumber Co. v. Douglas, 44 L.R.A. 843 115 
 
 Chicago Smokeless Gas & Fuel Co. v. Lyman, 62 III. App. 538 68 
 
 Childs v. Anderson, 128 Mass. 108 23 
 
XVi CASES ~ CITED. 
 
 PAGE 
 
 Chinic Hardware Co. v. Laurent, 1 R. de J. 278 547, 556 
 
 City of Calgary v. Dominion Radiator Co., 40 D.L.R. 65. .29, 33, 174, 259 
 
 Choquette v. Couture, 17 Que. P.R. 480 559 
 
 Christian v. Illinois Malleable Co., 92 111. App. 320 1M 
 
 Christian v. Allee, 104 111. App. 177 .- 1° 4 
 
 Christie v. Mead, 8 C.L.T. 312 \f 
 
 Christie v. McKay, 15 Man. L.R. 612 **< 
 
 Chute v. Gratten, 32 N.B.R. 549 , 444 
 
 City of Montreal v. Lafebre, R. J.Q. 14 S.C. 473 645 
 
 Clapin v. Nagle, 6 L.C.J. 196 • -547, 556 
 
 Clayton v. McConnell, 14 O.R. 608 "' 
 
 Clark v. Butler, 32 N.J. Eq. 664 . . . ; 178 
 
 Clarke' v. Heylman, 80 N.Y. S. 794 ■-. 122 
 
 Clark v. Kingsley, 8 Allen, 543 214 
 
 Clarke v. Costello, 29 N.Y.S.. 937 224 
 
 Clarke v. Barnshaw, Gow 30 ."< 225 
 
 Clarke v. Fell, 2 L.J.K.B.N.S. 84 -. : 22 
 
 Clarke v. Heylman, 80 App. Div. (N.Y.) 572 110 
 
 Clarke v Moore, 1 Alta. L.R. 49 : 17, 26, 155, 187, 191 
 
 Clevenger v. Louis, 16 L.R.A. (N.S.) 410 227 
 
 bleverley v. Moreley, 148 Mass. 280 420 . 
 
 Clinton Thresher Co., 15 O.W.R. 318 182,. 
 
 Close v. Waterhouse, 6 East. 523 225 
 
 Cobban v. Lake Simcoe, 5 O.L.R. 547 521 
 
 Cockburn v. Campbell, 24 Gr, 519 218 
 
 Coddington v. Dry Dock Co., 31 N.J.L. 477 204 
 
 Cole v. Hall, 12 P.R. 584 i 490 
 
 Cole v. Pearson, 17 O.L.R. 46 ..12, 104, 185 
 
 Cole v. Uhl, .46 Conn. 296 „ .492 
 
 Coleman v. Goodnow, 36 Minn. 9 , '. 165 
 
 Colling v. Stimson & Buckley, 10 D.L.R. 597 96, 174, 177, 189 
 
 Columbia Bitulithic v. Vancouver, 21 D.L.R. 91 , 294 , 
 
 Collins v. Drew, 67. N.Y. 149 19, 48, 53 
 
 Collins v. Martin, 41 U.C.Q.B. 602 . . ( . . 450 
 
 Collins v. Patch, 156 Mass. 317 . : 17, 167 
 
 Colonial Investment Co. v. McCrimmon, 5 O.W.R. 315 180 
 
 Colt v. Lausenceburg L. C, 44 Ind. App. 122 62 
 
 Commonwealth v. Green, 111 Mass. 392 227 
 
 Compaigne v. Car/ver, 27 D.L.R. 76 s . 134 
 
 Concord. Apartment House Co. v. O'Brien, 128 111. App. 423....;.. 150 
 
 Cook v. Belshaw, 23 O.R. 545 169, 176, 180 
 
 Cook v. Koldofsky, 28 D.L.R. 346 74, 133, 167, 173 
 
 Connely- v. Havelock School Trustees, 9 D.L.R. 876 51, 53 
 
 Connolly v. Sullivan, 173 Mass. 1 85 
 
 Connor v. Lewis, 16 Me. 268 48 
 
 Conrad v. Kaplan, 24 Man. L.R. 368 98 
 
 Conrow v. Little, 115 N.Y. 387 203 
 
 Copley v. O'Neill, 58 Barb. (N.Y.) 299 .' 450 
 
 Cornish, Re, 6 O.R. 259 , 460 
 
 Corporation du Seminaire v. Banque de St. Hyacinthe M.L.R. 1 1 
 
 Q.B. 396 : 534 
 
 Ooughlan v. Carver, 29 W.L.R. 791 177, 258, 270 
 
 Coughlan v. National Const. Co., 14 B.C.R. 339 37, 155, 160 
 
CASES CITED. $V11 
 
 PAGE 
 
 Coumbe, Re, Cockburn & Campbell, 24 Gr. 619 189 
 
 Courtemanche v. Blackstone Valley Co., 170 Mass. 50 139, 147 
 
 Cowan v. Griffith., 103 CaL 224 17 
 
 Cowan v. Penn Plate Glass Co., 184 Pa. 16 18 
 
 Cowell v. Simpson, 15 Ves. 27S 215 
 
 Cowper v. Green, 7 M. & S. 633 217 
 
 Craig v. Cromwell, 27 O.A.R. 587 39 
 
 Crapper v. Gillespie, 11 W.L.K. 310 581 
 
 Crawford v. Tilden, 13 O.L.R. 173, 14 O.L.R. 572 10, 56, 57, 58 
 
 Crawshay v. Homfray, 4 B. & Aid. 50 214 
 
 Craigholme v. Southwicke-, 21 O.W.R. 445 432 
 
 Credit Foncier Franco-Canadian v. Lindsay Walker Co. (1919), 2 
 
 W.W.R. 385 67 
 
 Cremier v. Byrnes, 4 E. D. Smith (N.Y.) 756 475 
 
 Crerar v. C.P.R. Co., 5 O.L.R.- 383 38 
 
 Crone v. .Strutters, 22. Gr. 248 34 
 
 Croskey v. Corey, 48 111. 442 148 
 
 Croskey v. N. W. Mfg. Co., 48 111. 481 459 
 
 Crowfoot v. London Dock Co., 2 Cr. & M. 630 211, 218 
 
 Crown Lumber Co. v. Malcolm, 9 W.W.R. 481 264 
 
 Culver v. Lieb^rman, 69 N.J.L. 341 506 
 
 Cumpston v. Haigh, 2 Bing. N.C. 449 201, 204 
 
 Curnew v. Lee, 143 Mass. 105 442 
 
 Currier v. Cummings, 40 N.J. Eq. 145 67, 148, 183 
 
 Currier v. Friedrick, 22 Gr. 243 r 20, 106 
 
 Curtis v. Medansky, 141 App. Div. (N.Y.) 883 476 
 
 Curtis v. Richardson, 18 Man. L.R. 519 14, 333 
 
 Curwen v. Milburn (1889), 42 Ch. D. 424 223 
 
 Cut Rate Plate Glass Co. v. Solodinski, 25 D.L.R. 533 132, 172, 185 
 
 Dakin v. Lee (1916), 1 K. B. 566 80, 83, 100 
 
 Dale v. International Mining 'Syndicate, 25 B.C.R. 1 248 
 
 Daley v. Legate, 169 Mass. 257 75 
 
 Danforth v. Pratt, 42 Me. 50 222 ■ 
 
 Daniel v. MoDuff, R.J.Q. 13 K.B. 361 534 
 
 Darlington Lumber Co. v. Burton, 156 111. App. 82 65 
 
 Davidson v. Francis, 14 Man. L.R. 141 321 
 
 Davidson v. Provost, 35 III. App. 126 88 
 
 Davidson v. Stewart, 200 Mass. 393 183 
 
 Davies v. Bowsher, 5 D. & E. 488 215 
 
 Davis v. Alford, 94 U.S. 545 177, 183 
 
 Davis v. Connecticut & Mut. L. Ins. Co., 84 111. 508 139 
 
 Davis v. Crown Point M. Co., 3 O.L.R. 69 17, 25, 26, 30, 71 
 
 Davis v. Humphrey, 112 Mass. 309 216 
 
 Davis v. LaCrosse Hospital, 121 Wis. 579 . .' 154 
 
 Davis v. Miall, 86 N.J.L. 167 123, 136 
 
 Davison v. Mulcahy, 19 N.S.R. 209 219 
 
 Daubigny v. Duval, 5 T.R. 604 219 
 
 Day v. Crown Grain Co., 39 S.C.R. 258 186, 188, 235 
 
 Deane Steam Pump Co. v. Clark, 84 N.Y.S. 851 519 
 
 Dearie v. Martin, 78 Penn. 55 •. 60 
 
 Deegan -v. Kilpatrick, 64 N.Y, App. Div. 374 24, 134 
 
 Degagne v. Cnave, 2 Terr. L.R. 210 76, 85, 88 
 
 MX. — B 
 
XV1U' CASES CITED. 
 
 PAGE 
 
 DeKlyn v. Gould, 166 N.Y. App. 282 4,77 
 
 Deldo v. Gough-Sellers, 25 D.L.R. 605 . , 81, 96 
 
 Demaurez, In re, 5 Terr. L.R. 84 466 
 
 Demers v. Byrd, 17 K.B. (Que.) 303 544 
 
 Dempsey v. Carson, 11 U.C.C.P. 462 1, 214, 220 
 
 Dempster v. Wright, 21 C.L.T. 88 .... 399 
 
 Dermott v. Jones, 2 Wall. 1 457 
 
 Desrosiers v. Leedham, 49 Que. S.'C. 33 544 
 
 Devine v. Clark, 198 Mass. 56 186 
 
 De Vingo v. Hall, 205 Mass. 407 478 
 
 Deviner v. Gallery, 38 D.L.R. 542 438 
 
 Dewing v. Wilbraham Society, 18 Gray, 414 53 
 
 Dicas v. Stockley, 7 C. & P. 587 207, 223 
 
 Dick v. Standard, 23 O. W. R. 96 518 
 
 Dick v. Standard Cable Co., 23 O.W.R. 96 30 
 
 Dillon v. Sinclair, 7 B.C.R. 328 279 
 
 Dirks v. Richards, 4 M. & G. 574 ' 214 
 
 Dixon v. Dalby, 11 TJ.C.Q.B. 79 206 
 
 Dixon v. Le Farge, 1 E. D. Smith, 722 472 
 
 Dixon v. Ross, 1 D.L.R. 17 , 77 
 
 Doane v. Russell, 3 Gray (Mass.) 382 204 
 
 Dobson V. Major (unreported) 389 
 
 Dodge v. Hall, 168 Mass. 435 477 
 
 Doe v. Monson, 33 Me. 430 90 
 
 Dominion Fuel & Lumber Co. v. Paskov, (1919),1 W.W.R. 657 173 
 
 Dominion Radiator Co. v. Cann, 37 N.S.R. 237 99, 107 
 
 Dominion Radiator Co. v. Payne, 11 Alta. R. 537 15 
 
 Dominion Trust Co. v. Mutual Life Assn., 26 B.C.R. 237 64, 279 
 
 Donaher v. Boston, 126 Mass. 309 119 
 
 Donahy v. Clapp, 12 Cush. (Mass.) 440 48 
 
 Donal v. Archibald, 1 Alta. L.R. 524 199 
 
 Donaldson v. Collins, 21, W.L.R. 56 78, 86 
 
 Donald v. Suckling, L.R. 1 Q.B. 612 , 204 
 
 Donnell v. Butler, 216 Mass. 41 32 
 
 Doody v. Collins, 223 Mass. 332 '. 219 
 
 Dorrell v. Campbell, 23 B.C.R. 560 129, 270 
 
 Douglas v. Chamberlain, 25 Gr. 289 5 
 
 Doutre v. Greene, 5 L.C.J. 152 537, 555 
 
 Dowdney v. McCallum, 59 N.Y. 367 19 
 
 Dredge v. Conway, 70 L.J.'K.B. 494 446 
 
 Driscoll v. Hill, 11 Allen (Mass.) 154 241 
 
 Drummond Carriage Co. v. Mills, 40 L.R.A. 761 226 
 
 Drummond v. Griffith, L.R.A. 1916, B. 748 227 
 
 Dufresne v. Prefontaine, 21 S.C.R. 607 538 
 
 Dufton v. Horning, 26 O.R. 252 474 
 
 Duncan v. Brunelle, 10 Q.P.R. 268 j 549 
 
 Dunham v. Johnson, 135 Mass. 310 225 
 
 Dunham v. Woodworth, 158 111. App. 486 45 
 
 Duncan Co. v. Desjardins, 51 Que. S.C. 71 551 
 
 Dunlop v. New 1 Garage, (1915) A.C. 79 199 
 
 Dunn v. Holbrook, 7 B.C.R. 503 97 
 
 Dunn v. McCallum, 14 O.L.R. 249 20, 21, 32, 91, 106, 119, 126 
 
 Dunn v. Sedziak, 17 Man. L.R. 484 103 
 
CASES CITED. XIX 
 
 PAGE 
 
 Dunn v. Stokern, 43 N.J. Eg. 401 164 
 
 Dupont DeNemous Powder Co. v. Culgln-Pace, 206 Mass. 586 115 
 
 Dure v. Roed, 34 D.L.R. 38 173 
 
 Durling v. Gould, 83 Me. 184 46 
 
 Dussault y- Fortin, R.J.Q. 4 S.C. 304 549 
 
 Eadie-Douglas v. Hitch & Co., 9 D.L.R. 239 ... . 8, 28 
 
 Easton v.. Brown, 170 Mass. 311 180 
 
 Eckhard v. Donohoe, 9 Daly (N.Y.) 214 220 
 
 Eddy v. Chamberlain & Landry. 37 D.L.R. 711 73, 131, 132, 134, 142 
 
 Edmonds. v. Tiernan, 2 B.C.R. 82, 21 S.C.R. 406 31, 34, 156 
 
 Edwards v. Derrickson, 28 N.J.L. 39 502 
 
 Eidendrath .Co, v. Gebhardt, 222 111. 113 48 
 
 Eider, The, v. Norddentscher, Lloyd, 62 L.J.P. 65 219 
 
 Elford V. Thompson, 1 D.L.R. 1 77, 199 
 
 EUenwood v. Burgess, 14 Mass. 534 161 
 
 Elliot v. McCallum, 19 C.L.T. 412 291 
 
 Elliot v. Rowell, 11 O.W.N. 203 518 
 
 Ellis v. Cory, (1902) 1 K.B. 38 19 
 
 Emard 'v. Gauthier, 29 D.L.R. 319 36, 554 
 
 Empire Brewing & Malting Co., Re, 8 Man. L.R. 424. 135, 184 
 
 Erdman v. Moore, 58 N XL. 445 64 
 
 Ettridge v. Bassett, 136 Mass. 314 178 
 
 Evans v. Jensen, L.R.A. 1918 B 165 
 
 Evans v. Lower, 58 Atl. Rep. 294 116, 120 
 
 Exall v. Partridge, 8 T.R. 308 ". 90 
 
 Fairclough v. Smith, 13 Man. L.R. 509 17, 20, 21, 61, 130 
 
 Falconer v. Hartlen (unreported) " 192, 389 
 
 False Creek Co. v. Sloan, 17 W. L.R. 525 252, 260 
 
 Farmers' Advocate v. Master Builders Co., (1917) 3 W.W.R. 1100.. 199 
 
 Farr v. Groat, 24 "W.L.R. 860 ' 234 
 
 FarreH v. Gallagher, 18 O.W.R. 446 12, 13, 99, 104, 185 
 
 Farquhar v. City of Hamilton, 20 O.A.R. 86 87 
 
 Federal Trust Co. v. Guigues, 76 N.J. E. 495 183 
 
 Feeny y. Rothflbaum, 155 Mo. App. 331.. 16, 121 
 
 Fehr Construction Co. v. Postl, 189 111. App. 519 64 
 
 Felgenhauer v. Haas, 123 App. Div. 75 478 
 
 Finn v. Miller, 10 C.L.T. 23 483 
 
 First National Bank v. Redman, 57 Me. 405 182 
 
 Fischer v. Jordan, 169 N.Y. 615 145 
 
 Fisher .v. Smith, (1878) 4 A.C. 12 , 214 
 
 Fitzgerald v. Elliott, 162 Pa. 118 202 
 
 Fitzgerald v. Williamson, 18 B.C.R. 322 274 
 
 Fitzpatrick v. Boylan, 57 N.Y. 433 48 
 
 Flack v. Jeffrey, 10 Man. L.R. 514 37, 74, 129 
 
 Flett v. World Construction, 15 D.L.R. 628... 128, 195, 279 
 
 Fletcher v. Stedman, 159 Mass. 124 139 
 
 Fletcher-Crowell Co. v. Chevalier, 108 Me. 453 118 
 
 Folsom v. Barrett, 180 Mass. 439 204 
 
 Forbes v. Mosquito Fleet Yacht Co., 175 Mass. 432 24 
 
 Forhan v. Lalonde, 27 Gr., 600 428 
 
 Forman v. The Liddesdale, 69 L.J.P.C. 44 224 
 
 Forth v. Simpson, 13 Ad. & E.. (N.S.) 680 206 
 
 Fortin v. Pound, 1 W.L.R. 333 145, 270 
 
XX CASES CITED. 
 
 PAGE 
 
 Fossett v. Rock Island L. Co., 14 L.R.A. 918 199 
 
 Foster v. Baker, (1910) 2 K.B. 636 496 
 
 Foster v. Brocklebank, 22 D.L.R. 38 192, 250 
 
 Foster v. Hastings Corporation, 87 L.T. 736 86 
 
 Fowler v. Parsons, 143 Mass. 401 162 
 
 Fowler v. Pompelly, 76 S.W. 173 123 
 
 Franklin v. Hosier, 4 B. & Aid. 341 202 
 
 Franklin Sav. Bank v. Taylor, 131 111. 376 138, 140 
 
 Fraser v. Griffiths, 1 O.W.R. 141 474 
 
 Frechette v. Ouimet, Q.R. 28 S.C. 4 440 
 
 . Freeze v. Carey, 1 Alta. L.R. 81 229 
 
 French v. Hussey, 169 Mass. 206 48 
 
 Friedman v. County of Hampden, 204 Mass. 494 91, 117 
 
 Fripp v. Clark, 14 D.L.R. 918 .- 11, 72, 281 
 
 Frith v. Rehfeldt, 130 App. Div. (N.Y.) 326 157 
 
 Frohlich v. Ashton, 164 Mich. 132 162 
 
 Frohlich v. Carroll, 127 Mich. 561 6Q 
 
 Fuller v. Beach, 21 W.L.R. 391 30, 76 
 
 •Fuller v. Heintz, 137 "Wis. 16-9 : .' . . . 82 
 
 Fuller v. Turner, 18 B.C.R. 69 95 
 
 Pulp v. Power Co., 157 N.C. 156 15, 94, 486 
 
 Gabriele v. Jackson Mines, 15 B.C.R. 373 299 
 
 Galarneau v. Tremblay, 22 Que. S.C. 143 540 
 
 Gale v. Blaikie, 129 Mass. 206 45 
 
 Galliher v. Cohen, 1 Brown (Penn.) 43 214 
 
 Galvin-Walston Lumber Co. v. McKinnon, 4 Sask. L;R. 68, 16 W. 
 
 L.R. 310 ' 14, 19, 138 
 
 Gannon v. Shepard, 156 Mass. 355 147 
 
 Gardner v. Gorman, 1 Alta. L.R. 106 253 
 
 Gardner v. Lefevre, 180 Mich. 219 213 
 
 Garing v. Hunt, 27 O.R. 149 14, 64, 74 
 
 Garlan v. Rensselaer, 71 Hun. 2 135 
 
 Gearing v. Nordheimer, 40 U.C.Q.B. 21 82 
 
 Gearing v. Robinson, 27 O.A.R. 364 35. 40, 74, 129, 142 
 
 General Contracting Co. v. Ottawa, 14 O.W.R. 749; 16 O.W.R. 479 
 
 " 51, 53 
 
 General Fire B. Co. v. Chaplin, 183 Mass. 376 45 
 
 General Fire E., Co. v. Magee, 199 Pa. 647 91 
 
 Gerry v. Howe, 130 Mass. 374 < 60 
 
 Giant Powder Co. v. Oregon Pac. Ry. Co., 42 Fed. 470........... 471 
 
 Gibbon v. Pease, (1905) 1 K.B. 810 72 
 
 Gibson v. Lenane, 94 N.Y. 183 470 
 
 Gidney v. Morgan, 16 B.C.R. 18 91 
 
 Gillies Supply Co. v. Allan, 15 B.C.R. 375 299 
 
 Gillies v. Gibson, 7 W.L.R. 245 -. 164 
 
 Gillis v. Cobe, 177 Mass. 584 82 
 
 Gilson v. Emery, 11 Gray (Mass.) 430 48 
 
 Gilmour v. Colcourd, 96 App. Div. (N.Y.) 358 145 
 
 Glacius v. Black, 50 N.Y. 145 81 
 
 Gladu v. Hurtubise, 10 Q.PR. 272 536 
 
 Glascock v. Lemp, 26 Ind. App. 175 227 
 
 Goble v. Gale, 41 Am. Dec. 219 157 
 
 Goddard v. Coulson, 10 O.A.R. 1 455, 458 
 
CASUS CITED. XXI 
 
 PAGE 
 
 Goddefroy v. Caldwell, 56 Am. Dec. 360 31, 120 
 
 Godfrey Lumber Co. v. Kline, 167 Mich. 629 45 
 
 Gogin y. Walsh, 124 Mass. 516 119, 277 
 
 Gold Medal Furniture Co. v. Craig, 6 O.W.R. 954 466 
 
 Goldie McCullough Co. v. Hewson, 35 N.B.R. 349 64 
 
 Good & Nepisiquit Lumber Co., Re, 2 E.L.R. 252 '. 361 
 
 Good v. Toronto H. & B. Ry. Co., 26 O.A.R 55, 78 
 
 Goodbub v. Estate of Horning, 127 Ind. 182 49 
 
 Goodwin v. The Queen, 28 S.C.R. 273 77 
 
 Gorman v. Archibald, 1 Alta. L.R. 524 106, 176 
 
 Gorman v. Henderson, 8 W.L.R. 422 93 
 
 Goss v. Greenleaf, 98 Me. 436 51 
 
 Gould v. McCormack, 75 Wash. 61 164 
 
 Gove v. Cather, 23 111. 634 54, 184 
 
 Grace v. Osier, 16 W.L.R. 627; 19 W.L.R. 109, 326 86, 88 
 
 Graham v. Williams, 8 O.R. 478, 9 O.R. 458 8, 14, 39, 74, 129 
 
 Grand Trunk R. Co. v. Therrien, 30 S.C.R. 485 57 
 
 Government of Newfoundland v. Nfd. R. Co., (1888) 13 A. C. 199. . 443 
 
 Grant v. Dunn, 3 O.R. 376 472 
 
 Great Western Ry. Co. v. Crouch, 3 H. & N. 183 223 
 
 Gray v. McLellan, 214 Mass. 92 182 
 
 Great West Perm. Loan Co. v. National Mtge. Co., (1919) 1 W.W. 
 
 R. 788 185 
 
 Green v. Holmstead Fire Ins. Co., 82 N.Y. 517 453 
 
 Green v. Shewell, 4 M. & W. 277 221 
 
 Green v. All Motors, Limited, (1917) 1 K.B. 625 224 
 
 Green v. Shewell, 4 M. & W. 277 221 
 
 Greenleaf v. Beebe, 80 111. 522 62, 164 
 
 Green Lumber Co. v. Nutriment Co., 113 111. App. 635 440 
 
 Griff v. Clark, 155 Mich. 611 164 
 
 Griffin v. Ernst, 124 App. Div. (N.Y.) 289 67 
 
 Guelph Paving Co. v. Brockville, 5 O.W.R. 626 78 
 
 Guest v. Hahnan 15 C.L.T. 61 52 
 
 Guest v. Hunter, 3 C.L.T. 33 89, 96 
 
 Gurney v. McKay, 37 U.C.Q.B. 336 203 
 
 Gurr v. Cuthbert, 12 L.J. Ex. 309 215 
 
 Haas Electric & M. Co. v. Springfield, 236 111. 452 148 
 
 Hackett v. Coghill, 2 O.W.R. 1077 210, 212 
 
 Haddock v. Humphrey, (1900) 1 K.B. 609 19, 54 
 
 Haggarty v. Grant, 2 B.C.R. 176 34, 35 
 
 Hale v. Hughes, 10 Gray (Mass.) 99 90 
 
 Halestrap v. Gregory, (1895) 1 Q.B. 561 225 
 
 Haley v. Young, 134 Mass. 364 ; 486 
 
 Hall v. Hogg, 14 P.R. 45 486 
 
 Hall v. Pilz, 11 P.R. 449 507 
 
 Halstead & Harmount Co. v. Arick, 76 Conn. 382 155 
 
 Hamilton Bridge Works v. General Contracting Co., 14 O.W.R. 646. 510 
 
 Halifax Shipyards v. Westerian, 19 Can. Ex. C.R. 259 410 
 
 Hamilton v. Vineberg, 4 D.L.R. 827 88 
 
 Hammond v. Damelson, 126 Mass. 204 , 226 
 
 Hammonds v. Barclay, 2 East 235 1, 202 
 
 Hanson v. News Pub. Co., 97 Me. 99 67 
 
 Harding v. Knowlsen, 17 U.C.Q.B. 564 32 
 
XX11 CASES CITED. 
 
 PAGE 
 
 Hardisty v. Carnell, 40 N.S.R. 214 204 
 
 Harrington v. . Saunders, 23 C.L.J. 48 462 
 
 Harris Mfg. Co. v. McGovern, S,C. 340 (Que.) 539, 547 
 
 Harris-v. Charbonneau, 7 R. de J. 119 542 
 
 Hart v. Iron Works, 37 Ohio St 91 
 
 Hart v. Porthgain Harbour, (1903) 1 Ch. 690 86 
 
 Hartley v. Hitchcock, 1 Stark. 408 206 
 
 Hartney v. Boulton, 7 Sask. L.R. 97 ■. 219 
 
 Hartop y. Hoare, 3, Atk. 43 207 
 
 Harvey v. Brewer, 178 N.Y. App. 5 464 
 
 Harvey v. Mo'se Plumbing Co. v. Wallace, 99 111. App. 212 •. 45 
 
 Hatch v. COleman, 29 Barb. (N.Y.) 201 119 
 
 Hatton Car Maintenance Co.. (1915) 1 Ch. 621 206, 213 
 
 Hawes v. Crowe, Ry. & M. 414 208 
 
 Hawkins v. Mapes-Reeves Co., 178 N.Y. App. 236 496 
 
 Haycock v. Sapphire, 7 O.L.R. 21 515 
 
 Hayden v. Meunier, 13 R. de J. 149 553 
 
 Hayes v. Fessenden, 106 Mass. 223 24 
 
 Hayward v. Grand Trunk R. Co., 32 U.C.Q.B. 392 202 
 
 Hazel v. Lund, 25 D.L.R. 204 51 
 
 Hazard Powder Co. v. Brynes, 12 Abb. Pr. 469 472 
 
 Head Co. v. Coffin, 13 W.L.R. 663 93 
 
 Healey Ice Mach. Co. v. Green, 181 Fed. 890 62 
 
 Heberlien v. Wendt, 99 111. App. 506 198 
 
 Hecla Iron Works v. Hall, 115 App. Div. N.Y. 126 164 
 
 Heckman v. Pinkney, 81 N.Y. 211 48, 85 
 
 Henderson v. Connolly, 123 111. 98 135 
 
 Henderson v. Sturgis, 1 Daly (N.Y.) 336 85 
 
 Henry v. Bowes, 3 C.L.T. 606 : 512 
 
 Henry v. Miller, 145 111. App. 628 146 
 
 Hensel v. Noble, 95 Pehn. St. 345 203, 225 
 
 Henshaw v, Federal, (1916) 34 W.L.R. 208 < 238 
 
 Hercules Powder Co. v. Knoxville, 67 L.R.A. 487 116 
 
 Herbert v. Herbert, 57 Prac. (N.Y.) 33 139 
 
 Heskins v. Hesley, 152 111. App. 141 159 
 
 Hewison v. Guthrie, 2 Bing. N.C. 759 215 
 
 Hickman v. Roberts, (1913) A:c. 229 ' 78 
 
 Higgins v. Scott, 2 B. & Ad. 413 223 
 
 High. River Trading Co. v. Anderson, 10 W.L.R. 127 178, 183 
 
 Hill v. Fraser, 2 Thorn. (N.S.) 294 80 
 
 Hill v. Newman, 80' Am. Dec. 473 123 
 
 Hill v. Story, 34 O.L.R. 489 .'. 127 
 
 Hilliard v. Allen, 4 Cush. 532 486 
 
 Hinchley v. Greany, 118 Mass. 595 t 159, 162, 220 
 
 Hines Lumber Co. v. O'Heron, 183 111. App. 391 115 
 
 Hiscox v. Greenwood, 4 Bsp. 174 » 205 
 
 Hitchcock v. Lancto, 127 Mass. 514 ; 90 
 
 Hofgesang v. Meyer, 2 Abb. N. Cas. (N.Y.) Ill 472 
 
 Hoffstrom v. Stanley, 14 Man. L.R. 227 135, 137 
 
 Holden v. Bright Prospects G. M. Co., 6 B.C.R. 439 292 
 
 Hollingsworth v. Dow, 19 Pick. 228 ... 202 
 
 Hollins.v. Hubbard, 165 N.Y. 534 222 
 
 Holcom v. Boynton, 151 111. 294 i 49 
 
CASES CITED. XX111 
 
 PAGE 
 
 Holden v. Winslow, 18 Penn. i60 486 
 
 Hollis v. Claridge, 4 Taunt. 807 205 
 
 Hollister v. Mott, 132 N.Y. 18 83 
 
 Holly v. Huggeford, 8 Pic. 73 219 
 
 Holtby v. French, 1 O.W.R. 821 85 
 
 Hommell v. Lewis, 104 Penn. 465 '., 123 
 
 Hope & Co. v. Canada Foundry Co., 40 O.L.R. 338 84 
 
 Horn Mfg. Cd. v. Stedman, 215 Pa. 187 , 48 
 
 Home t. Jenkyn, 6 D.L.R. 55 221 
 
 Home v. Jefnkyn, 6 D.L.R. 55 263 
 
 Hooker v. McGlone, 42 Conn. 95 : 158 
 
 Horr v. Slairk, 35 111. App. 140 i 199 
 
 Hooven v. Featherstone, 111 Fed. 81 45, 152, 190 
 
 Houghton v. Matthews, 3 B. & P. 485 . . : 201 
 
 Hough v. Collins, 70 111. App. 661 161 
 
 Houle v. Couture, 8 Q.P.R. 398 553 
 
 Hovenden v. Ellison, 24 Gr. 448 j 490 
 
 Howard v. American Boiler Co., 68 111. App. 566 48 
 
 Howard v. Robinson, 5 Cush. 121 27 
 
 Howard v. Tucker, 1 B. & Ad. 712 159 
 
 Howes v. Ball,, 7 B. & C. 481 207 
 
 Howlett v. Doran, 11 D.L.R. 372 . . . ) ,. .160, 253 
 
 Hoyt v. Miner, 7 Hill (N.Y.) 193 199 
 
 Hubbard v. Brown, 90 Mass. 590 165 
 
 Hubbell v. Schreyer, 14 Abb. Pr. (N.S.) 284 42 
 
 Hughes v. Lenny, 5 M. & W. 183 73, 224 
 
 Hughes v. McCashland, 122 111. App. 365 162 
 
 Hughes v. Torgerson, 16 L.R.A. 600 72 
 
 Hume v. Seattle Dock Co., 50 L.R.A. 153 116 
 
 Humphreys v. Cleave, 15 Man. L.R. 23 , 289. 
 
 Hunter v. Blanchard, 18 111. 318 , 441 
 
 Hunter v. Leake, 7 L.J.K.B. (O.S.) 221 224 
 
 Hunter v. Walter, 12 N.Y. Supp. 60 85, 87 
 
 Hurst v. Morris, 32 O.L.R. 346 188, 192 
 
 Hutson v." Valliers, 19 O.A.R. 154 505 
 
 Hynes v. Smith, 27 Gr. 150 475 
 
 Ibex Mining & Development Co., 9 B.C.R. 557 . , 184 
 
 Imperial Brewers, Ltd. v. Gelin, 18 Man. L. R. 284 ' '..... 64 
 
 Independence Sash Co. v, Bradfield, 134 S.W. 118 61, 138 
 
 Independent Lumber Co. v. Bocz, 16 W.L.R. 316 ; 179 
 
 Insurance Co. v. Stinson, 103 U.S. 25 455 
 
 Interstate Building Assn. v. Ayers, 177 111. 9 60, 145 
 
 Inverness Ry. v. Canadian Lines, 29 S.C. 151 (Que;) 552 
 
 Irwin v. Victoria Home, 18 B.C.R. 318 .- 274 
 
 Irwin v. Benyon, 4 Man. L.R. 10 .47, 48, 330 
 
 Issacs De Anna v. Tafler, 11 Que. P.R. 359 530 
 
 Isitt v. Merritt Collieries, (1920) 1 W.W.R. 879 74, 142, 271, 306 
 
 Jack v. McKissock, 27 Man. L.R. 548 175 
 
 Jackson v. Cummins, 5 M. & W. 342 205, 206 
 
 Jackson v. Bgan, 138 App. Div. (N.Y.) 505 9, 92, 121 
 
 Jackson v. Hammond, 8 P.R. 157 504 
 
 Jackson Water Supply Co. v. Bardeck, 8 Alta. 305 224, 244 
 
 Jacobs v. Latour, 5 Bing. 132 201,218 
 
XXIV CASES CITED. 
 
 PAGE 
 
 Jacobs v. Robinson, 16 P.R. 1 : . , 509 
 
 Jarechi v. Society, 79 Pa. St. 403 501 
 
 Jamieson v. Charbonneau, 17 Que. S.C. 514 544 
 
 Janse-Mitchell Cons. Co. v. City of Calgary, 14 Alta. L.R. 214 237 
 
 Jeffersonville Water Supply Co. v. Riter, 138 Ind. 170 188 
 
 Jennings v. Willis, 22 O.R. 439 460 
 
 Jerry v. Hawe, 131 Mass. 347 60 
 
 Job v. Hunter, 165 Pa. 5 60 
 
 Johnson v. Algon, 65 N.J.L. 363 478 
 
 Johnson v. Braden, 1 B.C.R. pt. 2, 265 291 
 
 Johnson v. Butler, 7 Alta. L.R. 427 : 243 
 
 Johnspn & Carey Co. v. C. N. R. Co., 47 D.L.R. 75 • 27, 59, 73 
 
 Johnson v. Crew, 5 U.C.Q.B. (O.S.) 200 : 1 
 
 Jones v. Cliffe, 1 C. & M. 540 217, 226 
 
 Jones v. Menke, 168 N.Y. 61 147 
 
 Jones v. Moores, 74 N.Y. 109 500 
 
 Jones v. Pothast, 72 Ind. 158 62 
 
 Jones v. Shawhan, 4 Watts & Serg. 262 36 
 
 Jones v. Tarleton, 9 M. & W. 67 221 
 
 Jones v. Walker, 83 N.Y. 612 . , 60 
 
 Jourdain v. Miville, Stuart's Rep. 263 531 
 
 Julin v. Ristow Pottes, 54 111. App. 460 '. 198 
 
 Kalbfleisch v. Hurley, 34 O.L.R. 268 108,111 
 
 Kalmanovitch v. Frank, 52 Que. S.C. 171 552 
 
 Kane v. Kinney, 174 N.Y. App. 69 495 
 
 Katzman v. Mannie, 46 O.L.R. 121 212 
 
 Keene v. Thomas, (1905) 1 K.B. 136 213, 224 
 
 Keen v. Keen, (1902) 1 K.B. 55 86 
 
 Keffer v. Miller, 10 C.L.T. 90 135 
 
 Keith v. Maguire, 170 Mass. 210 521 
 
 Kelly v. Johnson, 251 111. 135 150 
 
 Kelly v. McKenzie, 1 Man. L.R. 169 330 
 
 Kelly v. Rosenstock, 45 Ind. 389 443 
 
 Kelly v. Tourist Hotel Co., 20 O.L.R. 267 445 
 
 Kendall v. Fader, 199 111. 294 48, 155 
 
 Kendall v. Fitzgerald, 21 U.C. Q.B. 585 221 
 
 Kendler v. Bernstock, 22 D.L.R. 475 27 
 
 Kennedy v. Haddow, 19 O.R. 240 169, 179 
 
 Kennebec Co. v. Pickering, 142 Mass. 80 486 
 
 Kenny v. Apgar, 93 N.Y. 539 105 
 
 Kenny v. Harrison, (1902) 2 K.B. 168 19,54 
 
 Kerby v. Daly, 45 N.Y. 84' 122 
 
 Kerford v. Mondel, 28 L.J.N.S. 303 217 
 
 Kertscher & Co. v. T5reen, 124 N.Y.S. 461 154 
 
 Keystone Min. Co. v. Gallagher, 5 Col. 23 471 
 
 Keys v. Harwood, 2 C.B. 905 152 
 
 Kievell v. Murray, 2 Man. L.R. 209 167 
 
 Kincaid v. Reid, 7 O.R. 12 60 
 
 King, The, v. C.P.R. Co., 9 Can. C.C. 328 57 
 
 Kilbourne v. McBwan, 6 W.L.R. 562 487 
 
 Kilhurn v. Rice, 151 Mass. 442 161 
 
 King v. Alford, 9 O.R. 643, 10 O.R. 647 . . . 19, 55, 56 
 
 King v. Indian Orchard Co., 11 Cush. 231 202, 208 
 
CASES CITED. XXV 
 
 i 
 
 PAGE 
 
 King v. Low, 3 O.L.R. 234 78, 85, 89 
 
 Kinney v. Harrison, (1902) 2 K.B. 168 54 
 
 Kirchman v. Standard Coal Co., 52 L.R.A. 318 165 
 
 Kittredge v. Sumner, 11 Pick. 50 219 
 
 Knot v. Cline, 5 B.C.R. 120 291 
 
 Kokomo Investment Co. v. Dominion Harvester Co., 43 D.L.R. 205. 65 
 
 Lacy v. Piatt Power Co., 157 Mich. 545 -. 476 
 
 La Porgee v. Colby, 69 III. App. 443 17 
 
 La Grill v. Mallard, 90 Cal. 373 441 
 
 La Rose v.' Nichols, 103 Atl. 390 343 
 
 La Tour v. L'Henreux, 16 Que. S. C. 485 539 
 
 Laflamme v. Laplante, 51 Que. S.C. 38 548 
 
 Lake v. Biggar, 11 U.C.C.P. 170' 218 
 
 Laine v. The Queen, 5 Ex. C.R. 103 79 
 
 Lalonde v. LaBelle, 16 Que. S.C. 573 535 
 
 Lambert v. Nicklass, 45 W. Va. 527 '. . . 218 
 
 Land Titles Act, In re, (1919) 1 W.W.R. 628 139 
 
 Lane v. Old Colony RR. Co., 14 Gray (Mass.) 148 207 
 
 Landsberg & Co. v. Hein, 135 App. Div. (N.Y.) 819 151, 157 
 
 Landyskowski v. Martyn, 93 Mich. 575 198 
 
 Lang v. Gibson, 21 C.L.J. 74 450 
 
 Larkin v. Larkin, 32 O.R. 80 107, 109 
 
 Larkins v. Blakeman, 42 Conn. 292 20 
 
 Larsen v. Nelson & Port Sheppard Ry, Co., 4 B.C.R. 151 58 
 
 Latch v. Bright, 16 Gr. 653 , 483 
 
 Laurentide Paper Co. v. Pompre, 15 R. de J. 278 552 
 
 Lavoie v. Desrosiers, 46 Que. S.C. 405 547,559 
 
 Law v. City of Toronto, 47 O.L.R. 251 78, 88 
 
 Law v. Mumford, 14 B.C.R. 233 19, 230 
 
 Lawrence v. Congregational (jjhurch, 164 N.Y. App. 115 494 
 
 Lawrence v. Landsberg, 14 W.L.R. 477 124, 191 
 
 Lawrence v. Village of Lucknow, 13 O.R. 421 87 
 
 Lawrie v. Rathbun, 38 U.C.Q.B. 255 481 
 
 Lays v. Hurley, 215 Mass. 582 37 
 
 Lee v. Broley, 2 Sask. L.R. 288 50 
 
 Lee v. Gould, 47 Pa. 398 214 
 
 Lee Co. v. Hill, 11 W.L.R. 611 23, 190 
 
 Leg v. Willard, 17 Pick. 140 ,174, 218 
 
 Leg v. Evans, 6 M. & W. 36 150, 206 
 
 Leibrock v. Adams, 17 Man. L.R. 575 317 
 
 Leith Estate, Re, L.R. 1 P.C. 296 215 
 
 Lemon v. Dunsmuir, 5 W.L.R. 505 247 
 
 Lempriere v. Pasley, 2 T.R. 485 226 . 
 
 Lengelsen v. McGregor, 162 Ind. 258 159 
 
 Lentz v. Emmerman, 119 Wis. 492 62 
 
 Leonard v. Brooklyn, 71 N.Y. 498 52 
 
 Le Page, McKenney & Co. v. Pinner, 21 B.C.R. 81 95 
 
 Leroy v. Smith, 8 B.C.R. 300 35, 77, 86 
 
 Lessard v. Revere, 171 Mass. 294 51 
 
 Levy v. Barnard, 8 Taunt. 149 , 216 
 
 Lezenik v. Greenberg, 157 N.Y. Supp. 1093 215 
 
 Libbey v. Tidden, 192 Mass. 175 125 
 
 Lilley v. Barnsley, 1 C. & K. 344 201 
 
XXVI CASES CITED. 
 
 PAGE 
 
 Limoges v. Scratch, 44 S.C.R. 86 125, 144, 159 
 
 Lindsay y. Gunning, 59 Conn. 296 18 
 
 Lingren v. Nilsen, 52 N.W. 915, 50 Minn. 449 25 
 
 Lipman v. Jackson, 128 N.Y. 58 181 
 
 Lippman t. Low, 69 App. Div. N.Y. 24 60 
 
 Little v. Vradenburg, 16 111. App. 189 60 
 
 Litton v. Gunther, 12 O.W.R. 1122 : , 129 
 
 Linden Steel Co. v. Ref. Co., 138 Pa. 10 480 
 
 Liverpool, London & Globe Ins. Co. v. Kadlac, 13 Alta. L.R. 498.'. . . 246 
 
 Llado v. Morgan, 23 U.C.C.P: 517 .; 220 
 
 Locke v. Locke, 32 C. L. J. 33,2 '. 180 
 
 Lodder v. Slowey, (1904) A.C. 442 87 
 
 Logan Planing Mill Co. v. Aldredge, 15 L.R.A. 1159 449 
 
 Lord Lumber Co. v. Callahan, 181 111. App. 323 153 
 
 Lowden v. Sorg, 233 111. 79 157 
 
 Lowther v. Heaver, 41 Ch. D. 249 81 
 
 Lucas v. Goodwin, 3 Bing. N.C. 738 85 
 
 Ludlum-Ainslie Lumber Co. v. Fallis, 19 O.L.R. 419.. 108, 111, 113, 193 
 
 Ludlam v. Wilson, 37 C.L.J. 819 . .' 78 
 
 Ludy v. Larsen, 78 N.J. Eq. 23T 160 
 
 Lumbard v. Syracuse, 55 N.Y. 494 501 
 
 Lundy v. Henderson, 9 W.L.R. 527 97, 199 
 
 Lynch v. Tibbits, 24 Barb. (N.Y.) 51 207, 182 
 
 Lynch v. Trainor, 13 C.L.T. 426 27 
 
 Macomber v. Detroit Cadillac Co., 173 App. Div. (N.Y.) 724 223 
 
 Madden v. Kempster, 1 Camp. 12 226 
 
 Madden v. Nelson & Fort Sheppard R. Co., (1889) A.C. 622 57 
 
 Mahley v. German Bank, 174 N.Y. App. 499 43 
 
 Makins v. Robinson, 6 O.R. 1 .36, 155 
 
 Mallet v. Kovar, 14 W.L.R. 327 ( 37, 97, 118 
 
 Malmgren v. Phinney, 50 Minn. 457 135 
 
 Mammoth Min. Co. v. Salt Lake Foundry, 151 U.S. 447 145 
 
 Manton v. Moore, 7 T.R. 67 211 
 
 Manton v. Terrien, 12 R. de J. 488 460 
 
 Maple City Oil Co. v. Charlton, 22 O.W.R. 882 159 
 
 Marinier v. Therrien, 12 R. de J. 488 460 
 
 Marks v. Lahee, 3 Bing. N.C. 408 203, 205 
 
 Marston v. Kenyon, 44 Conn. 349 18 
 
 Marsh v. Mick, 159 111. App. 399 15, 77, 164 
 
 Marshall Brick Co. v. Irving, 28 D.L.R. 464 14, 131 
 
 Marshall Brick Co. v. York Farmers C. Co., 54 Can. S.C.R. 569 
 
 74, 131, 133, 142, 170 
 
 Martin v. Eversall, 36 111. 22 123 
 
 Martin v. Stewart, 204 Mass. 122 125 
 
 Mark v. Murphy, 76 Ind. 535 , 184 
 
 Maryland Brick Co. v. Spelman, 76 Ind. 337 18 
 
 May Brick Co. v. General Engineering Co., 180 111. 535 397 
 
 Mayer v. Mitchler, 50 N.J.L. 162 96, 199 
 
 Mehan v. Thompson, 71 Me. 492 109 
 
 Meistrell v. Baldwin, 144 N.Y. App. 660 147 
 
 Menzel v. Tubbs, 51 Minn. 364 23 
 
 Merriam v. Public Parks, 18 W.L.R. 151 78, 81 
 
 Merrick v. Campbell, 17 D.L.R. 415 192, 195, 321 
 
OASES CITED. XXV11 
 
 PAGE 
 
 Merritt v. Crane Co., 225 111. 181 431 
 
 Metals, Limited v. Trusts & Guarantee Co., 22 D.L.R. 495 234, 242 
 
 Metals, Limited v. Trusts, 22 D.L.R. 495 234 
 
 Mettallic Roofing Co. v. Jamieson, 2 0. W. R. 316 515 
 
 Meunier v. Hinman, 27 Man. L.R. 270 333 
 
 Meyers v.. Bratlspiece, 174 Pa. 119 202 
 
 Metivier v. Wand, Q.R. 13 S.C. 445 544 
 
 Midtown Con. Co. v. Goldsticker, 165 N.Y. App. 264 89, 92 
 
 Miexell v. Guest, 40 Pac. Rep. 1070 '....' 24 
 
 Milburn v. Milburn, 4 U.C.Q.B. 179 206, 222 
 
 Milton Pressed Brick Co. v. Whalley, 42 O.L.R. 369 84, 111, 113 
 
 Miller v. Duggan, 21 S.C.R 474 
 
 Miller v. Calumet Lumber Co., Ill 111. App. 651 93 
 
 Miller v. Shepard, 50 Minn. 268 23 
 
 Miller v.. Schmitt, 67 N.Y. Supp. 1077 24 
 
 Miller v. Moore, 17 W.L.R. 548 91 
 
 Miller v. Wilkinson, 167 Mass. 136 191 
 
 Milliken v. City of Halifax, 21 N.S.R. 418 88 
 
 Milliken Bros. v. City of N. Y., 201 N.Y. 65 186 
 
 Mireault v. Gauthier, 17 R. de J. 361 . . . , 536 
 
 Mitchell v. Dunsmore Realty Co., 126 App. Div. (N.Y.) 829 83, 148 
 
 Mitchell v. Guildford Union, 1 L.G.R. 857 88 
 
 Mitchell v. Packard, 168 Mass. 467 69,70 
 
 Mitchell v. Williams, 80 App. Div. N.Y. 527 83 
 
 Monaghan v. Goddard, 173 Mass. 468 148 
 
 Monarch Lumber Co. v. Garrison, 18 W.L.R. 686 S . . . 581 
 
 Monro v. Clark, 107 Me. 134 103 
 
 Montandon v. Deas, 48 Am. Dec. 84 138 
 
 Montjoy v. Heward School Dist, 10 W. L. R. 282 109, 138 
 
 Montmorency Cotton Mills Co. v. Gignac, 10' Que. Q.B. 158 534 
 
 Moore v. Bradley, 5 Man. L.R. 49 313 
 
 Moore v. Dugan, 179 Mass. 153 96 
 
 Moore v. Brickson, 158 Mass. 71 85, 148 
 
 Moore v. Jacobs, 190 Mass. 424 157 
 
 Moore v. Protestant School Dist, 5 Man. L.R. 49 47, 50 
 
 Moran v. Chase, 52 N.Y. 346 106 
 
 Morgan v. Congdon, 4 N.Y. 552 203, 217 
 
 Morgan v. Railroad, 96 U.S. 720 160 
 
 Morgan v. Stevens, 6 Abb. (N.Y.) New Cases 356 91 
 
 Moreau v. Guimont, 8 .Que. P.R. 424 438, 547 
 
 Moorehouse, Re, 13 O. R. 290 490 
 
 Morehouse v. Moulding, 74 111. 322 ' 469 
 
 Morris v. Garby, 50 Que. S.C. 273 -. 212 
 
 Moritz v. Lewis. Cons. Co., 51 L.R.A. 1040 115 
 
 Morris, Re, (1908) .1 K.B. 473 216 
 
 Morris v. Tharle, 24 O.R. 159 190, 195 
 
 Morris County v. Rockaway, 14 N.J. Eq. 189 110, 118 
 
 Morrison v. Minot,. 5. Allen, 403 147 
 
 Mors-le-Blanch .v. Wilson, L.R. 8 C.P. 227 210 
 
 Morse .v..Le.vis,Connty Railway, 30 .S.C. 353 (Que.) 536 
 
 Mountjoy.v. Heward School Dist., 10 W.L.R. 282 109, 138 
 
 Moyes v. Kimball, 92 Me. 231 201 
 
 Mulllner. v. Florence, L.R. 3, Q.B.D. 4S4 204, 215 
 
XXV1U CASES CITED. 
 
 PAGE 
 
 Muto v. Smith, 175 Mass. 175 441 
 
 Munro v. Britt, 8 E. & B. 738 87 
 
 Munroe v. Clark, 107 Me. 134 75 
 
 Murphy v. "Watertown, 112 App. Div. (N.Y.) 670 148 
 
 Murray v. The Queen, 26 S.C.R. 203 77 
 
 Mushlitt v. Silverman, 50 N.Y. 360 31 
 
 Mutual Ins. Co. v. Rowland. 26 N.J. Eq.' 389 72 
 
 Muzzey v. Reardon, 57 N.H. 378 •. 441 
 
 , Myluzyhk v. N. W. Brass Co., 14 D.L.R. 486 124, 237 
 
 McAllister v. DesRochers, 132 Mich. 381 282 
 
 McArthur v. Dewar, 3 Man. L.R. 72 50, 86, 93, 106, 109 
 
 McArthur v. Martinson, 16 Man. L.R. 387 315 
 
 McAulay v. Powell, 7 W.L.R. 433 93 
 
 McBean v. Kinnear, 23 O.R. 313 88, 198 
 
 McBride v. Bailey, 6 U.C.C.P. 523 220 
 
 McCabe v. McRae, 58 Me. 99 151 
 
 McCarthy v. Caldwell, 43 Minn. 442 62 
 
 McCarty v. Carter, 49 111. 53 18, 54 
 
 McCauley v. Powell, 7 W.L.R. 443 , '. . 93 
 
 McClain v. Hutton, 131 Cal. 132 123 
 
 McCombie v. Davies, 7 East 5 222 
 
 McCormack v. Rutland, 191 Mass. 424 181 
 
 McCormick v. Bullivant, 14 C.L.J. 85 482 
 
 McCree v. Campion, 5 Phila. 9 • 161 
 
 McC'ue v. Whitwell, 156 Mass. 205 135 
 
 McCully v. Ross, 22 C.L.J. 63 450 
 
 McDe'armid v. Poster, 12 Pac. Rep. 813 213 
 
 McDonald v. Consolidated Gold Lake Co., 40 N.S.R. 364 140 
 
 McDonald v. Consolidated Gold M. Co.. 21 C.L.T. 482 , 504 
 
 McDonald v. Dominion Iron & S. Co., 40 N.S.R. 465 104, 177 
 
 McDonald v. Hartley, (1918) 3 W.W.R. 910 •. 129, 136 
 
 McDonald v. Mark, 141 111. App. 434 , 6-2 
 
 McDonald v. Mayor of New York, 170 N.Y. App. 409 44 
 
 McDonald v. McKenzie, 7 Alta. 435 249 
 
 McDonald v. Stirsky, 3 R. & C. 520 207 
 
 McDonald v. Symons, 15 W.L.R. 218 81 
 
 McDonald Dure Lumber Co. v. Workman, 18 Man. L.R. 419 215 
 
 McFatridge v. Holstead, 21 N.S.R. 325 204, 222 
 
 McFarland v. Wheeler, 26 Wend. N.Y. 467 212 
 
 McGuirl v. Fletcher, 3 Terr. L.R. 137 488 
 
 McGraw v. Bayard, 96 111. 146 159 
 
 McGraw v. Godfrey, 56 N.Y. 610 , 136 
 
 MoGuinness v. Boyle, 123 Mass. 570 23 
 
 Mclvor v. Crown Point, 19 P.R. 335 502 
 
 McKenna v. McNamee, 14 O.A.R. 339 ' 80 
 
 McKenzie v. Martinson, 40 N.S.R. 346 212 
 
 McKenzie v. Murray, 11 W.L.R. 123 [ 569 
 
 McKinnon v. Pabst, 8 B.C.R. 265 89 
 
 McLachlan v. Kennedy, 21 N.S.R. 271 210 
 
 MaoLaren v. Villeneuve, R.J.Q. 11 Q.B. 131 546 
 
 McLaren v. Loyer, 20 C.L.T. 277 , \ 542 
 
 McLean v. Sanford, 26 App. Div. N.Y. 603 191 
 
 McLean v. Wiley, 76 Mass. 233 157 
 
CASES CITED. XXIX 
 
 PAGE 
 
 McLennan v. Winnipeg, 3 Man. L;R. 74 196, 330 
 
 McManus v. Rothschild, 25 O.L.R. 138 12, 13, 83, 118 
 
 McMillan v. Byers, 3 Man. L.R. 361, 4 Man. 76 206 
 
 McMillan v. Seneca Lake G. & W. Co., 12 N.Y. Supr. Ct. 12 470 
 
 McNab & Harlin M. Co. v. Paterson, 7.2 N.J. 929 37, 121 
 
 McNamara v. Kirkland, 18 O.A.R. 276 11 
 
 McNeil v. Keleher, (1865) 15 C.P. 470 206 
 
 McNulty Bros. v. Offerman, 126 N.Y.L. 755 147 
 
 MePherson v. Gedge, 4 O.R. 246 42 
 
 McPugti Co. v. Wallace, 198 111. 422 45 
 
 MeSporran v. Miller, 9 W. W. R. 81 241 
 
 National Supply Co. v. Horrobin, 16 Man. 472 335 
 
 National Wall Paper Co. v. Sire, 163 N,Y. 122 147 
 
 Naucolas v. Hatiffer, 12 L.R.A. 864 193 
 
 Neelon v. Toronto, 25 iS.C.R. 579 80 
 
 National Mortgage Co. v. Rolston, 59 Can. S. C. R. 219 171, 177, 292 
 
 Nelson v. Campbell, 28 Pa. St. 156 26 
 
 Nepage v. Pinner, 21 B.C.R. 81 : 276, 281 
 
 Nevils v. Schofield, 21 N.B.R. 124 . .- 215, 220 
 
 New Jersey Steel & I. Co. v. Robinson, 85 App. Div. (N.Y.) 512 165 
 
 N.Y. Elevator iSupply Co. v. Brewer, 74 App. Div. 400 147 
 
 N.Y.L. Co. v. Sehneilder, 15 Daly, 15 150 
 
 Nichols v. Culver, 15 Conn. 177 118 
 
 Nichols v. Buchanan, 117 Mass. 488 90 
 
 Noiseau v. City of Lachine, 24 Rev. Leg. 491 541 
 
 Nobbs v. C. P. R., (1913) 6 W. W. R. 759 37, 274 
 
 Noonan v. Gaiety (unreported) 399 
 
 North American W. P, Co. v. Jackson Const. Co., 167 N.Y. App. Div. 
 
 80, 779 
 
 Northern Plumbing & H. Co. v. Greene, 27 D.L.R. 410 134 
 
 Northern Trusts Co. v.-Battell, 29 D.L.R. 515 172 
 
 North River Co., In re, 38 N.J. Eq. 433 227 
 
 Norton Construction Co. v. Unique C. Co., 121 App. Div. (N.Y.) 585. 121 
 
 Oakes v. Moore, 24 Me. 214 ,,' 212 
 
 Oakland Mfg. Co. v. Lemieux, 98 Me: 488 486 
 
 O'Brien v. Praser & Gallagher, 41 D.L.R. 328. .17, 20, 21, 22, 23, 30, 351 
 
 O'Driscoll v. Bradford, 171 Mass. 231 , V . 485 
 
 Oldershaw v. Garner, 38 U.C.C.P. 21 86 
 
 Oldfleld v. Barbour, 12 P.R. 544 20 
 
 Oldfield v. Dickson. 18 0.|R. 188 : . 87 
 
 Ombony v. Jones, 19 N.Y. 234 440 
 
 Ontario Lime Association v. Grimwood, 22 O.L.R. 17. .17, 20, 31, 
 
 37, 40, 41, 126, 180 
 
 Ontario L. & P. Co. v. Baxter, 5 O.L.R. 419 79 
 
 Ontario Paving Brick Co. v. Bishop, 2 O.W.R. 1063, 4 O.W.R. 34 . . 431 
 
 O'Reilly v. Mahoney, 123 App. Div. (N.Y.) 275 197 
 
 Oriental Hotel Co. v. Griffiths, 30 L.R.A. 765 485 
 
 Ormsby v. Ottman. 85 Fed. 492 120 
 
 Orne v. Barstow, 175 Mass. 193 481 
 
 Orr v. Puller, 172 Mass. 597 18 
 
 Orr v. Davie, 22 O.R. 430 508 
 
 Orr v. Robertson, 23 D.L.R. 17 75, 132 
 
 Osborne v. Barnes, 179 Mass. 597 .178,- 183 
 
XXX CASES CITED. 
 
 PAGE 
 
 Osborne v. Gillett, L.R. 8 Ex. 92 Preface 
 
 Ottawa Steel Castings Co. v. Dominion Supply Co., 5 O.W.R. 161. . . 15 
 
 Ottiwell v. Watkins, 15 Daly (N.Y.)' 308 179 
 
 Owen v. Lynch, 2 R. & C. 406 177 
 
 Paquette v. Mayer, 18 S.C. (Que.) 563 535 
 
 Palfrey v. Brown, 31 W.L.R. 535 150, 236 
 
 Paddock v. Stout, 121 111. 571 , 157 
 
 Palmer v. Tucker, 45 Me. 316 222 
 
 Paquette v. New York Trust, 15 K.B. 179 (Que.) 531 
 
 Patten v. Laidlaw, 26 O.R 189 513 
 
 Patrick v. Walbourne, 27 O.R. 221 170, 172, 185 
 
 Patterson v. Scott, 4 Gr. 145 507 
 
 Pattison v. Luckley, L.R. 10 Ex. 330 325 
 
 Paulson v. Manske, 126 111. 72 140, 150 
 
 Payne v. Wilson, 74 N.Y. 348 61, 176 
 
 Peabody v. Lynn Society, 5 Allen (Mass.) 540 53 
 
 Peake, In re, 6 C.L.T. 596 508 
 
 Peart y. Phillips, 31 W.L.R. 956 97 
 
 Peart Bros. Hardware Co. v. Battell, 23 D.L.R. 193 100, 102 
 
 Pease v. Johnson. 1 W.L.R. 208 225 
 
 Pelton v. Black Hawk Mining Co., 40 N.S.R. 385 389 
 
 Pennsylvania Globe Co. v. Gill, 1 Pa. Dist. R. 538 16 
 
 Pennington v. Morley, 3 O.L.R. 514 509 
 
 People v. Long, 50 Mich. 249 227 
 
 Perry v. Potashinski, 169 Mass. 351 13, 449 
 
 Peters v. Quebec Harbour Commissioners, 19 S.C.R. 685 77 
 
 Peters, Rohls & Co. v. McLean, 25 W.L.R. 358.... 64, 130, 140, 204, 237 
 
 Petrie v. Hunter, 2 O.R. 233 89, 96 
 
 Phelan v. Franklin, 2 W.L.R. 29 103 
 
 Phillips v. Gilbert, 101 U.S. 721 473 
 
 Pierce v. Cabot, 159 Mass. 202 : 48 
 
 Pilkington v. Brown, 19 P.R. 337 515 
 
 Pinning v. Skipper, 71 Md. 347 154 
 
 Pinnock v. Harrison, 3 M. & W. 522 215, 222 
 
 Pioneer Lumber Co. v. Rooney, 19 W.L.R. 913 253 
 
 Pioneer Mining Co. v. Delamotte, 185 Fed. 752 164 
 
 Pittsburg Plate Glass Co. v. Leary, 31 L.R. A. 746 110 
 
 Pocock v. Novitz, 21 W.L.R. 418 223, 227 
 
 Pollock Bros. v. Niall-Herin Co., 35 L.R.A. 13 157 
 
 Pollock v. Morrison, 176 Mass. 83 375 
 
 Poison v. Thomson, 29 D.L.R. 395.! 17, 21, 31, 37, 41, 107, 265, 332 
 
 Pomerleau v. Thompson, 16 D.L.R. 192 165 
 
 Pontini v. Lecavalier, 16 Que. P.R. 371 547 
 
 Poirier v. Desmond, 177 Mass. 201 155 
 
 Pooley v. Budd, 7 E. L. & Eq. 229 : . . .16«, 220 
 
 Poor v. Oakman, 104 Mass. 309 24 
 
 Potter Mfg. Co. v. Meyer, 171 Ind. 513 110 
 
 Power v. McCord, 36 111. 214 123 
 
 Powers v. Hogan, 12 Daly (N.Y.) 444 76 
 
 Pratt v.. Nakdimen, 138 S.W. 974 18 
 
 Premier Steel Co. v. McElwaine, 144 Ind. 614 . r .. 189 
 
 Prentice v. Brown, 17 D.L.R. 36 130, 135, 229 
 
 Prendergast v. McNally, 76 111. App. 385 62 
 
CASES CITED. XXXI 
 
 PAGE 
 
 Presbyterian Church v. Allison, 10 Penn. 413 123 
 
 Presbyterian Church v. Stettler, 26 Penn. 246 437 
 
 Prevost v. Wilson, 22 L.C.J. 70 560 
 
 Priestly v. Fernie, 3 H. & C. 977 163 
 
 Price v. Jennings,- 62 Ind. 11 431 
 
 Pritchett Co. v. Currie, (1916) 2 Ch. 515 ; 97 
 
 Proctor v. Tows, 115 111. 138 125 
 
 Prutzman v. Bushong, 83 Pa. 526 139 
 
 Queen, The, v. Fraser, 2 R. & C. 431 225 
 
 Queen, The, v. Hollingsworth, 2 Can. C. C. 291 220 
 
 Quintal v. Bernard, 20 S.C. (Que.) 199 547 
 
 Racicot v. Rutherford & Sons, Q.R. 36 S.C. 97 550 
 
 Rafuse v. Hunter, 12 B.C.R. 126 34, 138 
 
 Ramsay v.- Gordon, 2 D.L.R. 889 518 
 
 Ramsden v. Chessum, (1914). 110 L.T. 274 97 
 
 Randall v. Wagner Glass Co., 47 Ind. App. 439 . . 184, 193 
 
 Rathtrarn v. Hayford, 37 Mass. 406 , 20, , 23 
 
 Rathbone v. Michael, 19 6.L.R. 428 i 194 
 
 Rat Portage Lumber Co. v. Hewitt, 22 W.L.R. 249 ' . , 316 
 
 Rat Portage Co. v. Watson, 10 D.L.R. 833 273 
 
 Read v. Whitney, 48 D.L.R. 309 11, 72 
 
 Ready v. Pinkham, 181 Mass. 351 158, 178 
 
 Redman v. Phoenix Fire Ins. Co., 8 N.W. 226 453 
 
 Reed v. Rockford, 62 N.J. Eq. 186 181 
 
 Reeve v. Elenendorf, 38 N.J.L. 125 421 
 
 Reeves v. Capper, 5 Bing. N.C. 136 216 
 
 Reeves v. Russell, L.R.A. 1915 D., 1149 227 
 
 Rehm v. Viall, 185 111. App. 425 5, 312 
 
 Reid v. Berry, 178 Mass. 260 16 
 
 Reggin v. Manes, 22 O.R. 443- 137 
 
 Reinhart v. .Shutt, 15 O.R. 325 179 
 
 Rendall v. Warren, 8 W.W.R. 113 238 
 
 Renner v. Rosen, 45 D.L.R. 1 199 
 
 Renny v. Dempster, 19 O.W.R. 644 125, 191 
 
 Repauno Chemical Co. v. Greenfield, 59 Mo. App. 6 471 
 
 Revelstoke Saw Mill Co. v. Alberta Bottle Co., 9 Alta. 155 235 
 
 Riatt v, Mitchell, 4 Camp. 146 215 
 
 Rice-Lewis & Son v, Harvey, 9 D.L.R. 114... 8, 12, 13, 99, 100, 102, 198 
 
 Rice v. Nantasket, 140 Mass. 256 ' 20 
 
 Richards v. Chamberlain, 24 Gr. 209, 25 Gr. 402 . .-. 5, 179 
 
 Richards. v. John Spry Co., 69 111. 238 60 
 
 Richardson v. Mark, 11 C.L.T. 283 511 
 
 Richmond & Irvine Cons. Co. v. Richmond Ry. Co., 31 U.S. App. 704 
 
 70, 120, 122 
 
 Rielly v. Mcllmurray, 29 O.R. 167 206 
 
 Riley v. Durfey, 145 App. Div. (N.Y.) 583 481 
 
 Rierser v. Comeau, 129 App. Div. (N.Y.) 490 '. 67 
 
 Ringland v. Edwards, 19 W.L.R. 219 98, 160 
 
 Ringle v. Wallis Iron Works, 149 N.Y. 439 131 
 
 Rittenhouse & Embree Co. v. Brown, 254 111. 549 107, 115 
 
 Rittenhouse v. Warren Co., 264 111. 619 337 
 
 Ritchie v. Grundy, 7 Man. L.R. 532 75, 153, 214 
 
 Ritchie v. Jeffrey, (1915) 9 W.W.R. 1534 329 
 
XXX11 CASES CITED. 
 
 PAGE 
 
 Rogers v. Gray, 10 D.L.R. 688 573 
 
 Robb v. Woodstock School Board { unreported) 50 
 
 Roberts v. Bank of Toronto, 25 O.R. 194, 21 A.R. 629 208 
 
 Robertson v. Bullen, 13 O.W.R. 56 212 
 
 Robins v. Goddard, (1905) 1 K. B. 294 78 
 
 Robock v. Peters, 13 Man. L.R. 139 11, 14, 31, 34, 39, 179, 331 
 
 Robson v. Drummond, 2 B. & Aid. 308 180 . 
 
 Robson v. Kemp, 4 Bsp. 233 223 
 
 Rockwood v. Wolcott, 25 Mass. 458 90 
 
 Rogers v. James, 8 T.L.R. 67 166 
 
 Rohl v. Pfaffenroth, 31 W.L.R. 197 , 199 
 
 Rolewitch v. Harrington, 6 L.R.A. 550 16 
 
 Rollins v. Bowman Cycle Co., 89 N.Y.S. 289 214 
 
 Romanik v. Raporport, 148 App. Div. (N.Y.) 688 : 164 
 
 Rose v. Peterkin, 13 S.C.R. 677 181 
 
 Rose v. Hart, 2 Taunt. 499 , . . 225 
 
 Rosio v. Beech, 18 B.C.R. 73 276 
 
 Rosio v. Jones, 23 W.L.R. 174 30 
 
 Ross v. Gorman, 1 Alta. L.R. 109 .• 68, 82, 94 
 
 Ross v. St. Onge, Q.R. 14 K.B. 478 537 
 
 Rousseau v. Toupin, Q.R. 32 S.C. 228 546 
 
 Roulet v. Hogan, 203 111. 525 91 
 
 Rowlin v. Rowlin, 9 O.W.R. 297 522 
 
 Roxburghe v. Cox, (1881) 17 Oh. D. 520 222 
 
 Roxbury Painting Co. v. Nuter, 123 N.B. 391 149 
 
 Royal Bank of Canada v. Cbughlan, (1920) 2 W.W.R. 356 65 
 
 Royal Electric Co. v. Three Rivers, 23 S.C.R. 289 76 
 
 Ruggles v. Walker, 34 Vt. 468 227 
 
 Rust & Owen Lum. Co. v. Holt, 60 Neb. 80 63 
 
 Rutherford Sons 1 Co. v. Racicot, Q.R. 19 K.B. 428 550 
 
 Russell v. French, 28- O.R. 215 13, 94, 99 
 
 Russell v. Russell, 28 Gr. 419 ' 483 
 
 Ryry v. Gariepy, 36 Que. S.C. 238 ' 543 
 
 Salem v. Lane, 189 111. 593 19, 50, 110, 118 
 
 Safe Deposit & Steel Co. v. Columbia. 176 Pa. 536 : 476 
 
 Salt Lake Hardware' Co. v. Chainman, 128 Fed. 509 152 
 
 Saltsman v. Berlin Robe Co., 6 D.L.R. 350 518 
 
 Sampson v. Commonwealth, 202 Mass. 335 114, 115, 117 
 
 Sampson v. Dalrymple. 11 Cush. 308 429 
 
 Sanford v. Pollock, 105 N.Y. 450 60 
 
 Saunders v. Bennett. 160 Mass. 48 162, 178 
 
 Saunderson v. Bell, 2 Cr. & M. 304 203 
 
 Saville v. Barchard, 4 Esp. 53 201 
 
 Sawyer v. Longford, 2 C. & K. 697 205 
 
 Sayward v. Dunsmuir, 11 B.C.R. 375 125 
 
 Scannell v. Hub Brewing Co., 118 Mass.-288 65, 66, 75, 187 
 
 Scaramanga v. Stamp, L.R. 5 C.P.D. 303 Preface 
 
 Scarfe v. Morgan, 4 M. & W. 270 201, 205 
 
 Schaeffer v. Wied, 8 111. 513 450 
 
 Schaghticke Powder v. Greenwich, 183 N.Y. 306 114, 117 
 
 Schaller-Hoerr Co. v. Gentile, 153 111. App. 458 193 
 
 Scheid v. Rapp, 121 Pa. 593 153 
 
 Schmalz v. Mead, 125 N.Y. 188 135 
 
CASES CITED. XXX111 
 
 PAGE 
 
 Schmeling v. Rochford, 154 111. App. 308 65 
 
 Schmld v. Palm. Garden Co 305 
 
 Schmidt v. Anderson, 253 111. 29 . v 121 
 
 Schmulbach v. Caldwell,' 196 Fed. 16 164 
 
 Schultze v. Faber, 21 W.L.R. 163 440 
 
 Schultze v. Goodstein, 180 N.Y. 248 87 
 
 Schultze v. Quereau, 210 N.Y. 257 116, 117 
 
 Schultz v. Reddick, 43 U.C.R. 155 ., 526 
 
 Schwartz v. Saunders, 46 111. 18 158 
 
 Scott v. Goldinghurst, 123 1 Ind. 258 482 
 
 Scratch v. Anderson, 11 Alta. R. 55 , '. . 10, 14, 69, 72 
 
 Scratch V. Anderson, 16 W.L.R. 145 '. 244 
 
 Scott v. Burgess. 19 U.C.Q.B. 28 50 
 
 Scott v. De La Hunt, 5,Lans. (N.Y.) 372 .'.' 226 
 
 Scott v. Newington, 1 M. & Rob. 252, 217, 226 
 
 Scottish American Investment Co. v. Sexton, 26 O.R. 77 64 
 
 Seaman v. Canadian Stewart Co., 18 O.W.R. 56 197 
 
 Sear & Woods, Re, 23 O.R. 474 26 
 
 Searle v. Laverick, L.R. 9 Q.B. 122 225 
 
 Sears v. Wise, 52 App. Div. (N.Y.) 118 : 118 
 
 S«cord v. Trumm, 20 O.R. 174 '. , 514 
 
 Seeley v. Caldwell, 18 O.L.R. 472 64 
 
 Selden v. Melks, 17 Cal. 128 486 
 
 Sewell v. Nicholls, 34 Me. 582 . . . . 223 
 
 Security Lumber Co. v. Duplat, 29 D.L.R. 460 120, 171 
 
 Security Lumber Co. v. Plested, 27 D.L.R. 441 106, 126, 135 
 
 Security Nat. Bank v. St. Croix, 117 Wis. 211 148 
 
 Shaughnessy v. Isenberg, 213 Mass. 159 ; . 42 
 
 See v. Kolodny, 227 Mass. 446 47 
 
 Shaw v. Kaler, 106 Mass. 448 202, 209 
 
 Shaw v. Thompson, 105 Mass. 345 20 
 
 Shaw v. Young, 87 Me. 271 i 46, 145 
 
 Sheppard v. Davidovitch, 10 O.W.N. 159 i 424 
 
 Sheritt v. McCallum, 12 W.L.R. 637 , 191 
 
 Sherlock v. Powell, 26 O.A.R. 407 :....; 81 
 
 Shilling v. Templeton, 66 Ind. 586 4S 
 
 Shorthill Co. v. iEtna Ind. Co., 124 N.W. 613 126 ' 
 
 Showalter v. Loundes, 2 Am. & Eng. Am. Cas. 1096 ,135 
 
 Sidney v. Morgan, 16 W.L.R. 123 63. 91 
 
 Sickler v. Spencer, 19 W.L.R. 557 72, 276 
 
 Silliker v. 'Smith (unreported) 409 
 
 Simbolf v. Alford, 3 M. & W. 248 : : 226 
 
 Simmons v. London, (1892) A.C. 215 159 
 
 Simmonson v. Citizens, 105 Iowa 264 :.'. 28 
 
 Simpson v. Rubeck, 21 O.W.R. 260 , 81 
 
 Sinclair v. Bowles, 9 B. & C. 92 517 
 
 Skipper v. Halloway, (1910) 2 K.B. 630 498 
 
 Slattery v. Lillis, 10 O.L.R. 697 106, 134, 141 
 
 Small v. Robinson, 69 Me. 425 , 205 
 
 Smalley v. Gearing. 121 Mich. 190 -. 187 
 
 Smalley v. Ashland Brown Stone Co., 114 Mich. 104 '. 157 
 
 Smith v, Alker, 102 N.Y. 87 , 86 
 
 MX. C 
 
XXXIV CASES CITED. 
 
 PAGE 
 
 Smith v. Bernhart, 11 W.L.R. 623 92, 95 
 
 Smith v. Doyle, 4 O.A.R. 477 -. 512 
 
 Smith v. Lange, 81 App. Div. (N.Y.) 192 96 
 
 Smith v. Gordon, 30 U.C.C.P. 553 78, 85, 88 
 
 Smith v. Merriam, 67 Barb. (N.Y.) 403 461 
 
 Smith v. Mcintosh, 3 B.C.R. 26 34, 294 
 
 Smith v. Neubau'er, 33 L.R.A. 685 476 
 
 Smith v. Norris, 120 Mass. 58 199 
 
 Smith v. O'Brien, 94 N.Y. Supp. 673 213 
 
 Smith v. Ruggiero, 52 App. Div. (N.Y.) 382 82 
 
 Smith v. Sissiboo Co., 36 N.S.R. 348 108, 111, 119, 393 
 
 Snaith v. Smith, 25 N.Y. Supp. 513 J . . . 88 
 
 Snittzler v. Filer, 135 111. App. 61 193 
 
 Somes v. British Empire S. Co., 8 H.L.C. 338 210, 224, 225 
 
 Sommerville v. Walker, 168 Mass. 388 19 
 
 Sorette v, N.S. Development Co., 31 N.S.R. 427 77 
 
 Sorg v. Crandall, 129 111. App. 255 157 
 
 Spears v. Bannerman, 1 Alta. L.R. 98 i 240 
 
 Spears v. Hartley, 3 Esp. 81 . . ., r: . . . 223 
 
 Sprague vi Besant, 3 Man. L. R. 519 105, 107, 108 
 
 Sprague v. Brown, 178 Mass. 220 158, 178 
 
 Sprague v. McDougall, 172 Mass. 553 491 
 
 Springer v. Kroeschell, 161 111. 358 139 
 
 Springer Land Association v. Ford, 168 U.S. 513 18, 26, 45 
 
 Spruck v. McRoberts, 139 N.Y. 193 142 
 
 Stack v. T. Baton Co., 4 O.L.R. 335 „ 64 
 
 Stafford v. McKay, (1919) 2 W.W.R. 280 124 
 
 Staples v. Somerville, 176 Mass. 237 51 
 
 Starr v. The Queen,' 1 Ex. C.R. 310 77 
 
 State v. Goll, 32 N.J.L. 285 202, 209 
 
 State v. Stevens, 32 Tex. 155 227 
 
 Steeves v. Cowie, 40 N.S.R. 401 ." .- 214 
 
 Steeves v. Sinclair, 171 N.Y. 676 145 
 
 Steger v. Arctic Ret Co., 11 L.R.A. 580 16 
 
 Steinman v. Koscuk, 4 W.L.R. 575 187 
 
 Steinman v. Henderson, 94 Pa. 313 60 
 
 Stenerwald v. Gill, 85 App. Div. (N.Y.) 605 191 
 
 Stephens Paint Co. v. Cottingham, (1916) 1 W.W.R. 627 122 
 
 Stepina v. Conklin, 134 111. App. 173 45 
 
 Sterling Lumber Co: v. Jones, 29 D.L.R. 288 79, 133, 134, 171 
 
 Stevens v. Lincoln, 114 Mass. 476 23, 24, 76 
 
 Stevenson v. Blakelock, 1 M. & S. 535 215 
 
 Stewart v. Gesner, 29 Gr. 329 11 
 
 Stickney v. Allen, 10 Gray (Mass.) 352 214 
 
 Stiffel v. Corwin, (1911) 1 W.W.R. 339 ' 59, 229 
 
 Stillings v. McGillis, 14 L.C.R. 129 . . , 556 
 
 Stoddard v. Huntley, 8 N.H. 441 215 
 
 St. Catherine Improvement Co. v. Rutherford, 31 O.L.R. 574 ...... 83 
 
 St. Louis Nat. Stock Yards v. O'Reilly, 85 111. 546 18, 187 
 
 St. Onge v. Ross, 7 Q.P.R. 108 517 
 
 St. Pierre v. Rekert, 23 D.L.R. 592 174 
 
 Stolze v. Hurd, 30 L.R.A. 1219 23 
 
 Stoneback v. Waters, 198 Fa. 459 154 
 
OASES CITED. XXXV 
 
 PAGE 
 
 Strauchen v. Pace, 195 App. Div. (N.Y.) 167 474 
 
 Strawn v. Cogswell, 28 111. 457 198 
 
 Stryker v. Cassidy, '76 N.Y. 50 70 
 
 Summers v. Beard, 24 O.R 641 7 
 
 Sumpter v. Hedges, (1898) 1 Q.B. 673 86, 325 
 
 Sulzer Vogt Co. v. Rushville, 160 Ind. 202 , 792 
 
 Swanson v. Mollison, 6 W.L.R. 678 155 
 
 Taggard v. Buckmore, 42 Me. 77 22 
 
 Taylor v. Goldsorf, 74 111. 254 ,. 140 
 
 Taylor Hardware Co. v. Hunt, 39 O.L.R. 85 80, 83, 84 
 
 Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486 52 
 
 Taylor v. Murphy, 148 Pa. 337 198 
 
 Taylor v. Robinson, T Moore 730 206 
 
 Taylor, Re, (1891) 1 Cb. 590 215 
 
 Taylor v. Wahl, 69 N.J.L. 471 513 
 
 Temple Baptist Church v. Perras, 48 Que. S.C. 84 552 
 
 Thaler Bros. v. Greisser, 229 Pa. 512 440 
 
 Thames Iron Works v. Patent Derrick Co., 1 J. & H. 93 219 
 
 Therrien v. Hainault, 5 Que. P.R. 61 542, 556 
 
 Thomas v. Fleury, 2fi N.Y. 26 88 
 
 Thomas v. Roelofson, 13 O.W.N. 201 436 
 
 Thomas v. Stewart, 132 N.Y. 580 85, 198 
 
 Thompson-Starrett Co. v. Brooklyn, 111 App. Div. (N.Y.) 358 18 
 
 Thompson v. Luciano, 211 Mass. 169 478 
 
 Thorn v. Mayor of London, L.R. 9 Ex. 163 80, 89 
 
 Thurston v. Blunt, 216 Mass. 264 42 
 
 Titus v. Gunn, 69 N.J.L. 410 493 
 
 Tinsley v. Smith, 115 App. Div. (N.Y.) 708 147 
 
 Torrance v. Catchley, 31 O.R. 546 462 
 
 Townsend v. Newell, 14 Pick. 332 202,218 
 
 Townsley v. Baldwin, 10 C.L.T. 13 506 
 
 Tracey v. Rogers, 69 111. 662 138 
 
 Trask v. Searle, 121 Mass. 229 42 
 
 Tracy v. Wetherell, 165 Mass. 113 104, 119 
 
 Travis v. Breckenridge-Lund, 2 , Alta. L.R. 71 94, 97 
 
 Treat, J. A., Lumber Co. v. Warner, 60 Wis. 183 23 
 
 Tremblay v. Smard, 36 S.C. 398 (Que.) 543 
 
 Tripp .v Clark, 14 D.L.R. 918 11,72 
 
 Troop v. Hart, 7 S.C.R. 512 165 
 
 Troy Public Works Co. v. Yonkers, 145 App. Div. (N.Y.) 527 
 
 31, 107, 114, 122 
 
 Truax v. Dixon, 17 O.R. 366 461 
 
 Trussed Concrete Steel Co. v. Taylor B. Co., 46 D.L.R. 663 112, 236 
 
 Tullis v. Jackson, 67 L.T. 840 78 
 
 Turner v. Fuller, 12 D. L. R. 255 274 
 
 Turner v. Stallibras, (1898) 1 Q.B. 56 225 
 
 Turner v. Wentworth, 119 Mass. 459 67,191 
 
 Turnes v. Brenckle, 249 111. 394 37, 151 
 
 Turney v. Saunders, 5 111. 527 48 
 
 Ultzen v. Nicholls, (1894) 1 Q.B. 92 225 
 
 Union v. Porter, 9 W.L.R. 325 577 
 
 Union Stove Works v. Klingman, 20 App. Div. 449, 164 N.Y. 589 .. . 66 
 Union v. Porter, 9 W.L.R. 325 231 
 
XXXVI CASES CITED. 
 
 PAGE 
 
 United States Construction Co. v. The Rat Portage L. Co., 25 
 
 Man. L.R. 793 152, 163 
 
 Valley Lumber & Mfg. Co. v. Dreissel, 15 L.R.A. 299 191 
 
 Vannatta y. Uplands, Limited, 25 W.L.R. 85 30, 54, 124, 278 
 
 Van Vrouker v. Eastman, 7 Met. 157 : 440 
 
 Van Kannell R. D. Co. v. Astor, 119 App. Div. 214 499 
 
 Vaughan v. Ford, 162 Mich. 37 164 
 
 Venness v. Stoddard, (1915) 9 W.W.R. 832 284 
 
 Vernon v. Cook, 49 L. J.C.P. 767 . 477 
 
 Vickery v. Richardson, 189 Mass. 53 145, 146 
 
 Vigers v. Cook, 88 L.J.K.B. 1132 227 
 
 Vincent v. Conklin, 1 E. D. Smith (N.Y.) 203 215 
 
 Vogel v. Grand Trunk Ry. Co., 10 O.A.R. 102, 11 S.C.R. 612 58 
 
 Voightman & Co. v. Southern Ry. Co., 24 Am. & Eng. Ann. Cas. 211 . 485 
 
 Vokes Hardware Co. v. Grand Trunk R. Co., 12 O.L.R. 344 190 
 
 Vosseller v. Slater, 25 App. Div. (N.Y.) 368 135 
 
 Vulcan Iron Works v. Rapid City Co., 9 Man. L.R. 577 .... . .163, 220 
 
 Wagner v. Jefferson, 37 U.C.Q.B. 551 60 
 
 Wagner v. O'Donnell, 11 C.L.T. 962 .... 520 
 
 Wahlstrom v. Trulson, 165 Mass. 429 422 
 
 Wake v. C. P. L. Co., 8 B.C.R. 358 35, 152 
 
 Walcott v. Keith, 22 N.H. 196 > 223 
 
 Walker v. Walton, 1 O.A.R. 579 , 46 
 
 Walkley v. City of Victoria, 7 B.C.R. 481 i. - " 87 
 
 Wall v. Robinson, 115 Mass. 429 , 126 
 
 Wallace v. Woodgate, Ry & M. 193 222 
 
 Wallace Bell Cp. v. Moosejaw, 3 D.L.R. 273, 4 D.L.R. 438 77 
 
 Wallis v. Skain, 21 O.R. 532 : 473 
 
 Walls v. Ducharme, 162 Mass. 432 164 
 
 Walsh v. Mason, 26 W.L.R. 942 : 296 
 
 Walsh, v. Provan, 8 Ex. Rep. 843 226 
 
 Wanty v. Robins, 15 O.R. 474 180 
 
 Ward v. Yamell, 173 Ind. 535 116 
 
 Ward v. Kilpatrick, 85 N.Y. 417 66 
 
 Warner v. Don, 26 S.C.R. 388 64 
 
 Warwick v. Sheppard, 35 D.L.R. 98 I 170 
 
 Watts v. McLeay, 19 W.L.R. 916 78, 81, 86 
 
 Wasdell v. White, 4 W.L-R. 562 .' 315 
 
 Washburn v. Burns, 34 N.J.L. 18 28, 62 
 
 Waters v., Goldberg, 124 App. Div. (N.Y.) 571 44 
 
 Waters v. Johnson, 96 N.W. 504 36 
 
 Watrous v. Davies, 35 111. App. 542 198 
 
 Watts-Campbell v. Yuengling, 125 N.Y. 3 16 
 
 Watson v. Kennedy, 11 C.L.T. 340 511 
 
 Waxman v. Girouard, 24 Rev. Leg. 429 ,. . . . 545 
 
 Weaver v. Sheeler, 124 Pa. 473 139 
 
 Webb v. Gage, 1 O.W.R. 327 25, 34, 35, 74, 76, 129 
 
 Webber v. Cogswell, 2 R. & C. 47, 2 S. C. R. 15 202 
 
 Webber Lumber Co. v. Erickson, 216 Mass. 81 63 
 
 Webster v. Real Estate Improvement Co., 140 Mass. 526 104, 123 
 
 Weeks, v. Goode, 6 C.B.N.S. 367 215 
 
 Weidle v. Elgin, 152 111. App. 292 92 
 
 Wegulin v. Cellier, L.R. 6 H.L. 28 222 
 
OASES CITED. XXXV11 
 
 PAGE 
 
 Wehner v. Dene Shipping Co., (1905) 2 K.B. 92 150 
 
 Weiss v. Silverman, 58 Can. S.C.R. 363 546 
 
 Weller v. Shupe, 6 B.C.R. 58 119, 277 
 
 Wells v. Christian, 165 Ind. 662 . . 123 
 
 Wells v. Newman, 12 S.C. 216 (Que.) 546 
 
 Wells v. Army & Navy, C.S. 86 L.T. 764 79 
 
 Wentworth Lumber Co. v. Coleman, 3 O.W.R. 618 > 438 
 
 Wera v. Bowerman, 171 Mass. 458 ; 434 
 
 West v. Pullen, 88 111. App. 620 162 
 
 West v. Sinclair, 23 C.L.J. 119 60, 179 
 
 Wesner Drilling Co. v. Tremblay, 18 O.L.R. 439 -. 519 
 
 Westcott v. Bunker, 83 Me. 499 , 46, 121 
 
 Wester v. Jagp, 33 D.L.R. 617 144, 244 
 
 West' Side Lumber & S. Co. v. Herald, 64 Ore. 210 164 
 
 Whalen v. Collins, 164 Mass. 147 475 
 
 Whaley v.. Linnebank, 29 D.L.R. 51 177 
 
 Wheaton v., Trimble, 145 Mass. 345 fiO 
 
 Wheeler v. Schofleld, 67 N.Y. 311 131 
 
 Whimster v. Crow's Nest Pass Co., 13 W.L.R. 621 189 
 
 White v. Gainer, 2 Bing. 23 221 
 
 White v. Livingston, 69 App. Div. (N.Y.) 361 478 
 
 White v. Smith, 44 N.J.L. 105 ' 202, 206 
 
 White v. School District, 42 Conn. 541 480 
 
 Whitford v. Newell, 84 Mass. 424 : 18, 118 
 
 Whitlock v. Holway, 92 Me. 414 224 
 
 Whltlock v. Loney, 38 D.L.R. 52 27, 173 
 
 Whitman v. Harvey, 13 W.L.R. 287 590 
 
 Whitney v. Joslin, 108 Mass. 103 119 
 
 Whittle v. Phelps, 181 Mass. 317 207 
 
 Wilias v. Williamson, (Lear's Digest, 1911), 604 '. 523 
 
 Wilder v. French, 75 Mass. 395 422 
 
 Wiles Laundering Co. v. Hahlo, 105 N.Y. 234 214, 217 
 
 Wiley v. Connolly, 179 Mass. 360 499 
 
 Wilks v. Leduc, 27 Man. L.R. 79 95, 326 
 
 Williams v. Alsop, 10 C.B.N.S. 417 226 
 
 Williams v. Daker, 63 App. Div. N.Y. 614 164 
 
 Williams v. Fitzmaurice, 3 H. & N. 844 81 
 
 Williams v. Vanderbilt, 145 111. 238 135 
 
 Williams v. Weinbaum, 178 Mass. 239 ' ' 499 
 
 Willis v. Sweet, 20 N.S.R. 449 21? 
 
 Willoughby, ex p., L.R. 16 Ch. D. 604 '. 204, 210 
 
 Wilson v. Canevin, 226 Pa. 362 46 
 
 Wilson v. Kymer, 1 M. & S. 157 ..." 207 
 
 Wilson v. Sleeper, 131 Mass. 177 477 
 
 Wimberley v. Mayberry, 14 L.R.A. 305 459 
 
 Windfall Nat. Gas Co. v. Roe, 42 Ind. App. 228 20 
 
 Wirsing v. Penn Hotel, 226 Pa. 254 17 
 
 Witham v. Wing, 108 Me. 364 109 
 
 Wolfe v. Oxbard, 152 Pa. 623 136 
 
 Wood &, McBeth v. Bank of Montreal, 40 N.S.R. 317 97 
 
 Wood v. 'Stringer, 20 O.R. 148 86, 8S 
 
 Woodley v. Coventry, 32 L.J. Ex. 185 166, 220 
 
 Woolek v. Bradley, 18 W.L.R. 622 463 
 
XXXV111 CASES CITED. 
 
 PAGE 
 
 Woodruff v. Hovey, 91 Me. 116 191 
 
 Woodruff y. Oswez Starch Factory, 74 N.Y. Supp. 961 432 
 
 Woolf v. Schsefer, 103 App. Div. (N.Y.) 567 197 
 
 Worthern v. Cleveland, 129 Mass. 570 486 
 
 Worthily v. Emerson, 116 Mass. 374 . . . 18 
 
 Wortman v. Frld-Lewis, 33 W.L.R. 119 106, 118, 124, 125, 151, 237 
 
 Wright v. Rensens, 133 N.Y. 298 85 
 
 Wyloe v. Radford, 33 L.J. Ch. 51 216 
 
 Yakowchuk v. Crawford, (1917) 3 W.W.R. 479 83 
 
 Yearsley v. Gray, 140 Pa. 238 225 
 
 York v. Barstow, 175 Mass. 167 476 
 
 York v. Mathis, 103 Me. 67 146 
 
 Young v. Haight, 69 N.J.L. 453 181 
 
 Young v. Inhabitants of Falmouth, 183 Mass. 80 51 
 
 Young v. Lambert, L.R. 3 P.C. 142 219 
 
 Young v. West Kootenay Shingle Co., 11 B.C.R. 171 275 
 
 Young v. Wilson, 44 N.J.L. 157 419 
 
 Yungmann v. Briesmann, 67 L.T. 642 219 
 
 Zabriski v. Greater America Exposition Co., 62 L.R. A. 369... 140 
 
 Zehner v. Johnston, 22 Ind. App. 452 176 
 
THE LAW 
 
 OF 
 
 MECHANICS' LIENS IN CANADA 
 
 CHAPTEE I. 
 
 HISTORICAL. 
 
 The Development of the Lien upon Eealty. 
 
 A common law lien, in its primary sense, has been judicially 
 defined to be " a right in one man to retain that which is in his 
 possession belonging to another, till certain demands of him, the 
 person in possession, are satisfied." Hammonds v. Barclay, (1802) 
 2 Bast 227, 235. " It is neither a jus in re nor jus ad- rem."' 
 Dempsey v. Carson, (1862) li IT. C. G. P. 462, per Draper, C.J. 
 This right to so retain the property, upon Txhich he had per- 
 formed labor and thereby added to its value, only applied to' per- 
 sonal property. At common law a mechanic had no lien upon a 
 building for labor done upon it and could not retain possession 
 of realty upon which he had performed labor. Even at so early 
 a period as the year 1835 this question was discussed in an On- 
 tario case (Johnson v. Crew, 5 U. C. Q. B. (O.S.) 200), where a 
 builder, having performed work on a house, withheld possession 
 and insisted that his claim must first be paid. It was decided in 
 that case that the builder had no lien, and that no action would 
 lie for his claim until the absolute delivery of the house. Robin- 
 son, 'C.J., said : " On general principles and in ordinary cases a 
 builder has no lien, on the house which he has built or repaired,— r 
 MX. — 1. 
 
2 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 it would be most inconvenient that he should have. The ground 
 on which it stands is inseparable from the house and such a lien 
 would exclude the owner from his own freehold." Maeaulay, J., 
 said: "'Contractors for such work must rely on the personal 
 liability of their employer under the contract, in an express 
 security' guaranteed by substantive agreement. No lien results in 
 law in their favor by reason of the expenditure of their toil and 
 material on the estate and for the benefit of the owner." 
 
 It is true that a contractor may have a right to hold materials 
 as an unpaid vendor until they are paid for, when such materials 
 brought on the land of the employer have not been affixed to the 
 freehold, and the property in them has not passed to the employer 
 by the terms of the contract (Beliamy v. Davey, [1891] 3 Ch. 
 540), but when the materials have been affixed to the freehold, a 
 contractor, in the absence of a statute, has no lien on them, or on 
 the work constructed with them. They then form part of the 
 freehold. Halsbury's Laws of -England, v61. 3, p. 264. 
 
 It required a statute, therefore, to create this lien and it was 
 not until the year 1873 that this right was created in Ontario, 
 which was the first Province in Canada to enact a Mechanics' 
 Lien Law. 36 Vict. ch. 27. 
 
 Oeigin of the Law. 
 
 Ontario, doubtless, adopted the system of Mechanics' Liens from 
 the statutes prevailing in many of the 'States of the neighboring v 
 Republic. Such a system is unknown to the law of England. The 
 actual cause which led to the introduction of the system in the 
 United States is not known. Phillips, in his treatise on Mechanics' 
 Liens (3rd ed., sec. 6) states that it has been supposed that in 
 Pennsylvania, which was one of the first States to establish the 
 system, it owed its existence to the analogous provisions contained 
 in the Act of the commonwealth of 1784 relating to persons 
 employed in building and repairing vessels, tad others! seem 
 inclined to trace its origin exclusively to s the necessity, in a young 
 
ORIGIN OF THE LAW. 3 
 
 and growing country, of fostering mechanical and industrial pur- 
 suits, and the manifest equity of dedicating primarily buildings and 
 the land upon which they are erected to the payment of the labor 
 and materials incorporated, and which have given to them an 
 increased value. But is it not probable that the origin of the 
 system is traceable to the circumstance that many of the new 
 settlers in that country were mechanics, who came from continental 
 countries where laws existed based on the civil law, which has so 
 deeply influenced the jurisprudence of the civilized world, and that 
 these workmen, having had the beneficial experience of the civil 
 law provisions which protected the contractor and mechanic and 
 clearly defined and regulated their interests, would naturally press 
 for the like privilege to be given them in their adopted country ? 
 The civil code of Louisiana is drreqtly traceable to this source and 
 in regard to mechanics and laborers is practically a re-enactment 
 of the provisions of the civil law. The enactment by the British 
 Parliament of the famous " Quebec Act " of 1774, which extended 
 the limits of the Province southward to the Ohio and Westward 
 to the Mississippi, restored the civil law to the people living within 
 that extensive territory, and it is probable that the provisions of 
 that law protecting mechanics, were familiar to many workmen 
 who afterwards became residents of adjoining States and who would 
 quickly join in the movement for the securing of a statutory law 
 with similar provisions for their protection. The old French law 
 gave a lien to workmen over all other creditors, upon the equit- 
 able principle' that they who had furnished materials, and had 
 worked for the common benefit of all the creditors, should there- 
 fore be first paid. Pothier Procedure Civile, partie 4, ch. 2, sec. 
 3, sub-sec. 5. 
 
 (Moreover there were many thousands of Dutch settlers not 
 only in New York, but along the Delaware arid in Maryland 
 and Pennsylvania (Pennsylvania Archives, yol. 1, Hazard), and 
 those settlers and their relatives and friends who followed them to 
 their new homes had lived under the civil law in Holland, and the 
 
4 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 mechanics among them would naturally agitate. to secure an enact- 
 ment giving them similar protection in their adopted country. 
 
 It is not unlikely, therefore, that the provisions of the civil 
 law constituted the foundation for the system of Mechanics' Liens 
 now prevailing on this continent. 
 
 In the United States, the first statute creating such a lien was 
 enacted by the iGeneral Assembly of Maryland in 1791. This was 
 followed by a measure passed by the Legislature of Pennsylvania 
 in 1803. In 1819 the Legislature of Massachusetts passed a 
 Mechanics' Lien Act which was adopted in Maine in 1821. As 
 illustrating the meagre and' incomplete provisions of these early 
 statutes, it is worthy of note that the Massachusetts Act gave a lien 
 only to one who had made a written contract with the owner, and 
 the first Pennsylvania Act made the lien apply only for debts 
 contracted by the owner of the property in connection with work 
 done or materials furnished for the building, and the contractor 
 himself was hot entitled to any lien under the Act. The primary 
 purpose of the latter statute was not to secure the contractor but 
 the mechanics and dealers who were liable to lose through him. 
 The whole statute consisted only of two sections and was con- 
 tained in about thirty lines. 
 
 Initial Difficulties. 
 
 The legislative germ introduced in Ontario in 1873 gave little 
 promise of long life or future development. It was an exaspera- 
 tion to the owners of real estate, and in many cases was a disap- 
 pointment to pa-sons claiming a lien. It was publicly stigmatised 
 as being of profit to no one save the lawyers, and it was suspected 
 of being the offspring of the wanton wooing of the workingman's 
 vote. The Act was vigorously condemned in the press by suitors 
 who had invoked it unsuccessfully. 
 
 Looking back to that period, it is not surprising that the new 
 Act was unpopular. It was good, so far as it went, but- it did not 
 go far enough, and there was the inevitable accompaniment of 
 
INITIAL DIFFICULTIES. 
 
 ambiguity in respect to some of its terms. It existed only in favor 
 of the direct contractor with the Owner, and there was a perilous 
 perplexity and haziness about the scope of the word " owner," who 
 was, as one judge expressed it, " enyironed with great perils." 
 Sub-contractors disliked the statute because it did not give them 
 the right to a lien on the land and left them unprotected from 
 fraud. They were entitled to have their claims paid out of any 
 money due by the owner to the contractor, but that privilege was 
 speedily discovered in many eases to be illusory and valueless, 
 inasmuch as by the time the owner received from them the neces- 
 sary notice of their claims there was nothing due by him to the 
 contractor and therefore nothing to pay to the sub-contractors. 
 This defect was remedied in 1874 (37 Vict. ch. 20). After fur- 
 ther amendments to the law and the decision in a leading case 
 (Bank of Montreal v. Haffner, (1884) 10 0. A. E. 592), there was a 
 clearer understanding of the scope of the word " owner." In 1877 
 there was a consolidation of the Acts (E. S. 0. (1877) ch. 120). 
 For some- years there was contention between lien-holders and 
 other incumbrancers for priority, (see Douglas v. Chamberlain, 
 (1878) 25 Gr. 289: Richards v. Chamberlain, (1878) 25 Gr. 402, 
 24 Gr. 209), and there appeared to be general dissatisfaction with 
 the statute. An editorial appeared in 1876 in the sedate columns 
 of a law journal (12 C. L. J. 300), vehemently demanding the 
 repeal of the Act, and describing it as, "that most absurd and 
 hurtful of all illogical legislation." In the following year another 
 editorial appeared in the same journal, which, after referring to a 
 particular case (13 C. L. J, 9), as a specific instance of the un- 
 satisfactory character of the Act, denounced the whole measure as 
 unjust, absurd and unintelligible. 
 
 It should be noted that the decision in the case which provoked 
 this violent attack upon the Act was reversed on appeal. 
 
6 the law 0e mechanics* liens in canada. 
 
 Important Amendments. 
 
 • WheH, by further' amendments to the Act, the legislature 
 sought to protect the sub-contractors and material men by giving 
 each of them a lien, the law was often misunderstood by the sub- 
 contractors and material men, who in many instances suffered loss 
 because they failed to realize the importance 6f s the doctrine en- 
 unciated by Mr. Justice Proudf oot, . when he said: "The Ameri- 
 can statutes, so far as I have been able to refer to them, contain 
 no definitions of the term owner, but the courts- have construed it to 
 be the correlative of contractor, and to mean the person who em- 
 ploys the contractor, and for whom the work is done under the 
 contract. Our statute seems ibo have framed the definition in 
 accordance with this course of decision." Bank of Montreal v. 
 Haffner, (1881) 29 Gr. 319. The contractor and material men, 
 however, felt, that it was unreasonable that anything more should 
 be required to be shown by them to secure their claims than to 
 prove the ownership of an interest in the land and the doing of 
 the work benefiting the owner of that interest. Moreover, wage- 
 earners were dissatisfied With the Act because there was no ade- 
 quate protection for them against the dishonesty of contractors. 
 In order to afford ample protection to wage-earners, amendments 
 tb the Act were made in 1882 (45 Vict. ch. 15), and further 
 amendments in 1884 (47 Vict. ch. 18), and in 1887 (50 Vict, 
 ch. 20) . By these later amendments a better status was given to 
 the lien for wages; all agreements made for the purpose of pre- 
 venting .the attaching of mechanics' liens were declared void, ex- 
 cept as between the actual parties to such agreements, and the 
 procedure for enforcing and discharging liens was improved. 
 The next consolidation was in 1887 (R. S. 0. (1887) ch. 126), 
 and further amendments were made in 1889, one amendment (52 
 Vict. ch. 37), directing a special procedure for the enforcement of 
 the lien, and the later amendment (52 Vict. ch. 38), making a 
 change in the percentage required to be retained by an owner. In 
 
IMPOKTANT AMENDMENTS. 7 
 
 1893 by an amending Act the procedure for the enforcement of 
 the lien was further improved. Notwithstanding all these' amend- 
 ments, the Act was in such a condition until 1896, that the courts 
 were often forced to allow gross injustice to be done by reason of 
 technical slips, and the remedy intended by the Act was often 
 burked by matters of form and not of substance. (See observa- 
 tions of Eiddell, J., in Barrington v. Martin, (1908) 16 0. L. E. 
 635.) In that year the legislature made a clean sweep of the old 
 Acts, and recast the whole statute. (50 Vict. ch. .35.) There was 
 a subsequent consolidation in 1897 (E. S. 0. (1897) ch. 157), 
 and a revision again in 1910, after additional amendments in 
 intervening years. The latest consolidation was in 1914 (E. S. 0. 
 (1914) ch. 140). Since then practically no important change has 
 been made in the Act. 
 
 ' For some, time there had been contention in regard to the 
 construction of the word " completion " of the work, but finally 
 in the case of Neill v. Carroll, affirmed on re-hearing (see Sum- 
 mers v. Beard, 24 0. E. 641), it was apparently established that 
 " completion " meant substantial completion, and that the subse- 
 quent supplying of trifling imperfections would not have the 
 effect of prolonging the time for the registration of the lien or for 
 bringing the action to enforce, the lien. But this decision has not 
 been followed in later cases. (See cases cited in Chapter "Com- 
 puting the Statutory Time," post ) . 
 
 When the right to a lien was extended to sub-contractors it 
 proved, in many instances, an expensive and useless right because 
 there was no machinery accompanying it which would enable sub- 
 contractors to ascertain speedily the amount due by the owner to 
 the contractor. Eventually a provision was adopted for the fur- 
 ther protection of sub-contractors, which provision is now em- 
 bodied in the present Act. Another defect in the statute, which 
 impaired its value to sub-contractors, arose from the fact that a 
 contractor could by his agreement deprive all sub-contractors 
 under him of. the right of lien, and it was not until 1884 (47 Vict, 
 ch. 18), that the defect was remedied. 
 
8 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 It was, of course, very difficult to anticipate and provide for 
 the innumerable questions ' -which ultimately arose concerning the 
 scope and meaning of the terms of a statute of this novel nature. 
 The ambiguity of some of its sections was the subject of occasional 
 comment by the courts. Even at so late a period as 1885 Chan- 
 cellor Boyd; in one case, expressed regret thathe could not exempt 
 the plaintiff from costs "incurred in endeavoring to discover the 
 true meaning of the mechanics' lien law." Graham v. Williams, 
 (1885) 8 0. R. 478. •' 
 
 Instructive comments on the growth and development of the 
 legislation on this subject are to foe found in the 'judgment of 
 Magee, J.Ai, in Rice-Lewis & Son v. Harvey, (1913) 9 D. L. E. at 
 p. 118, and in the judgment of Eiddell, J., m Eadie-Bouglas \. 
 Hitch & Co., 9 D. L. B. 239. 
 
 The experiences of Manitoba, British Columbia, Nova Scotia, 
 New Brunswick, Alberta and Saskatchewan were not so trouble- 
 some, as by the time enactments on this subject had been passed by 
 their legislatures, the path had been made fairly smooth. 
 
 Contrasting the meagre, inadequate and inequitable pro- 
 visions of the Ontario Act of 1873 with the comprehensive and 
 just provisions of the present Act, based as it is on a due regard to 
 the rights of all parties, great progress may fairly be claimed 
 along a somewhat thorny and trpublesome path, where conflicting 
 rights compelled the legislator to proceed cautiously lest the hon- 
 est endeavor to do full justice to one class might involve injustice 
 to anotheri class. There has been a slow but steady widening of 
 the remedy, so that, while the remedy itself has been made more 
 effective, it has also been extended so as to include new classes of 
 persons equally entitled to invoke it, and the law itself in the 
 various . provinces , of Canada is gradually becoming uniform and 
 well settled. , It is not claimed, that even to-day the legislation on 
 this subject has anticipated and effectively dealt with all possible 
 contingencies and is complete and perfect. "The statute, con- 
 strue it as we may, presents anomalies and incongruities with which 
 
' IMPORTANT AMENDMENTS. 9 
 
 it is very difficult to deal." Jackson v. Eg am, (1911) 200 N. Y. 
 500, per Cullen, C.J.. New legislation, doubtless, will be neces- 
 sary from time to time to meet new conditions and to cope witb 
 ihe ingenuity of tbose desirous of evading the provisions of the 
 Act, but when the difficulties of the subject are considered, it must 
 be conceded that the Mechanics' Lien Acts as they exist to-day in 
 this country, are distinctly beneficial and just measures. It was 
 feared, by some persons that the Acts would be oppressive to the 
 owners of real estate, but it is now universally recognized that 
 these measures are not more onerous than necessity and justice 
 demand in order to protect those who do the work and furnish the 
 materials by which the realty is benefited. 
 
 The value of a statute of this kind cannot be measured by the 
 frequency with which its provisions- are invoked. The mere fact 
 that it is on the statute book constitutes in itself a wholesome, 
 salutary and far-reaching influence in preventing attempts to 
 defraud which might otherwise be successfully undertaken. An 
 adequate idda of the value of the Mechanics' Lien Acts could only 
 be afforded by their absolute repeal,, as it would then be found that 
 those classes now protected by the law, from the fraud, injustice, 
 misfortune or improvidence of others in connection with building 
 ■contracts, would have the strongest reasons for demanding the 
 re-enactment of these statutes. 
 
CHAPTER II. 
 Nature and Scope of the Lien. 
 
 A right which requires a statute to create it, and also statu- 
 tory words' to determine the precise length of its life, can be truly 
 called a creature of the statute. There are other liens created by 
 statute, but a mechanics' lien upon realty differs in several respects 
 , from any of them. The statutory law which bears the closest 
 resemblance to it is that which relates to an incumbrance affixed 
 to the realty for taxes due to a municipality. 
 
 While the general principle of this legislation is that the land 
 
 which receives the benefit shall bear the burden (Scratch v. 
 
 Anderson, (1909) 11 Alta. R. 55), yet the ■ application of that 
 
 . principle is necessarily restricted 'by the terms and conditions of 
 
 the statutory enactment creating the lien. 
 
 The object of this legislation is to insure by a cheap and ex- 
 peditious method the payment for work and materials out of pro- 
 perty upon which the work has -been done, or for which materials 
 have been provided. The person who has supplied, labor and 
 materials is enabled to establish a lien and thus acquire authority 
 to sell the property so as to realize his claim therefor. " The sub- 
 stance of the enactment is the sale." (Crawford v. Tilden, 14 
 0. L. R. 577, per Meredith, J. A.; Scratch v.' Anderson, (1911) 
 16 W. L. R. 145.). The aim of this remedial legislation is to 
 secure payment, so far as is just and practicable, to those whose 
 work or materials, supplied to the owner in the manner provided 
 for in the enactment, tend to enhance the value of the property of 
 the owner. The scope and effect of this legislation have been 
 widened by amendments. In the- various Proyinces of 'Canada the 
 trend of this remedial legislation has been in the direction of 
 extending the right of lien; but this statutory remedy, when ex- 
 pressed to be given for " services " in " erecting " a building is not 
 
NATURE AND SCOPE OF LIEN. 11 
 
 broad enough to include a lawyer's charges for drawing contracts 
 in relation to the building or his charges for legal advice as to 
 questions arising out of the construction or repair of the building. 
 An architect, however, or an assistant architect, would be entitled 
 to a lien for his " work " and " services " in the drawing of plans 
 used in the erection of the building and the superintendence and 
 the direction of the construction of the building. Superintending 
 the building is " service upon " the building. The architect who 
 draws plans used for a building " actually does work upon it as if 
 he had carried a hod." (Arnoldi v. Gouin, 22 Gr. 314; Bead v. 
 Whitney (1919), 48 D. L. E. at p. 309; Tripp v. Clark, 14 D. L. 
 E. 918, 18 B. C. E; 216). But the travelling expenses of an assist- 
 ant architect could not be treated as "service upon ... a 
 building." Read v. Whitney, supra. There is no lien under the 
 British Columbia Mechanics Lien Act, E. S. B. C. 1911, ch. 154, 
 in respect to the cost of preparing for work to be done upon a site, 
 although such work has been frustrated without fault of the con- 
 tractor. British Columbia Granitoid Co. v. Dominion Shipbuild- 
 ing Co. (B.C.), (1918) 2 "W. W. E. 919. 
 
 A mechanics'' hen although created by operation of law is 
 dependent upon contract, express or implied. It being con- 
 sidered that a person who by his labor or material enhances the 
 value of realty belonging to others has a special right to compensa- 
 tion and, therefore, should have a preferred claim on such realty, 
 the object of a Mechanics' Lien is to secure to him a priority of 
 payment of the value of the work done, or materials furnished, by 
 giving him a lien which attaches to the land and the structure. 
 
 This lien arises by virtue of the employment and the doing 
 of the work or furnishing the materials (McNamara v. Kirhland, 
 (1891) 18 0. A. E. 276), and is given as a security only for labor 
 done or materials furnished to be used in connection with the 
 construction, repair or improvement of the structure. Eobock v. 
 Peters (1900) 13 Man. L. E. 139.' 
 
 The death of a lienholder or the dissolution of the co-partner- 
 ship of a firm of lienholders cannot affect the continuance of a lien. 
 
12 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 One purpose of the Act is to secure to wage-earners priority 
 over all claimants not having a superior equity, so that wage- 
 earners who became entitled to a lien as the work went on would 
 not lose their lien through any subsequent default of, the contrac- 
 tor. To wage-earners the owner may be made liable for more than 
 what is payable to the contractor, but with this exception the 
 charge created by the statute is a charge upon money 1 to become 
 payable ,to the contractor and when, by reason of the contractor's 
 default, the money never becomes payable, those claiming under 
 him to have this statutory charge upon the fund created by the 
 Act, if and when payable, have no greater right than he himself 
 had, and their lien fails. Farrell v. Gallagher, (1911) 1.8 0. W. 
 E. 446, 23 0. L. E. 130; McManus y-. Rothschild, 25 ,0. L. E. 138; 
 Cole v. Pearson, (1908) 12 0. "W. E. 111. 
 
 A provision requiring an owner to create a fund by deducting 
 twenty per cent, from any payment to he made by him in respect 
 of a contract, for the protection of those who supplied materials to 
 the contractor, does not apply te a contract under which nothing 
 was payable' 'by the owner to the con tractor ,— as where during the 
 progress of the work the owner had paid the contractor more than 
 the value of the work done and the work as a whole was never 
 completed. Burton v. HooTcworth, (1919) 48 D. L. E. 339. 
 
 The special provision for priority of wage-earners introduced 
 into the Mechanics' Lien Act, whereby it is declared that as 
 against wage-earners the percentage required to be retained by the 
 o"wner to answer liens "Shall not be applied by the owner to the 
 completion of the contract on the contractor's default, nor to the 
 payment of damages for non-completion, does not affect the other 
 provisions of the Act regarding mechanics' liens generally; and it 
 is not to be implied from such prohibition that the owner may in 
 cases other than for wages so apply the statutory percentage to- 
 wards the cost of completion as against the liens of materialmen 
 or sub-contractors in the event of the contractors' default. Rice 
 Lewis & Son, Ltd. v. Harvey et al. (1913) 9 D. L. E. 114. 
 
NATURE AND SCOPE OF LIEN. 13 
 
 The fact that the owner did not retain from his contract any of 
 the percentage of the value of the work as required by the 
 Mechanics' Lien Act for the protection of sub-contractors and wage : 
 earners, does not make him liable for sub-contractors' claims as to 
 which no lien' was filed or notice of claim given the owner until 
 after the expiry, of thirty days following the abandonment of the 
 work by the principal contractor, the statutory obligation to, retain 
 the percentage being limited to thiriy days after completion or 
 abandonment of the contract with the owner. (Broohs v. Mundy 
 (1914 X 16 D. L. E. 119). The statutory percentage which the Act 
 requires an owner to retain constitutes a fund of which the 
 owner is a trustee, and where a contractor abandons his work the 
 materialmen and other lienholders can resort to this fund. Where, 
 therefore, under a contract it was provided that eighty per cent, 
 of the value of the work done was to be paid, on progress certifi- 
 cates, by the owner to the contractor, the owner was held liable to 
 other lienholders to the extent of twenty per cent, on such pay- 
 ments, and, if any additional sum became payable by the owner to 
 the contractor, twenty per cent, of such sum would be available to 
 lienholders. Russell T. French, 28 0. E. 215; Bice Lewis & Son 
 v. Harvey, (1913) 9 D. L. E.' 114. The views expressed in Far- 
 rell v. Gallagher, 23 0. L. E. 130, and McManus v. Bothschild, 25 
 0. L. E. 138; must be governed by the decision in Bice Lewis & 
 Son v. Harvey, supra. 
 
 The lien itself is an interest in land {Stewart v. Gesner, (1881) 
 29 Gr. 329), and attaches to equitable as well as legal estates or 
 interests in land. Reggin v. Manes, 22 0. E. 443; Montjoy y. 
 Heward School'Dist. Corp., 10 W. L. E. 282. "A- trustee having 
 power to improve and repair the property can usually by his con- 
 tract subject it to a mechanics' lien." Springer v. Kroeschell, 161, 
 111. 358. It will attach to the estate of a lessee. ( Garing v. Hunt, 
 27 0. E. 149), but subject to all the conditions of the lease {Wil- 
 liams v. Vanderbilt, 145 111. 238),- but the lessee's contract can- 
 not, as a rule, affect any other interest, unless the lessor consented 
 
14 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 to the making of the improvements. Garing v. Hunt, supra; 
 Graham v. Williams, 8 0: R. 478, 9 0. R. 458. See Marshall 
 Brick Co. v. Twining, 28 D. L. R. 464; Scratch' v. Anderson, 
 (1911) 16 W. L. R. 145. It attaches only to realty, and 
 does not create an estate in the realty itself but is, in 
 'effect, a statutory charge upon the estate or interest .of the 
 " owner," as denned by the Act ( Garing v. Hunt, supra; Graham 
 v. Williams, 8 0. R. 478, 9 0. R. 458), and its registration makes 
 subsequent transfers or incumbrances of the land affected by the 
 charge subordinate to the rights of the lien holder. . It arises as 
 soon as work is done or materials furnished, and is subject. to be 
 increased or decreased in amount from time to time, as further 
 work is done or materials furnished, to be used, on the one hand, 
 or payments made to the lien holder, on the other hand. 
 Although the lien arises as soon as the work is commenced, or the 
 materials have been placed or furnished, yet it actually takes its 
 rank with other interests and incumbrances not solely according- 
 to the date at which it came into existence, but, in so far as the 
 work or materials have increased the value of the land, in priority 
 to other interests and incumbrances, though the latter be prior 
 in point of time. Galvin-Watson Lumber Co. v. McKinnon, 
 (1911) 4 Sask. iL. R 68, 16 W. L. R. 310. 
 
 The lien may be registered when commencing, or during the 
 progress of the work, but an action thereon cannot be commenced 
 before completion 'of the contract. Curtis v. Richardson, (1909) 
 18 Man. L. R. 519. 
 
 The lien upon registration takes effect from the commence- 
 ment of the work, or from the placing of the materials, as against 
 purchasers, etc., under instruments registered or unregistered. 
 RooocTc v. Peters, (1900)' 14 Man. L. R. 139. As between owner 
 and contractor, the Ken may exist from the time of the com- 
 mencement of the work, yet if the latter desires to preserve bis 
 position and establish a priority over subsequent purchasers or 
 mortgagees, he must register his lien. McVean v. Tifflin, (1885) 
 
NATURE AND SCOPE OF LIEN. 15 
 
 13 0. A. E. 4. See Dominion Radiator Co. v. Payne, (1917) 11 
 Alta. E. at p. 537. The office of the statement registered, so far as 
 respects the lien, is not to create it but to preserve it, and main- 
 tain it against subsequent purchasers and protect the latter from 
 ,the risk of taking without notice any laiid affected by a lien. The 
 purpose of registration of claims for liens is to give public notice 
 of the existence and nature , and amount of the claims and of the 
 persons by and against whom they are claimed, and of the pro- 
 perty subject to them, so that persons interested in the property or 
 intending to acquire any interest in it may receive reasonable 
 notice of the character of the claims attaching to the property. 
 Such information as answers this purpose should be held sufficient. 
 Bickerton v. Dakin, (1891) 20 O. E. 702; Fulp \. Power Co., 
 (1911) 157 N. C. 156. The owner has the right to know from the 
 account filed, the amount which has become a charge upon his 
 property in order that' by payment or tender he may discharge the 
 property of this encumbrance. If, therefore, a claim for lien is wil- 
 fully and fraudulently made for an excessive sum, the lien will be 
 defeated. Marsh v. Mick, (1911) 159 111. App. 399. 
 
 When the work is done or the, materials are furnished, the 
 lien, having attached as the work is being done, relates back to the 
 time when the work was begun, or the materials were commenced 
 to be furnished, and takes priority over incumbrances not re- 
 corded at that time.- Ottawa Steel Castings Co. v. Dominion 
 Supply Co., (1905) 5 0. W. E. 161, 41 <C. L. J. 260. 
 
 The lien for materials arises on the materials being furnished 
 for the " owner " or contractor or a sub-contractor, and attaches 
 only to the erection, building or property in respect of which they 
 were furnished, and of the lands occupied thereby or enjoyed there- 
 with, or upon which the materials are placed or furnished to be 
 used. The policy of this legislation is to prevent an owner from 
 obtaining the benefit of the labor and materials "of others without 
 compensation, but it is not intended to compel an owner to pay 
 his contractor's indebtedness for that which does not go into or 
 
16 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 benefit his property. Brooks-Sanford Co. v. Theodore Teller Co., 
 22 0. L. R. 176. 
 
 A mechanics' lien is a charge upon the whole realty, although 
 the labor done or materials furnished may have only been con- 
 nected with part of it. This is aptly illustrated by a Massachusetts 
 case (Beatty'v. Barker, (1886) 141 Mass. 523) in which it was 
 decided that a drain pipe extending from the cellar of a house in 
 a city, through the cellar wall, yard and street into a- sewer, and 
 included in the contract for building the house, which was fitted 
 for the use of the city water, is a part of the house and that a lien 
 may be maintained for the laying of this drain, it being imma- 
 terial that the fee of the street is hot in the owner ,of the house. 
 In a later case it was held that a lien might exist for grading a lot, 
 as, if the grading were reasonably necessary to the proper con- 
 struction and occupation of the house, it fairly could be considered 
 as part of the erection of the house. Beid v. Berry, (1901) 178 
 Mass. 260. In fact, any improvements which . although outside of 
 a building are necessary for its proper use, and are on the lot of 
 land, may be the subject of a lien on the land and building. Thus, 
 a lien may be claimed against the whole realty for the drilling of 
 an artesian well (Rolewitch v. Harrington, (1906) 6 L. R! A. 
 550) ; -constructing' a reservoir (Brush Elec. Co. v. Warwick Elec- 
 tric Co., 6 Ohio Dec. 459); pipes' in a sold storage plant (Steger 
 V.' Arctic Ref. Co., 11 L. R. A. 580); a gas machine (Benrisyl. 
 Globe Co. v. Gill, 1 Pa. Dis. R. 538) ; electric light (Badger 'Lum-' 
 her Co. v. Marion Water Supply & Bower Co., 15 L. R. A. 652) ; 
 brewery appliances (Watts Campbell v. Yuengling (1890) 125 
 ■N". Y. 3) . A person furnishing lead to connect a house with pipes 
 in the street may have a lien on the house. F-erry v. Rothbaum, 
 (1911) 155 Mo. App. 331. Mechanics' Lien Acts in Canada give a 
 lien upon the building ". . . and the lands, occupied thereby 
 and enjoyed therewith," and this phrase has been liberally con- 
 strued. "Where a lien on a mine was claimed, and it appeared that 
 none of the work done and none of the materials were furnished 
 
NATURE AND SCOPE OF LIEN. 17 
 
 on mining locations Nos. 128 and 129, but these were " enjoyed " 
 with No. 258 on which the work was done, it was held that the 
 former sections were, therefore, subject to the lien. Davis v. 
 Crown Point Mining Company, (i901) 3 0. L. E. 69. These 
 , words are not necessarily restricted to the particular lot upon 
 which the building is situated, but may include other lots intended 
 for use with the house. Clarice v. Moore (1908) 1 Alta. L. E. 49. 
 Where a statute permitted the lien to attach to such curtilage as 
 is reasonably needed for the general purposes for which the struc- 
 ture is erected, a lien on a hotel and sanitarium was held to ex- 
 tend to a lot separated -from that containing the building by other 
 property, but containing a mineral spring which is intended as 
 part of the sanitarium property. (See Wirsing v. Penn Hotel and 
 Sanitarium Co., (1909) 226 Pa. 234, where previous eases are 
 reviewed.) Where the buildings are upon farms, the lien, as a 
 general rule, will include the extra tract that is used as one farm. 
 Cowan v. Griffith, 103 Cal. 224. The tendency of legislation is to 
 widen, and of the courts to construe liberally, the provisions deal- 
 ing with the extent and scope of a lien. Ontario Lime Assocn. 
 v. Grimwood, (1910) 22 0. L. E. 17. Such terms as "work" and 
 "materials," for instance, have been most liberally construed. 
 
 The question of the extent of land included in the lien depends 
 largely upon the facts at the time the contract was made. La 
 Forgee v. Colby, 69 111. App. 443; Baker v. Waldron, 92 Me. 17; 
 Collins v. Patch, 156 Mass. 317 ; O'Brien v. Fraser and Gallagher, 
 (1918) 41 D. L. E. 328; Poison v. Thomson (1916) 29 D. L. E. 
 395; Fairclough v. Smith (1901) 13 Man. L. E. 509; Builders 
 Supply Co. v. Huddlestone (1915) 25 Man. L. E. 718. As to 
 the area of land subject to the hen, Fuller, C.J., in a leading 
 American case, said : " The truth is that what area of land is 
 subject to a lien in a given case largely depends on the character of 
 the improvement. The extent of ground proper and necessary 
 to the enjoyment of a building, a wall or a fence, would not be the 
 same as that required for or appertaining to an irrigation system, 
 
 MX. — 2. 
 
. 18 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 but the principle of determination is the same." Springer Land 
 Assri. v. Ford, (1897) 168 U. S. 513. 
 
 Where there aTe no visible divisions the entire tract is con- 
 sidered as the lot of land covered by the lien (St. Louis Nat. Stock 
 Yards y. O'Reilly, 85 111, 546; Orr v. Fuller, 172 Mass. 597), but 
 in Pennsylvania it has been held that if the work is done on a 
 structure which is on a separate and remote lot, a lien cannot be 
 enforced against a building on another lot, > although the structure 
 on which the work was done serves the other building as well as 
 other properties.! Cowah v. Penn. Plate Glass Co., 184 Pa. 16. 
 
 All of a block of houses on one tract erected under , one con- 
 tract will be covered by a single lien. Brabazon v. Allen, 41 Conn. 
 361; Worthley v. Emerson, 116 Mass. 374; see Maryland Brick 
 Co. v. Spelman, 76 Ind. 337 (17 L. E. A. 599). The defendant 
 bought one of two adjoining pieces of land and took a fifty years' 
 lease of the other. He erected an exterior fence, built a continu- 
 ous dock for coal along the entire river front of both lots and used 
 the whole tract as a coal yard/ and it was held that a lien under a 
 single contract covered both lots as a single lien. Marston v. Ken-_ 
 yon, 44 Conn. 349. Old material used under the contract in the 
 new building may be subject to a lien. (Whitford v. Newell, 84 
 Mass. 424), and the amount paid by a contractor agreeing to erect 
 a new building for removing an old building on the site is a proper 
 .claim. Pratt v. Nakdimen, (1912) 138 iS. W. 974), but.no lien 
 arises for merely tearing down a building or part thereof (Thomp- 
 son-Starrett Co. v. Brooklyn Heights B. C, 111 App. Div. (N.Y.) 
 358) unless the work of tearing down was a necessary preliminary 
 to the making of subsequent improvements. 
 
 Where it is intended to use the whole of the land with the 
 buildings on which the work was done, all the land will be subject 
 to the lien (Lindsay v. Gunning, 59 Conn. 296), where the whole 
 farm of 350 acres was held to be "the land on which" the build- 
 ings stand. 
 
 The estate or interest, large or small, of the " owner " is bound 
 by the lien (MoCarty v. Carter, 49 111. 53, 95 Ain. Dec. 572), and 
 
NATUKE AND SCOPE OF LIEN. 19 
 
 where the equitable title afterwards merges into the legal, the lien 
 will attach to the legal title. Where a person has a valid lien on 
 a lot and building and subsequently becomes owner of the land on 
 which the building was then standing, whatever interest he could 
 claim in the property under his lien merges in his title as owner. 
 Galvin Watson Lum. Co. v. McKinnon, (1911) 16 W. L. E. 310. 
 Once a lien attaches no subsequent conveyance can affect it pre- 
 judicially. Salem v. Lane, 189 111. 593. 
 
 • As to the operation of the lien itself, Boyd, C, in delivering 
 judgment in a leading Ontario case (King v. Alford, (1885) 10 
 0. E. 647), said: "There is nothing in the scope of the Act as 
 to liens to indicate that it was intended to be operative to a greater 
 extent than as giving a statutory lien issuing in process of execu- 
 tion, of efficacy equal to, but not greater than, that possessed by 
 the ordinary writs of execution." In another part of his judg- 
 ment in that case, the learned Chancellor points out that a me- 
 chanics' lien is not analogous to a vendor's lien, and Ferguson, J., 
 in the same case states fully the distinction between a mechanics' 
 lien and a vendor's lien. 
 
 The lien upon a mine is a lien on the mine itself and riot on 
 any fund arising from the sale of ore extracted from the mine. 
 Law y. Mumford, 14 B. G. E. 233. 
 
 Such terms as "building" (6 Cyc. 115); "wharf" (Collins 
 v. Drew (1876) 67 KT. Y. 149; Ellis v. Cory (1902) K. B. 38; see 
 also Haddock v. Humphrey, (1900) 1 K. B. 609; Kenny v. Har- 
 rison, (19.02) 2 K. B. 168; "curtilage" (12 Cyc. 1021) occurring 
 in a statute have been given a wide and liberal interpretation. 
 
 Work on an excavation or foundation will give a lien, even 
 though no building is subsequently erected (Baker v. Waldron, 
 92 Me. 17; Sommerville v. Walker, 168 Mass. 388), but unless the 
 statute expressly provides there is no hen for the breaking of land 
 for the purposes of cultivation. Brown v. Wyman, 41 Am. Eep. 
 117. To create a lien it is not essential that the contract should 
 contemplate that the lien claimant should be paid in money. 
 Dowdney v. McCullom, 59 N. Y. 367. 
 
20 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 The lien extends only to the property upon or in respect of 
 which the work is performed or the materials furnished to be used, 
 and the lands occupied thereby or enjoyed therewith, and this 
 being so, it follows that though the work is done under one con- 
 tract and for the same owner, no lien is created upon the property 
 for work done or materials furnished upon another distinct pro- 
 perty (Currier v. Friedrick, (1875) 22 Gr. 243; Dunn v. McCal- 
 lu'm, (1907) 14 0. L. OR. 249; Barr & Anderson v. Percy & Co., 
 (1912) 21 W. L. R. 237; Oldfield v. Barbour, (1888) 12 P. E. 
 544; Ldtkins v. Blakeman, 42 Conn. 292; Bice v. Nantasket Co., 
 (1870) 140 Mass. 256), but a joint lien may be had upon a num- 
 ber of structures built or repaired under a single contract, and thus 
 connected in construction and ownership. In reality they are to 
 be considered as one building or structure. Thus, semi-detached 
 houses, or houses erected in a row, would be treated as one build- 
 ing (Ontario Lime Assn. v. Grimwood (1910) 22 O. L. R. .17; 
 Capper V. Gillespie, 11 W. L. R. 310; Windfall Nat. Gas. Co. v. 
 Eoe, (1908) 42 Ind. App. 228; O'Brien v. Fraser & Gallagher, 
 (1918) 41 D. L. R. 328. 
 
 But the Act does, not authorize the registration of one lien for 
 one lump sum against the lands of different owners, although the 
 work may have been done or the materials furnished under one 
 contract for the building of houses on the lands of the different 
 ownefs, unless, perhaps, in a case where the lien claimant did not 
 know and had no means of ascertaining before filing his lien, that 
 the lands ,were owned by different persons. Builders Supply Co. 
 v. Huddlestone, (1915) 25 Man. L. R. 718. 
 
 If the amount for which the lien, is claimed can be apportioned 
 between two or more properties, or if separate prices are fixed, it 
 would seem from some decisions that a separate lien may be claimed 
 on each property for the amount due in 'respect to it. Booth y. 
 Booth, (1902) 3 O. L. R. 294; Shaw v. Thompson, (1870) 105 
 Mass. 345; but see Fairclough v. Smith, (1901) 13 Man. L. R. 
 509; Rathbum v. Hayford, (1862) 87 Mass. 406. But the pro- 
 
NATURE AND SCOPE Or LIEN. 21 
 
 visions of the various Mechanics' Lien Acts in Canada, although 
 allowing any number of lienholders to' be joined in one suit, do 
 not enable a lienholder to consolidate liens against several different 
 buildings. Each individual building must bear the burden of its 
 own construction. O'Brien y. Fraser & Gallagher, (1918) 41 D. 
 L. E. 328. 
 
 The lien may attach against 'several pieces of property as one 
 individual claim; the fact that houses are subsequently divided 
 between different owners cannot impair the lien, which becomes 
 effective from the time of the commencement of the work. Poison 
 v. Thomson, (1916) 29 D. L. E. 395. This case is distinguished 
 from Fairclough v. Smith, (1901) 13 Man. L. E. 5t>9, as in the 
 latter case the lots in question were severally vested in two dif- 
 ferent owners. 
 
 Where a contractor has several contracts with different per- 
 sons for the erection of distinct buildings, a person who supplies 
 materials to the contractor can only have a lien upon each owner's 
 house for the amount due to him for material that had gone into 
 that particular house. The onus is upon him to make his claim 
 upon each house severally and he cannot join all the houses and 
 all the owners in one proceeding and make one lump claim against 
 them jointly. But where an owner enters into an entire contract 
 for the supply of material to be used upon several buildings the 
 nature of the contract shifts the onus and the lien claimant can 
 ask to have his lien follow the form of the contract, and that it be 
 for an entire sum upon all the buildings, and, in such case, if an 
 owner desires to invoke the statute to the extent of having a lien 
 upon any building confined to the value of the material going into 
 that building the onus is upon him to shew the facts. Dunn v. 
 McCallum, (1907) 14 0. L. E. 249; Ontario Lime Association v. 
 Grimwood, (1910) 22 0. L. E. 17; see also Builders Supply Go. 
 v. Huddlestone, (1915) 25 Man. L. E. 718. But where a definite 
 labour account has been kept against each of two separate build- 
 ings in different parts of a city, a workman cannot lump the two 
 accounts together and claim against both buildings for. its total. 
 
%% THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 O'Brien v. Fraser & Gallagher, (1918) 41 D. L. E. 328. Where 
 the materials were sold oh the ; representation of the buyer that 
 they were to be used by him in a particular building, but were 
 actually used in the construction of another, the supplier had a" 
 lien on the building in which they were actually used. Taggard 
 v. Buchmore, 42 Me. 77. 
 
 In an action by a husband against a wife to enforce a lien 
 {Booth v. Booth, (1902) 3 0. L. E. 294), it appeared that defend- 
 ant's wife and plaintiff's mother each owned a dwelling, both dwell- 
 ings being in one building which was damaged by fire. Plaintiff con- 
 tracted to repair both for a lump sum — the amount of insurance. 
 Meredith, C.J., in this case said : " It was contended that as the 
 agreement was made 'between the husband on the one part and his 
 wife and mother on the other part for the performance of the whole 
 work necessary to be done on 'both buildings for one entire price, the 
 Act, E. S. 0. (1897) ch. 153, gives no lien upon the land of either 
 for the price of the work and material or any part of them. . . . 
 It is unnecessary to express an opinion as to whether the respon- 
 dent would have been entitled to a lien under the Act on both the 
 lands of his wife and his mother for the whole of the agreed price, 
 for the only claim which is made is a lien on the lands of the wife 
 for the price of the work done on her part of the building and for 
 the materials furnished in respect to it. It was, however, con- 
 tended that the effect of -the bargain, it having been for the whole 
 work at one price and not separate prices in respect to each build- 
 ing, is that even such a lien as is claimed was not created. I am 
 unable to agree with this view. Had it been impossible to dis- 
 tinguish between the work done and the materials furnished on 
 the wife's building and those for the building of the mother, there 
 possibly might have been a difficulty in the respondent's way, but 
 I see no reason why, if it be practicable to do this, and a fortiori 
 where, as appears to have been done in this case, a separate account 
 had been kept, the lien may not attach to the land of each owner 
 for the priee of the work performed and materials furnished on 
 
NATTJEE AND SCOPE OF LIEN. 23 
 
 his part of the building. . . . Though the price for the work 
 and materials was a lump sum, and included what was to be paid 
 for that which he contracted to do in respect to his mother's build- • 
 ing, I see no reason why for the purposes of the Act the price may 
 not be apportioned between the two buildings according to the 
 amount of the work performed and the materials in respect of it." 
 Though the decisions are conflicting, in the United States a 
 lien would be upheld in the 1 majority of the States in cases where 
 separate buildings are erected upon the same lot or contiguous lots, 
 for the same owner under an entire contract. If the buildings 
 are on separate lots, though erected under an entire contract with 
 one owner, the lien is only for the work done or materials fur- 
 nished on each particular lot. No lien arises if the lots on which 
 the buildings are erected are owned by different persons, though 
 erected under one contract. Bathbun v. Hayford, (1862) 87 Mass. 
 406; C'hilds v. Anderson, (1880) 128 Mass. 108; see Stoltze v. 
 Hurd, (1910) 30 L. E. A. 1219. If, however, different owners 
 join in the contract for the erection of one building on contiguous 
 lots, a lien may be claimed against the whole property. Miller v. 
 Sheppard, 50 Minn. 268; Menzel v. Tubbs, 51 Minn. 364; J. A. 
 Treat Lumber Co. v. Warner, 60 Wis. 183. No lien can be claimed 
 where • the work is done or the materials furnished partly upon 
 land owned by the person for whom the work or materials is done 
 or furnished and partly upon land of a stranger. Stevens v. Lin- 
 coln, (1874) 114 Mass. 476; McGuinness v. Boyle, (1878) 123 
 Mass. 570; see' Lee v. Hill, 11 W. L. R. 611, unless the amount 
 due in respect to the part owned by the person for whom the work 
 was done can be shown. Batchelder v. Hutchinson (1894) 161 
 Mass. 462. 
 
 Where a definite labor account has been kept against each of 
 two separate buildings in different parts of the city,, a workman 
 cannot lump the two accounts together and claim against both 
 buildings for his total. O'Brien v. Fraser & Gallagher (1918) 41 
 D. L. E. 324. 
 
24 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 There are some American decisions to the effect that a lien 
 attaches on the land of both owners where a joint contract is made 
 with them for the work to be performed on both lots which are 
 owned separately. Deegan v. Kilpatrich, (1900) 54 .JT. Y. App. 
 Div. 374, 66 IS. Y. Supp. 628; Miller v. Schmitt, (1901) '67 N". Y. 
 Supp. 1077,-and Miexell v. Guest, (1895) 40 Pac. Rep. 1070. 
 
 In a leading Massachusetts ease (Forbes y. Mosquito , Fleet 
 Yacht Club, (1900) 175 Mass. 432), it was held that a mechanics' 
 lien may be enforced upon a building erected by the lessee under 
 a lease of the land for a term of years which requires the erection 
 of the building and which prevents the building from becoming 
 •a part of the realty, and upon the lessee's estate for years in the 
 land, for labor performed on the buildings by employees of the 
 contractor with the lessee. In delivering the- judgment of the 
 Court in this case, Barker, J., said that it was intended by the 
 Legislature to give a lien upon buildings the owner of which had 
 no estate or interest in the land upon which the building was 
 erected, and that ,the lien might extend to a building erected upon 
 land although the building was personal property. The learned 
 judge continues as follows : " The contrary ■ opinion expressed in 
 Hayes v. Fessenden, 106 Mass. 223, 231, and in Stevens v. Lin- 
 coln, 114 Mass. 476, 478, Was not necessary to the decision of either 
 of those eases and therefore is not binding as an authoritative con- 
 struction of the statute. In neither of those cases was the build- 
 ing personal property. In the former it was put upon the land 
 by one who had merely a written agreement with the owners 'of 
 the land for its purchase, and the lien was denied for the sufficient 
 reason that a person holding such an agreement mexely could not 
 charge the building with a lien, because he was not the owner of 
 the building, under the authority of Poor v. Oakmcm, 104 Mass. 
 309. .So in Stevens v. Lincoln, where a lien was denied because 
 by mistake a school house had been built partly upon lands of the 
 town and partly upon lands of third persons, and it was not 
 shown how much of the work was done on the respondent's land. 
 
NATURE AND SCOPE OE LIEN. 25 
 
 There was no ground for contending that the building was per- 
 sonal property. So much of it as stood on lands of other persons 
 than the respondent was the real estate of those persons, and so 
 much of it as stood on the respondent's land was the respondent's 
 real estate; and the ground upon which the exceptions were sus- 
 tained was that it could not be shown how much of the work was 
 done upon the building on the respondent's land. In the present 
 case the lease of the respondent required the erection of the build- 
 ing and so was a consent to its erection on the part of the owner 
 of the land, and as the lease also gave to the respondent an estate 
 for years in the land, this made the respondent the owner of the 
 building within the meaning of Pub. Sts. ch. 191, sec. 1, for the 
 term of years at least." 
 
 But where a building is by mistake erected upon the wrong 
 property, no lien can be claimed; thus where materials were 
 furnished to be used in the erection of a building upon lot 3, 
 but which was, by mistake, erected upon lot 4 and afterwards 
 removed to lot 2, the materialman was not entitled to a lien upon 
 lot 2. Lingren v. Nilsen, 52 N". W. 915, 50 Minn. 448. 
 
 Where a carpenter was to furnish the plant, etc., necessary 
 for the carrying out of the contract, which was to become the 
 property of the owner if the contract was not fulfilled, it was held 
 that the value of the plant so furnished should not be included 
 in the amount on which the owner was required to retain the per- 
 centage, though the contractor had failed to complete the contract 
 and the plant had become the property of the owner. Birkett v. 
 Brewder, (1902) 10. W. K. 62. 
 
 Where defendant leased premises to a company and the com- 
 pany agreed to erect buildings and plant to' the value of $100,000, 
 which were to become the property of the defendant, it was held 
 that the lien only attached to the company's interest. Webb v. 
 Gage, (1902) 1 O. W. E. 327. 
 
 Where a lien on a mine was claimed, and it appeared that 
 none of the work was done and none of the materials were fur- 
 
26 THE LAW OE MECHANICS'' LIENS IN CANADA. 
 
 nished on mining locations Nos. 128 and 129, but these were 
 "enjoyed" with No. 258 on which the work was done, it was 
 held that the former sections were therefore subject to the lien. 
 Davis v. Crown Point Mining Co., 3 0. L. E. 69; see also remarks 
 of Puller, C.J., in Springer Land Association v. Ford, (1897) 
 168, U. S. 513, upon the principle of determination of the extent 
 of land covered by a lien. 
 
 A lien upon a building also attaches upon so much of the ad- 
 joining land as is necessary for the use and enjoyment of the 
 building for the purpose for which it was erected. Clarice v. 
 Moore, (1908) 8 W. L. E. 405; Nelson v. Campbell, 28 Pa. St. 
 156 ; Bank of Charleston v. Curtiss, 18 Conn. 342. The extent of 
 land covered depends on the circumstances of each case; thus a 
 distinction is drawn between property in the country and pro- 
 perty in the city, a larger area being allowed in the former case. 
 
 In construing the Manitoba Act, a decision in, that Province 
 held that the expression " lienholder " means a person having a 
 lien which was valid at the time of commencing his action, so that 
 when, in ah action commenced by a lien claimant, it is decided 
 that he had no valid lien and no action was commenced within 
 the statutory time by any other person claiming a lien on the same 
 property, all the liens upon it must fail. Builders Supply Co. v. 
 Huddlestone, (1915) 25 Man. L. E. 718. The case of Be Sear & 
 Woods, 23 0. E. 474, which was followed in this case, on one 
 point, is given a new interpretation in Barnes v. Curley, post, 
 and , £he word " lienholder " is. given a plain meaning by this 
 recent decision of an Ontario Court, which holds 1 that "lien-, 
 holder," as used in a corresponding provision of the Ontario Act, 
 includes a person who files a claim but fails to establish it at the 
 trial, and that a lien duly registered but upon which no action has 
 been brought, within the stipulated time, may be enforced in an 
 action brought within that time by the plaintiff who failed. 
 Baines v. Curley, (1916) 33 D. L. E. 309. 
 
 Where the lien cannot be enforced against the property of a 
 railway company, no valid lien which justifies the plaintiff to 
 
NATURE AND SCOPE OF LIEN. 27 
 
 proceed to judgment under the section of the Act dealing with 
 personal judgments can be established. Johnson & Carey Co. v. 
 Canadian Northern B. Co., (1918) 47 D. L. E. 75. But in an- 
 other case where the plaintiff failed to establish a lien, the Eeferee 
 gave him a personal judgment and the Appellate Division dis- 
 missed an appeal from the Eeferee's decision. See Kendler v. 
 Bemstock, (1915) 22 D. L. B. 475, 33 0. L. E. 351. In that case, 
 however, there was property which could be legally charged with the 
 statutory lien, and this condition also applies to the ease of Baines 
 v. Curley. 
 
 If all the work is done, or all the. materials are furnished, under 
 one entire continuing contract, although at different times, a lien 
 claim filed within the statutory period after the last item was done 
 or furnished is sufficient as to all the items. In order that the 
 contract may be a continuing one within this rule, it is not neces- 
 sary that all the work or materials should be ordered at one time, 
 that the amount or nature of work or materials should be deter- 
 mined at the time Of the first order, or that the prices should be 
 then agreed upon. A mere general agreement to furnish labor or 
 materials for a particular building or improvement is sufficient if 
 complied with. Whitloch v. Loney (Sask.), 38 L>. L. E. 52, (1917) 
 3 W. W. E. 971. 
 
 The question whether the enforcing of this lien is a proceed- 
 ing in rem or in personam has been much discussed and conflict- 
 ing views have been expressed. In a Newfoundland ease {Lynch 
 v. Trainor, (1893) 13 €. L. T. 426, Newfoundland L. E. (1884- 
 1896) 744, an action to enforce a claim for wages under a Me- 
 chanics' Lien Act, it was held that such a proceeding was an 
 action in rem and not in personam. The Newfoundland Act is 
 almost a complete transcript of the Ontario Act. In n Massa- 
 chusetts ease {Howard v. Bobinson, 5 Cush. 121), Shaw, C.J., 
 referring to this question said: — 
 
 " The course directed by statute is conformable in part to pro- 
 ceedings in rem, arid partly to those in personam, but the objecit 
 being to charge the estate with a lien, an incumbrance wholly 
 
28 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 independent of the personal remedies which a contracting party 
 niay have, the course of proceedings must be considered as most 
 nearly resembling a proceeding in rem." 
 
 It may now be considered as well settled that the action is one 
 in rem. Washburn v. Burns, 34 N. J. L. 18 ; Simmonson v. Citi- 
 zens' State Bank, 105 Iowa 264. 
 
 The view expressed by Boisot will be generally accepted as an 
 accurate statement on this point : " If when we say proceeding 
 in rem we mean a proceeding which is not against any person, but 
 is directly against a thing whose state and condition are to be 
 determined, and which results in a judgment equally binding on 
 all persons, although not made parties to the proceedings, then a 
 suit to foreclose a mechanics' lien cannot be said to be a pro- 
 ceeding in rem. But, if we use the term proceeding in rem in a 
 larger and more general sense, as applied to actions between par- 
 ties, where the direct object is to reach and dispose of property 
 owned by them or of some interest therein, then a suit to fore- 
 close mechanics' lien is a proceeding in rem. It is" perhaps/ how- 
 ever, more accurate to say that suits to foreclose mechanics' lien 
 are suits in the nature of proceedings in rem in which the object 
 is to determine the status of certain property, but which affect 
 only those persons who are parties or privies." Boisot, Mechanics' 
 Liens, sec. 511. 
 
 For the purposes of the legislation, liens are divided into two 
 classes: (1) Liens for which a claim is not registered; and (2) 
 Liens for which a claim is registered. A lien is given by an early 
 section of the Act and exists independently of the registration of 
 a claim. Before registration there are two courses open to a lienor : 
 (a) He may omit to register a claim, in which case his lien will 
 either lapse or be enforced by action at his own instance or that 
 of others; or (b) he may register a claim, in which case his lien 
 will lapse on the expiration of ninety days, or he must bring an 
 action within a certain time or some one else must, and thus the 
 lienor who registers a claim must be taken to have abandoned all 
 
NATURE AND SCOPE OF LIEN. 29 
 
 relief but what he can obtain under the provisions embodied in 
 section 24 of the Ontario Mechanics' Lien Act, or the similar sec- 
 tion in the Mechanics' Lien Act of any other Province. Eadie- 
 Douglas v. Hitch & Co., (1912) 27 0. L. E. 261. By section 24 of 
 the Ontario Act, it is provided that " Every lien for which a claim 
 has been registered shall absolutely cease to exist on the expira- 
 tion of 90 days . . . unless in the meantime an action is 
 commenced to realize or in which the claim may be realized under 
 the provisions of this Act." The words " in the meantime " do 
 not mean " between the time of registering the claim and the 
 expiry of the time limited " ; but any proceeding taken during the 
 existence of the lien (at all events) is taken "in, the meantime" 
 if taken before the expiration of the period mentioned in sec- 
 tion 24. 
 
 The effect of a special provision in some Mechanics' Lien Acts 
 (see section 32, Mechanics' Lien Act, Alberta), is to make the 
 giving of notice in' writing to the owner a condition of the me- 
 chanic's or materialman's lien attaching so as to make the owner 
 liable, just as other sections make registration and the institution 
 of an action within defined periods conditions of its preserva- 
 tion. City of Calgary v. Dominion Radiator Co., (1917) 40 D. L. 
 E. 65. 
 
 A decree enforcing a mechanics' lien is a conclusive deter- 
 mination of the rights of the parties, but it does not conclude 
 persons who are neither parties nor privies. Bank of Montreal v. 
 Haffner, (1884) 10 0. A. E. 599. 
 
 Where lands are out of the jurisdiction the court cannot affect 
 them otherwise than by proceeding in personam and cannot there- 
 fore enforce a mechanics' lien by sale of land out of the jurisdic- 
 tion. Chadwich v. Hunter, 1 Man. E. 363. 
 
 A person who claims the benefit of a mechanics' lien must show 
 affirmatively that he is in one of the classes of persons that the 
 statute intends to secure, and also that his claim is one of the kind 
 that the statute secures. He must, therefore, be in one of the 
 following classes of persons: — 
 
30 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (1)' Those whose claims are * by virtue of an agreement with the 
 owner of the land and building or by reason of work done or 
 materials furnished with his consent, i.e.., original contractors and 
 others having the statutory claim by consent of the owner; 
 
 (2) Those having a claim of the statutory description without 
 any such agreement or direct consent, i.e., all sub-contractors (and 
 persons whose claims are by virtue of a contract with any such 
 sub-contraetor, and who thereby come within the statutory defini- 
 tion of the term " sub-contractor ") ; 
 
 (3) All laborers and wage^earners. 
 
 This statutory remedy is cumulative, and does not affect any 
 other remedy which the claimant might invoke. Where a con- 
 tractor has a claim against an owner of land larger than the value 
 of the land and wishes to prove his claim in an action indepen- 
 dently of Mechanics' Lien proceedings, he may do so. Dick v. 
 Standard Underground Cable Co., (1912) 23 0. W. E. 96. The 
 work or service need not be performed on the site of the building, 
 but must be directly connected with the repairs or construction" of 
 it. Davis v. Crown Point M. Co., (1901), 3 0. L. E. 69; Brad- 
 show v. Saucerman, (1912) 4 D. L. E. 476. A person employed 
 to sharpen picks to get out stone to build a lime kiln might have 
 a lien on the quarry, but would have no lien on the lime kiln. 
 Allan v. Harrison, (1908) 9 W. L. E. 198. 
 
 The rights i of lien claimants are confined to the provisions of 
 the statute creating such rights. Sub-contractors for the supply- 
 ing of materials and doing the painting for a lump sum do not 
 come within the meaning of the words " laborer or person placing 
 or furnishing material." Bosio & Jones v. Beach & Turner, (1913) 
 23 W. L. E. 174, 406, 9 D. L. E. 416. Puller v. Turner & Beach, 
 (1913) 23 W. L. E. 170. A person who has delivered material to 
 be used in the construction and improvement of a place, although 
 the place of delivery is upon the land, is not a person who has done 
 work or service upon the premises. Vannatta v. Uplands, Limited, 
 (1913) 25 W. L. E. 85. And the whole burden of the procedure 
 
NATURE AND SCOPE OF LIEN. 31 
 
 ' rests upon the claimant who institutes the process. O'Brien v. 
 Ftaser & Gallagher, (1918) 41 D. L. R. 328. But the above state- 
 ment would not apply to the provision of the Act which requires 
 substantial compliance only with certain sections and declares that 
 no lien shall be invalidated by reason of failure to comply with 
 those sections unless the owner, contractor or mortgagee is preju- 
 diced thereby. In such cases the onus on the question of prejudice is 
 on the party objecting to the registered claim. Robock v. Peters, 13 
 Man. L. R. 139 ; Poison v. Thompson, (1916) 29 D. L. R. 395. As 
 an illustration of how the onus may shift, see Ontario Lime Assn. 
 v. Greenwood, 22 0. L. R. 17, per Middleton, J. 
 
 When any part of a claim has matured an action lies, and in 
 that action all claims, whether then payable or not, are to be dealt 
 with at the trial. 
 
 The lien claimant must bring himself within the terms of the 
 statute, which cannot be extended to cases not fairly within its 
 general scope and purpose. Troy Public Works Co. v. City of 
 Yonkers, (1911) 145 App. Div. .(N".Y.) 527. Money advanced 
 for the purpose of purchasing material or paying for labor which 
 labor and material were intended to come within the lien law 
 will not entitle the person advancing the money to a lien. Godef- 
 froy v. Caldwell, 56 Am. Dec. 360. As was said by Sprague, C, 
 in an Ontario ease (Crone v. Struthers, (1875) 22 Gr. 248; see 
 also Mushlitt v. Silverman, (1872) 50 1ST. Y. 360:' "The lien 
 of the plaintiff is the creature of the statute and must be limited 
 by its provisions." [Sometimes Mechanics' Lien Acts are loosely 
 referred to as giving absolutely a lien to contractors, sub-contrac- 
 tors, material men and laborers. Such a statement. is calculated 
 to mislead. The statute gives only an inchoate right of lien. 
 "The statute does not give a lien, but only a potential right of 
 creating it." Edmonds v. Tiernan, (1892) 21 S. C. R. per Strong, 
 J., at p. 407. 
 
 As to procedure, any person claiming a lien can commence the 
 action; he is required to serve all persons whose claims of lien are 
 
32 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 of record; when that is done, these persons are as much parties to 
 the action for all purposes as though they had been parties in the 
 beginning. Bainesv. Curley, (1917). 33 D. L. E. 309. "Lienholder" 
 means a person having a valid lien. Builders Supply Co. v. 
 Huddlestone, (1915) 25 Man. L. K. 718. Although the burden 
 of the procedure rests upon the claimant who institutes the pro- 
 cess, the onus- may shift, (Dunn v. MoCallum, 14 0. L. E. 249) 
 as where an owner desires to invoke the statute to the extent of 
 having the lien upon any building confined to the value of the 
 material going into that building, the onus is upon him to shew 
 the facts, which must be peculiarly within his own knowledge. 
 Ontario Lime Assn. v. Grimwood, 22 0. L. E. 17. If in such a 
 case the facts cannot be ascertained, "less violence will be done 
 to the statute by construing it as indicated, than by rendering it 
 nugatory in many instances in which the legislature apparently 
 intended a lien to exist." Ontario Lime Assn. v. Grimwood, supra, 
 per Middleton, J. But under ordinary conditions the burden of 
 proof is on the lien claimant. Donnelly v. Butler, (1913) 216 
 Mass. 41, although the onus rests on the owner in an action by a 
 sub-contractor of shewing that nothing is' due from the owner to 
 the principal contractor. Brown v. Allen, (1913) 13 D. L. E. 350. 
 
CHAPTER III. 
 
 Construction of Mechanics' Lien Acts. 
 
 Mechanics' liens upon realty being in derogation of the com- 
 mon law and depending for their existence wholly upon statutes, 
 the courts throughout Canada have given a strict construction 
 to the provisions of Mechanics' Lien Acts, so far as they create 
 the right to a lien, but the courts adopt a liberal construction of . 
 the provisions which deal with the enforcement of the lien. These 
 provisions being remedial should be liberally construed, but, so 
 far as the terms creating the right to a lien are concerned, the 
 language of such statutes is strictly construed against the person 
 Claiming the lien. Such a lien should be fully enforced when the 
 claimant has brought himself within the provisions of the statute, 
 but its terms should not be extended to cases falling within the 
 reason, but not provided for by the language of the statute. The 
 courts cannot extend the statute to meet meritorious cases unpro- 
 vided for by the statute. A compliance with the provisions creat- 
 ing the right is essential before the lien can attach. The statute 
 itself gives only an inchoate right of lien, and although the trend 
 of amendments to this legislation has been in the direction of 
 extending the potential right of creating the lien, and the courts 
 in Canada will construe such legislation as remedial, yet these 
 courts cannot extend it to meet cases not within its scope, how- 
 ever meritorious such cases may be. The existence of the Hen 
 itself and its extent depend upon the provisions of the particular 
 Mechanics' Lien Act, and, therefore, legislation in other Acts 
 (such as The Land Titles Act, Alberta), cannot be considered as 
 neutralizing or- modifying the limitation upon the extent of the 
 lien which the Mechanics' Lien Act in question explicitly imposes. 
 City of Calgary v. Dominion Radiator Co., (1917) 40 D. L. E. 
 65. 
 
34 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 The filing of the lien is a simple and reasonable requirement 
 and can be done in a plain and obvious way, and a lien claimant 
 has no just ground of complaint if this portion of the statute is 
 strictly construed. This lien is just what the statute makes it, 
 .and the courts cannot enlarge or lessen it. Being the creature of 
 the statute it must be limited by the provisions of the. statute 
 .(Crone v. Struthers, (1875) 22 Gr. 248; Edmonds v. Tierhan, 
 (1892) 21 6. C. E. 407; Rolock v. Peters, (1900) 13 Man. L. E. 
 139 ; Haggerty v. Grant, (1895) 2 B.C.E. 176; Smith v. Mcintosh, 
 (1896) 3 B. C. E. 26, 28; Webb v.,Gage, (1902), 1 0. W. E. 327; 
 JRafuse v. Hunter, 12 B. C. E. 126), and courts are powerless to 
 change the conditions upon which the lien depends. 
 
 As Strong, J., said, in his decision in a case appealed under 
 £he British Columbia Mechanics' Lien Act: "It is quite clear 
 that when a statute gives a privilege in favor of a creditor, the credi- 
 tor must bring himself strictly within its terms, and there is 
 nothing in the statute in question here which prbvides that if a 
 lien has once been abandoned it is to be considered as being 
 abandoned merely for a time. If we should hold that it was to 
 be so considered we should be adding a clause to the Act." Ed- 
 monds v. Tieman, (1892) 21 S. C. E. 407. 
 
 In another case, where the Manitoba Act was being construed, 
 Killam, C.J., said : " But these liens are wholly of statutory crea- 
 tion, and in derogation of ordinary rights. They can be given 
 only such effect as the statute clearly warrants. While the whole 
 statute must be read together,- and one clause may assist in the 
 construction of another, I, cannot find in the other clauses such an 
 indication of an entire intention as should affect the natural inter- 
 pretation of the language in section 4, sub-section (2). That 
 clause seems to me to be the one which deals specifically with the 
 relative priority of liens and mortgages made after commence- 
 -ment of work or furnishing materials, and must govern upon 
 that point." Bobock v. Peters, (1900) 13 Man. L. E. 139. 
 
 In a British Columbia case, Begbie, C. J., said : " The same 
 statute which gives the inchoate right of lien, either for work or 
 
CONSTRUCTION OF MECHANICS' LIEN ACTS. 35 
 
 materials, declares that it shall absolutely cease unless an affidavit 
 be filed within thirty-one days, stating the enumerated particulars, 
 one of which is the address of the pwner. That affidavit consti- 
 tutes the lien (section 9 of 1888, section 8 of 1891) and in order 
 to adquire a right of this very unusual nature, the statute must 
 be strictly followed." At page 177 of the same report the Chief 
 Justice further says : " These statutes do hot confer ordinary 
 rights. They must be followed and construed at least as strictly 
 as the statutes regulating conditional bills of sale." Haggerty v. 
 Grant, (1895) 2 B. G. R. 176. 
 
 In a later case in the same province, Martin, J., said : " How- 
 ever unfortunate it is that the laborers have lost oj will lose most 
 of their wages, it would be still more unfortunate if," when they 
 pursue a statutory remedy which imposes a heavy penalty upon 
 persons who do not even employ them, the statute should be 
 strained to add to the existing burden of responsibility already 
 borne by such third persons." Wake v. C. P. L. Co., (1901) 8 
 B. C. R. at p. 360. See also observations of Irving, J., in Leroy v. 
 Smith, (1900) B. C. R., at p. 298, and of Maclennan, J.A., in 
 Gearing v. Robinson, (1900) 27 O. A. R. 364, and, as to the general 
 rule, Archibald v. Hubley, 18 Can. S. C. R. 116. 
 
 In an Ontario case, Meredith, C.J., said: "In some of the 
 American States a construction more favorable to the contractor . 
 has been given to the Mechanics' Lien Acts, the provisions of 
 which were somewhat like those of our Act, which are in question 
 here, though not identical with them, but we are, of course, bound 
 to follow the decisions of the Court of Appeal of this province in 
 preference to those decisions." Webb v. Gage, (1902) 1 O. W. R. 
 327. 
 
 In the Province of Quebec, where, although there is no 
 Mechanics' Lien Act, provisions of the civil law, similar in many 
 respects, exist, it has been held that a strict compliance with sue! 
 provisions is necessary to create a lien. La Banque d'Hochelaga 
 v. Stevenson, 9 Que. Q. B., [1900] A. C. 600. In a recent 
 
36 THE LAW .OF MECHANICS' LIENS IN CANADA. 
 
 case before the Quebec t3ourt of Review (Emard v. Gauthier, 
 (1916) 29 D. L. R., at p. 319), Mr. Justice Charbonneau said, 
 " We cannot, under the pretext of defining the intentions of the 
 legislature and to better the law, suppress a formal provision 
 which remains on the statute even if it was evident that it was by 
 mere forgetfulness that this provision was not made to disappear." 
 
 The only Canadian judgment' which is apparently not in com- 
 plete harmony with the principle of applying strict construction 
 to the sections creating' the lien is a judgment by Mr. Justice 
 Ferguson, in an Ontario case. It was contended that the regis- 
 tration of the liem was not good because the name of the person 
 who was the owner at the time was not mentioned in it, the former 
 owner having without the knowledge of the claimant sold and con- 
 veyed the property before the completion of the work. Ferguson, 
 J., after quoting from the decision in the case of Jones v. Shaw- 
 Kan, (1842) 4 Watts & Serg. 262, and stating that the statute 
 under which that decision was given was somewhat different from 
 the Ontario statute he was then construing, said : " Yet I am pi 
 opinion that the .reasoning of the ease to which I have referred 
 applies, especially when I look at the date of the conveyance to 
 Pousette and the allegations of the plaintiff ' that he did not know 
 anything about it, and I am of opinion that this alleged defect is 
 not fatal, although it has been said that the statute relative to 
 mechanics' lien being in derogation of the common law, should be 
 strictly complied with." Makins v. Robinson, (1884) 6 0. R. 1. 
 But in the Pennsylvania case quoted by Ferguson, J., it is import- 
 ant to note that Gibson, C.J., stated in his judgment that the 
 Pennsylvania statute, "expressly requires no more than the name 
 of the reputed owner, and it might be sufficient to file it (i.e., the 
 claim) against the past or present one." 
 
 In 1903 the Supreme Court of Michigan, in a case (Waters v. 
 Johnson, 96 N. W. 504) which involved the construction of 
 a statute similar in its terms to that construed in Jones 
 v. Shawhan, supra, dissented from the construction given in that 
 
CONSTRUCTION OF MECHANICS' LIEN ACTS. 37 
 
 case, and held that a lien claim which named a person who had 
 conveyed the property before the filing of the claim was insufficient, 
 and that the claimant could only be relieved from such mistake 
 on proof of facts showing that the error was justly chargeable to 
 the grantee of the property so as to estop him from taking advan- 
 tage of the error. 
 
 Where an owner may be compelled to pay twice by the statute 
 such legislation is highly penal and it is but just to construe it 
 strictly against such a result. • Eecent decisions in other American 
 courts generally adopt the view that Mechanics' Lien Acts must 
 be strictly construed with reference to all requirements upon 
 which the right to a lien depends. Turnes v. Brenckle, 249 111. 
 394. As the mechanics' lien law is contrary to the course of the 
 common law, any ambiguity must be resolved against the party 
 seeking to enforce a lien under it. Builders' Material Co. v. John- 
 son, 158 111. App. 413. Provisions which require an owner to pay 
 a debt which he did not contract or which he may have already 
 paid to the contractor should be construed strictly against the 
 claimant. McNab <& Harlin Mfg. Co. v. Paterson Bldg. Co., 
 (1907) 72 1ST. J. Bq. 929. 
 
 But as to the provisions dealing with the enforcement of the 
 lien, the legislation in some of the provinces of Canada now re- 
 quires only a substantial compliance. Mallett v. Kovar, 14 W. L. 
 E. 327; Flack v. Jeffrey, 10 Man. L. E. 514; Poison v. Thomson, 
 (1916) 29 D. L. E. 395; Ontario Lime' Association v. Grimwood, 
 -(1910) 22 0. L. E. 17, and the prevailing opinion is that while 
 claimants must bring themselves strictly within the wording of 
 the statute which provides for the creating of the lien, yet when 
 a lien attaches, the provisions of the law upon the subject being 
 remedial, a liberal construction will be put upon the statute fof 
 the purpose of accomplishing its objects. Nobbs v. C. P. B., 
 (1913) 6 W. W. E. 759; Coughlan V. National Construction Co., 
 (1909) 14 B. O. E. 339; Poison ^.'Thomson, (1916) 26 Man. 
 L. E. 410; 29 D. L. E. 395; Lays v. Hurley, (1913) 215 Mass. 582. 
 
38 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 It may now be considered as well settled law that the sections 
 creating the right to a lien cannot be extended beyond the plain 
 sense of their words, although the same rule will not be followed 
 when other sections of the Act, dealing with the enforcement of 
 the lien, are the subject of construction. There is, indeed, no rule 
 of construction applicable uniformly to every provision of such an 
 ., Act. So far as the provisions which create the right to a lien are 
 concerned, a rule of construction as stated by an eminent authority 
 might be appropriately invoked: — 
 
 "Statutes which encroach on the rights of the subject, whether 
 as regards person or property, are similarly subject to strict con- 
 struction." Maxwell on Statutes, 3rd ed., 399. But when the 
 other provisions of a Mechanics' lien Act, dealing with the en- 
 forcement of the lien, are the subject of construction, a tendency 
 to give these sections a broad and benign interpretation is justifi- 
 ably shown by the courts in the various Provinces of Canada, and 
 there appears a disposition to follow the advice of Lord Mansfield, 
 given in connection with another branch of the law, but quoted 
 approvingly by a Pennsylvania court, in respect to the construc- 
 tion of Mechanics' Lien Acts, to "avoid. entangling the right in 
 a net of form." 
 
 In one Ontario case, Meredith, J., stated a canon of construc- 
 tion which will probably be followed in the various courts in Can- 
 ada. „ Eef erring to the mechanics' lien laws, he said : " These 
 essentially remedial Acts are to be given such fair, large and 
 liberal construction 1 and interpretation as will best ensure the 
 attainment of those objects. Effect should not be given to techni^ 
 cal objections founded upon matters which in no way have pre* 
 judiced or could prejudice any one. ... It was never in- 
 tended that the benefits of the Acts should be frittered away by 
 requiring the skill of a special pleader to secure them." Bicloen-, 
 ton v.Dahirij (1891) 20 0. R. 702; see also observations of Boyd, 
 C, in Crerar v. G. P. B. Co., (1903) 5 0. L. E. 383, 2 0. L. E. 107. 
 
 In the case in question, the owner had purchased, with notice 
 
CONSTRUCTION OF MECHANICS' LIEN ACTS. 39 
 
 of all the facts, and invoked purely technical grounds in seeking 
 to have the property declared to be unaffected by a claim of lien. 
 
 In another Ontario case (Praig v. Cromwell, (1900) 27 0. A. E. 
 587), Osier, J.A., in referring to the question of sufficiency of the 
 notice in writing required by section 11, sub-section 2, said : — 
 
 "It may be that if the notice were to be read as pleadings, civil 
 and criminal, were read fifty years ago, fatal defects might be 
 picked out in it. But it is not intended to be the subject of 
 subtle criticisms and trifling objections." 
 
 In a Manitoba case, Killam, C.J., after quoting section 17 of 
 the Manitoba Mechanics' Lien Act, said: — 
 
 ""This latter clause appears divisible into two parts. First, 
 only substantial compliance with sections 15 and 16 is required, 
 and, secondly, no failure in such compliance, in however sub- 
 stantial a degree, is to invalidate the lien unless some party is 
 prejudiced, provided there is registration of a claim. I think 
 that the onus on the question of prejudice is upon the party ob- 
 jecting to the registered claim. The defect is not to invalidate 
 the lien, unless in the opinion of the judge there is prejudice to 
 some one. That is, the judge must positively form the opinion, 
 for which purpose he must have some evidence either direct pr 
 arising out of the circumstances and the nature of the defect. In 
 the present case there is nothing to suggest that any of the par- 
 ties interested saw the registered statement of claim or knew its 
 contents or was in any way affected by the error." Robock v. 
 Peters, (1900) 13 Man. L. E. 139. 
 
 An observation made by Chancellor Boyd points to an addi- 
 tional principle which jhight be adopted in the construction of 
 Mechanics' Lien Acts. That eminent judge said : " If you give a 
 very latitudinarian interpretation to the definition of 'owner,' it 
 is possible to read such a ease as this into the Act, but I am against 
 giving such a meaning to the words when the result is to charge 
 one man's land for another man's debt." See Graham v. Williams, 
 (1S85) 8 O. E. 478. Boisot, after referring to the difficulty of 
 
40 THE LAW 0? MECHANICS' LIENS IN CANADA. 
 
 harmonizing the conflicting decisions in various States, and point- 
 ing out the^ distinction between the "remedial" sections of a 
 Mechanics' Lien Act and the ( other portions, propounds a rule 
 which is in line with the observation of Boyd, C: "It follows, 
 then, that those provisions of .the Mechanics' Lien Statutes which 
 make a mail's property liable for his dehts are remedial, and 
 should be liberally construed;, while those provisions that make 
 his property liable in a case where he is not personally liable, 
 create a new right in .derogation of the common law, and should be 
 strictly construed." 
 
 In a later Ontario case '(Gearing v. Robinson, (1900) 27 0. A. 
 E. 364), Maclennan, J. A., adopts a similar attitude in construing 
 the statute, and says : " This may seem a very strict and literal 
 construction of the Act, but, if it is, as I think it is, the plain mean- 
 ing of the language of the legislature, we must so construe it, and 
 I do not think we ought to change 'and' into 'or,' or strain the 
 language in order to charge one man's land with another man's 
 debt." 
 
 It is but gust to require that an intention to cireate such a 
 charge should be plainly and unmistakeably expressed in the 
 statute, in language which excludes any other interpretation, but 
 after the lien has actually attached, the better opinion seems to 
 favor the view that the other provisions of the statute should 
 receive a liberal construction. The bbject of a Mechanics' Lien 
 Act is to secure and make available as far as possible to those best 
 entitled to it the money which the owners have contracted to pay 
 and for which they have received value. This legislation was 
 not passed for the purpose of making owners pay for things not 
 contracted for by them and of which they have not had the bene- 
 fit (Brooks Sanford Co. v. Theodore Telier Construction Co., 
 (1910) 22 O. L. E. 176), but where a lien is created by the statute 
 it should be construed, if possible, so as to make the lien co-exten- 
 sive with the benefit, and to avoid defeating the spirit of the 
 statute by a too literal adherence to its letter. Ontario Lime 
 Association v. Grimwood, (1910) 22 0. L. E. 17. - 
 
CONSTRUCTION OF MECHANICS' LIEN ACTS.' 41 
 
 In delivering the judgment of the Manitoba Court of Appeal 
 in a recent case (Poison v. Thomson (1916) 29 D. L. B.' 395), 
 Cameron, J. A., said: "We were urged to give the statute a strict 
 construction, particularly in view of the position of the, defendant, 
 a mortgagee, whose security may be impaired by priority being 
 given to an indebtedness to which he was not a party, and with 
 which he had nothing to do. But he might have protected him- 
 self, as to advances actually made, by prompt registration. In 
 any event, the authorities now seem to indicate that it is for the 
 courts to work out, as best they can,, the problems arising under 
 the Act by giving effect to its spirit rather than its letter, and it 
 is undeniably the intention of the statute to afford protection to 
 the men who supply labor and materials." Courts will not favor 
 a construction which would render a Mechanics' Lien Act nuga- 
 tory in many instances in which the legislature apparently in- 
 tended a lien to exist. Ontario Lime Association v. Grimwood, 
 (1910) 22 0. L. E. 17. It would be intolerable if persons hon- 
 estly entitled to receive money should be" deprived of all chance of 
 asserting their rights, by reason of some petty — or even some grave 
 slip—in practice ; and especially so in the administration of an Act 
 which is so clearly intended to enable the poor man to procure his 
 wages, and the supplier of materials to receive pay for his materials 
 in a cheap, simple and expeditious manner." Barrington v. Martin, 
 (1908) 16 0. L. B. 635, at 640, per Biddell, J. 
 
 In view of the foregoing statements, it appears plain' that 
 courts in Canada, once the lien is acquired, will give a liberal 
 construction to provisions dealing with procedure and will not be 
 disposed to permit mistakes of procedure to defeat the lien or to 
 nullify the purposes of the legislation. 
 
 As to questions of practice and procedure under Mechanics' 
 Lien Acts, an eminent Ontario judge said: 
 
 "The purpose of the statute is to prevent multiplicity of 
 actions for small claims, in which the Costs would be enormously 
 out of proportion to and in excess of the sums claimed; and these 
 
42 THE LAW OF ■ MECHANICS' LIENS IN CANADA. 
 
 provisions, and the whole purpose of the Act, and the proceedings 
 of and in the action, are so widely different from the ordinary 
 creditor's action that the rules which are applicable to such latter 
 actions cannot be held to govern the peculiar statutory remedy of 
 these lien holders." McPherson v. Gedge, (1883) 4 0. E. 246. 
 
 It seems now to be recognized by the courts in the various 
 provinces of Canada that the practice under the Mechanics' lien 
 Acts is sui generis, and is not to-be governed by the established 
 practice respecting class actions. iSee observations of Masten, J., in 
 Baines v. Curley, (1916) 33 D. L. E. 309. 
 
 There are conflicting decisions throughout the 'United States 
 in the construction of Mechanics' Lien Acts, but decisions of 
 Massachusetts and New York courts accord substantially with -the 
 principles of construction adopted by courts in Canada. '"Although 
 when a lien attaches, the provisions of law upon the subject being 
 remedial, a liberal construction will be put upon the statute for 
 the purpose of accomplishing its objects, yet this applies only to 
 liens which have attached. Upon the ; question whether a lien 
 attaches, a different rule of construction obtains. Liens are in 
 derogation of the common law; they may create an interest in 
 land by parol, and that interest may be a secret interest.. The 
 court is not authorized to extend the law beyond the causes specific- 
 ally provided for. It cannot say that the statute by implication 
 includes labor not within its terms." Trash v. Searle (1876) i21 
 Mass. 229, per Lord; J. : The statute is remedial and intended to 
 protect those who lawfully enhanced the value of land by the ex- 
 penditure upon it of material or labor. Shaughnessy v. Isenberg, 
 (1912) 213 Mass. 159, 162; Thurston v. Blunt, (1914) 216 Mass. 
 264. The rule in New York has been stated to be that the Act 
 should not be strictly construed except as to the provisions by 
 which the property of a third person may be incumbered. Hub- 
 hell v. Schreyer, 14 Abb. Pr. (N.S.) 284. In a leading ease in 
 New York, the' question of construction of the New York Lien 
 Act was discussed. That Act requires the notice of lien to state 
 
CONSTRUCTION OF MECHANICS' LIEN ACTS. 43 
 
 when the first item of work was done, and the notice of lien in that 
 ease failed to make any such statement, although it complied with 
 the other ' provisions of the statute. Section 22 of that Act ex- 
 pressly declares that the statute is to be construed liberally. Cul- 
 len, J., in delivering the judgment of the court, said : " But under 
 the most liberal rule of construction we cannot find anything in 
 the notice that even attempts to state when the first item of work 
 was done, or anything from which that time might be inferred. 
 It is true that the particular advantage or object of requiring this 
 fact to be stated is not readily apparent, but the statute has ex- 
 pressly required it. Errors in the notice may be disregarded, and 
 it is not necessary that the precise verbiage of the law should be 
 followed. But the provision of the statute that the law shall be 
 construed liberally does not authorize the courts to entirely dis- 
 pense with what the statute says the notice shall contain. We are, 
 ' therefore, constrained to hold the notice of lien insufficient." 
 Mahley v. The German Bank, (1903) 174 N. T. App. 499. 
 
 An important New York case serves to illustrate the liberal 
 construction of the New York statute respecting mechanics' liens. 
 The chapter under which the plaintiff undertook to acquire a lien 
 provided that " at any time before the whole work to be performed 
 by the contractor for the city is completed or accepted by the city, 
 and within thirty days after the same is so completed or accepted, 
 any claimant may file notice stating the residence of the claim- 
 ant, verified by his oath or affirmation, stating the amount claimed, 
 etc." The verification was by an agent of the claimant, stating 
 "that he is the agent of the claimant . . . mentioned in the 
 foregoing claim, and that the statements therein contained are 
 true to: his own knowledge or information and belief." Haight, 
 J., said : " It appears to us that this statute should receive a 
 liberal construction. Indeed, the general lien law of the State 
 provides that it shall be construed liberally, etc. A very large 
 proportion of the business of the country is carried on by agents, 
 whose principals may have but a slight knowledge of the details of 
 
44 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 , the work and who may be absent in other parts of the world. 
 Agents are generally recognized as possessing the powers of their 
 principals in the transaction of their business and in the preserva- 
 tion of their properties and rights. In construing the Act in ques- 
 tion we think the act of the agent should be deemed to be that of 
 the principal, and that it was so contemplated by the legislature." 
 McDonald v. Mayor, etc., of New York, (1902) N. Y. App. 409. 
 "Adherence to the terms of the statute is indispensable, but 
 the rule must not be pushed into such niceties as serve but to per- 
 plex and embarrass a remedy intended to be simple and summary, 
 without in fact adding anything to the security of the parties hav- 
 ing an interest in the building sought "to be encumbered. Certainty 
 to a common intent has, therefore, always been held to suffice." 
 Waters v. Goldberg, (1908) 124 App. Div. N. Y. 511. 
 
 The Massachusetts Supreme Court has declared its view on this 
 question of construction in an instructive ease. The facts were 
 that under an entire contract to construct and install in the re- 
 spondent's buildings a fire extinguishing system of a specified kind 
 for a stated price, a sworn statement was filed in the Eegistry of 
 Deeds while the work was going on and about ten days before it 
 was completed. It was held that such a statement -filed before the 
 work was done or the debt was due did not fulfil the requirements 
 of the Act. Under section 1 of the Act in question it is only " a 
 person to whom a debt is due " who can file a statement and estab- 
 lish a lien. By section 6 he is authorized to file his statement 
 within thirty days after he ceased to labor on or furnish labor or 
 materials for the building or' structure. Section 7 relieves the 
 claimant from any injurious effect of an inaccuracy in stating 
 " the amount due for labor or materials " unless he has " wilfully 
 and knowingly claimed more than is due to him." 
 
 Knowlton, C.J., said: "We are of opinion that these various 
 
 provision's of the statute do not authorize the filing of a statement 
 except where work and labor has been done under such circum- 
 stances as to create a debt which is due, and which is payable then 
 
CONSTRUCTION OF MECHANICS' LIEN ACTS. 45 
 
 or at some future time. This is the construction which has been 
 put upon similar statutes by the courts. The cases which seem 
 to hold differently are all, or nearly all, under statutes which re- 
 quire the filing within a stated time after an event, the happening 
 of which has no important relation to any of the facts to be em- 
 bodied in the certificate or statement." General Fire Extinguisher 
 Co. y. Chaplin, (1903) 183 Mass. 376. 
 
 The judgment concludes by using precisely the same words which 
 were used in a Massachusetts case more "than twenty years previously : 
 "A lien of this kind can be preserved and enforced only by a strict 
 compliance with the requirements of the statute. There are no equi- 
 ties to be invoked in aid of it." Gale v. Blaikie, 129 Mass. 206. The 
 Supreme Court of the United States has said ; , "Although me- 
 chanics' liens are the creation of statute, the legislation, being 
 remedial, should be so construed as to effectuate its object." 
 Springer Land Association v. Ford, (1897) 168 TJ. S. 513. The 
 reason stated by the United States Circuit Court of Appeals, Mis- 
 souri, for a liberal construction of statutes which gave liens to 
 laborers and materialmen, ig that such men cannot recover back 
 their labor or material, and the improvements on which they are 
 placed are ordinarily enhanced by their value. Hooven v. Feather- 
 stone, (1901) 49 C. C. A. 229. 
 
 The view expressed by the Supreme Court of Illinois on this 
 question is that the right to a mechanics' lien is a cumulative 
 remedy existing by statute in derogation of the common law, and 
 statutes granting such right must be strictly construed. Harvey 
 & Mose Plumbing Co. v. Wallace, (1901) 99 111. App. 212, 
 affirmed; McPugh Co. v. Wallace, 198 111. 422. And to enforce a 
 lien there must be a substantial compliance with the require- 
 ments of the lien law. Dunham v. Woodworth, 158 111. App. 486. 
 See Godfrey Lum. Co: v. Kline, (1911) 167 Mich. 629. Eemedial 
 provisions should be construed liberally and unless a variance is 
 palpable and material it will not be deemed fatal. Stepina v. 
 Conklin Lumber Co., (1907) 134 111. App. 173. 
 
46 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 In Maine the courts favor a liberal construction of the statute. 
 Shaw v. Young, 87 Me. 271; Westcott v. Bunker, 83 Me. 499; 
 Burling v. Gould, 83 Me; 134. 
 
 i "We must not be hypercritical when scanning the species of 
 lien and estimating its sufficiency," etc. Calhoun v. Mahar, 14 
 Pa. 56, 58, quoted approvingly in Wilson v.Canevin, (1910) 226 
 Pa. 362. But a provision that the lien law shall be construed 
 liberally to secure the beneficial interests and purposes thereof, 
 does not authorize the court" to dispense entirely with what the 
 statute says a notice shall contain. Bradley v. Huber Co., (1911) 
 146 App. Div. (K- Y.) 630. 
 
 The policy of the law does not favor forfeitures, and a provision 
 in a Mechanics'- Lien Act which invalidates the entire claim if 
 the " bill of particulars " shall " wilfully or fraudulently " mis- 
 state any of the matters directed to be included therein, is to fee 
 construed strictly. Buchanan, v. Emstem, (1914) 87 N. J. L. 307. 
 
 In the Interpretation Acts of various provinces of Canada 
 there is a provision which enacts that every chapter of the Eevised 
 Statutes shall be deemed remedial and shall be construed liberally, 
 unless such construction is inconsistent with, the intent and object 
 of the particular Act.. But this is a general rule of construction 
 and is necessarily subordinate to particular cases. 
 
 Retrospective and Repealing Acts. 
 
 The question whether a Mechanics' Lien Act is to be construed 
 retrospectively so as to apply to past contracts depends primarily 
 upon the precise language of the Act. 
 
 The Interpretation Acts of the various provinces often have an 
 important bearing on the construction of the Mechanics' Lien 
 Acts. A n illustration of the- application of the Interpretation Act 
 is afforded by an Ontario case. Walker v. Walton, 1 0. A. R. (Ont.) 
 579. The plaintiff registered a lien under the Mechanics' Lien 
 Act of 1873, on the 14th of August, 1874, for the price of machin- 
 ery furnished on the 12th of the same month. The price was pay- 
 
CONSTRUCTION OE MECHANICS* LIEN ACTS. 47 
 
 able in instalments, the last of which fell, due on the 4th of May, 
 1875. A bill to enforce the lien was filed on the 7th of July, 
 1875, being within the 90 days from the expiry of the period of 
 credit prescribed by section 4 of the Mechanics' Lien Act of 1873. 
 Section 14 of the Mechanics' Lien Act of 1874, which came into 
 force on the 21st December, 1875, enacted that "every lien shall 
 absolutely cease to exist at the expiration of thirty days after the 
 work shall- have been completed or the machinery furnished, unless 
 in the meantime proceedings shall have been taken to realize the 
 claim under this Act," and section 20 repealed all Acts inconsist- 
 ent therewith. Held, jeversing the decree in the preceding case, 
 that even if the Act of 1874 repealed the Act of 1873, the plains 
 tiff's lien was saved by subsection 4 of section 7 of the Interpreta- 
 tion Act, which provides that the "repeal of an Act at any time 
 shall not affect any act done or any right or rights of action, exist- 
 ing, accruing, accrued or established . . . before the time 
 when such repeal shall take effect." 
 
 The repeal of a mechanics' lien law during the progress of the 
 work for which a lien is claimed does not cut off the lien claim- 
 ant's right for the work already done, where the repealing statute 
 re-enacts and continues the lien law, with some changes in mat- 
 ters of procedure only. Bear Lake & B. W. W. & I. Co. v. •Gar- 
 land, (1896) 164 U.S. 1. 
 
 A Mechanics' Lien Act by one section repealed previous Me- 
 chanics' Lien Acts and as it enacted no lien for materials, no such 
 lien existed. Albion I. Works v. A. 0. U. W., (1895) 5 B. C E. 
 122, note. 
 
 Where a statute is passed changing a law it is generally con- 
 strued to apply to the facts coming into existence after the pas- 
 sing of the statute. See Irwin v. Benyon, 4 Man. L. E. 10 ; Moore 
 V. Protestant Hist., 5 Man. L. E. 49; See v. Kolodny (1917) 227 
 Mass. 446. 
 
 Mechanics' lien laws are not construed to have any retrospec- 
 tive effect unless such construction is clearly and unmistakeably 
 
48" THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 " required by the words of the Act. Irwin v. Benyon, 4 Man. L. R. 
 10; Horn "Mfg. Co. v. Steelman, 215 Pa. 187; Howard v. American 
 Boiler Co., 68 111. App, 566; French v. Hussey, (1893) 159 Mass. 
 206; Pierce v. Cabot, 159 Mass. 202; Benton v. Wickwire, (1873) 
 54 JST. Y. 229. 
 
 Where a later Act does not expressly repeal the former one, and 
 they are not so inconsistent that they cannot stand together, the 
 two Acts' are construed together as if parts of a single statute. 
 Gilson V. flmery, (1858) 11 Gray (Mass.) 430; Collins v. Drew, 
 (1876) 67 N..Y. 149. 
 
 A lien may be acquired under a statute passed before the work 
 was done or materials furnished, and although the contract there- 
 for was ma.de before such enactment. Donahy v. Clapp, 12 Gush. 
 (Mass.) 440; see Bourgette v. Williams, 73 Mich. 208, 216. 
 
 As a general rule, the law in force at the .time the work was 
 done or materials furnished) governs (Eidendrath Co. v. Geb- 
 hardt, 222 111. 113) ; but the law in force at the time the lien is 
 perfected will control proceedings, in enforcing the lien. Kendall 
 v. Fader, 190 111. 294. 
 
 Where a Mechanics' Lien Act repealed all Acts inconsistent 
 with it, but was to apply only to contracts, thereafter to" be made, 
 contracts previously made may be governed by the former Act 
 (Connor v. Lewis, 16 Me. 268; see Turney v. Saunders, 5 111. 527), 
 but a provision in a Mechanics' *Lien Act which is manifestly in- 
 consistent with an antecedent law must prevail. Shilling v. Tem- 
 pleton, 66 Ind. 586; Heckman v. Pmkney, 81 .N. Y. 211. Where 
 a notice of lien was filed and proceedings commenced prior to a 
 law which declared that "liens shall in all cases cease after one 
 year, unless by order of court, the lien is continued," the statute 
 was not construed retrospectively and it was held that the lien con- 
 tinued after the expiration of the year. Fitzpatrick v. Boylan, 57 
 N. Y. 433. 
 
 If under a mechanics' lien law, materials had been furnished 
 to the owner of the property, the right of lien becomes a vested 
 
CONSTBUCTION OF MECHANICS" LIEN ACTS. 49 
 
 one, and the repeal of the law will not destroy such a lien.- Hol- 
 com v. Boynton, 151 111. 294; Boynton v. Holcom, 49 111. App. 
 503. 
 
 The remedy of a repealing statute will be applied to previously 
 vested liens if such a remedy is adequate, but if the former law is 
 repealed, and no adequate remedy provided by the repealing law, 
 the court will enforce vested liens according to the remedy of the 
 repealed law. Subject to this exception, the rights of the parties 
 are fixed by the law in force when the contract was made,- but 
 such rights are to be established and enforced by the law existing 
 at the time when the suit was brought. Phillips, sec. 29 ; Ooodbub 
 v. Estate of Horning, 127 Ind. 182, 192. A lien which attached 
 before the enactment of a statute making absolute the inchoate 
 interests of married women is not affected by that legislation, 
 though the foreclosure and sale are subsequent thereto. Buser v. 
 Shepard, 107 Ind. 418, 419. 
 
 In concluding this chapter it may be observed that the trend of 
 judicial decisions is in the direction of liberal construction of this 
 legislation, but the real difficulty experienced by the courts is, 
 while endeavoring to apply a liberal construction to various provi- 
 sions of this legislation, to avoid, at the same time, a construction 
 that would compel an owner to pay twice for the same thing. 
 
CHAPTER IV. 
 
 Peopeett which mat be Subject to Lien. 
 
 In ascertaining the character and extent of property which 
 may be subject to a lien, it is necessary first to examine the pro- 
 visions of the Mechanics' Lien Acts which 'define the scope of 
 the lien. 
 
 Some of the Mechanics' Lien Acts in Canada expressly include 
 municipal corporations as within the definition of " owner." 
 Where municipal corporations are not expressly included in such 
 definition, there are conflicting decisions upon the question 
 whether a right to a lien arises in a case where the work has been 
 done on a public building, such as a schoolhouse, which is not 
 liable to sale in execution. Holmested, at p. 30, refers to a deci- 
 sion of Proudfoot, J., in Robb v. Woodstock School Board, in 
 which the right of lien was denied because such buildings are 
 not liable to sale in execution. In Manitoba it has been held that 
 a public school building was not exempt from the operation of the 
 mechanics' lien law. Moore v. Protestant School District of 
 Bradley, (1897), 5 Man. L. E. 49, distinguishing Scott v. Burgess, 
 (1859) 19 U. C. Q. B. 28. The American cases cited in the Mani- 
 toba case all adopt the view that public schoolhouses are exempt, 
 and subsequent American decisions uphold that view. See City 
 of Salem v. Lane, (1900) 90 111. App. 560, affirmed (1901) 6 N. 
 E. 37, which decides that the property of a municipal corporation 
 cannot be sold to satisfy a mechanics' lien. 
 
 In another Manitoba case (McArthur v. Dewar, 3 Man. L. R. 
 72), the test question was stated to be whether such property is 
 liable to sale under execution. In Saskatchewan it has been de- 
 cided that a schoolhouse may be the subject of a lien. Lee v. 
 Broley, (1909) 11 W. L. R. 38, 2 Sask. L. R. 288. 
 
 All the later cases in the other Provinces of Canada hold that 
 
PROPERTY WHICH MAT BE SUBJECT TO LIEN. 51 
 
 public school buildings and the lands upon which they are erected 
 are not exempt from the operation of the Mechanics' lien law. 
 Benson v. Smith & Son, (1917) 31 D. L. E. 416; Hazel v. Lund 
 (B.C.) 25 D. L. E. 204; Connely v.' Haveloch School Trustees, 
 (1912) (KB.) 9 D. L. E. 875; General Contracting Co. v. City 
 of Ottawa, 16 0. W. E. 479. The Ontario Mechanics' Lien Act 
 and other provincial Acts with corresponding provisions were not 
 meant to be applicable to private property only; nor to such pro- 
 perty only as is exigible under ordinary writs of execution. But 
 in the absence of express statutory provision it would seem, ac- 
 cording to some decisions, that the property held by a municipal 
 corporation for public purposes is not subject to a mechanics' 
 lien. Lessard v. Revere, (1898) 171 Mass. 294; Staples v. Somer- 
 ville, (1900) 176 Mass. 237-242. 
 
 The ground of decision in the Massachusetts cases is that the 
 buildings are held for a public use, and that it is against public 
 policy in the absence of express provision to the contrary, that the 
 instrumentalities for carrying on the government should be the 
 subject of seizure and sale for debt. See also Young v. Inhabi- 
 tants of Falmouth, (1903) 183 Mass. 80, and Goss v. Greenleaf, 
 (1904) 98 Me. 436, which cases hold that a building erected as a 
 public library is exempt from the operation of a mechanics' lien law, 
 the grounds of public policy which exempt such property from 
 seizure on execution being equally applicable in respect of me- 
 chanics' liens. 
 
 In the absence of express statutory enactment, the same princi- 
 ples have been held to apply to any building erected exclusively for 
 public purposes. Under an Act to simplify the procedure for 
 enforcing mechanics' lien (53 .Vict. ch. 137, Ont.) an application was 
 made by a sub-contractor to determine whether the plaintiff was 
 entitled to a lien on a building known as " The House of Eefuge," 
 and the lands used and enjoyed therewith. This property was 
 vested in the corporation of Hamilton, which erected the building 
 "for public, beneficial and charitable purposes," and the Master 
 
:h 
 
 52 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 held that the said house and lands were, therefore, of such a 
 character as not to be liable to sale under execution, and conse- 
 quently no lien attached (Guest v. Hahnan, (1895) 15 C. L. T. 61). 
 
 The general principles which should apply in considering this 
 question whether a statute creates a mechanics' lien against pro- 
 perty held by a municipal corporation are discussed with much 
 ability in a New York case {Leonard v. Pity of Brooklyn, (1887) 
 71 N. Y. 498), which held that no lien was enforceable against the 
 property. 
 
 It should be stated, however, that the. Lien Act construed 
 in that case, after providing for instituting and prosecuting the 
 hen action, contains this further provision: "That such action 
 shall be governed and the judgment thereon enforced in the same 
 manner as upon issues joined and judgments rendered in all 
 other civil actions aforesaid." It was a natural conclusion, there- 
 fore, that the lien claimant was in no better position than an 
 • ordinary creditor against the municipal corporation. The judg- 
 ment is referred to here because it states in the strongest form 
 the reasons against creating a lien upon municipal property or 
 recognizing it as created by implication, and in those provinces of 
 Canada such as Nova Scotia, the Lien Acts of which contain no ex- 
 press reference to municipal corporations, the judgment would be of 
 interest, particularly the concluding portion of it, which says: 
 " To make such a material alteration the law should be plain, 
 explicit and clear, and there is no ground for holding that it was 
 the intention of the law makers to confer upon a certain class of 
 creditors the right to a lien upon property held for public use by 
 a municipal government unless there is an express provision to 
 that effect." Land set apart by a city for the erection thereon of 
 a building for educational purposes by the trustees of a private 
 charitable trust cannot be bound by a mechanics' lien for labor or 
 material furnished to the building erected thereon. Taylor Lum- 
 ber Co. v. Carnegie Institute, (1909) 225 Pa. 486. 
 
 But in a case decided by the Supreme Court of New Bruns- 
 
PROPERTY WHICH MAT BE SUBJECT TO LIEN. 53 
 
 wick (Connely v. Haveloch School Trustees, (1912). 9 D. L. E. 
 875), Chief Justice Barker said: "The Mechanics' Lien Act was 
 passed in the interest of workmen and contractors so as to afford 
 them some security by way of a lien on the buildings which had 
 been created by their labor. If the principle is, worth anything, it 
 is equally valuable in the case of a school building paid for by an 
 assessment of the inhabitants of a school district as in the case of 
 an individual taxpayer erecting a building for his private pur- 
 poses." 
 
 In all probability future legislation in provinces not having 
 a provision similar to the Ontario enactment, will adopt such a 
 provision in the interests of the workmen and contractors and 
 thus deal justly and finally with this question. 
 
 A church, not being public property, is not exempt from the 
 operation of a mechanics' lien law. Dewing v. Wilbraham Society, 
 (1859) 13 Gray 414; Peaoody v. Lynn Society, (1863) 5 Allen 
 Mass.) 540. In Pennsylvania it has been decided that a burial 
 ground is not subject to a lien (Beam v. Methodist Episcopal 
 Church, 3 Clark (Pa.) 343). Lands of a municipality actually 
 required for its use such as fire halls and police stations may be 
 exempt on the grounds of public policy and public convenience, 
 although some classes of municipal property may be within the 
 provisions of the lien law. General Contracting Co. v. Ottawa, 
 (1909) 14 0. W. E. 749, 16 0. W. E. 479, 1 0. W. N/911. 
 
 Mechanics' Lien Acts in Canada, specifically give a lien against 
 a " wharf." Such terms as " wharf " or " building " are liberally 
 construed. A statute giving a lien on wharves " and other struc- 
 tures connected therewith " extends to all structures on or con- 
 nected with a wharf. Collins v. Drew', (1876) 67 N. Y. 149. The 
 word "wharf" as used in two statutes in England, was held to 
 include a floating structure carrying cranes for loading and un- 
 loading, vessels, and which was moored in the Eiver Thames, 500 
 feet from the shore, by chains fastened to piles driven in the bed 
 of the river. There was no connection with the shore except by 
 
Wl,/:; 7 
 
 i 
 
 54 THE LAW OF MECHANICS LIEN'S IN CANADA. 
 
 boats. Ellis v. Cory, [1902] 1 K. B. 38. See also Haddock v. 
 Humphrey, [1900] 1 K. B. 609; Zerara/ v. Harrison, [1902] 2 
 K. B. 168. A workman is entitled to a lien for work upon the 
 part of a sewer extending below watermark into the ocean. Baker 
 v. Uplands (1913), 24 W. L. E. 768. 
 
 A minor cannot subject his property to a lien unless, after 
 majority, he ratifies the contract. Alvey v. Reed, 115 Ind. 148; 
 McOarty v. Carter, 49 111. 53. 
 
 A wife's inchoate right of dower is not subject to a mechanics' 
 lien. Gove v. Gather, 23 111. 634; Bishop v. Boyle, 9 Infl. 169, 68 
 Am. De,c. 615. 
 
 Eoads laid out by private persons cannot be regarded as public 
 highways before dedication. Vannatta v. Uplands Ltd., (1913) 
 25 W. L. B. 85. 
 
 Eailwats. 
 
 In dealing with the question whether a railway in any province 
 of Canada is subject, to mechanics' liens, two classes of railways 
 must be considered: — \ 
 
 (a) Railways constructed and in operation under provincial 
 legislation and not declared by the Parliament of Canada to be 
 for the general advantage of Canada; 
 
 (6) Railways between two or more provinces or extending 
 beyond the limits of a province, and railways declared by Act 
 of the Parliament of Canada to be for the general advantage of 
 Canada. 
 
 Railways in class (a) are under the legislative jurisdiction of 
 the provincial legislature, and it is doubtful whether existing 
 legislation in Ontario or other provinces is sufficiently plain and 
 explicit to subject such railways to mechanics' liens. 
 
 Under a former Ontario Mechanics' Lien Act it had been 
 held that the lands of a railway company were exempt from the 
 operation of that Act, the ground of the decision being that it was 
 against public policy that railways being essential to the public 
 
PROPERTY WHICH MAT BE SUBJECT TO LIEN. 55 
 
 use and convenience should be liable to be cut in pieces and sold 
 under legal process. King v. Alford, (1885) 9 0. E. 643; 
 Breeze v. Midland Railway Co., (1879) 26 Gr. 225. 
 
 Section 6 of the present Act, however, includes " any . . . 
 railway." Moreover, sec. 2, sub-sec. (c) includes " any . . . 
 railway company " as within the definition of. " owner," and sec. 
 17 (3) provides for the sufficiency of the description of lands 
 where a lien is registered against the lands of a railway com- 
 pany. Nevertheless, it having been judicially declared in con- 
 struing 'the former Ontario Act that railways were exempt from 
 the operation of that Act on grounds of public policy, any sub- 
 sequent legislative intent to reverse that policy should be plainly 
 and unmistakeably expressed. The grounds of the decision in 
 King v. Alford, 9 O. E. 643, are just as strong now as before the 
 amendments to the Mechanics' Lien Act were made, and if pos- 
 sible such a construction would be given to these amendments 
 as would prevent the operation of a railway from being inter- 
 rupted. It may well be argued that these changes only extend 
 the mechanics' lien to property of the railway company not 
 necessary to the operation of the railway and that the lien can 
 only be enforced against such property. It is to be noted also 
 that the former Act used the word " person " in the definition 
 of owner, and the word " person " under the Interpretation Act 
 included corporations P E. S. O. 1887, ch. 1, sec. 8, sub-sec. 13. 
 
 It might also be urged that the term "railways" 'could be 
 construed as applicable only to street railways or other railways 
 operated exclusively within the registration division. 
 
 It is questionable, therefore, whether the changes in the Act 
 have affected materially the law as stated in King v. Alford, supra. 
 In another case (Good T. Toronto, JI. & B. Railway Co., (1889) 
 26 0. A. E. 133, the lien was upheld, but this point was not raised. 
 
 Boyd, C, referring to the amendment, has said: "But the 
 machinery supplied by the Act does not provide for working out 
 a sale of the entire undertaking. The remedy seem to be 
 
56 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 restricted to that part of the railway where the work was done, and 
 if the right of relief to the wage-earner in respect of his lien was 
 analogous to that enjoyed by a vendor of land in right of the lien 
 for the price, relief might be given and worked out by the court 
 under the provisions of the Provincial Act. 
 
 " But we are precluded by the decision in King v. Alford from 
 holding that the mechanics' lien is of the legal character with a 
 vendor's lien. It was there held that the mechanics' lien was 
 operative as a statutory lien arising in process of execution of 
 efficiency equal to, but not greater than, that possessed by ordi- 
 nary writs of execution. Under a writ of execution against lands 
 the sheriff can only sell what is in his bailiwick and this limited 
 process is npt applicable to a sale of a line of railroad running 
 through many counties of the province." Crawford v. Tilden, 
 (1906) 13 0. L. E. 173. 
 
 And after dealing with the question of the competence of a 
 province to put the burden upon the lands and property of a 
 federal railway undertaking,, he thus refers again to the legisla- 
 tive attempt to apply the li'en law to a provincial railway under- 
 taking: "I foresee, besides, great difficulty in working out the 
 , provisions of the Mechanics' Lien Act as applied even to Ontario 
 railways under the existing law, which forbids the disposal of a 
 railway piecemeal. To make the local law effective it would 
 appear to be requisite to provide for a sale of the particular part 
 of> the land benefited by the work in respect of which a lien is 
 given. The Act as it stands at present can only be worked out by 
 attributing the lien to all the line of railway lands and selling the 
 whole as an entire thing while yet the lien is registered only in the 
 county where the work had been done." Crawford v. Tilden, 
 (1906) 13 0. L. E. 175. 
 
 To apply a Mechanics' Lien Act to a railway which does not 
 lie wholly within a registration division, would seem to be unjust 
 and inexpedient under the existing Mechanics' Lien Acts in Canada, 
 in view of property rights which should be safe-guarded, and for 
 
PBOPEBTY WHICH MAT BE SUBJECT TO LIEN. 57 
 
 the preservation of which provisions were enacted and made part 
 of these Acts. To construe any Mechanics' Lien Act in its pre- 
 sent form as giving a workman a right of lien upon railway pro- 
 perty outside the boundaries of the registration division where the 
 lien claimant's work was done and his lien registered, would 
 jeopardize and might seriously injure the legal rights of others, 
 and it is but reasonable to declare that legislation which would 
 involve such a result should be strictly construed against the lien 
 claimant. 
 
 Dealing to some extent with this point, and referring to the 
 contention that the lien extended beyond the registration division 
 and covered the portion of' the property lying in an adjoining 
 county, Mr. Justice Meredith has said: — 
 
 "It was said that the lien might be applied to the whole of 
 the road in order that relief might be given to the appellant; but 
 that was not the appellant's claim in, nor the judgment at the 
 trial of the action. Nor can I think that the enactment relied 
 upon would warrant it. Under the 17th section, the lien is to be 
 registered in the registry office of the registry division ... in 
 which the land is situated. It is hardly likely that the legisla- 
 ture intended to give a workman employed upon a railway in the 
 county of Huron a lien upon it in the county of Glengarry, for 
 instance, with all the difficulties such a right would create, and the 
 manifest injustice it: might do to others having better rights in 
 that distant county." Crawford v. Tilden, (1907) 14 0. L. E. 
 577. 
 
 Eailways in class (&) are under the legislative jurisdiction of 
 the Parliament of Canada, and it may be generally stated that the 
 provincial legislation affecting such a railway is ultra vires. 
 C. P. B. Co. v. Notre Dame de Bonsecours, (1899) A. C. 367; 
 Madden v. Nelson & Fort Sheppard R. Co., (1889) A. C. 626; 
 Grand Trunk B. Co. v. Therrien, (1900) 30 S. C. E. 485; The 
 King v. C. P. R. Co., (1905) 9 €an. C. C. 328. The power of the 
 provinces to legislate in respect to property and civil rights is 
 
\ - 
 
 58 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 subject to the power of the Parliament of Canada to legislate in 
 respect to such railways ; that power of the Parliament of Canada - 
 extends to property and civil rights as applied to railways within 
 its legislative jurisdiction. Vogel v. Grand Trunk R. Co., (1884) 
 10 0. A. E. 102, 11 S. C. E. 613. As the mode of enforcing a 
 mechanics' lien is by sale of the property, it seems that such a 
 remedy against a Dominion railway could not be given by a pro- 
 vincial statute. See Larsen v. Nelson & Fort Sheppard B. Co., 
 (1895) 4 B. C. E. 151. 
 
 Since, the foregoing paragraph appeared in the first edition 
 . of this treatise, the question has been before the Ontario courts 
 for consideration and it has been decided that a mechanics' lien 
 cannot be enforced against a railway company incorporated under 
 a federal Act and declared thereby to be a company incorporated 
 for the general advantage of Canada. Crawford v. Tilden, (1907) 
 14 0. L. E. 572. 
 
 Dealing with the important question of the constitutionality 
 of • the enactment, Meredith, J., at page 576 of that case, said: 
 " But reliance was placed, and mainly, if not entirely, placed, 
 upon provincial legislation, which, in plain terms, has given the 
 appellant a right of sale such as he seeks, even against a railwaj 
 under the exclusive power of Parliament, but with this saving 
 clause, 'in so far as the Legislature of this province has authority 
 or jurisdiction in regard thereto.' The creation of a right such 
 as the appellant alleges, and the enforcement of it in the manner 
 sought, are matters which come within the meaning of ' property 
 and civil rights in the •province,' subjects which are within the 
 exclusive legislative power of the 'provincial legislature; but an 
 enactment, under such general power which encroaches upon the 
 exercised power of Parliament in respect of any particular subject 
 coming under its exclusive jurisdiction, cannot prevail; and the. 
 enactment in question distinctly does that; the principle before 
 referred to, and the cases decided upon it, show that any exercise 
 of private rights which would extinguish, or substantially impair, 
 
PEOPEBTY WHICH MAT BE SUBJECT TO LIEN. 59 
 
 the public rights and interest in the railway, as a railway, is in 
 direct conflict with the federal legislation providing for the build- 
 ing and maintenance of the road. The legislation which gave the 
 power to sell this railway piecemeal, was, therefore, ultra vires, or 
 to speak more accurately, such legislation is rendered inapplicable 
 to the railway in question by the restricting clause which I have 
 quoted." 
 
 This decision has since been followed in Ontario and Alberta, 
 it being held by Appellate Courts in these Provinces that a lien 
 claimed under a Mechanics' Lien Act cannot exist or be enforced 
 against the property of a Dominion railway company. (Johnson 
 & Carey Co. v. Canadian Northern B. W. Co., (1918) 44 0. L. E. 
 533; Stiff el v. Corwin & Can. Pac. By. Co., (1911) 1 W. W. R. 
 339). 
 
 In view of these recent decisions, this question of the uncon- 
 stitutionality of the provisions dealing with railways subject to 
 federal jurisdiction may be considered as settled. But it would 
 seem that additional provincial legislation is necessary before it 
 can be determined with certainty whether railway property of 
 class (a) outside the registration division where the lien claim- 
 ant's work was done and his lien filed is subject to such lien. 
 
 Maeeied Women's Peopeett. 
 
 As a married woman has now full power to hold and dispose of 
 her real estate and to make contracts her property may be subject 
 to mechanics' Hens. 
 
 In the absence of statutory provision to the contrary, such as 
 section 5 of the Ontario Mechanics' Lien Act, the separate pro- 
 perty of a married woman only becomes subject to a mechanics' 
 lien by virtue of a contract made by her or under her authority, 
 express or implied. The marital relation alone is not sufficient to 
 establish the authority of the husband to contract on behalf of his 
 wife. A husband has no original or inherent power to act as his 
 wife's agent. Beck v. Duncan, (1913) 12 D. L. E. 762; Campbell 
 
60 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 v. Jacobson, 145 111. 389 ; Bauer v. Long, 147 Mich. 35 ; Lippman 
 v. Low, 69 App. DiV. (N.Y.) 24. Ordinarily there is no pre- 
 sumption that the husband is acting as the agent of the wife, the 
 question of agency being one of fact to be determined from all the 
 circumstances of the case. Wagner v. Jefferson, (1876) 37 U. C. 
 Q. B. 551; Jones v. Walker, 83 K Y. 612; Kincaid v. Reid, (1884) 
 7 O.K. 12. As to evidence of agency of husband, see Gerry v. 
 Howe, 130 Mass. 374; Wheaton y. Trimble, 145 Mass. 345; 
 Richards v. John Spry Co., 69 111. 238; Frohlich v. Carroll, 127 
 Mich. 561 ; Interstate Bldg. Assoc, v. Ayers, 71 111. App. 529 ; Bevan 
 v. Thackera, 143 Pa. 182; Job v. Hunter, 165 Pa. 5. Knowledge by 
 the wife that the work was being done on her property, and silent 
 acquiescence, would not be sufficient to make her property subject 
 to the lien. West v. Sinclair, (1892) 23 C. L. J. 199, 12 C. L. T. 
 44 ; Sandford v. Pollock, 105 N". Y. 450. But the Ontario Act now 
 contains an express provision dealing with this question. See 
 post. The burden is on the contractor or materialman to , show 
 that the contract was made or the materials supplied with the 
 wife's authority. Little v. Vredenburgh, 16 111. App. 189. 
 Where a husband and wife were guilty of collusion to defeat lien 
 claimants against the wife's land for materials furnished at the 
 husband's instance, the fact that the statement of lien mentioned 
 the husband as owner and that a copy of the statement was served 
 on him alone will not prevent a lien from attaching. Frohlich v. 
 Carroll, 127 Mich. 561. In the absence of knowledge of or par- 
 ticipation in a fraudulent intent on the part of the husband to 
 improve his wife's property at the expense of his creditors, the 
 wife's property is not liable for such improvements. A husband, 
 without her authority, cannot create a lien against her separate 
 estate even for necessary repairs to the property. Dearie v. Mar- 
 tin, 78 Penn. 55 ; Steinman v. Henderson, 94 Penn. 313. But in 
 Illinois it has been held that if one who is ignorant of the wife's 
 interest, contracts with the husband to build on the wife's land, 
 and the wife knowing this, fails to disclose her interest or stop the 
 
PEOPEKTY WHICH HAY BE SUBJECT TO LIEN. 61 
 
 work, \ she is estopped from setting up her rights against the lien. 
 Bruck v.. Bowermaster, 36 111. App. 510 ; Paulsen v. Mamslce, 126 
 111. 72. 
 
 In the Ontario Mechanics' Lien Act (see Ontario Mechanics' 
 Lien Act, sec. 5), in order to protect contractors and others deal- 
 ing with the husband, when the property is the wife's separate 
 estate, a section has been inserted which, in effect, provides that 
 instead of the claimant being compelled to prove the husband's 
 authorization by the wife, he is now conclusively presumed to be 
 acting as the agent of his wife, unless the claimant has actual 
 notice to the contrary. Under this provision a married woman 
 will not be permitted to show that her husband was not author- 
 ized by her to make the contract unless she can also show that 
 the contractor has actual notice of the absence of such auth- 
 ority. A person contracting with the husband without actual 
 notice that the husband was not authorized to make the contract, 
 may assert a mechanics' lien upon the interest of the wife in the 
 property subject to the lien, as well as upon the interest of the 
 husband. 
 
 The contract, however, is the contract of the wife; hence, 
 where the husband makes one contract for repairs to two houses, 
 one belonging to his wife and the other to himself, a lien cannot ' 
 be claimed against both properties for an amount due in respect 
 to both houses without apportioning the same. Fairclough v. 
 Smith, (1901) 13 Man. L. R. 509. 
 
 A husband may assert a lien upon the property of his wife for. 
 work or for materials performed or supplied by him. Booth, v. 
 Booth, (1902) 3 0. L. E. 294. 
 
 Where a conveyance of land was made to a husband and wife 
 each of the grantees is an "owner" and may by contract subject 
 his or her estate to a lien for improvements on the land, though 
 the other does not join in the contract (Independence Sash, 
 Door & ^Lumber Co. v. Bradfield, (1911) 134 S. W. 118), but 
 under a contract of the husband alone, a mechanics' lien will not 
 
62 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 attach to the estate of the wife under such conveyance. Wash- 
 turn v. Burns, 34 N. J. L. 18. 
 
 If the authority of the husband is shown, the lien will not fail 
 because the husband has exceeded his authority as to the amount 
 of expenditure. Jones v. Pothast, 72 Ind. 158. 
 
 In the absence of express enactment to the contrary, some- 
 thing more than mere knowledge that her husband is making the 
 improvement, is required to create a lien against the wife's pro- 
 perty. Healey Ice Mack. Go. v. Green, (1910) 181 Fed. 890. In 
 Illinois it has been held that if with knowledge of the contract, and 
 the delivery of materials thereunder, a wife makes no protest 
 against the acts of her husband, a lien may be enforced against 
 her property with respect to which such contract has been made 
 and such materials delivered. McDonald v. Mark, (1909) 147 
 111. App.' 434. The conduct of the wife may constitute a recog- 
 nition of the husband's authority. Prendergast v. McNally, 76 
 111. App. 385; Bevan v. Thackera, 143 Pa. 182. Where a wife 
 knew, soon after the excavation was begun, that her husband was 
 constructing a building on a lot owned by her, and that shortly 
 afterwards she executed a mortgage of the premises, and turned 
 the money over to her husband to use in the building, such 
 facts were considered to show consent on her part. Lentz v. 
 Mmmerman, 119 Wis. 492. If one who is ignorant of the wife's 
 interest, contracts with the husband to build on the wife's land 
 and the wife acquiesces, she may be estopped from setting up her 
 rights against the lien. McCarthy v. Caldwell, 43 Minn. 442. 
 See also 'Anderson v. Armstead, 69 111. 453 ; Greenleaf v. Beebe, 
 80 111. 522. Where a husband with his wife's permission pur- 
 chased lumber to construct a greenhouse on her land and she 
 denied any agency on the part of the husband, but there was 
 evidence of declaration made by her that she was constructing it, 
 a finding that her property was subject to the lien therefor will 
 not be ^disturbed. Colt v. Lawrenceburg Lumber Co., (1909) 44 
 Ind. App. 122. A husband may have his wife's authority by 
 
PKOPEETX WHICH MAT BE SUBJECT TO LIEN. 63 
 
 estoppel. Where a wife has by words or conduct held out her 
 husband or enabled her husband to hold himself out as having 
 authority to act on her behalf she is bound as regards third par- 
 ties by the acts of her husband to the same extent as she would 
 have been bound if her husband had in fact had the authority 
 which he was held out to have. 
 
 But her land will not be subject to a lien unless she authorizes 
 her husband, or authority is conferred on him by estoppel. 
 
 Mere occupation of a wife with her husband of the building 1 
 erected, does not show ratification on her part. Bust & Owen 
 Lumber Co. v. Molt, 60 Neb. 80. 
 
 A husband who, as owner, enters into a contract with a builder, 
 cannot subsequently claim that he was acting solely for his wife. 
 Sidney v. Morgan, 16 W. L. E. 123. 
 
 As to questions concerning capacity to contract, a person fur- 
 nishing labor or material should first ascertain whether the owner 
 
 » 
 of the realty is under such a disability as would avoid the- con- 
 tract. Alvey v. Reed, 115 Ind. 14.8. Where the husband and wife 
 own the property as tenants in common, any notice in writing to 
 the owner required by the statute to be served is ineffectual if 
 served upon the husband alone. Webber Lumber Co. v. Erickson, 
 (1913) 216 Mass. 81. 
 
 Various facts from which the husband's agency may be inferred 
 are considered in an exhaustive note by Mr. C. B. Labatt in Vol. 52, 
 D. L. B. at p. 213. 
 
 PlXTUEES. 
 
 As the statutory lien is primarily intended to affect realty, a 
 question of importance which often arises is whether materials 
 which have been furnished have become structurally and per- 
 manently a part of the realty. Under a Mechancis' Lien Act the 
 lien created for materials furnished is not upon the specific ma- 
 terials furnished, but upon the building and land to which these 
 materials become so attached as to be a part of the realty. 
 
64 THE LAW, OF MECHANICS'" LIENS IN CANADA. 
 
 The question whether materials so furnished constitute "fix- 
 tures " is a> question of law and fact. A large number of citations 
 are mentioned by Armour, CJ., in Argles v. McMath, (1895) 26 
 0. B. 224, affirmed, 23 0. A. E. 44. See also the judgment of 
 Sedgewick, J., in Warner v. Don, (1896) 26 S. C. E. 388; Stack 
 y. T. Eaton Co., (1902) 4 0. L. E. 335; Garing v. Hunt, (1895) 
 27 0. E. 149; Goldie, MoCulloch Co. v. Hewson, (1901) 35 N. B. 
 E. 349; Scottish-American Investment Go. v. Sexton, (1894) 26 
 0. E. 77; Canadian Bank of Commerce v. Lewis, (1907) 12 B. C. 
 E. 398; Seeley v. Caldwell; (1908) 18 0. L. E. 472; Imperial 
 Brewers Ltd. v. Gelin, (1908) 18 Man. L. E. 284. Electric light 
 fixtures and an electric light sign on the outside of the building, 
 put up by the tenant, were considered not to have become part of 
 the realty, but to be chattels removable by the tenant. Rohls & 
 Co. v. MacLean, (1913) 25 W. L. E. 358"; 13 D. L. E. 519. 
 
 It is the general rule that furnaces, ranges arid heaters with 
 their necessary attachments, annexed to a dwelling as permanent 
 parts of it in the course of its construction for purposes of sale or 
 rent, which fixtures are regarded by builders generally as essential 
 parts of that class of houses, entitle the materialmen to a lien 
 therefor. A portable furnace and portable cooking stove resting 
 on a cemented floor and attached tp the realty only by pipes run- 
 ning to the chimney flues are fixtures where they were installed 
 by the owner of the house with the intention of making them a 
 part of it, and the vendor of such heating apparatus is entitled to 
 a mechanics' lien therefor as against a mortgagee of the, realty. 
 . Erdman v. Moore, (1896) 58 N". J. L. 445; Armstrong Cork Co. 
 V. Merchants' Refrigerating Co., (1910) 184 Fed. 199. There 
 can be a mechanics' lien for only such work as constitutes a per- 
 manent improvement to the building, or for articles furnished 
 which might be considered permanent fixtures. The Fehr Con- 
 struction Co. v. Postl, (1915) 189 111. App. 519. Intention is really 
 the dominating test. Dominion Trust Co. v. Mutual Life Assce. 
 Co., (1918) 26 B. C. E. 237, 43 D. L. E. 184. The position of the 
 
PROPERTY WHICH MAY BE SUBJECT TO LIEN. 65 
 
 rival claimants is also an important consideration. See Kokomo 
 Investment Co. v. Dominion Harvester Co., (1918) 43 D. L. E. at 
 p. 205 (Alta.). 
 
 In determining whether materials have become fixtures the 
 test is whether it was intended that the materials furnished 
 should form part of the realty, and whether there is, in fact, 
 structural connection with the building. E. R. Darlington Lum- 
 ber Company v. Burton, (1910) 156 111. App. 82. "Ordinarily 
 there must exist some sort of annexation of the machine or 
 machinery in order to make it part of the realty; not necessarily 
 physical annexation, but an actual or constructive annexation that 
 shews adaptability, purpose and intention to permanently use the 
 article in connection with the freehold." Bronson on Fixtures, p. 
 249. The rule in Illinois for determining what constitutes a fix- 
 ture is, 1st, Eeal or constructive annexation of the thing in ques- 
 tion, to the realty. 2nd, Appropriation or adaptation to the use or 
 purpose of that part of the realty with which it is connected, and 
 3rd, the intention of the party making the annexation to make it 
 a permanent accession to the freehold,— this intention being in- 
 ferred from the nature of the article affixed, the relation and situa- 
 tion of the party making the annexation and the policy of the law 
 in relation thereto, the structure and mode of the annexation and 
 purpose or use for which the annexation has been made. Schme- 
 ling v. Rockford Am. Co., (1910) 154 111. App. 308. A recent and 
 instructive Canadian case deals with this difficult question as to 
 what constitutes " fixtures." See Royal Bank of Canada v. Cough- 
 Ian, (1920) 2 W. W. E. 356. 
 
 When is a chattel so affixed to the structure as to be part 
 of it and, therefore, to subject it to the lien upon realty? The 
 test question as applied by the Massachusetts Courts is, — What 
 would pass as between vendor and vendee? Scannell v. Hub 
 Brewing Co., (1901) 118 Mass. 288. Asbestos and magnesia 
 covering placed around steam piping and in a distillery, intended 
 
66 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 as a permanent covering for the metal, may be found to be fur- 
 nished in the erection of a building, within the meaning of a 
 Mechanics' Lien Act. "Although it was possible to remove it, the 
 removal would greatly injure it, and it was procured to be re- 
 tained as long as the pipes remained." Angler v. Bay State, 
 (1901) 178 Mass. 163, per Knowlton, J. Mirror frames annexed 
 to a house at the time it is built, and fitted into gaps left for that 
 purpose in the walls, are fixtures for which a mechanics' lien may 
 be maintained. Ward v. Kilpatrick, (1881) 85 N. Y. 417. See 
 also Union Stove Works v. Klingman, 20 App. Div. 449, affirmed, 
 (1900). 
 
 It was held, in Scannell v. Hub Brewing Co., (1901) 118 Mass. 
 288, that a mechanics' lien upon realty may be established for labor 
 performed in making in an entire contract for a round sum the 
 apparatus and appliances for a brewery, to be inserted in the 
 building and connected together by pipes, although part of the 
 labor was performed in the lien claimant's shop in another city, 
 and the final connecting of the various appliances by pipes in the 
 brewery may have been done by persons other than the lien claim- 
 ant. Holmes, C.J., in referring to the question whether the labor 
 f urnished was performed in the erection of a building, said : " They 
 were built up in the building and could not be got at except by 
 taking them to pieces, which would seem from the testimony of 
 the respondent's witnesses, to be commercially impracticable. If 
 any object was more movable than the others, it none the less was 
 an integral part of one original whole, which, as a whole, was a 
 building and real estate." 
 
 Gas and electrical fixtures furnished to the owner of a house 
 but not permanently annexed to the building are not treated as an 
 " improvement " upon the realty which would subject the realty 
 to a lien. As a tenant would be entitled to remove them and as 
 they would not pass as between vendor and vendee or mortgagor 
 and mortgagee they cannot be said to be furnished for the perman- 
 ent improvement of the realty. Campbell v. John Taylor Co., 62 
 
PROPERTY WHICH MAY BE SUBJECT TO LIEN. 67 
 
 N. J. Eq. 30 ; Hanson v. News Pub. Co., 97 Me. 99 ; Caldwell v. 
 Glazier, (1910) 138 App. Div. 1ST. Y. 826. But double cases with 
 shelves, a platform, lockers, etc., in a building designed for a pub- 
 lie library,, fastened to the rooms by nails, screws, etc., and with- 
 out which equipment the building could not be used for library 
 purposes are an "improvement" protected by a lien: Rierser v. 
 Commeau, 129 App. Div. (NY.) 490, 198 N. Y. 560. 
 
 If the owner of the fee in a lease authorizes the making of 
 improvements, the fee is subject to a lien in so far as the improve- 
 ments are permanent in. character and inure to the benefit of the 
 owner, but in so far as such improvements are temporary and 
 subject to removal by the lessee a lien should not be awarded as 
 against the fee. Turner v. Wentworth, (1876) 119 Mass. 459. 
 For cases dealing with the rights of sellers of fixtures as against 
 holders of mechanics' liens, see British Euling Cases, vol. 1, pp. 
 6, 673 and 98. 
 
 One who furnishes and installs second-hand machinery in a 
 vacant building which the owner purchased for the express pur- 
 pose of equipping as a factory for his own use, is entitled to a 
 mechanics' lien, even though no extensive alteration was made for 
 its instalment and it was merely fastened to joists by screws so as 
 to be removable without injury to the building. Griffin v. Ernst, 
 (1908) 124 App. Div. (N.Y.) 289. Where a chattel mortgage is 
 given on personal property, which afterwards becomes a perman- 
 ent part of the real estate, a mechancis' lien attaching to the real 
 estate will have priority over the chattel mortgage. Currier v. 
 Cumming's, 40 1ST. J. Eq. 145. 
 
 In the- absence of express stipulation to the contrary a mort- 
 gagor in possession has the right to permit trade fixtures to be put 
 up and removed from the mortgaged premises provided they are 
 removed before the mortgagee takes possession. Credit Fonder 
 Franco Canadien v. Lindsay-Walker Company, (1919) 2 W. W. E. 
 385. 
 
 If fixtures are subsequently severed the lien continues on the 
 
68 THE LAW OP MECHANICS' LIENS IN CANADA.' 
 
 land, itself. Chicago Smokeless Gas Fuel Co. v. Lyman, 62 111. 
 App. 538. 
 
 Where the title to furnaces sold is retained by a "vendor until 
 the payment of the price, the rights of such parties, in Ontario, 
 are governed by section 9 of the Conditional Sales Act, E. S. 0. 
 1914, c. 136, and such vendor cannot rant as a lienholder under 
 the provisions of the Mechanics' and "Wage-earners' Lien Act. Hill 
 v. Storey, 25 D. L. E. 247, 34 0. L. E. 489. But, in the absence of 
 special legislation affecting the question, one who erects a fire 
 sprinkler system under an agreement ^whereby the equipment is 
 merely leased to the owner of the premises with a right to purchase, 
 reserving the title and ownership thereto until paid in the lessor, is 
 not precluded from claiming the statutory mechanics' lien against 
 the premises of which the erection has been made part. U. S. Con- 
 struction Co. v. Rat Portage Lumber Co., 25 Man. L. E. 793. 
 
 A lien claimed by a partnership stands in no different position 
 from any other lien by reason of " the owner " being a member of 
 the partnership. Ross v. Gorman, 1 Alta. L. E. 516, 9 W. L. E. 
 319. / 
 
CHAPTER V. 
 
 Who mat Acquire a Lien. 
 
 The underlying principle of Mechanics' Lien Acts in Canada 
 is that persons who benefit realty by furnishing for it labor, ser- 
 vice or, materials should be entitled to a preferred claim upon the 
 realty. Priority is given to the claims of such persons not be- 
 cause they are " mechanics," but because of the character of the 
 work done, the service performed, or the materials supplied. The 
 lien claimant must of course bring himself within the provisions 
 of the statute creating the lien, but the tendency of the legislation 
 on this subject is to include all who by furnishing work, service 
 or materials are justly entitled to be so secured, and therefore the 
 statute is not exclusively for the benefit of mechanics but is ex- 
 pressly extended to " any person " who thus furnishes work, ser- 
 vice or materials. 
 
 It is immaterial where the work was done, so long as it is done 
 under the contract in the erection of the building and its result 
 goes into the building. The work of the contractor and of the 
 sub-contractor, the supplies of the materialman, and the labor of 
 the wage-earner, the services of the superintendent of construc- 
 tion and of the architect are all essential to the erection of the 
 structure, and contribute to its increased value, and each o'f these 
 classes therefore should be entitled to a lien on the structure. 
 
 The word " work " used in Mechanics' Lien Acts in Canada, is, 
 at least, as broad in its meaning as the word " labor " which is 
 used in the Massachusetts Act, under which it was held that super- 
 intendence is labor though it involves little physical effort. Mitchell 
 v. Packard, (1897) 168 Mass. 467. Under the Alberta Act it has 
 been held that a superintendent of construction is entitled to a 
 lien. Scratch v. Anderson, (1911) 16 W. L. R. 145. 
 
 Ontario and the other Lien Acts in Canada use also the word 
 
70 THE LAW OF MECHANICS' LIENS IN CANADA.' 
 
 "service," which is even more comprehensive than "work." But 
 legal or other services rendered in acquiring rights of way do not 
 constitute services within the meaning of a lien law. Richmond 
 & Irvine Construction Co. v. Richmond Ry. Co., (1895) 31 U. S. 
 App. 704, 34 L. E. A. 625. . 
 
 An old decision in Ontario (Arnoldi v. Gouin, (1876) 22 
 Grant 314) held that an architect is entitled to a lien for drawing 
 plans arid specifications and superintending the erection of a build- 
 ing. In that case no distinction was raised by counsel between 
 the right to charge for superintendence and the right to charge 
 for drawing the plans. An architect's right to a lien for drawing 
 plans and specifications has been denied in several American courts. 
 In a Massachusetts case {Mitchell v. Packard (1897) 168 Mass. 
 467^, the court held that while a -lien could be maintained by an 
 architect for labor performed by him in the supervision of the erec- 
 tion of a building, he was not entitled to a lien for the. preparation 
 of plans and specifications therefor. 
 
 'Similar decisions have been given by courts in Pennsylvania, 
 Missouri, Kentucky and Maine. ' In New York, apparently the 
 only cases upon the question are where the architect acted in both 
 capacities, although in deciding that he is entitled to a lien he is 
 sometimes referred to as a supervisory architect. See Stryher v. 
 Cassidy, (1879) 76 N. Y. 50. Under the British Columbia 
 Mechanics' Lien Act (R. S. B. €., 1911, ch. 154) there is, no lien 
 in respect of the cost of preparing for work to be done upon a site, 
 although such work has been frustrated without fault of the con- 
 tractor. British Columbia Granitoid Co. v. Dominion Shipbuild- 
 ing Co., (1918) 2 W. W. B. 919. In some American cases stress 
 seems to be laid upon the circumstance that the work of drawing 
 plans and preparing specifications is essentially professional work, 
 and therefore not within the scope of a' mechanics' lien statute. 
 But a great deal depends upon the precise words of the statute, 
 and the lien Acts existing in Canada seem broad enough in their 
 terms to include " work " or " service " rendered by an architect 
 
WHO MAY ACQUIRE A LIEN. 71 
 
 in drawing the plans for the building. The preparation of the 
 plans and specifications appears to be regarded under some Ameri- 
 can decisions as merely preliminary to the construction of a build- 
 ing and in effect to be too remote to be treated as work used in the 
 erection of the building. The wording of the Mechanics' Lien 
 Acts in Massachusetts and in various other States undoubtedly 
 warrants ■ such a view, but the lien Acts existing in Canada are 
 much wider in their scope. Under them a lien is given not only 
 for " work " but for " service " and such work or service may be 
 not only " upon " but " in respect of " a building, etc., so that the 
 Acts are broad enough to not only cover the manual labor of the 
 workman, but the professional services of the architect. The ser- 
 vices rendered by an architect in drawing the plans and preparing 
 the specifications are not any more remote than the services of the 
 blacksmith who sharpens the tools .which other workmen use in a 
 mine, and under a decision in Ontario a blacksmith was held en- 
 titled to a lien for such work. See Davis v. Crown Point M. Co., 
 (1901) 3 0. L. E. 69 ; Bradshaw v. Saucerman, (1912) 4 D. L. R. 
 476; Brunswick Balke Collender Co. v. Bacette, (1916) 49 Que. 
 S. C. 50. 
 
 The words of the Ontario Act, section 6, which give a lien to 
 " any person who performs any work or service upon or in respect of 
 . . . the . . . erecting . . of any . . . build- 
 
 ing . . . for any owner, contractor- or sub-contractor . . . 
 a lien for the price of such work, service or materials upon the 
 . . . building . . . and the land occupied thereby or en- 
 joyed therewith, or upon or in respect of which such work or ser- 
 vice is performed," are wide enough to include the architect who 
 was employed by the owner, in regard to his work and services, as 
 well upon the plans and specifications upon which the building 
 was erected as for his work and services in superintending and 
 directing the actual construction of it in accordance with them. 
 The work of an architect, particularly in regard to large struc- 
 tures, is generally necessary and advantageous work done in erect-' 
 
72 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 ing the structure. Notwithstanding a decision to the contrary in 
 relation to a similar provision in the British Columbia Act, Fripp 
 v. Clark, (1913) 14 D. L. E. 918 (B.'C), it would seem that an 
 architect is entitled to a lien for such services which are performed 
 in "erecting" the building. Bead v. Whitney, (1919) 48 D. L. 
 B. 309. As to assignment of Iris claim by the architect, see Sichler 
 v. Spencer_, (1911) 17 B. C. R. 41, 19 W. L. E. 557. The claim 
 of an under-arehitect, or assistant architect, would stand in a dif- 
 ferent position, and if he be entitled to a lien, it would be on an- 
 other ground. His work would be performed for the architect, a 
 person who from the wording of the Act would be entitled to be 
 considered a " contractor," which word in the Act includes a per- 
 son employed by or contracting with the owner " for the doing of 
 work or service . . . for any of the purposes mentioned in 
 this Act." 
 
 It has been held that where a statute gave a lien for " work 
 or labor upon ... a building,"' the services of an architect 
 in the preparation of plans and in superintendence were within 
 the statute. Hughes v. Torgerson, (1892) 16 L. E. A. 600; 
 Mutual Ins. Co. v. Rowland, (1875) 26 N. J. Eq. 389. It seems 
 reasonable to conclude that within the meaning of Mechanics' Lien 
 Acts in Canada superintendence is " work." Scratch v. Anderson, 
 33 D. L. E. 620; 11 Alta. L. R. 55, (1917) 1 W. W. E. 1340. 
 " The work of superintendence is as much service upon a building 
 as carrying bricks to the bricklayers. Bead y. Whitney, (1919) 
 48 D. L. E. 309. But there would be no lien for plans and specifi- 
 cations prepared but not used, or for solicitors' costs for drawing 
 contracts respecting the building, or advising as to legal points 
 arising out of it. 
 
 As to the actual ownership of the plans and specifications, it 
 has been decided in England that the plans and specifications are 
 not the property of the architect, but belong to the owner of the 
 building. Gibbon v. Pease (1905) 1 K. B. 810. But the architect 
 has a lien on them and need not deliver them until he is paid^ 
 
WHO MAY ACQUIBE A LIEX. 73 
 
 Hughes v. Lenney, ( 1839 ) 5 M. <& W. 183. See chapter, Liens on 
 Personalty, posh 
 
 Where a' claimant from the nature of the property cannot have 
 a lien, he cannot have his personal claim tried by the special tribunal 
 provided for trials of cases of liens. Johnson & Carey Co. v. C. N. 
 B. W. Co., (1918) 44 0. L. B. 538. 
 
 Lien of Contractor. 
 
 To entitle the contractor to a lien there must be something in 
 the nature of direct dealing between the contractor and the person 
 whose estate is sought to be charged. Eddy Co. v. Chamberlain 
 and Landry, 37 D. L. K. 711 (N.B.). The foundation of the right 
 to a mechanics' lien is a valid contract with the " owner " of the 
 lot of land to be improved or with his agent. Although the' lien is 
 not created by the contract of the parties but by the statute, never- 
 theless 'something in the nature of direct dealing between the 
 contractor and the " owner " is essential. Bittenhouse v. Warren 
 Co., (1914) 264 111. 619. The special provisions of the particular 
 Lien Act must, however, govern. In an action to enforce a lien 
 ' under the British Columbia Mechanics' Lien Act in a case where 
 the owner of the property did not contract for , the work or im- 
 provements it is incumbent upon the lien claimant to shew that 
 the owner had knowledge of such work or improvements. Baker & 
 Ellicott v. Williams, (1916) 23 B. C. B. 124. But it has been 
 held in proceedings under the New Brunswick Act that to create 
 a lien against the interest of an " owner," for work done and 
 materials furnished with his " privity and consent," there must 
 be something in the nature of a direct dealing between the con- 
 tractor and the owner or person whose estate is to be charged, — 
 when the latter merely has knowledge that the work is being done 
 or materials furnished, and silently assents thereto, and benefits 
 thereby, a lien is not thereby created against his interest. Eddy Co. 
 v. Chamberlain and Landry, (1917) 37 D. L. B. 711 (X.B.). 
 
74 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Mere knowledge of the owner that the work is being done or 
 materials are being furnished will not suffice to create a lien against 
 his interest. Isitt v. Merritt Collieries, (1920) 1 W. W. E. 
 879. The contractor to succeed must have been employed by 
 some one having an interest in' the land. The person with whom 
 the contract was made must be an " owner." Gearing v. Robin- 
 son, (1900) 27 0. A. R. 364. See Webb v. Gage, (1902) -1 O. W. 
 R. 327; Flack v. Jeffrey, (1895) 10 Man. L. R. 514; Blight v. Ray, 
 (1893) 23 O. R. 415; Graham v. Williams, (1884) 8 0. R. 478; 
 9 0. R. 458; Garing v. Hunt, (1895) 27 0. R. 149; Bickerton v. 
 Dakin, 20 0. R. 192, 695. The owners of four lots executed an 
 agreement to sell them to one Irving, who was to make a cash 
 deposit and undertake to build four houses on the lots, the ven- 
 dors to advance $6,400 for building purposes. On completion of 
 the houses and on receipt of the balance of price and amount of 
 advances the vendors were to execute a deed of the lots. Irving 
 gave contracts for the building which was partly completed, and 
 $3,400 was advanced by the vendors when Irving became insol- 
 vent, and the vendors under the terms of their agreement gave 
 notice of forfeiture and took possession of the property. Prior to 
 this, liens had been filed for labor and materials supplied and the 
 lienholders brought action for enforcement thereof against the 
 vendors. It was held that the vendors were not " owners " of the 
 property, and therefore were not liable to pay for the labor and 
 materials supplied for the building of the houses by Irving. Mar- 
 shall Brick Co. v. York Farmers Colonization Co., (1916) 54 
 Can. S. C. R. 569. Anglin, J., in this case, expressed the opinion 
 that to make the vendors " owners " because the work was done 
 with their privity and consent, a direct dealing between them and 
 the materialmen was requisite: 
 
 Priority of registration must prevail, in the absence of actual 
 notice. Cook v. Koldoffsy, 28 D. L. R. 346, 35 O. L. R. 555. Mere 
 knowledge that building was going on upon the land does not 
 amount to actual notice. Sterling Lumber Co. v.' Jones, (1916) 
 
WHO MAY ACQUIRE A LIEN. 75 
 
 29 D. L. E. 288. In this case a purchaser of an unfinished build- 
 ing, whose deed was registered prior to the registration of any 
 mechanics' liens without actual notice thereof, thereby acquired a 
 priority and took the property free of the liens. The purchaser 
 cannot be deemed an owner within the meaning of the provision 
 in the Mechanics' Lien Act which depends upon privity, consent 
 or benefit, in order to charge the land with the liens. See also 
 Cut-Rate Plate Glass Co. v. SolodinsM, 25 D. L. B. 533, Orr v. 
 Robertson, 23 D. L. E. 17. 
 
 An explicit statement in the contract that he will assert no 
 lien (Brydon v. Lutes, 9 Man. L. E. 463), or that the building 
 shall be delivered from liens, or that all persons shall' be paid by 
 cheque of the contractor, will bind the contractor. Ritchie V. 
 Grundy, 7 Man. L. E. 532. It is not essential to the attaching 
 of a lien that the labor for which a lien is claimed should be per- 
 formed at the site of the building upon which the lien is claimed. 
 Daley v. Legate, 169 Mass. 257; Munroe v. Clark, (1911) 107 Me. 
 134. The work may be done in another city than that where the 
 building is erected, the real question being whether the work done 
 was intended for and went into the structure and was such as to 
 be within the contemplation - of the contracting parties. Scannell 
 v. Hub Brewing Co., (1901) 178 Mass. 288. In this case part of 
 the labor upon the apparatus- for a brewery situate in Boston was 
 performed in the lien claimant's shop in Lowell, and the final con- 
 necting of the various appliances by pipes in the brewery may have 
 been done by persons other than the lien claimant, nevertheless 
 the lien was held to exist. Holmes, C.J., bases the judgment of 
 the court on this point on the ground that the labor at Lowell was 
 contemplated by the contract. But where the work was merely 
 sawing and planing lumber in the lien claimant's mill at the re- 
 quest of one who was erecting the buildings, there being no agree- 
 ment that the lumber should be appropriated to said buildings, no 
 lien attached to the buildings although the lumber was used upon 
 them. Bennet v. Shachford, (1865) 11 Allen (Mass.) 444. 
 
76 x THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 The contractor is not entitled to a lien merely because he has 
 performed work or service ; such work or service must be performed 
 under a contract. If, therefore, a contractor is wrongfully dis- 
 missed or is wrongfully prevented by the owner from fully per- 
 forming his contract he has no lien for damages caused thereby, 
 although he has a right of action for such damages. In like 
 manner, if the contract is rescinded, the contractor cannot claim 
 a lien for work done afterwards, nor can he recover unless he 
 shews that the person with whom he made the contract had some 
 interest in the land. Beveridge v. Hawes, (1903) 2 0. W. R. 619; 
 Gearing v. Eolinson, (1900) 27 0. A. R. 364; Webb v. Gage, 
 (1902) 1 0. W. R. V 327; Stevens v. Lincoln, (1874) 114 Mass. 476. 
 If a contract provides that no payment shall be due until the work 
 has been satisfactorily completed, a claim for extras, made under 
 the contract, will not be exigible prior to the completion of the 
 main contract. Royal Electric Co. v. City of Three Rivers, (1894) 
 23 Can. ,S. C. R. 289), but where after a portion of the work is done 
 the contract is abandoned by consent (Powers v. Hogan, 12 Daly 
 (N. Y.) 444, or where the owner orders the contractor to stop work 
 on 'the building and the contractor agrees to do so, there is no aban- 
 donment or discontinuance of the work as these words are used in 
 a Mechanics' Lien Act. ' (Abhari v. Grassie, (1914) 262 111. 636. 
 Where the contract is improperly terminated by the owner (Fuller 
 v. Beach, (1912) 21 W. L. R. (B.C.)), the lien may be enforced 
 upon a quantum meruit. Where a tender for the erection of a build- 
 ing is made and accepted to deceive the other tenderers, but without 
 the intention on the part of either owner or contractor that the 
 amount stated in the tender should be the contract price, the con- 
 tractor is entitled to recover on a quantum meruit. Degagne v. 
 Chave, (1895) 2 Terr. L. R. 210. 
 
 In the event of the failure of the owner to comply with his 
 part of the contract the statute does not give a contractor a lien 
 for the whole amount of his contract, nor for the entire amount 
 of his damages against the owner because of a breach of the con- 
 
WHO MAY ACQUIHE A LIEN. < 7 
 
 tract, but simply for the value of what has been done. Marsh v. 
 Mich, (1911) 159 111. App. 399. The completion of a building 
 contract is a condition precedent to the contractor's right to re- 
 cover, unless the contract provides otherwise, or unless there has 
 been a waiver of such condition by the other party, or an interfer- 
 ence preventing the completion of the contract. Dixon v. Ross, 
 (1912) 1 D. L. B. 17. See Elford v. Thompson, (1913) 1 D. L. E. 
 1. Any substantial variation from the contract must be waived or 
 assented to by the "owner" as otherwise the contract must be ad- 
 hered to. Clayton v. McOonnell, (1877) 14 0. E. 608, 15 0. A. E. 
 560. In this case the owner said to the contractor, " If you won't 
 go on with your work, go away/' and it was held that this did not 
 amount to a rescinding of the building agreement. 
 
 The onus is on the plaintiff to show that the non-performance of' 
 an essential term of an entire contract was not due to his own de- 
 fault and if he fails to discharge that onus he cannot recover any 
 part of his claim. Vigers v. Cook, (1919) 88 L. J. K.' B. 1132. 
 
 The lien of a contractor attaches when he has completed his 
 contract, but if the contract provides for interim payments, a lien 
 attaches when each payment becomes due to the extent of the 
 amount thereof. Braden v. Brown, (1917) 24 B. C. E. 374. 
 
 The contractor cannot recover unless he complies with any 
 term of the contract which is made a condition precedent to pay- 
 ment, such as the procuring of an engineer's, architect's or sur- 
 veyor's certificate. Starr v. The Queen, (1887) 1 Ex. C. E. 301; 
 The Queen v. Starr, (1889) 17 Can. S. C. E. 579; Murray v. The 
 Queen, (1896) 26 Can. S. C. E. 203; Goodwin r. The Queen, 
 (1897) 28 Can. S. C. E. 273; Sorette v. N., S. Development Co., 
 (1889) 31 X. S. E. 427; Leroy v. Smith, (1900) 8 B. C. E. 293. 
 See Wallace Bell Co. v. Moose Jaw, 3 D. L. E. 273, 4 D. L. E. 438 
 (Sask.). See also annotations to Chambers v. Goldthorpe, 4 Brit. 
 E. C. 833. 
 
 As to engineers exceeding their powers in determining certain 
 points in dispute, see Peters v. Quebec Harbor Commrs. (1891) 19 
 
78 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Can. S. C. B.-685. See also Watts v. McLeay, (1911) 19 W. L. K. 
 916 (Alta.) ; Alslip v. Robinson, (1911) 18 W. L. E. 39; Merriam 
 v. Public Parks Board of Portage la Prairie, (1911) 18 W. L. E. 
 151, affirmed, (1912) 20 W. L. E. 603 (Man.) ; Donaldson v. Col- 
 lins, (1912) 21 W. L. E. 56 (>Sask.). 
 
 The contractor is bound in the absence of fraud or undue in- 
 fluence or mistake, by the certificate of the engineer or architect, 
 and cannot dispute the same. Canty v. Clarke, (1879) 44 IT. C. E. 
 505; see Robins v. Goddard, (1905) 1 K. B. 294; Smith v. Gordon, 
 (1880) 30 U. C. 'C. P. 553; Guelph Paving Co. v. Town of Brock- 
 ville, (1905) 5 0. W. E. 626. As to effect of undue influence of 
 architect,- see Alberta Building Co. v. Calgary, (1911) 16 W. L. E. 
 443. A provision that an architect's certificate shall not be set aside 
 for any suggestion of fraud is not void as contrary to public policy. 
 TuIUsy. Jackson, (1892) 67 L. T. 840. But the rule that a con- 
 tractor is bound by the terms of a contract making the employer's 
 engineer the interpreter of the contract and the arbiter of all dis- 
 putes arising under it, does not extend to a case where the named 
 engineer, while in fact the engineer of the employer, is described 
 in the contract as and believed, by the contractor to be the engineer 
 of a third person. Good v. Toronto, H. & B. Ry., (1899) 26 O. A. 
 E. 133, affirmed, 30 S. C. E. 114, sub. nom. Dominion Construction 
 Co. v. Good. As to effect of non-disclosure of family relationship 
 and financial connections between the superintendent of work, who 
 was to furnish the certificate, and the defendant, see Ludlam v. 
 Wilson, (1901) 37 C. L. J. 819. As to conflict between interest 
 and duty, see Law v. City of Toronto, (1919) 47 O. L. E. 251. An 
 arbitrator should not be allowed to act if he necessarily occupy at 
 once the position of judge and witness. Bristol Corporation v. Aird, 
 (1913) A. C. 241; Hickman & Co. v. Roberts, (1913) A. C. 229. 
 
 There are several decisions by Massachusetts courts (see Butter- 
 field v. Byron, (1891) 153 Mass. 517 ;• Angus v. Scully, (1900) 176 
 Mass. 357), which hold that where performance of the contract was 
 prevented by destruction of the subject-matter, a contractor may 
 
WHO MAY ACQUIKE A LIEN". 79 
 
 recover for partial performance, but Canadian and English deci- 
 sions are opposed to this view of the law. The Canadian law is 
 aptly illustrated by an Ontario case which deals fully with the 
 question. King et al. v. Low et al., (1901) 3 0. L E. 234, follow- 
 ing Appleby v. Meyers, (1867) L. E. 2 C. P. 651. For legal effect 
 of accident to subject-matter, see Lame v. The Queen, (1896) 5 
 Ex. C. E. 103. As to default in building contract by the owner, see 
 Wells v. Army & Navy C. 8., (1902) 86 L. T. 764. As to question 
 of right of removal of plant and dismissal of contractor, see Ash- 
 field v. Edgell, (1891) 21 0. E. 195. 
 
 The .defendant, who had taken a contract for the erection of a 
 dwelling house for a fixed sum, accepted the plaintiff's tender to do 
 the plumbing and tinsmithing for $500, but before the completion 
 of the plaintiff's contract, though after they had done work up to 
 $488, the building was destroyed by fire, not happening by the fault 
 of the plaintiffs, defendants, or the owner. The defendants had 
 received two sums amounting to $1,500 on account of their contract, 
 but they denied that any portion of it was for work done by the 
 plaintiffs. In an action by the plaintiffs to recover the $488, on a 
 quantum meruit, it was held that where the contract is to do work 
 for a specific sum, there can be no recovery until the work is com- 
 pleted, or unless the failure to complete is caused by the defendant's 
 fault, and this applies as" well to original as to sub-contractors, and 
 as the plaintiffs admitted the non-completion by suing on -a quan- 
 tum meruit, and there was nothing to show any default on the de- 
 fendant's part, there could be no recovery. A different phase of this 
 question as to the effect of the destruction of the subject-matter is 
 dealt with by the decision in Ontario L. & P. Co. v. Baxter & Gal- 
 loway Co., (1903) 5 O. L. E. 419. Where a person entered into an 
 agreement to build a cofferdam, and there was no sustaining sub- 
 stratum, an action would not lie for the work and labor performed 
 in attempting to complete the contract. Where the plans furnished 
 to the plaintiff represented the existence of a sufficient substratum, 
 which did not in fact exist, and his labor was thus rendered useless, 
 
80 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 he could only recover for the 'work done before that fact was dis- 
 covered. In this case the distinction between a warranty and a 
 representation, and between a representation inducing a contract 
 and a representation forming part of a contract is discussed. Hill 
 v. Fraser, (1858) 2 Thorn. (Nova Scotia) 294. See also Thorn 
 V. Mayor of London, (1874) L. E. 9 Ex. 163; L. R. 10 Ex. 112; 
 McKenna v. McNamee, (1887) 14 0. A. R. 339, 15 ,Can. S. C. R. 
 311. 
 
 Although Canadian Courts do not absolutely adopt the doctrine 
 of " substantial performance " which is generally favored by Ameri- 
 can Courts, yet where it appears that the repairs called for by the 
 contract were substantially done, though there, might have been a 
 variation from the contract in some particulars, or an unimportant 
 part of the contract remained unfinished, the contractor would be 
 treated by Canadian Courts as entitled to recover the price agreed 
 upon in the contract, subject to deductions for whatever expendi- 
 ture was found necessary to make the work correspond , with the 
 specifications. In such a case the failure to do everything called 
 for in the specifications would not put an end to the contract or 
 prevent the contractor from making any claim upon it. The con- 
 tractor can recover the contract price less so much as it is found 
 ought to be allowed in respect of the items which , are defectively 
 done or not done at all. He may enforce a lien for the contract 
 price, less the cost of completing the contract. Taylor Hardware 
 Co. v. Hunt, 39 0. L. R. 85 ; 35 D. L. R. 584. See also 36 D. L. R. 
 383; Daiin v. Lee, (1916) 1 K. B. 566. 
 
 If, however, the work omitted is substantial in value and extent 
 and there has been no waiver of performance in respect thereto, 
 unless it appears that the work was omitted through oversight or 
 excusable neglect, the' contractor, even under an American law, 
 would not be entitled to recover anything. North American W. P. 
 Co. v. Jackson Const. Co., (1915) 167 N. Y. App. Div. 779. In 
 this case it appeared that the contractor had omitted work valued 
 at about 14 per cent, of the entire contract price^ and there had 
 
WHO MAY ACQUIEE A LIEN. 81 
 
 been no waiver of performance and no finding of good faith on the 
 part of the contractor. But trifling omissions in the performance of 
 the contract will not defeat a lien. Glacius y. Black, (1872) 50 
 N. Y. 145. On the other hand the contractor cannot recover in the 
 action if an important item of his contract is absolutely omitted. 
 Simpson v. Bubeck (1911) 21 0. W. E. 260. See Watts v. McLeag, 
 (1911) 19 W. L. B. 916; Merriam v. Public Parks Board, (1911) 
 18 W. L. E. 151, affirmed, (1912) 20 W. L. E. 603; McDonald v. 
 Symons, 15 W. L. B, 218. 
 
 It would seem that the rule in the case of building contracts is 
 somewhat similar to that in' the case of specific performance, which 
 is that such non-essential and trivial defects on the side of one 
 party as can be compensated for will not excuse the other party to 
 the contract. See Halsbury's Laws of England;, vol. 3, p. 387. In 
 every case it must be a matter of degree. The omission of a lock on 
 a door in a large mansion, or the omission to put some zinc on a 
 roof might not amount to non-completion (liowfher v. Heaver, 
 (1899) 41 Ch. D. 248, 262), while omission to put down the floor 
 in a house would certainly do so. See Williams v. Fitzmauricei 
 (1858) 3 H. & N". 844. The omission to erect a verandah required 
 by the contract was considered as sufficiently substantial to preclude 
 recovery of the contract price and prevent the enforcement of a lien. 
 Simpson v. Bubeck, (1911) 21 0. W. E. 260. 
 
 In Ontario it has been held that where there is a contract to do 
 specified work for a fixed sum with a proviso for payment of propor- 
 tionate amounts equal to 80 per cent, of this fixed sum as the work 
 is done, and the balance of 20 per cent, in thirty days after com- 
 pletion, the completion is a condition precedent to the right of the 
 plaintiff to enforce payment of the balance of the contract price. 
 Sherlock v. Powell, (1899) 26 O. A. B. 407. The headnote in this 
 case is somewhat misleading. The right to recover instalments of 
 the price was not dealt with. See comment of Hodgins, J.A., in 
 Deldo v. Qough-Sellers Investments, Ltd., (1915) 25 D. L. B. at 
 p. 605. See Black v. Wiebe, (1905) 15 Man. L. E. 260, 1 W. L. E. 
 
 MX. 6 
 
82 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 75. As to oral alterations of terms and quantum meruit, see 
 Barry v. Ross, (1891) 19 Can. S. C. E. 360. 
 
 Where no time for performance is fixed in the contract, the 
 law implies that it is to be performed within a reasonable time. 
 
 The lien may be acquired by a corporation or a partnership. A 
 lien claimed by a partnership stands in no different position from 
 any other lien by reason of the " owner " being a member of the 
 partnership. Boss v. Gorman, (1908) 1 Alta. L. E. 516. The death 
 of the contractor or the dissolution of the partnership cannot affect' 
 the lien of the contractor. 
 
 In building contracts the law is now on a just basis, the rule of 
 exact or literal performance having been somewhat relaxed in 
 recent years. But where omissions or deviations from the terms of 
 the contract are so substantial that an allowance out of the contract 
 , price would not give the owner essentially what he contracted for 
 there can be no recovery. Where the defects pervade the whole 
 work and are very substantial, and where some if not many of them 
 are wilful and intentional departures or omissions from the con- 
 tract, the contractor cannot recover. Smith v> Buggiero, 52 App. 
 Div. (N.'Y.) 382, affirmed 173 N. Y. 614. But where a detail is not 
 a matter going to the essence of the contract, an exact compliance 
 with it not being a condition precedent, — for instance, the omission 
 of tie-rods in a cement floor, the contractor can recover. Gillis v. 
 Cobe, 177 Mass. 584. The rule of damages by which to measure 
 the loss, as stated in an important American case, is the rea- 
 sonable cost of remedying the defects which can be practically 
 remedied so as to make the structure exactly conform to the agree- 
 ment, and the difference between the value of the structure so com- 
 pleted and one like the building agreed upon. Fuller v. Heintz, 
 (1909) 137 Wis. 169. If the defects may easily be remedied with- 
 out a reconstruction of any special part of the building, the builder 
 may recover the contract price less what it will cost to make his 
 work comply with the contract. 
 
 In cases where an unimportant part of the work remains un- 
 finished,' one who contracts to supply material or do work on a 
 
WHO MAT ACQUIEE A LIEX. 83 
 
 building is entitled to enforce a lien for the contract price less the 
 cost of completing the contract. Taylor Hardware Co. v. Hunt, 
 (1917) 35 D. L. E. 584, Adams v. McGreevy, 17 Man. L. K. 115, 6 
 W. L. E. 188. But where the entire contract for work and labor 
 has not been substantially performed, or where the contractor, al- 
 though the contract has, been substantially carried out, refuses to 
 complete it, he is not entitled to recover anything. Yakowchuk v. 
 Crawford, (1917) 3 W. W. E. 479. But a building contract for 
 $2,850 cannot be said to have been substantially performed where, 
 after buildings contracted for were completed, the builder neglected 
 to put in lateral sewers and water connections, which the owner 
 afterwards caused to be put in at the expense, of $180. Hollester v. 
 Mott, (1892) 132 N. Y. 18. The work as done being worth one- 
 seventh less than it would have been had it been done in compliance 
 with the terms of the contract, there is no substantial performance 
 of the contract, so as to entitle the contractor to recover. Mitchell 
 v. Williams, 80 App. Div. (NY.) 527. See also Mitchell v. Dun- 
 more Realty Co., 126 App. Div. (N.Y.) 829. 
 
 Where there has been substantial but not absolute performance 
 of a building contract, the contractor may, in certain cases, recover 
 the contract price, less such deductions as the other party is entitled 
 to insist upon because of negligence or bad workmanship in respect 
 of some items of the work. Canadian Western Foundry & Supply 
 Co. v. Hoover, (1917) 3 W. W. E. 594; Watts v. McLeay, 19 W. L. 
 E. 916. As to entire contract and provision for "liquidated dam- 
 ages," see St. Catherine Improvement Co. v. Rutherford, (1914) 
 31 0. L. E. 574; McManus v. Rothschild, (1911) 25 <0. L. E. 138. 
 The authorities on the question of penalty or liquidated damages 
 are reviewed in the latter case. The fact that, in an entire contract, 
 some item of the work has been done negligently or inefficiently o.r. 
 improperly does not prevent the builder from recovering in an 
 action) but, in such case, the builder would be entitled to recover the 
 contract price less so much as is found ought to be allowed in re- 
 spect of the items of defective Work. Dakin v. Lee, (1916) 1 K. B. 
 
84 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 566; Taylor Hardware Co. v. Hunt, (1917) 35 D. L. E. 584; 
 Adams v. McGreevy, 17 Man. L. E. 115, 6 W; L. E. 188. 
 
 Even where builders enter into a contract to carry out a large 
 number of alterations and repairs to a. house in accordance with 
 specifications for a lump sum, and it is established in evidence that 
 the concrete used to underpin a wall was not in accordance' with the 
 
 . specifications either as to quality or quantity, and, secondly, that 
 certain rolled steel joists supplied had not been bolted ,at the top 
 in accordance with specifications, and, thirdly, solid columns, four 
 inches in diameter had been supplied in place of hollow columns 
 five inches' in diameter, it was nevertheless held that the builders 
 
 • were entitled to recover the lump sum subject to deduction of the 
 amount necessary to make the work correspond with that contracted 
 to be done. The defects and omissions in the work amounted only 
 to a negligent performance of the contract, and hot to an abandon- 
 ment of or failure to complete the contract. Dakin v. Lee, (1916) 
 1 K. B. 566. 
 
 The damages suffered by an owner owing to non-completion, 
 while not available to him as a set-off against claims for wages, nor 
 bo diminish the statutory percentage required to be retained by him, 
 may be and sometimes must be gone 'into before the judge or officer 
 trying a ease under the Act. To ascertain the sum justly due from 
 the owner to the contractor necessitates an inquiry,, where a case is 
 made for it, as to the value of the work done and the damages suf- 
 fered, — to be set off or deducted for work undone or improperly done 
 or for delay; and in a case where such an inquiry is proper the 
 result may be stated in the judgment. Milton Pressed Brick Co. v. 
 Whalley, (1918) 42 0. L. E. 369. As to delay in performance, 
 which delay owing to unavoidable cause, did not amount to breach, 
 see Henry Hope & Sons v. Canada Foundry Co., (1917) 40 0. L. E. 
 338. 
 
 Partial Performance. 
 
 In building contracts the question of completion is one of fact,i 
 and while ordinarily, in order to claim a Hen, the contractor must 
 
WHO MAY ACQUIRE A LIEN. 85 
 
 show that he has performed his contract, yet, a contractor may 
 recover for partial or inexact performance of the contract in some 
 cases, as where the defect in the building was known before the com- 
 pletion of the work and the defendant allowed the work to go on, 
 minimizing the defect, and after completion promised to pay and 
 made no complaint until after the registration of the lieu (Holtby 
 v. French, (1902) 1 0. W. E. 821), where a strict compliance was 
 waived by the owner (Heckman V. Pinkney, (1880) 81 N. Y. 211), 
 or where the completion was dispensed with by agreement (Moore 
 Y.Ericksbn, (1893) 158 Mass. 71; Connoly v. Sullivan, (1899) 173 
 Mass. 1), where the deviation in the contract arose in respect to a 
 matter not a condition precedent to recover (Lucas, v. Goodwin, 
 (1837) 3 Bing. N. C. 737), or where the owner refused to pay an 
 instalment of the contract price, or to furnish the necessary 
 materials as agreed. Thomas v. Stewart, '(1892) 132 1ST. Y. 580; 
 Wright v. Bensens, (1892) 133 N. Y. 298; Carew v.. 
 Stubbs, (1892) 155 Mass. 549; Hunter v. Walter, 12 N. 
 Y. iSupp. 60, affirmed, (1891) 128 N. Y. 668. A contrae-. 
 tor may recover without the architect's certificate where the. 
 contractor is prevented from obtaining the certificate by the wrong- 
 ful act of the " owner." Smith v. Gordon, (1880) 30 U. C. C. P. 
 553. Failure by the owner to supply material whiph the contract 
 provides he shall supply discharges a penal clause. Degagne v. 
 Ohave, (1895) 2 Terr L. E. 210. Insolvency of the owner which 
 prevents performance is a valid excuse for non-performance. Hen- 
 derson v. Sturgis, 1 Daly (N.Y.) 336. 
 
 There are several decisions by Massachusetts courts (Butterfield, 
 v. Byron, (1891) 153 Mass. 517; Angus v. Scully, (1900) 176 
 Mass. 357 which hold that where performance of the contract was 
 prevented by destruction of the subject-matter a contractor may 
 recover for partial performance, but Canadian and English deci- 
 sions are opposed to this view of the law. The Canadian law on 
 this point is to be found in an Ontario case already referred to. 
 King et al v. Low et al., (1901) 3 O. L. E. 234. As to responsi- 
 
86 THE LAW OF MECHANICS'" LIENS IN CANADA. 
 
 bility of contractor where foundation walls collapse, see Grace v. 
 Osier, (1911) 16 W. L. B. 627, 19 W. L. E. 109, 326. If an owner 
 employs a competent architect to design a building, the owner would 
 ordinarily not be liable to employes of a, contractor injured by the 
 collapse of the building during its construction. , Burke v. Ireland, 
 26, N". Y. App. Div. 487. 
 
 Mere possession or user by the owner of the building upon 
 which the work was done is not a sufficient acceptance of an incom- 
 plete or imperfect performance of the contract so as to entitle the 
 contractor to recover. Brydon v. Lutz, (1891) 9 Man. L. E. 64; 
 Gearing v. Nordheimer, (1876) 40 TJ. C. Q. B. 21; Sumpter v. 
 Hedges, (1898) 1 >Q. B. 673; Oldershaw v. Garner, (1876) 38 IT. 
 C. Q. B. 21; Wood v. Stringer, (1890) 20 O. E. 148; Keen v. 
 Keen, (1902) 1 K. B. 55. See also Hart v. Porthgain Harbor, 
 (1903) 1 Ch. 690; Foster v. Hastings Corporation, (1903) 87. 
 L. T. 736 ; Leroy y. Smith, (1900) 8 B. C. E. 293 ; Watts v. McLeay, 
 (1911) 19 W. L. E. 916 (Alta.) ; Donaldson v. Collins, (1912) 21 
 W. li. E. 56 (Sask.).. 
 
 In a Manitoba case (McAr'thurY. Dewar, (1885) 3 Man. L. E. 
 72; see also judgment of Perdue, J., in Black v. Wiebe, (1905) 
 15 Man. L. E. 260), Killam, J., said: "The owner of the land 
 has not an option of giving up the benefit received, the portion 
 of the building erected has become a part of his land and is 
 not severable therefrom, and the mere retention of the erection 
 upon the lands and the use of it with the other portion of the 
 lands cannot give rise to an implied contract to pay for the 
 work done." In an Ontario case (Wood v. Stringer, (1890). 20 
 O. E. 148), it was contended that certain pews were accepted and 
 used by the church, but Boyd, C, on this point said: "However, 
 the church had to be oocupied, and I do not think this should 
 operate as an acceptance of this bad work." Acceptance of a 
 building by the owner as completed, operates as waiver of the 
 requirements that the contractor shall procure the architect's cer- 
 tificate. Smith v. Alker, (1886) 102 N". Y. 87. As to the effect 
 
WHO MAT ACQUIRE A LIEN. 87 
 
 of taking possession and making payment on account, see Law- 
 rence v. Village of Luchnow, (1887) 13 0. E. 421, in -which. 
 Munro v. Butt (1858) 8 E. & B. 738, is distinguished. 
 
 Time might be of the essence of a contract even without any 
 express stipulation, if it appears that such was the intention. 
 Oldfield v. Dickson, (1889) 18 0. E. 188. Non-performance of 
 one contract does not affect the claimant's rights to a lien under 
 another contract which has been performed, though- both relate to 
 the same premises. Hunter v. Walter, 12 N. Y. Supp. 60, affirmed, 
 (1891^ 128 N. Y. 668. A contractor may .not show that materials 
 used in construction are preferable to those required by the con- 
 tract. Shultze v. Coodstein, (1904) 180 N. Y. 248. But much 
 would depend upon the actual facts in the particular case. Al- 
 though the subsequent acts of the parties to a contract are not 
 admissible as evidence to vary its terms they may prevent one of 
 the parties from insisting upon the strict performance of the origi- 
 nal agreement. Bruner v. Moore, (1904) 1 Ch. 305. Under a 
 contract to execute certain work, where there was a wrongful sei- 
 zure of the work by the defendants, the plaintiff was held entitled 
 to determine the contract. 'Ladder v. Slowey, (1904) A. C. 442. 
 
 If under a contract which makes, the right of the contractors 
 to receive payment dependent upon the certificate of an engineer 
 who is also the sole arbitrator of all disputes, the engineer unjusti- 
 fiably delays the issue of the certificate and acts in a shifting and 
 vacillating, though not fraudulent manner, and probably causes 
 heavy loss to the contractors by mistakes, the certificate cannot be 
 set aside in the absence of collusion. Walhley et al. v. City of Vic- 
 toria, (1900) 7 B. C. E. 481. An architect, in such cases, occupies 
 the position of an arbitrator, and is therefore not liable to an action 
 by the owner for negligence in the exercise of such functions. 
 Chambers v. Goldthorpe, 70 L. J. K. B. 482, (1901) 1 K. B. 624. 
 Possible bias does not disqualify an engineer whose certificate is 
 required under the contract. Farquhar v. City of Hamilton, (1892) 
 20 0. A. E. 86. As to power of architect, under special agreement, 
 
00 THE LAW OF MECHANICS LIENS IN CANADA. 
 
 to dismiss contractor or any workman, see Smith r. Gordon, 
 (1880) 30 U. C. C. P. 553. 
 
 Under a contract which empowers an owner to take possession 
 and complete the work when the work is not being proceeded with 
 at a rate to ensure its completion by a stipulated date, an owner is 
 not, bound to exercise his right as soon as he has reason to suspect 
 that the work will not be completed at the date mentioned, but 
 without waiving his right may delay action until the fact becomes 
 established beyond all doubt. Millihen v. City of Halifax, (1889) 
 21 N. S. E. 418. 
 
 Where under a building contract work was to be completed by 
 " Noy. 31st" under penalty of damages, this date was construed to 
 mean Nov. 30th. McBetm v. Kinnear, (1892) 23 0. R. 313. As 
 to the- rights of parties where in a contract 'between a builder and 
 an owner a date was fixed for the completion of the, building and, 
 delay occurred by default of sub-contractors, — see Mitchell v. Guild- 
 ford Union, (1903) 1 L. G. E. 857, 68 J. P. 84." As to the failure 
 to complete building contract and faulty construction of the work, 
 see Bender v. Carrier, (1877) 15 Can. S. C. B. 19. 
 
 If the contract provides for the certificate of an architect and no 
 architect is appointed the provision is inoperative, Degagne v. Ghave, 
 (1895) 2 Terr. L. E. 210. Where a building contract stipulates 
 that the < architect's certificate shall be conclusive evidence of the 
 builder's right to final judgment, and the certificate is produced 
 and not impeached, there is no ground for refusing enforcement 
 of the lien. Snaith v. Smith, 25 N". Y. Supp. 513. As to final and 
 conclusive character of architect's certificate, see Brown v. Banna- 
 tyne School Section, (1912) 22 'Man. L. E. 260; Hamilton v. 
 Vineberg, (1912) 4 D. L. E.'827. 
 
 If the architect is by the' terms of the contract made arbitrator, 
 his decision cannot be dispensed with unless it is withheld un- 
 reasonably or in bad faith. Thomas^ v. Fleury, 26 TS. Y. 26 ; 
 Davidson v. Provost, 35 111. App. 126. See Law \. City of Toronto, 
 (1919) 47 0. L. E. 251, as to bias. The written contract con- 
 trols the specifications. Grace v. Osier, (1911) 16 W. L. R. 627, 
 
WHO MAY ACQUIRE A LIEX. 89 
 
 19 W. L. E. 109, 326 (Man.). Caldwell v. Schmulbach, 175 Fed. 
 429. The plaintiff, a builder, contracted to erect a building in 
 Vancouver for the defendants, the contract providing that no 
 extras would be allowed unless their value was agreed upon and 
 endorsed on the contract. On the instructions of S. who intended 
 to occupy the building for the purpose of a bottling company of, 
 which he was a member the plaintiff made alterations and addi- 
 tions, *but no endorsement was made on the contract. It was held 
 that such endorsement was a condition precedent to plaintiff's 
 right to recover. McKinnon v. Pdbst Brewing Co.,. (1900) 8 B. 
 C. E. 265. See also Wood v. Stringer, (1890) 20 O. E. 148. 
 
 If the contractor is dismissed and the owner verbally employs 
 a sub-contractor to finish the building, this new contract need not 
 be in writing, and the sub-contractor, after the new contract, is 
 entitled to a mechanics' lien as contractor. The conditions of such 
 old contract would not be applicable to the new contract, and the 
 non-production of an architect's certificate required by the con- 
 tract of the dismissed contractor as a condition precedent, would 
 not preclude the sub-contractor from recovering under the oral 
 agreement, provided the work was so done as to morally entitle 
 him to such certificate. Guest v. Hunter, (1882) 3 G. L. T. 33, 
 distinguishing Bond v. Treahey, (1876) 37 U. C. Q. B. 360; Petrie 
 v. Hunter, (1882) 2 O. E. 233, 10 O. A. E. 127; King v.. 
 Low, (1901) 3 O. L. E. 234. Where a person by a contract, 
 takes upon himself the responsibility that certain events shall take 
 place or pay damages if from any cause he is prevented from 
 carrying out the contract, the fact that the contract becomes im- 
 possible of performance does not excuse such party for non-per- 
 formance of the contract. Ashmore v. Cox, (1899) 1 Q. B. 436. 
 See Thome v. Mayor of London, (1874) L.'e. 9 Ex. 163, L. E. 
 10 Ex. 112. 
 
 In Boyce v. Huxtable, (unreported, Nova Scotia), an action by 
 a contractor against the owner of the property who employed him 
 to make extensive repairs, the defendant sought to set off a payment 
 made by him to a sub-contractor of the plaintiff. It appeared that 
 
90 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the sub-contractor came to the office of the defendant and informed 
 him that the sub-contract had been completed 29 days before this 
 interview, but that he had received no payment from the plaintiff, 
 and intended placing a lien on defendant's property for the amount 
 of his claim, $420. In order to avoid having this lien placed upon 
 his property and thereby injuring his business, defendant notified 
 the plaintiff of his intention to pay this debt, and hearing nothing 
 from plaintiff, the defendant subsequently paid this amount to the 
 sub-contractor. Wallace, Co.J., held that while it is ordinarily no 
 defence or set off in an action of pontract that the defendant has 
 paid to a creditor of the plaintiff the amount which defendant owed 
 the plaintiff, yet, in Mechanics' Lien proceedings the owner of the 
 property is not bound to wait and allow his property to be charged 
 with an enforceable lien which might injure his credit, or otherwise 
 embarrass him, but may pay this enforceable claim which the con- 
 tractor should have paid, and may set off such payment in a suit or 
 lien proceedings instituted by the contractor. Where the debt 
 was justly due by the plaintiff and was enforceable by lien proceed- 
 ings againsfr the defendant's property, and where the defendant was 
 notified by the lien claimant that he was about to start proceedings 
 against this property, defendant is justified in paying the claim, 
 after notifying plaintiff of his intention to do so, and receiving no 
 reply from the plaintiff. In such an exceptional case it is reason- 
 able to imply a request from the plaintiff to pay this pressing and 
 enforceable debt. 
 
 There appears to be no report of any similar Mechanics' Lien 
 case, involving the same question, but a similar request has been 
 implied in cases of a like nature. See Exall v. Partridge, 8 T. E. 
 308; Hale v. Euse, 10 Gray, (Mass.) 99; Nichols v. Bucknam, 117 
 Mass. 488; Hitchcock v. Lancto, (1879) 127 Mass. 514; Doe v. 
 Monson, 33 Me. 430. 
 
 In an action to enforce a lien a contractor joined the architect 
 as a defendant and claimed damages against him for fraudulently 
 withholding a certificate. It was held that the architect should, 
 be struck out as defendant. The claim would be good as against 
 
WHO MAY ACQUIRE A LIEN. 91 
 
 the owner, but as against the architect the plaintiff must pursue 
 his ordinary remedy. Bagshaw t. Johnson, (1901) 3 0. L. E. 
 58, followed by Magee, J., in Dunn v. McCallum, (1907) 14 0. 
 L. E. 249. 
 
 Immoral contracts being against public policy as encouraging 
 immorality, courts will not aid in enforcing a mechanics' lien for 
 a contractor who knew that the additions which he made to a pro- 
 perty were for the purpose of increasing the defendant's immoral 
 trade. Miller v. Moore, (1911) 17 W. L. E. 548 (Alta.). 
 
 A contractor agreed to erect a house with the exception of the 
 plumbing and certain other work which the owner agreed to do. 
 The contractor, after performing work which entitled him to pay- 
 ment of the first instalment of his contract price, notified the 
 owner that he was unable to complete his contract because the 
 plumbing had not been done, and demanded payment of the first 
 instalment. It was held that the contractor was entitled to treat 
 the owner as having repudiated the contract, and could take the 
 necessary steps to recover for what he had done under it, and also on. 
 his part to put an end to it. Sidney v. Morgan, 16 B. C. R. 18, 16 W., 
 L. E. 123. Where a contract for a heating plant provided that the, 
 contractor should do certain work upon or before a certain date and. 
 should not be required to do any more work after that date on 
 said job until the payment of $1,000, and the payment of the bal- 
 ance was satisfactorily secured, it was held the terms were suf- 
 ficient to authorize the allowance of a lien for the $1,000. Boulet 
 v. Hogan, 203 111. 525. It has been held that in the absence of 
 express stipulation the materials of old buildings on the site belong 
 to the contractor. See Morgan v. Steevens, (1879) 6 Abb. (N.Y.) 
 Xew Cases, 356. 
 
 It is no objection to the claim of a sub-contractor that the 
 principal contractor as a corporation had no power to contract 
 under its charter. General Fire Extinguisher Co. v. Magee Carpet 
 Works, 199 Pa. 647. 
 
 In an important Massachusetts case, Friedman v. County of 
 Hampden, (1910) 204 Mass. 494, in connection with a claim aris- 
 
92 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 izfg from construction of public works, certain principles deter- 
 mining the validity of liens under a Mechanics' Lien Act were 
 applied, and it was held that certain charges of a sub-contractor 
 for removal of loam and putting up fence and employment of 
 watchman, in connection with work of excavation and grading, 
 constituted items of the cost of the material and labor which fin- 
 ally went into the building for which he could have a lien under 
 a Mechanics' Lien Act. But a sub-contractor who performed the 
 work of furnishing, putting up and removing radiators for the 
 drying of plaster put in by another sub-contractor had no such 
 lien. 
 
 Anyone who contracts directly with the owner, though it be only 
 to furnish materials, is a "contractor." Jflclcson v. Etfan, (1911) 
 200 K. Y. 496. 
 
 The lien of the materialman is dealt with in a subsequent 
 hapter. - 
 
 A mechanics' lien is restricted to the value of the labour per- 
 formed and materials furnished, and any claim for damages for 
 breach of a contract in refusing to allow the contractor to perform, 
 the work is not within the provisions of the statute and must be 
 enforced in an ordinary action for. damages. Midtown Contracting 
 Go. v. Goldsticher (1914), 165 1ST. Y. App. Division 264. On the 
 other hand, damages for delay in performance cannot be set off 
 against a lienholder. Smith- v. Bernhardt, 2. Sask. L. E. 315. 
 
CHAPTER VI. 
 
 Liens of Sub-Contkactors and Wage-Earners. 
 
 A sub-contractor is defined by the Mechanics' Lien Acts, gen- 
 erally, as a person not contracting with or employed directly by 
 the owner or his agent, but contracting with or employed by a 
 contractor, or under him by another sub-contractor. 
 
 No privity of contract is necessary between the sub-contractor, 
 the materialman, and the workman on the one hand, and the owner 
 on the other. The statute gives a direct lien to persons who do 
 the work or furnish materials under contract , with the contractor, 
 and the owner cannot deprive them of this lien. Arily v. Holy 
 Trinity Church, (1885) 2 Man. L. E. 248; McArthur v. Dewar, 
 3 Man. L. E. 72; Union v. Porter, 8 W. L. E. 423; 9 W. L. E. 325; 
 Gorman v. Henderson, (1908) 8 W. L. E. 422 (Alta.) ; McAulay v. 
 Powell, (1908) 7 W. L. R. 443 (Alta.) ; Miller v. Salumet Lumber 
 Cq., (1903) 111 111. App. 651. If a payment in land is to be made 
 to the contractor, the court will secure the sub-contractors' right. 
 Anderson v. Huff , (1892) 49 N. J. Eq. 349. Where part of the 
 contract price was to be paid in lots the sub-contractors doing the 
 work and proving a lien were held to be entitled to have such lots 
 sold and the proceeds of such sale applied in payment of their 
 claims. Head v. Coffin, (1910) 13 W. L. R. 663. 
 
 While the sub-contractor's lien can exist only upon the basis of 
 the contract between the owner and the original contractor, it is, 
 nevertheless, a direct lien, and is not entirely dependent upon the 
 contractor's lien, which may, however, affect its extent. 
 
 Where nothing is payable under a building contract until the 
 whole of the work is completed, but the owner voluntarily makes 
 payments to the contractor as the work progresses, to the extent of 
 the value of work done, a sub-contractor who has not been paid is 
 entitled, as against the owner, to a lien for the amount due him, 
 
94 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 to the extent of twenty per cent, of such payments. Russell v. 
 French, 28 0. B. 215; Carroll v. McVicar, (1906) 15 Man. L. B. 
 379, 2 W. L. E. 25. In the latter case the plaintiff's claim con- 
 sisted of charges for different jobs, all in his line of business, but, 
 ordered at different times, and, as to the first job, if considered 
 separately, his lien was not filed within the statutory time, but it, 
 was held that in such circumstances a mechanic should not he 
 required, in order to secure payment, to file a lien after completing 
 each piece of work, and that filing his lien after he has completed 
 all of his work is sufficient. 
 
 The lien of a contractor or sub-contractor attaches when he has 
 completed his contract, or, if the contract provides jor interim pay-, 
 ments on account, a lien attaches when each payment becomes 
 due to the extent of the amount thereof. Where a sub-contractor 
 undertakes to do a certain work and supply materials for a lump 
 sum, without any stipulation as to payment before completion, 
 his lien attaches only on completion of his work, and if there be 
 no money then due fro,m the owner to the contractor, the sub- 
 contractor's lien fails. Brader v. Brown, (1917) 24 B. C. E. 374; 
 Fuller v. Turner and Beech, (1913) 18 B. ,C. E. 69. There is a 
 provision in the Acts of Alberta, British Columbia and Saskatche- 
 wan declaring that save as in the Act set out, the lien shall not 
 attach so as to make the owner liable for a greater sum than the 
 sum payable by the owner to the contractor. It was formerly held 
 by the Supreme 'Court of Alberta that when the lien attached by 
 the furnishing of material or the. doing of work, the amount at 
 that time unpaid, which then, or later, the owner might legally 
 be required to pay, is the limit of the amount for which the lien- 
 holder may have recourse against the owner, but that, so far as 
 that amount is concerned and to the extent of the sum owing to 
 the lien-holder, no subsequent payment to the contractor will re- 
 lieve the owner. Ross Bros. v. Gorman, (1908) Alta L. E. 516. 
 Travis v. Brechenridge Land, Inimler & Coal Co., (1910) 43 
 Can. S. ,C. E. 59. See note relating to this case, 9 D. L. E. 110, 
 which note states that this case in no way overrules or weakens 
 
LIENS OF SUB-CONTRACTORS AND WAGE-EARNERS. 95 
 
 the authority of the other cases cited, as the lien was disallowed 
 by the Supreme Court of Canada on the express finding that there 
 was no " sum owing and payable to the contractor by the owner at 
 the time when delivery of the materials was made by the plain- 
 tiffs." The Court of Appeal in British Columbia, however, in the 
 ease of Fuller v. Turner, (1913) 18 B. C. K. 69, and LePage 
 McKenney & Co. v. Pinner & McLellan, (1915) 21! B. C. E. 81, 
 have not followed the earlier British Columbia and Alberta cases. 
 In Fuller v. Turner, B. contracted to build a house for T. A lien 
 claimant, F., was a sub-contractor for the plastering. The con- 
 tracts included both labor and material and were for lump sums. 
 B.'s contract was for $8,500, and after payment of $6,100, T. under 
 a provision in the contract took it over from B., who had assigned 
 for the benefit of his creditors, and completed it at a cost of more 
 than $2,400. At the time the contract was taken over, B. had 
 almost completed his contract, and it was held that as there was 
 no amount due T. to B. when he took over the contract, the limita- 
 tion in section 8 of the Act applied and the lien failed. 
 
 The rights of sub-contractors and materialmen are measured 
 by the amount " justly due " by the owner to the contractor, and, 
 the owner is not liable to these claimants for a greater sum than 
 is payable to the contractor. ' Smith v. Berrihart, (1909) 11 W. 
 L. E. 623 (Sask.). If, for instance, at the time of the abandon- 
 ment by a contractor of his building contract there is by the terms 
 of it nothing payable to him by the owner, a sub-contractor, 
 whether for work or materials, can have no lien upon the property 
 for money due him by the contractor. Wilks v. Ledue, (1917) 27 
 Man. L. E. 79, 30 D. L.E. 792, 35 W. L. E. 4. The onus of proof 
 is on the owner to show that nothing is due to the contractor. 
 Brown v. Allan, (1913) 25 W. L. E. 128. 
 
 A mechanic's lien filed by a sub-contractor is not to attach so 
 as to make the owner liable for a greater sum than the sum owing 
 by the owner to the contractor; consequently, if the latter's con- 
 tract with the owner does not entitle him to a further payment 
 until completion, the lien of the sub-contractor who has completed 
 
96 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 his sub-contract cannot be made effective until completion of the 
 entire work of the principal contractor, but the Court may, on the 
 trial of the lien action, direct that such lien shall remain in force, 
 so that it may attach in respect of further sums that may there- 
 after become due by the owner to the principal contractor, reserv- 
 ing leave to the owner to apply to discharge the lien. Colling v. 
 Stimson & Buckley, (1913) 10 D. L. E. 597 (Alta.). A sub- 
 contractor completing a building, where the contractor had been 
 dismissed, is entitled to a lien as contractor, and not as sub- 
 contractor, and his contract being a new one, the conditions of the 
 old contract would not be applicable. Quest v. Hunter, (1882) 3 
 C. L. T. 33; Petrie v. Hunter, (1883) 2 0. E. 333, 10 0. A. E. 
 127. See Smith y. Lange, 91 App. Div. (N.Y.) 192; Moore v. 
 Duggm, (1901) 179* Mass. 153. , 
 
 As has been already stated, the rights of lien-holders are 
 measured by the amount " justly owing " by the owner to the con- 
 tractor, and where an agreement provides payment by instalments 
 with the right to retain an amount as a drawback on the comple- 
 tion of the work, the lien accrues for the full amount of any instal- 
 ment payable, 'subject to the owner's right of deduction in the 
 event of the non-completion of the whole contract. Deldo v. 
 Gough-Sellers Investments, Ltd., (1915) 25 D. L. E. 602. • A sub- 
 contractor cannot acquire a lien on a claim for damages. Mayer v. 
 Mutchler, 50 N. J. L. 162; and on the other hand, damages for 
 delay in the contractor's performance cannot be set off against a 
 sub-contractor. Bernhardt v. Fry, (1909) 2 'Sask. L. E. 315. 
 
 The provision requiring the owner to create a fund by deducting 
 twenty per cent, from any payment to be made by him in respect' of 
 a contract entitles a sub-contractor to a lien on the statutory per- 
 centage in priority to any right of set off the owner may have by 
 reason of the default of the contractor in the performance of his 
 contract. 
 
 To establish a lien a sub-contractor must shew a substantial 
 performance of his contract with the contractor unless such per- 
 fqrmanee is waived or prevented by the contractor or owner. A 
 
LIENS OF SOB-CONTEACTORS AND WAGE-EARNERS. 97 
 
 sub-contractor is not bound to a strict compliance with the terms 
 of the principal contract. 2Iallett v. Kovar, (1910) 14 W. L. E. 
 327 (Alta.), But where the original contract contains a clause 
 requiring production of an architect's certificate before payment 
 becomes due, the sub-contractor is not required to show that this 
 term of the contractor's contract has been complied with. Lundy 
 v. Henderson, (1908) 9 W. L. E. 327. In an action by a sub- 
 contractor to enforce his lien, the contractor and any sub-contrac- 
 tor through whom the plaintiff claims must be made parties to the 
 action as well as the owner. Dunn v. HolbrooTc, (1900) 7 B. C. E. 
 503. In connection with work done for defendant bank, sub- 
 contractors supplied work and material to D. and G., other sub- 
 contractors, who failed to pay them, and a lien was registered on 
 the property of defendant bank. D. and G. had been already paid 
 in full by the contractor with the bank, but the bank held money 
 due the contractor on the contract. ,It was held that the funds 
 due the contractor in the hands of the bank were, liable. Wood & 
 McBeth v. Bank of Montreal, (1901) 40 N. S. E. 317. In Eng- 
 land, where there is no mechanics' lien legislation, a recent case 
 arose where an unsuccessful claim was made by a sub-contractor 
 of a lien on the whole of moneys payable by a building owner to 
 the head contractor for the amount of his debt. See Pritchett Co. 
 v. Gurrie, (1916) 2 €h. 515. 
 
 Where the amount required to complete the work over and 
 above the contract price far exceeds the amount retained the lien- 
 holders, other than wage-earners, have no claim upon the amount. 
 Peart v. Phillips, (1915) 31 W. L. E. 956 (Sask.) ; Travis v. Brech- 
 enridge, 43 iCan. S. C. E. 59, as summarized in Peart v. Phillips, 
 supra. In England, under ordinary contract law, a sub-contractor 
 was held to be entitled to sue the building owner where the sub- 
 contractor was_ a specialist for the supply of door handles and 
 door fittings, as, in the circumstances, the fact that the goods sup- 
 plied had been used by the builders raised an implied promise by 
 them to pay for the goods. Ramsden v. Chessum, (1914) 110 L. 
 
 MX. — 7 
 
98 ■ THE LAW OF MECHANICS* LIEN'S IN CANADA. 
 
 T. 274. Where a contract with the owner is sufficient to create a 
 mechanic's lien, it may well be implied that the owner, through, 
 the agency of the contractor, assents to the sub-contractor's lien 
 by the employment of labour and procuring materials to carry out 
 the contract. > ' 
 
 Payments made by the owner to the contractor after the lien- 
 holders' claim has attached, of moneys not due according to the 
 contract, should not be protected as payments made oona fide 
 without, notice. Ringland v. Edwards, (1911) 19 W. L. E. 219. 
 Where sub-contractors claimed a lien as against the owner for 
 work done under the contractor, and it appeared that these sub- 
 contractors had by giving the contractor receipts for money which 
 he had received from the owners to pay these , sub-contractors, and 
 had not paid them, led the owner to believe that they had been 
 paid, and he thereupon made other payments to the contractor in 
 excess of the work which he did or procured to be done upon the 
 building and the owner completed the building when the contrac- 
 tor abandoned it, it was held that these sub-contractors were not 
 entitled to enforce a lien against the owner's land, though they 
 had not been paid in full. 
 
 Where a contractor for a building abandons his contract without 
 paying a sub-contractor, and the owner of the property, solely with 
 the object of procuring the completion of the building, promises the 
 sub-contractor that in consideration of such completion, he will 
 pay him the debt due from the contractor as well as for the finishing 
 work, such contract can be enforced even \f it be oral. Conrad v. 
 Kaplan, 24. Man. L. E. 368. 
 
 The iStatutokt Pebcentage. 
 
 Statutory provisions dealing with a fund to be created by the 
 owner, out of which persons claiming a lien under, a contract not 
 made directly with the owner may be paid, have been! introduced 
 into Mechanics' Lien Acts in Canada, for the protection- of sub- 
 contractors and others. By these provisions a lien is given to sub- 
 contractors and labourers independent of the primary contract. 
 
LIENS OF SUB-CONTEACTOKS AND WAGE-EABNEBS. 99 
 
 This fund is to be created by the owner deducting a specific statu- 
 tory percentage from any payments to be made by him in respect 
 of the contract. The Act requires the owner to retain this per- 
 centage for the benefit of others who are putting their labour and 
 materials into his building. 
 
 This statutory fund arises from and consists of sums deducted 
 from "payments to be made." It cannot exist unless there are 
 payments made or to be made from which the deductions are made 
 which constitute the fund to be charged. The charge is not upon 
 money to become payable, but upon money which has actually, 
 become payable, a payment which is to be made and is directed to 
 be retained. Rice Lewis & Son, Ltd. v. Harvey, (1913) 9 D. L. E. 
 per Magee, J.A., at p. 123. So far as the claims of sub-contractors 
 and materialmen upon this statutory fund are concerned, in cases 
 where by reason of the contractor's default, the money never be- 
 comes payable, those claiming under him and having this statutory 
 charge upon this fund, if and when payable, have no greater right 
 than he himself had and their lien fails because for them, no fund 
 came into existence. Russell v. French, 28 0. E. 215; Farrell v. 
 Gallagher, (1911) 23 0. L. E. 130. 
 
 The owner is required to retain the statutory percentage whe- 
 ther he has notice, of the sub-contract or not, and he pays it to the 
 contractor at his own peril, if there be a sub-contractor in exist- 
 ence who is prejudiced by the payment. Dominion Radiation Co. 
 v. Cann, (1904) 37 F. S. E. 327. 
 
 The property owner is entitled under the Mechanics' Lien Act 
 . in Ontario and several other Provinces of 'Canada, to deduct from 
 the sums for which he is liable to his contractor on progress cer^ 
 tificates while ,the work is going on, twenty per cent, thereof (or 
 fifteen per cent, where the contract price exceeds $15,000) for the- 
 protection of persons entitled to liens as sub-contractors; and the 
 owner is not entitled as against the sub-contractor to apply such 
 percentage to answer the cost of completing the work on the con- 
 tractor's default. Rice Lewis & Son, Ltd. v. Harvey' et al., (1913) 
 9 D. L. E. 114. 
 
100 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 The fact that the owner did not retain from his contract "any 
 of the percentage of the value of the work as required by the 
 Mechanics' Lien Act (Ont.) for the protection of sub-contractors 
 and wage-earners, does not make him liable for sub-contractors' 
 claims as to which no lien was filed or notice of claim given the 
 owner until after the expiry of thirty days following the abandon- 
 ment of the work by the principal contractor, the statutory obli- 
 gation to retain the percentage being limited to thirty days after 
 completion or abandonment of the contract ' with the owner. 
 Brooks v. Mundy, (1914) 16 D. L. E. 119. 
 
 The provision requiring the owner to create a fund by deduct- 
 ing a specific percentage from any payment to be made by him in 
 respect of his contract entitles a sub-contractor to a lien on the 
 statutory percentage in priority to any right of set off the owner 
 may have against the contractor by reason of his default in the 
 performance of his contract. The statute gives a statutory right 
 in this fund to the sub-contractor, and no subsequent accruing, 
 rights of the owner can prejudice or affect that statutory right. 
 The statutory amount of payment which the owner may retain by 
 virtue of section 11 (i) of the Mechanics' Lien Act E. ,S. Sask. 
 c. 150, 'forms a fund available for the lien holders only, to which 
 the owners cannot resort as security against or to make good any 
 loss occasioned by the non-completion of the contract. Peart Bros. 
 Hardware Co. y. Battell, 23 D. L. B. 193 (1913) ; 9 S. L. E. 305. 
 
 With the exception of the special provision in the case of- wage 
 earners, the Mechanics' Lien Act does not make the owner liable, 
 for any greater sum than he has contracted to pay. If there be no 
 contract to pay except on completion of the work by the contrac- 
 tor, and the ' contractor does not fulfil his contract to the extent 
 required by the modern interpretation of the rule as to entire con-, 
 tracts, nothing is payable. .See H. Dahin & Co. v. Lee, (1916) 1. 
 K. B. 566. But where the case can be brought within this modern 
 interpretation of the rule as to entire contracts, and upon the tak- 
 ing of accounts upon the footing there recognized there is a bal- 
 
«'^k 
 
 LIENS OF SUB-CONTEACTOBS AND WAGE-EAENEES. 
 
 ance due the contractor, the owner must retain the statutory per- 
 centage of this sum for the protection of possible lien holders. 
 Burton v. Hoohwith, (1919) 48 D. L. E. 339. 
 
 The special provision for priority of wage-earners whereby it 
 is declared that as against wage-earners the percentage required 
 to be retained by the owner to answer liens shall not be applied by 
 the owner to the completion of the contract on the contractor's 
 default, nor to the payment of damages for non-completion does 
 not affect the other provisions of the Act regarding Mechanics' 
 Liens generally ; and it is not to be implied from such prohibition 
 that the owner may in cases other than for wages so apply the 
 statutory percentage towards the cost of completion as against the 
 liens of sub-contractors or materialmen in the event of the con- 
 tractor's default. Rice Lewis & Son, 'Ltd. v. Harvey, (1913) 9 D„ 
 L. E. 114. 
 
 When the statutory fund comes into existence, the property 
 owner is, as regards lien-holders holding claims against the princi- 
 pal contractor, a trustee of the twenty per cent, of payments which 
 become due to the latter under the contract during the progrses 
 of the work; and the owner will be liable for such percentage so 
 far as may be required to satisfy the unpaid lien claims, although 
 by his contract he was to pay and did pay the contractor only 80 
 per cent, of the value of , the work as certified by progress certifi- 
 cates of the architect, where the contractor afterwards abandoned 
 the work and the 20 per cent, retained of the value so certified by 
 the architect was insufficient to pay the cost of completing the con- 
 tract. Bice Lewis & Son, Ltd. v. Harvey et al., (1913) 9 D. L. E. 
 114. As to the percentage fund protecting sub-contractors, see 
 Annotation, 16 D. L. E. 121. 
 
 The provision requiring the owner to deduct 20 per cent, from 
 any payment to be made by him in respect of the contract, when 
 applied to a contract providing for payment of 80 per cent, of the 
 progress certificates, makes it necessary for him to deduct 20 per 
 cent of the 80 per cent. The amount so deducted forms a fund. 
 
102 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 for the lien-holders and thereafter it is available for them only, 
 and not as a fund to which the owner can resort as security against 
 or to make good any loss occasioned by the" non-completion of the 
 contract. Peart v. Phillips, (1915) 31 W. L. E. 956 (Bask.). 
 
 The obligation of the owner to retain a statutory percentage 
 of the value of the work and materials is limited to the period, of 
 thirty days after the completion or abandonment of the contract by 
 the contractor with whom the owner has contracted, and where 
 such contractor had abandoned the work uncompleted and the 
 owner had to pay more than the balance of the contract price to 
 finish it, a sub-contractor filing his claim more than thirty days 
 after the principal contractor's abandonment, although within 
 thirty days of his own last work on the building, has no lien, if 
 nothing then remained due the principal contractor. Brooks v. 
 Mundy, (1914) 16 D. L. B. 119 (Ont.). In Manitoba it has been 
 decided that under a Mechanics' Lien Act enabling claims for liens 
 by contractors or sub-contractors to be registered within thirty 
 days after the completion of "the contract," a sub-contractor is to 
 register his lien within thirty days after the completion of his con- 
 tract with the principal or superior contractor. Merrick v. Camp-, 
 bell, (1914) 17 D. L. E. 415. 
 
 Lien of the Wage-Eaenee. 
 
 The provisions in the Mechanics' Lien Acts in the various Pro- 
 vinces of Canada, aiming to protect the claims of workmen, are 
 substantially alike. In some of these Acts special clauses have 
 been introduced declaring that as against wage-earners the statu- 
 tory percentage required to be retained by the owner to answer 
 liens shall not be applied by the owner to the completion of the 
 contract on the contractor's default nor to the payment of damages 
 for non-completion. These clauses, indeed, may be sufficiently 
 broad to afford protection also to sub-contractors under similar 
 conditions. Bice Lewis & Son, Lid. v. Harvey, (1913) 9 D. L. E., 
 114. But the primary purpose of the legislation is to safeguard the 
 
LIENS OF SUB-CONTBACTOES AND WAGE-BAENEES. 103 
 
 claims of the wage-earners, and, therefore, provisions dealing with 
 the liens of wage-earners are given a liberal construction. A 
 workman is entitled to a lien upon the part of a sewer, extending 
 below water mark into the ocean, upon which he worked. Baker 
 v. Uplands, (1913) 24 W. L. E. 768 (B.C.). 
 
 On the other hand statutory requirements cannot be entirely 
 ignored and although a workman under a contract engaged in the 
 repair of a building for the owner is entitled to a lien on the 
 building for his unpaid wages to the extent of the twenty per cent, 
 of the payments made that the owner should have held back from 
 the contractor, Carrol v. McVicar, (1905) 15 Man. L. E. 379, 
 yet a workman cannot avail himself of a personal - remedy given 
 by a special provision contained in some of the Acts against the 
 proprietor for the full amount of his claim, in cases where a pay 
 list is not kept and the proprietor neglects to see that the workmen 
 are paid. Phelan v. Franklin, 15 Man. L. E. 520. A workman 
 at a rate per hour is not a workman employed " by the day." Dunn 
 v. Sedziak, 17 Man. L. E. 484, 7 W. L. E. 563. 
 
 The lien of the wage-earner being created by the statute is, of 
 course, limited by the special provisions creating it and determin- 
 ing its scope and extent. It may be entirely dependent upon the 
 nature of the work done or the material furnished by the employer 
 , of the wage-earner, and the relation that work or material bears to 
 the property ultimately benefited by such work or materials. This 
 question is dealt with in the next chapter, " The Lien of the 
 Materialman." In every case the wording of the particular enact- 
 ment must govern. A section in onfe Act gave a lien to whoever 
 labors ... in erecting . . . any building thereon by 
 virtue of a contract with or by the consent of the owner has a lien 
 thereon. A person contracted to furnish completed articles, like 
 cut and fitted stones for a building to be erected, and was to have, 
 no part in the erection of the building, and it was held that, under 
 this Act, his employees had no lien on the building for their labor 
 in preparing and completing the articles. Monroe y. Clark, 
 (1910) 107 Me. 134, 
 
104 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 A workman for the materialman is not entitled to a lien. Allen 
 v. Harrison, 9 W. L. E. 198. As to the status of workmen for a 
 sub-contractor, see McDonald v. Dominion Iron & Steel Co., 40 
 N. S. E. 465. Where a materialman contracts to deliver material 
 in a manufactured form, the contract is for materials only, and a 
 lien cannot be had for labor performed in manufacturing the 
 materials as a claim for labor. Tracey v. Wetherell, (1896) 165 
 Mass. 113. The employees of one who contracts to furnish -com- 
 pleted articles for v a building, where their employer is to have no 
 part in the erection of , the building can have no lien for their 
 labor in preparing and completing the articles. Their labor is 
 in no proper sense performed in the erection of the building. See 
 Webster v. Real Estate Improvement Co., (1886) 140 Mass. 526. 
 
 In the case of a contract not finished and abandoned by the 
 contractor, the method of computation in ascertaining the amount 
 upon which the percentage provided by the Ontario and similar 
 Mechanics Liens Acts is payable to wage-earners, is that the value 
 of the work done and materials furnished is to be calculated upon 
 the basis of the price to be paid for the whole contract. Cole v. 
 Pearson, (1908) 17 0. L. E. 46. See Farrell v. Gallagher, (1911) 
 18 O. W. E. 446 ; 23 O. L. E. 130. 
 
 Although at the time of the abandonment by a contractor of 
 his building contract there is, by the terms of it, nothing payable 
 to him by the owner, a wage-earner may, nevertheless, have a lien 
 upon the percentage held back by the owner, and a right to prefer- 
 ential payment. Wilhs v. Leduc, (1916) 27 Man. L. E. 72. 
 
 See next chapter, " The Lien of the Materialman." 
 
CHAPTER VII. 
 
 The Lien of the Matekialman. 
 
 The main purpose of a Mechanics' Lien Act usually is to secure 
 a priority or preference to those who add value to specific realty by 
 their labor or by material furnished. If the Act itself does not 
 create a lien for material no such lien exists. The word " materials " 
 includes every kind of movable property. 
 
 The claimant, must bring himself wholly within the terms of 
 the statute giving the right to a lien. For instance, in accordance 
 with the wording of the Ontario, ManitoBa, and similar Me- 
 chanics' Lien Acts, it is not enough that the materials are fur- 
 nished to be used upon or in the building, — the lien attaches only 
 in virtue of materials- furnished to be used in the making, con- 
 structing, erecting, fitting, altering, improving, or repairing the 
 erection or building, and the significance of the term "furnishes, 
 any material to be used " is that unless the material is furnished 
 by the materialman for the purpose of being used in the building 
 or other work, or on the land on which the structure is situated, 
 it cannot be the subject of a lien', even though used. Brooks-San- 
 ford Co. v. Theodore Teller Cons. Co., (19"10) 22 0. L. R. 176; 
 Sprague v. Besant, (1885) 3 Man. L. R. 519. 
 
 Material furnished for the construction of a house on a specified 
 lot cannot be the basis of a lien if used in building, a house on 
 another lot, (Bennet v. Shachford, 11 Allen (Mass.) 444; Bohem 
 v. S'eabury, 141 Penn. 594, Burns v. Lane, 23 111. App. 504), 
 but Mechanics' Lien Acts in Canada include work done upon the 
 appurtenances to the building, and the terms of these Acts are so 
 broad that it would probably be held that a lien would attach to the, 
 building and the land enjoyed therewith for the construction of a 
 sidewalk in the street adjoining the lot, where such sidewalk 
 would be necessary for the use of the premises. See Kenny v. 
 
106 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Afgar, (1883) 93'N.Y. 539; Moran y. Chase, (1873) 52 N.Y. 346. 
 A materialman is not entitled to register, as one individual claim, 
 a lien for the amount due for materials supplied by him to the 
 contractor, against all the lands jointly of the owners of different 
 parcels, who had made separate contracts, with the contractor for 
 the erection of houses on their respective parcels; nor do the 
 owners have such interest in one another's land as " owners " so 
 as to ehaT^e the other's land for materials furnished at the owner's 
 request or for his benefit. Security Lumber Co. v. Plested, (1916) 
 27 D. L. E. 441; Dunn v. McCallum, (1907) 14 0. L. E. 249, 
 
 To create a lien on the property of the owner in favor of the 
 materialman, there must be a request of the owner and a supplying 
 of the materials in pursuance thereof, either upon the owner's 
 credit or on his behalf^ or with, his privity or consent, or for his, 
 direct benefit. 'Slattery v. Lillis, (1905) 10 O. L. E. 697. 
 
 Bel credere agents supplying materials have such an interest 
 in the goods as entitles them to a mechanics' lien as materialmen, 
 
 , and one claim of lien can be filed in respect of all goods supplied 
 though from different principals. Gorman v. Archibald, 1 Alta. 
 
 .L. E. 524; Currier v. Friedrich, (1875) 22 <Jr. 243. A foreign 
 unregistered company may -file and be. entitled to a lien for ma- 
 terials. Wortman v. Frid-Lewis Co., (1915) 33 W. L. E. 119 
 (Alta.).. 
 
 The building for which the materials are to be used should be 
 identified with reasonable sufficiency, but in Manitoba it has been 
 held that a materialman is not bound to show that his materials 
 were used in the building; delivery upon the ground for the pur- 
 pose of being used is sufficient. McArthur v. Dewar, (1885) 3 
 Man. L. E. 72, provided, however, that they were supplied for the 
 purpos§ of being used in the particular building for which the lien 
 is claimed, or in the construction of any one of several buildings 
 for which the materials were supplied. An order for goods fol- 
 lowed by the statement: "We have secured contract for hotel 
 which requires above goods," was held sufficient identification of 
 
THE LIEN OF THE MATERIALMAN. 107 
 
 the building to give the person who furnished the goods a lien. 
 Dominion Radiator Co. v. Cann, (1904) 37 N. S. E. 237. In 
 Ontario it has been held sufficient that the material be furnished 
 on the credit of the building for. use therein, it being immaterial 
 as between owner and furnisher whether the material is used or 
 not (Larkin v. Larkin, 32 0. E. 80), although where articles are 
 furnished to a contractor for an experimental purpose, and are not 
 incorporated in the building, the furnisher is not entitled to a 
 lien. Brooks-Sanford Oo. v. Theodore Telier Co., (1910) 22 O. 
 L. E. 176. Where no statutory definition is given, the scope of 
 the word "material" is fully discussed in Troy Public Works y. 
 City of Yonkers, (1911) 145 App. Div. (N.Y.) 527. Sprague v. 
 Besaht, (1885) 3 Man. L. E. 519. Some American and Canadian 
 courts hold that there must be an understanding that the ma- 
 terials furnished are for a building, though the particular build- 
 ing need not be designated or described. See Poison v. Thomson, 
 (1916) 29 D. L. E. 399. 
 
 Some of the Acts might imply that to give a lien to the per- 
 son furnishing the material he must have supplied it fo» the pur- 
 pose of being used in the particular building upon which he claims 
 to have the lien. But a reasonable construction of such Acts 
 would justify the view that where material is sold for the particu- 
 lar, purpose of being used in the construction of certain houses and 
 was delivered on any part of the land to be covered by these houses 
 or to be enjoyed therewith, the statutory lien for materials so 
 supplied arises without the necessity of showing that the material 
 was actually used in the erection of a particular building. Sprague 
 v. Besant, (1885) 3 Man. L. E. 519; Rittenhouse & Embree Co. 
 v. Brown, (1912) 254 111. 549. It would seem unreasonable to so 
 construe the Act as to deprive a materialman of a lien who fur- 
 nishes material to be used in the erection of several buildings, 
 unless he can shew in relation to the building against which he 
 seeks to enforce his lien that the particular materials in that build- 
 ing were furnished by him for that one particular building. Pol- 
 son v. Thomson, (1916) 29 D. L. E. 395, 399. 
 
108 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 In this case Cameron, J.A., says, — "I do not gather that it 
 was intended to be laid down in Sprague v. Besant that a material- 
 man furnishing materials to be used in the erection of several 
 buildings could not have a lien against any one of them unless he 
 could shew that the particular materials in that building were 
 furnished for that one particular building." 
 
 As the lien does not in any event, commence until the sup- 
 plier "places or furnishes" the materials, no lien is created for 
 materials to be supplied under contract not to the owner, but to a 
 contractor, by a sub-contractor, until the materials have reached 
 the owner's property. Ealbfleisch v. Harley, (1915) 34 0. L. E. 
 268 ; Ludlam-Ainslee Lumber Co. v. Fallis, (1908) 19 0. L. K. 419, 
 Smith Co. y. Sissiboo Pulp & Paper Co., (1903) 36 N. S. E. 348 > 
 affirmed, (1904) 35 S. C. E. 93. 
 
 In considering more fully a materialman's right to a lien an 
 important distinction should be noted between his rights where he 
 furnishes materials to contractors and, on the other hand, where 
 he furnishes materials to an owner for use in or upon a building. , 
 It is rigfit that the owner's land should be subject to a lien for 
 materials furnished him to be used in the erection or improve- 
 ment of the building whether these materials are actually used or 
 not, and it is also right that his land should be subject to a lien 
 for materials furnished to a contractor or sub-contractor to be used 
 in the erection or improvement of a building, when these materials 
 are actually used, and when the lien is limited in the amount to 
 the sum justly owing by the owner to the contractor, but it would 
 not be just to give the person furnishing materials which were not 
 incorporated in the building, or placed upon the land to be affected, 
 so as to increase, at least in contemplation of law, the value of the 
 land, a tight to payment out of the property of others which had 
 increased the value of the realty, or a right against an owner who 
 had not bought these materials, and whose land was not even in- 
 directly benefited by them. Accordingly, in an Ontario case 
 (BrooTcs-Sanford Co. v. Theodore Telier Construction Co., (1910) 
 
THE LIEN OF THE MATERIALMAN. 109 
 
 22 0. L. E. 176), it has been held that a person furnishing articles 
 to a contractor for an experimental use in regard to the work on 
 the building is not entitled to a mechanics' lien for such articles 
 where they are not incorporated in the building, and that a person 
 who sells tools to a contractor for use on a building has no lien 
 against the property for such articles. In a previous Ontario 
 case (Larkin v. Larkin, (1900) 32 0. R. 80), it had been decided 
 that under • certain circumstances a lien might be claimed for 
 materials furnished which were not incorporated in the building, 
 but the later case has sometimes been relied upon as deciding that 
 to entitle the materialman to a lien the materials must have been 
 used in construction of the building. The basis of that decision, 
 however, was that articles intended to be used only for the pur- 
 pose of making an experiment, and not intended for use in the 
 building, would not be within the statute as materials furnished 
 to be used in the construction of the building. 
 
 It has been held in Saskatchewan and in Maine that it is not 
 necessary in order to entitle a materialman to a lien to show that 
 the materials were actually used upon the building, the test ques- 
 tion being whether the materials were furnished with the intent 
 and expectation that they were going into the building. Montjoy 
 v. Reward School District Corporation, 10 W. L. R. 282; M&han 
 v. Thompson, 71 Me. 492; see also McArthur v. Deimr, 3 Man. 
 L. B. 72, where, however, the question is only touched upon, al- 
 though the decision holds that the materialman need not shew 
 that the material entered into the building. There are conflicting 
 decisions in the American courts. See 19 Am. & Eng. Ann. Cas. 
 588; Witham v. Wing, (1912) 108 Me. 364. 
 
 The weight of American opinion would seem to favor the 
 view that a sub-contractor is not entitled to a lien for materials 
 sold to a contractor where the materials are not actually placed in 
 the building or upon the land upon which the contractor is erecting 
 the building. But according to some American decisions a 
 materialman must ordinarily show that his materials were fur- 
 nished for and were actually used in the erection of the building 
 
110 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 against which the lien is claimed. Potter Mfg. Co. v. Meyer, (1909) 
 171 Ind. 513. A reason suggested for such a view is that to give a 
 lien for all the material sold for the purpose of going into the 
 building, irrespective of the actual use of it for that purpose, might 
 have the effect of creating a lien to the full value of the building, 
 and the land on which it stands, in favor of parties whose property 
 did not in fact go into the building, and thus the persons who had 
 in fact erected the building would be deprived of any advantage - 
 from the liens given them. See Chapin v. Persee, 30' Conn. 472. 
 But in the Mechanics' Lien Acts in Canada there is a clause which 
 limits the owner's responsibility to the amount payable to his 
 contractor. It would seem that the view that the materials must 
 be actually incorporated in the building to establish the lien must 
 lead to confusion and frequent injustice in respect of the claims 
 of materialmen. At all events, under the Mechanics' Lien Acts 
 in Canada, it is not essential to the enforcement of the lien that 
 the material placed on the land shall be actually used in the 
 building. 
 
 The seeming conflict in the decisions on this question is often 
 traceable to the varying statutory provisions. The precise phrase- 
 ology of the provisions creating the lien for materials must deter- 
 mine the question whether the actual use of the materials is essen- ■ 
 tial to the lien. Where the lien is given by the statute for the con- 
 struction or improvement of a building or " for, or in the erection 
 of a building," the actual use of the articles furnished is not essen- 
 tial to the lien of the materialman, but where the lien is given for 
 furnishing materials " used " or "to 'be used " in a building or in 
 an "improvement" the weight of recent American opinion seems 
 inclined to the view that the use of the materials is a prerequisite 
 to the enforcement of the lien. Pittsburg Plate Glass Co. v. Leary, 
 31 L. E. A. 746; see particularly cases cited at page 758. The 
 realty will be liable to a lien if it is the fault of the owner that the 
 materials were not used. Salem T. Lane & Bodley Co., 189 111. 
 593; Morris County Bank v. Bockaway Mfg. Co., 14 N. J. Eq. 189. 
 
THE LIEN OF THE MATEEIALMAN. Ill 
 
 When materials are furnished to be used upon the land and are 
 placed upon the land they may be considered for the purposes of a 
 lien as -if they were incorporated in the structure in course of erec- 
 tion. The lien for materials so " placed " commences when the 
 materials are placed, but, as against an owner, such a lien cannot 
 arise until the materials have reached his property. Smith Co. v. 
 The Sissiboo Pulp & Paper Co., (1903) 36 1ST. S. E. 348, 35 Can. 
 S. C. E. 93; Kalbfleish v. Hurley, (1915) 34 0. L. E. 268, 25 D: 
 L. E. 469. 
 
 Eecent decisions in Canada have placed the law on this ques- 
 tion on a , satisfactory and just basis, and it is plain from these 
 decisions that if the material be delivered for the purpose of being 
 used in the building and is placed upon the land in question, it is 
 within the statute, and its actual use in the construction of the 
 building is not essential to the creation and enforcement of the lien. 
 It is not the actual use of the material in the building that gives 
 the furnisher a lien, but the furnishing under a contract for that 
 use, and the placing of the material on the land. 
 
 The lien of the materialman is upon the land and structure 
 which it is intended to benefit. In the ease of materials supplied 
 the lien is given, by the words generally used in the Mechanics' 
 Lien Acts in Canada, upon the land "upon which such materi- 
 als are placed or furnished.'' Where these quoted words, or 
 similar words, are used the general statutory lien upon the land, 
 and the special one in the nature of a vendor's lien upon the 
 material itself, depend upon the placing of the material- in ques- 
 tion upon the land to be affected. Proximity to the land is not 
 enough ; the material must be on it, so that in fact or in contempla- 
 tion of law the value of the land itself is enhanced by its presence. 
 Milton Pressed Brick Go. v. Whalley, (1918) 42 D. L. E. 394; 
 Kalbfleish v. Hurley, (1915) 34 0. L. E. 268; 25 D. L. E. 469; 
 Ludlam-Ainslee Lumber Co. v. Fallis, (1909) 19 0. L. E. 419. 
 In Broohfleld v. Hopgood, (1919) unreported, where materials for 
 use in repairing a shop were placed on an adjacent street, it being 
 impracticable to place the materials on the sidewalk or within the 
 
113 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 building, Wallace, Co.J., decided that to have a lien arise in 
 respect of materials furnished for use in a building, the materials 
 must be placed on the land, and that the word " upon " in the sec- 
 tion of the Nova Scotia Act, which section is similar to section 6 
 of the Ontario Act, could not be strained to mean " adjacent to " 
 or " near " the land, so as to give a lien upon land in a case where 
 materials were not placed' on the land but were left in the adjacent 
 street, and -did not come under the control of the "owner." There 
 would seem to be an obvious line of demarcation between materials 
 which are merely appropriated to a contract by the parties thereto 
 or are delivered to the " owner " or contractor, but do not reach 
 the land to be affected, and on the other hand, materials which 
 are actually placed upon the land to be charged. 
 
 There are some decisions in conflict with this view. In a case 
 in Alberta, Canadian Equipment Co. v. Bell, (1913) 11 D. L. B. 
 820, where the materials were not placed on the lands to be af- 
 fected because there was no room thereon, but they were delivered 
 on ground in the immediate vicinity thereof, Scott, J., decided 
 that that delivery was, in effect, a delivery upon the land in ques- 
 tion. In a later case, in the same Province (Trussed Concrete Steel 
 Co. v. Taylor Engineering Co., (1919) 46 D. L. E. 663), the 
 material was brought upon the land adjoining, which had been 
 acquired by one of the defendants expressly for the storage of the 
 materials intended for use in the building. It was contended that 
 the claimant was not within the provision of the Act which only 
 applied " when any material is brought upon any land to be used 
 in connection with such land." Walsh, J., followed the decision of 
 , Scott, J -j iu the earlier case. The wording of the Alberta section 
 is not identical with the Ontario or Nova Scotia enactments, but in 
 any event, it, is obvious that in the decisions of the Ontario and 
 Nova Scotia courts the principles of construction applied to this 
 provision of the Act differ from those applied by the Alberta Courts. 
 In a recent decision of the Appellate Division of the Ontario 
 Supreme Court, Hodgins, J.A., referred to the difficulties in 
 the way of any other method of establishing a lien than the appli- 
 
THE LIEN OF THE MATERIALMAN. 113 
 
 cation of the doctrine that the materials must be placed upon 
 the land in order to establish the lien. " If a contractor for half 
 a dozen different houses buys steel or concrete by wholesale and. 
 stores it in the yard, it is in one sense delivered to be used in cer- 
 tain buildings. A car of lumber for a particular building may 
 be bought in Buffalo f.o.b. there. It is intended to use it in a 
 building and on certain land. Yet it would be impossible to give 
 the wholesaler or the lumber merchant a lien upon the land merely 
 because there was in his mind and that of the contractor an in- 
 tention to devote the material in whole or in part to the erection 
 of a building or buildings upon certain specified land." Milton 
 Pressed Brick Co. v. Whalley, (1918) 42 D. L, E. 394. 
 
 The weight of authority tends to show that before a lien for 
 materials can arise the materials must be furnished and placed 
 upon the land upon which the lien is claimed. Where material is 
 furnished the lien in respect thereof is limited to such material as 
 is placed upon the land to which the lien attaches. In an Ontario 
 case (Ludlam-Ainslee Lumber Co. v. Fallis, (1909) 19 0. L. E. 
 425) Clute, J., after dwelling upon the significance of section 16 
 of the Ontario Act, whereby it is in effect provided that the lien 
 having attached to the land because of the material furnished and 
 being upon the land, the creditors of the person who furnishes the 
 same have no right to pursue the property there to satisfy their 
 claims, points out that a great mischief would follow a construc- 
 tion of the Act which would give to a materialman a lien as soon 
 as he delivers the material to the contractor, no matter whether it 
 be placed upon the land or not. If the lien attaches to the land 
 as soon as the delivery 'takes place by the sub-contractor to his 
 contractor, it would follow that what would practically be a mort- 
 gage upon land might be created by goods being delivered to the 
 contractor at a distance, or even in a foreign country. It seems 
 absurd to say that there can be a lien upon land -where the material 
 for which the lien is created has never become incorporated with 
 the land or been placed thereon. 
 
 MX. — 8 
 
114 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 A distinction should be noted 'between the question whether 
 there can be a lien for materials furnished but never used, and the 
 question whether materials furnished and consumed in the process 
 of the work but not entering into and becoming part of the struc- 
 ture are "materials" within Mechanics' Lien Acts. Whatever 
 difference of. opinion may exist as to the former class of cases, the 
 prevailing view is that in the latter class of cases the materialman 
 is entitled to a lien, as such materials are used- up in the perform- 
 ance of the work on the structure and survive in tangible results 
 in* the building itself. The distinction is clearly expressed in a 
 New York case : — 
 
 ™ The argument that dynamite' is not a material but a part of 
 the contractor's plant which like picks or shovels or mechanical 
 appliances are used in the performance of work but are not con- 
 sidered materials furnished, within the purview of the statute, 
 seems to us inherently unsound. A steam shovel, an engine and 
 boiler, picks, shovels, crow-bars and the like are tools and appli- 
 ances which while used in the doing of the work survive its per- 
 formance, and remain the property of their owner. Not so, how- 
 ever, with materials that are used up in the performance of the 
 work and are thereafter invisible except as they survive in tangible 
 results. We think that explosives when used as substitutes for 
 other recognized ' materials ' are covered by the same principle. 
 They enter into and form part pf the permanent" structure quite 
 as much as the earth, rails, ties, culverts and bridges that we can 
 see and feel." Schaghticoke Powder Co. v. Greenwich, etc., Rail- 
 road, (1905) 183 N. Y. 306, quoted approvingly in Sampson Co. v. 
 Commonwealth, (1909) 202 Mass., at p. 335. 
 
 It would seem that an accurate and comprehensive state- 
 ment of the law on this question is that a person furnishing 
 " materials " is one who supplies towards the making of a struc-. 
 -ture matter which may become a part thereof, or which is ex- 
 pended in the labor incident to the erection thereof. Troy Public 
 Works Co. v. City of Yonkers, (1911) 145 App. Div. (N.Y.) 527. 
 
THE LIEN OF THE MATEEIALMAN". 115 
 
 A very broad and justifiable interpretation is now given to the 
 phrase " one who furnishes material in the erection of a building " 
 or any similar statutqry words in a Mechanics' Lien Act. ITnder 
 one Act giving a lien to one who furnishes material in the erection 
 of a building or for the improvement of real estate it has been 
 held that a person furnishing lumber for the forms in which to 
 mould the concrete for a building is entitled to a lien, although 
 the lumber is destroyed in the use, and becomes no part of the 
 building. Avery and Sons v. Woodruff, (1911) 144 Ky. 227, 36 
 L. B. A. 866; Chicago Lumber, Co. -v. Douglas, 44 L. E. A. 843; 
 Barker Lumber Co. v. Marathon, 146 Wis. 12. See also Moritz v. 
 Lewis Construction Co., (1914) 51 L. E. A. 1040. But the lien was 
 denied in Builders Material Co. v. Johnson, 158 111. App. 441. 
 But if the lumber is only depreciated in value, and is taken away 
 by the contractor to be used again for his Own purposes, no lien 
 exists for it. Bittenhouse & Embree Co. v. Brown, (1912) 254 
 111. 54:9; Hines Lumber Co. v. O'Heron, (1913) 183 111. App. 391. 
 While the use of machines which wear out in the use does not give 
 a right to a lien for their value as materials, yet the use of 
 machines controlled by workmen rendering their labor on a struc- 
 ture more effective than if performed with their hands alone does 
 not defeat a claim for labor in the operation of the machines. 
 Geo. H. Sampson Co. v. Commonwealth, (1909) 202 Mass. 326. 
 So, fuses used to explode dynamite are "materials." The 
 sticks of dynamite could not be exploded without the use of the 
 fuses, and in the process of such work both are entirely destroyed. 
 Gunpowder and al] explosives necessarily consumed in the use are 
 considered as " materials," and within the meaning of the statute. 
 Dupont Be Nemours Powder Co. v. Culgin-Pace Construction Co., 
 (1910) 206 Mass. 585; George A. Sampson Co. v. 'Commonwealth, 
 202 Mass. 326. Explosives used in the breaking up of earth are 
 "materials" used in the improvement of real property. Schagh- 
 ticke Power Co. v. Greenwich and Johnsonville By. Co., (1905,) 
 2 L. E. A. 288. The. test question is whether the materials were 
 
116 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 necessary to the work of erection under the contract, and were 
 consumed in the making of the improvememnts. Hercules Powder 
 Co. v. KnoxvUle, (1904)' 67 L. E. A. 487. As a general rule arti- 
 cles furnished for tise merely as tools and appliances in carrying- 
 on the work of construction are not "materials" for which a 
 Mechanics' Lien may be claimed. BrooTcs-Sanford Co. v. Hamp- 
 den County, 204 Mass. 494; Evans v. Lower, 67 N. J. Bq. 232; 
 Builders Material Co. v." Johnson, 158 111. App. 411; Ward v. 
 Yarnelle, 173 Ind. 535. 
 
 In a leading American case (Baker & Stewart Lumber Co. v. 
 Marathon Paper Mills Co., 146 Wis. 12), materials used in a 
 cofferdam constructed specially to make possible the building' of 
 the dam contracted to be built, and which were, in effect, de- 
 stroyed by their use in the cofferdam or subsequent use, were held 
 to be lawful subjects of a mechanics' lien. The court, in that case, 
 used the following words which were quoted with approval in an 
 important New York case, (Shultm v. Quereau Co., (1914) 210 
 N.Y. 257) "It is certainly true that this doctrine must be care- 
 fully guarded or it might be carried to extreme and fanciful 
 lengths. Thus it might be argued that upon the same principle 
 coal that is used in portable engines, oil that is used in the lubri- 
 cation of building machinery, and even food which is eaten by 
 labourers, are all consumed in the construction of the building 
 and hence are lienable materials. But all these things seem quite 
 plainly distinguishable. They are at least one step further re- 
 moved from the actual work of construction. They have neither 
 physical contaet nor immediate connection with the structure at 
 any time. They are used only to facilitate and make possible the 
 operation of tools, machinery or men, which in their turn act upon 
 the structure. No lien accrues for such materials." Eaw ma- 
 terial furnished for the manufacture of plaster blocks and tile to 
 be used by one having a contract for the fire-proofing work on a 
 building may form the subject of mechanics' lien thereon. Hume 
 v. Seattle Dock Co., (1914) 50 L. K. A. 153. Coal consumed in 
 
THE LIEN OF THE MATEEIALMAN. 117 
 
 generating steam in boilers of machinery used in construction of 
 an improvement is not material furnished for which a lien can be 
 established; Shultz v. Quereau, (1914) 210 K. Y. 257; Sampson 
 Co. v. Commonwealth, (1909) 202 Mass. 326; but dynamite used 
 in breaking up frozen earth required by a construction contract to 
 be excavated so that it could be handled by means of a steam 
 shovel 1 , is lienable material furnished for the improvement of real 
 property. Schaghticohe Powder Co. v. G. & J. By. Co., (1905) 
 183 N. Y. 306. 
 
 The line of demarcation between materials which ordinarily 
 enter into or are used in the construction of a building, and, on the 
 other hand, the machinery that may be used for the manufacture 
 of the materials themselves is rather narrow, but it is obvious that 
 the tools used by -a mechanic in building a house cannot be re- 
 garded as materials furnished in the construction of the house. 
 Broohs-Sanford Co. v. Theodore Tellier Co., (1910) 22 O. L. E. 
 176; Friedman v. Hampden County, (1910) 204 Mass. 494. A 
 person who fashions structural steel at his factory and supplies it 
 to a principal contractor for use in the erection of a building, 
 taking no part in the actual construction thereof, is a " material- 
 man " only, and not a " sub-contractor." Coughlan v. Carver, 
 (1914) 29 W. L. E. 791 (B..C). Under the British Columbia 
 Act a "sub-contractor" is not required to give the statutory 
 notice necessary in the case of a " materialman." Nor can the 
 machinery used in the manufacture, for instance, of the hydro- 
 stone blocks and ultimately used in the construction of the build- 
 ing be treated as part of the materials used in the structure. Such 
 things are to be regarded merely as the plant of the contractor. 
 
 The wording of the particular enactment, and the purpose for 
 which the article is used or supplied, are the important factors 
 in determining whether the article is lienable material. A claim- 
 ant who supplies to a contractor coal which is used for generating 
 steam for the purposes partly of running an engine which oper- 
 ates a hoist in which the, materials used in the construction of the 
 
118 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 building are elevated, and partly for heating the building for the 
 purposes of drying the plaster during the construction -work, is 
 entitled to a lien for the value of the coal supplied. Wortman v. 
 Fried-Lewis, (1915) 33 W. L. E. 119. 
 
 1 If the materials are prepared and actually placed in the build- 
 ing, the fact that the materials were subsequently removed by the 
 owner's direction, upon change of the building plans, will not 
 affect the lien for these materials (Fletcher Crowell Co. v. Cheva- 
 lier, (1911) 108 Me. 435), and it has been held that old materials 
 used in a new building may be subject to a lien. Whitford v. 
 Newell, 84 Mass. 424, 36 L. E. A. 871. If after an old building is 
 partially repaired it is torn down and a new one erected in its 
 stead, the lien claimant can claim a lien on the new building for 
 materials furnished 'for and used in the old building which were 
 afterwards used in the new building. Nichols v. Culver, 51 Conn. 
 177. ' 
 
 If materials have been prepared or furnished as ordered and 
 the owner rejects them or neglects to accept them or diverts them 
 to other uses a lien will be established. The plaintiff, a sub-con- 
 tractor, who installed a furnace in a building was held to have 
 strictly complied with his contract with the principal contractor 
 and to be entitled to enforce his lien though the furnace which 
 he installed was rejected by the owners. Mallettt and Kevar, 14 
 W. L. E. 327; Salem v. Bane, etc., Go., 189 111. 593; Sears v. Wise, 
 52 App. (N.Y.) 118; Chicago Artesian Wells Co. v. Covey, 60 111. 
 73 ; Morris Co. Bank v. Bochaway, 14 N. J. Eq. 198. But a material- 
 man has no relief against the land, under the Ontario Act, or simi- 
 lar Acts, in a ease where the building was never completed by the 
 contractor and the building contract provided that time was of 
 the essence of the contract and stated a specified sum for every 
 day beyond a stated period that the owner was denied the full 
 possession of the premises. McManus v. Bothschild, 25 0. L. E. 
 138. Where a materialman contracts to deliver material in a 
 manufactured form the contract is for materials only, and a lien 
 
THE LIEN OF THE MATEKIALMAN. 119 
 
 cannot be had for labor performed in manufacturing the materials 
 as a claim for labor. Tracey v. Wetherell, (1896) 165 Mass. 113; 
 Donaherv. Boston, (1879) 126 Mass. 309. 
 
 There is no lien if the debt ceases to be for materials, or is 
 furnished on general account, and not for a specific building. 
 Brooks-Sanford v. Theodore Teller Con. Co., (1910) 22 0. L. E. 
 176. A. began to erect a building for X. but abandoned the work, 
 and B. agreed with X. to complete it, to pay all outstanding bills, 
 X. agreeing to pay a round sum for the whole work, including that 
 already done by A. It was held that B. could maintain no lien for 
 materials which he had furnished to A. for that debt was merged, 
 in the round sum to be paid by A. Whitney v. Jospin, (1871) 108 
 Mass.103. See Hatch v. Golman, (1857) 29 Barb. (NVY.) 201, 
 Furnishing wood blocks for floor of a bridge over railway tracks, 
 after other blocks have been rejected as not conforming to contract, 
 was held a furnishing of material within the lien law pf New 
 York. In re AUott Gamble Co., (1912) 195 Fed. 465. 
 
 Where part of a claim is for materials and part for labor and 
 the claim is so mixed, the contract being entire, that they cannot 
 be determined respectively, there is no lien for either. Cogin v 
 Walsh, (1878) 124 Mass. 516. See Wetter v. Shupe, (1897) 6 
 B. C. E. 58; Smith v.' Sissiboo Pulp and Paper Co., (1903) 36 N 
 S. E. 348, (1904) 35 S. C. E. 93. Where the property owner 
 joins with the contractor in giving the order for material to be 
 supplied in the erection of the building and it is charged to their 
 joint account, the owner may be held liable for the full price in a 
 mechanics' lieu action brought against them both to enforce pay- 
 ment, although Only a lesser sum be due by him to. the contractor. 
 
 A materialman is not entitled to register as one individual 
 claim, a lien for the amount due for materials supplied by him to 
 a contractor, against all the lands jointly of the owners of different 
 parcels of land who have made separate contracts with the con- 
 tractor fdr the erection of houses on their respective parcels. Dunn 
 v. McCallum, (1907) 14 0. L. E. 249. In this case the owners 
 
120 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 of separate, parcels of land made separate contracts with a con- 
 tractor for the erection of houses on. their respective parcels, and 
 , materials were furnished by a materialman to the contractor which 
 were used by him in the erection of the houses, and it was held 
 that the Act did not empower the materialman to register a lien 
 for the total amount against all the land jointly. See Booth v. 
 Booth, 3 .0. L. R. 294, Barr v. Percy, (1912) 21 W. L. E. 236 
 (B.C). A lien for furnishing new material and replacing it in a 
 bridge cannot be claimed by a sub-contractor whose employees by 
 negligence had made the new work and material necessary. Rich- 
 monol and Irvine Construction Co. v. Richmond Ry. Co., (1895) 
 31 IT. S. App.'704. 
 
 A lienholder for materials supplied and used in ' the construc- 
 tion of a building upon land subject to an existing mortgage is 
 entitled to rank upon the increased value in priority to the mort- 
 gage in the proportion only that the value of the materials exclu- 
 sively supplied, by him bears to the whole cost of the building, and 
 not for any part of the increase/ brought about otherwise. In 
 computing this proportionate amount, no regard should be taken 
 to amounts paid the lienholder oh account, before the action was 
 brought. Security Lumber Co. v. Duplat et al., (1916) 29 D. L. 
 K 460 (Sask.). 
 
 Disbursements, such as money advanced to pay freight on 
 material furnished for' use in a structure may, although no agree- 
 ment was made in advance, to make the payment, be regarded as 
 part of the purchase price of the materials furnished {Barker and 
 Steward Lumber Co. v. Marathon Paper Mill Co., 36 L. E. A. 
 875), but Where a materialman furnished money to a building con- 
 tractor to purchase certain material which the materialman did 
 not have, he could not claim a lien for the amount so furnished 
 {Evans v. Lower, (1904) 58 Atl. Eep. 294; Ooddefroy v. Cald- 
 well, 56 Am. Dec. 360), nor will " supplies " include food for men 
 and teams while at work. Carson and Co. v. Shelton, (1908) 15 
 L. E. A. 509. A person furnishing lead to connect a house with 
 
THE LIEN OF THE MATERIALMAN. 121 
 
 pipes in the street may hav.e a lien on the house. Feeny v. Boih- 
 boum, (1911) 155 Mo. App. 331. In a claim for materials sup- 
 plied the work of installation is properly included as part of the 
 cost of the materials' in situ. McNab, Harlin Mfg. Co. v. Paterson 
 Big. Co., (1907) 72 N. J. Eq. 929. 
 
 A claim for lien against several buildings or lots not adjoin- 
 ing or adjacent, on which the work was done and materials were 
 furnished under one entire contract, cannot be enforced at all, 
 where there is nothing in the claim from which it can be ascer- 
 tained how the amount claimed for work and materials is to be 
 apportioned among the several buildings. -Schmidt v. Anderson, 
 (1912) 253 111. 29. Where the claimant furnishes materials partly 
 for sidewalk and partly for other purposes, and part of the ma- 
 terial was used for sidewalks, but the claimant failed to show what 
 portion went for sidewalks, the claim was held wholly bad, since 
 it could not be determined which portion of it was valid. Bradley 
 Co. v. Gaghan, 208 Pa. 511. Although the claim must show whe- 
 ther it is for work or materials (Norton Construction Co. v. 
 Unique Construction Co., 121 App. Div. (N.Y.) 585), yet where 
 the contract is entire, a statement of the contract price and the 
 total amount of materials furnished is sufficient. Westcott v. 
 Bunker, 83 Me. 499; Brown v. Myers, 145 Pa. 17. If a person 
 who furnishes material for the improvement of real property fur- 
 ther agrees with the owner to use that particular material in the 
 erection of any structure upon the lands, he ceases to be a material- 
 man and becomes a contractor. Jackson v. Egan, (1910) 138 
 App. Div. (IST.Y.) 505. 
 
 A provision requiring an owner to create a fund by deducting 
 twenty per cent, from any payment to be made by him in respect of 
 a contract for the protection of those who supplied materials to the 
 contractor, does not apply to a contract under which nothing was 
 payable by the owner to the contractor, — as where during the pro- 
 gress of the work the owner had paid the contractor more than the 
 value of the work done -and the work as a whole was never com- 
 
122 THE LAW OF MECHANICS'' LIENS IN CANADA. 
 
 pleted ; under such circumstances the claims of the materialmen are 
 not enforceable against the owner. Burton v. Hookwith, (1919) 
 
 48 D. L. K. 339. 
 
 i 
 
 A statement in somewhat indefinite form may be held sufficient. 
 A statement that the work performed and materials furnished 
 were "plumbing, tinning, furnaces and ranges, as per contract to 
 the amount of $2,560, and additional labor to the sum of $77, 
 making in all $2,637, upon account of which there has been paid 
 $850, and leaving a balance due therefor for $1,787," was held 
 sufficient. Clarke v. Heylman, 80 App. Div. (KY.), 572. 
 
 Materials not actually used or delivered to a contractor are 
 not " furnished " for the purpose of creating a sub-contractor's 
 lien, although they are worthless for any other purpose and were 
 prepared for the contractor under a contract which he broke by 
 refusing to accept them. Richmond and Irvine Construction Co. 
 v. Richmond Ry. Co., (1895) 31 U. S. App. 704, 34 L. E. A. 625. 
 
 Whether the transaction was really materials furnished for a 
 building or merely a sale of a chattel is mainly a question of fact. 
 If it be shown that such chattels are so attached as to become a per- 
 manent part of the structure, and it had been contemplated by the 
 parties that they should be furnished, a lien may be enforced by 
 furnishing them. See cases cited in Chapter IV., ant e, dealing with 
 " Fixtures." 
 
 Articles rented for use in the, construction of the works are not 
 materials within the meaning of the statute, and the person who 
 rents such articles is not entitled to a lien for unpaid rental. Troy 
 Public Works Co. v. City of Yonkers, (1911) 145 App. Div. (N.Y.) 
 527. A workman for a materialman is not entitled to a lien. Allen 
 v. Harrison, (1908) 9 W. L. E. 198. 
 
 To create the lien the sale of the materials must be with refer- 
 ence to the improvement of the land or building. Chapin v. Persse, 
 30 Conn. 461,. As to facts which would constitute separate sales of 
 materials so as to require separate registrations, see Stephens Paint 
 Co. v. Cottingham, (1916) 10 "W. W. E. 627; Ghadwick v. Hunter, 
 1 Man. L. E. 39. 
 
THE LIEN OF THE MATERIALMAN. 123 
 
 The lien will cover only materials furnished by a lien claimant 
 and not materials procured by him as the agent for the owner and 
 on the credit of the owner, although afterwards paid for by the lien 
 claimant. Eerby v. Daly, 45 N". Y. 84. It is a question of fact 
 whether the materials were furnished on the credit of the building 
 (Hommell v. Lewis, 104 Penn. 465), and the placing of the ma- 
 terials in the building in itself would justify a finding that they 
 were furnished to be used in the building (Power v. McCord, 36 
 111. 214; Martin v. Eversall, 36 111. 222), but the fact that the 
 materials are charged to the contractot alone is not prima facie evi- 
 dence that his credit was relied on to the exclusion of the credit of 
 the building. Hommell v. Lewis, 104 Penn. 465. Entries of charges 
 for materials are strong evidence to show to whom they were sold, 
 but are not conclusive. Presbyterian Church v. Allison, 10 Penn. 
 413. Phillips, s. 124. 
 
 There is a conflict in the decisions in relation to the question 
 whether the lien given for labor and materials furnished in respect 
 to any structure or land includes hauling the materials there, but 
 the generally accepted view is that a mechanics' lien claim may be 
 maintained for the transportation and delivery of materials as for 
 labor performed, for the erection and construction of a building. 
 McClain v. Hutton, 131 Cal. 132. A lien is usually allowed for 
 transportation of the materials to be used in the construction of the 
 building, 27 Cyc. 44; Fowler v. Pompelly, (1903) 76 S. W. 173; 
 Hill y. Newman, (1861) 80 Am. Dec. 473. Teamsters and laborers 
 who hauled away the dirt that remained after filling up trenches for 
 a heating plant as well as those who dug the trenches, are entitled 
 to a lien. Wells v. Christian, 165 Ind. 662. 
 
 In a recent New Jersey case (Davis v. MM, (1914) 86 N. J. L. 
 167) 'Chancellor Walker, in delivering the judgment of the Court of 
 Appeal, said, "The only openly antagonistic decision that I have 
 found is Webster v. Real Estate Improvements Co., 140 Mass. 526. 
 I cannot adopt the reasoning used in that case. It is against the 
 great weight of authority. The reasons upon which it rests would 
 oust a hod-carrier and an architect out of a lien." Under the 
 
124 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Alberta Act it has been decided that the lien would include hauling, 
 (Myluzyhh v. N: W. Brass Co., 14 D. L. K. 486) but in a decision 
 under the British Columbia Act, a lien for haulage of materials to 
 the land where they were to be used was denied. Vannatta v. Up- 
 lands, (1913) 12 D. L. R. 669. But one who furnishes a contractor 
 with horses and wagons and drivers for use on premises he is im- 
 proving is entitled to a lien for their hire. Vannatta v. Uplands, 
 , supra. A claim for hauling materials to the building sites to be 
 paid for in a lump sum, the haulage being done by persons hired by 
 the claimant, and the price including the services of his horses and 
 equipment, the claimant having the right to select the mode of doing 
 the work, is not a claim for wages, but a claim as' a sub-contractor. 
 Stafford v. McKay, (1919) 2 W. W. R. 280 (Sask.). 
 
 The materialman is entitled to include in his lien the charge for 
 conveying building materials to the land where they are to be used, 
 as that charge should be- considered part of the costs of the material. 
 
 The time for filing a lien for materials furnished to a contractor 
 cannot be computed from the date of the last item in the claimant's 
 account unless such item was the subject of a lien. Broohs-Sanford 
 Co. v. Theodore Teller Co., (1910) 22. 0. L. R. 176. A claimant 
 who has supplied material to be used in the erection of a building 
 under a contract by which the materials were to be supplied from 
 time to time and has filed a lien, which at the request of the owner 
 he has subsequently discharged, taking instead an order upon cer- 
 tain moneys, which order was not paid, cannot upon supplying 
 further material under his contract and within the'statutory period, 
 file a lien for . the total amount of his claim. Wortman v. Frid- 
 ' Lewis, (1915) 33 W. L. R. 119 (Alta.). 
 
 If a plaintiff claims to retain a mechanics' lien by means of 
 material supplied and work done after the completion of a building, 
 and after the architect has given the final certificate, it is incum- 
 bent on him to prove clearly that the material was supplied and the 
 work done in pursuance of and as a part of his original agreement 
 (Lawrence v. Landsterg, 14 W. L. R. 477), and the question whe- 
 ther the material is supplied in good faith for the purpose of com- 
 
THE LIEN OF THE MATERIALMAN. 125 
 
 pleting a contract, or as a pretext to revive a right to file a lien, is 
 a question of fact for the trial Judge, and his decision on such fact 
 should govern. Sayward v. Dunsmuir, 11 B. C. E. 375. 
 
 Material furnished after the work is completed will not keep a 
 lien alive so as to prejudice others. Renney v. Dempster, (1911) 19 
 0. W. E. 644. See Limoges v. Scratch, 44 Can. S. C. E. 86. Claim- 
 ants who have done work as sub-contractors under a contract cannot 
 for lien purposes dissolve the contract into its original component 
 parts and claim to rank as materialmen in respect of the value of 
 material covered by their sub-contracts, and claim that they are 
 only relegated to the status of sub-contractors with respect to the 
 balance of their claims. Wortmanv.Frid-Lewis Co., (1915) 33 W. 
 L. E. 119 (Alta.). 
 
 A materialman who without knowledge of the owner furnishes 
 a tenant at will with materials for a house, knowing that the tenant 
 is not the owner, can have no lien on the porperty. Proctor y. 
 Tows, 115 111.. 138. 
 
 If the materials are furnished under a contract for the construc- 
 tion of a building for a person who at the time of making the con- 
 tract has not the title to the land on which the building is to be 
 built, but who afterwards acquires it, the lien extends as well to the 
 labor and materials furnished before the deed was delivered as to 
 those furnished afterwards. Libbey v. Tilden, (1906) 192 Mass. 
 195. In Massachusetts it has also been held that no lien for ma- 
 terials can be established against the owner of real estate if the 
 materials were furnished under a contract which was made with the 
 person from whom he. purchased the property before it was con- 
 veyed to him, and no notice was given to him of an intention to 
 claim a lien, although a part of the materials were furnished after 
 he acquired the title. Martin v. Stewart, (1910) 204 Mass. 122. 
 
 A materialman is not entitled to register, as one individual 
 claim, a lien for the amount due for materials supplied by him to 
 a contractor, against all the lands jointly of the owners of different 
 parcels of land who have made separate contracts with the con- 
 tractor for the erection of houses on their respective parcels. 
 
126 THE LAW OP MECHANICS'' LIENS IN CANADA. 
 
 Dunn v. McCallum, (1907) 14 0. L. E. 249; Security Lumber Co. 
 v. Plested, (1916) 27. D. L. K. 441; 34 "W. L. E. 352, 9 Sask. 
 L. E. 183. But where one owner enters into an entire contract 
 for the supply of material to be used in several buildings, the 
 materialman can ask to have his lien follow the form of the con- 
 tract, and that it be for an entire sum upon all the buildings. If 
 the owner desires to invoke the statute to the extent of having the 
 lien upon any building confined to the value "of the material going 
 into that building, the onus is upon him to shew the facts, and if 
 the facts cannot be ascertained less violence will be done to the 
 statute by construing it as indicated than by rendering. it. nuga- 
 tory in many instances in which the legislature apparently in- 
 tended a lien to exist. Ontario Lime Association v. Grimwood, 
 (1910) 22 O. L. E. 17. The Massachusetts decisions uniformly 
 hold that where claimants have performed labor upon- several 
 buildings situated upon the same lot under an entire contract for 
 an entire price, a lien is created upon the whole lot and all the 
 buildings, the conclusion being that the parties by their contract 
 have connected the several buildings and treated them as one 
 estate. Wall v. Robinson, (1874) 115 Mass. 429. 
 
 When can materials be said to be " used " within the meaning 
 of this legislation? It would seem to be sufficient to raise a pre- 
 sumption that the materials were actually used to show that they 
 were furnished to be used in the building and were delivered to the 
 builder. It would be unjust to require a materialman to prove 
 conclusively that every article furnished by him was incorporated 
 in the building. It is not necessary that the materials should be 
 delivered at or near the building, so long as they are placed any- 
 where upon the land to.be affected by the lien. In one American 
 case it was held that the materials might be delivered at some other 
 accessible place agreed upon, and convenient for use by the con- 
 tractor or owner. A. E. Shortill Co. v. Aetna Indemnity Co., 124 
 N. W. 613. But this would not be accepted as a correct construe-' 
 tion of similar provisions in the Mechanics' Lien Acts in 'Canada. 
 
THE LIEN OF THE MATERIALMAN. 127 
 
 It is a question of fact whether the materials were furnished on 
 the credit of the building. 
 
 Proof that the materials were delivered at or near the building 
 site, at a place designated by the contracting party, and that the 
 building was thereafter completed with materials of the descrip- 
 tion of those furnished, is prima facie evidence that the materials 
 so delivered were used in its construction. Central Lumber Co. v. 
 Braddoch Land, etc., Co., (1907) 34 Ark, 560. Under the Al- 
 berta Act it has been decided that one who delivers materials for 
 use in a building under course of construction by a contractor is 
 not, after the latter's default, and the taking over of the work by the 
 property owner, entitled to a mechanics' lien for such of the ma- 
 terials as were subsequently worked into the building by the latter. 
 Unless there was a balance payable by the owner to the contractor 
 the claimant's only remedy was by a personal judgment against the 
 property owner. Canadian Equipment Co. v. Bell, (1913) 11 D. 
 L. E. 820. 
 
 The question has "arisen as to the rights of parties in relation 
 to materials which are the subject of conditional sale whereby the 
 property does not pass till payment, and also in the case of articles 
 supplied but on which the vendor is given a lien until the article 
 is affixed to the realty. In some of the Provinces legislation such 
 as the Conditional Sales Act (E. S.' 0. 1914, c. 136) exists. It 
 has been decided in Ontario that where the claimants of a lien 
 upon land for materials supplied for the erection of a building, 
 under , a Mechanics' Lien Act, - insist upon the terms of a condi- 
 tional Sale contract whereby they have a lien upon the materials 
 until payment, they cannot rank as lienholders and compete -with 
 others who have no right as against the materials. Hill v. Storey, 
 (1915) 34 0. L. E. 489. 
 
 Where the materialman has contracted to supply all of a certain 
 class of supplies required in the construction of a particular build- 
 ing, as mentioned in the specifications, and he supplies not only the 
 goods which were so mentioned but further materials which were 
 
128 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 contemplated by his contract as extras or additions, for the amount 
 of which the fixed price was subject to increase, the lien for the 
 entire bill is not lost by the lapse of the statutory period for filing 
 liens between the last delivery of that portion of the goods, the class 
 and quantities of which were shown in the specifications, and the 
 later delivery of the extras ; the lien in such cases is in time if filed 
 within the statutory period following the last delivery of extras. 
 Flett v. World Construction, (1914) 15 D. L. E. 628 (B.C.). 
 
 A mechanics' lien will attach for all materials supplied in the 
 erection of a building although the time for filing has expired as 
 to certain classes of material, ordered at a different time, where it is 
 shewn that there was a prior agreement to purchase all material 
 required for the, building from such vendor. WhitlocJc v. Loney, 10 
 Sask. L. E. 377, (1917) 3 W. W. E. 971, 38 D. L. E. 52. Where 
 the property owner joins with the contractor in giving the order 
 for material to be supplied in the erection 'of the building and it 
 is charged to their joint account the owner may be held liable for 
 the full price, although only a lesser sum is due by him to the 
 contractor. Rogers Lumber Co. v. Gray, 10 D. L. E. 698 (Sask.). 
 
CHAPTEE VIII. , 
 
 The " Owner " and his " Interest/'' 
 
 The person who is sought to be held responsible for the pay- 
 ment of the claim must be an " owner " of the property within 
 the meaning of that term as used in the Mechanics' Lien Act 
 under which the proceedings are taken. The lien attaches to the 
 estate or interest. of such owner in the realty upon which or in 
 respect of which the work or service is performed or the materials 
 placed or furnished. A lien cannot be sustained unless the 
 "owner" has an estate or interest in the land to which this "lien 
 would attach. Litton v. Gunther, 12 0. W. E. 1122; Atkinson Go. 
 V. Shields Construction Co., (1909) 76 N. J. L. 751. Actual pos- 
 session under a grant from the Crown coupled with ■ a statutory 
 right to register the grant, and thereupon to become the owner in 
 fee, creates an estate or interest upon which a mechanics' lien may 
 attach. Dorrell v. Campbell, 23 B. C. E. 560, (1917) 1 W. W. E, 
 500, 32 D. L. E. 44. See also MacDonald v. Hartley, (1918) 3 
 W. W. E. 910 (B.'C), which decides that a squatter on Crown 
 land who accepts work and materials applied to the erection of a 
 building thereon, holds himself out to be the " owner " of the land 
 and will be regarded as having an " interest " in the land. 
 
 To be entitled to a lien, the lien claimant must have been em- 
 ployed to do the work or furnish the materials by some one having 
 either an interest in the land or an interest in a contract made 
 with the owner. The persdn with whom the contract was made 
 must be an " owner " or else some relation of the parties must 
 have existed which would give a right of lien. Gearing y. Robin- 
 son, (.1900) 27 O. A. E. 364; Webb v. Gage; (1902) 1 O. W. E. 
 327; Flack v. Jeffrey, (1895) 10 Man. 514; Blight v. Ray, (1893) 
 23 0. E. 415; Graham v. Williams, (1884) 8 0. E. 478, 9 0. E. 
 
 MX. — 9 
 
130 THE LAW OF MECHANICS'" LIEN'S IN CANADA. 
 
 458. See also Garing v. Hunt, (1895) 27 0. E. 149; Fuirclough 
 v. Smith, (1901) 13 Man. 509; Baker v. Williams, (1916) 23 
 B. C. E. 124. 
 
 "Owner" is a variable term, (Prentice v. Brown, (1914) 17 
 D. L. E. 36 (Alta.) but the following definition in the Ontario 
 Mechanics' Lien Act is substantially the same as in the other pro- 
 vincial Acts, — 
 
 " ' Owner ' shall extend to any person, body corporate or poli- 
 tic, including a municipal corporation and a railway company, 
 having any estate or interest in the land upon or in respect of 
 which the work or service is done or materials are placed or fur- 
 nished, at whose request and (i.) upon whose credit, or (ii.) on 
 whose behalf, or (iii.) with whose privity and consent, or (iv.) 
 for whose direct benefit work or service is performed or materials 
 are placed or furnished, and all persons claiming under him or 
 them whose rights are acquired after the work or service in respect 
 of which the lien is claimed is commenced or the materials fur- 
 nished have been commenced to be furnished." E. S. 0. e. 140, 
 s. 2 (c). Under the Alberta Mechanics' Lien Act, E. S. A. 1906, 
 c. 21, s. 11, a mechanics' lien may be acquired on demised pre- 
 mises for making alterations therein under contract with the 
 lessee, where the" landlord with knowledge that the work was in 
 . progress, failed to give notice of non-responsibility. Under that 
 section the right to a lien on demised premises for making altera- 
 tions therein under a contract with the lessee is not limited to such 
 alterations as are beneficial to and which increase the landlord's 
 interest in the property. Peters, Bohls v. McLean, (1913) 13 
 D. L. E. 519. 
 
 No precise general rule can be laid down declaring what con- 
 stitutes " request " or " privity and consent " of the owner. Some 
 confusion may have arisen because, in some instances, in deciding 
 a particular case upon its own facts, attempts were made to state 
 a general rule, which rule as therein stated was too broad for gen- 
 eral application. In dealing with this question each case must be 
 determined by its own facts, and while there may be special cir- 
 
THE " OWNER " AND HIS " INTEREST." 131 
 
 cumstances in a case which would justify implying a "request," 
 no mere consent to the work, or mere knowledge that the work is 
 being done and non-interference can constitute "request" or 
 "privity and consent." These words "privity and consent" in- 
 volve something in the nature of a direct dealing between the 
 contractor and the persons whose interest is sought to be charged. 
 Graham v. Williams, 8 0. R. 478, 9 0. R. 458, Gearing T. Robin- 
 son, 27 0. A. R. at p. 371 ; Marshall Brick Go. v. York Farmers 
 Colonization Co., (1917) 36 D. L. R. at p. 427, per Anglin, J.; 
 Marshall Brick Co. x. Irving, 28 D. L. R. v 464, 35 0. L. R. 542 ; 
 Eddy Company, Limited v. Chamberlain, (1917) 45 N. B. R. 261. 
 Although some Mechanics' Lien Acts contain a provision (see 
 R. S. 0. c. 140, s. 14, (2) ) declaring that an unpaid vendor who 
 has not conveyed shall be deemed a mortgagee, yet he may also be 
 regarded as an " owner " if he fulfils the requirements prescribed 
 by the statutory definition of " owner," but mere consent to the 
 work or mere knowledge that the work is being done will not make 
 a mortgagee liable as " owner " 
 
 An unpaid vendor who advances funds to the purchaser to 
 build upon the land is not an " owner " so as to subject the land 
 to Mechanics' lien for work done and materials furnished under 
 contracts with the purchaser, but such vendor is deemed a " mort- 
 gagee " for the purpose of giving priority to the liens upon the 
 •increased selling value of the land caused by the improvements. 
 MarshaW Brick Co. v. Irving, 28 D. L. R. 464, 35 0. L. R. 542 ; 
 Marshall Brick Co. v. York Farmers Colonization Co., (1917) 36 
 D. L. R. 420. 
 
 To render the interest of an owner liable, the building, etc., 
 must have been at his request, express or implied. A " request " 
 within the meaning of the statute may be implied from a variety 
 of circumstances. The defendant T., having a lease of land, sublet 
 it to the defendant H., the latter agreeing to build upon the land 
 according to plans to be approved by T., and H. entered into a 
 contract with the plaintiff to build accordingly. It was held that 
 
132 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the taking from H. of an agreement to build was a " request " 
 _ from T. and that the interest of T. as owner was subject to the lien 
 of the plaintiff under the Act. Orr v. Robertson, (1915) 34 0. L. 
 E. 147. It has been held, however, that a defendant, B., the 
 purchaser from the defendant S. of land upon which S. was erect- 
 ing houses, is not personally liable as " owner " for work done and 
 materials supplied by a company in and for the building of the 
 houses, — some of the work having been done and some of the 
 materials having been supplied after B. took possession, but the 
 company having had no communication, direct or indirect, with 
 him in regard to work or material. It could not' be said that what 
 the company did was done at B.'s request, express or implied, or 
 upon his credit, or on his behalf, or with his privity or consent, or 
 for his direct benefit. Cut-Rate Plate Glass Co. v. Solodinslci, 
 (1915) 34 0. L. E. 604. 
 
 It may happen that the work turns out to the advantage of the 
 owner, but this circumstance would not necessarily establish the 
 fact that the work was for his " direct benefit." 
 
 A person is not an " owner " so as to make his land liable to a 
 lien for materials supplied under a contract with the tenant, for 
 the purpose of adding to or improving a hotel upon the land in the 
 possession of the tenant with an option to purchase, unless there 
 is something in the nature of a direct t dealing between the owner 
 and the person furnishing the materials. Eddy Company Limited v. 
 Chamberlain, (1917) 45 1ST. B. E. 261. The owners of four lots 
 executed an agreement to sell them to one Irving who was to make 
 a cash deposit and undertake to build' four houses on the lots, the 
 vendors to advance $6,400 for building purposes. On completion of 
 the houses and on receipt of the balance of price and amount of 
 advances the vendors were to execute a deed of the lots. Irving 
 gave contracts for the building which was partly completed, and 
 $3,400 was advanced by the vendors when Irving became insol- 
 vent, and the vendors, under the terms of their agreement, gave 
 notice of forfeiture and took possession of the property. Prior to 
 
THE " OWNER " AND HIS " INTEREST." 133 
 
 this liens had been filed for labor and materials supplied and the 
 lien holders brought action for enforcement thereof against the 
 vendors. It was held that the vendors were hot " owners " of the 
 property and therefore _ were not liable to pay for the labor 
 and materials supplied for the building of the houses of Irving. 
 Marshall Brick Co. v. York Farmers Colonizaztion Co., (1917) 
 54 Can. S. C. E. 569. 
 
 Under the Mechanics' Lien Act in Manitoba it has been held 
 that the Act does not authorize the registration of one lien for one 
 lump sum against the lands of different owners, although the work 
 may have been done or the materials furnished under one contract 
 for the building of houses on the lands of the different owners, 
 unless, perhaps, in a case where the lien claimant did not know and 
 had no means of ascertaining before filing his lien, that the lands 
 were owned by different persons. Builders Supply Co. v. Huddle- 
 stone, (1915) 25 Man. L. E. 718. 
 
 A purchaser of an unfinished building whose deed is registered 
 prior to the registration of any mechanics' liens without actual 
 notice thereof thereby acquires a priority (see Eegistry Act, E. S. 
 0. 1914, c. 124) and takes the property free of the liens. Mere 
 knowledge that building was going on upon the land does not 
 amount to actual notice; nor can the purchaser be deemed an 
 " owner " within the meaning of the provision of the Mechanics' 
 Lien Act which depends upon privity, consent or benefit, in order 
 to charge the land with the liens. Priority of registration in the ' 
 absence of actual notice must prevail. Sterling Lumber Co. v. 
 Jones, (1916) 29 D. L. E. 288; Cook v. Koldofsky, (1915) 28 
 D. L. E. 346, 35 0. L. E. 555 ; Marshall Brick Co. v. Irving, 28 
 D. L. E. 464, 35 0. L. E. 542. 
 
 A .contractor's offer to build a pair of semi-detached houses on 
 two adjoining lots, owned by different persons, naming separate 
 terms for each house, but addressed to both owners together, im- 
 plies a distinct acceptance by each of them, and the acceptance by 
 one does not create a joint contract binding on both as subjecting 
 
134 THE LAW OF MECHANICS' LIEN'S IN. CANADA. 
 
 both lots to a mechanics' lien for materials furnished for both 
 houses ; nor can the interest of the, accepting owner be charged for 
 materials furnished on the adjoining lot not at "his request or 
 for his direct benefit." Compeigne v. Carver, (1915) 27 D. L. E. 
 76. But if two persons each owning in severalty one or two ad- 
 joining lots enter into a joint contract for work to be done on both 
 lots under an agreement treating both lots as one, a mechanics' 
 lien may be filed on both parcels. Deegan v. Kilpatrich, 54 N. Y. 
 App. Div. 374. The distinction between the former and the latter 
 case is that the contractor in the former case undertook to proceed 
 as on two separate contracts whereas in the latter case there was a 
 joint contract. A lien which appears to be for work done, at the 
 instance of other persons, without indicating that the work was done 
 for the " owner " of the property to be charged, is incurably defec- 
 tive, and the owner's subsequent undertaking to assume such lien 
 is not binding on him. Northern Plumbing & Keating Co. v. 
 Greene, (1916) 27 D, L. K. 410 (Sask.). 
 
 To create a lien on the property of the owner in favor of the 
 materialman, there must be a request of the owner and a supplying 
 of the materials in pursuance thereof, either upon the owner's 
 credit or on his behalf or with his privity or consent or for his 
 direct benefit. Slattery v. Lillis, (1905) 10 0. L. E. 677, Blight v. 
 Ray, (1893) 25 0. E. 415; Eddy Company, Limited, v. Cham- 
 berlain, (1917) 45 N. B. E. 261. If, in addition to the request, 
 . one or other of these alternative conditions exist the lien is created. 
 Slattery v. Lillis, supra; Sterling Lumber Co. v. Jones, (1916) 
 29 D. L. E. 288. A materialman is not entitled to register as one 
 individual claim, a lien for the amount due for materials supplied 
 by him to the contractor, against all the lands jointly of the 
 owners of different parcels, who had made separate contracts with 
 the contractor for the erection of houses, on their respective par- 
 cels; nor do they have such interest in one another's land as 
 " owners " so as to charge the other's land for materials furnished 
 at the owner's request or for his benefit. Security Lumber Co. v. 
 
THE "OWNER" AND HIS " INTEREST." 135 
 
 Plested, (1916) 27 D. L. E. 441, 9 Sask. L. K. 183, 34 W. L. E. 
 352. 
 
 The vendor and vendee cannot prejudice the rights of a lien 
 claimant by secret agreement. Malmgren v, Phinney, 50 Minn. 
 457, 18 L. E. A. 753 ; Henderson v. Connolly, 123 111. 98 ; Gwrlan 
 v. Van Rensselaer, 71 Hun. (N.Y.) 2. Where a vendee agrees 
 with a vendor to erect certain buildings this makes the vendee an 
 " owner," and the entire interest may be bound by him. Borden v. 
 Mercer, 163 Mass. 7 ; McCue v. Whitwell, 156 Mass. 205 ; Young 
 v. Wilson, 44 N. J. L. 157; Schmalz v. Mead, 125 (N.Y.) 188, 
 even where the vendee forfeited his contract. Henderson v. Con- 
 nolly, supra. 
 
 A surrender to the vendor by a purchaser in possession under 
 an executory agreement will not defeat the lien. Hoffstrom v. 
 Stanley, 14 Man. L. E. 227. Under the Alberta Mechanics' Lien 
 Act, c. 21, s. 11, Statutes of 1906, owner will include "lease- 
 holder " when read with the interpretation clause, s. 2, s.-s. 4, 
 extending the term owner to a person having any estate or inter- 
 est, legal or equitable, in the land; Prentice v. Brown, (1914) 
 17 D. L. E. 36 (Alta.). 
 
 In some American courts it has been held that where the 
 building is by the terms of the lease to become the property of the 
 lessor, this will be sufficient ground for charging his estate with 
 the amounts owing to the lienholders, Williams v. Vanderbilt, 
 (1893) 145 111, 238; Showalter v. Loundes, 2 Am. & Eng, Ann. 
 Cas. 1096. 
 
 The interest, large or small, of the contracting " owner " will 
 be covered by the lien, and if, afterwards, that estate or interest 
 becomes less, the lien can still be claimed against the estate or 
 interest the owner had at the time the lien attached. Bank of 
 Montreal v. Haffner, (1884) 10 O. A. E. 573; Keffer v. Miller, 
 (1890) 10 iC. L. T. 90; In re Empire Brewing and Malting Co., 
 (1902) 9 B. C. E. 557. The word "interest" is the broadest 
 term applicable to claims in or upon real estate, in its ordinary 
 
136 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 signification among men of all classes. It is broad enough to 
 include any right, title or estate in or a lien upon real estate. 
 Ormsby v. Attman, 85 Fed. 492, 29 C. C. A. 295. A squatter on 
 Crown land who accepts work and materials applied to the erection 
 of a building thereon, holds himself out to be the " owner " of the 
 land and will be regarded as having an " interest " in the land. 
 Macdonald v. Hartley, (1918) 3 W. W. E. 910 (B.C.). An estate 
 in remainder is a legal estate and will support an action under the 
 Mechanics' Lien Act. Davis v. MM, (1914) 86 N. J. L. 167. 
 
 In the case of a lessee, while the lien may be enforced against 
 the interest of a lessee, some Mechanics' Lien Acts require the con- 
 sent of the lessor, in writing, signed by him upon the claim of lien 
 before the fee simple can be charged.. 
 
 As a general rule the lien only attaches upon the estate or 
 interest of the owner at the time the work or service is performed, 
 or the materials • furnished. If, however, an owner having an 
 equitable estate, subjects that estate to a mechanics' lien and after- 
 wards acquires the fee simple or other larger estate, such -larger 
 estate will be subject to the lien. The owner may be estopped from 
 setting up the subsequent purchase in answer to the claim of the 
 lien holder. Wolfe v. Oxbard, 152 Pa. 623; McGraw v. Godfrey, 
 56 ~N. Y. 610. Where labor and materials are furnished under a . 
 contract for the construction of a building for a person who at the 
 time of making the contract has not the title to the land on which 
 the building is to be built, but who afterwards acquires it, the lien 
 extends as well to the labor and materials furnished before the 
 deed was delivered as to those furnished afterwards. Libbey v. 
 Tilden, (1§Q§) 192 Mass. 175. The most frequent instance of an 
 equitable estate becoming chargeable is that of a purchaser under 
 a contract, which has not been fully completed, the purchaser not 
 having acquired the legal title. Even ihen, if upon the comple- 
 tion of the contract the vendor takes a mortgage for the purchase 
 money, it becomes a prior mortgage under the Act, and the ven- 
 dor's interest in the property is only chargeable to the extent pre- 
 
THE " OWNBB " AND HIS " INTEBEST." 137 
 
 scribed in the Act. See s. 14, s.-s. 2 of Ontario Act, and corre- 
 sponding provisions in other provincial Acts. It is probable that 
 though the contract is never carried out, the lienholder may assert 
 his lien upon the increase in value, against the vendor as if the 
 relationship had been that of mortgagor and mortgagee. 
 
 As a general rule it is only the interest of the purchaser that 
 is affected by the lien. In a case under the Manitoba Act (British 
 Columbia Timber and Trading Co. v. Leberry, (1902) 22 C L. T. 
 273) the defendant bought lands from one T., for $1,200 and paid 
 $50 on account, balance to be payable immediately. The defend- 
 ant took possession and erected a building and made improvements. 
 Plaintiff supplied materials and claimed a lien against defendant 
 and Townsend, and it was held that the lien only extended to the 
 equitable interest of defendant, and that the claim against Town- 
 send should be dismissed. The same principle has been applied 
 generally in other cases. In Hoffstrom v. Stanley, (1902) 14 
 Man. 227, the defendant agreed to purchase land from D. & MeC. 
 The price was to be paid August 15th, 1901, and in default D. & 
 McC. could either cancel the agreement, in which event any pay- 
 ments made became forfeited, or could re-sell and recover any 
 deficiency from defendant. No part of the purchase money was 
 paid, but defendant made improvements on the land, work upon 
 which went on after August 15th, with the .knowledge and concur- 
 rence of D. & MoC. Plaintiff was employed by defendant as car- 
 penter and claimed a lien. Killam, J., held that, having granted 
 an extension, D. & McC. could not cancel the agreement without 
 notiee,' and, therefore, the agreement was still subsisting when 
 plaintiff did the work. The parties must be, regarded as mort- 
 gagor and mortgagee, and plaintiff was entitled to a lien, subject 
 to the charge of D. & McC. for unpaid purchase money and inter- 
 est. iSo, the holder of a working option on a mineral claim was 
 held to have an estate or interest against which a lien might be 
 enforced and the interest of the person giving the option to pur- 
 chase was not chargeable unless he had brought himself within the 
 
138 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 provisions of the Act. Anderson v. Godsall, (1900) 7 B. C. B. 
 404. In Saskatchewan it has been held that where the defendant 
 held the land under an agreement to purchase he had an interest 
 or estate on which the lien would attach. Mountjoy v. Reward 
 School District Corporation, 10 W. L. E. 282. 
 
 A person in actual possession of land has a title thereto as 
 against all the world except the true owner, and has a sufficient 
 interest to come within the meaning of " owner." Blight v. Bay, 
 23 '0. E. 415; Beggin v. Manes, 52 O. E. 443, but in order to 
 amount to an interest which would support a lien, the actual pos- 
 session or interest must exist at the time the materials were or- 
 dered. Calvin Walston Lumber Company v. McKinnon, (1911) 
 16 W. L. E. 310. A lien can attach to any equitable title or inter- 
 est or to any other interest which can be conveyed. Montandon 
 v. Deas, 48 Am. Dee. 84; Tracy v. Bogers, 69 111. 662; Franklin 
 Sav. Bank v. Taylor, 131 111. 386. A person cannot by a wrong- 
 ful act, such as trespassing, constitute himself an "owner." If a 
 person without any authority from the then owner erects a building 
 upon a lot of land and subsequently becomes owner of the lot on 
 which the building is standing, any interest which might have 
 been claimed by him in the property under a lien previously as- 
 serted by him merges in his title as owner. Calvin Walston Lum- 
 ber Company v. McKinnon, supra. Where a conveyance of land 
 was made to a husband and wife, each of the grantees is an 
 " owner " under the Mechanics' Lien Act, and may by contract 
 subject his or her estate to a lien for improvements on the land, 
 though the other does not join in the contract (Independence 
 Sash Co. v. Bradford, (1911) 134 S. W. 118) ; but a statute vest- 
 ing in the holder of a special timber license all rights of property 
 in all trees, timber and lumber cut within the limits of the 
 license during the term thereofj was construed as not giving any 
 estate in the land itself chargeable under the Mechanics' Lien Act. 
 Bafuse v. Hunter, 12 B. C. E. 126. Under the Manitoba Act a 
 claim of lien cannot be "realized" unless the person who is the 
 
THE " OWNEE " AND HIS " IETTEBEST." 139 
 
 registered owner of the land at the time of the commencement of 
 the action is made a party to it, or unless there is some other 
 a tion pending to which such owner is a party, in which the claim 
 may be " realized." Abramovitch v. Vrondressi, (1913) 24 W. 
 L. E. 439, 11 D. L. R. 352. 
 
 A vendee in possession is an " owner " (Beck v. Catholic Uni- 
 versity of America, 62 App. Div. (K. Y.) 599; Courtemanche v. 
 Blackstone Valley Co., (1898) 170 Mass. 50; Anderson v. Berg, 
 174 Mass. 404), and, indeed, a mere possessory interest or even 
 constructive possession, may sometimes suffice to create a lien 
 (Christie v. Mead, 8 C. L. T. 312; Prutzman v. Bushong, 83 Pa. 
 526), although, sometimes, possession is not sufficient. Fletcher 
 Y. Stedman, 159 Mass. 124; Tracy v. Rogers, 69 111. 662. A 
 mortgagor is an owner until after decree of foreclosure. Davis v. 
 Connecticut Mut. Life Ins. Co., 84 111. 508. A mechanics' lien 
 filed against the possessory interest of an entrant to Crown lands 
 does not follow on the title if the Crown grant issues to another 
 person. In re The Land Titles Act, (1919) 1 W. W. E. 628 (Sauk.). 
 Upon the registration of a grant from the Crown where a mechan- 
 ics' lien is filed against the interest in the land of a person other 
 than the grantee, the lien should be followed on the title unless the 
 grant shows on its face that it is a homestead grant. In re The 
 Land Titles Act, (1919) 2 W. W. E. 39 (Sask.). 
 
 It has been held that a partner may bind a partnership. 
 Christian v. Illinois Malleable Iron Co., 92 111. App. 320. 
 
 A trustee may be an "owner." Springer v. Eroeschell, 161 
 111. 358; Weaver v. Sheeler, 124 Pa. 473. A contract for neces- 
 sary repairs made with trustee to whom the land has been conveyed 
 in trust " to secure and pay over the profits above and beyond all 
 necessary expenses," will support a mechanics' lien (Chatham v. 
 Rowland, 92 N\ C. 340), but a contract with the trustee, who is 
 only authorized to collect rents, for large and expensive improve- 
 ments in excess of necessary repairs, would not entitle the con- 
 tractor to a lien. Herbert v. Herbert, 57 How. Prac. (N.Y.) 33. 
 
140 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 A trustee who is authorized to build may encumber the estate with 
 a mechanics' lien. Taylor v. Goldsorf, 74 111. 254. 
 
 A mechanics' lien attaches to the leasehold interest and to 
 buildings erected by one tenant and sold to another, who has 
 acquired a lease of the same interest, and this, notwithstanding 
 the removal of the buildings, at the end of the term, is expressly 
 required by the lease. Zabriski v. Greater America Exposition 
 Company, (1903) 62 L. Er A. 369. The question whether a lien 
 can be created by a trustee against a trust estate depends upon 
 the terms of the trust. But property held in trust is not subject 
 to a mechanics' lien where the trust deed has been duly recorded 
 and prohibits the creating of a lien. Franklin 8. Bank v. Toylor, 
 (1890) 131 111. 376. An agreement between vendor and vendee 
 that the vendee shall, erect certain buildings may make the vendee 
 an "owner." Paulsen v. Manske, 126 111. 72; Borden v. Mercer, 
 163 Mass. 7. The vendor and vendee cannot, by secret agree- 
 ment, prejudice the rights of the lien claimant. Henderson v. 
 Connolly, 123 111. 98; Malmgren v. Phinney, 50 Minn. 457; 18 
 L. E. A. 753. A purchaser under a deed held in eserow may sub- 
 ject his interest to a lien. Chicago Lumber Co. v. Dillon, 13 Colo. 
 App. 196. A mechanics' lien cannot be acquired (under section 
 11 of the Alberta Mechanics' Lien Act) on demised premises for 
 building or placing therein at the request of the tenant chattels 
 or trade fixtures which he may remove at the expiry of his term. 
 Peters, Bohls & Co. v. McLean, (1913) 13 D. L. E. 519. 
 
CHAPTEE IX. 
 
 Essentials to Bind an " Owner." 
 
 To ascertain the rights and liabilities of an " owner " where 
 it is sought to charge his interest in the particular lot of land with 
 a lien, two important provisions of the Mechanics' Lien Act must 
 be considered and read together, — viz. — the section creating the 
 lien and the section defining the meaning of the term " owner." 
 
 These two sections in the Ontario Act correspond substantially 
 with other Mechanics' Lien Acts in Canada, and one section pro- 
 vides that: — 
 
 Unless he signs an express agreement to the contrary . . . 
 any person who performs any work or service upon or in re- 
 spect of or places or furnishes any materials to be used in 
 the making, constructing . . . any erection, building, . . . 
 for the owner, contractor or sub-contractor, shall by virtue 
 thereof have a lien for the price of such work, service or ma- 
 terials upon the erection, building . . . and the land occupied 
 thereby or enjoyed therewith or upon or in respect of which 
 such work or service is performed, or upon which such ma- 
 terials are placed or furnished to be used. E. S. 0. 1914, c. 
 140, s. 2 (c). 
 
 The other section defining owner is as follows: — 
 
 " Owner " shall extend to any person, body corporate or 
 politic, including a municipal corporation, and a railway com- 
 pany, having' any estate or interest in the land upon or in 
 respect of which the work or service is done or materials are 
 placed or furnished, at whose request, and (i) upon whose 
 credit, or (ii) on whose behalf, or (iii) with whose privity and 
 consent, or (iv) for whose direct benefit work or service is per- 
 formed, or materials are placed or furnished, and all persons 
 
142 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 claiming under him or them whose rights are acquired after 
 the work or service in respect of which the lien is claimed is 
 commenced or the materials furnished have been commenced to 
 be furnished. E. S. 0. 1914, c. 140, s. 2 (c). 
 
 And there is also a later section, B. S. 0. 1914, c. 140, s. 8, 
 which provides that the lien shall attach upon the estate or inter- 
 est of the owner in the property mentioned in the earlier section. 
 
 In order to create a mechanics' lien against any interest in 
 land certain things are made essential by the foregoing or similar 
 sections. It is plain that the work must be performed, or the 
 materials supplied for an owner, and also at his request and upon 
 his credit or on his behalf or with his privity or consent or for his 
 direct benefit. 
 
 Although the fact that work is done on the erection of a build- 
 ing or that materials are furnished, will not necessarily give to any 
 one the right to a lien against the realty, yet, on the- other hand, 
 to create a lien a Mechanics' Act does not require a contract be- 
 tween the person performing the work or furnishing the materials 
 and the " owner " of the property. 
 
 To bind the "owner," however, and create a lien against his 
 interest, something more than his mere knowledge or mere consent 
 to the work being done, is necessary; there must be a request by 
 him, either, express or by implication from circumstances, and the 
 work must be done or the materials furnished in pursuance of that 
 request. Slattery v. Lillis, (1908) 10 0. L. E. 697; Gearing v. 
 Robinson, (1900) 27 0. A. E. 364; Marshall Brick Co. Y. Irving 
 v. York Farmers Colonization Co., (1917) 54 Can. S. ;C. E. 569; 
 Eddy Company, Limited v. Chamberlain, (1917) 45 1ST. B. E. 261; 
 Isitt v. Merritt Collieries, (1920) 1 W. W. E. 879. 
 
 The sections of a Mechanics' Lien Act defining the meaning of 
 the term " owner " must be read in connection with the section 
 creating the lien, and if this be done it will appear that the follow- 
 ing essentials must exist in order to create the lien, — 
 
ESSENTIALS TO BIND AN " OWNEE." 143 
 
 (1) A request by the "owner." 
 
 (2) Work done or materials furnished in pursuance of that 
 request. 
 
 (3) The work must be done or the materials furnished either 
 (a) upon the owner's credit, or 
 
 (6) on his behalf, or 
 
 (c) with his privity or consent, or 
 
 (d) for his direct benefit. 
 
 Any one of the alternative conditions mentioned in (3) will 
 suffice if joined with the essentials specified in (1) and (2). 
 
 The expression " upon the credit of the owner " has a broad 
 meaning and does not necessarily mean only upon his credit in the 
 sense that a personal obligation was created on his part to the person 
 who supplied the materials. Slattery v. Lillis, (1905) 10 0. L. 
 E. 697. 
 
 An owner's request may be implied. An agreement for the 
 sale of land which contains a covenant binding the purchaser to 
 erect certain works on the land at a certain cost and contains a 
 covenant by the vendor, the owner, to remit a specified amount 
 from the purchase price on the completion of the undertaking, is 
 such a request in writing as gives a mechanics' lien arising from 
 the erection of the works general application. See section 6, Me- 
 chanics' Lien Act, B. C. 1916, c. 154. And therefore the lien is 
 not restricted to the increase in value of the premises by reason of 
 such works. British Columbia Granitoid, etc., Company, Ltd. y. 
 Dominion Shipbuilding, Engineering and Dry Dock Co., (1918) 
 2 W. W. E. 919. 
 
 The owner may subject his interest to a mechanics' lien for 
 repairs made by a tenant, provided that the owner's consent is 
 clearly established. Caring v. Hunt, (1895) 27 0. E. 149. This, 
 of course, would not apply where there is a statutory provision to 
 the contrary. See Ontario Mechanics' Lien Act. The Alberta 
 'Act, e. 21, Acts of 1906, contains a section (.11) which provides 
 that : " Every building or other improvement . . . constructed 
 
144 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 upon any lands with the knowledge of the owner or his authorized 
 agent . . . shall be held to have been constructed at the request of 
 such owner . . ." unless notice shall have been given of re- 
 pudiation of responsibility. Under this section it was held that 
 no lien would attach to bind the owner of land, for work performed 
 in mining coal under a lease, at the request of the lessee, not of 
 the owner or for his benefit.', Work of mining coal is not work in 
 respect of a building or other improvement. It was not improving 
 the land but depreciating it: Wester v. Jago, (1917) 33 D. L. E. 
 61-7. Under this same important section, where a building was 
 constructed with the knowledge of the owner who gave no notice 
 disclaiming responsibility, the same Tesult followed as if the build- 
 ing had been constructed at the owner's request. Scratch v. An- 
 derson, (1908) 33 D. L. E. 620; Limoges v. Scratch, (1910) 44 
 Can. S. 0. E. 86. 
 
 In dealing with the question as to what constitutes " request " 
 or "privity and consent" of the owner, each case must be deter- 
 mined by its own facts. A " request " may be implied from 
 special circumstances, (Orr v. Robertson, (1915) 34 0. L. E. 147; 
 Cut-Rate Plate Glass Co. v. Solodinski, (1915) 34 0. L. E. 604) 
 but the provisions of the Mechanics' Lien Acts in Canada do not 
 warrant the view that mere consent to the work or mere know- 
 ledge that the work is being done and non-interference will con- 
 stitute "request" or "privity and consent." The words "privity 
 and consent " involve something in the nature of a direct dealing 
 between the contractor and the persons whose interest is sought to 
 be charged. Graham v. Williams, 8 0. E. 478, 9 O. E. 458; 
 Gearing y. Robinson, (1900) 27 O. A. E. at p. 371; Marshall Brick 
 Co. v. York Farmers Colonization Co., (1917) 36 D. L. E. at p. 
 427, per Anglin, J.; Marshall Brick Co. v. Irving, 28 D. L. E. 
 464; 35 0. L. E. 542; Eddy Company, Limited v. Chamberlain, 
 (1917) 45 N. B. E. 261; Slattery v. Lillis, (1905) 10 0. L. E. 
 697; Webb v. Gage, 1 0. W. E. 327. The onus of proof of con- 
 sent is upon the person claiming a lien against the owner of the 
 
ESSENTIALS TO BIND AN " OWNER." 145 
 
 property. Marshall Brick Co. v. Irving, (1916) 35 0. L. E. 542. 
 " Privity " must . mean knowledge and acquiescence. Marshall 
 Brick Co. v. Irving, supra. An express request of the owner is not 
 necessary; it may be implied from the circumstances. Fortin v. 
 Pound, (1905) 1 W. L. E. 333. Consent may be implied. Yick- 
 ery v. Richardson, 189 Mass. 53; Steeves v. Sinclair, 171 N. Y. 
 676; Fischer v. Jordan, 169 N. Y. 615; Gilmour v. Colcord, 96 
 App. Div. (N.Y.) 358. 
 
 But mere failure to object on the part of the lessor to improve- 
 ments by his lessee should not subject the interest of the lessor to 
 a lien. Graham v. Williams, 8 0. E. 478, 9 0. E. 458. 
 
 To bind the owner's interest there must be. the request, the 
 furnishing of the materials, or the doing of the work, in pursu- 
 ance of that request, either upon the owner's credit or on his be- 
 half or with his privity or consent, or for his direct benefit. If in 
 addition to the request one or other of these alternative condi- 
 tions exist, the lien is created. Slattery v. Lillis, (1908) 10 0. L. 
 E. 697. 
 
 A contract with the authorized agent of the owner is sufficient 
 to create a lien against the property. Interstate Building Assoc, v. 
 Ayers, 177 111. 9 ; Mammoth Min. Co. t. Salt Lake Foundry, 151 
 TJ. S.- 447. Where the improvement of the premises is the joint 
 enterprise of the owner of the premises and the lessee, a provision 
 in the lease to the effect that the lessor's interest shall not be sub- 
 ject to mechanics' liens for labor or material furnished for the 
 improvement is void. Bbyer v. Keller, (1913) 258 111. 106. 
 
 A lease with a building covenant by the lessee and knowledge 
 of the work by the owner amounts to " consent " of the owner to 
 the building, and creates a lien against his estate. 
 
 The consent must be shown, and' whether .it appears in any 
 given case will depend wholly upon the facts of that case. Shaw 
 V. Young, 87 Me. 271. 
 
 A mere general consent or requirement on the part of a land- 
 lord that the lessee may or shall at his own expense make altera- 
 
 mx. — 10 
 
146, THE LAW OE MECHANICS' LIENS IN CANADA. 
 
 tions and repairs to premises, does not constitute consent. The 
 cases in which such a consent has been implied are cases in which' 
 the owner has done some affirmative act respecting the particular 
 improvement from which his knowledge and consent may properly 
 be inferred. JUtna Elevator Go. v. Beeves, (1908) 125 App. Div. 
 (N.Y.) 842. While consent must be something more than mere 
 acquiescence in the act of a tenant, who for his own convenience, 
 makes temporary erections and additions which he has a right to 
 remove during his tenancy, yet if the owner of the building has 
 knowledge that certain repairs are necessary and makes no pro- 
 vision for them, but is present when they are being made by his 
 tenant, and gives no notice that he will not be responsible therefor, 
 his consent may be inferred from his conduct considered in connec- 
 tion with all the circumstances oj: the case. York v. Mathis, 
 (1907) 103 Me. 67. 
 
 In construing Acts which make the consent of the owner suf- 
 ficient to bind his interest in the property, and in determining the 
 question of consent much may depend on the nature of the work 
 done, consent may be inferred for ordinary preservative repairs 
 when it would not be inferred for alterations, remodellings, addi- 
 tions, or even more expensive repairs. Shaw v. Young, 87 Me. 
 271. A lien will be enforced against the owner for repairs -made 
 by his lessee where the lease provides that the lessee should make 
 such improvements and that the same should become the property , 
 of the lessor at the expiration of the lease. Henry v. Miller, (1908) 
 145 111. App. 628. 
 
 The consent of the owner or of any person having authority 
 from or rightfully acting for such owner is consent to the perform- 
 ance of the work or to the furnishing of the materials, not to the 
 creating of a debt for such labor or materials. Brown* v. Haddock, 
 (1905) 199 Mass. 480; Vickery v. Richardson, 189 Mass. 53. The 
 owner by giving a lease in which lessee covenants to keep all the 
 machinery in good working order at his own costs, " consents " to 
 work done under contract with lessee for the purpose of putting 
 
ESSENTIALS TO BIND AN " OWNER." 147 
 
 and keeping the machinery in working order. Tinsley v. Smith, 
 (1909) 115 App. Div. 708, 104 N. Y. 581. As to provisions in a 
 lease which constitute " consent," see New York Elevator Supply 
 Co. v. Brewer, 74 App. Div. (NY.) 400; Jones v. Menke, 168 
 N. Y. 61; Meistrell v. Baldwin, (1911) 144 N. Y. App. Div. 660. 
 
 Where, by virtue of a special provision of a Mechanics' Lien 
 Act, " consent " is sufficient to bind an " owner," express consent 
 of the owner is not necessary. Consent may be inferred from 
 facts which indicate at least a willingness on the part of the 
 owner to have the improvements made, or an acquiescence in the 
 means adopted for that purpose, with knowledge of the object for 
 which they are employed. The omission of the owner to object to 
 improvements made upon his premises by a tenant, when the 
 owner has knowledge of the circumstances under which they are 
 being made is an important fact bearing upon the question of 
 consent. National Wall Paper Co. v. Sire, 163 N. Y. 132, 131. 
 Consent to the making of small repairs to an elevator cannot be 
 implied under a clause in a lease whereby the lessee agreed to 
 keep the premises in good repair, and where nothing appears from 
 which it may be inferred that the landlord knew of. or anticipated 
 them. Mtna Elev. Co. v. Beeves, (1908) 125 App. Div. (N.Y.) 
 842. As to facts showing " consent," see Courtemanche v. Black- 
 stone Valley St. R. Co., 170 Mass. 50; Paulsen v. Manske, 126 
 111. 72. /Consent may follow from the owner's conduct when ac- 
 companied with knowledge of the circumstances under which the 
 work is being done. Gannow v. Shepard, 156 Mass. 355 ; Vickery 
 Y. Richardson, (1905) 189 Mass. 53; York v. Mathias, 103 Me. 
 67; Anderson v. Berg, 174 Mass. 404; Steeves v. Sinclair, 171 
 N. Y. 676. 
 
 An owner who has power to choose whether or not his property 
 shall be improved, and who executes a lease requiring the tenant 
 to make substantial improvements, consents to the improvements 
 within the law. McNulty Bros. v. Offerman, 126 N. Y. S. 755, 
 141 App. Div. 730. But a lease and contract to convey is not the 
 
148 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 " consent " required by the statute to subject" the lessor's title to a 
 lien for building, though the erection of buildings was contem- 
 plated by both parties, being necessary to the utilization of the 
 lease. Currier v. Cummings, 40 N. J. Eq. 145. As to power of 
 lessee or vendee to subject owner's interest to lien, see Belnap v. 
 Condon, (1908) 23 L. E. A. and cases therein reviewed. When a 
 contractor perforins work under a contract with the tenant and 
 relies also upon the consent of the owner, he is not justified in 
 abandoning the work because the tenant refused to pay or is other- 
 wise guilty of a breach of the contract, unless he was actually 
 prevented from completing. In order to hold the owner on the 
 theory that he consented to the work, the contract must be sub- 
 stantially performed. Mitchell v. Dunsmore Realty Co., (1908) 
 126 App. Div. (N".Y.) 829. 
 
 If "consent" be made sufficient by the terms of the Act to 
 bind an owner, then an owner of the fee of leased land who consents 
 that the lessee shall make improvements which shall remain upon 
 the property for^ the benefit of the lessor at the expiration of the 
 lease, there being no restriction as to the extent of such improve- 
 ments, subjects his interest to mechanics' liens for labor and 
 materials furnished for. the improvements and cannot be heard to 
 say that the cost is excessive or the improvements undesirable. 
 Haas Electric & Mfg. Co. v. The Springfield Amusement Park 
 Co., (1908) 236 111. 452. Under certain circumstances, where a 
 contractor employs necessary workmen the consent of the owner 
 to the work done may be implied so as to entitle such workmen to 
 a lien. Monaghan v. Goddard, 173 Mass. 468. If a third party 
 does the work by consent of all parties, he may be considered as 
 entitled to the rights_ of the persons whose places he has taken. 
 Moore v. Ericksen, 158 Mass. 71; Security National Bank v. St. 
 Croix Power Co., 117 Wis. 211; Murphy v. Watertown, 112 App. 
 Div. (N.Y.) 670. 
 
 Where a contract between the lessor and the lessee provides 
 for certain improvements, the interest of the lessor cannot be sub- 
 
ESSENTIALS TO BIND AN " OWNER." 149 
 
 jected to a mechanics' lien for other improvements in the absence 
 of any evidence showing -that he authorized or consented to the 
 additional work. Bermingham v. Gill, (19H) 164 111. App. 536. 
 The mere fact that one tenant in common has notice that re- 
 pairs are being made on the property by a purchaser under execu- 
 tory contract does not establish consent to a change of the contract 
 of sale so as to authorize the purchaser to establish mechanics' liens 
 against his interest in the property. Roxbury Painting Co. v. 
 Nuter, 123 N. E. 391. 
 
CHAPTEK X. 
 
 . How Lien Mat be Waited or Defeated. 
 
 In the absence of special statutory provision,, the doctrine of 
 waiver would apply to mechanics' liens and a mechanic could 
 waive his right to a lien in like manner as he might waive any 
 other statutory privilege. 
 
 Mechanics' Lien Acts in Canada not only provide that a lien 
 upon realty may be waived as between the immediate parties by 
 agreement in writing, but also contain a provision that a person 
 who does any kind of manual labor cannot, even by written agree- 
 ment, waive his right to a lien. This latter provision in intended 
 to protect those who do the manual labor, and its application is 
 limited to that, class. 
 
 Even where such a provision does not exist, the waiver to be 
 effective must be clear and unmistakable. Concord Apartment 
 House Co. v. O'Brien, 128 111. App. 433, affirmed, 328 111. 476. 
 
 The right to a lien is waived where the parties have submitted 
 the matters to arbitration and the arbitrators have made an award. 
 N. Y. L. Co. v. Schneider, 15 Daly 15 ; but it had been held other- 
 wise where there is a revocation of the agreement to submit by the 
 lien claimant. Paulsen v. Manske, (1888) 126 111. 72. The right 
 to a mechanics' lien may be waived by a contractor for a sufficient 
 consideration during the pendency of the work. Kelly v. John- 
 son, (1911) 251 111. Eep. .135, 36 L. E. A. 573. 
 
 There is no waiver of a lien upon a certain lot where a form 
 of waiver as to that lot had been signed without consideration and 
 by mistake, there being no intention to waive, and the claimant not 
 knowing at the time of signing that he was to do work on that par- 
 ticular lot. The principle of estoppel would not apply in such a 
 case. Palfrey V. Brown, (1915) 31 W. L. K. 535. 
 
 The right to acquire a mechanics' lien will not be waived by 
 
HOW LIEN MAT BE WAIVED OE DEFEATED. 151 
 
 the extension of credit unless the time of payment is extended 
 beyond the time within which an action must be commenced to 
 enforce the lien. Landsoefg & Go. v. Hein Construction Co., 
 (1909) 135 App. Div. (N.Y.) 819. The cases cited in this 
 volume, (chap, xii, post) dealing with liens on personalty have 
 practically no application where the subject-matter is realty, the 
 nature and terms of the statutory provision respecting realty 
 negativing such application. 
 
 A claimant who has supplied material to be used in the erection 
 of a building under a contract by which the materials were to be 
 supplied from time to time and has filed a lien, which at the request 
 of the owner he has subsequently discharged, taking instead an 
 order upon certain moneys, which order was not paid, cannot, 
 upon supplying further material under his contract and within 
 the statutory period, file a lien for the toal amount of his claim. 
 Wortman v. Frid-Lewis Co., (1915) 33 W. L. E. 119 (Alta.). 
 
 It is for the defendant to show that the lienholder has waived 
 his lien. McCabe v. McRae, (1871) 58 Me. 99. A lien may be 
 waived for a special purpose, and if so, the courts will confine it to 
 the purpose intended, but a general waiver of lien must be enforced 
 as made by the parties. Turn-es v. BrencMe, (1911) 249 111. 394; 
 Weiss v. Silverman, 58 Can. S. C. E. 363. 
 
 Any person interested in the premises is entitled to rely on 
 waiver of lien which is addressed " to whom it may concern." 
 Bowers v. Jarrell, (1919) 210 111. App. 256. 
 
 Does the fact that the supplier of materials for improvements 
 on land retains the title to the materials until they are paid for 
 deprive him of the right to a mechanics' lien? 
 
 The weight of authority justifies the conclusion that the reten- 
 tion of title is not inconsistent with the statutory lien and that 
 either remedy can be invoked. American decisions incline to this 
 view that, although the title to the article supplied is reserved to 
 the furnisher of it until payment is made, this fact does not 
 amount to a waiver of the right to a mechanics' lien. While a con- 
 tract of this kind may be in form of a lease, it is in substance an 
 
152 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 agreement for sale and a lien upon the article supplied, as security 
 for the purchase price, whereas the Mechanics' Lien Act creates a 
 lien- not only upon the article supplied but upon the real estate 
 upon which it was placed. " The former was a lien by contract, 
 the latter by statute; and neither is destructive of the other." 
 United States Construction Co. y. The Bat Portage I/umber Co., 
 (1915) 25 Man. L. E. 793; Hoover v. Featherstone, 111 Fed. at 
 p. 95. See also Chicago and Alton B. B. Co. v. Union Boiling 
 Mills Co., 109 U. S. at p. 720 ; Salt Lake Hardware Co. v. Chair- 
 man Mining Co., 128 Fed. 509. 
 
 But while the retention of title is not inconsistent with the 
 statutory right to a mechanics' lien, if a lien claimant invokes the 
 provisions of the Mechanics' Lien Act to enforce his claim for the 
 materials furnished for and erected in a building, the view seems 
 justifiable that he should be taken to have thereby elected to make 
 them a part of the building and realty against which he claims the 
 lien and to be thereafter estopped from claiming that the materials 
 are his property and that he has a right to remove them. See 
 United States Construction Company v. The Bat Portage Lumber 
 Company, Limited, (1915) 25 Man. L. E. at p. 797. Where both 
 remedies are statutory a plaintiff who resorts to one of these reme- 
 dies, (under the Woodmen's Lien Act) cannot obtain another 
 judgment under the Mechanics' Lien Act for the same claim. 
 Wake v. C. P. L. Co., (1901) 8 B. C. E. 358. Articles sold under 
 a lien agreement, whereby the vendor retains the ownership and 
 possession until paid, affixed permanently to the floor of the build- 
 ing, with the vendor's knowledge and consent, become part of the 
 realty. A purchaser of realty is not bound to search for liens 
 against goods which under the law have become part of the realty. 
 Berlin Interior Hardware Co. v. Colonial I. and L. Co., 38 D. L. 
 E. 463, 11 Sask. L. E. 46, (1918) 1 W. W. E. 378. 
 
 It would seem also that the effect of the special provision con- 
 tained in the Mechanics' Lien Acts in Canada (E. S. 0. c. 140, 
 s. 6) declaring that "Unless he signs an express agreement to the 
 
HOW LIEN MAY BE WAIVED OE DEFEATED. 153 
 
 contrary, any person who performs any work or service upon or in 
 respect of or places or furnishes any materials to be used in the 
 making ... of any erection- . . . shall . . . have 
 a lien" must prevent a waiver of the statute by the lien claimant 
 except by an " express agreement." As this statutory provision 
 declares that only a signed express agreement can prevent a lien 
 claimant from asserting a lien, it must follow that an estoppel in 
 pais cannot prevent such lien. Anderson v. Fort William Com- 
 mercial Chambers Ltd., (1915) 25 D. L. E. 319; United States 
 Construction Co. v. The Bat Portage Lumber Co., Limited, 
 (1915) 25 Man. L. R. 793. "It would emasculate this section to 
 hold that an estoppel in pais would do what the section declares 
 only a signed agreement can do." Anderson v. Fort William Com- 
 mercial Chambers Ltd., supra, per Eiddell, J. 
 
 Under the Manitoba Mechanics' Lien Act it has been held that 
 where a building contract provides for a time of payment later 
 than the time within which a lien can be filed, the lien is waived. 
 Ritchie v. Grundy, (1890) 7 Man. L.E. 532 ; see Scheid v. Rapp, 121 
 Pa. 593. But if, by the contract, a promissory note or other security 
 for the price of the work is to be given within the time for enforc- 
 ing a mechanics' lien, the implied agreement to waive the lien is 
 conditional upon the giving of the note or other security. Ritchie 
 v. Grundy, supra. 
 
 A materialman's waiver of lien, under seal, given to the contrac- 
 tor and presented to the owner's agent, is supported by sufficient 
 consideration where it is given to enable the contractor to get money 
 belonging to the owner from such agent which the agent pays to 
 such contractor. P. A. Lord Lumber Co. y. Callahan, (1913) 181 
 111. App. 323. 
 
 A builder may waive his right to a lien remedy but, where 
 the terms of the alleged waiver are ambiguous, the doubt should 
 be resolved against the waiver, as it should be presumed that one 
 has not disabled himself from the use of so valuable a statutory 
 privilege. Hence it would seem that an agreement in a building 
 
154 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 contract not to permit or suffer a mechanics' lien to be filed or 
 remain on the property is not a waiver of the contractor's* statutory 
 right to file a lien on his own behalf. Eertscher & Co. y. Green, 
 (1910) 124 N. Y. S. 461, (1911) 127 tf. Y. S. 127 ; Davis v. 
 La Crosse Hospital, 121 Wis. 579. One who furnishes a defaulting 
 contractor with building materials under a. guarantee of' payment 
 from the property owner is not entitled to a mechanics' lien against 
 the property unless there is a balance payable by the owner to the 
 contractor ; his remedy is by a personal judgment against the pro- 
 perty owner. Canadian Equipment & Supply Co., Ltd. v. Bell & 
 Schiesel, (1913) 11 D. L. ft. 820, 24 W. L. E. 415 (Alta.). 
 
 A clause that the " lessee " shall permit no mechanics' liens to 
 attach to the " premises," is construed as merely a covenant on the 
 part of the lessee that he would discharge such liens, and such 
 clause would not prevent a lien from attaching as between the 
 owner and the party otherwise entitled thereto. Carey-Lombard 
 Lumber Co. v. Jones, (1901) 187 111. 203. 
 
 A claimant who files a claim for lien does not thereby waive 
 any other right he may have against his debtor in respect to the 
 claim. Dunn y. Stoherm, (1855) 43 N. J. Eq. 401. Nor does he 
 waive his lien by bringing an action at law for his debt and at- 
 taching the real estate against which he is seeking to enforce his 
 lien. Angier v. Bay State Company, (1901) 178 Mass. 163. As 
 to stipulation constituting express waiver, see Stoneback v. Waters, 
 (1901) 198 Pa. 459 ; Pinning v. Shipper, 71 Md. 347. - 
 
 Where a contractor agreed to. build a house for a price named, 
 one-half to be paid when the shingles and clapboards were on, and 
 the other hajf when the house was finished, it was held that this 
 contract did not stipulate for a credit, inconsistent with the enforce- 
 ment of the lien, and could not be considered as a waiver of it. 
 
 A waiver does not result, as a matter of law, merely from the 
 fact that the owner, when ordering materials, agreed to give and 
 afterwards did give the materialman" a mortgage on other land " as 
 additional security." The question whether the mortgage was 
 
HOW LIEN MAT BE WAIVED OE DEFEATED. 155 
 
 intended to be in lieu of a lien is a question of fact for the trial 
 court. Halstead and Harmount Co. v. Arich, (1904) 76 Conn. 
 382; 
 
 A provision in a contract postponing the final payment until 
 32 days after the work was entirely completed, and requiring pay- 
 ment only on sufficient evidence that all claims upon the building 
 for work or materials were discharged, is not inconsistent with the 
 existence of a right on the part of the contractor to secure the 
 payment of his dues by claiming, a lien. Poirier v. Desmond, 
 (1900) 177 Mass. 201. 
 
 Although in Manitoba it has been held that a lien claimant 
 who takes a promissory note for the amount of his claim and dis- 
 counts it thereby forfeits, his right to a lien (Arluthnot & Go. v. 
 Winnipeg Mfg. Co., 16 Man. L. E. 401) there is authority for 
 the view that a lien claimant does not waive his lien by taking and 
 negotiating the owner's promissory note from the contractor. 
 Coughlin v. National Construction Co., 14 B. C. E. 339 ; Gorman 
 v. Archibald, 1 Alta. E. 524; Clarice v. Moore, (1908) 1 Alia. 
 -L. E. 49; Makins v. Bobinson, 6 Ont. 1; Kendall v. Fader, 199 
 111. 294; Breckenridge) v. Short, 2 Alta. L. E. 71. In a decision 
 by a Saskatchewan court (Swanson v. Mollison (1907) 6 W. L. 
 E. 678, Stuart, J., questions the soundness of the view expressed 
 in the Manitoba judgment, and says : "In Wallace on Mechanics' 
 Liens, 1st ed. (1905) p. 150, there is the following note to the 
 similar clause in the Ontario statute, 'After the note has been 
 negotiated, the debt then becomes due to a third party, and the 
 original creditor becomes guarantor of the payment of the debt. 
 While the note is in the hands of the third party, no proceedings 
 can be taken to enforce the lien. If the lien claimant pays the 
 note, and is the holder of the note at the time he begins proceed- 
 ings, the fact of his having negotiated the note will not take away 
 his lien.' This paragraph seems to me to contain a much more 
 reasonable principle than that contained in the Manitoba case." 
 Eockel on Mechanics' Liens, (1909) also supports this view, in 
 
156 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 these words: ".Some few courts have held that the taking of a 
 note operates as a payment of the debt and waives the lien. But 
 the great weight of authority now is that the taking of a note is 
 neither a waiver of the lien nor a payment of the debt unless it is 
 expressly agreed that it shall have that effect or there is a manifest 
 intention that it shall so "operate." The decision in the Manitoba 
 case, however, follows a decision of the Supreme Court of Canada 
 (Edmonds v. Tiernah, (1892) 21 Can. S. C, E. 406), which dealt 
 with a case under the British Columbia Mechanics' Lien Act, and . 
 held that the plaintiff who had taken a note for the amount of his 
 claim, which he had negotiated, had thereby lost his lien, notwith- 
 standing that the note had been dishonoured and taken up by him. 
 Eeferring to this latter decision, Stuart, J., in an Alberta case 
 says : " I find myself quite unable to tell from the reasons given, 
 what was the ground on which the judgment was based. The last 
 sentence is : ' Had the note not been negotiated by the appellant, 
 different considerations might have prevailed,' — which would 
 seem to indicate that it was considered that the mere giving of the 
 note might nqt have been deemed a waiver or extinguishment of 
 the lien, though the reasons given do not make clear what differ- 
 ence the negotiation makes." Stuart, J., also quotes the following 
 passage from Phillips on Mechanics' Liens, "It has been argued, 
 that although the acceptance of negotiable paper is not a waiver 
 of the lien, yet a negotiation of it operates as an extinguishment. 
 This argument has not been generally assented to. On the con- 
 trary, it has been almost universally held that the negotiation pro- 
 duces no other effect than to suspend the right of the mechanic to 
 sue until the instrument is returned to him unpaid." Various 
 Mechanics' Lien Acts in Canada now contain a special provision 
 which declares that the taking or the discounting or negotiation 
 of any promissory note shall not waive or prejudice any lien 
 created by the Act. 
 
 The lien is not waived by the acceptance of drafts by the 
 debtor (Bradford Neill & Mahrike Const. Co., (1897) 76 111. App. 
 
HOW LIEN MAY BE WAIVED OR DEFEATED. 157 
 
 488), or by the taking of collateral security unless the parties so 
 intended. Bryant v. Grady, 98 Me. 389; McLean v. Wiley, (1899) 
 176 Mass. 233; Frith v. Rehfeldt, (1909) 130 App. Div. (NX) 
 326, affirmed 164 N.Y. 588; Sorg v. Crandall, (1907) 129 111. App. 
 255 ; affirmed Lowden v. Sorg, 233 111. 79. 
 
 The general rule in the United States is that a note is not such 
 a payment as will extinguish the lien unless it was so agreed. 
 See Pollock Bros. v. Niall-Herin Co., (1911) 35 L. E. A. 13, and 
 particularly cases cited at page 93 of that report. See also Moore 
 v. Jacols, 190 Mass., (1906) 424. The intention to waivethe 
 right to a lien by the taking of a note must be clearly established. 
 Paddock v. Stout, (1888) 121 111. 571. Unless the note is. paid 
 it will not waive the right to a lien. Goole v. Gale, 41 Am. Dec. 
 219. The giving by the claimant, of a receipt "in full" for' the 
 owners or the contractor's note will not discharge the lien, unless 
 a clear intention is shown. Smalley v. Ashland Brown-Stone Co., 
 (1897) 114 Mich. 104. 
 
 The fact that promissory notes have been accepted in payment, 
 is not a waiver of the right of the sub-contractor to file a lien where 
 the time of payment is not extended beyond the time within which 
 an action must be commenced to enforce the lien. Landsoerg & 
 Co. v. Rein Construction Co., (1909) 135 App. Div. (IX) 879. 
 
 Special provisions in Mechanics' Lien Acts in 'Canada dealing 
 with the taking of collateral security, must be followed. 
 
 The doctrine of estoppel is frequently invoked in connection 
 with proceedings under the Mechanics' Lien Acts. 
 
 If, as is probable, the mechancis' lien should be considered as 
 a charge or mortgage created upon his interest or estate by the 
 " owner," the principle applied in .the case of a mortgagor who 
 acquires the legal estate after the making of the mortgage, would 
 be applicable; the mortgagor is said to be estopped from denying 
 his title. 
 
 The application of the principle of estoppel in such eases 
 should, however, not be relied upon to too great an extent. The 
 lien is purely statutory and is limited by the words of the stat- 
 
158 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 ute. It extends only to the estate or interest of the " owner," that 
 is, of the person who makes the contract, and it may well be 
 argued that only the estate or interest at the time of the making 
 of the contract is bound by the lien. In Ontario, under the 
 Mechanics' Lien Act, it has been held that an estoppel in pais from 
 claiming such lien cannot arise, and such right can only be waived 
 by a signed agreement. Anderson v. Font William Commercial 
 Chambers, 25 D. L. E. 319, 34 0. L. E. 567. 
 
 Fraud, misrepresentation or concealment will estop the owner 
 of the fee from setting up his title in answer to the claims of the 
 mechanic. He cannot take advantage of his own wrong to gain 
 improvements on his property. iSo, where a purchaser takes a 
 conveyance to his wife in order to defeat a lien, or purchases a 
 property formerly owned by him and subject to a mechanics' lien, 
 at a tax sale, the lien would be upheld. HooTcer v. McGlone, 42 
 Conn. 95 ; Schw'artz v. Saunders, 46 111. 18. 
 
 The conduct of a mortgagee may enable the principle of 
 estoppel to be applied to him. If in a suit to establish a mechanics' 
 lien as against a mortgagee from A., it appeared. that A. had only 
 an instantaneous seisin of the land on which the lien was claimed, 
 yet it also appeared that A. falsely represented to the lien claimant 
 that he was the owner of the land and thereby induced the lien 
 claimant to enter into the contract under which his lien was 
 claimed and the mortgagee, when he took his mortgage, knew of 
 the lien claimant's claim of lien and also of the false representation 
 and inducement, whether the mortgagee as well as A would not be 
 estopped from denying A.'s ownership of the land, quaere. Sprague 
 V. Brown, (1901) 178 Mass. 597; Ready v. Pinhham, (1902) 181 
 Mass. 351. - 
 
 The doctrine of estoppel is frequently invoked to prevent a 
 lienholder from enforcing his lien against innocent third persons 
 whom he has misled. This doctrine would apply if a lienholder 
 purposely suppresses the fact that he is entitled to a lien and 
 thereby induces another to act to that other's injury upon the 
 belief that the lienholder has no such right. Estoppel would also 
 
HOW LIEN MAT BE- WAIVED OE DEFEATED. 159 
 
 or makes a similar misrepresentation so that the subsequent en- 
 forcement of a lien on his part would be a fraud upon innocent 
 third persons. McGraw x. Bayard, 96 111. 146; Hinchley v. 
 Greatly, 118 Mass. 595 ; Howard v. Tucker, 1 B. & Ad. 712. 
 
 If a person is induced to purchase property upon the represen- 
 tation of another that he has no lien thereon, such other is subse- 
 quently estopped' from asserting a lien to the detriment of the 
 person who has made such purchase. Heskins v. Hesley, (1909) 
 152 111. App. 141. 
 
 Mechanics' Lien Acts in some of the Provinces of Canada 
 require the written consent of the owner of the land before his 
 interest can be made subject to liens filed for improvements made 
 at the instance of the lessee, but under other Mechanics' Lien Acts 
 in /Canada, if an owner of the land allows, without protest or no- 
 tice, such improvements to be -made by the lessee, the interest of 
 such owner becomes subject to the liens filed. Limoges v. Scratch, 
 (1910) 44 S. C. E. 86. 
 
 If the true owner has so acted as to mislead a purchaser into 
 the belief that the person dealing with the property had authority 
 to do so, a good title is acquired by personal estoppel against the 
 owner. Simmons v. London, (1892) A. G. 215. See Maple City 
 Oil & Gas Go. v. Charlton & Bidgetown Fuel Supply Co., (1912) 
 22 0. W. E. 882. In Indiana it has been decided that an owner 
 may not stand by without objection and see another in good 
 faith improve and enhance the value of his property and retain 
 these benefits without paying for them. Lengelsen v. McGregor, 
 162 Ind. 258. A special provision in the Alberta Mechanics' Lien 
 Act protects such claimants. 
 
 If the true owner of property stands by and permits another 
 to deal with it as owner, he will be estopped as against a purchaser 
 for value. Estoppel does not require for its operation that the 
 purchaser shall have acquired the legal estate; a change of his 
 position on the faith of the misrepresentation is all that is essen- 
 tial. Ewart on Estoppel, 140, 263. Having been silent as to his 
 apply where a lienholder wrongly represents that he has been paid 
 
160 THE LAW OE MECHANICS' LIENS IN CANADA. 
 
 alleged rights -when he ought to have spoken, he should not be 
 heard to speak when he ought to be silent. Morgan v. Railroad;, 
 (1877) 96 U. S. 720. But if he is not obliged to speak his silence 
 may not work an estoppel. Billings Go. v. Brand, 187 Mass. 417; 
 Bruce Lumber Co. v. Roos, 67 Mo. App. 264. As to the conclus- 
 iveness of a judgment, as between the plaintiff and one not a party 
 nor privy, but who voluntarily conducted the defence, see -Imdy 
 v. Larsen, (1911) 78 N. J. Eq. 237. 
 
 In Alberta it has been held that on the trial of a mechanics' 
 lien action involving materials supplied to a building contractor, 
 a receipt of the materialman for a fictitious payment intended to 
 assist the- contractor in obtaining an advance from the owners will 
 not necessarily be charged against the materialman (Howlett v. 
 Doran, (1913) 11 D. L. E. 372 (Alta.), but in British Columbia a 
 person who supplies" materials and during the course of construction 
 gives a receipt for payments which he had never received is estopped 
 from claiming such amount against the owner under mechanics' 
 lien proceedings. Coughlan v. National Construction Co., 14 B. C. 
 E. 339. 
 
 In Alberta, a firm of sub-contractors claimed a lien for work 
 done as against the owner, but it appeared that they had given 
 the contractor receipts for money which he had received from the 
 owner to pay them and had not paid them, the sub-contractors 
 thereby leaving the owner to believe that they had been paid. In 
 that belief, the owner made other payments to the contractor in 
 excess of the work he did upon the building, and also made pay- 
 ments to another sub-contractor and lienholder. In the circum- 
 stances, these sub-contractors were not entitled to enforce a lien 
 against the owner's land though they had not heen paid in full for 
 the work done and materials furnished by them. Bingland v. Ed- 
 wards, 19 W. L. E. 219. 
 
 A principal, who knowing that an agent with a limited author- 
 ity is assuming to exercise a general authority, stands by and 
 permits third persons to alter their position on the faith of the 
 
HOW LIEN" MAY BE WAIVED OK DEFEATED. 161 
 
 existence in fact of the pretended authority, cannot afterwards 
 against such third persons, dispute its existence. If an agent is 
 vested with general" authority, and such authority is subsequently 
 sought to be limited by writing, notice of such subsequent limita- 
 tion must be conveyed to third parties having dealings with the 
 agent. In the absence of such notice the principal is estopped 
 from setting up the limitation as against a third party acting bona 
 fide. Sayward v. Dunsmuir, 11 B. ,C. K. 375. 
 
 A husband who as owner enters into a contract with a builder 
 cannot subsequently claim that he was acting solely as agent for 
 his wife. Sidney v. Morgan, 16 W. L. E. 123 (BjC). See other 
 eases cited under "Married Women's Property, ante. 
 
 If the true owner stands by while another is making a contract 
 and encourages the builder to perform the same, his conduct will 
 operate as an estoppel. Bastrup v. Prendergast, 179 111. 553. Con- 
 spiracy or deceit in preventing the attaching or enforcement of a 
 lien would be sufficient to justify an action at law. Ellenwood v. 
 Burgess, 114 Mass. 534, 539". See also Kilourn v. Bice, 151 Mass. 
 442. 
 
 If the owner holds a person out as having authority he will not 
 be permitted subsequently to assert the contrary. Hough v. Collins, 
 70 111. App. 661. 
 
 Whether authority has been conferred on an agent is a question 
 of fact, and such authority may be inferred from the acts of recog- 
 nition by the principal. Sayward v. Dunsmuir, (1904) 11 B. C. B. 
 375. There may be authority by estoppel. If A. has by words of con- 
 duct held out B., or enabled B., to hold himself out as having the 
 authority of the former to act for him, A. is bound as regards 
 third parties by the acts of B., to the same extent as A. would 
 have been bound if B. had in fact had the authority which he was 
 held out as having. 
 
 Any act or neglect of the lien claimant' which induces a person 
 to rely upon the non-existence of the lien, may defeat the lien by 
 estoppel. Thus, where the holder of a mechanics' lien stated at a 
 
 m.l. — 11 
 
162 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 sale that there was no incumbrance on the estate and advised a 
 party to buy it, who, relying on the' statement, became the pur- 
 chaser, the lienholder cannot set up his lien. Hindhley v. Greany, 
 (1875) 118 Mass. 595; Fowler v. Parsons, (1887) 143 Mass. 401. 
 See also cases cited in vol. 20, Am. &- Eng. Bncy. of Law, 2nd ed. 
 at p. 497. A mechanics' lien can be enforced against the owner of 
 a lot who knowingly suffers a verbal sale of it through an agent 
 to a person and the erection of a building thereon by the purchaser 
 pursuant to such sale. West v. Pullen, (1900) 88 111. App. 620. 
 See on this question pf estoppel, Sprdgue v. Brown, (1901) 178 
 Mass. 220; Saunders v. Bennett, (1893) 160 Mass. 48; and Angel 
 v. Joy, (1911)' 1 K. B. 666. It is not necessary to an equitable 
 estoppel that the party should design to mislead. On the general 
 principle of estoppel, see Citizens Bank of Louisiana v. First Na- 
 tional Bank of New Orleans, (1873) L. E. 6 H. L. 352, 360, 361; 
 Ghadwick v. Manning, (1896) A.' C 231; George Whitechurch 
 Ltd. v. Cavanagh, (1902) A. ;C. 117. 
 
 By guaranteeing the performance of a building contract a sub- 
 contractor estops himself from claiming a lien upon the building 
 which was abandoned by the contractor and constructed by the 
 owner (Frohlich v. Ashton, (1900) 164 Mich. 132) but there is 
 no estoppel generally unless, without it, a wrong will result from 
 the action of the party against whom the estoppel is sought. Hughes 
 v. McCashland, (1906) 122 111. App. 365; Badger Lumber Go. v. 
 Mulheback, 190 Mo. App. 646. 'Where it appears that the defen- 
 dant, a construction company, before the suit, cancelled the con- 
 tract, deprived the plaintiff company of the power to complete the 
 contract, and at the same time denied all liability either by reason 
 of services rendered thereunder, or by reason of the cancellation 
 thereof, the defendant company is estopped to claim that the plain- 
 tiff company has lost its right to a lien, or to a first lien, by agree- 
 ing to accept part of its compensation in defendant's bonds, — 
 whether or not any lienor other than the plaintiff may raise such 
 objection. Wetzel, etc., B. Go. x. Tennis Bros. Co., (1906) 145 
 
HOW LIEN MAX BE WAIVED OH DEFEATED. 163 
 
 Fed. 458-. A person who places or furnishes any materials to be 
 used in the making of any building does not lose' the right of lien 
 given him by the Mechanics' Lien Act by stipulating in the con- 
 tract under which the; materials were furnished that they were 
 only leased to the owner of the building, and that the right of 
 property in them shall remain in the vendor until payment of the 
 purchase money in full, and that he shall have the right at his 
 option to remove the materials at any time, provided .that the 
 contract is in substance an agreement of sale of the material; 
 United States Construction Company v. The Rat Portage Lumber 
 Co., Ltd: (1915) 25 Man. L. E. 793; nor will a claimant who had 
 made a similar agreement, be estopped if, having first invoked 
 proceedings under the Mechanics' Lien Act he abandoned those 
 proceedings and sought relief under the agreement by which he 
 was to have the right to remove the article in default of payment. 
 W. & Co. having a contract to build an elevator, etc., for the de- 
 fendants, purchased an engine and other machinery from plain- 
 tiffs on the terms that the ownership was not to pass until pay- 
 ment, which was to be cash on delivery, and that in case of default 
 plaintiffs were to be at liberty to remove the machinery. Plain- 
 tiffs first took proceedings under the Mechanics'. Lien Act to realize 
 the amount of their claim, but abandoned them. In the present 
 suit the plaintiffs asked that the defendants might be ordered to 
 deliver up the machinery and to permit plaintiffs to remove it. 
 Held, 1 that plaintiffs were entitled to relief and were not estopped 
 by having commenced proceedings under, the Mechanics' Lien Act, 
 as they had not gone on to judgment. Vulcan Iron Co. v. Rapid 
 City Co., (1894) 9 Man. L. B. 577 and 586. In this case Priestly 
 v. Fernie, 3 H. & C. 977 is distinguished, the parties there having 
 gone to judgment. 
 
 In the absence of special legislation, if a person ignorant of 
 the wife's interest. contracts with the husband to build on the wife's 
 land and the wife acquiesces she is estopped from setting up her 
 rights aganst the lien. McCarthy v. Caldwell, 43 Minn. 442. See 
 
164 THE LAW OE MECHANICS' LIENS IN CANADA.'. 
 
 Greenleaf v. Beebe, 80 111. 552; Bevan v. Thackera, 143 Perm. 182 
 But there is no presumption that a husband is his wife's agent. 
 Gillies v. Gibson, (1907) 7 W. L. E. 245. 
 
 A materialman who files a lien is not estopped by the fact that 
 without bad faith he claimed more than was due him. Frohlich 
 v. AsMon, (1909) 159 Mich. 265; Gould v. McCormick, (1913) 
 75 Wash. 61. The lien will not be defeated unless the excessive 
 claim were made in bad faith. Schmulbach v. Caldwell, (1912) 
 196 Fed. 16; Vaughan v. Ford, (1910) 162 Mich. 37; Bomanih 
 v. BaporpoH, (1912) 148 App. Div. (NY.) 688; West Side Lum- 
 ber and Shingle \Co. v. Herald, (1913) 64 'Qre. 210. But where a 
 claimant has filed a sworn statement fixing the date when he ceased 
 work, he is estopped thereby, and cannot by a subsequent state- 
 ment, fixing a later date, extend the time for claiming a lien. 
 Canton Boll Co. v. Rolling^ Mills Co., (1907) 155 Fed. 321, A 
 reduction in the amount of the claim will not render the lien void. 
 Mont joy v. Heward School District, (1909) 10 W. L. E. 282. 
 Where a defect in the claim of lien was caused by a statement made 
 to the claimant by the owner and the contractor the owner and 
 contractor are estopped from setting up the defect. Brown Vt 
 Welch, 5 Hun. (NY.) 582. 
 
 Where the mistake in claiming an excessive amount is an hon- 
 est one, the lien is not lost (Pioneer Mining Co. T. Delamotte, 
 (1911) 185 Ted. 752), but a statement of lien grossly in excess of 
 the amount actually due is not such " a just and true statement of 
 account of the demand due " as is required by these words of the 
 statute. Griff v. Clark, (1909) 155 Mich. 611. Where an over- 
 statement of the amount due and sought to be recovered is made 
 intentionally and with a design to defraud the entire lien must 
 fail. Christian v. Allee, 104 111. App. Ill; Marsh v. Mich, 159 
 111. App. 399 ; Walls v. Ducharme, 162 Mass. 432 ; Burrell v. Way, 
 (1894) 176 Mass. 164; Hecla Iron Works v. Hall, 115 App. Div. 
 (NY.) 126; Williams v. Daiker, 63 App. Div. (NY.) 614. In 
 this case the claim embraced more materials than had been used, 
 
HOW LIEN MAT BE WAIVED OR DEFEATED. 165 
 
 and this fact was known to the claimant. If the claimant know- 
 ingly files a claim for a larger amount than is due it is void. 
 Hubbbard v. Brown, 90 Mass. 590; Aeschlimann v. Presbyterian 
 Hospital, 165 N. Y. 296 ; New Jersey Steel & Iron C<o. v. Robin- 
 son, 85 App. Div. (N.Y.) 512. A mistaken statement that a 
 mechanics' lien has been paid does not estop the lien claimant 
 from subsequently enforcing it against one who bought the pro- 
 perty in reliance on the statement, if it was made to him without 
 any knowledge that he had any interest in the matter or any in- 
 tention to buy the property. Kvrchman v. Standard Coal Co., 
 (1901) 52 L. E. A. 318. 
 
 As a general rule the lien only attaches upon the estate or 
 interest of the owner at the time the work or service is performed 
 or the materials furnished.' If, however, an owner having an 
 equitable estate subjects that estate to a mechanics' lien and after- 
 wards acquires the fee simple or other larger estate, such larger 
 estate will be subject to the lien. The owner may be estopped 
 from setting up the subsequent purchase in answer to the claim of 
 the lienholder. Coleman v. Goodnow, 36 Minn. 9, 29 N". W. 338. 
 
 As to homestead exemption laws, it is a sound doctrine that 
 ' whatever liberality should be given the construction of such laws, 
 they ought not to be so construed as to give the debtor the power 
 by his own acts to deprive others of rights previously obtained in 
 his property. One who has contracted for the improvement of 
 his property cannot after the work is completed defeat the right 
 to a lien for the work done by marrying and claiming the property 
 as a homestead free from such right of lien. Evans v. Jensen, 
 L. E. A. 1918 B. 
 
 Does a lien claimant who in addition to instituting lien pro- 
 ceedings brings an ordinary action claiming a personal judgment 
 thereby forfeit his rights to the statutory remedy? In lien pro- 
 ceedings under the Alberta Mechanics Lien Act, (Pomerleau v. 
 Thompson, (1914) 16 D. L. E. 192) which contains provisions 
 constituting the money owing to a contractor for getting out 
 
166 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 timber and logs, a specific fund, on which the workmen and 
 laborers have a lien for wages, Beck, J., held that an employee of 
 the contractor for getting out logs who has obtained personal judg- 
 ment against the contractor does not thereby forfeit his equitable 
 right to be paid out of this fund, and such right may be enforced 
 in garnishment proceedings. It is pointed out in the judgment 
 that in the case of an ordinary mechanics' lien the lien claimant 
 may undoubtedly bring his action claiming both a personal judg- 
 ment as against his employer and a lien as against the owner of 
 the property. Why may he not do so in separate actions? Beck, 
 J., suggests reasons why the lien claimant should not be consid- 
 ered as waiving his claim to a lien merely because he has also 
 proceeded by ordinary action. The amount realizable by way of 
 lien might be insufficient to pay his elaim. A judgment against 
 his employer might be nugatory unless very speedily obtained. The 
 employer is liable to have judgment against him for the whole 
 indebtedness. His ultimate liability may eventually be reduced or 
 extinguished by realization of the amount by force of the lien. 
 Pomerleau v. Thompson, (1914) 16 D. L. E. at p. 146. 
 
 The certificate of an architect in a dispute between th*' build- 
 ing owner and the builder is no estoppel in an action by the build- 
 ing owner against the architect for negligence. Badgley v. Dick- 
 son, (1886) 13 0. A. E. 494; Rogers v. James, (1891) 8 Times 
 L. E. 67. 
 
 In the absence of express enactment a plaintiff who resorts to 
 one statutory remedy cannot obtain another judgment- under the 
 Mechanics' Lien Act for the same claim. Wake v. C. P. L. Co., 
 (1901) 8 B. ,C. E. 358. 
 
 A common law lien against personalty may be lost by estoppel 
 where its assertion would operate as a fraud on innocent parties. 
 Howard v. Tucker, (1831) 1 B. & Ad. 712. Assertion of payment 
 will operate as estoppel as against those who have acted on it. 
 Tooley v. Budd, (1851) 7 E. L. & Eq. 229; Woodley v. Coventry, 
 (1863) 32 L. J. Ex. 185. See also cases cited in Chapter "Me- 
 chanics' Liens on Personal Property," post. 
 
CHAPTEE XI. 
 
 Priorities. 
 
 The statutory right to a mechanics' lien would be of little value 
 if it did not involve the subordination to it of subsequent incum- 
 brances or conveyances of the property. No rights subsequently 
 accruing can affect the mechanics' lien once it attaches (American 
 Mortgage Co. v. Merrick, (1907) 130 App. Div. (N7Y.) 150; 
 Carew v. Stubbs, 155 Mass. 549 ; or any part of it, Collins v. Patch, 
 156 Mass. 317, and, on the other hand, no prior rights can be' 
 displaced by it. Bobock v. Peters, (1909) 13 Man. L. E. 124; 
 ' Kievell V. Murray, 2 Man. L. E. 129. When a conveyance is re- 
 corded prior to the commencement of the work or the placing of the 
 materials the mechanic cannot have priority for his claim. He 
 cannot acquire any greater interest than that which the owner 
 possesses. An incumbrance so recorded has priority to the extent 
 of its security and it cannot be affected injuriously by acts of the 
 person creating the incumbrance. 
 
 In dealing with any question concerning - priorities under the 
 Mechanics' Lien Acts in Canada, the words of the enactment in the 
 jurisdiction where the land to be affected lies must be carefully 
 examined, as, on this subject, there is some variance between the 
 Acts in the different Provinces of Canada. In the present chapter 
 the provisions of the Mechanics' and Wage Earners Lien Act of 
 Ontario will be specially considered, although enactments in other 
 jurisdictions will be referred to. One provision of the Ontario Act 
 gives a hen priority over mortgages upon, the increase in selling 
 value of land by reasori of work or service done thereon or materials 
 supplied. This provision is as follows, — ■ 
 
 " Where the land upon or in respect of which any work or 
 service is performed, or materials are placed or furnished to be 
 used, is incumbered by a prior mortgage or other charge, and 
 
168 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the selling value of the land is increased by the work or service 
 or by the furnishing or placing of the materials, the lien shall 
 attach upon such increased value in priority to the mortgage or 
 other charge." E. S. 0. 1914, c. 140, s. 8 (3). 
 
 Another provision of the same Act gives priority to a lien which 
 has been registered or of which written notice has been given to the 
 mortgagee upon the land itself, including the buildings and erec- 
 tions thereon, over all subsequent advances under a mortgage. This 
 latter provision is as follows, — 
 
 (1) " The lien shall have priority over all judgments, execu- 
 tions, assignments, attachments, garnishments, and receiving 
 orders recovered, issued or made after such lien arises, and 
 over all payments or advances made on account of any con- 
 veyance or mortgage after notice in writing of such lien to 
 the person making such payments or after registration of a 
 claim for such lien as hereinafter provided. 
 
 (2) Where there is an agreement for the purchase of land, and 
 the purchase money or part thereof is unpaid, and no con- 
 veyance has been made to the purchaser, he shall, for the 
 purposes of this Act, be deemed a mortgagor and the seller 
 a mortgagee. 
 
 (3) Except where it is otherwise provided by this Act, no per- 
 son entitled to a lien on any property or money shall be en- 
 titled to any priority or preference over another person of 
 the same class entitled to a lien on such property or money, 
 and each class of lienholders shall rank pari passu for their 
 several amounts, and the proceeds of any sale shall be dis- 
 tributed amongst them pro rata according, to their several 
 classes and rights." E. S. 0. 1914, c. 140, s. 14. 
 
 Under this section the lien has priority over mortgage advances 
 made after the lienholder has notified the mortgagee in writing of 
 his lien or has registered it, and in the latter case the lienholder is 
 deemed a purchaser pro tanto. 
 
PEIOBITIES. 169 
 
 Actual notice not in writing is not sufficient to give a lien the 
 priority over mortgages provided under this section. Cook v. Kol- 
 doffsky, (1916) 28 D. L. E. 346, 35 0. L. E. 555. 
 
 These provisions are not necessarily in conflict. "The true 
 principle is to treat section 8 as confined to those mortgages and 
 charges which existed before work began, by reason of which in- 
 creased selling value may arise, and section , 14 as dealing with 
 priorities among competing claims, all arising after work has com- 
 menced, and upon land and buildings together." Cook v. Koldoff- 
 sky, supra. 
 
 The priority of an unpaid vendor is not forfeited by the substi- 
 tution of a mortgage for the unpaid amount. " Prior " mortgages 
 or charges mean those mortgages or charges which existed upon 
 the land or those interests before the work began, because by section 
 6 the lien attaches then, and it may then be at once registered. 
 E. S. 0. ch. 140, s. 22; Kennedy v. Haddow, (1890) 19 0. E. 240; 
 Cook v. Belshaw, (1893) 23 0. E. 545. The lien given as against 
 the prior mortgagee or chargee is not, however, given upon the land, 
 but upon the value which has been produced by way of increase, 
 over that which the land itself previously had, by the subsequent 
 doing of the work or the placing of the materials; and this value 
 is not that which represents the actual value or cost of the work, 
 etc., in itself, but the amount which it adds to the selling value. 
 Cook v. Koldoffsky, supra. The selling value is not necessarily in- 
 creased by work done subsequently. Kennedy v. Haddow, 19 0. E. 
 240. 
 
 The priority of the " charge " on the land does not depend on 
 registration, but upon its existence as a charge before the lien arose. 
 Cook v. Belshaw, (1893) 23 0. E. 545 ; Marshall Brick Co. v. York 
 Farmers Colonization Co., (1917) 36 D. L. E. at p. 427. Under a 
 provision already referred to, E. S. 0. c. 140, s. 14 (1), the mort- 
 gage or charge is to be regarded as a " prior mortgage " only in 
 respect of payments or advances made before notice in writing or 
 registration of the lien. To the extent to which the selling value 
 
170 THE LAW OE MECHANICS' LIENS IN-CANADA. 
 
 of the property has been increased by the work or services performed 
 or the materials furnished by the lien claimants, the mortgagee's 
 interest as such prior mortgagee is subject to the plaintiff's lien. 
 See s. 8 (3) E. S. 0. c. 140; Patrick v. Walbourne, (1896) 27 0. E. 
 at pp. 225-6 ; Marshall Brick Co. v. York Farmers Colonization Co., 
 (1917) 36 D. L. E. at p. 427. 
 
 An unpaid vendor who advances funds to the purchaser to build 
 upon the land is not an " owner," so as to subject the land to , 
 mechanics' liens for work done or materials furnished under con- 
 tracts with the purchaser; but by virtue of sec. 14 (2) of the Act 
 such vendor is deemed a "mortgagee", for the purpose of giving 
 priority to the liens upon the increased selling" value of the land 
 caused by the improvements. Marshall Brick Co. v. Irving, 28 D. 
 L. E. 464, 35 0. L. E. 542, affirmed, sub nom. Marshall Brick Co. 
 v. York Farmers Colonization Co., (1917) 36 D. L. E. 420, 54 Can. 
 S. C. E. 569. 
 
 A vendor of land ( to whom a portion of the purchase price is 
 due is to be treated as if mortgagee, so far as the Mechanics' Lien 
 Act is applicable, despite the fact that the land has been con- 
 veyed to the purchaser, and mortgaged by him; a duly registered 
 reconveyance to the vendor in payment of the unpaid purchase 
 money, the vendor assuming the existing mortgage, has priority 
 to any unregistered lien under the Mechanics' Lien Act of which 
 the vendor had no actual notice. Charters v. McCracken, (1916) 
 29 D. L. E. 756, 36 0. L. E. 260. Where a mortgage has been 
 duly registered, advances made ' thereunder after mechanics' liens 
 on the mortgaged property have arisen, but before their registra- 
 tion, take precedence of the liens. A mortgage having been held to 
 have priority over liens, both upon the land and the improvements, 
 a lienholder cannot take away that priority by showing that the 
 work and materials increased the selling value of the property. 
 Warwick v. Sheppard, (1917) 35 D. L. E. 98, 39 0. L. E. 99. 
 
 A purchaser of an unfinished building whose deed is registered 
 prior to the registration of any mechanics' liens without actual 
 
PEIOEITIES. 171 
 
 notice thereof thereby acquires a priority by virtue of the Eegistry 
 Act, (E.'S. 0. 1914, c. 124) and takes the property free of the 
 liens. Sterling Lumber Co. v. Jones, (1916) 29 D. L. E. 288, 36 
 0. L. E. 153. 
 
 While each lienholder is entitled to claim upon the enhanced 
 value arising by reason of his work and materials, each lien must 
 stand on its own footing. No mechanic has a right to priority 
 in respect to another mechanic's work. His own right is based on 
 his proportionate contribution to the increased value of the pro- 
 perty. Security Lumber Co. v. Duplat, (1916) 29 >D. L. E. 460, 
 Sask.; Bank of Montreal v. Eafner, (1883) 3 0. E. 183; Brough- 
 ton v. Smallpiece, (1878) 25 Gr. 290 ; Cook v. Eoldofsky, 28 D. 
 L. E. 346, 35 0. L. E. 555. Under the Saskatchewan Act, it has 
 been held that a lienholder for materials supplied and used in the 
 construction of a building upon land subject to an existing mort- 
 gage is entitled to rank upon the increased value in priority to the 
 mortgage in the proportion only that the value of the materials 
 supplied by hirn exclusively bears to the whole cost of the building, 
 and not for any part of the increase brought about otherwise. In 
 computing this proportionate amount no regard should be taken 
 to amounts paid the lienholder on account before the action was 
 brought. Security Lumber Co. v. Duplat, (1916) 29 D. L. E. 
 460, 9 Sask. L. E. 318, 34 W. L. E. 1131. 
 
 The claim of a mortgagee in respect of advances made subse- 
 quently to .the commencement of the work done by lienholders is 
 postponed to the rights of the , lienholders. The mortgagee as a 
 subsequent incumbrancee might have been entitled to be given an 
 opportunity in the lien action to redeem the lienholders had it 
 applied for registration at once, but having neglected to do so until 
 after the sale of the land in question, any such right has been lost. 
 National Mortgage Co. v. Bolstqn, (1917) 59 Can. S. C. E. 219. 
 
 The plain purpose of this legislation in dealing with the ques- 
 tion of increased value of the property is to take from the mort- 
 gagee the benefit which at common law he was entitled to, of the 
 
172 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 work and materials which after the making of the mortgage had 
 been employed in the improvement of the property and which 
 had not been paid for by the mortgagor, and to leave his security 
 otherwise unimpaired. The lienholder is, therefore, given a secur- 
 ity in priority to the mortgage on the increased value, and the 
 mortgagee still retains his priority over the lienholder as to all 
 that his security embraces, except that increased value. Patrick 
 v. Walboume, (1896) 27 0. B. 221. Depreciation in value of the 
 property has the effect of wiping out the security of the lienhold- 
 ers before it affects the security of the prior mortgagee. Northern 
 Trusts Co. v. Battell, (1916) 29 D. L. E. 515, 9 Bask. L. E. 103, 
 33 W. L. E. 738. 
 
 •In the absence of evidence that the selling value of the land 
 incumbered by a mortgage has increased by the work or materials, 
 no lien attaches upon such increased value, in priority to the inter- 
 est of a mortgagee; nor will it warrant a sale of the mortgage to 
 satisfy the statutory lien, even though subject to a first charge in 
 favor of the mortgagee for advances made prior to the registra- 
 tion of the lien. Out-Rate Plate Glass Co. v. Solodinski, (1915) 
 25 D. L. E. 533, 34 0. L. E. 604. 
 
 As under the Ontario Act the lienholder is only given priority 
 over the mortgagee to the extent of any increased value given to 
 the property by any work or service, or the furnishing or placing of 
 the materials, this would seem to place the onus upon the lien- 
 holder of attacking the position of the mortgagee and showing 
 that there was such increased value added to the property, but 
 under the Manitoba Act it is expressly provided that the prior 
 mortgagee has priority over a lien only to the extent of the actual 
 value of such land at the time the improvements were commenced. 
 It has been decided that where under a Mechanics' Lien Act, prior 
 encumbrancers have priority over the mechanics' liens only to the 
 extent of the actual value of the premises at the time the im- 
 provements are made, and the lienholders have priority as to the 
 increase in value effected by the improvements, the rights of the 
 
PRIOEITIES. ' 173 
 
 latter cannot be worked out in an action for the foreclosure of a 
 vendor's lien or mortgage, but can only be given effect to in an 
 action brought to enforce their liens. Dure v. Roed, 34 D. L. E. 
 38, 27 Man. L. E. 417, (1917) 1 W. W. E. 1395. Accordingly, 
 when under the Manitoba Act such a mortgagee appears at the trial 
 pursuant to notice and seeks to prove his claim under his prior 
 mortgage, it may well be that the onus will be thrown upon him of 
 showing what the actual value of the land was, because that is the 
 limit placed by the statute upon his priority. Dominion Lumber 
 and Fuel Co. v. Paskov, (1919) 1 W. W. E. 657; Dure v. Roed, 
 27 Man. L. E. 417, (1917) 1 W. W. E. 1395. The "increased 
 selling value," within the meaning of the Mechanics' Lien Act, 
 which results from the erection of a building, is the difference 
 between the value of the land without the building and the amount 
 for which both land and building may be sold. WheTe the pro- 
 perty has a potential value, such as that which arises from its pos- 
 sibilities as a future industrial site, the " increased selling value " 
 cannot be ascertained without a sale. A lienholder under the 
 Mechanics' Lien Act has a right to pay off the unpaid purchase 
 money under an agreement for sale to the same extent as he would 
 have had if the vendor's claims were that of a mortgagee. Whitloclc 
 v. Loney, (Sask.), 38 D. L. E. 52, (1917) 3 W. W. E. 971, 10 
 S. L. E. 377. 
 
 Where, as in Ontario, there is in the Mechanics' Lien Act a 
 definite provision dealing with mortgages, whether registered or 
 unregistered, and providing that payments or advances under 
 them may be defeated by a registered or unregistered lien in one 
 of two ways, such a provision overrides any other right accruing 
 from or arising out of the Eegistry Act, which deals solely 
 with priorities as between instruments. Cook v. Koldoffsky, 
 (1916) 28 D. L. E. 346, 35 0. L. E. 555. 
 
 The fact that the Mechanics' and Wage-earners Lien Act 
 merely confers the status of a' purchaser pro tanto upon a regis- 
 tered lienholder, and excludes the Eegistry Act in other respects, 
 
174 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 indicates that where there is a specific provision in the former Act 
 it must be read as exclusive of any other provision of the Eegistry 
 Act. Cook v. Koldofsky, supra. " There is a provision in the Land 
 Titles Act which declares a mechanics' lien when registered to be 
 an encumbrance on the lands. But the existence of the lien itself 
 and its extent depend upon the provisions of the Mechanics' Lien 
 Act. The two statutes must be read together, and registration 
 under the Land Titles Act 'cannot be taken to create an encum- 
 brance where there is no valid lien under the Mechanics' Lien 
 Act, or to neutralize or modify the limitation upon its extent 
 which the Mechanics Lien Act explicitly imposes." City of Cal- 
 gary v. Dominion Radiator Co., (1917) 40 D. L. E. 75, per 
 Anglin, J. 
 
 Under the Alberta Act it has been held that where progressive 
 payments under the contract of the principal contractor are made 
 contingent upon advances being made to the owner by the mortga- 
 gee, the Court may, on the trial of a mechanics' lien action brought 
 by a sub-contractor who had completed his sub-contract, direct that 
 his lien remain in force, so that it may attach in respect of any such 
 further advances which may in future be made by the mortgagee, 
 reserving leave to tfye owner and the mortgagee to apply for the dis- 
 charge of the lien. Colling v. Stimson & Buckley, (1913) 10 D. L. 
 E. 597 (Alta.). The provision in the Saskatchewan Mechanics' 
 Lien Act that the failure to file a lien or to commence action 
 thereon within the statutqfy period shall not defeat the lien ex- 
 cept as against liens, registered by intervening parties meanwhile, 
 does not create a priority in favor of intervening liens for work 
 not performed and materials not furnished. St. Pierre v. Rekert, 
 (1915) 23 D. L. E. 592, 8 Sask. L. E. 41.6, 31 W. L. E. 909. 
 
 In determining the value of a parcel of land upon which stands 
 a portion of a house which has been, by mistake, built partly upon 
 the parcel in question and partly upon an adjoining lot owned by 
 another person, for the purpose of adjudicating upon the respec- 
 tive rights of a mortgagee and a lienholder, no regard can be had 
 
PEIOEITIBS. 175 
 
 to the fact that such other person, if applied to, ■would have con- 
 sented to the removal of the house off his lot, and the priority of 
 a mortgage on the lot in question over the lien of a workman sub- 
 sequently arising, for the cost of removing the house so as to place 
 it wholly on the parcel in question, is limited to the actual value 
 of such parcel with the part of the house upon it at the time he 
 began the work, which value must be ascertained without reference 
 to the subsequent removal. Jack v. McKissock, (1917) 27 Man. 
 L. E. 548. But the Ontario Act affords a different test. 
 
 Under the British Columbia Act (E. iS. B. C. 1911, c. 154, 
 s. 9), the yalue of the property before the lien attached is to' be 
 taken for the purpose of fixing the ( upset price for which the lien- 
 holder -would have priority over a mortgagee as against the increase 
 in value of the mortgaged premises by reason of the work and im- 
 ' provements, the latter, however, must be limited only to the extent 
 to which the specific contract enhances the selling value, and not 
 for work or improvements by others under independent contracts; 
 if no greater sum than the upset price is obtained at the sale the 
 lienholder has no priority, and his only recourse is against the 
 equity of redemption. Champion v. The World, (1916) 27 D. L. 
 E. 506, 22 B. G, E. 596, 34 W. L. E. 317. The provisions of -this 
 Act do not give relief to lienholders as against prior mortgagees, 
 • unless, from the proceedings at the trial, the increase in the value 
 of the mortgaged premises can be ascertained. Lienholders for 
 work consisting entirely of the taking out of ore from a mine, can- 
 not, except when it is strictly development work, enforce their liens 
 as against a prior mortgagee. Anderson et al. v. Kootenay Gold 
 Mines, et al, (1916) 18 B. .0. OR. 643. 
 
 A lien for materials supplied as against a mortgage has priority 
 over the mortgage only to the extent of the materials placed on the 
 ground before the mortgage money was advanced. Roboch v. Peters, 
 (1909) 13 Man. L. E. 124. The first mortgagee having applied 
 his last advance in payment of the purchase money of the lots to 
 the unpaid vendor who then conveyed the land in fee to the defen- 
 
176 THE LAW OF MECHANICS'" LIENS IN CANADA. 
 
 dant owner, and having thus secured the title to the property 
 claimed to be entitled to be subrogated to the position of the origi- 
 nal vendor in respect of such purchase money, but, having had 
 actual notice of one of the liens and constructive notice of the 
 other before making this payment, he could not have priority over 
 either lienholder for such advance. Bobock v. Peters, supra. 
 
 An agreement for the sale of land which contains a covenant 
 binding the purchaser to erect certain works on the land at a cer- 
 tain cost and contains a covenant by the vendor, the owner, to 
 remit a specified amount from the purchase price, on the comple- 
 tion of said undertaking, is such a request in writing as gives a 
 mechanic's lien arising from the erection of said works general 
 application under section 6 of the British Columbia Act, 1916, 
 e. 154, and therefore the lien is not restricted to the increase in 
 value of the premises by reason of such works. British Columbia 
 Granitoid Co. v. Dominion Shipbuilding Co. (B.C), (1918) 2 
 W. W. R. 919. 
 
 Where an incumbrance is duly recorded, delay in recording an 
 assignment of it cannot affect the assignee's priority. Zehner v. 
 Johnston, 22 Ind. App. 452. If the incumbrance or conveyance is 
 not recorded until the mechanics' lien has attached, the lien has 
 priority, but, in the absence of legislation to the contrary, a mort- 
 gage recorded before the work is commenced to secure future 
 advances which are made to pay for work or materials, takes prior- 
 ity over mechanics' liens. Roboch t. Peters, (1909) 13 Man. L, R. 
 124; Cook v. Belshaw, (1903) 23 '0. R. 545. A mortgage made 
 in good faith will not lose its priority, because of an omission of 
 some technical matter in its execution, although such advances are 
 not made until after the work commences. Payne v. Wilson, 74 
 N. Y. 348. As to questions of priority arising as against rival 
 incumbrancers who may have been misled by error of registrar, see 
 Gorman v. Archibald, 1 Alta. L. R. 524. 
 
 The limitation of the priority of mechanics' liens over mort- 
 gages declared by the Alberta Mechanics' Lien Act to the amount 
 
KUOKITIES. 177 
 
 whereby the premises have been increased in value -by the work, 
 does not apply where no money was advanced by the mortgagee 
 until after the commencement of the work for which the lien is 
 claimed. Under this Act a mechanics' lien attaches to the interest 
 which is vested in the owner at the time the work is commenced 
 or to any interest which he may acquire during the progress of the 
 work; and the lien Will take priority over a mortgage upon which 
 no money was advanced until after the commencement of the work, 
 although the mortgage had been registered before that time. 
 Colling v. Stimson, 10 D. L. B. 597, 6 Alta. L. E. 71. 
 
 Lienholders under the British Columbia Mechanics' Lien Act 
 are entitled to a priority over an unregistered charge or transfer 
 ,of which they had no knowledge, actual or constructive. National 
 Mortgage Go. v. Bolston, (1916) 32 D. L. E. 81, 35 W. L. E. 494, 
 23 B. C. E. 384, (1917) 1 W. W. E. 494, affirmed by Supreme 
 Court of Canada, (1917) 2 W. W. E. 1144. 
 
 It is not' essential to the preservation of a lien against a prior 
 mortgagee, (under s. 8 (3) E. S. 0. 1914, c. 140) that it shall be" 
 stated in the registered claim that it is against the mortgagee, 
 inclusively or otherwise. Whaley v. Linneoank, (1916) 29 D. L. 
 E. 51, 36 0. L. E. 361. 
 
 The mechanic asserting his lien must show that he is entitled 
 to priority before the same can be allowed. Davis v. Alford, 94 
 U.S. 54'5. A mortgage of the real estate of the defendant com- 
 pany was given by the directors to S., one of its directors, to 
 secure him and his co-directors against their endorsements on the 
 notes of the company, which had been made to raise money for. the 
 purposes of the company. This mortgage was recorded prior to 
 the registration of a mechanics' lien. It was held that the mort- 
 gage was valid and that its prior registration must prevail over the 
 lien of the mechanic. McDonald v. Consolidated Gold Lake Co., 
 (1902) 40 N". S. E. 364. 
 
 A mere instantaneous seisin is insufficient to sustain the lien. 
 ■See Owen v. Lynch, (1876) 2 E. & C. (Nova Scotia) 406. Where 
 
 mm,.— 12 
 
178 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 a purchaser under an agreement creates a lien upon his interest, 
 and afterwards receives a deed and immediately executes a mort- 
 gage; to the vendor for the whole or part of the purchase money, 
 such mortgage takes priority to the lien except, perhaps, as to the 
 increased value. Ettridge v. Bassett, (1884) 136 Mass. 314; 
 Saunders v. Bennet, (1893) 160 Mass. 48; Clark v. Butler, (1880) 
 32 N. J. Eq. 664. See also Ontario Mechanics and Wage Earners 
 Act, which contains a provision for the case where the conveyance 
 has not been taken; Whether a, seisin is instantaneous must de- 
 pend upon all the facts and circumstances of the case. See Sprague 
 v. Brown, (1901). 178 Mass. 220; Osborne v. Barnes, (1901) 179 
 Mass. 597; Beady y. PinTcham, (1902) 181 Mass. 351. See also 
 chapter entitled, " The Owner and His Interest," ante. 
 
 In Massachusetts, on a petition to establish a mechanics' lien, , 
 as in the case of dower, a mortgagee can take advantage of the 
 doctrine of instantaneous seisin only where the mortgage was made 
 to secure the purchase money, or some part of it. Libbey v. Tilden, ' 
 (1906) 192' Mass. 175. 
 
 Although the lien arises as soon as the work is commenced, 
 or the materials have been placed or furnished, yet it actually 
 takes its rank with other interests and incumbrances not solely 
 according to the date at which it came into existence, but, in so 
 far as the work or materials have increased the value of the land, 
 in priority to other interests and incumbrances,, though the latter 
 be prior in point of time. A mortgagee or vendor of land under 
 an executory contract for sale cannot do anything to prejudice the 
 vested statutory right of the lienholder to a lien upon -the property 
 to the extent to which its value has been increased by the work of 
 the lienholder. High River Trading Co. v. Anderson, (1909) 10 
 W- L. E. 127. 
 
 But the mere fact that materials had been furnished and placed 
 upon the land by a lien claimant does not prove that the selling 
 value of the property- had been thereby increased. The onus of 
 proving that the selling value of the land has been increased by 
 
PEIOEITIBS. 179 
 
 the materials furnished is on the lien claimant, and unless it be 
 shewn that the increased value of the land was due to the furnish- 
 ing and placing of the material the claim of the materialman will 
 not be given priority as against the mortgage. • Independent Lum- 
 ber Co. v. Bocz, (1911) 16 W. L. E. 316 (Sask.) ; Kennedy v. Had- 
 dow, 19 'Ont. B. 240; Richards v. Chamberlain, 25 Grant, 402; 
 McVean v. Tiffin, 13 0. A. E. 4; Reinhart v. Shutt, 15 0. B. 325. 
 See Roboch v. Peters, (1909) 13 Man. L. E. 124. 
 
 In Saskatchewan it has been decided that a mortgage, equitable 
 or legal, has priority over a lien if registered before the lien, and a 
 mortgagee is entitled to priority for all moneys advanced by him 
 on the security of an equitable mortgage before the registration of a 
 lien for materials, regardless of the fact that some of the material 
 had been delivered and a lien accrued in respect thereof before some 
 of the advances were made. Independent Lumber Co. v. Bocz, 
 (1911) 16 W. L. E. 316 (Sask.). See Roboch v., Peters, (1909) 13 
 Man. L. E. 124, West v. Sinclair, 12 C.L.T. 44, 23 C.L.J. 119. "No- 
 tice cannot affect the question of priority. Where a lienholder has 
 not registered his lien the mortgagee need not hesitate to advance 
 money legitimately under his mortgage, because possibly the" lien- 
 holder might thereafter register his lien." Independent Lumber 
 Co. v. Bocz, (1911) 16 W. L. E. 316 (Sask.). See Roboch v. Pet- 
 ers, (1909) 13 Man. L. E. 124; West v. Sinclair, 12 C. L. T. 44, 
 23 C. L. J. 119. 
 
 The right to priority is dependent on statutoTy provisions, but, 
 in the absence of such provisions the fact that the holder of the 
 incumbrance knew that improvements were being ' placed on the 
 incumbered property would not oblige him to give notice disclaim- 
 ing responsibility. Independent Lumber Co. v. Bocz, 4 Sask. L. E. 
 103, 16 W. L. E. 316, Interstate. Building &■ Loan Association v. 
 Ayers, 177 111. 9. The mechanic should inform himself concerning 
 existing recorded incumbrances. In the absence of express statu- 
 tory provision any improvement placed upon incumbered land would 
 be subject to the existing incumbrance. But Mechanics' Lien Acts 
 
180 tHB LAW OP MECHANIC^ LIENS IN CANADA. 
 
 in Canada provide that mechanics' liens for work done or materials 
 furnished for incumbered realty shall take priority over the in- 
 cumbrance to the extent of the increased value so given to the 
 property. 
 
 When, after the lien has attached td several distinct" buildings 
 constructed under an entire contract, the owner has sold one or 
 more, the equities which then arise between the owners of the 
 several buildings may be worked out upon the principles applied 
 where part of a property subject to a mortgage is sold and the 
 mortgagee seeks to enforce his remedy against both parcels. On- 
 tario Lime Association v. Grimwood, 22 0. L. E. 17. 
 
 A 'mortgage subsequent in point of time takes priority over an 
 unregistered lien. Cook v. Belshaw, (1893) 23 0. E. 545. A 
 mortgagee for future advances is also protected to the extent of 
 all. advances made before registry of the lien and before he- had 
 actual notice of the lien. Under the Saskatchewan Lien Act, in 
 construing a provision similar to one in the Ontario Act, it has 
 been held that notice of an unregistered lien will not affect the 
 question of priority of the mortgagee for future advances. Inde- 
 pendent Lumber Co. v. Bocz, (1911) 16 W. L. E. 316. It has also 
 been held that a mortgage subsequent to a lien but given for the 
 purpose of paying off a prior incumbrance will be protected to the 
 extent of such prior incumbrances. Locke v. Locke, (1898) 32 
 'C. L. J. 332. ' In Massachusetts, under a similar provision, it has 
 been held that a mortgagee, under a mortgage given to pay off 
 existing mortgages, even to himself, acquires no rights under 
 them. Batchelder v. Hutchinson, (1894) 161 Mass. 462; Easton 
 v. Brown, (1898) 170 Mass. 311. See Colonial Investment & Loan 
 Co. v. McCrimmon, (1905) 5 O. W. E. 315. 
 
 A lienholder if he wishes to preserve his lien as against subse- 
 quent purchasers and mortgagees, who registered their conveyances, 
 must register his lien (McVean y. Tiffin, 13 0. A. E. 1 ; Reinhart 
 v. Shutt, (1888) 15 0. E. 325; Wanty v. Rooms, (1888) 15 0. E. 
 474), but the subsequent purchaser or mortgagee who registers his 
 
PHIOEITIES. 181 
 
 conveyance does not gain priority if at the time of the payment of 
 his purchase money and registering his conveyance he had actual 
 notice and knowledge of the prior claim of the lienholder. Rose 
 v. Peterkin, 13 S. ( C. E. 677. 
 
 If one contemplates the purchase of certain land and having 
 agreed in writing with the owner of the land to build a house on 
 it. makes an oral contract with a mechanic to construct the cellar 
 of the house, and the mechanic proceeds to dig the cellar with the 
 knowledge and consent of the owner of the land, and if shortly 
 thereafter the owner sells and conveys the land to the contem- 
 plated purchaser who employed the mechanic, and takes a mort- 
 gage back, the mechanic can enforce a lien upon the property for 
 the labor and materials furnished by him in constructing the 
 cellar which will be good against the mortgage. McOormack y. 
 Rutland, (1906) 191 Mass. 424. 
 
 A lien to be prior to a mortgage must be registered before the 
 mortgage, in' the absence of statutory enactment to the con- 
 trary. Reinhart v. Shutt, 15 0. E. 325. Where the mort- 
 gagees take their mortgage on the security, of a house which was 
 being erected by certain contractors the mortgagees were held not 
 entitled to priprity over the contractor's lien. Aslip v. Robinson, 
 (1911) 18 W. L. E. 39 (Man.). 
 
 A mortgage given to secure future advances to be paid as the 
 building progresses is a prior lien for claims for materials used in 
 the construction of the building for the full amount advanced. 
 Cook v. Belshaw, 23 Ont. E. 545 ; Robock v. Peters, (1909) 13 Man. 
 E. 124; Reedy. Rochford, 62 N. J. Bq. 186; Lipman v. Jackson, 
 128 N. Y. 58. But such mortgage to take priority must be re- 
 corded before the lien right has attached. Young v. Haight, 69 
 N. J. L. 453. 
 
 If the mortgage is given before the time that the law provides 
 that the lien right shall attach to the property it takes priority 
 over the right of the mechanic. Robock v. Peters, supra; KieveU 
 v. Murray, 2 Man. E. 209. 
 
182 , THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 A bank with whom an owner of land has made an agreement in 
 the nature of a mortgage as to advances of money for the construc- 
 tion of buildings on the land, by the terms of which the bank 
 cannot be compelled to make advances, cannot, lessen the value of 
 the equity of redemption as to holders of mechanics' liens upon 
 the land by making payments to the owner after it learns of the 
 existence of the liens. Gray v. McLellan, (1913) 214 Mass. 92. 
 
 A liquidator represents no higher claim than that of the insol- 
 vent company ; therefore, liens registered within the statutory 
 trine for materials supplied and for work done, prior to the service 
 of a petition to wind up the company, are to be paid in priority to 
 ordinary creditors. Re Clinton Thresher Co., (1910) 15 0. W. 
 E. 318. 
 
 In a proceeding to enforce a mechanics' lien for labor and 
 materials furnished in the construction of a building, where the 
 evidence shows that the contract between the contractor and the 
 builder was entered into prior to the acquisition of title to the 
 property by the builder, and that subsequently the builder acquired 
 title to the property and at the same time executed a mortgage 
 thereon, but that such mortgage was executed to obtain money for 
 the construction of the building and not to pay the purchase 
 money, the mechanics' lien of the contractor will be held to be 
 prior to the lien of' the mortgage, notwithstanding the doctrine' of 
 instantaneous seizin, as the deed to the builder and the mortgage 
 hy the builder were separate transactions consummated at one 
 time, and not merely component parts of one transaction. Libbey 
 V. Tilden, 192 Mass. 175. See Am. & Eng. Ann. Oas., vol. 7, p. 
 617. If the earliest item of a mechanics' lien is a date subsequent 
 to the date of an attachment, the attachment has priority over the 
 mechanics' lien, under the Maine Mechanics' Lien Act., First Nat. 
 Bank of Salem v.' Redman, 57 Maine 505. But an attachment or 
 execution, to have priority, must be levied on the property before 
 the right to a mechanics' lien attaches. 
 
 If a judgment becomes a lien during the period within which 
 a mechanic can perfect his right it will not take priority of the 
 
PRIORITIES. 183 
 
 mechanics' lien. In re Bailer's Estate, 196 Pa. 90. Though a 
 mechanic's lien was subject to a prior mortgage on the land, upon 
 the release of a part of the land from the mortgage, the lien was 
 left, in full force on such part. Davidson v. Stewart, (1909) 200 
 Mass. 393. Where a chattel mortgage is given on personal pro- 
 perty which afterwards becomes a fixture and a part of the real 
 . estate, a mechanics' lien attaching to the real estate will have prior- 
 ity over the chattel mortgage. Currier v. Cummings, ,40 N. J. Eq. 
 145. 
 
 Where a building was commenced before the execution of a 
 mortgage, valid lien claims have priority , over the mortgage. 
 Federal Trust Co. v. Guigues, (1909) 76 N. J. Eq. 495. A con- 
 veyance of the property made after the right to liens has attached 
 is made subject to these liens. American Mortgage Co. v. Merrick 
 Const. Co., 120 App. Div. N. Y. 150. 
 
 The fact that the building is by the terms of the lease to be- 
 come the property of the lessor is ground for charging his estate 
 with the amounts owing to lienholders. High River Trading Co. 
 V. Anderson, (1909) 10 W. L. E. 126. 
 
 As Mechanics 5 Lien Acts in Canada fix the time when the lien 
 attaches, the question of priority between a recorded incumbrance 
 and a mehcanics' lien is not a difficult one. The onus is on the 
 mechanics to show priority. Davis v. Alford, 94 U. S. 545. If 
 the contract between the vendor and vendee required the erection 
 of the building, the mechanics' lien will be given priority. Eockel, 
 s. 163 ; Henderson v. Connelly, 123 111. 98. 
 
 Where a mortgage is given simultaneously with a deed for the 
 property to secure the unpaid purchase price, such mortgage is 
 prior to a mechanics' lien for work' or materials furnished under a 
 contract with a vendee in possession prior to the execution of the 
 mortgage. Osborne v. Barnes, 179 Mass. 597. Where a building 
 was commenced before the execution of a mortgage on the pro- 
 perty, lien claims have priority over the mortgage. Federal Trust 
 Co. v. Guigues, (1909) 76 N. J. Eq. 495. The claims of wage- 
 
184 THE LAW OE MECHANICS' LIEN'S IN CANADA. 
 
 earners are given priority .to a limited extent over all other lien 
 claimants. Other lien claimants who register their claims within 
 the statutory period share equally. . The statute determines the 
 priority of liens, and the legislation in force at the time the obli- 
 gation becomes fixed must control. 
 
 The right to dower or curtesy, if existing at the time the lien 
 attaches, takes priority over a mechanics' lien for work done or 
 materials placed upon property under contract with the person 
 owning the fee. Gove v. Cather, 23 111. 585; 76 Am. Dec, 711; 
 Mark v. Murphy, 76 Ind. 535; Buser v. Shepard, 107 Ind. 417. 
 \ By statutory provision taxes are entitled to payment prior to 
 a mechanics' lien. 
 
 The appointment of a receiver does not divest the property of 
 prior existing liens, but affects them only in the manner and time 
 of their enforcement. While £he property is in the possession of 
 the receiver the right to enforce the lien is suspended, because the 
 property is in the custody and control of the Court. Randall v. 
 Wagner Glass Co., (1910) 47 Ind. App. 439; Beach on Beceiyers, 
 2nd ed.^ 194. 
 
 In a case under the Manitoba Act (In re Empire Brewing & 
 Malting Co., (1891) 8 Man. L. B. 424), proceedings had been 
 taken to enforce a mechanics' lien after a winding-up order had 
 ' been made. On an application to stay the proceedings it was held 
 by Taylor, C.J., that the lien was not created by the taking of pro- 
 ceedings, but prior to that time, and prior to the winding-up, .and 
 that the proceedings could not be stayed. In another case, under 
 the British Columbia Act (Re Ibex Mining and Development Co., 
 (1902) 9 B. C. B. 557), mechanics' liens had been filed against the 
 property of- a company, and judgment recovered in respect to them 
 in the County Court. On the same day as the judgment, a wind- 
 ing-up order was made in the Supreme Court. Subsequently the 
 liquidator obtained an order authorizing him to give a first charge 
 on the property of the company in order to raise money to take out 
 certain Crown grants of property to which ' the company was 
 
PRIORITIES. 185 
 
 entitled. The lienholders had no notice of the application and did 
 not. appear on the hearing. They did not appeal from the order, 
 but applied for leave to enforce their judgment in priority to the 
 charge created by the liquidator under the order of court. Held, 
 that the order made on the application of the liquidator, was made 
 without jurisdiction, and the lienholders were not bound by it. 
 
 Mechanics' Lien Acts in Canada give a lien to the mechanic on 
 mortgaged land where the selling value of the land is increased by 
 the work or service. This lien attaches upon such increased value 
 in priority to the mortgage or other charge. Unless the selling 
 value of the property had been increased the lien has no priority 
 over the mortgage. Kennedy v. Haddow, (1890) 10 0. E. 240. 
 See Cole v. Pearson, 17 0. L. E. 46; Parrel v. Gallagher, (1911) 
 23 0. L. E. 130, and cases cited under sections 8 and 15 of the 
 Ontario Act, post. See particularly Patrick v. WaTbourne, (1896) 
 27 0. E. 221; Cut-Bate Plate Glass Co. v. Solodinski, (1915) 25 
 D. L.-E. 533, 34 0. L. E. 604. 
 
 A covenant in the plaintiff's mortgage, entitling them to pay 
 " liens, taxes, rates, charges or encumbrances " affecting the mort- 
 gaged lands and adding them to the mortgage debt, did not entitle 
 them as against defendants, subsequent mortgagees, to add to their 
 mortgage debt amounts used to pay off mechanics' liens of later date 
 than the registration of defendants' mortgage. Great West Per- 
 manent Loaji Co. v. National Mortgage Co., (1919) 1 W. W. E. 
 788 (B.C:). 
 
 As to rights of execution creditors, where land is sold to satisfy 
 a mechanics' lien, see Beaver Lumber Co. v. Quebec Bank, 11 SasL 
 L. E. 320> (1918) 2 W. W. E. 1052. 
 
CHAPTER XII. 
 
 Computing the Statutoet Time. 
 
 The- performance of the work or the supplying of the materials 
 gives merely a right to acquire a lien; the statute prescribes the 
 steps necessary to perfect it. 
 
 The function of the statement required to be filed in the reg- 
 istry of deeds within a certain time after the person claiming the 
 lien has ceased to labor or to furnish labor and materials is merely 
 to preserve the right to lien already in existence, which otherwise 
 would expire. Devine v. Clark, (1908) 198 Mass. 56. 
 
 The time. limited for the registration of claims for liens does 
 not commence to run until there has been such performance of the 
 contract as would entitle the contractor to maintain an action for 
 the whole amount due thereunder. If the last work upon which 
 the lien claimant relies as giving a new date from which the stat- 
 ute begins to run against his lien is something which the owner 
 could have insisted upon before accepting the whole work as a 
 completed contract, it will be sufficient to fix the date from which 
 to reckon the statutory period. Day v. Crown Grain Co., (1907) 
 39 Can. S. C. E. 258. 
 
 The time for registering the lien should be calculated from the 
 date when the work under the contract was completed or the 
 materials furnished and placed. 
 
 Even if. there be only some touching-up work to do, and whe- 
 ther much or little, if it be a part of the work necessary under the 
 contract, the statutory time is to be calculated from the completion 
 of such' work. Fuller v. Beach, (1912) 21 W. L. E. 391 (B.C.). 
 
 The time for filing the lien is to be reckoned from the date of 
 performance of the latest work under the contract, regardless of 
 acceptance or occupation by the owner. Milliken Bros. v. City of 
 
COMPUTING THE STATUTORY TIME. 187 
 
 New York, (1911) 201 N. Y. 65; St. Louis N. Stock, Yards y. 
 O'Reilly, 85 111. 546. 
 
 The doing of work or supplying of materials even of a trivial 
 character, should be taken into consideration in determining the 
 date from which the statutory time should be calculated if the work 
 was done or materials supplied, in good faith, to complete the 
 contract, and not cdlorably to revive the lien. Sayward v. Duns- 
 muir, 11 B. 0. B.375 ; Steinman v. Zosuck, 4 W. L. E. 575 ; Clarice 
 v. Moore, (1908) 1 Alta. L. E. 49, 8 W. L. E-. 405; Brynjolfson v. 
 Oddson, 32 D. L. E. 270, 27 Man. L. E. r 390, (1917) 1 W. W. E. 
 1000. 
 
 " Within the thirty' days plaintiff's workmen returned and put 
 in two lights of glass in a dining ■ room window. This was done 
 without the knowledge of defendant and might be. regarded as 
 unimportant work, but the essential factor or test is that the work 
 done was done in pursuance of and to complete the contract. It 
 is contended that this later small piece of work was done in "bad 
 faith," but even if bad faith would affect the matter, I cannot find 
 that there was bad faith. The work was done in fulfilment of the 
 contract and the delay was due to the non-arrival of the glass. The 
 statutory period should be computed from the day when the 
 omitted work was done by the plaintiffs workmen." Boyce v. 
 Huxtable, (1919) unreported, per "Wallace, Co.J. (K.S.). 
 
 Where any additional, work essential to the' completion of the 
 contract is required to be done the statutory time is calculated 
 from the date when the additional work is done. Benson v. Smith, 
 (1916) 31 D. L. E. 416. If the agreement between the con- 
 tractor and the materialman is that the latter is to furnish all 
 material for the building without any specific quantity being 
 designated and such material is delivered to the contractor from 
 time to time, the time for filing a claim begins to run .from the 
 last delivery. Smalley v. Gearing, (1899) 121 Mich. 190. The 
 fact that the last article supplied is trifling in value or was supplied 
 much later than the bulk is of no importance. " Material sup- 
 
188 THE LAW OF MECHANICS LIENS IN QANADA. 
 
 plied later than, the bulk is none-the less material supplied within 
 the meaning of the Act." Hurst v. Morris, (1914) 32 0. L. E. 
 346', per Biddell, J. An amendment to the Act, E. S. 'O. 1914, 
 c. 140, s. 22 (2), provides that a Claim for a lien for materials 
 supplied may be filed #ithin thirty days after the furnishing or 
 placing of the last material so furnished or placed, and no differ- 
 ence is made between a large and a small amount, so that any diffi- 
 culty as to this question is removed, so far as the law in Ontario is 
 concerned. By this amendment it is now immaterial whether the 
 material is furnished under one contract or more; and the right 
 is independent of the completion of the work. Hurst v. Morris, 
 
 The calculation of the time is affected by the question whether 
 it is necessary to test the work or machinery in order to certify 
 that the contract has been completed. Day v. Grown Grain Co., 
 (1907) 39 S. C. E. 258; Jefersonville Water Supply Go. v. Biter, 
 138 Ind. 170. But where the material last furnished is for a tem- 
 porary or experimental purpose only, the lien claimant would not 
 be justified in computing the statutory period from the date of the 
 furnishing of this material. Plaintiffs had contracted to supply 
 the hardware for use in the construction of a building, and the last 
 delivery upon which they relied for preservation of their lien — 
 the registry , of the claim of lien being within thirty days of that 
 delivery, but more than thirty days after the last previous delivery 
 of materials 1 — was of certain bolts, of trifling value and used for a 
 temporary or experimental purpose only, it was held that these 
 articles were not furnished in such manner as to enable the plain- 
 tiffs to claim a lien for their price upon the land of the owners, 
 and so the whole claim failed. Broohs^Sanford Gb. v. Theodore 
 Telier Construction Co., (1910) 22 O'. L. E. 176. 
 
 In dealing with this question of the computation of the statu- 
 tory period it is important to consider and construe reasonably the 
 terms, of the actual contract. A plumbing contract to furnish and 
 install a hot air furnace for heating a house, including the neces- 
 
COMPUTING THE, STATUTOHY TIME. 189 
 
 sary pipes, registers and fittings, comprises the furnishing and 
 installation of the incidental cold air registers as a material part 
 thereof; and the time within which a mechanics' lien may be filed 
 for such work is to be computed with reference to the installation 
 of the' cold air registers where that is the last work done under the 
 contract, notwithstanding a delay of two months after the instal- 
 lation of the furnace itself and of the other incidental fittings. 
 Colling v. Stimson & Buckley, (1913) 10 D. L. E. 597 (Alta.). 
 
 And where sub-contractors acting in good faith consider that 
 their work is completed, but upon a test additional work is found 
 necessary, which additional work is done as soon as practicable, 
 this additional work being substantial, and not being done to 
 remedy slight defects, the time for registering their lien can be 
 computed from the completion of this additional work. Whim'ster 
 v. Crow's Nest Pass Coal Co., (1910) 13 W. L. E. 631. On the 
 other hand, where the work consists of different jobs all in one line 
 of business, but ordered at different times, a mechanic is not re- 
 quired to file a lien after completing each, piece of work. It is 
 sufficient if he files his lien after he has completed all of his work. 
 Carroll v. McVicar, (1905) 15 Man. L. E. 379. Where a con- 
 tract is made for materials to be delivered from time to time as 
 
 ' required in the repairs of buildings, and the material is furnished 
 as orders are received, each order is not an independent contract. 
 
 ■ Premier Steel Co. v. McElwaine Richards Co., (1895) 144 Ind. 614. 
 Special considerations may apply in relation to the question as 
 to what constitutes completion of the contract. — Under a contract 
 made with the railway company for the erection of a building, the 
 work was to be done to the entire satisfaction of certain architects. 
 The plaintiffs, who were sub-contractors for a part of the building, 
 ceased work on May 20th, under the belief that their contract was 
 completed, and their secretary-treasurer, on June 8th, made an 
 affidavit stating such to be the fact, with a view of having a lien 
 registered, which, was done on June 24th. The architects, how- 
 ever, were not satisfied and required further work to be done, and 
 
190 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 this was accordingly done in June, and again in August, and it 
 was , not until August 4th that the architects were satisfied' and 
 accepted the work. It was held that the architects being the per- 
 sons to determine when the work was completed, it was not com- 
 pleted until they had signified their approval, and, therefore, the 
 lien was registered in time. Voices Hardware Co. v. Grand Trunk 
 R. Co., (1906) 12 0. L. E. 344. 
 
 If there are separate contracts the notice for each must be 
 within the time limit of each, but this, of course, wbuld not apply 
 if the, job were one continuous contract. Morris v. Tharle, (1894) 
 24 O. E. 159; Hooven, etc., Co. v. John Feather*stone's Sons, 
 111 Fed. 81. The general principle applicable to a running ac- 
 count Will ' 'ordinarily be applied to cases of materials supplied 
 by a lien claimant. When one item is connected with another 
 in the sense of a running account and the dealing is intended 
 to be continuous^ so that one item if not paid shall be united with 
 another and form one entire demand, the time for filing a lien 
 runs from the date of ±he things last supplied. Morris v. Tharle, 
 supra. 
 
 But where a plumber agreed in a single written document to 
 instal plumbing and heating apparatus in each of two houses situ- 
 ated on two adjoining lots, for the sum of $620 for each house, it 
 was held that the contract contained two severable or divisible 
 promises, one in respect to each house. The work in connection 
 with the house on lot No. 30 was completed on July 29th, 1908, 
 and that in connection with the house on lot "So. 29 on June 15th, 
 1909 ; the sewer connections from both houses were joined in a line 
 between the two lots. A lien filed against both lots on February 
 1st, 1909, in respect of the whole contract price for the two houses 
 was too late to preserve the lien against lot 30. A. Lee Co. v. Hill, 
 2 Alta. E. 368. 
 
 If the claimant has delayed completion, in order to give the 
 owner time to arrange for payment, by arrangement with the 
 owner, and work is then done to keep the lien alive, the owner hav- 
 
COMPUTING THE STATUTORY TIME. 191 
 
 ing accepted the benefit of the delay and the work being necessary, 
 the date of completion of such work will be taken as the date upon 
 which the claimant has ceased to work. Clarice v. Moore, (1908) 
 1 Altai. L. E. 49. 
 
 Parties cannot by afterthought and subterfuge, extend the 
 statutory time for filing a statement of lien so as to prejudice 
 others. Renhey ' v. Dempster, (1911) 19 0. W. E. 644; Badger 
 Lumber Co. v. Parker, (1911) 35 L. E. A. 901. See Woodruff v. 
 Hovey, 91 Me. 116; Miller v. Wilkinson, 167 Mass. 136; 
 McLean v. Sanford, 26 App. Div. (N.Y.) 603; Stenerwal,d 
 v. QUI, 85 App. Div. (N.Y.) 605. As to right to different 
 contracts to perform labor or furnish material for the purpose of 
 extending time, see Valley Lumber & Mfg. Co. v. Dreessel, (1907) 
 15 L. E. A. 299. It is incumbent on the lien claimant to prove 
 clearly that the material was supplied and the work done in pur- 
 suance of and as a part of his contract. Lawrence v. Landsberg, 
 (1,910) 14 W. L. E. 477. The question whether labor and mater- 
 ial furnished within the statutory period, but after the contract had 
 been substantially completed, were in good faith and for the pur- 
 pose of completing the contract or colorably to revive the lien, is 
 a question of fact. Turner v. Wentworth, (1876) 119 Mass. 459. 
 Plaintiff, a sub-contractor for plastering, had allowed the time for 
 filing his lien to expire. Under the building contract the plas- 
 terer was to '" fix up " after the other trades. He attempted, 
 against the instructions of the defendant, the owner, to do some 
 " fixing up," worked about four hours and then filed his lien. As 
 he was really trying to manufacture a lien his action to enforce his 
 lien failed. Sheritt v. McCallum, (1910) 12 W. L. E. 637. 
 
 A few decisions, in rejecting a plaintiff's claim as registered too 
 late, seem to put too much emphasis on the fact that the last work 
 in question was trivial work, but this fact, in itself, is not im- 
 portant. The very last repair or construction work done on any 
 building generally is comparatively trifling, but the triviality of 
 the work done, if done in accordance with the contract, cannot 
 
192 THE LAW OF MECHANICS'" LIENS IN CANADA. 
 
 affect the plaintiS's rights, nor, in the case of a materialman, can 
 the small value of the last materials supplied make any difference. 
 Brynjolfson v. Oddson, (1916) 32 D. L. B. 270, (Man.); Hurst 
 v, Morris, (1914) 32 0. L. E. 346; Merrick v. Campbell, (1914) 
 17 D. L. E. 415, 24 Man. L. E. 446; Foster V. Btocklebank, 
 (1915) 22 D. L. E. 38, (Alta.) ; Swwiison v. Mollison, (1907) 6 
 W. L. E. 687 (Alta.). In considering this and kindred questions, 
 an eminent judge has aptly said,— "It does not appear to me to 
 affect the. matter that the latest orders were at long intervals for 
 small quantities of goods, after the bulk of. the work had been done 
 and the building occupied and used. These articles seem to have 
 been bona fide required for small finishing jobs such as are usual 
 in building operations, and which are frequently done after the 
 owner is in occupation." BobocTc v. Peters, (1900) 13 Man. L. E. 
 124, per Killam, C.J., at p. 136. 
 
 "Even if the subsequent work was, as one witness stated, 
 '. patching ' or ' odds and ends,' and comparatively unimportant, it 
 was none the less done in connection with the original contract. 
 It often happens that on a big repair job the last work done is of a 
 trivial nature, but if such work be done at the request of the owner 
 and in accordance with the terms of the contract it is still done 
 before ' completion ' of the contract, within the meaning of the 
 statute." Falconver v. Hartlen (Nova Scotia) unreported, per 
 Wallace, County Court Judge. 
 
 The time for .'filing a claim for lien cannot be extended by send- 
 ing new material to replace alleged defective material formerly 
 delivered and used in the completed building, which new material 
 was not suited for the purpose and was rejected. Snitzler v. Filer, 
 135 111. App. 61. After full delivery under a building contract, 
 an agreement to extend the time for 'filing a claim for lien is in- 
 effective. 
 
 The time for filing a lien for material furnished to a contrac- 
 tor cannot be computed from the date of the last item in the claim- 
 ant's account unless such item was the subject of a lien. Brooks- 
 
i COMPUTING THE STATUTORY TIME. 193 
 
 Sanford Co. v. Theodore Teller Co., (1910) 22 O.L.E. 176; Ludlam 
 Ainslie Lumber Co. v, Follis, (1909) 19 O.L.E. 419. If materials 
 are furnished for several buildings under one contract the time will 
 begin to run on either building from the last item furnished. 
 Premier Steel Co. y. M'cElwaine-Rickwrd Co., 144 Ind. 614. A 
 lien which does not cover all the items set forth in the claim be- 
 cause all are not within the time limit, will be good as to those 
 which are within the time limit. Steves y. Sinclair, 171 N. Y. 
 676. 
 
 In dealing with the claim of the materialman the statutory 
 time limit for registration is calculated from the date when the 
 last material furnished by the claimant had been placed upon the 
 land or used in the construction of the building. 
 
 Notice of a mechanic's lien is filed in time if filed within the 
 statutory time for furnishing the last of several lots of material 
 ordered and furnished at different times, where they are all sup- 
 plied under one contract. Randall y. Wagner Glass Co.; (1910) 
 47 Ind. App. 439. 
 
 Where work or material is in good faith furnished at the 
 request and with the knowledge of the owner to remedy defects in 
 the original work this is sufficient to establish a new period from 
 which the statutory time limit is to be computed, but where the 
 work contracted for is completed according to contract, as the con- 
 tractor believes, but he later discovers defects and voluntarily 
 undertakes without authority from the owner after the time for 
 completing the contract has expired, to remedy the trouble, it is 
 generally held that such work would not extend the time for filing. 
 See Naucolas'v. Hitaffer, (1907) 12 L. E. A. 864. But ordinarily 
 when materials are furnished after the work is completed, this will 
 not keep the lien alive so as to prejudice others. See Benney Y. 
 Dempster, (1911) 19 0. W. E. 644; Schaller Hoerr Co. v. Gentile, 
 (1910) 153 111. App. 458. Where, hbwever, the Government In- 
 spector orders changes, after supposed completion, the computation 
 
 M.L. — 13 
 
194 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 may be made from the date when the changes were completed. 
 Winer v. Rosen, (1918) 231 Mass. 418. 
 
 While there might be an interval of delay so great and unrea- 
 sonable as to justify a Court in holding as a matter of law that 
 a lien had been lost by reason of such great delay, yet if the sworn 
 statement of a mechanic's lien is filed within the statutory time 
 after the claimant has ceased to labor, and if the last item of labor 
 were performed in good faith under the claimant's contract the 
 lien is none the less valid because before the work named in the 
 last items was done, no work had been done by the claimant for 
 more than a month, and before the last work was done the houses 
 on which the lien is claimed appeared to be completed, and were 
 purchased by their present owner without knowledge of any lien. 
 Billings Go. v. Brand, (1905) 187 Mass. 417. 
 
 The words " the last material" in a statute providing that " a 
 claim for lien for materials may be registered before or during 
 the furnishing or placing thereof, or within thirty days after the 
 furnishing or placing of the last material so furnished and placed," 
 mean the last material furnished by the materialman under his 
 contract, where there is a distinct contract; and where he fur- 
 nishes materials outside of his contract, it has been held that the 
 time for registering his claim for lien in respect of the material 
 supplied under the contract begins to run from. the time of the 
 last delivery of material under the contract, without regard to the 
 time of delivery of material outside of the contract. Bathbone v. 
 Michael, (1909) 19 0. L. E. 428. 
 
 But the whole transaction in relation to the building contract 
 between the owner and the contractor must be considered in de- 
 termining the question of the date when the statutory period 
 begins to run. Where the materialman has contracted to supply 
 all of a certain class of supplies required in the construction of a 
 particular building, as mentioned in the specifications, and he 
 supplies not only the goods which were so mentioned, but further 
 materials which were contemplated by his contract as extras or 
 
COMPUTING THE STATUTORY TIME. 195 
 
 additions, by the amount of which the fixed price was subject to 
 increase, the lien for the entire bill is not lost by the lapse of the 
 statutory period for filing liens between the last delivery of that 
 portion of the goods, the class and quantities of which were shown 
 in the specifications, and the later delivery of the extras; the lien 
 in such case is in time if filed within the statutory period follow- 
 ing the last delivery of extras. Flett v. World Construction, 
 (1914) 15 D. L. E. 628. In such cases, although the initial ar- 
 rangement is not a binding contract for the supply of any defi- 
 nite kind or quantities of materials or even of all, such as should 
 be required, yet the whole transaction is so linked together as to 
 constitute a single cause of action, and the time for registration 
 or bringing an action runs from the supply of the last of the ma- 
 terials in respect of the whole bill. Booock v. Peters, (1900) 13 
 Man. L. E. 124; Morris v. Tharle, (1910) 24 0. E. 159. 
 
 The period of thirty days during which the owner is to retain 
 twenty per cent, of the value from his contractor for the protection 
 of other lienholders is to be computed from the completion or 
 abandonment of the contract ,by the ' principal contractor, but the 
 expiry of such period does not relieve the owner from his obliga- 
 tion to protect the interests of a sub-contractor of whose right to 
 register a lien the owner has notice ; and such obligation is enforce- 
 able by a sub-contractor who was enabled to file his lien more than 
 thirty days after the abandonment of the work by the principal 
 contractor by having been permitted by the owner thereafter to go 
 on and complete the subcontract and who has filed his lien within 
 thirty days of completing his own work. Merrick v. Campbell, 
 (1914) 17 D. L. E. 415 (Man.). 
 
 The Mechanics' Lien Act requires effective proceedings to be 
 commenced within a specified number of days from the date of the 
 last work done. As to the question whether the Eules of the 
 Court relating to vacation can apply to the Mechanics' Lien Act, 
 it has been decided in Ontario that such rules cannot apply. Al- 
 though the initial step in an action under a Mechanics' Lien Act 
 
196 THE LAW OF MECHANICS' LIENS IN CANADA. , 
 
 is called a statement of claim, it differs materially from the plead- 
 ing of that name in an ordinary action. It is the first step in a 
 proceeding to enforce a statutory remedy, and the Act requires this 
 step to be taken within a fixed period. To extend that period by 
 excluding vacations would be, in effect, to amend the Act and 
 materially enlarge the time which must elapse before proceedings 
 under it will be barred. Canada, Sand Lime Brick Co. v. Ottaway, 
 (1907) 10 0. W. E. 666. 
 
 In the computation of time within -which proceedings must be 
 instituted, the rule is that the first day is to be excluded and the 
 last day included. McLennan v. The City of Winnipeg, (1882) 3 
 Man. L. E. 474. As to the law relating to the question " when the 
 last (lay falls on Sunday," see Holmested, and also an article by 
 Gorman, K.C.j 48 C. L.J. 281. See also Bevelstoke, etc. v. Alberta 
 B. Co., 9 Alta. L. E. 162. 
 
 In computing the statutory period in relation to filing a lien 
 fractions of a day will not be counted. 
 
 " Day " means the twenty-four hours from midnight ' to mid- 
 night. Clarke v. Moore, (1908) 1 Alta. L. E. 49, 8 W. L. E. 405. 
 
 The time of the filing of the lien determines the legislation 
 to be applied. Mont joy v. Reward School Dist. (1909) 10 W. L. 
 E. 282 (Sask.). 
 
 A mechanics' lien will attach for all materials supplied in the 
 erection of a building, although the time for filing has expired as 
 to certain classes of material, ordered at a different time, where it 
 is shewn that there was a prior agreement to purchase all material 
 required for the building from such vendor. Whitlock v. Loney, 
 10 Sask. L. E. 377, (1917) 3 W. "W. E. 971, 38 D. L. E. 52. The 
 lien is enforceable if registered within the statutory period from the 
 last delivery of materials, even though the materials last delivered 
 may never have been used in the construction of the building, if 
 they were furnished for the purpose of being, used therein. Kalb- 
 fleisch v. Hurley, 469, 34 0. L. E. 268. . . 
 
CHAPTEE XIII. 
 
 Damages. 
 
 The contractor is not entitled to a lien merely because he has 
 performed work or service ; such work or service must be performed 
 under a definite contract, or something in the nature of a contract. 
 If, therefore, a contractor is wrongfully prevented by the owner 
 from fully performing his contract he has no lien for damage's 
 caused thereby, although he has a right of action for such damages. 
 The lien does not extend to unliquidated damages due to the 
 contractor by the owner on account of the violation of the terms 
 of the contract. Damages suffered by a contractor by reason of 
 his being improperly deprived of his contract cannot be claimed 
 in a proceeding under the Mechanics' Lien Act nor can such dam- 
 ages be a lien on the lands. Seaman v. Canadian Stewart Co., 18 
 0. W. E. 56; Hoyt v. Miner, 7 Hill (N.Y.). As to measure of 
 damages recoverable by owner under a counterclaim for certain 
 material not furnished by a contractor, see Woolfe v. Schaefer, 
 (1905) 103 App. Div. (N.Y.) 567. 
 
 The lien- is restricted by. the statute to the labor performed and 
 materials furnished. Loss of profits or damages for breach of 
 contract in refusing to allow the contractor to perform cannot be 
 the subject of a lien. O'Rielly v. Mahoney, (1908) 123 App. Div. 
 (N.Y.) 275. 
 
 The owner is not entitled to recover damages from the con- 
 tractor for loss of the rental value of the property and for deterio- 
 ration thereof which he claims resulted from failure to deliver cer- 
 tain articles. Woolf v. Schaefer, supra. If a building contract 
 provides a sum as liquidated damages in the event of failure to 
 complete work and give complete possession within stipulated 
 time and the contractor fails to complete work within the time 
 and the liquidated damages exceed the amount that would other- 
 
198 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 wise be due the contractor, there is no sum " justly owing " or 
 " payable " by the owner to the contractor, and a materialman 
 cannot succeed in an action. McManus t. Rothschild, 25 0. L. K. 
 138 ; Farrell v. Gallagher, 23 0. L. R. 130. 
 
 The Mechanics' Lien Act is not broad enough to extend to the 
 cost of preparing for work to be done upon a site, such as the as- 
 sembling of the necessary tools and equipment, although such" work 
 has been frustrated without fault of the contractor. Any such loss 
 must be treated as damages. British Columbia Granitoid, etc. Go. 
 v. Dominion Shipbuilding, Engineering and Dry Dock Co., (1918) 
 2 W. W. E. 919. 
 
 So long as only the Tights of the owner and principal contrac- 
 tor are to be considered, damages resulting from the default of 
 the contractor can always be set up as a defence (Taylor v. Mur- 
 phy, 148 Pa. 337; Heberlein v. Wendt, 99 111. App. 506), except 
 to the claim of the wage-earner. Farrell v. Gallagher, supra ; 
 McManus v. Rothschild, supra. The fact that materials were re- 
 ceived at the building will not prevent an owner from claiming 
 damages if they were defective. Strawn v. Cogswell, 28 111. 457. 
 Consequential damages resulting from a breach of the contract will 
 not give a lien, and if a contractor be wrongfully discharged the 
 damages to which he would be entitled would be the amount coming 
 to him on, the footing of the contract if he had been allowed to 
 complete the work. Farrell v. Gallagher, supra. See reference to 
 this case in Rice Lewis v. Harvey, 9 D. L. E. 114. See also Watrous 
 v. Davies, 35 111. App. 542 ; Landyshowshi v. Martyn, 30 Mich. 575 ; 
 Thomas v. Stewart, 132 (N.Y.) 580. 
 
 "Where liquidated damages are specified in the event of the con- 
 tract not being completed, the owner can retain such sum even as 
 against sub-contractors (McBean v. Kinnear, 23 Ont. E. 313; Julin 
 v. Ristow Pottes Mfg. Co., 54 111. App. 460), but not as against 
 wage-earners. Farrell v. Gallagher, supra, McManus v. Rothschild, 
 supra. In a suit by a sub-contractor to enforce a lien against the 
 owner of the building one American Court decided that the owner 
 

 
 DAMAGES. 199 
 
 may off-set any actual damages which he has sustained caused by 
 the contractor's failure to complete the building in time, provided 
 that the damages are such as may be said to have been in contempla- 
 tion of the parties when the contract was made. Fossett v. Rock 
 Island Lumber Co., (1907) 14 L. E. A. 918. If the work is not 
 completed owing to the default of the owner the contractor has a 
 lien for the work performed. Smith v. Norris, 120 Mass. 58. 
 
 Deduction by way of damages was not allowed when there had 
 been delay by the contractor, the lienholder not being the con- 
 tractor and the onus being on the owner to show that contractor 
 should not have been given an extension of time. Lundy v. Hen- 
 derson, 9 W. L. E. 327. 
 
 If the owner rescinds the contract before any work is done no 
 right to a lien will exist, the contractor's remedy being an action 
 for breach of contract. Horr v. Slairk, 35 111. App. 140. 
 
 A sub-contractor cannot acquire a lien on a claim for unliqui- 
 dated damages. Mayer v. Mutchler, 50 N. J. L. 162; Miner v. 
 Hoyt v. mil (N.Y.) 193. As to whether the sum mentioned in 
 a building contract is a penalty or liquidated damages, see 
 McManus v. Rothschild, (1911) 25 0. L. E. 138. See also Farmers 
 Advocate v. Master Builders Company, (1917) 3 W. W. E. at p. 
 1100; Dunlop v. New Garage, (1915) A. C. 79. Canadian General 
 Electric Company v. Can. Rubber Co., 52 Can. S. C. E. 349 ; 
 Renner v. Rosen, 45 D. L. E. 1. Where the contractor is entitled 
 to a quantum meruit, a fair and reasonable sum to compensate 
 him for the work undertaken and done, and for the responsibility 
 involved in the doing of it, should be added to the actual cost of 
 it to him. Rohl v. Pfaffenroth, (1915) 31 W. L. B. 197. 
 
 Loss of probable rentals from houses in course of construction, 
 because of the contractor's delay in completing, can be allowed to 
 the owner in abatement of the price only when a time has been 
 specified for doing the work or after the owner is given notice to 
 proceed with it. Elford v. Thompson, (1912) 1 D. L. E. 1, 19 
 W. L. E. 809. 
 
200 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 Compensation for expense incurred by owner, where there was 
 delay in completion of work, will be refused, unless sufficient ex- 
 cuse is shown by owner for incurring the expense. Brown Con- 
 struction Go. v. Bannatyne School District Corporation, (1912) 
 21 W. L. B. 827 (Man.). 
 
 The ordering of extras does not necessarily put the parties at 
 large and deprive the owner of his right to liquidated damages. 
 See Grace y. Osier, (1911) 16 W. L. K. 627, 19 W. L. E. 109, 326. 
 
 The lien is restricted by the terms of the statute to the labor 
 performed and materials furnished. Loss of profits or damages 
 for breach of contract in refusing to allow the contractor to per- 
 form cannot be the subject of a lien. O'Bielly v. Mahoney, (1908) 
 123 App. Div. ]ST.Y. 275. Damages suffered by a contractor by reason 
 of his being improperly deprived of his contract cannot be claimed 
 in a proceeding under the Mechanics' Lien Act, nor can such dam- 
 ages entitle a claimant to a lien on the land. Seaman v. Canadian 
 Stewart Co., 18 0. W. E. 56, 2 O. W. N. 576. 
 
CHAPTER XIV. 
 
 , Mechanics' Liens on Personal Pkoperty. 
 Their Nature, and Scope. 
 
 There are two species of lien known to the common law, namely, 
 particular liens and, general liens. A particular lien attaches to 
 property to secure a debt relating to that property. 
 
 Particular liens exist where persons have the right to retain 
 goods in respect to labor or money expended upon them, and these 
 liens are favored in law. Houghton v. Matthews, (1803) 3 B. & 
 P. 485. "As between debtor and creditor, the doctrine of lien is 
 so equitable that it cannot be favored too much." Jacobs v. La- 
 tour, (1828) 5 Birig. 133, per Best, C.J. All such specific liens 
 being consistent with the principle of natural equity are favored 
 by the law, which is construed liberally in such eas,es. Scarf e v. 
 Morgan, (1838) 4 M. & W. 283, per Parke, B.' 
 
 General liens attach to property to secure a general balance of 
 account due from the owner to the possessor, whether in respect to 
 that property or not. Anglo-Italian Bank v. Davies, L. B. 9 Ch. 
 D. 289. General liens, are founded on custom only, and are there- 
 fore to be taken strictly. Houghton v. Matthews, (1803) 3 B. & 
 P. 494; Bock v. Gorrissen, (1860) 2 De G. P. & J. 443. The liens 
 of bankers, factors, attorneys and wharfingers are general liens. 
 
 By the general custom of trade an artisan may have a lien for 
 his general balance (Saville v. Burchard, (1801) 4 Esp. 53), but 
 ordinarily a mechanic has no lien to secure a general balance due 
 him (Oumpston v. Haigh, (1836) 2 Bing. N". C. 449; Lilley V. 
 Bamsley, (1844) -1 C & K. 344. See distinction between 
 particular and general liens, — Blackburn v. MacDonald, 6 U. C. 
 C. P. 380. A general lien can no doubt be made by contract, but 
 it requires a clear contract. A recent instructive case on general 
 
202 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 and particular liens is Cassels & Co. v. Holden Wood Bleaching Co., 
 (1914) 84 K. B. B. 834. 
 
 The lien exists whether a price be specified in the contract or 
 not {Chase v. Westmore, 5 M. & S. 180; Townsend v. Newell, 14 
 Pick. 332), or whether the lien claimant does the work himself, or 
 in his own shop, or employs an outside mechanic to do the work 
 for him' (Webber v. Cogsw.ell,;2 E. & C. 47/2 Can. S. C. R". 15), 
 but a mere employee of the mechanic or contractor can have no lien 
 on the chattel. Hollingsworth v. Dow, 19 Pick. 228; Meyers v. 
 Bratispiece, 174 Pa. 119. A servant has no lien upon the personal 
 property of his employer, because his possession is not in his own 
 right but in , the right of his employer. Fitzgerald v. Elliott, 162 
 Pa. 118. See Zing v. Indian Orchard Co., 11 ,Cush. 231 ; Shaw 
 v. Ealer, 106 Mass. 448; State v. Goll, 32 N". J. L. 285. A packer 
 has a lien upon the goods packed for the work done. Hay ward v. 
 Grand Trunk B. Co., 32 IT. C. Q. B. 392. 
 
 It is one of the characteristics of the common law liens such 
 as a mechanics' lien on a chattel as distinguished from liens 
 created by contract or by statute, that, the former over-ride all 
 other, rights in the property to which they attach and the latter 
 are subordinate to all prior existing rights therein. , White V. 
 -Smith, (1882) 44 N". J. L. 105. The work done must be based 
 on a, valid contract. There must.be a legal obligation of the owner 
 to pay. LaBose v. Nichols, (1918) 103 Atl. 390. 
 
 A mechanics' lien is a particular or specific lien which con- 
 fers upon a mechanic who has bestowed labor, skill or expense 
 upon of in respect of the chattel of another, the right to retain 
 the chattel for his reasonable charges until' they are satisfied. The 
 i work done must be authorized expressly or impliedly by the owner 
 ' of the chattel. Bleaden y. Hancock, (1829) 4 C. & P. 152; Ham- 
 monds v. Barclay, (1802) 2 East 235; Chase v. Westmore, (1816) 
 5 M. & S. 180 ; Bevan v. Waters, Moo. and Malk. 236 ; Franklin 
 v. Hosier, (1821) 4 B. & Aid, 341; Bushfield Y.Wheeler, (1867) 
 14 Allen (Mass.) 139. As to authority implied from -circum- 
 stances, see White v. Smith, (1882) 44 N"; J. L f 105. 
 
mechanics' liens on personal peopehtt. 203 
 
 This lien extends to all labor and materials expended upon 
 the chattel, and to all the goods included in the contract, although 
 delivered to the mechanic in different parcels and at different 
 times, so long as there is an entire contract. Chase v. Westmore, 
 (1816) 5 M. & S. 180; Blake v. Nicholson, (1814) 3 M. & S. 167; 
 Saunderson v. Bell, (1834) 2 Cr. & M. 304; Morgan v. Congdon, 
 (1851) 4 N. Y. 552. This principle, would not apply where there 
 are distinct contracts {Marks v. Lahee, (1837) 3 Bing. N. C. 408), 
 but' where there is an entire contract for a certain sum to make 
 or repair several articles, the lien rests on one or two articles in 
 the possession of the lien claimant, not only for their proportion- 
 ate part of repairing the whole, but for the amount due for labor 
 on all the articles. Hensel v. Noble, 95 Penn. St. 345; Blake v. 
 Nicholson, (1814) 3 M. & S. 167. 
 
 This lien has been extended so as to include all money ex- 
 pended in the preparation of the means of doing the work. Conrow 
 v. Little, (1889) 115 N.Y.. 387, 393; Busfieldv. TT7ieeZe»v(1867) 14 
 Allen (Mass.) 139. In one case the lien claimants were a printing 
 . firm and had only executed a small portion of work upon a large 
 quantity of paper supplied them, when through the owner's default 
 the completion of the work was prevented. Danforth, J., in deliver- 
 ing the judgment of the court, said, in referring to the lien of the 
 claimants : " It attached the moment the paper came into the 
 possession of the defendants for the purpose of having work done 
 upon it, and' remains good until discharged by payment, not only 
 far labor literally expended upon the paper itself, as by printing, 
 but for any act done or labor performed or money expended in the 
 preparation of instrumentalities by which that labor was to be per- 
 formed, as types, cuts, illustrations, electrotypes and other things 
 of like nature and object." Conrow v. Little, supra. But see 
 judgment of Harrison, C.J., in Qurney t. MacKay, (1875) 37 U. 
 C. Q. B. at p. 336. 
 
 The lien extends only to the principal chattels placed in the 
 mechanic's hands to be worked up and not to the accessorial 
 
204 , THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 materials which may have been furnished, by the employer and left 
 upon the premises of the mechanic unusecj- Cumpston v. Haigh, 
 (1836) 2 Sc. 684, 5 L. J. C. P. 99. An unliquidated claim will 
 support a lien. McFatridge v. Eolstead, 21 N. S. E. 325. A 
 carriage' 1 builder who constructs a stationary top for a wagon and 
 fastens the same with bolts and nuts, has a lien on the whole 
 structure. Hardisty v. Cornell,. (1899) 40 N. S. E. 214. 
 
 The lien law leaves the question of trade fixtures where it finds 
 it. Coddington v. Dry Dock Co., (1863) 31 N. J. L. 477. "Trade 
 fixtures" are personalty and the security of the mechanic who 
 constructs them is in the enforcement of his lien upon the chat- 
 tel. Corroll v. Shooting the Chutes Co., (1900) 85 Mo.. App. 563; 
 Rohls v. McLean, (1913) 25 W. L. E. 358. 
 
 The Mechanics' Lien Acts existing in various provinces in 
 Canada contain provisions which deal with liens on personalty and 
 are intended to give an effectual remedy for the enforcement of 
 the lien. These provisions do not create the lien, as the lien always 
 existed, not only under the civil law (Belleau v. Pitou, 13 Quebec 
 L. E. 337), but also at common law (Chase v. Westmore, (1816)- 
 5 M. & S. 180; Ex p. Willoughby, (1881) L. E. 16 Ch. D. 604. 
 This lien attaches for the whole amount of indebtedness to any 
 part of the goods remaining in possession of the lienor. , Blake v. 
 Nicholson, (1814) 3 M. & S. 167. 
 
 The Mechanics' Lien Acts give the additional right of sale to 
 the lienholder. Under the common law the mechanic already had 
 the right to retain the chattel in his possession until his claim was 
 satisfied, but there was no efficient method of enforcing the lien, 
 as he did not have the right to sell the chattel, there being in that 
 respect a distinction between a mechanics' lien and an express 
 pawn or pledge of goods by the owner, as collateral security for a 
 loan of money, as the creditor might sell the pledge in the latter 
 case. Mulliner v. Florence, (1878) L. E. 3 Q. B. D. 484; Donald 
 v. Suckling, (1866) L. E. 1 Q. B. at p. 612; Doane v. Russell, 
 (1855) 3 Gray, (Mass.) 382; Folsom v. Barrett, (1902) 180 Mass, 
 439. 
 
mechanics' liens on pehsonax peopeety. 205 
 
 Ebsentials of the Lien. 
 
 To establish the lien at common law there must be, — 
 
 (a) A debt arising by implication of law out of a contract be- 
 tween the mechanic and the owner of the chattel (Hiscox v. Green- 
 wood, (1801) 4 Esp. 174), by the performance of which the me- 
 chanic bestows labor, skill or expense upon the article. Sawyer v. 
 Longford, -(1848) 2 C. & K. 697; Chase v. Westmore, (1816) 5 M. 
 & S. 180; Belleau v. Pitou, 13 Que. L. E. 337; Maries v. Lahee, 
 (1837) 3 Bing N". C. 408; Jackson v. Cummins, (1839) 5 M. & W. 
 342; Scarf 'e v. Morgan, (1838) 4 M.'& W. 270. 
 
 Several of the cases seem to hold, and some of the legal writers 
 on this subject apparently conclude, that it is essential to the 
 maintenance of the lien that the labor and skill bestowed on the 
 chattel should actually add value to it. But such a proposition, 
 perhaps, should not be accepted as absolute and inflexible. An 
 owner might employ a mechanic to alter a chattel, although the 
 alteration required would not add value to the article and might 
 in fact lessen its value except in the opinion of the owner. But if 
 the work be performed according to an agreement with the ownei, 
 the lien claimant should not be deprived of a lien because in 
 carrying out the instructions of the owner, and as result of doing 
 so, the article was, perhaps, rendered less valuable than before. 
 The rule, therefore, should possibly be stated in some such form 
 as that the labor and skill of the mechanic must impart additional 
 value .to the chattel or be intended by the owner to have that effect. 
 Section 51, post, which empowers the mechanic to sell the chattel 
 recognizes his right to a lien where his work had been done on the 
 thing " for the purpose of imparting an additional value to it." 
 
 The work on the chattel must be expressly or impliedly author- 
 ized by the owner of the chattel. HolKs v. Claridge, (1813) 4 
 Taunt. 807; Castellain v. Thompson, (1862) 13 C. B. N". S. 105; 
 32 L. J.C. P. 79; Small v. Robinson, (1879) 69 Me. 425, 31 Am. 
 Eep. 299. While the work on the chattel must be done under 
 
208 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 contract, the authority of the owner to do the work will be im- 
 plied from circumstances which would not raise an implication of 
 a contract by the owner to pay the charges to be enforced by a suit 
 against him, as where a wife allowed her husband to use her 
 wagon and he had necessary repairs made, it was held that the 
 mechanic had a lien therefor. White v. Smith, (1882) 44 N. J. 
 Law 105. 
 
 (b) Continuous possession, either actual or constructive, in the 
 lipn claimant, is essential to the existence of Me lien. .Such posses- 
 sion must have been acquired in due course of business or in some 
 other lawful way, and must not be inconsistent with the terms of 
 the contract under which the lien is claimed. A lien cannot be 
 acquired by fraud, misrepresentation, violence or any unlawful 
 act. Leg v. Evans, (1840) 6 M. & W. 36; Taylor v. Bolinson, 
 (1818) 2 Moore 730; Ex p.Willoughly, (1881) L. E. 16 Ch. D. 
 604; McMillan v. Byers, (1886) 3 Man. 861. The possession need 
 not be absolutely exclusive but must be uninterrupted, as even a 
 temporary voluntary relinquishment and subsequent resumption of 
 it is an abandonment of the lien. Hatton v. Oar Maintenance Co., 
 (1915) 1 Ch. 621; Forth v. Simpson, (1849) 13 Ad. & E. (N.S.) 
 680; Hartley v. Hitchcock (1816) 1 Stark. 408; Jackson v. Cum- 
 mins, (1839) 5 M. & W. 342; Dixon v. Daily, (1852) 11 U. C. Q. 
 
 B. 79; Rielly v. Mcllmurray, (1898) 29 O. E. 167; McNeil v. 
 Eeleher, (1865) 15 C. P. 470; Milium v. Milium, (1848). 4 U. 
 
 C. Q. B. 179 ; Weller v. Cogswell, 2 E. & C. 47, 2 Can. S. C. E. 15. 
 
 Cases are sometimes cited as inconsistent with the proposition 
 that continuous possession is esential to the maintenance of the 
 lien, but a careful examination of the facts will show that they are 
 not in conflict with this doctrine, but that in each case the chat- 
 tels were during all the time in the constructive possession of the 
 lien claimant. In one case (Weller v. Cogswell, supra) the 
 mechanic at Halifax sent the chattel to Boston to have it repaired 
 and it was held that the Halifax mechanic had a lien for the charge 
 made by the Boston mechanic. Unless there is a stipulation or 
 
mechanics' liens on personal property. 207 
 
 implication to the contrary in the contract the hen claimant is 
 not obliged to do the work himself, or to have it done upon his 
 own premises, but may employ some one outside his premises, and 
 in such a case, where the outside mechanic would be a sub-contrac- 
 tor, the outside mechanic would have no lien, there being no con- 
 tractual relation between him and the owner and no implied con- 
 sent to such a lien (Hollingsworth v. Dow, (1837) 19 Pick 228) 
 and his possession being really in the right of his own employer. 
 See Whittle v. Phelps, (1902) 181 Mass. 317. 
 
 (c) The possession must be lawful. Where one wrongfully 
 obtains possession of chattels and delivers them to a third party, 
 Who bestows money, skill or materials thereon the latter would 
 have no lien therefor as against the rightful owner (Hartop v. 
 Hoare, (1743) 3 Atk. 43; Bernal v. Pirn, (1835) 1 Gale 17, 20), 
 and even where a person lawfully obtains possession of a chattel, 
 as by gratuitous loan or bailment, and delivers the chattel to a 
 third person who repairs it, the latter has no lien for the repairs. 
 The right being inseparably coupled with possession, loss of pos- 
 session involves loss of lien, which once lost does not- re-attach on 
 re-possession of the article, unless the loss of possession be involun- 
 tary. McDonald v. Stirskey, (1879) E. & C. 520, N.S.; Canadian 
 Gas Power v. Schofield, (1910) 15 O. W. E. 847. 
 
 An involuntary surrender of possession does not defeat the 
 lien. Wilson v. Kymer, 1 M. & S. 157; Lane v. Old Colony R. 
 R. Co., 14 Gray (Mass.) 148; Lynch v. Tibbits, (1857) 24 Barb. 
 1ST. Y. 51. An agreement which is void from the beginning cannot 
 give rise to a lien, but an agreement to do something which is illegal 
 can give rise to the lien if the work is done. Scarf e v. Morgan, 
 (1838) 4 M. & W. 270, 282. On the other hand, regaining posses- 
 sion without the consent of the owner, after voluntarily parting 
 with the possession, will not revive the lien. Hartley t. Hitch- 
 cock, (1816) 1 Stark. 408; Howes v. Ball, (1827) 7 B. & C. 481. 
 
 Ee-delivery to the owner cannot be recalled even if made by 
 mistake {Dicas v. Stockley, (1836) 7 C. & P. 587; see Bligh v. 
 
208 THE LAW OF MECHANICS' LIENS IN .CANADA. 
 
 Davies, (1860) 28 Beav. 211), but if re-delivery is induced by 
 fraud the lien revives if possession is recovered. Bristol v. Wils- 
 more, (1823) 1 B. & C. 514; Hawes v. Crowe, (1826) Ey. & M. 
 414. 
 
 ■Some of the earlier English cases and a few cases decided in 
 the United States are sometimes cited by legal writers to sustain 
 the proposition that possession in order to confer the right to a lien 
 must be exclusive and unconditional. Such a proposition does not 
 seem to be clearly sustained by the governing decisions on this ques- 
 tion. , 
 
 It is difficult to state, what constitutes sufficient possession to 
 secure the right to lien, but while exclusive possession is not 
 strictly essential there must be such actual control and possession 
 \in the lien claimant as would be reasonable under the special cir- 
 cumstances of the case. This question of what constitutes suffici- 
 ent possession to give the right of lien can best be answered by a 
 comparison of two cases, — King v. Indian Orchard Go., (1853); 
 11 Cush. (Mass.) 231 ; and Roberts v. The Bank of Toronto, 
 (1894) 25 Q. E. 194, 21 A. E. 629: In the former case it was 
 decided that a manufacturer of bricks burnt on the land of an- 
 other, but of which the manufacturer has no lease and no other 
 interest than the right to enter and make the bricks, has no such 
 possession of the bricks as to give him a lien thereon for his labor. 
 In that case the court (per Bigelow, J.) said : " Upon the undis- 
 puted facts in this case it appears to us that the plaintiff fails 
 to show any such possession of the property in question as will 
 support the lien which he set up in order to maintain this action. 
 In the first place he shows no right or interest in himself as owner, 
 lessee, or tenant of the possession of the yard in which the bricks 
 were made and burned. 
 
 " Upon these facts it is manifest that the plaintiff never had 
 any exclusive and unconditional possession of the property. It 
 was, at most, only a mixed possession with Stearns or rather, a 
 license to the plaintiff to enter upon ; and use the yard of Stearns 
 
mechanics' liens on personal property. 209 
 
 for the purpose of making and burning the brick. It is entirely 
 clear that such a restricted and limited possession is insufficient 
 to support a lien. It amounts to nothing more than the ordinary 
 transaction of work done by one person in the manufacture or 
 repair of articles for another upon the premises of the latter. The 
 workman in such a case has to a certain extent possession of the 
 property upon which his labor and services are expended, but it 
 is a qualified and mixed possession which can form no valid basis 
 for a lien." 
 
 It is apparent that in this case the claimant failed to make out 
 his own actual possession, and" moreover, that as an employee he 
 could have no lien upon property of his employer. State v. Goll, 
 (1867) 32 N. J. L. 285. 
 
 In the case of Roberts v. Batik of Toronto, the plaintiff was 
 employed to manufacture bricks for another in a brickyard belong- 
 ing to the latter, of which, however, the plaintiff held possession 
 foT the purpose of his contract, and remained and was in posses- 
 sion of the bricks. at the time of their seizure by the sheriff under 
 an execution against the owner of the brickyard, who immediately 
 after such seizure made an assignment for the benefit of creditors. . 
 It was held that the plaintiff was entitled to a lien upon the bricks 
 in priority to the execution and assignment for the benefit of credi- 
 tors, and also in priority to the claim of the chattel mortgagee, 
 though his mortgage cove.red brick in course of manufacture dur- 
 ing its continuance. 
 
 On appeal it was contended that exclusive possession must be 
 shown. The judgment, however, was confirmed, and Haggerty, 
 C.J.O., in the course of his judgment, said: "The possession 
 necessary to entitle him to his common law lien must be such a 
 reasonable, clear and actual possession as the nature of the case 
 will admit." 
 
 An examination of two other cases will throw further light on 
 the question of sufficiency of possession. In Shaw v. Kaler, (1871) 
 106 Mass. 448, it was held that a mechanic constructing articles 
 
 MX. — 14 
 
210 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 of furniture, under a contract by which his employer furnished, 
 the materials and bench room, could maintain an action for the 
 conversion of the articles against one who took them from his 
 possession claiming under an alleged mortgage from the em- 
 ployer, of the existence of which there was no evidence. In this 
 case the crucial fact was established that the articles were retained 
 in the actual possession of the mechanic in the employer's work- 
 shop. In another case (McLachlan v. Kennedy, (1889) 21 N. S. 
 E. 271), defendant wrote to plaintiff proposing an arrangement 
 for quarrying and burning lime on plaintiff's land. Eeeeiving no 
 reply, he entered and burnt lime. . The plaintiff afterwards rati- 
 fied defendant's action and agreed to buy all the lime he burned 
 and to supply the barrels. Plaintiff having refused to accept a 
 lot of lime on the ground that it was not delivered within the time 
 agreed on, the defendant shipped it to another party, and plain- 
 tiff then brought action for the conversion of his property, and it 
 was held that the action could not. be maintained, the defendant's 
 lien on the lime being undischarged. 
 
 In a later case, in Ontario (Hachett v. Coghill, (1903) 2 0. 
 W. E. 1077), Boyd, C, said: "Later cases show explicitly that 
 one necessary ingredient of lien is that the person claiming it 
 should have full possession, meaning thereby that the claimant 
 must have exclusive and continuous possession, and if the things 
 are moved from the place of repair it must be to a place where 
 absolute and entire dominion over them can be retained, a thing 
 which can rarely be done." See Mors-le-Blanch v. Wilson, L. E. 
 8 C. P. 227, at 238 ; Jfiz p. Willoughby, 16 Ch. D. 610, 612. In 
 support of this proposition some English eases are cited by this 
 eminent judge, and the case of Somes v. British Empire Shipping 
 Co., (1860) 8 H. L. C. 338, is distinguished. The facts in 
 Hachett v. Coghill, as stated by the judge, were as follows : " The 
 plaintiff's claim is in respect of repairs done upon their ves- 
 sels when they were hauled out upon his ways in the har- 
 bor at Wiarton. After the work was done the vessels were respec- 
 tively restored to the water and taken first to the dock belonging 
 
mechanics' liens on personal peopebtt. 211 
 
 to Gastner and afterwards to the old dock erected by the town and 
 which was in common and public use even after the erection of a 
 new dock by the town about two years ago. While lying at the 
 old dock the plaintiff put lock and chain upon the dredge and noti- 
 fied the owners, but before this he says ,that he tied up the vessels 
 at this dock and claimed to be in possession of them. The evi- 
 dence shows that the plaintiff had permission to use Castner^s 
 dock from the owner, and the old dock from the town authorities 
 by verbal license for the purpose of his business in repairing ves- 
 sels. The legal possession of the water lots on which the moor- 
 ing existed at the time of the dispute as to possession which is now 
 being litigated was vested in the Crown. It is further in evidence 
 that the owners had a person in possession of the dredge for the 
 purpose of looking after it and keeping the machinery in proper 
 order and he was on the boat at the time it was chained up by 
 the plaintiff." Upon this state of facts it was impossible to sup- 
 port the claim of the plaintiff to a lien and the decision against 
 the plaintiff cannot be questioned. The general statement of law, 
 however, in the case, as reported, that a claimant must have exclu- 
 sive possession, seems at variance with some English judgments 
 and at least one Canadian decision. 
 
 In one English case (Crowfoot v. London Dock Co., (1834) 
 2 Cr. & M. 630), which is not cited in this Ontario case, but, like 
 it, was in connection with the repair of a ship, Parke, B., said (at 
 p: 655) : "It is impossible to lay down any precise rule as to the 
 sort of possession which is necessary in order to give validity to 
 the lien. Each case must, depend a good deal upon its own cir- 
 cumstances, and here the company had possession so far as the 
 nature of the transaction would admit. Any more exclusive pos- 
 session on their part would have defeated! the whole object of the 
 advances which it was, the purpose of the lien to secure. It would 
 be going too far to say that the law] rendered such exclusive pos- 
 session necessary ; and the case which has been cited (Manton v. 
 Moore, 7 T. E. 67), though not exactly on the same subject, is 
 nevertheless fairly relied upon as showing that the law does not 
 
212 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 require it. Though Streather has been permitted to use the en- 
 gines and materials for a particular purpose, they remained on the 
 defendant's premises and under their control." Hackett v. Goghill 
 also omits any reference to the case of Roberts v. Bank of Toronto, 
 (1894) 25 0. B. 194, 21 0. A. E. 629, where the Ontario Court on 
 appeal did not uphold the contention that possession must be exclu- 
 sive. The decision in Hackett y. Goghill was appealed to a Divi- 
 sional Court, which upheld the trial judge's finding of fact. See 
 3 0. W. E. 827. See also Keystone M. Go. v. Close, (1917) 3 Am. 
 L. E. 857; Bank of Montreal v. Potts, (1892) 91 Mich. 342. Aban- 
 donment of possession forfeits the lien. Troop v. Hart, 7 Can. 
 S. C. E. 512; Katzman v. Mannie, (1919) 46 0. L. E. 121. 
 
 If possession is parted with the lien is gone in respect to third 
 persons, although it was stipulated between the parties that the 
 lien should continue notwithstanding the removal of the property. 
 McFarland v. Wheeler, 26 Wend. N. Y. 467; Oakes v. Moore, 
 (1844) 24 Me. 214. Whether possession has been parted with or 
 not is a question of fact. Bernal v. Pirn, (1835) 1 Gale 17. As 
 to facts which would constitute insufficient possession, see 
 McEenzie v. Mattinson/iO N. S. E. 346. 
 
 (d) The work must be work of skill. The principle of a com- 
 mon law lien is not applied to every kind of labor done on a chat- 
 tel but extends only ,to skilled workmen exercising a trade or art. 
 The proprietor of a garage is not entitled to a lien on an auto- 
 mobile for keeping and caring for same in his garage, nor for sup- 
 plies such as gasoline and oil furnished by him to the owner while 
 the machine was being kept in the garage. Behm v. Viall, (1914) 
 185 111. App. 425. But a workman who makes repairs to ah auto- 
 mobile has thereon a right of retention, and in Quebec his claim 
 for repairs constitutes a privileged debt which takes rank by pre- 
 ference on the proceeds of the sale of the vehicle. He has the right 
 to cause a conservatory attachment to issue for the purpose of 
 giving effect to his privilege. Morin v. Garbi, (1916) 50 Que. S. 
 C. 273. A lien may be had for the repair of automobiles. Gardner 
 v. Le Fevre, (1914) 180 Mich. 219; Smith v. O'Brien, (1905) 94 
 
MECHANICS' LIENS ON PERSONAL PROPERTY. 213 
 
 N". Y. Supp. 673, affirmed, 103 App. Div. '(NY.) 596. It would 
 not apply to ■ an ordinary" laborer for doing such work as cutting 
 wood {McMillan, V. Byers, (1886) 3 Man. L. B- 361), nor to an 
 employee of a farmer in respect to a crop which the employee has 
 harvested. McDearmid v- Foster, 12 Pac. Eep. 813. In ordinary 
 .cases the workman may accomplish the work through the medium 
 of inferior agents and workmen, but if the work is a work of art 
 and genius and the contract is founded upon the personal talent 
 of the artist he impliedly undertakes to perform the work him- 
 self and may not entrust it to one less skilful. Addison on Con- 
 tracts, 11th ed. p. 888; Bohson v. Prummond, (1831) 2 B. & Aki. 
 308; British Wagon Co. v. Lea, (1880) 5 Q. B> D. 149. 
 
 To maintain a lien a mechanic must bring himself within all 
 the foregoing equally essential conditions. 
 
 A person who agrees with the owner of an automobile to main- 
 tain the car, supply a chauffeur, and care for the machine, at a 
 certain amount a week for his charges, has no lien, the car being 
 merely maintained in the same condition, there being no improve- 
 ments in it and the owner, under the agreement, being permitted 
 to take it out of the other's possession at any time, Hatton v. Car 
 Maintenance Co., (1914) 30 Times L. B. 375, (1915) Ch. mi. As 
 to periodical use of article by owner defeating lien, see also Glarks- 
 burg Gasket Co. v. Phares, (1917) 3 Am. L. E. 660; 'Smith v. 
 O'Brien, (1905) 103 App. Div. (NY.) 596. 
 
 By a hire-purchase agreement the plaintiff let a dog-cart to a 
 person who in the course of time sent the cart to be repaired to the 
 defendant, a coach-builder. The agreement contained a clause by 
 which the hirer undertook " to keep and preserve the dog-cart from 
 injury." Some instalments under the agreement being unpaid, the 
 plaintiff sought to recover the cart, but the defendant claimed a lien 
 upon it for the cost of the repairs, and it was held that, under the 
 circumstances, the hirer had authority to send the cart to be re- 
 paired, and, therefore, that the defendant's lien was good, not only 
 against the hirer, birt also, against the plaintiff. Keene v. Thomas, 
 (1905) 1 K. B. 136. 
 
214 the law of mechanics' liens in canada. 
 
 Waiver ok Loss of Lien. 
 
 The right to a lien may- be lost or waived, expressly or by impli- 
 cation. 
 
 A lien does not exist where the contract between the parties or 
 the circumstances are inconsistent with the notion that one was 
 intended. Ritchie v. Grundy, (1891) 7 Man. L. E. 532. . When 
 possession is lost, the lien is lost. Fiddes v. Henderson, C. Mss. 
 (NtB.). Conduct inconsistent with the existence or continuance 
 of a lien will constitute a waiver of it. " It is neither a jus in re 
 nor jus ad rem and it may be waived by any act or agreement be- 
 tween the parties by which the right is given up." Dempsey v. 
 Carson, (1862) 11 TJ. iC. C. P. 462, per Draper, C.J. Thus the 
 lien will be waived by an agreement relating to the mode or time 
 of payment, inconsistent with the right of lien. Grawshay v. Horn- 
 fray, 4 B. & Aid. 50 ; Fisher v. Smith, (1878) 4 App. Cas. 12 ; 
 Rollins v. Bowman Cycle Co., (1904) 89 N. Y. 8. 289, 96 App. 
 Div. 365; but a sale of part of property does not involve loss of 
 lien on the remainder. Steeves v. Cowie-, (1903)" 40 N. S. E. 401; 
 a lien will be waived by claiming the ownership of the goods 
 (Boardman v. Sill, (1808) 1 Camp. 410n.) ; claiming to hold 
 them for a debt due from a third party (Diflcs v. Richards, (1842) 
 4 M. & G. 574) ; refusing to deliver up the goods on the ground 
 that they belong to a third person {Andrews v. Wade (Penn.), 6 
 Atl. Eep. 48) ; stipulating to receive other work in future (Stick- 
 ney v. Allen, (1858) 10 'Gray (Mass.) 352) ; making a binding 
 agreement to restore possession (The Wiles Laundering Co. v. 
 Hahlo, (1887) 105 1ST. Y. 234) ; agreeing to receive payment 
 after delivery (Lee v. Gould, 47 Pa. St. 398) ; pawning the chat- 
 tel (Gallaher v. Cohen, 1 Brown (Penn.) 43). Any agreement 
 which is inconsistent with the lien claimant's right to retain the 
 chattel until payment negatives his claim of lien at common law. 
 Canada Steel & Wire Go. v. Ferguson, (1915) 21 D. L. E. 771. The 
 defence of liens can only be pleaded when there has been no conver- 
 
mechanics' liens on personal property. 215 
 
 sion {Neville v. Schofield, 2 N.B.E. 435, 5 N.B.B. 124) ; a lien will 
 be waived by setting up a claim which has no relation to the lien 
 (Weeks v. Goode, (1859) 6 C. B. N. S. 367) ; destroying part of 
 the goods (Gurr v. Cuthbert, (1843) 12 L. J. Exch. 309). See 
 Chew v. Traders Bank of Canada, (1909) 19 0. L. E. 74; attempt- 
 ing to sell the chattel (Vincent v. Gonklin, 1 E. D. Smith (N.Y.) 
 203; Bean v. Bolton, 3 Phila. (Pa.) 87); (see Mulliner v. Flor- 
 ence, (1878) 3 Q. B. D. 484) ; agreeing to do the work on credit 
 (Riatt v. Mitchell, (1815) 4 Camp. 146) ; agreeing to do certain 
 work to be performed during the year and to receive payment 
 quarterly (Stoddard, v. Huntley, (1831) 8 New Hampshire 441, 
 31 Am. Dec. 198; Hatton v. Car Maintenance Co., (1914) 30 
 Times L. E. 275 ; alleging some independent ground without 
 claiming a lien (Folsom y. Barrett, 180 Mass. 439; Bowden v. 
 Duggan, 91 Maine 141). Agreeing to wait for payment until the 
 owner has collected insurance money covering the accident which 
 caused the damage will prevent the repairer from claiming a lien. 
 Lezenik v. Greenberg, (1916) 157 N.Y. Supp. 1093. Taking particu- 
 lar security for the debt (Hewison v. Guthrie, (1836) 2 Bing. N\C. 
 759; Pinnock v. Harrison, (1838) 3 M. & W. 539; Davies v. Bow- 
 sher, (1794) 5 D. & E. 488; Cornell v. Simpson, (1809) 16 Ves. 
 275). See Stevenson v. Blakelock, (1813) 1 M. & S. 535 ; Bathurst 
 Lumber Co. and Nepisiquit Lumber Co., (1911) 11 E. L. E. 552. 
 This last proposition, however, depends entirely upon the special 
 circumstances of each case, as the taking of other security does not 
 necessarily import an abandonment of the lien. It is a question of 
 intention to be , ascertained from the relation of the parties and the 
 special circumstances. Be Taylor, (1891) 1 Ch. 590, 597; fie Bowes, 
 (1886) 33 Ch. D. 586. The question to be determined is one of 
 intention, viz., 'Was the security intended to be cumulative or sub- 
 stitutional? The presumption of intention will not be the same 
 in all trades, Halsbury's Laws 1 of England, 257. Lord Westbury 
 in In re Leith's Estate, Chambers v. Davidson, (1886) L. E. 1 
 P. C. 296, 305, said : " But lien is not the result of an express con- 
 
216 THE LAW OF MECHANICS' LIENS IN CANADA. , 
 
 tract; it is given by implication of law. If therefore a mercantile 
 relation which might inyolve a lien is created by a written contract, 
 and security given for the result of the dealings in that relation, the 
 express stipulation and agreement of the parties for security ex- 
 cludes lien and limits their rights by the extent of the express con- 
 tract they have made. Expressum-facit cessare taciturn. If a 
 consignee takes an express security, it includes general lien." The 
 editor of Smith's Mercantile Law, 10th ed., p. 700, questions whe- 
 ther these words are not too wide. See Wylde v. Radford, (1864) 
 33 L. J. Ch. 51; Davis v. Humphrey, (1873) 112 Mass. 309, 315; 
 Angier v. Bay State Co., (1901) 178 Mass. 163; Ritchie v. 
 Grundy, (1891) 7 Man. GL. E. 532; Fisher v. Smith, (1878) 4 
 App. Cas. 1. 
 
 In an important English case {Angus v. McLachlan, (1883) 
 L. E. 23 Ch. D., at 335), Kay, J., said: " It is not the mere tak- 
 ing of a security which destroys the lien, but there must be some- 
 thing in the facts of the ease or in the nature of the security which 
 is inconsistent with the existence of the lien and which is destruc- 
 tive of it." In this case and some of the other eases previously 
 cited on this point, the lien was not a mechanics' lien but the deci- 
 sions upon the question of waiver would be equally applicable to 
 mechanics' lien cases. See Re Morris, (1908) 1 K. B. 473, 477. 
 A lien is not lost by deposit of the chattel with a third party on 
 behalf of the lienor. Levy v. Barnard, (1818) 8 Taunt. 149. See 
 Reeves v. Capper, (1838) 5 Bing N". iC. 136. 
 
 The claim of lien cannot be supported where the particular 
 transaction shows that there was no intention that there should 
 be a -lien, but some other security is looked to and relied on. 
 United States v. Barney, 24 Fed. 1014. 
 
 An examination of all the English cases leads to the conclusion 
 that this question of waiver of the lien is a question of fact; the 
 cardinal point being whether the new security was intended to be 
 cumulative or substitutionary, and to determine that point all the 
 circumstances of the case must be weighed. 
 
mechanics' liens on personal propebty. 217 
 
 The United States law on this question was thus formerly 
 stated : " The effect of taking security upon a lien is a matter 
 upon which the courts have not agreed, the better opinion being 
 that such an act is presumptive of a waiver of the lien but may 
 be shown to have been given! with other intention." 13 Am. & Bng. 
 Ency. of Law, p. 622, 1st ed. But a later and more accurate state- 
 ment of the law is to be found in the second edition of that work 
 where the general rule is stated to be that the mere taking of other 
 security for a debt secured by a lien does not constitute a waiver 
 of the lien, and that to constitute a waiver an intention to waive 
 the lien must appear from the circumstances of the case, or from 
 the nature of the security taken. See vol. 19, p. 29, 2nd ed. 
 
 A person may lose his lien by misconduct. In such case the 
 owner's right to possession revives. Scott v. Newington, (1833) 
 M & Bob. 252. See Jones v. Cliffe, (1833) 1 C & M. 540. A lien 
 may also be lost where the lien claimant uses the article as his' own. 
 Bruntnall v. Smith, (1896) 166 Mass. 253. When the debt in 
 respect to which the lien is claimed is satisfied the lien is lost. If 
 for instance, a person releases the debt by executing a composition 
 deed the lien is lost. Cowper v. Green, (1841) 7 M. & W. 633. 
 
 A release of part of the goods does not waive the lien upon the 
 rest for the whole amount. Morgan v. Congdon, 4 N. Y. 552; 
 Wiles Laundering Co. v. Hahlo, 105 N. Y. 234; Barker v. Brown, 
 138. Mass. 340. ' 
 
 Honestly claiming more than is due does not waive the lien, 
 Folsom v. Barrett, 180 Mass. 439. See Kerford v. Mondel, 28 
 L. J. N. 'S. 303. , • 
 
 Attachment, Execution ok Assignment. 
 
 There is some conflict in the decisions and opinions upon the 
 question whether an attachment or levy on execution upon the 
 property upon which the lien is claimed, in a suit brought by the 
 lien claimant upon the lien claim, is a waiver of the lien. One 
 American authority, hummus (sec. 24), inclines to the view that 
 
218 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 such an act is not a waiver of the lien, and he cites a case (Lam- 
 bert v. Nicklass, (1898) 45 W. Va. 527) which decides that levy- 
 ing an attachment upon the property held under the hen does not 
 waive the lien. There are conflicting decisions in Massachusetts 
 on this question. Townsend v. Newell,' (1833) 14 Pick. 332; cf. 
 Leg. v. Willard, (1835) 17 Pick. (Mass.) 140. On the other hand, 
 it has been decided in England that a person having a lien upon 
 chattels loses it by having them levied on under an execution upon 
 the lien debt. Jacobs v. 'Latowr, (1828) 5 Bing. 130. Boisot, sec. 
 780, cites a Canadian case (Lake v. Biggar (1862) 11 U. 'C. C P. 
 170) as an authority deciding "that an artisan's having a lien on 
 a chattel would not prevent his seizing it under an execution for 
 a debt which constituted the lien nor would his asserting such a 
 right be inconsistent with his lien or a waiver of it," but a close 
 examination of this case shows that the judgment of the County 
 Court Judge on that point is not directly confirmed by the Appeal 
 Court, which merely decides that there was no evidence of tender 
 or of waiver of tender. Inasmuch as possession is essential to 
 maintenance of a lien it is difficult to understand how a lien claim- 
 ant can be considered as retaining possession when the chattel is 
 in custodia legis. The decision in Jacobs v. Latoiir was based 
 on that principle, that the lien claimant had parted with the pos- 
 session of the chattel. The weight of authority favors the view 
 that when a lien claimant issues an execution and the sheriff 
 levies upon the chattel the lien is lost. It might be said that the 
 lien claimant still has possession through his agent, the sheriff, but 
 if so, he has so altered the nature of his possession as to destroy 
 his lien. Possession must vest in the sheriff to enable him to sell 
 the chattel, and when the lien claimant authorizes the levy he is 
 deemed to have abandoned the possession by virtue of his lien. 
 See also Crowfoot v. London Dock Co., (1834) 2 !Cr. & M. 637; 
 McMillan v. Byers, (1886) 3 Man. L. E. 361; and Be Coumbe, 
 Cockbum and Campbell, (1877) 24 Gr. 519, where a lienor was 
 held to have waived his lien on lumber by procuring the lumber to 
 be taken in execution at his own suit. 
 
MECHANICS'' LIENS ON PERSONAL PKOPEETY. ' 219 
 
 The interest of a lienholder is not attachable as personal pro- 
 perty, as it is neither property nor a debt (Yungmann v. Bries- 
 mann, (1892) 67 L. T. 642; Kittredge v. Sumner, (1820) 11 Pick. 
 (Mass.) 50; Thames Iron Works v. Patent Derrick Co., (1860) 
 1 J. & JEL 93) ; and for the same reason it cannot be assigned or 
 transferred (Daubigny v. Duval, (1794) 5 T. E. 604), except 
 in the case of a dissolution of a partnership where the firm was 
 entitled to a lien. In such case one partner may assign his inter- 
 est in the lien to the other who may enforce the same in the name 
 of the firm. Busfield v. Wheeler, (1867) 14 Allen (Mass.). 139; 
 Holly v. Huggeford, (1829) 8 Pick. (Mass.) 73. As to a sheriff's 
 right to seize property covered by a lien, under an execution 
 against the party claiming the lien, see Young v. Lambert, (1870) 
 L. E. 3 P. C. 142; 39 L. J. P. C. 21. 
 
 On the same principle as that which applies to a levy under 
 execution, a replevin destroys the lien acquired. Braddyl v. Ball, 
 (1785) 1 Br. C. ;C. 427. 
 
 Tender and Discharge of Lien. 
 
 The lien is discharged by an unconditional tender of the amount 
 due. The Eider v. Norddeutscher 'Lloyd, (1893) 62 L. J. P. 65; 
 69 L. T. 622; Willis v. Sweet, (1888) 20 N". S. E. 449; Fvlsom v. 
 Barrett, 180 Mass. 439 ; Davison v. Mulcahy, 19 N. S. E. 209. In 
 one case the owner, after tender of the amount due and its refusal 
 by the mechanic, broke open the mechanic's shop to recover the 
 chattel and the court held that he thereby committed trespass. 
 Davison v. Mulcahy, supra. One having the right to the disposal 
 of an automobile, Left by another at a garage, cannot maintain 
 replevin against the owner of the garage who has a lien for repairs 
 and storage, without proof of prior payment of the. proper charges, 
 or tender and refusal, or such conduct on the part of the garage 
 keeper as estops him to claim either that he has a lien or that the 
 plaintiff has made no- sufficient tender. Doody v. Collins, (1916) 
 223 Mass. 332. As to sufficient evidence of refusal of tender, see 
 Eartney v. Boulton, (1914) 7 Sask. L. E. 97. 
 
220 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 In an Ontario case where the mechanic agreed to accept part 
 payment in cash and a cognovit for the balance, it was held that 
 his lien was lost on payment of the cash agreed upon and tender 
 of the cognovit. Dempsey v. Carson, (1862) 11 U. C. 0. P. 462. 
 
 In McBride v. Bailey, (1857) 6 U. C. C. P. 523, previous cases 
 on the subject of waiver of tender are' fully reviewed. 
 
 The fact that a person was claiming to hold the goods for a 
 certain tenable claim and for an untenable claim does not dispense 
 with the necessity of tender of the amount of the tenable claim. 
 Llado v. Morgan, 23 U. C. C. P. 517 ; The Queen v. Hollmgs- 
 worth, (1899) 2 Can. Cr. Cas. 291. >See Nevils v. Schofield, (1881) 
 21 N. B. R. 124. A tenable claim of lien cannot be set up in an 
 action of trover where it was not made when the goods' were de- 
 manded. Llado v. Morgan, 23 IT. C. C. P. 517. 
 
 Where work was done under a contract for cash payment, an 
 offer to endorse the amount of the bill on an acceptance of the 
 mechanic is not such a tender as will terminate the lien. Clarke 
 v. Fell, (1833) 2 L. J. K. B. (N,S.) 84. 
 
 Estoppel. 
 
 The lien may be lost by estoppel where its assertion would 
 operate as a fraud on innocent parties, or where some one is in- 
 duced by 'the act or neglect of the lienor to rely upon the non-exist- 
 ence of the lien. Howard v. Tucker, (1831) 1 B. & Aid. 712; 
 Moyes v. Kimball, 92 Maine 231; Fowler v. Parsons, 143 Mass. 
 401. Assertion of payment will operate as estoppel as against those 
 who have acted on it. Pooley v. Budd, (1851) 7 B. L. & Eq. 229; 
 Woodley y. Coventry, (1863) 32 L. J. Ex. 185 pt. 1. 
 
 Any act or neglect of the lien claimant which induces a person 
 to rely upon the non-existence of the lien, may defeat the lien by 
 estoppel. Fowler v. Parsons, (1887) 143 Mass. 401; Hinckley y. 
 Greany, (1875) 118 Mass. 595. See Vulcan Iron Works Co. v. 
 Rapid City Farmers E. Co., (1894) 9 Man. L. E. 577. Reason- 
 able delay in accepting tender will not forfeit the lien. Eckhard 
 y. Donohoe, 9 Daly (N.Y.) 214. 
 
mechanics' liens on peesonal property. 221 
 
 Even where the lien claimant demands a larger sum than is 
 due for the lien, a tender of the sum actually due is necessary to 
 discharge the lien. Kendal v. Fitzgerald, (1862) 21 IT. C. Q. B. 
 585. If the owner of ah article is willing to satisfy all charges 
 incurred in respect of them, the article cannot be retained until 
 payment of a general balance due to the person having the par- 
 ticular lien. Jones v. Tarleton, (1842) 9 M. & W. 67. Hag- 
 gerty, J., in that ease said : " Mr. Eccles' argument for the plain- 
 tiff is that by insisting on holding the goods, not only for the sum 
 properly due, but for charges not legally demandable, the lien is 
 waived and forfeited, without the necessity of any tender. I have 
 hitherto understood the law to be that where the holder of goods 
 having a clear lien, sets up not only that lien, but also another 
 claim against the plaintiff, of an untenable character, the true 
 owner should' tender the proper amount due or an amount reason- 
 ably sufficient therefor, unless the defendant either expressly or 
 by fair implication, gives the owner to understand that he dis- 
 penses with a tender or offer of any sum less than that which he 
 advances as his claim." See also Green v. Shewell, (1838) 4 M. 
 & W. 277. 
 
 In another case, Allen v. Smith, (1862) 12 C. B. N. -S. 645, 
 Willes, J., said : " If the defendant had been shown , the lesser 
 amount he might have been willing to have accepted it." See 
 Nevihs v. Schofield, (1881) 21 N. B. E. 124. 
 
 lief erring to this question of waiver, in an English case (White 
 v. Gainer, (1824) 2 Bing. 23), Best, C.J., said: "I agree in 
 the law as laid down in Boardman v. Sill, but not in the appli- 
 cation of it now proposed. In that case it was held that if 
 a party, when goods are demanded of him, rests his refusal upon 
 grounds other than that of lien, he cannot afterwards resort to his 
 lien as a justification for retaining them. Therefore, if, even in 
 this case, the defendant when applied to to deliver the goods had 
 said, ' I bought them, they are my property,' I should have holden 
 there was a waiver of his lien, but he said no such thing, but only, 
 
222 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 'If I deliver them up I may as well give up every transaction of 
 my 'life.'" 
 
 If the lien claimant is prevented hy the owner from complet- 
 ing his work, the lien continues. Lilley v. Bamsley, 1 'C. & K. 
 344. It also continues if the reason why the lienor ceased to work 
 upon the chattel 1 was that the owner failed to furnish materials 
 therefor according to his agreement. Busfield v. Wheeler, (1867) 
 14 Allen (Mass.) 139. 
 
 Bringing suit on the claim secured by the lien and attaching 
 other property of the debtor is no waiver of the lien. Palmer v. 
 Tucker, 45 Me. 316; Barnard v. Wheeler, 24 Me. 412. As to 
 delivery of goods by a person who has a lien thereon to another 
 person so as to preserve his lien,, see McCombie v. Davies, 7 Bast 5. 
 
 An agreement to waive an existing lien,', where the lienor re- 
 tains possession, is invalid unless supported by consideration. 
 Danforth v. Pratt, 42 Maine 50 • Hollins v. Hubbard, 165 N. Y. 
 534. 
 
 A- set-off cannot be considered as destroying a lien unless it 
 be so agreed upon between the parties. Pinnoch v. Harrison, 
 (1838) 3 M. & W. 532; Clarke v. Fell, (1833) 4 B. & Ad. 404; 
 Wegulin v. Cellier, (1857) L. B. 6 H. L. 286. See Boxburghe v. 
 Cox, (1881) 17 ,€h. D. 520. 
 
 An unliquidated claim will not destroy a lien. McFatridge v. 
 Holstead, (1889) 21 N". S. B. 325. 
 
 Delivery by the lien claimant to a third person, as depositary 
 or bailee for safe custody, generally does not affect the lien 
 (McLachlan v. Kennedy, (1889) 21 N. 8. B. 271), particularly if 
 such third person re-transfers the property to the lien claimant 
 before the lien is sought to be enforced. Milbum v. Mtiburn, 4 
 tJ. C. Q. B. 179. 
 
 If a chattel is fraudulently or unlawfully taken out of posses- 
 sion of the lien claimant by the owner and the lien claimant 
 without force retakes the chattel the lien revives. Wallace 
 v. Woodgate, (1824) By. & M. 193. In this case the lien 
 was that of a livery stable keeper but the same principle 
 
mechanics' liens on peesonal peopebty. 223 
 
 would apply to a mechanics' lien. See also Dicas v. Stockley 
 (1836) 7 C. and P. 587; Wilson v. Kymer, (1813) 1 M. & S. 157; 
 Re Garter, (1885) 55 L. J. :Ch. 230; Bigelow v. Eeaton, 6 Hill. 
 (N.Y.) 43. A lien is always, forfeited by delivery but a delivery 
 procured by fraud is not within the rule. Pocock v. Novitz, 
 (1912) 21 W. L. E. 418 (Sask.) ; Walcott v. Keith, 22 N". H. 196. 
 
 The lienor may by legal proceedings recover the property even 
 against the owner. Sewell v. Nicholls, 34 Maine 582; Brewster v. 
 Warner, 136 Mass. 57. 
 
 A lien is not destroyed though the demand in respect of which 
 it arises is barred by the Statute of Limitations. It is the remedy, 
 not the debt itself, that is discharged by that statute. Spears v. 
 Hartley, (1819) 3 Esp. 81; Biggins v. Scott', (1831) 2 B. & Ad. 
 413; Be Broomhead, (1847) 16 L. J. Q. B. 355; Cwrwen v. Mil- 
 ium, (1889) 42 Ch. D. 424. 
 
 The taking of a negotiable instrument by way of security will 
 not apparently discharge the lien if the instrument is dishonored 
 - before a claim is made to enforce the lien. Stevenson v. Blakelock, 
 (1813) 1 M. & S. 535 ; Bathurst Lumber Co. v. Nepisiquit Lumber 
 Co., (1911) HE. L. B. 552. A repair man does not lose his lien 
 because he made a reduction in the amount of his claim and the 
 amount to which he was entitled was less than the reduced sum 
 claimed. Macomber v. Detroit Cadillac Motor Car Co., (1916) 
 173 App. Div.724. 
 
 A lien which has accrued to a partnership for work done and 
 money expended upon machinery is not, lost by the dissolution of 
 the firm and the assignment by one partner of his interest therein 
 to the other, but in such case the partner to whom the claim of lien 
 has been assigned may enforce the same in the name of the firm. 
 Busfield v. Wheeler, (1867) 14 Allen (Mass.) 139. 
 
 A lien is not affected by the fact that the owner of the goods 
 becomes bankrupt. Robson v. Kemp, (1803) 4 Esp. 233. 
 
 The party claiming a lien is bound to take reasonable care of 
 the article. Scarf e v. Morgan, 4 M. & W. 270 ; Great Western Ry. 
 
224 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Po. y. Crouch, 3 H. & N. 183. Generally, a person having a lien 
 on a chattel who keeps, it for the purpose of enforcing his lien 
 cannot make any claim against the owner for so keeping. Somes 
 v. British Empire Shipping Co., (1860) 8 H. L. Cas. 338. 
 
 A mere promise by the lien claimant, without consideration, 
 to restore the chattel, is not a waiver of his lien. Clarice v. Cos- 
 tello, 29 K Y. S. 937, (1894) 79 Hun. 588. An agreement to 
 waive an existing lien is invalid, unless made with a valuable con- 
 sideration. Rollins v. Huboard, (1901) 165 N. Y. 534. As to 
 right of lien claimant to retain article against owner, where a 
 hire-purchase agreement is outstanding, the hirer having ordered 
 the repairs, a term of the hire-purchase agreement being that the 
 hirer should keep the article in good repair, see Green v. All 
 Motors, Ltd., (1917) 1 K, B. 625; Keene Y.'Thomas, (1905) 1 K. 
 B. 136. 
 
 Bights of Ownek. 
 
 The owner of chattels upon which a lien is claimed may inspect, 
 or show them as long as he does not interfere, with the possession 
 of the lien-holder. If a chattel is detained by a person under an 
 invalid claim of lien, the owner is not obliged to bring replevin or 
 similar action to test the validity of the lien. He may pay the 
 amount under protest, obtain his property and then sue to recover 
 back the money so paid. Whitlock Co. v. Holway, 92 Maine 414; 
 Somes v. B. E. S. Co., (1860) 8 H. L. Cas. 338. Hunter v. Leake, 
 (1829) 7 L. J. K. B. (OjS.) 221; Hughes v. Lenny, (1839) 5 M. 
 & W. 187; Lord Brougham v. Cauvin, (1868) 37 L. J. Ch. N. S. 
 691. 
 
 Where a contract provides for stipulated work at a lump sum 
 and such work is not done but its equivalent or better work is 
 effected, no claim for such substituted work can be sustained. For- 
 man v. The " Liddesdale" 69 L. J. P. C. 44; (1900) A. C. 190; 
 82 L. T. 331. The fact that the owner of the chattel thus repaired 
 has sold it at a price enhanced by such unauthorized labor does 
 
mechanics' liens on peesonal pbopebty. 225 
 
 not amount to acquiescence on his part or acceptance of liability 
 for the work done. 
 
 A lienor or bailee must take ordinary care of goods held under 
 a lien. Clarke v. Earnshaw, (1818) Gow 30; Angus v. McLach- 
 lan, 23 €h. D. 330; Ultzen v. Nicholls, (1894) 1 Q. B. 92; Searle 
 v. Laverich, (1874) L. E. 9 Q. B. 122; Halestrap v. Gregory, 
 (1895) 1 Q. B. 561; Turner v. Stallibras, (1898) 1 Q. B. 56. As 
 to consideration for a promise to pay the amount of, a void lien, 
 see Dunham v. Johnson, 135 Mass. 310. 
 
 A lien claimant cannot add to the amount for which the lien 
 exists, a charge for keeping the chattel until the debt is paid. 
 Where such a charge is made and the owner of the chattel pays 
 it under protest he may maintain an action for money had and 
 received. Somes v. Directors B. E. S. Co., (1860) 8 H. L. Cas. 
 338; Bruce v. Eveson, (1883) 1 Cababe & Ellis, 18; Pease v. John- 
 son, (1905) 1 W. L. R. 208. See Carew v. Rutherford, (1870) 
 ' 106 Mass. 1; Canada Steel & Wire Co. v. Ferguson, (1915) 21 D. 
 L. E. 771. 
 
 The goods of the Sovereign cannot be detained under a claim 
 of lien. Queen v. Eraser, (1877) 2 R. & C. (Nova Scotia) 431. 
 
 A mechanic has no right to detain cloth for a debt due for 
 dressing or dyeing other cloth for the same party. Rose v. Hart, 
 8 Taunt. 499; Close v. Waterhouse, (1805) 6 Bast 523, hote; 
 Hensal v. Noble, 95 Pa. 345 ; see also Yearsley v. Gray, 140 Pa. 
 238. The proprietor of a garage is not entitled to a lien on an 
 automobile for keeping and caring for same in his garage. Rehm 
 v. Viall, (1914) 185 111. App. 425. 
 
 A person cannot avail himself of a lien, the discharge of which 
 has been fraudulently prevented by his own acts. Carey v. Brown, 
 (1875) 92 U. S. 171. The owner cannot obtain any part of the 
 goods covered by the lien without paying the whole claim. 
 
 Eights oe Third Peesons. 
 
 Where the party entitled to a lien wrongfully parts with the 
 goods the owner may recover them from the holder without tender- 
 m.l. — 15 
 
226 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 ing what is due on the lien, for a party is only obliged to make a 
 tender where it is necessary to give him the right to the possession 
 of the goods. Eoscoe's N. P. Evidence (17th ed.) 974; Scott v. 
 Newington, (1833) ll.ft Eob. 253; Jones v. Cliff, (1833) 1 Cr. 
 & M. 540. 
 
 A person who obtains possession of goods by fraud or misre- 
 presentation cannot claim a lien upon them. Madden v. Demp- 
 ster, (1807) 1 Camp. 12; Lempriere v. Pasley, (1788) 2 T. E. 
 485; Simbolf v. Alford, (1838) 3 M. & W. 248; Walsh v. Provan, 
 (1853) 8 Ex. Eep. 843. 
 
 It has been held that a vendor's lien secured by a duly recorded 
 chattel mortgage takes precedence of a mechanics' lien for repairs 
 subsequently done at the purchaser's request. But, as a general 
 rule, where the mortgagee of chattels leaves the property in pos- 
 session of the mortgagor and the property is of a character that 
 suggests use, and that repairs will be needed, and the mortgagor 
 takes it to an artisan to be repaired, the common law lien will 
 attach in favor of the artisan as against the mortgagee. Boisot, 
 sec. 771. See Hammond v. Danlelson, (1879) 126 Mass. 294; 
 Williams v. Allsop, (1861) 10 C. B. (N.S.) 417; Scott v. De La 
 Hunt, 5 Lans. (N.Y.) 372; Drummond Carriage Co. t. Mills, 
 (1898.) 40 L. E. A. 761; Halifax Shipyards v. The Ship Westerian, 
 (1919) 19 Pan. Ex. E. 259. 
 
 If the agreement for the work is entire and indivisible, that 
 is, if the contract between the parties is one for the delivery of a 
 completed article, and the chattel is accidentally destroyed, with- 
 out negligence on the part of either party, before the completion 
 of the contract, the destruction of the subject-matter discharges the 
 liability and excuses further performance of the agreement. In 
 such case the employer of the labor cannot sue the contractor for 
 the return of any sums already paid to him on account, in an 
 action for money had and received, and correlatively the contrac- 
 tor had no legal claim to compensation for that portion of .the 
 work actually executed by him at the time of the destruction of the 
 chattel. Paine on Bailments, 163; Appleby v. Myers, (1867) 2 
 
mechanics' liens on personal pkopebty. 227 
 
 L. E. C. P. 651; Ashford v. Booth, (1835) 7 C. & P. 108; Anglo- 
 Egyptian Navigation Co. v. Bennie, (1875) 10 L. E. 'C. P. 271 
 and 571. 
 
 To take your own property from one who has a valid lien 
 upon it and was rightfully in possession, may be theft. People v. 
 Long, 50 Mich. 249 (a buggy) ; State v. Stevens, 32 Tex. 155 (a 
 watch) ; Queen v. M oiling sworth, 2 Can. Cr. Cas. 291 (baggage). 
 See Com. v. Greene, 111 Mass. 392. 
 
 If assigned, the lien is lost. Glascock v. Lemp, 26 Ind. App. 
 175 ; Buggies v. Walker, 34 Vt. 468. 
 
 A sale of personalty in the vendor's possession implies a war- 
 ranty against liens. Clevenger v. Lewis, (1908) 16 L. E. A. 
 (N.S.) 410. A person having no interest, who pays a debt secured 
 by a lien, is not entitled to subrogation. In re North Biver Co., 
 38 N". J. Eq. 433. As to procedure to enforce lien upon personalty, 
 see Pocock v. Novitz, (1912) 21 W. L. E. 418 (Sask.). 
 
 The improvement of personal property at the instance of a 
 bailee thereof, with knowledge of the ownership of the bailor, and 
 either without the latter's knowledge or consent, or with his mere 
 knowledge under such circumstances that no consent to liability 
 can be implied, creates no liability against the bailor or the pro- 
 perty. Baughman Automooile Co. v. Emanuel, (1911) 38 
 L. E. A. 97. As to priority of lien for services on personal 
 property over a prior chattel mortgage, see Beeves & Co. v. Bus- 
 sell, L. E. A. 1915 D, 1149, and Drummond v. Griffith, L. E. A. 
 1916 B. 748. 
 
 Proof of usage may establish a possessory lien. Welch v. Scott, 
 (1919) 3 W. W. E. 425, (1920) 2 W. W. E. 510. 
 
 A lien implies the right of continuing possession, or the con- 
 tinuing right of possession. Katzman v. Mannie, (1919) 46 O. 
 L. E. 121. 
 
 As to implied authority given by the owner to the bailee to 
 have the chattel repaired and in so doing to subject it to the ordi- 
 nary repairer's lien, see Commercial Finance Corporation v. Strat- 
 ford, (1920) 47 O. L. E. 392. 
 
THE ALBERTA MECHANICS' LIEN ACT. 
 
 CHAPTEE 21. 
 
 An Act foe the Benefit of Mechanics and Laborers. 
 
 (Assented to May 9, 1906.) 
 
 TT IS MAJESTY, by and with the advice and consent of the 
 ■*- ■*■ Legislative Assembly of the Province of Alberta, eriacts as 
 follows : 
 
 Short Title. 1 
 
 1. Short title. — This Act may be cited as " The Mechanics' Lien 
 Act." 
 
 2. Interpretation. — In the construction of this Act — ■ 
 
 1. " Court " or " judge " shall mean the court within the pro- 
 vince exercising jurisdiction in civil cases to the amount claimed 
 in the action or proceeding whether brought in respect of one lien 
 or more than one lien, and the interpretation herein given shall for 
 all purposes be deemed to have been included in the original Act; 
 1908, e. 20, s. 12. 
 
 2. " Contractor." — " Contractor " shall mean a person em- 
 ployed directly by the owner for doing the work or placing or 
 furnishing materials for any of the purposes mentioned in this 
 Act; 
 
 3. " Sub-contractor." — i" iSub-eontractor " shall mean a person 
 not contracting with or employed directly by the owner for the 
 purpose aforesaid, but contracting with or employed by the con- 
 
THE ALBEETA MECHANICS' LIEN ACT. 229 
 
 tractor or under him, by another sub-contractor, to do all or a 
 certain portion of the work or to place or furnish material, but a 
 person doing manual or mental labor for wages shall not be deemed 
 a " sub-contractor " ; 
 
 4. " Owner." — " Owner " shall extend to and include a person 
 having any estate or interest, legal or equitable, in the lands upon 
 Or in respect of which the work is done or materials are placed or 
 furnished, at whose request and upon whose credit or on whose 
 behalf, or with whose privity or consent, or for whose direct 
 benefit any such work is done or materials are placed or furnished, 
 and all persons claiming under him whose rights are acquired 
 after the work in respect to which the lien is claimed is com- 
 menced or the materials furnished have, been commenced to be 
 furnished ; 
 
 5. " Works or improvements." — ■" Works or improvements " 
 shall include every act or undertaking for which a lien may be 
 claimed under this Act; 
 
 6. " Laborer." — " Laborer " shall mean, extend to and include 
 every mechanic, miner, artisan, builder, or other person doing 
 labor for wages; 
 
 7. " Material." — " Material " shall include every kind of mov- 
 able property; 
 
 8. " Wages." — " Wages " shall mean money earned -by a 
 laborer, for work done whether by time or as piece work. 
 
 As to interpretation of sub-section 1, prior to amendment of 
 1908, see Freeze v. Cwrey, (1907) 1 Alta. L. E. 81, 7 W. L. E. 287. 
 
 The word " owner " includes a leaseholder. James Prentice 
 & Go. v. Brown, (1914) 7 Alta. L. E. 454. 
 
 The Act gives no power to file a lien against the lands of a 
 Dominion railway as there is no means of enforcing such a lien. 
 The Act does not give a lien for work done or materials furnished 
 in connection with the digging of wells, apart from the work done 
 or materials furnished in connection with One of the " works " 
 
230 THE LAW OF MECHANICS' 1 LIENS IN CANADA. 
 
 enumerated in this section. Stiffel v. Gorwin, (1911) 1 W. W. 
 E. 339. 
 
 Application. 
 
 3. Application. — This Act shall apply to any contract made 
 or work begun previous to the passage hereof, but only so far as 
 regards any moneys remaining unpaid and as respects any such 
 unpaid moneys. 
 
 Natuke of Liens. 
 
 4. Mechanics and others to have liens for work done, etc. — 
 
 Unless there is an agreement in writing to the contrary signed by 
 the person claiming the lien, every contractor, sub-contractor, 
 laborer, and furnisher of material doing or causing work to be done 
 upon or placing or furnishing any materials to be used in or for 
 the construction, erection, alteration or repairs, either in whole 
 or in part of, or addition to, any building, tramway, railway, erec- 
 tion, wharf, bridge or other work, or doing or causing work to be 
 done upon, or in connection with, or the placing or furnishing to 
 be used in or for the clearing, excavating, filling^ grading, track- 
 laying, draining, or irrigating of any land in respect of a tram- 
 way, railway, mine, sewer, drain, ditch, flume or other work, or 
 improving any street, road or sidewalk adjacent thereto, at the 
 request of the owner of such land, shall by virtue thereof have a lien 
 or charge for the price of such work, and the placing or furnishing 
 of such materials upon such building, erection, wharf, machinery, 
 fixture, or other works, and all materials furnished or produced 
 for use in constructing or making such works or improvements so 
 long as the same are about to be in good faith worked into or made 
 part of the said works or improvements, and the land, premises, 
 and appurtenances thereto, occupied thereby or enjoyed there- 
 with, but limited in amount as hereinafter mentioned: 
 
 Provided such lien shall affect only such interest in the said 
 land, premises and appurtenances thereto as is vested in the owner 
 at the time the works or improvements are commenced, or any 
 
THE ALBEBTA MECHANICS' LIEN ACT. 231 
 
 greater interest the owner may acquire during the progress of the 
 works or improvements, or have at any time during which the lien 
 'stands as an encumbrance against said land. 
 
 Neither the owner nor the land can be held liable to the lien- 
 holders for a greater aggregate sum than the amount of the con- 
 tract price. Ross v. Gorman, 1 Alta. L. K. 109. 
 
 If, by arrangement with the owner the claimant has delayed 
 completion in order to give the owner time to arrange for pay- 
 ment, and work is then done to keep the lien alive, the owner 
 having accepted the benefit of the delay, and the work being neces- 
 sary, the date of completion of such work will be taken as the date 
 upon which the claimant " has ceased " to work. Clarke v. Moore, 
 (1907) 1 Alta. L. E. 49, 8 W. L. R. 405. As to the taxation of 
 school property, see Mallet v. Kovar, (19l0) 14 W. L. E. 337. As 
 to right to lien when work is done at the instance of lessee, see 
 Scratch v. Anderson, (1909) 2 Alta. L. E. 109, 13 W. L. E. 113; 
 Limoges v. Scratch, (1910) 44 Can. S. C. E. 86. 
 
 A lien arises and attaches as soon as work is done or materials 
 are furnished, subject to be increased or decreased in amount from 
 time to time, as further work is done or materials furnished, on 
 the one hand, or payments made to the lienholder on the other 
 hand. Boss v. Gorman, (1908) 1 Alta. L. E. 109, 516, 9 W. L. E. 
 319. 
 
 Where part of the contract price was agreed to be paid by 
 conveyance of land to contractor, who, however, did not complete 
 his work, sub-contractors who had registered liens against the 
 property built on were held entitled to the equity in the lots which 
 had been agreed to be conveyed to the contractor. The claim of 
 the sub-contractor, however, was subject to the owner's claims for 
 payments made to the contractor and for damages against the 
 contractor. Head Co. v. Coffin, (1910) 13 'W. L. E. 663. 
 
 The installation of a furnace in a buildmg comes within the 
 terms of this section. The lands of a school board may be subject 
 to a mechanic's lien. Mallett v. Kovar, (1910) 14 W. L. E. 327. 
 
 Where the lienholder is not the contractor, the onus is on the 
 owner to show that the contractor should not have been given an 
 extension of time. Lundy V. Henderson, 9 W. L. E. 327. 
 
 Payments made by owner will not discharge him from liens 
 existing at the time of such payments. Union v. Porter, (1908) 
 
232 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 ? W. L. E. 325. See Gorman v. Henderson, (1908) 8 W. L. E. 
 422; Boss v. Gorman, (1908) 1 Alta. L. E. 109, 516, 9 W. L. E. 
 319. The words "land . . . occupied thereby or enjoyed 
 therewith," are not necessarily restricted to the particular lot upon 
 which the building is situated, but will include other lots intended 
 for use with the house. Clarke v. Moore, (1908) 1 Alta. L. E. 49, 
 8 W. L. E. 405. 
 
 The claim of a lien-holder will not be defeated by the absence 
 of an architect's final certificate. Lundy v. Henderson, 9 W. L. 
 E. 327. 'See Boss v. Gorman, 1 Alta. 516; Swanson v. Mollison, 
 6 W. L. E. 678 ; Clarke v. Moore, 1 Alta. L. E. 498, 8 W. L. E. 
 405, 411. 
 
 Superintendents of construction are entitled to a lien. High 
 Biver Trading Co. v. Anderson, (1909) 10 W. L. E. 126. 
 
 A claimant is not bound to give notice of lien to the owner. 
 Boss v. Gorman, (1908) 1 Alta. L. E. 516, 9 W. L. E. 319. A 
 lien claimed by a partnership stands in no different position from 
 any other lien by reason of "the owner " being a member of the 
 partnership. Boss v. Gorman, 1 Alta. L. E. 516. As to scope of 
 the word " owner," see Scratch v. Anderson, (1911.) 16 W. L. E. 
 145. 
 
 Where the contractor is entitled to a quantum meruit, a fair 
 and reasonable sum to compensate him for the work undertaken 
 and done and for the responsibility involved in the doing of it, 
 should be added to the actual cost of it to him. Bohl v. Pf af en- 
 roth , 31 W. L. E. 197. 
 
 Sub-contractors gave the contractor receipts for money which 
 he had received from the owner to pay the sub-contractors and 
 had not paid them, thereby led the owner to believe that they had 
 been paid. The owner, influenced by this belief, made other pay- 
 ments to the contractor in excess of the work which he did or 
 caused to be done on the building, and the owner completed the 
 building when the contractor abandoned it. The owner also made 
 payments to another sub-contractor and lienholder. It was held 
 that the sub-contractors who gave the receipts in question were not 
 entitled to enforce a lien against the owner's land, though they 
 had not been paid in full for the work done and materials fur- 
 nished by them. Bingland v. Edwards, (1911) 19 W. L. E. 219. 
 
 Del credere agents supplying materials have such an interest 
 in the goods as entitles them to a mechanics' lien as materialmen. 
 Gorman.v. Archibald, (1908) 1 Alta. L. E. 524. 
 
THE ALBERTA MECHANICS' LIEN' ACT. 233 
 
 As to overpayment to contractor, see Travis v. Breckenridge- 
 Lund Lumber & Coal Co., (1909) 2 Alta. L. E. 71, 43 Can. S. C. 
 E. 59. 
 
 Where trial judge finds defendant had promised to pay plain- 
 tiff and there was sufficient consideration, it is not open to the 
 court to reverse that finding. Union v. Porter, 9 "W. L. E. 325. 
 
 The words in this section " land . . : occupied thereby or 
 enjoyed therewith," have been construed as not necessarily re- 
 stricted to the particular lot upon which the building is situated, 
 but may include other lots purchased by the owner for his use 
 with the house. Clarke v. Moore and Simpson, (1908) 1 Alta. 
 L. E. 49. 
 
 A lien claimed by a partnership against a property the 
 " owner " of which is a member of the partnership is enforceable 
 in the same way as any other lien. The individual claimant and 
 the firm of which he is a member are different entities, and the 
 fact that he as an individual may, as a member of the firm, be 
 entitled, to share in the payment, will not affect the question. 
 Ross v. Gorman, (1908) 1 Alta. L. E. 516. 
 
 Miners employed by a lessee of a coal mine are not entitled to 
 mechanics 3 liens in respect of their work where it has not been 
 actually requested by the owner. Wester et al. v. Jago et al. (1917) 
 11 Alta. L. E. 52. See Scratch v. Anderson, post, cited also under 
 s. 11. 
 
 The work of superintendence is work done in or for the con- 
 struction of a building within the terms of the Act, so as to give 
 the superintendent a lien. Scratch v. Anderson, (1909) 11 Alta. 
 L. E. 55; High River Trading Co. v. Anderson, (1909) 10 W. L. 
 E. 126. 
 
 The Act gives no power to file a lien against the lands of a 
 Dominion railway as there is no means of enforcing such a lien. 
 The Act does not give a lien for work done or materials furnished 
 in connection with the digging of wells, apart from the work done 
 or materials furnished in connection with one* of the "works" 
 enumerated in s. 2. Stiffelv. Corwin & C. P. R., (1911) 1 W. W. 
 E. 339. 
 
 The work done in excavating the basement of a building is 
 included in the term "construction," and gives rise to a lien, and 
 this notwithstanding the .fact that the word " excavating " is ex- 
 pressly used with reference to certain classes of construction 
 
234 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (including tramway and railway) mentioned later in the same sec- 
 tion. Fair v. Groat, (1913) 24 W. L. K. 860; 4 W. W. E. 1097. 
 
 The expression "furnisher of material," in this section can- 
 not be applied to a laborer working for wages, but is intended to 
 cover only persons who sell or supply material on contract at a 
 certain price. 
 
 The phrase " furnishing any materials " in this section is 
 referable only to the term "furnisher of materials," in the same 
 section, and does not refer in any way to the word, " laborer " 
 therein. Mylnzyuk v. Northwestern Brass Co., Ltd. (1913) 6 
 Alta. L. E. 413. 
 
 If it appears that moneys were paid by the owner to the con- 
 tractor or sub-contractor for the very purpose of being applied in 
 paying wage-earners having a privileged and preferential lien over 
 other lienholdefs, and the moneys were in fact so applied, the 
 owner is entitled to credit for such payments against the contract 
 price. Metals Ltd. v. Trusts & Guarantee Co., 22 D. L. E. 495. 
 
 Where a building in respect to which a mechanics' lien is 
 sought to be enforced is situate upon one of several contiguous sec- 
 tions of land "enjoyed therewith," the failure to file the lien 
 against the section upon which the building stands does not render 
 ineffective a lien filed against the other sections. The Jackson 
 Water Supply Go. v. Bardech et ah (1915) 8 Alta. L. E. 305. 
 
 A mechanics' lien is maintainable for installing a water system 
 in a dwelling house as against the land occupied or enjoyed there- 
 with, and which was specified in the mechanics' lien which was 
 registered, although the parcel of land itself upon which the house 
 was situate was not included in the registered claim of lien; its 
 omission therefrom operated only as a relinquishment of part of 
 the security and did not have the effect of extinguishing the re- 
 mainder of it. The Jackson Water Supply Go. v. Bardeck et ah, 
 (1915) 8 Alta. L. E. 305, 21 D. L. E. 761. 
 
 Even if the correct rule be that a Mechanics' Lien Act must 
 refer expressly to the property of municipalities in order to render 
 ordinary municipal property subject to the Act, such a rule is not 
 applicable to property acquired by a municipality for the purpose 
 of alienating it to a manufacturing company, and where the muni- 
 cipality has agreed to convey the land to the company on the ful- 
 filment of certain conditions, the fact, that, owing to the non- 
 fulfilment of such conditions, the conveyance has not been made, 
 
THE ALBERTA MECHANICS'" LIEN ACT. 235 
 
 and, therefore, the company has not acquired any interest in the 
 land, does not prevent a lien attaching to the land in the absence 
 of proof of the notice called for by section 11 for material used 
 in a building constructed by the company in pursuance of said 
 agreement. RevelstoJce Saw Mill Co. v. Alberta Bottle Co., (1915) 
 9 Alta. L. E. 155. 
 
 The interest of the registered owner of land upon which a 
 church has been erected by a contractor pursuant to a contract 
 with the trustees for an unincorporated church congregation who 
 held under an agreement for sale from the owner, is chargeable 
 with a lien in the contractor's favor where the owner has not given 
 the notice required by section 11 of the Alberta Mechanics' lien 
 Act, and the fact that the contractor was a member of the congre- 
 gation, and knew of the interest of the various parties in the land 
 does not cut down his right of lien. Rohl v. Pfaffienroth, (1915) 
 31 W. L. E. 197. 
 
 The liability of the " owner " as designated in section 11 is not 
 limited to such alterations and repairs (made by his tenant) as 
 increase the value of his interest in the land and premises. The 
 lien of those who furnish materials and do work in altering and 
 repairing -the premises will be enforced against the interest of the 
 landlord. Peters, Rohls & Co. v. MacLean, (1913) 25 W. L. E. 
 358. 
 
 A contractor H. gave to E. a materialman, an order upon the 
 building owner J., in the following form : — " J. Please pay to E. 
 the sum of ($800 dollars on account of material delivered and 
 shipped to X. H." It was held that the order amounted to a good 
 equitable assignment of the fund over which E. would ultimately 
 have the disposition as between H. and J., but that there was 
 nothing to warrant an inference by E. that J. had relinquished in 
 his favor the right to make out of the moneys payable to H. such 
 payments as might be necessary to protect his property from liens 
 and to insure the completion of the building contract, and to de- 
 duct payments so made from the moneys which would otherwise 
 be payable to H. Ritchie v. Jeffrey, (1915) 9 W. W. E. 1534. 
 
 -Where progressive payments under the contract of the princi- 
 pal contractor are made contingent upon advances being made to 
 the owner by the mortgagee, the court may, on the trial of the action 
 brought by a sub-contractor who had completed his sub-contract, 
 direct that his lien remain in force, so that it may attach in respect 
 
236 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 of any such further advances which may in future be made by 
 the mortgagee, reserying leave to the owner and the mortgagee to 
 apply for the discharge of the lien. , Colling v. Stimson, 6 Alta. 
 L. E. 71, 10 D. L. E. 597. 
 
 ■One who delivers materials for use in or upon a building under 
 course of construction by a contractor, is not, after the latter's 
 default and the taking over of the work by the property owner 
 entitled to a mechanics' lien for such of the materials as were sub- 
 sequently worked into the building by the latter; the right to a 
 lien under such circumstances being denied under this Act. Cana- 
 dian Equipment and Supply Co. v. Bell & Schiesel, (1913) 24 
 W. L. E. 415 ; 11 D. L. E. 820. 
 
 If the work upon which the lien claimant relies as giving a 
 new day from which the statute begins to run against his lien, is 
 something which the owner could have insisted upon before accept- 
 ing it as complete, it will be sufficient for that purpose. The test 
 to apply is to ascertain if the work in question, trifling though it 
 might be, was necessary to be done in order to complete the fulfil- 
 ment of the contract. Day y. Crown Grain Company , 39 S. C. E. 
 258. 
 
 Building materials are sufficiently delivered as regards a build- 
 ing in course of erection, so as to satisfy this Act, where, be- 
 cause of lack of storage room on the land, they were delivered in 
 its immediate vicinity. Trussed Concrete Steel Co. of Canada v. 
 Taylor Engineering Co., (1919) 2 W. W. E. 123; Canadian Equip- 
 ment and Supply Col y. Bell et al., 11 D. L. E. 821. Decisions 
 in Ontario and Nova Scotia appear to be in conflict with this view. 
 See annotations under section 4 of the Ontario Act, post. 
 
 There was no waiver of a lien upon a certain lot where a form 
 of waiver as to that lot- had been signed without consideration and 
 by mistake, there being no intention to waive and the claimant not 
 knowing at the time of signing that he was to do work on thati 
 particular lot. The principle of estoppel did not apply in that 
 particular case. Palfrey v. Brown, (1915) 31 "W. L. E. 535. 
 
 The word "placing" in this section qualifies the word 
 "laborer" as well as the term "furnisher of material." Laborers 
 employed at a distance from the site of a building in excavating 
 and loading filling-in material for use in furthering the construc- 
 tion of the building cannot maintain a mechanics' lien against it. 
 
 Teamsters employed in hauling filling-in material from a dis- 
 tance to the site of a building may maintain a mechanics' lien 
 
THE ALBEBTA MECHANICS' LIEN ACT. 237 
 
 against it, either on the ground that they are entitled to the bene- 
 fit of the word " placing " in this section, or because they must be 
 treated as doing "work upon the construction," within the mean- 
 ing of that phrase in this section, i Mylnzyuh v. Northwestern 
 Brass Co., Ltd. (1913) 6 Alta. L. E. 413. 
 
 Whether specific articles are " fixtures ". and lienable is a ques- 
 tion of fact as to each item. Prentice v. Brown, (1914) 28 W. L. 
 B. 226. Electric light fixtures and an electric light sign on the out- 
 side of the building, put up by the tenant, were considered not to 
 have become part of the realty, but to be chattels removable by the 
 tenant. Peters, Rohls & Co. v. MacLean, (1913) 25 W. L. E. 
 358. 
 
 As to meaning of " extra work," in a building contract, see 
 Janse-Mitchell Construction Co. v. City of Calgary, 14 Alta. L. E. 
 214. 
 
 Where a plumber agreed in a single written document to instal 
 plumbing and heating apparatus in each of two houses situated on 
 two adjoining lots for the sum of $620 for each house, it was held 
 that the contract contained two severable or divisible promises, 
 one in respect of each house. The work in connection with the 
 house on lot No. 30 was completed on the 29th July, 1908, and 
 that in connection with the house on lot No. 29 on the 15th June, 
 1909; the sewer connections from both houses were joined on a 
 line between the two lots. It was held that a claim filed against 
 both lots on the 1st February, 1909, in respect of the whole con- 
 tract price for the two houses, was filed too late to preserve the lien 
 against lot 30. The A. Lee Co. v. Hill, (1909) 2 Alta. L. E. 368. 
 This decision is apparently not in accord with Ontario Lime As- 
 sociation v. Grimwood, (1910) 22 O. L. E. 17. 
 
 A person who supplies coal to a building contractor for generat- 
 ing steam for the purpose of hoisting material and to dry the build- 
 ing in course of construction may be entitled to a mechanics' 
 lien. Wortman v. Frid Lewis Co., (1915) 9 W. W. E. 812. 
 
 The wages claims of laborers which are given a special privi- 
 lege if for " not more than six weeks' wages," are the wages earned 
 within a continuous period of six weeks counting backward from 
 the last day's work. Rendall y. Warren, 8 W. W. E. 113. 
 
 A mechanics'' lien filed by a sub-contractor is not to attach so 
 as to make the owner liable for a greater sum than the sum owing 
 
238 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 by the owner to the contractor; consequently if the latter's con- 
 tract with the owner does not entitle him to a further payment 
 until completion, the lien of the sub-contractor who has completed 
 his contract cannot be made effective until completion of the entire 
 work of the principal contractor, but the court may, on the trial 
 of' the lien action, direct that such lien shall remain in force, so 
 that it may attach in respect of further sums. that may thereafter 
 become due by the owner to the principal contractor, reserving 
 leave to the owner to apply to discharge the lien. Colling v. Stim- 
 son et al., (1913) 10 D. L. E. 597, 23 W. L. E. 789. 
 
 This section does not give a lien for wages for work done in 
 boring for oil. Hensbaw v. Federal, etc., Corporation, Ltd., 
 (1916) 34 W. L. E. 208. 
 
 Where the contract work both with the principal contractor 
 and the sub-contractor for excavating expressly included the clean- 
 ing up of the debris on the completion of the building, and the 
 owner called upon the principal contractor to do it' before taking 
 over the building and the latter replied that he would have the 
 sub-contractor do it, the sub-contractor's lien for the excavation 
 work will be kept alive by the cleaning up done by the latter in 
 good faith in fulfilment of his sub-contract, although his last prior 
 work (the excavating) was done more than five months before. 
 Foster v. Brocklebank, (1915) 22 D. >L. E. 38, 8 W. W. E. 464. 
 
 An unregistered foreign company is entitled to a mechanics' 
 lien inasmuch as the enforcement of the lien does not involve the 
 acquisition or holding of lands or any interest therein or the reg- 
 istration of any title thereto under the Lands Titles Act. Wort- 
 man v. Frid Lewis Co., 9 W. W. E. 812 ; 33 W. L. E. 119. 
 
 i 
 
 5. Material subject to lien. — When any material is brought 
 upon any land to be used in connection with such land for any 
 of the purposes enumerated in the last preceding section hereof, 
 the same shall be subject to a lien for the unpaid price thereof in 
 favor of any person supplying the same until it is put or worked 
 into the building, erection or work as part of the same. 
 
 To preserve the unpaid seller's lien given by this section, pos- 
 session of the materials delivered must be resumedbefore the same 
 are worked into the building. Metals Ltd. v. Trusts & Guarantee 
 Co. Ltd., (1914) 29 W. L. E. 953. 
 
THE ALBEETA MECHANICS' LIEN ACT. 239 
 
 The general lien arising under section 4, covering not only- 
 land and buildings but also materials for the work, is subject to 
 the lien on materials given by sub-section 5 to the person supply- 
 ing the same. Trussed Concrete Steel Co. v. Taylor, etc., (1919) 
 2 W. W. E. 133. Such lien under this section exists notwithstand- 
 ing that the materials are not delivered on the lands where the 
 building is being erected, if there is no room there for storing 
 them, and they are deposited on ground in the immediate vicinity 
 thereof. Trussed Concrete Steel Co. v. Taylor Engineering Co., 
 (1919) 2 W. W. R. 123, 46 D. L. R. 663. 
 
 6. Agreement as to liens. — No agreement shall be held to de- 
 prive any one otherwise entitled to a lien under this Act and not a 
 party to the agreement of the benefit of the lien and the lien shall 
 attach notwithstanding such agreement. 
 
 7. Certain proceedings not to be deemed satisfaction or waiver 
 of lien. — The taking of any security for, or the acceptance of any 
 promissory note for, or cheque which on presentation is dis- 
 honored, or the taking of any other acknowledgment of the claim, 
 or 1 the taking of any proceedings for the recovery of the claim or 
 the recovery of any personal judgment for the claim, shall not 
 merge, waive, pay, satisfy, prejudice, or destroy any lien created 
 by this Act, unless the lienholder agrees in writing that it shall 
 have that effect. 
 
 Provided, however, that a person who has extended the time 
 for payment of any claim for which he has a lien under this Act 
 to obtain the benefit of this section shall , institute proceedings 
 to enforce such lien within the time limited by this Act, but no 
 further proceedings shall be taken in the action until the expira- 
 tion of such extension of time: 
 
 Provided further, that notwithstanding such extension of time 
 such person may where proceedings are instituted by any other 
 person to enforce a, lien against the same property prove and 
 obtain payment of his claim in such suit or action as if no such 
 extension had been given. 
 
240 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 'Where the contract price is payable in instalments, if default 
 is made in payment of an instalment, the contractor, prior to the 
 falling due of the later instalments, can commence proceedings to 
 enforce his lien. The words, "No further proceedings shall be 
 taken in the action until after such extension of time," are to be, 
 construed distributively. Spears v. Bannerman, (1907) 1 Alta. 
 L. E. 98. 
 
 The claimant does not waive or lose his lien by taking and 
 negotiating the owner's promissory note in part payment of the 
 amount then due. Clarice v. Moore, (1907) 1 Alta. L. E. 49, 8 
 W. L. E. 405. See Brooks-Sanford Co. v. Theodore Teller Con- 
 struction Co., (1910) 19 O. L. E. 303; also Swanson v. Mollison, 
 (1907) 6 W. L. E., at 682, citing approvingly the following para- 
 graph from the first edition of this work : " After the note has been 
 negotiated, the debt then becomes due to a third, party, and the 
 original creditor becomes guarantor of the payment of the debt.- 
 While the note is in the hands of the third party, no proceedings 
 can be taken to enforce the lien. If the lien claimant pays the note, 
 and is the holder of the note at the time he begins proceedings, the 
 fact of his having negotiated the note will not take away his lien." 
 
 8. Amount to which lien limited. — 'Such lien shall be limited 
 in amount to the sum actually owing to the person entitled to the 
 lien. 
 
 Where in an action to enforce a lien against a building,' by 
 reason of the owner of the property not being indebted to the con- 
 tractor, the claimant cannot have a lien, he is entitled to a declara- 
 tory judgment that the administrator of the contractor's estate 
 is, in the due course of administration, liable therefor. Canadian 
 Equipment and Supply Co. v. Bell, 11 D. L. E. 821, 24 W. L. E. 
 415i 
 
 9. Liens on mortgaged premises. — Where works or improve- 
 ments are put upon mortgaged premises the liens by virtue of this 
 Act shall be prior to such mortgage as against the increase in value 
 of the mortgaged premises by reason of such works or improve- 
 ments but not further unless the same is done' at the request of the 
 mortgagee in writing; and the amount of such increase shall be 
 ascertained upon the basis of the selling value upon taking on the 
 
THE ALBERTA MECHANICS' LIEN ACT. 241 
 
 account, or by the trial of an action or issue as provided herein, 
 and thereupon the judge may if .he shall consider the works or 
 improvements of sufficient value to justify the proceedings > order 
 the mortgaged premises to be sold. at an upset price equal to the 
 selling value of the premises immediately prior to the commence- 
 ment of such works or improvements (to be ascertained as afore- 
 said) and any sum realized in excess of such upset price shall be ' 
 subject to the liens provided for by this Act. The moneys equal , 
 to the upset price as aforesaid shall be applied towards the said 
 mortgage or mortgages according to their priority. Nothing, 
 however, in this section shall prevent the lien from attaching, upon 
 the equity of redemption or other interest of the owner of the land 
 subject to such mortgage or charge. 
 
 (2) Interpretation of mortgage. — "Mortgage" in this section 
 shall not include any part of the principal sum secured 
 thereby not actually advanced to the borrower at the time 
 the works or improvements are commenced, and shall include a 
 vendor's lien and an agreement for the purchase of land, and for 
 the purposes of this Act and within the meaning thereof the pur- 
 chaser shall be deemed mortgagor and the seller a mortgagee. 
 
 A mechanics' lien attaches to the interest which is vested in 
 the owner at the time the work is. commenced, or to any interest 
 which he may acquire during the progress of the work; and the 
 lien will take priority over a mortgage upon which no money was 
 advanced' until after the commencement of the .work, although the 
 mortgage had been registered before that time. Colling v. Stim- 
 son et al., (1913) 10 D. L. R. 597, 23 W. L. E. 789. 
 
 The limitation of the priority of mechanics' liens over mort- 
 gages to the amount whereby the premises have been increased in 
 value by the work does not apply where.no money was advanced 
 by the mortgagee until' after the commencement of the work for 
 which the lien is claimed. Colling v. Stimson & Buckley, (1913) 
 4 W. W. E. 597, 23 W. L. E. 798, 10 D. L. E. 597. 
 
 See McSporran v. Miller, 9 W. W. R. 81, 32 W. L. E. 392. 
 
 10. Claims for wages. — Without prejudice to any liens which 
 he may have under the preceding sections every mechanic, laborer 
 
 MX.— 16 
 
242 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 or other person who performs labor for wages upon the construc- 
 tion, alteration or repairs of any building or erection, br in erect- 
 ing or placing machinery of any kind in, upon or in connection 
 with any building, erection or . mine shall to the extent of the 
 interest of the owner have upon the building, erection or mine 
 and the land occupied thereby or enjoyed therewith a lien for such 
 wages, not exceeding the wages of six weeks or a balance equal to 
 his wages for six weeks. 
 
 (2) The lien for wages given by this section shall attach when 
 the labor is in respect of a building, erection or mine on property 
 'belonging to the wife of the person at whose instance the work 
 is done, upon the estate or interest of the wife in such property 
 as well as upon that of her husband. 
 
 An owner -is entitled to discharge liens for six weeks' wages of 
 laborers no matter by whom employed, even though the result may 
 be to reduce the fund which would otherwise be available for other 
 lien claimants. If money be paid by the owner to a contractor for 
 the very purpose of being applied in payment of wage-earners and 
 such money is in fact so applied, the owner is entitled to credit for 
 such payments against the contract price. Metals Ltd. v. The 
 Trusts and Guarantee Co. Ltd., (1914) 7 W. L. E. 605. 
 
 A sub-contractor is not a "laborer" so as to acquire as to 
 labor done as part of the contract, the special privileges ' given by 
 that Act to laborers. Rendall v. Warren, 21 D. L. K. 801, 8"W. 
 W. E. 113.. 
 
 The wages, must be earned within a continuous period of six 
 weeks counting 'backwards from the last day's work. Stafford v. 
 McKay, (1919) 2 W. W. E. 280. 
 
 11. Owner of land deemed to have authorized the erection, of 
 buildings thereon. — Every building or other improvement men- 
 tioned in the fourth section of this Act constructed upon any 
 lands with the knowledge of the owner or his authorized agent, ,or 
 the person having or claiming any interest therein, shall be held 
 to have been constructed at the request of such owner or person 
 having or claiming any interest therein, unless such owner or 
 person having or claiming any interest therein shall, within three 
 days after he shall have obtained knowledge of the construction, 
 
THE ALBERTA MECHANICS' LIEN" ACT. 243 
 
 alteration or .repair, give notice that he will not be responsible 
 for the same, hy posting a notice in writing to that effect in some 
 conspicuous place Upon said land or upon the building or other 
 improvement thereon. 
 
 v (2) Notice by owner that he will not be responsible for work 
 done on his land^ — Whenever such owner or such person, not hav- 
 ing contracted for or agreed to such construction, alteration, repair, 
 works or improvements 'being done- or made, but who has failed to' 
 give said notice within the said three days, shall post a notice 
 in writing in some conspicuous place upon said land, or Upon 
 the buildings or improvements thereon, to the effect that he will 
 not be responsible for the works or improvements, no works or 
 improvements made after such posting shall give any right as 
 against such owner or person, or his interest in said land, to a 
 lien under this Act. 
 
 It is knowledge of the fact of construction and not knowledge 
 of the intention to construct which gives rise to the statutory 
 request created by this section. Johnson v. Butler and Spencer, 
 (1914) 7 Alta. L. B. 427. Where an owner of land does not ob- 
 tain knowledge of the construction of a building upon his land 
 until after such construction has been completed, he is not obliged 
 in order to avoid liability for the cost of such construction to post 
 the notice called for by this section. Johnson v. Butler and Spen- 
 cer, supra. 
 
 " The two-fold purpose of the section is obvious. It is to give 
 to a contractor, who otherwise might have the mistaken idea that 
 he was doing the work in hand for the owner of the land, notice to 
 the contrary so that. he may with his eyes open to the facts elect 
 whether or not he will proceed with it on the personal liability of 
 him by whom he is employed, and at the same time to work a 
 statutory estoppel against an owner who stands by while the work 
 is being done to his knowledge,' and says nothing." Johnson v. 
 Butler & Spencer, supra, per Walsh, J. 
 
 This section applies only to the cases that do not come within 
 section 4, in which the owner has in fact -requested " the work to be 
 done." Scratch v. Anderson, (1909) 16 W. L. E. 145. 
 
 Where an owner leased premises for seven years, the lessee 
 having an option to purchase the right to remove a building and 
 
244 THE LAW OP MECHANICS' LIENS IN CANADA. - 
 
 erect another in lieu thereof, which new 'building was to become 
 property of the lessor, , a lien claimant filed liens in connection 
 with erection of new building. The lessee being in arrears for 
 rent, the lease was forfeited. It was held that the, liens were valid 
 against the land. High River Trading Co, v. Anderson, (1909) 10 
 W. L. E. 126.' 
 
 The interfest of the registered owner of ' land upon which ' a 
 church has been erected by a .contractor pursuant to a contract 
 with the trustees for an, unincorporated church congregation, who 
 held under an agreement for 'sale from the hwner, is chargeable 
 with a lien in the contractor's favor, where the owner has not given 
 the notice required by this section. Bohl v. Pfaffenroth, 31 W. L r 
 E. 197. ■ 
 
 The lessee of land, as permitted by his lease, had buildings 
 thereon pulled down and proceeded to erect others in their place, 
 but was obliged to abandon the work before it was finished. The 
 owner was aware of the work being done, but gave no notice dis- 
 claiming responsibility therefor. Mechanics' liens, having been filed 
 .under the Act, the' interest of the~ owner was held subject to such 
 liens. Scratch v. Anderson, (1909) 2 Alta. L. E. 109, 13 W. L. E. 
 113 ; Limoges v, Scratch, (1910) 44 Can. S. C. E. 86. 
 
 The general principle of the Mechanics' Lien Act is, that the 
 land which receives the benefit shall bear the burden. By virtue 
 of this section (11), 'where a building is constructed with the 
 knowledge of the owner, who gives no notice disclaiming respon- 
 sibility, then, the same result follows as if the building had been 
 constructed at his request under section 4, and the lien will bind 
 his interest in the land. Scratch v. Anderson, (1909) 11 Alta. 
 L. E. 55. The only lien which can attach to bind an .owner not 
 actually requesting the work must be in respect to a building or 
 other improvement constructed on the land. Wester e't al. v. 
 J ago et al, (1917) 11 Alta. L. E. 52. 
 
 Where an owner of land is informed that improvements are 
 being placed thereon and does not discredit what he is told, but 
 does not make any investigations as to the truth of the report,, he 
 will be held- to have " knowledge of the work " within the meaning 
 of this section. , The Jackson Water Supply Co. v. Bardech et al., 
 (1915) 8 Alta. L. E. 305, 21 D. L. E. 761. 
 
 Lands agreed to be conveyed -by a city to a purchaser buying 
 ,same as an industrial site upon his building and equipping a fac- 
 
THE ALBEETA MECHANICS' LIEN ACT. 245 
 
 tory and performing certain conditions as to trie operation of the 
 factory, are not exempt from having a mechanics' lien enforced 
 against the city's title fgr the cost of the building, if the city has 
 failed to post up the notice under this section. Bevehtdice Saw 
 Mill Co. ,v, Alberta Bottle Go., (1915) 21 D. L. E. 779; 9 Alta. 
 L. E. 155. ' 
 
 ■ This section does not limit the liability of the " owner " to 
 such alterations and repairs (made by his tenant) as increase the 
 value of-his interest in the land and premises. The lien of those 
 who, furnish materials and do work in altering and repairing the 
 premises will be enforced against the interest of the landlord. 
 
 The provisions of this section preclude the application to it 
 of the' definition of "owner" in sub-section 4 of section 2.' , 
 
 Alterations and repairs are not' excluded from the liability 
 imposed 1 by this section, but- the landlord can avoid liability by 
 giving the notice prescribed by this section. Peters, Bohls & Go. 
 v. MacLean, (1913) 25 W. L. E. 358, 13 D. L. E. 519. 
 i The onus of proving the posting of the notice mentioned in 
 this section is on tib^ " owner." Beiielstohe Saw Mill Go. y. Al- 
 berta Bottle Company, (1915) 9 Alta. L. E. 155. 
 
 " Owner ". is a variable term, and as used in this section will 
 include " leaseholder '.' when read with the* interpretation clause. 
 Prentice v. Brown, 7 Alta. L. E. 454, 17 D. L. E. 36. 
 
 " Subsequent encumbrancers " who are not to be made parties 
 to the action, but who are to be served with notice of the judg- 
 ment or order in a vendor's action for specific performance under 
 Alberta ■ Eule 47, mean those encumbrancers whose claims arose 
 subsequently to the making, of the agreement of sale, and include 
 one claiming under a subsequent mechanics' lien although he, may 
 be entitled to priority over the vendor's claim for the whole or a 
 part of his claim either under this section, by reason of the vendor 
 as " owner " having had knowledge of tb.e construction and not 
 disclaimed, or under section 9 by showing an increased value in 
 the property. The rights of such mechanics' lien claimant should 
 be determined in the same action brought by the vendor,, and such 
 claimant should not be required, to bring a separate action for such 
 purpose. Canadian Pacific Bailway Company v. The Canadian 
 Wheat Growing Company,; (1919) 2 W. W. E. 313, 14 Alta. L. 
 E. 452; 47 D. L. E. 102. 
 
246 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 - 12. Insurance moneys. — Where any of the property upon whieh 
 a lien is given by this Act is wholly or partly destroyed by fire, 
 any insurance receivable thereon by the owner, prior mortgagee 
 or chargee, shall take the place of the property so destroyed, and 
 shall, after satisfying any prior mortgage or charge in the manner 
 and to the extent set out in section 9 hereof, be subject to the claims , 
 of all persons for liens to the same extent as if such moneys were 
 realized by the sale of such property in an action to enforce a 
 lien. 
 
 Where the claimants of the proceeds of a policy of fire insur- 
 ance are jointly interested, but not adversely to one another, in 
 establishing as great a liability as possible in the- insurance com- 
 pany, and the question outstanding, once the amount of such lia- 
 bility is settled, is that of the claimants' respective rights and 
 priorities under the Mechanics' Lien Act, an application by the 
 company for leave to interplead is not the proper procedure, for 
 it to take in respect to the amount which it admits to be due.- 
 (Per Stuart, J., Harvey, C.J., concurring, Beck, J., contra.) 
 HyUdman, J., concurred with Walsh, J., below, in the view that 
 the liability of the company is one for unliquidated damages and 
 not for a debt or money and therefore it is not entitled to inter- 
 plead. 
 
 The effect of this section is that an insurance company which 
 admits liability in respect to property against Which mechanics' 
 liens are filed is a trustee of the amount of such liability, and 
 where, in such circumstances, there is a dispute between the lien- 
 holders and mortgagees as to how the money is to be divided, s. 27 
 of The Trustee Ordinance, c. 119, C. 0., is applicable and, there- 
 fore, the company is entitled under Rule 448 to petition for leave 
 to pay the money into Court. (Per Stuart, J., Harvey, C.J., con- 
 curring). The Liverpool and London and Globe Insurance Com- 
 pany, Limited v. Kadlac and Imperial Lumber Co., (1918) 13 
 Alta. L. E. 498. 
 
 13. Lien expires in 31 days after completion of work unless 
 registered. — Every lien upon such building, erection, mine, works 
 or improvements, or land shall absolutely cease to exist after the 
 expiration of thirty-five days, except in the case of a claim for 
 
THE ALBERTA MECHANICS' LIEN ACT. 247 
 
 wages owing for work in, at or about a mine, in which case the 
 lien shall cease after the expiration of sixty days after the claim- 
 ant has ceased from any cause to work thereon, 'or place or furnish 
 the materials therefor ; provided, however, that any laborer shall 
 not be held to have ceased work upon any building, erection, mine, 
 works or improvements until the completion of the same, if he has 
 in the meantime been employed upon any other work by the same 
 contractor, "unless in the meantime the person claiming the lien 
 shall -file in the land titles office of the land registration in which 
 the land is situate or in the office of the clerk of the Superior 
 Court of the province in the judicial district in which the land 
 lies, an affidavit sworn before any person authorized to take oaths, 
 stating in substance : 1915, c. 2, s. 27. 
 
 (a) The name and residence of the claimant, and of the 
 owner of the property or interest to be charged; 
 
 (b) The particulars .of the kind of works or improvements 
 done, made or furnished; 
 
 (c) The time when the works or improvements were finished 
 of discontinued; 
 
 (d) The sum claimed to be owing and when due; 
 
 (e) The description of the property to be charged; 
 
 » (f) The address for service of the claimant. 1915, c. 2, s. 27, 
 
 which affidavit shall be received and- filed as a lien against the 
 property, interest or estate. Every registrar under the Land 
 Titles Act, and every such clerk shall be supplied with printed 
 forms of such affidavits in blank, which may be in the form or 
 to the effect of schedule A to this Act, and which shall be supplied 
 to every person requesting the same and desiring to file a lien. 
 Every such registrar and clerk shall keep an alphabetical index 
 of all claimants of liens, and the persons against whom such 
 liens are claimed, which index shall be open for inspection during 
 office hours, and it shall be the duty of such registrar and clerk . 
 to decide whether- his is or is not the proper office for the filing of 
 such affidavits, and to direct the applicant accordingly; and no 
 
248 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 affidavit shall be adjudged insufficient on the ground that it was 
 not filed in the proper registry office or clerk's office. The said 
 claim of lien may be described as a mechanic's lien: 
 
 Provided, however, that no lien shall be filed unless the claim 
 or joined claims shall amount to or aggregate $20 or more. 
 
 (2) Claims to be filed as encumbrances, with registrar.- — Upon 
 the filing of such affidavit in any such land titles office, the 
 registrar shall enter and register the claim as an encumbrance 
 against the land or the estate or interest in the land therein de- 
 scribed as provided in the Land Titles Act. 
 
 (3). With clerk. — -Upon -the filing of such affidavit in the 
 office of any such clerk the clerk shall forthwith transmit to the 
 registrar of the land Tregistration district in which the land lies a 
 certificate of the filing of such lien in his office, and specifying the 
 particulars in the affidavit contained, and upon, the receipt by the 
 said registrar of such certificate he shall enter and register the 
 claim as an encumbrance against the land oe the estate or interest 
 in the land therein described as provided in the Land Titles Act. 
 
 Under a similar section of the British Columbia Act it has 
 been decided that the omission to register in the Land Eegistry 
 Office within the specified time was not cured by the curative sec- 
 tion, and is fatal to the validity of the lien, even where registration 
 was effected within the prescribed time in the County Court 
 Eegistry. See Dale v. International Mining Syndicate, (1917) 
 25 B. C. E. 1. 
 
 Where the last day for the filing of an affidavit falls on a Sun- 
 day, an action to enforce the lien is in time if brought on the fol- 
 lowing day. Revelstohe Saw Mill Co. v. Alberta Bottle Co., (1915) 
 21 D. L, E. 779. 
 
 An owner's acceptance of the contractor's order given in return 
 for the release of a materialman's lien operates as an accord and 
 satisfaction of the materialman's claim, which cannot be revived 
 by the subsequent delivery of additional material. Wortman v. 
 Frid Lewis Co., 9 W. W. E. 812. 
 
 In determining when the lien claimant has ceased to work the 
 doing of work or supplying materials even of a trivial character. 
 
THE ALBERTA MECHANICS' LIEN ACT. 249 
 
 if done or furnished in good faith, should be considered. Clarice v. 
 Moore, (1908) '1 Alta. L. R. 49, 8 W.'L. R. 405. See Sayward v. 
 Dunsmuir, (1906) 11 B. C. R. 375 ; Steintoan v. Kosculc,, 4 W. L. R. 
 514; and Swanson v. MolUson, (1907) 6 W. L. R., 678. 
 
 This section will protect a laborer who has done his last work 
 more than 35 days before his lien was filed. Stafford v. McKay, 
 (1919) 2 W. W. R. 280. 
 
 One claim of lien can be filed in respect of all goods supplied; 
 though from different principals, and the time of filing it will 
 run from the date of the last delivery irrespective of whose goods 
 constitute it. Gorman, v. Archibald} (1908) 1 Alta. L. R. 524. 
 Delivery of the certificate of Us pendens to the land titles office 
 before ,4' p.m. on the last day for filing is, as .against the " owner " 
 a sufficient 'filing within the Act, notwithstanding that the regis- 
 tration is not completed until the next day. Gorman v. Archibald, 
 (1908) 1 Alta. L.R. 524. 
 
 When a claim of a mechanics' lien is prepared in respect to and 
 registered against land other than that which is properly subject to 
 the*lien, an order giving leave, to correct the claim can be made 
 in Alberta only by the Court or Judge who is trying the action to 
 enforce the lien, and cannot be made after the expiration of 31 
 days within which the affidavit prescribed by this section must be 
 filed in the Land Titles Office. McDonald v. McKenzie, (1914) 
 7 Alta. L. R. 435. See also Bafuse v. Hunter, 12 B. C. R. 126. 
 No court has authority to re-create a lien which has ceased to 
 exist under the statute. McDonald v. McKenzie, supra. 
 
 A plumbing contract to furnish and instal a hot air furnace for 
 heating a house, including the necessary pipes, registers and fit- 
 tings, comprises the furnishing and installation of the incidental 
 cold air registers as a material part thereof; and the time within 
 which a mechanics' lien may be filed for such work is to be com- 
 puted with reference to the installation of the cold air registers, 
 where that is the last work done under the contract, notwithstand- 
 ing, a delay of two months after the installation of the furnace 
 itself and of the other incidental fittings. Colling v. Stimson et 
 al., (1913) 10 D. L. R. 597, 6 Alta. L. R. 71. 
 
 This section which makes necessary the filing in the land titles 
 office of an affidavit in support of the lien, does not apply to a lien 
 under section 5. 
 
 14. Substantial compliance with section 13 only necessary. — 
 
 A substantial compliance only with section 13 of this Act' shall 
 
250 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 be required and no lien shall be invalidated by reason of failure to 
 comply with any of the requisites thereof, unless in the opinion of 
 'the .court or judge adjudicating upon the lien under this Act the 
 owner, contractor, sub-contractor, mortgagee or other person is 
 prejudiced thereby, ahd i then only to the extent to which he is pre- 
 judiced, and the Court or judge may allow the affidavit and state- 
 ment of claim to be amended accordingly. 
 
 The word " prejudiced " in this section means " unjustly made 
 to suffer." Rendall et al. v., Warren et al., (1915) 21 D. L. E. 
 801. 
 
 The filing of an affidavit in support of a mechanics' lien with 
 the deputy clerk of a District Court, instead of with a deputy 
 qlerk of the Supreme Court, where one person carries on both of 
 said offices in the same room in the same court house, is a defect 
 in the proceedings which is covered by the remedial provisions in 
 this section, although it is not covered by those of section 13. 
 Revdlstoke Saw Mill Company v. Alberta Bottle Company et al., 
 (1915) 9 Alta. L. E. 155; 21 D. L. E. 779, 7 W. W. E.' 1002* 30 
 W. L. E. 312. 
 
 Ah error in the affidavit misnaming the company for whom the 
 work was done as equitable owner of the land is cured by this sec- 
 tion, where no prejudice has been shown. Revelstolce Saw Mill Co. 
 v. Alberta Bottle Co., supra. 
 
 This section may operate to make a lien effective although the 
 affidavit of lien did not shew, as required by section 13, the name 
 and residence of the owner of the property or interest to be 
 charged, ex. gr. on a lien which the affidavit shewed to be for work 
 on a school identified by name and location, although the' board of 
 school trustees was not named as owner. Foster, v. Brocklebank, 
 (1915) 22 D. L. E. 38, 8 W. W. E. 464. 
 
 15. Liens to pass on death to legal representatives or may he 
 assigned. — In the event of the death of a lienholder his lien shall 
 pass to his personal representatives, and the right of a lienholder 
 may be assigned by any instrument in writing subject to the limita- 
 tions contained in section 17 hereof. 
 
 16. During continuance of lien property must not be removed. 
 
 ■ — During the continuance of any lien no portion of the property 
 
THE ALBEKTA MECHANICS' LIEN ACT. 251 
 
 affected thereby shall be removed to the prejudice of such lien and 
 any attempt at such removal may be be restrained on application 
 to the court or judge. 
 
 17. Receipted pay rolls to be posted on works. — No contractor 
 or sub-contractor shall be entitled to demand or receive any pay- 
 ment in respect of any contract where the contract price exceeds 
 $500 until he or some person in charge of the works or improve- 
 ments shall post upon the works or improvements a copy of the 
 receipted pay roll, from the hour of 12 a.m. to the hour of 1 p.m. 
 on the first' legal day after pay day, and shall have delivered to the 
 owner, or other person acting on his behalf, the original pay roll 
 containing the names of all laborers who have done work for 
 him upon such works. or improvements;, with a receipt in full from 
 each of the said laborers, with the amounts which were due and 
 had been paid to each of them set opposite their respective names, 
 which pay roll may be in the form of schedule C hereto, and no 
 payment made by the owner without the delivery of such pay roll 
 shall be valid for the purpose of defeating or diminishing any lien 
 upon such property, estate or interest in favor of any such laborer. 
 No assignment by the contractor or any sub-contractor of any 
 moneys due in respect to the contract shall be valid as against any 
 lien given by this Act. As,to all liens, except that of the contractor, 
 the whole contract price shall be payable in money, and shall not 
 be diminished by any prior or subsequent indebtedness, offset or 
 counterclaim in favour of the owner against the contractor: 
 
 Provided, however, that the failure to comply with the pro- 
 visions of this section respecting the posting of the receipted pay 
 roll and delivery of the same shall not prejudice the right of lien 
 of the contractor or sub-contractor so in default, or his right to 
 maintain an 1 action or other proceeding to enforce the same, but 
 the court or judge on application may at -any stage before trial 
 order a stay of proceedings until proof be made to his satisfaction 
 that all workmen employed by such contractor or sub-contractor 
 on such works or improvements haye been paid in full, and may 
 
252 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 in such" order limit the time within which such proof may be' 
 furnished, and if the same be not furnished to the satisfaction of 
 such court or judge such action may be dismissed, and in any 
 such action or proceeding the court or judge may in his discretion 
 award costs against the plaintiff in any event and 'notwithstanding 
 that he may have successfully maintained his action to judgment. 
 1908, c. 20, s. 12. 
 
 The effect of this section is that as between the owner and lien- 
 holders an agreement to pay the contract price or any part of it, 
 otherwise than in money, is ineffective to discharge the owner, 
 False Greek Lumber Go. v. Sloan, (1911) 17 W. L. E. 525, 3 Alta. 
 L. E. 363. 
 
 This section is intended solely to protect the laborers, and to 
 afford the owner the means of securing himself from liability to 
 the laborers, and non-compliance by' the contractor with this section 
 does not prevent his lien coming into existence, or nullify a lien 
 already existing, or prevent the lienholder from keeping it alive by 
 commencing proceedings. Spears v. Bannerman, (1907) 1 Alta. 
 L. E. 98. . 
 
 The latter part of this section applies only to an " indebtedness, 
 offset or counterclaim " by the owner against the contractor aris- 
 ing dehors the contract. False Creek Lumber Co. v. Sloan, (1911) 
 17 W. L. E. 525., See Boss v. Gorman, 1 Alta. L. E. 516. 
 
 The effect of the words of this section is that, as between the 
 owners and the holders of mechanics' liens, an agreement to pay 
 the contract price, or any part of it, otherwise than in money, is 
 ineffective to discharge the owner. The distinction between the 
 agreement to pay in future and actual payment effected in accord- 
 ance with the agreement is of the /greatest importance. The latter 
 part of this section applies only to an " indebtedness, offset or 
 counterclaim" by the owner against the contractor arising dehors 
 the" contract. False Cre'ek Lumber Co. v. Sloan, (1911) 17 W. L. 
 E. 525. 
 
 This section does not operate so as to prevent payments made 
 by the owner to creditors of the contractor, under an arrangement 
 between the owner and the contractor, from being effective as pay- 
 ments on account of the contract price, in the ascertainment of the 
 amount due from the owner to the contractor, upon which alone 
 the lien of materialmen attaches under section 32 of the Act, as 
 
THE ALBERTA MECHANICS' LIEN ACT. 253 
 
 amended by section 12 of the Statute Law Amendment Act, 1908. 
 Secus, if the arrangement had been one for payment in the fu- 
 ture; but, once the arrangement was acted upon and payments 
 were made in pursuance of it, the assignment (if the arrangement 
 amounted, to an assignment) ceased to be 01 importance, and the 
 payments must be regarded as payments to the contractor, — no no- 
 tice in writing having been given by the plaintiffs, — land the owner 
 was protected to the amount of these payments. Pioneer Lumber 
 Go. v. Rooney, (1911) 19 W^ L. E. 913. See False Creek Lumber 
 Go. v. Sloan, 17 W. L. E. 525, 3 Alta. L. E. 363. 
 
 The onus is not upon the plaintiffs (materialmen) to show 
 that there is a sum of money owing by the owner to the contractor 
 out of which the lien can be realized. If. this is disputed it is a 
 matter of defence; Gorman & Co. v. Archibald; Anderson *?. , 
 Archibald, (1908) 1 Alta. L. E. 524. 
 
 The owner who makes payments to the contractor without satis- 
 fying himself that all wages have been paid, does so at his own risk. 
 Stafford v. McKay, (1919) 2 W. W. E. 280. 
 
 Enfokcement. 
 
 18. Consolidation of liens. — Any number of lienholders may 
 be joined in one suit and all suits or proceedings brought by a 
 - lienholder shall be brought on behalf of all lienholders who may 
 be made parties to such suits or proceedings within the time men- 
 tioned in section 35 hereof: 
 
 Provided that the moneys realized in such ,isuit .shall be dis- 
 tributed amongst the lienholders, parties to such suit or proceed- 
 ings, in the order and manner provided in section 30 of this Act. 
 Any lienholder not originally joined may be made a party .to 
 such suit or proceedings by order of a judge, upon ex parte appli- 
 cation supported by an 'affidavit stating the particulars of the 
 claim, and any lienholder so joined in any such suit or proceedings 
 shall be deemed to have complied with section 35 of this Act as 
 fully as if he had instituted a suit in his own behalf. 
 
 'See Gardners. Gorman, (1907) 1 Alta". L. E. 106; Head v. 
 Coffin, 2 Alta. L. E. 663; Howlett & Bell v. Doran, (1913) 24 W. 
 L. E. 401, 11 D. L. E. 372, 4 W. W. E. 674. 
 
254 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 An unregistered foreign company is entitled to a mechanics' 
 lien inasmuch as the enforcement of the lien does not involve the 
 acquisition or holding of lands or any interest therein or the regis- 
 tration of any title thereto under the Land Titles Act within the 
 meaning of s.-s. 2 of s. 11 of the Foreign Companies Ordinance. 
 Wortman v. Frid-Lewis Co., (1915) 9 W.'W. E. 812. 
 
 Where action has been brought to enforce a mechanics' lien 
 under a building contract, other claimants against the same pro- 
 perty should make ex parte application to be added to the action, 
 instead of bringing separate actions, and where they pursue the 
 latter course they are entitled to such costs only as they would 
 have properly ' incurred in making an ex parte application. How- 
 lett v. Doran, (1913) 11 D. L. E. 372, 24 "W. L. E. 401. 
 
 A plaintiff in an action to enforce a mechanics' lien is not 
 obliged to add as a party an enciimbrancee whose claim was created 
 pendente lite. Canada Foundry Co. v. Edmonton Portland Cement 
 Co., (1919) 2 W. W.'E. 310. v 
 
 19. Owner may apply to have suits consolidated. — If more 
 than one suit is commenced in respect of the same contract the 
 owner or contractor shall apply to have- the causes consolidated, 
 and failing to do so he shall pay the costs of such additional suit- 
 or suits. Save as hereinafter mentioned the owner complying with 
 the provisions of this' Act shall not be liable for any greater sum 
 than he has agreed to pay by contract. 
 
 The expressions " the owner shall not be liable " and " to' make 
 the owner liable " contained in this section and section 32, do not 
 refer to personal liability, but refer only to the liability of the pro- 
 perty to which a lien attaches. The effect of these two sections' is 
 to limit the amount of the liens for which the property can be 
 liable to the amount of the contract price; and when the time is 
 reached when payments already properly made in satisfaction or 
 prevention of liens and the amount unpaid for which liens exist, 
 together equal the contract price, no liens can arise thereafter. 
 BrecTcenridge & Lund v. Short, (1909) 2 Alta. L. E. 71; 10 W. L. 
 E. 392; 43 Can. S. C. E. 59. 
 
 20. Judge may order consolidation of actions. — If two or moTe 
 actions are brought in respect of the same contract or work the 
 court or judge may by order on the application of any person 
 
THE ALBERTA MECHANICS' LIEN ACT. 255 
 
 interested consolidate all the actions and may make such order as 
 to costs as he shall think fit. 
 
 Once an action to enforce a mechanics' lien is commenced, it is 
 improper for another lienholder, in respect of the same subject- 
 matter, to commence an action, because all suits or proceedings 
 brought by a lienholder shall be taken to be brought on behalf of 
 all lienholders who became parties within the time limited for 
 instituting proceedings. Gardners. Gorman, (1907) 1 Alta. L. E. 
 106, 7 W. L. E. 630. 
 
 21. Summary proceedings to enforce liens. — Proceedings to 
 enforce a lien or liens under this -Act may he taken before the, 
 court or a judge in a summary way by originating summons sub- 
 ject to the provisions in that behalf of the Judicature Ordinance, 
 and of the rules of court, which are now or which shall hereafter be 
 in force in the province. The court or judge upon the return of the 
 summons may either proceed to take the accounts and make the 
 necessary inquiries for the purpose of determining the matter, or he 
 may try or direct the trial of any issue or issues in relation thereto 
 as he shall, think necessary, and he may give directions as to the 
 conduct of any such issue, the parties thereto, pleadings, particu- 
 lars, production and discovery .therein (if any such proceedings be 
 by him thought necessary), and any other directions he shall deem 
 advisable for the proper disposal and trial thereof; and in default 
 of payment of any amount that shall be found to 'be due, the court 
 or a judge may direct the sale of the estate or interest charged 
 and such further proceedings may "be taken for the purposes afore- 
 said as the court or judge may think proper, and, any conveyance 
 under the seal of such court or judge shall be effectual to pass the 
 estate or interest sold, and the fees and costs in all proceedings so 
 taken shall be such as are payable according td the ordinary pro- 
 cedure of the said^ court, and except as herein otherwise provided 
 the proceedings shall be as nearly as possible according to the prac- 
 tice and procedure in force in the said court.. 1909, c. 4, s. 10. 
 
 22. Proceedings by suit: — Proceedings to enforce a lien or liens , 
 tinder this Act may also 'be taken by suit in the ordinary way, pro- 
 
256 THE LAW OF MECHANICS 1 LIENS IN CANADA. 
 
 vided, however, that the court or judge hef ore whom such action is 
 tried may in dealing with the question of the costs of such action 
 take into consideration the difference in costs occasioned by rea- 
 son of an action having been brought instead of proceedings hav- 
 ing been taken by originating summons as provided in section • 21 
 hereof, and may make such order as to costs therein, both as be* 
 tween solicitor and client as well as between party and party, as to 
 him shall seem just. 1909, c. 4 ; s. 10. 
 
 23. Appeal to Supreme Court. — There shall be an appeal to 
 the Supreme Court en lane from the decision of the court or a 
 judge hereunder in all matters where the amount of the lien or 
 the total amount of the liens joined in one action or proceeding 
 is $200 or over, but where the amount of the lien or the total 
 amount of the liens so joined is less than $200, the decision of the 
 court or judge of first instance shall be final. 1909, c. 4, s. 10. 
 
 24. Judgment for amount of claim. — Upon the hearing of 
 • any claim for a lien the^ eourt or judge may so far as the parties 
 
 before him, or any of them, are debtor and creditor, give judgment 
 against the former in favor of the latter for any indebtedness or 
 liability arising out of the claim in the same manner and to the 
 same extent as if such indebtedness or liability had been sued upon 
 in the said court in the ordinary way without reference to this Act. 
 (See Mallet v. Kovar, (1910) 14 "W. L. E. 327. 
 
 25. Summons to show cause why lien should not be cancelled. — 
 
 Any person against whose property a lien hasl^een registered under 
 the provisions of this Act may apply to the court or judge on an 
 affidavit setting forth the registry of the same, and that hardship 
 or inconvenience ,is experienced or is likely to be experienced 
 thereby, with the reasons for such statement, for a sum- 
 mons calling upon the opposite party to show cause why 
 such lien should not be cancelled upon sufficient security being 
 given. Such summons, together with a copy of the affidavit on 
 
THE ALBEBTA MECHANICS' LIEN ACT. 357 
 
 ■which the same is granted, shall be served on the opposite party 
 and made returnable in three days after the issuing thereof, or in 
 such greater or less time as the judge may direct. 
 
 26. Judge may order cancellation of lien.— On the return of 
 such summons the court or judge may order the cancellation of 
 such lien, either in whole or in part, upon the giving of security 
 by the party against whose property the said lien is registered to 
 the opposite party in an amount satisfactory to the said court or 
 judge, and upon such other terms, if any, as the court or judge 
 may see fit to impose. 
 
 27. On Judge's order lien to be cancelled. — The registrar in 
 whose office the said lien is registered shall on the production of 
 such order file the same and cause the said lien to be cancelled as 
 to the property affected by the order. 
 
 28. In certain cases owner or contractor to pay costs. — When 
 it shall appear to the court or judge in any proceedings to enforce a 
 lien or liens under this Act that such proceedings have arisen from 
 the failure of any owner or contractor to fulfil the terms of his 
 contract or engagement for the work in respect of which the liens 
 are sought to be enforced or to comply with the provisions of this 
 Act, such court or judge may order the said owner or contractor, 
 or either of them, to pay all the costs of such proceedings in addi- 
 tion to the amount of the contract or sub-contract, or wages 'due 
 by him or them to any contractor, sub-contractor or laborer, and 
 may order a final judgment against such contractor or owner or 
 either of them in default for such costs with execution as provided 
 in section 21 of this Act. 
 
 See Pioneer Lumber Co. v. Booney, (1911) 19 W. L. E. 913. 
 
 29. leasehold property. — If the property sold in any proceed- 
 ings under this Act shall be a leasehold interest the purchaser at 
 any such sale shall be deemed to be the assignee of such lease. 
 
 M.L. — 17. 
 
258 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 30. Distribution of moneys realized under Act. — All moneys 
 realized by proceedings under this Act' shall he applied and dis- 
 tributed in the following order : 
 
 First. — The costs of all the lienholders of and incidental to 
 the proceedings, and of registering and proving the liens ; 
 
 Second. — Six weeks' wages (if so much be owing) of all 
 laborers employed by the owner, contractor or sub-contractor; 
 
 Third. — The" several amounts -owing , for material, placed or 
 furnished, in respect of the works or improvements; 
 
 Fourth. — The amounts owing the sub-contractor and other 
 persons empldyed by the owner and contractor; 
 
 Fifth. — The amount owing the contractor. 
 
 (2) Each class of lienholders shall rank pari passu for their 
 several amounts, and the portions of said moneys available for 
 distribution shall be distributed among the lienholders pro rata 
 according to their several classes and rights.- 
 
 (3) Any balance of said moneys remaining after all 1 the above 
 amounts have been distributed shall be payable to the owner or 
 other person legally entitled thereto: 
 
 Provided, however, that when any laborer has more than six 
 weeks' wages owing to him by any sub-contractor, contractor or 
 owner, the court or judge shall cause the extra sum beyond six 
 weeks' wages to be deducted out of any sum actually coming under 
 the above" distribution to such sub-contractor, contractor or owner, 
 and shall order the same to be paid to such laborer. 
 
 A person who has contracted to do a certain specified part of a 
 building contractor's work and to supply all the needed material 
 therefor for one set sum can only rank in priority as a sub- 
 contractor, and not as a materialman under this section. Wort- 
 man v. Frid-Lewis Co., (1915) 9 W. W. E. 812'. See also Cough- 
 lin v. Carver, 7 W. W. E. 457. 
 
 In an action to enforce a mechanics' lien for materials sup- 
 plied to a building contractor, the owner is ordinarily entitled to 
 costs out of the fund in court before it is distributed. Howlett v. 
 Doran, 11 D. L. E. 372, 24 W. L. E. 401. Where action has been 
 brought to enforce a mechanics' lien under a building contract, 
 
THE ALBERTA MECHANICS' LIEN ACT. , 259 
 
 other claimants against the same property should make ex parte 
 application, under section 18, to be added to the action, instead 
 of bringing separate actions. Howlett v. Dorari, supra. 
 
 As to mechanics' liens as " subsequent encumbrances," where 
 vendor sues for specific performance, see C. P. R. Co. v., The Cana- 
 dian Wheat Growing Co., 14 Alta. L. E. 453. 
 
 31. Device to defeat priority of wage-earners void. — Every 
 
 device by an owner, , contractor or sub-contractor, adopted to de- 
 feat the priority given to wage-earners for their wages by this Act 
 shall, as against such wage-earners, be null and void. 
 
 32. Owner's liability as to wages. — No lien, except for not 
 more than six weeks' wages in favor of laborers, shall attach so as 
 to make the owner liable for a greater sum than the sum owing by 
 the owner to the contractor at the time of the receipt by the owner 
 or person having superintendence of the work on 'behalf of the 
 owner, of notice in writing of such lien and of the amount thereof, 
 or which may become owing by the owner to the contractor at any 
 time subsequent thereto while such lien is in effect. ' 1908, c. 20, 
 s. 12. 
 
 In order to enforce a mechanics' lien under this section a 
 "notice in writing of such lien and of the amount thereof " must 
 be given to the " owner or person having superintendence of the 
 work on behalf of the owner." City of Calgary v. Dominion Radia- 
 tor Co., (1918) 40 D. L. E. 65. 
 
 (2) What latest notice shall contain. — Where more than one 
 such notice is given by a lienholder to the owner in regard to 
 material furnished to the same contractor the lienholder shall in 
 the latest notice so given state the total amount or 'balance owing 
 at the time of the giving of such latest notice toy the contractor to 
 the lienholder, and in default of such total amount or balance 
 being so stated it shall, with respect to any payments made by the 
 owner, be taken to be the amount of the lien mentioned in the said 
 latest notice, and no lien or liens of such lienholder shall attach 
 so as to make the owner liable for more than the amount or the 
 total amount or balance so ascertained. 1908, c. 20, s. 12. 
 
360 ■ THE LAW OF MECHANICS'' LIENS IN CANADAv 
 
 (3) Statement of lienholder. — "Where notice of a lien has been 
 given as in this section provided the lienholder shall upon request 
 furnish to the contractor or owner a statement in writing of the 
 amount or balance due and payable in respect of the material, for 
 the supplying or furnishing of which such lien is claimed, and no 
 lien or liens of such lienholder for material supplied or furnished 
 up to the time of the giving of such statement shall attach so as 1jo 
 make the owner liable for any greater sum than is. so stated. 1908, 
 c. 20, s. 12.' 
 
 (.4) Court may order statement to be given. — The contractor 
 or owner may apply to the court by originating summons as set 
 out in the Judicature Ordinance, to compel any lienholder who 
 refuses or neglects to do so, to furnish such a statement as in the 
 next preceding sub-section required or with respect to the accuracy 
 of any statement furnished in accordance with the provisions of 
 this section, and the court may upon such application make such 
 order in the premises and as to the costs of the application as to 
 the court shall seem just. 1908, c. 20, s. 12. 
 
 This section does not protect an " owner " who is not under a 
 contractual obligation to pay the persons seeking to enforce a lien. 
 
 Payment actually made, by the owner to sub-contractors under 
 an arrangement with the contractor is payment to the contractor 
 so as to protect the owner under this section, and is not within 
 section 17, which makes invalid, as against the lien, assignments' 
 by a contractor or sub-contractor of any moneys due in respect of 
 the contract. Pioneer Lumber Co. v. Rooney, (1911) 4 Alta. L. 
 ' E. 1 ; see also False Creek Lumber Co. v. Sloan, 3 Alta, L. E., 17 
 W. L. E. 525; Swanson v. Mollison, (1907) 6 W. L. E. 678 J 
 Breckenridge v. Travis, 2 Alta. L. E. 71, 43 S. C. E. 59. 
 
 This section, it is alleged, was enacted to overcome the diffi- 
 culty in Breckenridge & Lund v. Short, 2 A. L. E. 71, and Travis 
 v. Breckenridge Land Co., 43 Can. S. -C. E. 59. 
 
 The existence of the lien itself and its extent depend upon the 
 provisions of the Mechanics' . Lien Act, and, therefore, legislation 
 in other Acts cannot be considered as neutralizing or modifying 
 the limitation upon the extent of the lien which the mechanics' 
 
THE ALBERTA MECHANICS' LIEN ACT. 261 
 
 lien explicitly imposes. City of Calgary v. Dominion Radiator 
 Co., (1917) 40 D. L. E. 65. 
 
 The effect of this section is to make the giving of notice in 
 writing to the owner a condition of the mechanics' or material- 
 man's lien attaching so as to make the owner liable, just as other 
 sections of the Act make registration and the institution of an 
 action within defined period conditions of its preservation. 
 
 A notice given by a sub-contractor under this section cannot 
 avail to give the sub-contractor a priority over those who by virtue 
 of section 30. have priority over him, but who have given no notice 
 under this section. Wortman v. Frid-Lewis Co., (1915)- 9 W. 
 W. E. 812; 33 W. L. E. 110. 
 
 The wages claims of laborers which are given a special privi- 
 lege under this section are the wages earned within a continuous 
 period of six weeks, counting backward from the last day's work. 
 Rendall et al. v. Warren et al., (1915) 21 D. L. E. 801. 
 
 A sub-contractor is not a " laborer " so as to acquire as to 
 labor done as part of the contract, the special privileges given to 
 laborers. The priority acquired by notice under this section is a 
 priority only over other lienholders of the same class as fixed by 
 section 30, and does not interfere with the priority fixed by that 
 section as between the different classes of lienholders. Rendall 
 et al. y. Warren et al., supra. 
 
 No fund exists to which can attach a mechanics' lien for ma- 
 terial furnished a contractor, where, on the construction of the 
 building being taken over by the owner in accordance with the 
 terms of a contract, the money already paid the contractor and that 
 subsequently expended in completing the work, exceeded the con- 
 tract price. Canadian Equipment and Supply Co. v. Bell et al., 
 (1913) 11 D. L. E. 820, 24 W. L. E. 415. 
 
 In order to enforce a mechanics' or a materialman's lien under 
 this section a " notice in writing of such lien and of the amount 
 thereof " must be given to the " owner, or person having superin- 
 tendence of the work on behalf of the owner." Calgary v. Do- 
 minion Radiator Co., 56 Oan. S. C. E. 141, (1918) 1 W. W. E. 
 137, 40 D. L. E. 65. 
 
 This section as amended is for the protection of an owner who 
 is under a personal contractual obligation to pay and not other- 
 wise. Prentice v. Brown, 7 Alta. L. E. 454, 17 D. L. E. 36. 
 
262 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 I 
 
 33. Materials exempt from execution, — Where any mechanic^ 
 artisan, machinist, builder, miner, contractor or any other person 
 has furnished or procured materials for use in the construction,, 
 alteration or repair of any building, erection or mine at .the re- 
 quest of and for some other person, such materials shall not 
 be subject to execution or other process to enforce any debt (other 
 than for the purchase thereof), due by the person furnishing or 
 procuring such materials, and whether the same have or have not 
 been in whole or in part worked into or made part of such building 
 or erection. 
 
 34. Enforcing liens for the improvement of chattels. — Every 
 mechanic or other person who has bestowed money or skill and 
 materials upon any chattel in the alteration and improvement of 
 its . properties, or' increasing its value, so as thereby to become 
 entitled to a lien upon such chattel or thing for' the amount or 
 value of the. money, skill, or materials bestowed, shall, while 
 such lien exists, but not afterwards, in case the amount to which 
 he is entitled remains unpaid for three months after the same 
 ought to have been paid, have power to sell the chattel in 
 respect of which the lien exists, on giving two weeks' notice by 
 advertisement in a newspaper published in the city, town or judicial 
 district in which the woTk was done, or in case there is no news- 
 paper published in such city, town or judicial district, then in a 
 newspaper published nearest thereto, stating the name of the per- 
 son indebted, the amount of his indebtedness, a description of the 
 chattel to be sold, the time and place of sale; and after such sale 
 such mechanic or other person shall apply the proceeds of such sale 
 in payment of the amount due to him, and the costs of advertising 
 and sale, and shall pay over the surplus (if any) to the person 
 entitled thereto on application being made to him therefor, and a 
 notice in writing of the result of the sale shall be left at or posted 
 to the address of the owner at his last known place of abode or 
 business. 
 
the alberta mechanics' lien act. 263 
 
 Expiration, Cancellation and Discharge. 
 
 35. When a lien shall expire. 1 — Every lien in respect of which 
 an affidavit has been filed against the title of any land or any 
 interest therein shall be deemed to have lapsed after the expiration 
 of sixty days after service, in the manner in which service of process 
 is usually made and proved to the satisfaction of the registrar of 
 land titles for the district in which the said affidavit has been filed, 
 of a notice in form A in the schedule D to this Act, or to the like 
 effect, shall have been made upon the lienholder, unless before the 
 expiration of the said period of sixty days the lienholder shall have 
 taken proceedings in court to enforce his lien, ,and shall have filed 
 or caused, to have been filed a certificate thereof in form B in the 
 schedule D. to this Act, or to the like effect, in the land titles office 
 for the said district: 1915, c. 2, s. 27. 
 
 Provided that the court or judge may, upon an ex parte applica- 
 tion, shorten the said period of thirty days to such period as he 
 shall specify in such order, and a copy of such order shall be served 
 with the notice in this section referred to. 
 
 . (2) Such certificate may be granted by the court or judge in 
 which or before whom proceedings are instituted or by the clerk 
 of, such court. 1907, c. 5, s. 17. Repealed and substituted 1915, 
 c. 2, s. 27. 
 
 In computing the statutory period, fractions of a day will not 
 be counted. Clarke v. Moore, (1907) 1 Alta. L. E. 49, 8 W. L. E. 
 405, 411. 
 
 As to defect constituting ground for vacating registration, see 
 Home v. Jenhyn, 6 D. L. E. 55. 
 
 An owner's acceptance of the contractor's order given in return 
 for the release of a materialman's lien operates as an accord and 
 satisfaction of the materialman's claim, which cannot be re-awak- 
 ened by the subsequent delivery of additional material and the 
 filing of a fresh lien within the statutory period therefor. Wort- 
 man v. Frid-Lewis Co., (1915) 9 W. W. E. 812. 
 
 A certificate of the commencement of an action to realize a 
 mechanics' lien, which states that " some title or interest is called 
 in question in the following lands," (describing the lands as they 
 
264 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 are set out in the statement of claim) " under the Mechanics' Lien 
 Act of Alberta, is a sufficient compliance with -the requirements of 
 this section, although it does not state that the action referred to 
 was taken by the plaintiff to "realize his lien." Revelstoke Saw 
 Mill Company v. Alberta, Bottle Company, (1915) 9 Alta. L. E. 
 155. 
 
 Failure to serve a statement of claim in a mechanics' lien 
 action within six months after issue does not destroy the lien. 
 Crowp, Lumber Co. v. Malcolm, 9 W. W. K. 481. 
 
 36. When a registered lien shall be cancelled. — The registrar 
 of the land registration district shall on receiving a certificate 
 under the seal of the clerk of the court wherein any action in 
 respect of any lien registered in the land titles office within the 
 jurisdiction of such registrar is pending, stating the names of the 
 lienholders, parties to such action, and that the amount due by the 
 owner in respect of such liens has been ascertained and paid into 
 court in pursuance of an order of such court or judge or that the 
 property has been sold to realize such liens or that such lien has 
 been improperly filed or that such lien has otherwise ceased to 
 exist or, on receiving a statement in writing signed by the claim- 
 ant or his agent that the lien has been satisfied, cancel all liens 
 registered by such parties. 
 
 37. Receipted pay rolls of woodman's wages must be produced. 
 
 — Every person making or entering into any contract, 'engagement 
 or -agreement with any other person for the purpose of furnishing, 
 supplying or obtaining timber or logs, by which it is requisite or 
 necessary to engage and employ workmen and laborers in the 
 obtaining, supplying and furnishing such logs or timber as afore- 
 said, shall before making any payment for or on behalf of, or under 
 such contract, engagement or agreement, of any sum of money, or 
 by kind, require such person to whom payment is to be made > to 
 produce and furnish a pay roll or sheet of the wages and amount 
 due and owing, and of the payment thereof, which pay roll or 
 sheet may be in the form of schedule C annexed to this Act, or if 
 not paid, the amount of wages or pay due and owing to all the 
 
- THE ALBEETA MECHANICS' LIEN ACT. 265 
 
 workmen or laborers employed or engaged on or under such con- 
 tract, engagement or agreement, at the time when the said logs 
 or timber is delivered or taken in charge for or by or on 'behalf 
 of the person so making such payment and Teceiving the timber 
 or logs. 
 
 The effect of this section and the two following sections is to 
 constitute moneys owing to a contractor for getting out timber and 
 logs a specific fund, on which the workmen have a lien for' wages, 
 with an equitable as well as statutory legal remedy in regard 
 thereto. Pomerleau v. Thompson, 16 D. L. E. 142, 27 ,W. L. R. 
 254. 
 
 38. Persons not requiring production of receipted pay roll shall 
 be liable at suit of workman. — Any person making any payment 
 under such contract, engagement or agreement without requiring 
 the production of the pay roll or sheet as mentioned in section 3 7 
 of this Act shall be liable at the suit of any workman or laborer so 
 engaged under said contract, ' engagement or agreement for the 
 amount of pay so due and owing to the said workman or laborer 
 under said contract, engagement or agreement. 
 
 39. Sums mentioned in pay roll as unpaid to be retained. — 
 
 The person to whom such pay roll or sheet is given shall retain 
 for the use of the laborers or workmen whose names are set out in 
 such pay roll or sheet the sums set opposite their respective names 
 which have not been paid, and the receipt or receipts of such laborers 
 or workmen shall 'be a sufficient discharge therefor. 
 
 40. Judges may make rules of court. — The judges of the said 
 court, or any two of them, may make general rules and regulations 
 not inconsistent with this Act for expediting and facilitating the 
 business before such court under this Act and for the advancement 
 of the interests of suitors therein. 
 
 41. Construction of this Act. — Nothing in this Act contained 
 shall be construed to affect any mechanic's lien filed or registered 
 or the rights or liabilities of any person by or against whose 
 
266 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 property any mechanic's lien- has 'been filed or registered prior to 
 the coming into force of this Act; and all such liens may be 
 enforced in the same manner as though this Act had not been 
 passed. 
 
 42. Repeal. — Save as herein provided. The Mechanics' Lien 
 Ordinance of the North-West Territories and all amendments 
 thereto are hereby repealed. 
 
 SCHEDULE A. 
 
 In the matter of The Mechanics' Lien Act and in the matter 
 •of a lien claimed by . I, of 
 
 Alberta, make, oath and say : 
 
 1. That of claim a mechanic's 
 lien against the property or interest hereinafter mentioned 
 whereof residing at is owner. 
 
 2. That the particulars of the work done or materials furnished 
 are as follows: 
 
 ,3. That, the work or materials were finished, furnished or dis- 
 continued on or about the day of 
 
 4. That the said was in the employment 
 of contractor for the work in respect of which 
 the lien is claimed, for days after the above mentioned 
 date. 
 
 5. That the sum of dollars is owing to in 
 respect of the same, and was or will be due on the day 
 of . 
 
 6. That the description of the property to be charged is as 
 follows : 
 
 Sworn at Alberta, this day of before 
 
 me. 
 
 1907, c. 5, s. 17. 
 
 SCHEDULE B. 
 
 (Repealed— 1907, c. 5, s. 17.) 
 
THE ALBEHTA MECHANICS' LIEN ACT. 
 
 267 
 
 SCHEDULE C. 
 Pat Roll. 
 
 
 g 
 a 
 
 s , 
 
 Q 
 
 Frem 5th Jan., 1891, to 10th 
 Jan., 1891 (inclusive) 
 
 Amount 
 paid 
 
 Date of 
 pay- 
 ment 
 
 Received 
 
 Name 
 
 No. days 
 employed 
 
 Rate 
 per 
 
 day 
 
 Total 
 amount 
 earned 
 
 payment 
 in full 
 
 R. Roe .:. 
 
 
 Six days 
 
 S3.50 
 
 $21.00 
 
 S21-00 
 
 12th 
 Jan. 
 1891 
 
 R. Roe 
 
 
 
 
 I hereby certify that the above statement is correct to the best 
 of my knowledge and belief, and is made by me in compliance and 
 in accordance with section 17 of The Mechanics' Lien Act, on 
 account of (my contract to, or employment by, as the case may be) . 
 (Here insert brief description of the work) for (owner's name) up 
 
 to the_ 
 
 day of 
 
 19 . 
 (Signed) 
 
 Contractor. 
 
 Dated 
 
 day of 
 
 19 
 
 SCHEDULE D. 
 
 Form A. 
 
 To i: . 
 
 Take notice that the mechanics' lien filed by you in the land 
 titles office for the Alberta Land Registration Dis- 
 
 trict on the , day of 19 , as D.B. No. shall 
 
 be deemed to have lapsed according to the provisions of section 35 
 of The 'Mechanics' Lien Act unless, within days from the 
 
 date of service of this notice on you, you shall have taken proceed- 
 ings in court to enforce such lien and shall' have caused a certifi- 
 cate thereof to he filed as required by said section. 
 
268 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 Poem B. 
 
 To the Registrar Alberta, 
 
 . Land Registration District : ' 
 This is to certify that proceedings have been taken in court to 
 enforce a certain mechanic's lien filed by 
 
 against • (here describe lands), which 
 
 said lien was filed on the day of 19 , as D.B. 
 
 No. 
 
 (L.S.) 
 
 Clerk of the Court. 
 1915, c. 2, s. 27. 
 
THE BRITISH COLUMBIA MECHANICS' LIEN 
 
 ACT. 
 
 CHAPTEK 154. 
 
 An Act Kespecting Liens of Mechanics, Wage-earners and 
 
 Others. 
 
 HIS MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of British Columbia, 
 enacts as follows : — 
 
 Shoet Title. 
 
 1. Short title. — This Act may be cited as the " Mechanics' 
 Lien Act." 1910, c. 31, s. 1. 
 
 Interpretation. 
 
 2. In the construction of this Act — 
 
 "Contractor" — " Contractor " means a person contracting with 
 or employed directly by the owner or his agent for the doing of 
 work or service, or placing or furnishing material for any of the 
 purposes mentioned in this Act; ./ 
 
 " Sub-contractor." — " Sub-contractor " means a person not con- 
 tracting with or employed directly by the owner or his agent for 
 the purpose aforesaid, but contracting with or employed by the 
 contractor, or under him by another sub-contractor, to do the whole 
 or a certain portion of the work, or to place or furnish material, but 
 a person doing manual or mental labor for wages shall not be 
 deemed a sub-contractor; 
 
 " Owner." — " Owner " means and shall extend to and include 
 a person having any estate or interest, legal or equitable, in the 
 
270 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 lands upon or in respect of which the work or service is done, or 
 material is placed or furnished, at whose request and upon whose 
 credit, or on whose behalf, or with whose privity or consent, or for 
 whose direct benefit any such work or service is done, or material 
 is placed or furnished, and all persons claiming under him whose 
 rights' are acquired after the work or service in respect of which 
 the lien is claimed is commenced or the material placed or furn- 
 ished have been commenced to be furnished; 
 
 "Laborer." — "Laborer" means and shall extend to and in- 
 clude every mechanic, miner, artisan, builder, or other person 
 doing labor for wages; 
 
 " Person." — " Person " includes a body corporate, firm, part- 
 nership, or association; 
 
 " The judge." — " The judge " means the judge of the county 
 court of the district in which the premises upon which the works 
 or improvements are being carried, on are situate; 
 
 " Works or improvements." — " Works or improvements " shall 
 include every act or undertaking for which a lien may be claimed 
 . under this Act ; 
 
 " Material." — " Material " shall include every kind of movable 
 property; 
 
 " Wages." — " Wages " means money earned by a laborer for 
 work done, whether by time or as piece-work; 
 
 "Mortgage." — [See section 9, subsection (a), of this Act]. 
 1910, c. 31, s. 2. 
 
 As to distinction between "sub-contractor" and materialman 
 see Coughlan v. Carper, (1914) 7 W. W. E. 457. 
 
 Actual possession under a grant from the Crown, coupled with 
 a statutory right to register the grant, and thereupon to become 
 the owner in fee, creates an estate or interest upon which a me- 
 chanics' lien may attach. Dorrell v. Campbell, 23 B. C. E. 500, 
 32 D. L. E. 44, (1917) 1 W. W. E. 500. 
 
THE BBITISH COLUMBIA MECHANICS' LIEN ACT. 271 
 
 The holder of a special timber license has no estate in the land 
 itself chargeable under the Mechanics' Lien Act. Rafuse v. 
 Hunter, (1906) 12 B. C. E. 126, 3 W. L. E. 381, but the holder of 
 a working option on a mining claim comes within the definition 
 of "owner" as he has an equitable estate. Anderson v. Godsall, 
 (1900) 7 B. C. E. 404. See reference to this case in Scratch v. 
 Anderson, (1900) 16 W. L. E. 145. See Fortim, v. Pound, 1 
 W. L. E. 333. 
 
 L. bought property from T. for $1,200, paid $50 down, balance 
 to be 'payable immediately, and took possession and erected build- 
 ings, etc. Plaintiff supplied lumber for these and claimed lien 
 against L. and T. It was held, following Anderson v. Godsall, 
 7 B. C. E. 404, that the lien only extended to the equitable inter- 
 est of L., and that claim against T. should be dismissed. B. C. 
 Timber and Trading Go. t. Leberry, (1902) 22 C. L. T. 273. 
 
 A lien for material cannot exist unless expressly created by the 
 statute. Albion I. Works v. A. O. U. W., (1895) 5 B. G, E. 122, 
 note. 
 
 It cannot be said merely because one of several " owners " has 
 knowledge of work being done on their property, that .the work is 
 done at their " request and upon their credit " or .with their 
 " privity and consent" or " for their direct benefit." Isiit v. 
 Merritt Collieries, (1920) 1 W. W. E. 879. 
 
 3. Act not to apply to public street. — Nothing in this Act 
 shall extend to any public street or highway, or to any work or 
 improvement done or caused to he done by a municipal corporation 
 thereon. . 1910, c. 31, s. 3. 
 
 See Vannatta v. Uplands, (1913) 25 W. L. E. 85, cited under 
 section 6. post. 
 
 4. Contracting out by laborer forbidden. — (1) Every agree- 
 ment, verbal or written, express or implied, on the part of any 
 laborer or other person employed in any kind of manual labor, 
 intended- to be dealt with in this Act, that this Act shall not apply, 
 or that the remedies provided by it shall not be available for the 
 benefit of such person, shall 'be null and void. 
 
372 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (2) Exception. — This section shall not apply" to a manager, 
 officer, or foreman, or to any other person whose wages are more 
 than five dollars per day. 1910, c. 31, s. 4. 
 
 5. Husband to be deemed wife's agent. — Where work or service 
 is done or material is furnished upon or in respect of the land 
 of a married woman, with the privity and consent of her husband, 
 he shall be conclusively presumed to be acting as well for himself 
 so as to bind his own interest, and also as her agent for the pur- 
 poses of this Act, unless before doing such work or service, or furn- 
 ishing such material, the person doing or furnishing the same 
 shall have had actual notice to- the contrary. 1910, c. 31, s. 5. 
 
 See Laurrence v. Landsberg, (1910) 14 W. L. E. 477. See also 
 notes under corresponding section of Ontario Act. 
 
 Nature of Liens. 
 
 6. Mechanics, miners, contractors, materialmen, and others to 
 have lien. — Unless there, is an agreement in writing to the con- 
 trary, signed 'by such person, and in that ease subject to the pro- 
 visions of section 4, every person — 
 
 (1) Who, does work or service or causes work or service to be 
 done upon, or places or furnishes any material to be used in 
 the making, constructing, erecting, altering, or repairing, 
 ■either in whole or in part of, or adding to, any erection, 
 building, railway, tramway, road, bridge, trestle-work, 
 wharf, pier, mine, quarry,, well, excavation, embankment, 
 sidewalk, sewer, drain, ditch, flume, tunnel, aqueduct, dyke 
 or other work, or the appurtenances to any of them, or 
 improving any street, road, or sidewalk adjacent thereto, 
 for any owner, contractor, or su'b-contractor, or who does 
 such work, or causes such work to he done, and places or 
 furnishes any such material; or 
 
 (2) Who does such work or service, or causes work or service 
 to be done, or places or furnishes any material for or in 
 respect of clearing, excavating, filling, grading, or ditching 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 273 
 
 any land for any owner, contractor, or sub-contractor, or 
 who does such work, or causes such work to he done, and 
 places or furnishes any such material, — 
 
 shall, by virtue thereof, have a lien for the price of such work, 
 service, or material, or work, service and material, upon — 
 
 (a) Said erection, building, railway, tramway, road, bridge, 
 trestle-work, wharf,, pier, mine, quarry, well, excavation, 
 embankment, sidewalk, sewer, drain, ditch, flume, tunnel, 
 aqueduct, dyke, or other work, and the appurtenances to 
 any of them; 
 
 (b) The materials so placed or furnished for said works or 
 improvements ; 
 
 (c) The lands occupied or benefited thereby or enjoyed there- 
 with, or upon or in respect of which such work or service 
 is done, or upon which such material is placed or furnished 
 to be used : 
 
 Notice of lien for material to be given. — Provided that no lien 
 for material supplied shall attach or be enforced unless the person 
 placing or furnishing the same shall, before delivery, or within 
 ten days thereafter, give notice in writing of his intention to claim 
 such lien. Such notice shall be given to the owner or his agent, or 
 to such person and in such manner as the judge may, on summary 
 application, order. Such notice may be given in respect of any 
 specific delivery, or in respect of all deliveries of material made 
 within ten days <prior to such notice, and all deliveries subsequent 
 thereto. Such notice may fee in the form or to the effect of 
 Schedule A to this Act. 1910, c. 31, s. 6. 
 
 The word " delivery " in this section means actual physical 
 delivery, and a lien does not attach under the above proviso for 
 material furnished more than ten days before the notice, although 
 other material also included in the notice was supplied within the 
 ten days for the same work. Bat Portage Lumber Co. v. Watson, 
 (1912) 10 D. L. E. 833, 17 B. C. E. 489. 
 
 MX. — 18. 
 
274 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 A subcontractor who not only supplies material, but works it 
 into the building, is not obliged to give notice to the owner of- the 
 material supplied, in order to make his claim for a lien valid in 
 respect of the material. This section applies only to a material- 
 man. Irvin v. Victoria Home Construction and Investment Com- 
 pany, Limited, 18 B. C. E. 318; Fitzgerald v. Williamson, 18 B. 
 C. E. 322. See Ferrara v. National Surety, (1916) 34 W: L. K. 697. 
 
 One who makes the excavation for the foundation of a building 
 is entitled to a lien. Turner v. Fuller, (1913) 12 D. L. E. 255. 
 
 Property held by public school, trustees for school purposes is 
 liable to mechanics' liens. Hazel v. Lund, (1915) 9 W. W. E. 749. 
 See conflicting eases cited under Ontario Mechanics' Lien Act, sec- 
 tion 4, post. 
 
 An agreement for the sale of land which contains a covenant 
 binding the purchaser to erect certain works on the land at a 
 certain cost and contains a covenant by the vendor, the owner, to 
 remit a specified amount from the purchase-price on the completion 
 of said undertaking, is such a request in writing as gives a me- 
 chanics' lien arising from the erection of the works general appli- 
 cation, and, therefore, the lien is not restricted to the increase in 
 value of the premises by reason of such works. British Columbia 
 Granitoid', etc., Co. Ltd. T. Dominion Shipbuilding, Engineeri/ng 
 and Dry Dock Co., (1918) 2 W. W. E. 919. The defence that 
 nothing is payable by the owner to the contractor must be raised in 
 the dispute note, and tbe onus is on the owner to show that nothing 
 is due. Brown v. Allan, 18 B. C. E. 326. 
 
 A squatter on Crown land who accepts work and materials ap- 
 plied to the erection of a building thereon, holds himself out to be 
 the " owner " of the land, and will be regarded as having" an 
 " interest " in the land. Macdonald v. Hartley, ( 1918) 3 W. W. E. 
 910. 
 
 The Land Act, which vests in the holder of a special timber 
 license all rights of property in all trees, timber and lumber cut 
 within the limits of the license during the term thereof, does not 
 give any estate in the land itself chargeable under, the Mechanics' 
 Lien Act. Bafuse v. Hunter, 12 B. C. E. 126. 
 
 Sections creating the right to a lien are strictly construed, but 
 provisions dealing with procedure on the enforcement of the lien 
 should be liberally construed. Nolls v. C. P. B., 6 0. "W. W. E. 759. 
 
THE BEITISH COLUMBIA MECHANICS' LIEN ACT. 275 
 
 A laborer who worked for a contractor who was employed to 
 clear a quantity of land for the purpose of cultivation has no lien 
 under this Act. Black v. Hughes, (1902) 22 C L. T. 220. As to 
 contract for clearing land, see Beseloff v. The White Bock Resort 
 Development Co.,. (1915) 22 B. C. B. 33. 
 
 As to notice, see Coughlan v. National, (1909) 11 W. L. E. 202, 
 491; Sayward v. Dunsmuir, (1905) 2 W. L. E. 319. As to appro- 
 priation of payment on account, see British Columbia Mills, etc., 
 Co. v. Horrobin, (1901) 12 B. 0. E. 426, 5 W. L. E. 275; Lemon 
 v. Dunsmuir, (1907) 5 W. L. E. 505. 
 
 •Where sub-contractors completed their work, as they thought, 
 but upon a test it was ascertained that the work could not effectively 
 serve the purpose for which it was intended, and after an unavoid- 
 able delay of several months, further work was done to increase 
 the efficiency of the earlier work, it was held that this later work 
 was substantial work, and not work that could be described as 
 being done to remedy slight defects, and the sub-contractors hav- 
 ing acted in good faith, the lien was registered in time. Whimster 
 v. Crow's Nest Pass Coal Co., (1910) 13 W. L. E. 62-1. See Sqy- 
 ward v. Dunsmuir, (1908) 2 W. L. E. 319. 
 
 As to work done after acceptance of building and after final 
 certificate of architect, see Lawrence v. Landsberg, (1910) 14 W. 
 L. E. 477. As to attempt of sub-contractor to preserve lien after 
 time for filing lien had expired, see Sheritt v. McCallum, (1910) 
 12 W. L. E. 637. 
 
 Where the land is misdescribed the court will not give leave to 
 amend. Bafuse v. Hunter, 12 B. C. E. 126. But an error in 
 naming the owner of the lands is not sufficient, to prevent the 
 instrument claiming the lien from shewing " substantial compli- 
 ance " under, section 17. Nobbs v. C. P. R., 6 W. W. E. 759. 
 
 Under the sections of the Mechanics' Lien Act, relating to 
 woodmen's wages, a person by requiring only the production of 
 the pay-roll is not relieved of liability to the workmen for the. 
 amounts due them from the contractor; he must have produced 
 to him a receipted pay-roll, showing that the wages were actually 
 paid by the contractor. Young v. West Kootenay Shingle Co., 
 (1905) 11 B. C. E. 171, 1 W. L. E. 184. 
 
 Whether material is supplied in good faith for the purpose 
 of completing a contract, or as a pretext to revive a right to file 
 a lien, is a question of fact for the trial judge, and his decision 
 
276 THE LAW OF MECHANICS' LIENglN CANADA. 
 
 as to such fact should govern. Sayward v. Dunsmuir, (1905) 11 
 B. C. E. 375, 2 W. L. B. 319. As to implied request of owner, see 
 Fortin v. Pound, (1905) 1 W. L. E. 333. 
 
 The lien of a sub-contractor will attach when he has completed 
 his contract, or if the contract provides for progress payments on 
 account, a lien would attach for the amount of each instalment 
 as it became due; and in the absence of evidence that either the 
 whole or some part of the contract price was due or payable to the 
 sub-contractor at the time of payment by the owner to the princi- 
 pal contractor of the only sum which accrued due to the latter 
 before his abandonment of the contract, the sub-contractor cannot 
 rely upon such payment to establish his lien. Nepage v. Pinner, 
 21 B. C. E. 81, 21 D. L. E. 315, 8 W. W. E. 322, 30 W. L. E. 720. 
 See also Turner v. Fuller, 18 B. C. E. 69, Rosio v. Beech, 18 B. C. 
 B. 73 ; Braden v. Brown, 24 B. C. E. 374. 
 
 Whether authority has been conferred on an agent is a question 
 of fact, and such authority may be inferred by acts of recognition. 
 Sayward v. Dunsmuir., 11 B. C. E. 375. 
 
 In an action by the assignee of an architect against the owner, 
 the latter's objection that the architect had not posted upon the 
 buildings or delivered to the owner a receipted pay-roll showing 
 payment of the wages of the foreman, draftsman, and other 
 employees of the architect, in compliance with s. 15 of the Me- 
 chanics' Lien Act, not being raised in the pleadings and no evi- 
 dence being given upon it, the owner could not avail herself of this 
 defence. Sickler v. Spencer, (1911) 19 W. L. E. 557. In this, 
 action it was held upon the evidence that there was such a substan- 
 tial performance of the contract of the architect as to entitle him 
 or his assignee to a lien, although a trifling part of the material 
 contracted for had not been supplied by one of the contractors at 
 the time he received his final certificate from the architect. Sickler 
 v. Spencer, (1911) 19 W. L. E. 557. 
 
 The Act is not so broad in its scope as to charge one lot for 
 services rendered upon another lot because the person rendering 
 the service upon each lot did so under an indivisible contract. 
 Barr & Anderson v. Percy <& Co., (1912) 21 W. L. E. 236. See 
 Lee v. Hill, (1909) 11 W. L. E. 611 (Man.) ; Fairclough v. Smith, 
 (1901) 13 Man. L. E. 509. 
 
 Where part of a claim is for materials and part for labor, the 
 particulars stated in the affidavit for lien being " the putting in 
 
THE BEITISH COLUMBIA MECHANICS' LIEN ACT. 277 
 
 bath tubs, wash tubs, hot and cold water connections, all neces- 
 sary pipes, boiler and hot water furnace and waste pipes, $220," 
 were held insufficient as including two classes (Davie, C.J., dis- 
 senting). Weller v. Shupe, (1897) 6 B. C. E. 58. Where the two 
 classes of charges for labor and for materials are so mingled, the 
 contract being entire, that they cannot be determined respectively, 
 there is no lien for either. Gogin v. Walsh, (1878) 124 Mass. 
 516; Clark v. Kingsley, (1864) 8 Allen (Mass.) 543; Driscoll v. 
 Hill, (1865) 11 Allen (Mass.) 154. 
 
 As to defective work and unreasonable usage, see Allen v. 
 Deane, (1910) 14 W. L. E. 622. 
 
 A lien for materials cannot exist unless expressly created by 
 the statute. Albion I. Works v. A. 0. U. W., (1895) 5 B. : C. E. 
 122, note. A lien may be enforced upon a quantum meruit. 
 Fuller v. Beach, (1912) 21 W. L. E. 391. 
 
 The true tenor and intent of the instrument claiming a 
 mechanics' lien is a claim of a lien upon certain specified land and 
 not a claim of lien upon the estate or interest in the lands of cer- 
 tain named persons. Nohbs v. C. P. B., 6 W. W. E. 759. 
 
 The right to a declaration of a lien is wholly statutory, and is 
 enforceable only in the manner provided by the statute and the 
 Act is not broad enough to charge one lot for services rendered 
 upon another lot, because the person rendering the service upon 
 each lot did so under an indivisible contract, Barr & Anderson v. 
 Percy & Go., (1912) 21 W. L. E. 236. 
 
 The doctrine of substantial performance has no place in Can- 
 adian jurisprudence. McDonald v. Simons, 15 W. L. E, 218; 
 Brydon y. Lutes, (1891) 9 Man. L. E. 471; Merriam v. Public 
 Parks Board, (1912) 22 Man. L. E. 107; Smith v. Bernhart, 
 (1909) 11 W. L. E. 623. But see later Canadian eases cited under 
 section 4 of Ontario Act, post. 
 
 As to appropriation of payments on account, see B. G. Mills v. 
 Horrobm, (1907) 12 B. C. E. 426. 
 
 As to notice to owner's agent see Coughlin v. National Con- 
 struction Co., (1909) 14 B. C. E. 339. 
 
 No lien can be claimed against a railway under the control of 
 the Dominion Government. Larsen v. Nelson and F. S. By., ■ 
 (1895) 4 B. C. E. 151. See observations in respect to lien legisla- 
 tion as applied to railways, in chapter entitled " Property which 
 may be subject to lien," ante. 
 
278 THE LAW OE MECHANICS' LIENS IN CANADA. 
 
 A person who has delivered material to be used in the con- 
 si ruction and improvement of a place, 1 although the place of 
 delivery is upon the land, is not a person who has done work or 
 service upon the premises. Vannatta v. Uplands, Limited, 
 (1913) 25 W. L. E. 85. But where claimants supplied teams 
 of horses, waggons and drivers to the contractor for hauling 
 sand, gravel and earth, upon the property, for which they , were 
 paid so much per day, and these teams, waggons and drivers were 
 subject to the contractor's foreman, and did only what work he 
 required of them, such claims should be allowed. Vannata v. 
 Uplands, Limited, supra. 
 
 An action to enforce a mechanics' lien is not an action for 
 " any kind of debt " but is for penalty or forfeiture. Dillon v. 
 Sinclair, (1900). 7 B. C. E. 328. 
 
 A lienholder is entitled in preference to holders of equitable 
 assignments from the contractor. Johnson v. Braden, (1887) 1 
 B. C. B., part 2, p. 265. 
 
 Defendant employed contractor under written contract to clear 
 land for cultivation purposes. Laborer who worked for contractor 
 in clearing the land held not entitled to lien. Black v. Hughes, 
 (1902) 22 C. L. T. 220. 
 
 The Act does not give a lien for cooking. Anderson v. Godsal, 
 7 B. C. E. 404. . 
 
 There is no lien in respect to the cost of. preparing for work 
 to be done upon a site, although such work has been frustrated 
 without fault of the contractor. B. C. Granitoid Co. v. Dominion 
 Shipbuilding Co., (1918) 2 W. W. E. 919. 
 
 Mechanics' liens were filed against mining claims and judg- 
 ment recovered on them in the County Court. On the same day 
 a winding-up order was made in the Supreme Court. Subse- 
 quently the liquidator obtained an order to give first lien on 
 property in order to get funds to take out Crown grants. The 
 lienholders were not notified of this application and did not 
 appear. They did not appeal, but applied for leave to enforce 
 their judgment in priority to charge given by liquidator. Held, 
 thai; liquidator's order was made without jurisdiction and that lien- 
 holders were not bound by it. Re Ibex Mining and Development 
 Co., (1902) 9 B. C.'E. 557. 
 
 Plaintiff was employed by Green as a logger. Green had a 
 contract with defendant company. In an action to enforce 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 279 
 
 mechanics' lien for wages it appeared that prior to this action 
 plaintiff and sixteen others obtained a judgment against Green 
 under the Woodman's Lien Act for gross amount of their wages 
 and had seized the logs and sold. Held, that they could not get 
 another judgment, under the Mechanics' Lien Act for the same 
 claim. Wake v. 0. P. Lumber Co., (1901) 8 B. C. E. 358. 
 
 , The defendants, the contractors, had a contract with the de- 
 fendants, the owners, to make streets, boulevards, and sewers in a 
 tract of land of several hundred acres, which was being sub- 
 divided for residential purposes, and mechanics' liens were as- 
 serted by several persons, who had done work for the contractors 
 in making these streets, boulevards and sewers. It was held that 
 the streets were not to be regarded as public highways, and lien- 
 claimants were not precluded by section 3, ante. The streets were 
 not dedicated to the public before completion. Vannatta v. Up- 
 lands, Limited, (1913) 25 W. L. B. 85. 
 
 As to the general law relating to the question of what consti- 
 tutes "fixtures," see Dominion Trust Co. v. Mutual Life Assce. 
 Co. of Canada, (1918) 26 B. C. B. 237. 
 
 Where the contractor also supplies the materials, and no notice 
 of claim is filed by any materialman within the statutory period, 
 the conditions of this section as to notice, do not apply to the con- ■ 
 tractor. Gidney v. Morgan, 16 B. C. E. 18. 
 
 The word " owner " in the Mechanics' Lien Aqt does not neces- 
 sarily mean registered owner. National Mortgage Co. v. Rolston, 
 (1915) 8 W. W. E. 630. 
 
 A person who accepts an order from a contractor for struc- 
 tural steel to be used in the construction of a building, fashions it 
 at his factory to meet specified requirements, and delivers it so 
 made ready at the building site, but takes no part in the construc- 
 tion thereof, is a " materialman " only ; his status is not affected 
 by the fact that he expended labor on the material before delivery. 
 He is bound, therefore, to give the notice prescribed by this sec- 
 tion, and, in order to preserve his lien, to file his claim within 31 
 days after the last delivery of material, as prescribed by section 19, 
 post. J. Coughlan & Sons v. John Carver & Company, 20' B. C. 
 E. 497. 
 
 There is no waiver of a lien upon a certain lot where a form of 
 waiver as to that lot had been signed without consideration and 
 by mistake. Palfrey v. Brown, 31 W. L. E. 535. 
 
280 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 The plaintiff, in pursuance of an agreement, having done work 
 and supplied material in connection with the construction of a 
 building, brought action to enforce a lien. He gave no notice of 
 his intention to obtain a lien, but he was able to segregate the 
 amount due for labor from the value of the material supplied. In 
 such case he is a person who " does such work or causes such work 
 to be done," within the meaning of this section; and even if his 
 claim for materials failed, there was no reason why he should not 
 succeed for work done. Brown v. Allen & Jones, 18 B. C. E. 326. 
 
 Where a materialman has contracted to supply all of a certain 
 class of supplies required in the construction of a particular build- 
 ing, as mentioned in the specifications, and the materialman sup- 
 plied not only the goods which are mentioned in the specifications, 
 but further, materials which were contemplated by his contract as 
 extras or additions, for the amount of which the fixed price was 
 subject to increase, the lien' for the entire bill is not lost by the 
 lapse of the statutory period for filing liens between the last de- 
 livery of that portion of the goods, the class and quantities of 
 which were shown in the specifications, and the later delivery of 
 the extras ; the lien in such case is in time if filed within the statu- 
 tory period following the last delivery of extras. Flett v. World 
 Construction, 15 D. L. B. 628, 19 B. C. E. 73, 26 W. L. E. 612. 
 
 The lien for work done in clearing a townsite consisting of 
 several tracts extends to the whole land benefited by the work 
 within, the meaning of section 6 (c), except whatever may be ex- 
 cluded from it by section 3, as being " a public street or highway. 
 Beseloff v. White Bock, etc., 22 B. C. E. 33, 23 D. L. E. 676. 
 
 A workman is entitled to a lien upon the part of a sewer, ex- 
 tending below low water mark into the ocean, upon which he 
 worked. Baker v. Uplands, (1913) 24 W. L. E. 768. 
 
 To -bring an action under the Mechanics' Lien Act, as in any 
 other case, a cause of action must have arisen. In the case of a 
 contract containing conditions precedent to payment, no action 
 can be brought to enforce a lien alleged to arise out of labor per- 
 formed and materials supplied under such contract until the con- 
 ditions have been complied with. Champion and White v. The 
 World Building, 20 B. C. E. 156. 
 
 The lien upon a mine is a lien on the mine itself and not on 
 any fund arising from the sale of ore extracted from the mine. 
 Law v. Mumford, 14 B. C. E. 233. 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 281 
 
 An architect is not entitled to a mechanics' lien for preparing 
 plans, and where a lump sum is to be paid for preparing plans and 
 for superintendence he is not entitled to a lien for any amount. 
 Fripp v. Clark, 18 B. 0. R. 216. But see decisions cited under 
 Ontario Mechanics Lien Act, section 4, post. 
 
 A sub-contractor has a lien on the interest of his principal 
 acquired through his (the principal's) lien. Nobis v. C. P. R., 
 6 W. W. E. 759. 
 
 7. Amount to which lien is limited; — The amount of such lien 
 ghall not exceed the sum actually owing to the person entitled to 
 the lien, and distribution of any moneys derived from the realiza- 
 tion of the liens shall be made in accordance with section 36 of 
 this Act. 1910, c. 31, s. 7. 
 
 8. Owner's liability as to wages unpaid by contractor. — With 
 the exception of liens in favor of laborers for not more than six 
 weeks' wages, no lien shall attach so as to make the owner liable 
 for a greater sum than the sum payable by the owner to the con- 
 tractor : 
 
 Provided that this clause shall not be construed to apply to liens 
 under section 11 hereof. 1910, c. 31, s. 8. 
 
 Where upon default of a contractor, a building owner takes over 
 the work under the provisions of the contract, in effect becoming 
 the contractor's agent for that purpose, the full balance of the 
 contract price must, as between the building owners and lien- 
 holders, be treated ■ as still owing by the owners to the contract. 
 Hazel v. Lund, (1915) 9 W. W. R. 749; 22 B. C. R. 264. 
 
 The lien of a sub-contractor will attach when he has completed 
 his contract, or if the contract provides for progress payments on 
 account, a lien would attach for the amount of each instalment as 
 it became due ; and in the absence of evidence that either the whole 
 or some part of the contract price was due or payable to the sub- 
 contractor at the time of payment by the owner to the principal con- 
 tractor of the only sum which accrued due to the latter before his 
 abandonment of the contract, the sub-contractor cannot rely upon 
 such payment to establish his lien. Nepage v. Pinner, (1915) 21 
 D. L. R. 315. See also Turner v. Fuller, 12 D. L. R. 255, 18 
 B. C. R. 69, and Rosio v. Beech, 9 D. L. R. 416, 18 B C. R. 73. 
 
282 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 School property may be the subject of a mechanics' lien. 
 Hazel v. Lund, 22 B. C. E. 264, 25 D. L.' E. 204. 
 
 A defence under this section, that no money is payable by the 
 owner to the principal contractor, must be pleaded in the dispute 
 note filed in an action brought by a sub-contractor to enforce a 
 lien for the balance due to him by the principal contractor. Fitz- 
 gerald v. Williamson, 12 D. L. E. 601, 18 B. C. E. 322. See also 
 Brown v. Allen, 18 B. C. E. 326. 
 
 9. Liens on mortgaged premises. — Where works or improve- 
 ments are put upon mortgaged premises, the liens, by virtue of 
 this Act, shall be prior to such mortgage as against the increase in 
 value of the mortgaged premises by reason of such works or im- 
 provements, but not further, unless the same is done at the request 
 of the mortgagee in writing; and the amount of such increase 
 shall be ascertained upon the basis of the selling value upon tak- 
 ing of the account, or by the trial of an issue as provided in 
 section 31 hereof, and thereupon the judge may, if he shall con- 
 sider the works or improvements of sufficient value to justify the 
 proceedings, order the mortgaged premises to be sold at an upset 
 price equal to the selling value of the premises immediately prior 
 to the commencement of such works or improvements (to 'be as- 
 certained as aforesaid), and any sum realized in excess of such 
 upset price shall be subject to the liens provided for by this Act. 
 The moneys equal to the upset prices as aforesaid shall be applied 
 towards the said mortgage or mortgages, according to their priority. 
 Nothing, however, in this section shall prevent the lien from at- 
 taching upon the equity of redemption or other interest of the 
 owner of the land subject to such mortgage or charge : 
 
 (a) Interpretation of "mortgage.'' — "Mortgage" in this sec- 
 tion shall not include any part of the principal sum. secured thereby 
 not actually advanced to the borrower at the time the works or im- 
 provements are commenced, and shall include a vendor's lien and 
 an agreement for the purchase of land; and for the purposes of 
 this Act, and within the meaning thereof, the purchaser shall be 
 deemed a mortgagor, and the seller a mortgagee. 1910, c. 31, s. 9. 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 283 
 
 This section was amended by section 40 of the Acts of 1917, 
 post. 
 
 The provisions of this section do not give relief to lienholders 
 as against prior mortgagees, unless, from the proceedings at the 
 trial, the increase in the value of the mortgaged premises can be 
 ascertained. Lienholders for work consisting entirely of -the taking 
 out of ore from a mine cannot, except when it is strictly develop- 
 ment work, enforce their liens as against a prior mortgagee. 
 Anderson v. Kootenay Gold Mines, Ltd., 18 B. C. E. 643. 
 
 Mechanics' liens had been filed against the property of a com- 
 pany and judgment recovered in respect to them in the County 
 Court. On the same day as the judgment a winding-up order was 
 made in the Supreme Court. Subsequently the liquidator obtained ' 
 an order authorizing him to give a first charge on the property of 
 the company in order to raise money to take out certain Crown 
 grants of property to which the company was entitled. The lien- 
 holders had no notice of the application, and did not appear on 
 the hearing. They did not appeal, but applied for leave to enforce 
 their judgment in priority to the charge created by the liquidator 
 under the order of court. Held, that the order was made without 
 jurisdiction, and the lien-holders were not bound by it. Be Ibex 
 Mining and Development Co., (1902) 9 B. C. B. 557. 
 
 Under this section the value of the property before the lien 
 attached is to be taken for the purpose of fixing the upset price, for 
 which the lienholder would have priority over a mortgagee as 
 against the increase in value of the mortgaged premises by reason 
 of the work and improvements. Champion & White v. The World, 
 22 B. C. E. 596, 27 £). L. E. 506, 34 W. L. E. 317, 10 W. W. E. 
 470. 
 
 A covenant in the plaintiffs' mortgage, entitling them to pay 
 " liens, taxes, rates, charges or encumbrances " affecting the mort- 
 gaged lands and adding them to the mortgage debt, did not en- 
 title them as against defendants, subsequent mortgagees, to add 
 to their mortgage debt amounts used to pay off mechanics' liens of 
 later date than the registration of defendants' mortgage, and as 
 to which there had been no adjudication establishing priority to 
 defendants' mortgage through increase in value of the premises 
 under this section. The meaning of such covenant must be con- 
 fined to the payment of liens which affect the plaintiffs' interest 
 in the property. A lien filed prior to plaintiffs' mortgage came 
 
284 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 within such covenant and the amount used to pay off same could be 
 added to plaintiffs' claim. Great West Permanent Loan Company 
 v. National Mortgage Company, (1919) 1 W. W. E. 788, 47 D. L. 
 E. 751. 
 
 The claim of a mortgagee in respect of advances made subse- 
 quently to the commencement of the work done by lienholders is 
 postponed to the rights of the lienholders. The mortgagee as a 
 subsequent incumbrancee might have been entitled to be given an 
 opportunity, in the lien action to redeem the lienholders had it 
 applied for registratioh at once, but having neglected to do so until 
 after the sale of the land in question, any such right has been lost. 
 National Mortgage Co. v. Eolston, 59 Can. S. C. E. 219, 49 D. L. 
 E. 567, affirming 23 B. C E. 384, (1917) 1 W. W. E. 494. 
 
 10. Owner deemed to have authorized works. — All works or 
 improvements mentioned in section 6 of this Act constructed upon 
 any lands with the knowledge, but not at the request, of the owner, 
 or his authorized agent, or the person having or claiming any 
 interest therein, shall be held to have been constructed at the 
 instance and request of such owner or person having or claiming 
 any interest therein: Provided this section shall not apply to any 
 works or improvements done after there , has been posted, on at 
 least two conspicuous places upon 'said land, or upon the works 
 or improvements thereon, by authority of such owner or person, a 
 notice in writing that he will not be responsible for such works or 
 improvements, or after actual notice in writing to the above 
 effect has reached the person claiming a lien under the provisions 
 of this Act. 1910, c. 31, s. 10. 
 
 This section in its present amended form has overcome the de- 
 cision in Anderson v. Godsal; 7 B. C. E. 404, the words " and 
 request" having been added after the words "constructed at the 
 instance." See Vermess v. Stoddard, (1915) 9 W. W. E. 832. 
 
 This section does not apply to any case already provided for 
 by section 6, but only applies where the actual owner had not 
 authorized the works or improvements, which were authorized by 
 the supposed owner, the actual owner standing by, and allowing 
 the work to be done in order to take advantage of it. The govern- 
 ing phrase in section 6 is " at the request of the owner." The holder 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 285 
 
 of a working option comes within the definition of " owner," as 
 he has an equitable estate. Anderson v. Godsall, (1900) 7 B. C. B. 
 404. Irving, J., dissented in this case and held that this section 
 (or rather a former section corresponding to this one) incorpor- 
 ated the words of section 6 as to " other improvements," and there- 
 fore included " excavating land in respect to a mine," and was 
 therefore applicable in the case of work done on a mining claim 
 which appears, from the agreement, to have been done for the 
 direct benefit of the owner, and subject to the inspection of his 
 engineer. See Scratch v. Anderson, (1910) 16 W. L. E. 145, con- 
 cerning the case of Anderson v. Godsall, (1900), 7 B. C. E. 404. 
 
 In an action to enforce a lien where the owner of the property 
 did not contract for the work or improvements, it is incumbent 
 upon the plaintiff to shew that the owner had knowledge of. such 
 work or improvements. Bakery. Williams, (1916) 23 B. C. B. 124. 
 
 A miner may enforce a mechanics' lien against a mineral claim 
 which has not been Crown granted. Venness v. Stoddard, 9 W. 
 W. E. 832. 
 
 11. Owner's liability for works on premises held under option. 
 
 — Notwithstanding anything in the last preceding section con- 
 tained, all works or improvements mentioned in section 6. of this 
 Act placed upon 'premises held under option or working bond 
 where the grantee of the option is required or permitted by the 
 grantor of such option to make works, or improvements thereon, 
 shall, for the purpose of creating a lien, be held to have been con- 
 structed at the instance and request of the owner of such premises, 
 and the grantor of such option and the liens by virtue of this Act 
 shall attach and be enforceable against the interest 'both of the 
 owner of the said premises and the grantor of such option. 1910, 
 c. 31, s. 11. 
 
 A miner may enforce a mechanics' lien against a mineral claim, 
 which has not been iQrown granted. 
 
 An option (mining) or working bond can be distinguished from 
 an agreement of sale, in that in the former, the vendor looks to 
 payment from whatever ore may be extracted from the mine and 
 not to the vendee's covenant for payment. Venness. v. Stoddard; 
 (1915), 9 W. W. E. 832. 
 
286, THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 12. Insurance moneys. — Where any of the property upon which 
 a lien is given by this Act is wholly or partly destroyed by fire, 
 any insurance receivable thereon by the owner, prior mortgagee, or 
 chargee shall take the place of the property so destroyed, and shall, 
 after satisfying any prior mortgage or charge in the manner and 
 to the extent set out in section 9 of this Act, be subject to the 
 claims of all persons for liens to the same extent as if such moneys 
 were realized by the sale of such property in action to -enforce a 
 lien. 1910, c. 31^ s. 12. 
 
 13. Lienholder may demand particulars of contract. — Any lien- 
 holder or person entitled to a lien may at any time demand of the 
 owner, or his agent, the terms of the contract or agreement with the 
 contractor for and in respect of which the work is done or material 
 is furnished or placed, and a statement of the amount due or 
 unpaid thereunder ; and if such owner or his agent-^ 
 
 (a) Does not at the time of such demand, or within a reason- 
 able time thereafter, inform the person making such de- 
 mand of the parties to and general terms of sueh contract 
 or agreement, and the amount due or unpaid on such 
 contract or agreement; or 
 
 (b) Intentionally or knowingly falsely states the terms of such 
 contract or agreement, or the amount due and unpaid 
 thereon ; 
 
 and if the person claiming the lien sustains loss by reason of such . 
 refusal, or neglect, or false statement, such owner shall be liable 
 to him in an action therefor to the amount of such loss. 1910, 
 c. 31, s. 13. 
 
 14. Owner may demand particulars from lienholder. — Any 
 
 owner or other person who may be liable for the payment therefor 
 may at any time demand from any contractor or sub-contractor 
 performing work, or person who has given notice that he intends to 
 claim a. lien for materials, the terms of and parties to any contract 
 or agreement under which he is performing work or placing or 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 287 • 
 
 furnishing material, and a statement of account under same to 
 the date of such demand ; and if such contractor, sub-contractor, or 
 person, or his agent-^- 
 
 (a) Does not at the time of such demand, or -within reasonable 
 time thereafter, inform the person making the demand of 
 the terms of such contract or agreement, and the amount 
 due or unpaid on such contract or agreement, and furn- 
 ish the account as demanded; or 
 
 (b) Intentionally or knowingly falsely states the terms of such 
 contract or agreement, or the amount due or unpaid 
 thereon, or furnishes a false account; 
 
 and if the owner or person making such demand sustains loss by 
 reason of such refusal, neglect, or false statement, such contrac- 
 tor, sub-contractor, or person shall be liable to him in an action 
 therefor to the amount of such loss, and, in any event, the lien 
 of such contractor, subTContractor, or person shall be limited by 
 the statement given or furnished. 1910, c. 31, s. 14. 
 
 15. Receipted pay-rolls to be posted on works. — No owner 
 shall 'be required to make any payment to any contractor or sub- 
 contractor in respect of any contract where the contract price 
 exceeds five hundred dollars until such contractor, or sub-contractor, 
 or some person in charge of the works or improvements shall post 
 upon the works or improvements a copy of the receipted pay-roll 
 from the hour of twelve o'clock noon to the hours of one o'clock p.m., 
 on the first legal day after pay-day, and shall have delivered to the 
 owner, or other person acting on his behalf, the original pay-roll 
 containing the names of all laborers and persons placing or furn- 
 ishing materials who have done work, or placed or furnished ma- 
 terial for him upon such works or improvements, with a receipt 
 in full from each of the said laborers and persons placing or 
 furnishing material with the amounts which were due and had 
 been paid to each of them set opposite their respective names, 
 which pay-roll may be in the form of Schedule B hereto, or until 
 
■ 288 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the time for filing liens in respect of such works or improvements 
 shall have expired; and no payment made by the owner without 
 the delivery of such pay-roll shall be valid for the purpose of de- 
 feating or diminishing, any lien upon such property, estate, or 
 interest in favor of any such laborer or person placing or furnishing' 
 material. 1910, c. 31, s. 15. 
 
 A contractor building a house under a profit sharing arrange- 
 ment with his helpers, on completion of the work, not having any 
 wages to pay is not subject to the provision for the posting of a 
 receipted pay roll. Gidney v. Morgan, (1910) 16 B. C. E. 18. 
 
 An objection alleging non-compliance with a provision some- 
 what similar to the one in this section in regard to posting upon, 
 the buildings and delivering to the owner a receipted pay-roll, is not 
 available unless it has been raised in the pleadings and evidence 
 has been given of the fact. Sichler v. Spencer, (1911) 19 W. 
 L. B. 557. See Young v. West Kootenay Shingle Co., (1905) 11 
 B. C. E. 171, 1 tV. L. E. 184. 
 
 The failure of the contractor to keep a pay-roll as required by 
 this section, prevents any one from bringing an action against the • 
 owner for payment. This section does not prevent a sub-contractor 
 from filing a lien. Irvin v. Victoria Home, etc., Co., 18 B. C. E. 
 318. 
 
 A sub-contractor is not .entitled to take advantage of the fail- 
 ure by the owner to obtain duly receipted pay-rolls under this sec- 
 tion. A sub-contractor at a lump sum for painting work, includ- 
 ing the supply of the necessary 'materials for that purpose, is not a 
 " laborer " nor " person placing or furnishing materials." Rosio 
 v. Beech, 18 B. C. E. 73. 
 
 16. Assignment by contractor not to defeat lien. — No assign- 
 ment by the contractor or any sub-contractor of any moneys due 
 in respect of the contract shall be valid as against any lien given 
 by this Act. As to all liens, except that of the contractor, the 
 whole contract price shall be payable in money, and shall not be 
 diminished by any prior or subsequent indebtedness, set-off, or 
 counterclaim in favor of the owner against the contractor. 1910, 
 c. 31, s. 16. 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 289 
 
 A stipulation in a building contract, that upon default of the 
 contractor, the school trustees shall be entitled to take his place to 
 complete the contract and deduct the cost of completion from the 
 balance of the purchase price, is in effect an assignment of the 
 unpaid balance of the contract price within the purview of this sec- 
 tion and therefore invalid against the lien for the full balance of 
 the contract price acquired under the Act. Hazel v. Lund, 22 
 B. C. E. 264, 25 D. L. E. 204. 
 
 17. During continuance of lien property must not be removed. 
 
 — During the continuance of any lien, no portion of the property 
 affected thereby shall be removed to the prejudice of such lien, and 
 any attempt at such removal may be restrained on application to 
 the judge. 1910, c. 31, s. 17. 
 
 18. Devices to defeat priority of wage-earners void. — Every 
 device by an owner, contractor, or sub-contractor adopted to defeat 
 the priority given to wage-earners for their wages by this Act 
 shall, as against such wage-earners, be null and void. 1910, c. 31, 
 s. 18. 
 
 Eegistration and Transmission. 
 
 19. lien expires in thirty-one days after completion of work, 
 unless registered.- — Every lien upon any such erection, building, 
 railway, tramway, road, bridge, trestle-work, wharf, pier, mine, 
 quarry, well, excavation, embankment, sidewalk, sewer, drain, ditch, 
 flume, tunnel, aqueduct, dyke, works, or improvements, the appur- 
 tenances to any of them, material or lands, shall absolutely cease 
 to exist, — 
 
 1. In the 'case of, a claim for lien by a contractor or sub-con- 
 tractor, after the expiration of thirty-one days after the comple- 
 tion of the contract. 
 
 (2) In the case of a claim for lien for materials, after the 
 expiration of thirty-one days after the furnishing or placing of 
 the last materials so furnished or placed. 
 
 M.L.— 19 
 
290 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (3) In the case of a claim for lien for services, after the expira- 
 tion of thirty-one days after the completion of services. 
 
 (4) In the case of a claim for lien for wages, after thirty-one 
 days after the last work is done for which the lien is claimed 
 (except in the case of a claim -for wages owing f or work in, at, or 
 about a mine, in which case the lien shall cease after the expira- 
 tion of sixty days after the last work is done for which the lien 
 is claimed) ' Provided, however, that any laborer shall not be held to 
 have ceased work upon any erection, building, railway, tram- 
 way, road, bridge, trestle-work, wharf, pier, mine, quarry, well, 
 excavation, embankment, sidewalk, sewer, drain, ditch, flume, tun- 
 nel, aqueduct, dyke, works, or improvements, or land, until the com- 
 pletion of the same, if he has in the meantime been employed upon 
 any other work by the same contractor, — 
 
 unless in the meantime the person claiming the lien shall file in the 
 nearest County Court registry, in the county wherein the land is 
 situate, an affidavit, sworn before any person authorized to take 
 oaths, stating in substance — 
 
 (a) The name and residence of the claimant, and the name of 
 the owner of the property or interest to be charged; 
 
 (b) The particulars of the kind of works, services, improve- 
 ments, or materials done, made, or furnished; 
 
 (c) The time when the works, services, or improvements were 
 finished or discontinued, or the materials furnished or 
 placed ; , 
 
 (d) The sum claimed to be owing, and when due; 
 
 (e) The description of the property to be charged ; 
 
 and shall within the respective times hereinbefore in this section 
 mentioned, file in the Land Eegistry Office of the land registry 
 district within the limits of which the lands, mines, or premises 
 in respect of which the lien is claimed are situate a duplicate or a 
 copy certified by the said County Court Eegistrar to 'be a true 
 copy of such affidavit, which duplicate or certificate copy of such 
 affidavit shall be received and filed in the said Land Eegistry Office 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 291 
 
 as a lien against the property, interest, or estate against which 
 the lien is claimed. Every County Court Eegistrar shall be sup- 
 plied with printed forms of such affidavits, in blank, which may 
 be in the form or to the effect of Schedule C. to this Act and 
 which shall be supplied to every person requesting the same and 
 desiring to file a lien. Every County Court Eegistrar shall keep 
 an alphabetical index of all claimants of liens, and the persona 
 against whom such liens are claimed, which index shall be open 
 for inspection during office hours, and it shall be the duty of such 
 County Court Eegistrar to decide whether his is or is not the 
 proper office for the filing of such affidavit, and to direct the 
 applicant accordingly; and no affidavit shall be adjudged insuffi- 
 cient on the ground that it was not filed in the proper County 
 Court registry. 1910, c. 31, s. 19. (Redrawn.) 
 
 A person who accepts an order for steel beams to be used in 
 the erection of a building, and has to fashion them so as to meet 
 specified requirements, and then delivers the material so made 
 ready at the building site, is a "materialman" as distinguished 
 from a " sub-contractor." Coughlan & Sons v. Carver, (1914) 7 
 W.- W. E. 457. 
 
 Where sub-contractors completed their work, as they thought, 
 but upon a test it was ascertained that the work could not effectively 
 serve the purpose for which it was intended, and, after an un- 
 avoidable delay of several months, further work was done to in- 
 crease the efficiency of the earlier work, it was held that this later 
 work was substantial work, and not work that could be described as 
 being done to remedy slight defects, and the sub-contractors' having 
 acted in good faith, the lien was registered in time. Whimster v. 
 Crow's Nest Pass Coal Co., (1910) 13 "W. L. E. 621. See Sayward 
 v. Dunsmuir, (1905) 2 W. L. E. 319, 11 B. C. E. 375. 
 
 A statement of claim did not disclose the kind of materials 
 furnished. Held, defective, but as the lien is operative when regis- 
 tered and action brought and certificate of lis pendens registered, 
 it was held that plaintiffs lien was not prejudiced. Johnson v. 
 Braden, (1887) IB. C. E. (Pt. 2), p. 265. See Weller v. Shupe, 
 (1897) '6 B. C. E. 58, where particulars of claim in affidavit for 
 lien were held insufficiently stated. See also Knott v. Clime, (1896) 
 5 B. C. E. 120, and -Smith v. Mcintosh, (1893) 3 B. C. E. 26. 
 
292 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 In a proceeding for the purpose of realizing a mechanics' lien 
 the affidavit was. sworn before a person now plaintiffs solicitor. 
 Held, sufficient. Elliott v. McCallum, (1899) 19 C. L. T. 412. 
 
 But now Eule 309, which provides that an affidavit shall not be 
 sworn before the solicitor for the party on whose behalf it is to be 
 used, is held to apply to the affidavit required under this section. 
 Braden v. Brown, 24 B. C. E. 374, (1917) 3 W. W. E. 906. 
 
 Completion may be considered as dating from the doing of a 
 little " touching up," if such work be a part of the work necessary 
 under the contract. Fuller v. Beach, (1912), 21 W. L. E. 391. 
 
 Lienholders are entitled to priority over an unregistered charge 
 or transfer of which they had no knowledge actual or constructive ; 
 the unregistered interests,, therefore, cannot prevail against a pur- 
 chaser of the property to whom it has been sold in satisfaction 
 of the registered charges. National Mortgage Co. v. Botston, 32 
 D. L. E. 81, 23 B. C. E. 384, (-1917) 1 W. W. E. 494, affirmed 
 by Supreme Court of Canada, (1917) 2 W. W. E. 1114. 
 
 The claim of a mortgagee in respect of advances made sub- 
 sequently to the commencement of the work done by lienholders is 
 -postponed to the rights of the lienholders. The mortgagee as a 
 subsequent incumbrancee might have been entitled to be given an 
 opportunity in the lien action to redeem the lienholders had it 
 applied for registration at once, but having neglected to do so until 
 after the sale of the land in question any such right has been lost, 
 (a) National Mortgage Co. v. Rolston, (1919) 49 D. L. E. 567. 
 
 A person who accepts an order from a contractor for structural 
 steel to be used in the construction of a building, fashions it at 
 his factory to meet specified requirements, and delivers it so made 
 ready at the building, site, but take's no part in the construction 
 thereof, is a " materialman " only and, in order to preserve his lien, 
 must file his claim within 31 days after the last delivery of material, 
 as prescribed by this section. Coughlan & Sons v. Carver & Com- 
 pany, 20 B. C. E. 497. 
 
 The term " delivery " in section 6 means actual, physical de- 
 livery. Where a materialman, , who had contracted to furnish all 
 the materials for a building, and after some of the material 
 had been delivered, gave notice of intention to claim a lien in 
 respect of more material than had been delivered, it was held 
 that the notice was defective as to the material not delivered. Bat 
 Portage Lumber Company, Limited v. Watson & Bogers, 17 B. 
 C. E. 489. 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 293 
 
 An action to realize a lien can be brought only when the money 
 ' sought to be recovered has become payable and within 30 days 
 after the filing of the lien; no action lies for the purpose of keep- 
 ing the lien in esse where the due date is deferred beyond the time 
 limited by the Act. Champion v. World Building, 18 D. L. B. 
 555, 20 B. C. E. 156, 29 W. L. E. 299, 6 W. W. E. 1469. 
 
 20. — Mode of construing last preceding section. — A substantial 
 compliance only with the last preceding section shall be re- 
 quired, and no lien shall be invalidated by reason of failure to 
 comply with any of the requisites thereof, unless, in the opinion 
 of the judge, adjudicating upon the iien under the said Act, the 
 owner, contractor, sub-contractor, mortgagee, or some other person 
 is prejudiced thereby, and then only to the extent to which he is 
 prejudiced, and the judge may allow the affidavit, statement of 
 claim, plaint, and summons to 'be amended accordingly; and may 
 allow the addition or substitution of all proper parties to the claim 
 of lien, and the action to enforce the same, although the time for 
 filing the affidavit mentioned in the said last preceding section, and 
 instituting proceedings under section 23 hereof, shall have, or 
 either of them has, expired. 1910, c. 31, s. 20. 
 
 But where the land sought to be charged by a lien is mis- 
 described in the lien affidavit the court will not give leave to 
 amend by correcting the description, as that would in effect be 
 creating a lien, and the statute provides a specific mode for creating 
 a lien. Bafuse v. Hunter, (1906) 12 B. C. E. 126. 
 
 An affidavit stating that work finished or discontinued " on or 
 about " a stated date was held sufficient. Holden v. Bright Pros- 
 pects G. M. Co., (1899) 6 B. C. E. 439. 
 
 Particulars of claim in affidavit for lien were:. "The putting 
 in bath-tubs, wash-tubs, hot and cold water connections,- all neces- 
 sary pipes, boiler and hot water furnace and waste pipes, $220. 
 Part was for material and part for labor. It was held (Davie, 
 C.J., dissenting), that the statement was fatally defective, as 
 including two classes, in regard to one of which there was no 
 statutory lien. Davie, C.J., was of the opinion that the particulars 
 were sufficient, and that the separation of the price of the labor 
 from that of the material was a function of the court exercisable 
 
294 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 at the trial. Wetter v. Shupe, (1897) 6 B. C. E. 58. In another 
 case the particulars for lien were: "Brick and stone work and 
 setting tiles in the house situate upon the land hereinafter described, 
 for which I claim the balance of $123." Held, insufficient. Knott 
 v. Cline, (1896) 5 B. 0. E. 120. 
 
 IJnder the Mechanics' Lien Act of 1888 it was held that the 
 affidavit must be strictly followed in order to validate the lien. 
 Smith v. Mcintosh, (1893) 3 B. C. E. 26. 
 
 See Barr & Anderson Y.Percy & Co., (1912) 21 W. L. E. 236. 
 
 An error in' naming the owner of the lands with respect to 
 which a lien is claimed, is not sufficient to prevent the instrument 
 claiming the lien from showing the substantial compliance with 
 the statutory form. Nobbs and Eastman v. C. P- P., 6 W. W. E. 
 759, 27 W. L. E. 664. 
 
 The' omission to register a mechanics' lien within the time speci- 
 fied in the Land Eegistry Office is not cured by this section, and ;s 
 fatal to the validity of the lien y even where it has heen registered 
 within the prescribed time in the County Court Eegistry. Dale 
 v. International Mining Syndicate, (1917) 2 W. W. E. 1031. 
 
 As to certain irregularities in affidavits not rendering, the 
 affidavits insufficient, see MacDonald v. Hartley, (1918) 3 W. W. 
 E. 910. 
 
 A rule of practice which provides that an affidavit shall not be 
 sworn before the solicitor for the party on whose behalf it is to be 
 used, applies to the affidavit required under the Lien Act. Col- 
 umbia Bitulithic, Ltd. v. Vancouver Lumber Co., 21 D. L. E. 91 ; 
 Braden v. Brown, (1917) 3 W. W. E. 906. 
 
 As to powers of amendment of the court, see Isitt v. Merritt 
 Collieries, Ltd., (1920) 1 W. W. E. 879. 
 
 21. No lien to be filed for less than $20.— No lien shall be filed 
 unless the claim or joined claims shall amount to or aggregate 
 twenty dollars or more. 1910, c. 31, s. 21. 
 
 22. Liens pass on death to legal representatives, or may be as- 
 signed. — In the event of the death of the lien-holder, his lien shall 
 pass to his personal representatives, and the right of a lienholder 
 may be assigned by any instrument in writing, subject to the limita- 
 tion contained in section 16 hereof. 1910, c. 31, s. 22. 
 
THEBKITISH COLUMBIA MECHANICS' LIEN ACT. 295 
 
 The lien of an architect is assignable and then enforceable by 
 the assignee. Sickler v. Spencer, (1911) 19 W. L. E. 557. 
 
 Expibation, Cancellation and Dischakge. 
 
 23. When a lien shall expire. — Every lien shall absolutely 
 cease to exist after the expiration of thirty-one days after the filing 
 of the affidavit mentioned in section 19 of this Act, unless the 
 claimant in the meantime shall have instituted proceedings to 
 realize his lien under the provisions of this .Act in the County 
 Court registry in which the lien was filed, or unless in the mean- 
 time the consent in writing, signed by the owner or party whose 
 interest is charged, extending the existence of said lien for a period 
 named in said consent, is filed in the County Court registry in 
 which the lien was filed. Said consent may be in the form or to 
 the effect of Schedule D to this Act. 1910, c. 31, s. 23. 
 
 See Dunnv.Holbrook, (1900) 7 B.C.E. 503, and compare Neill 
 v. Carroll (1880) 28 Gr. 34, 399; Bank of Montreal v. Haffner, 
 (1884) 10 0. A. R. 592; and McNamara v. Kirkland, (1891) 18 
 O. A. R. 270. 
 
 24. Cancellation of lien. — (1) The County Court Registrar 
 shall cancel any lien when the .amount due in respect thereof has 
 been ascertained and paid into court in pursuance of an order of 
 the court or judge, or the property has been sold to realize such 
 lien, or such lien has been improperly filed or has otherwise ' 
 ceased to exist, or on receiving a statement in writing, signed by 
 the claimant or his agent, that the lien has been satisfied. 
 
 (2), Upon such cancellation the County Court Registrar shall 
 issue a certificate thereof to the owner, and the Registrar-General 
 or District Registrar of Titles (as the case may be) shall, upon 
 the production of such certificate of cancellation, cancel the regisr 
 tration of such lien in the books of the Land Registry Office. 
 1910, c. 31, s. 24. (Part new.) 
 
 The certificate of action required by this section must be 
 filed within the time therein limited, otherwise the lien ceases to 
 exist. Dunn v. Holbrook, (1899) 7 B. C. R. 503. 
 
296 , THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 25. Summons to show cause why lien should not be cancelled. 
 
 — Any person against whose property a lien has been registered 
 under this Act may apply to the judge, on an affidavit setting 
 forth registry of the same, and that hardship or inconvenience is 
 experienced, or is likely to be experienced thereby, with the rea- 
 sons for such statement, for a summons calling upon the opposite 
 party to show cause why such lien should not be cancelled upon 
 sufficient security being given. Such summons, together with a 
 copy of the affidavit on which the same is granted, shall be served 
 on the opposite party and made returnable in three days after the 
 issuing thereof, or in such greater or less time, as the judge may 
 direct. 1910, c. 31, s. 25.- 
 
 26. Judge may order cancellation of lien. — On the return of 
 such summons, the judge may order the cancellation of such lien, 
 either in whole or in part, upon the giving of security by the party 
 against whose property the said lien is registered to the opposite 
 party, in an amount satisfactory to the judge, and upon such other 
 terms (if any) as the judge may see fit to impose. 1910, c- 31, s. 
 26. 
 
 The giving of security is a condition precedent to the cancella- 
 tion of the lien. Walsh v. Mason, (1914) 26 W. L. E. 942, 19 
 B. C, E. 48. 
 
 27. On judge's order, lien to be cancelled.-^-The County Court 
 Eegistrar and the Eegistrar-General or District Eegistrar of Titles 
 (as the case may be), in whose office the said lien is registered 
 shall, on the production of such order, or an office copy thereof, file 
 the same and cause the, said lien to be cancelled as to the property 
 affected by the order. 1910, c. 31, s. 27. 
 
 Enforcement. 
 
 28. Consolidated liens. — Any number of lienholders may be 
 joined in one suit, and all suits or proceedings brought by a lien- 
 holder shall be taken to be brought on behalf of all lienholders 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 297 
 
 who may 'be made parties to such suits or proceedings within the 
 time mentioned in section 23 hereof: Provided that the moneys 
 realized in such suit shall he distributed amongst the lienholders, 
 parties to such suit or proceedings, in the order and manner pro- 
 vided in section 36 of this Act. Any lienholder not originally 
 joined may within the time mentioned in section 23 hereof, be 
 made a party to such suit or proceedings by order of the judge, 
 upon ex parte application, supported by an affidavit stating the 
 particulars of the claim, and any lien-holder so joined in any 
 such suit or proceedings shall be deemed to have complied with 
 section 23 of thisiAet as fully as if he instituted a suit in his own 
 behalf. 1910, c. 31, s. 28. 
 
 29. Owner or contractor may apply to have suits consolidated. — 
 
 If more than one suit is commenced in respect of the same con- 
 tract, the owner or contractor shall apply to have the causes con- 
 solidated, and failing to do so he shall pay the costs of such 1 
 additional suit or suits. 1910, c. 31, s. 29. 
 
 A bank holding an assignment of the balance of the contract 
 price owing by the owner to the principal contractor has a sufficient 
 interest to be added a party defendant. Dorrell v. Campbell, 22 
 B. C. E. 584; 10 W. W! E. 492, 27 D. L. E. 425, 34 W. L. E. 367. 
 See also 32 D. L. E. 44, 23 B. C. E. 500 (1917) 1 W. W. E. 500. 
 
 30. Judge may order consolidation of actions. — If two or more 
 actions are brought in respect of the same contract or work, the 
 judge shall, by order, on the application of any person interested, 
 consolidate all the actions, and may make such order as to costs 
 as he shall think fit. 1910, c. 31, s. 30. 
 
 See Coughlan v. National Construction Co., (1909) 14 B. C. E. 
 339. 
 
 31. Suits to be brought in County Court. — Whatever the 
 amount of lien or. liens, proceedings to realize same may be taken 
 before the judge, who is hereby authorized and empowered to pro- • 
 ceed in a summary manner by summons and order, and he may 
 
298 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 take accounts and make requisite inquiries, try issues, and in de- 
 fault of payment may direct the sale of the estate or interest 
 charged, and such further proceedings may foe taken for the pur- 
 pose aforesaid as the judge may think proper in his discretion, and 
 any conveyance under his seal shall be effectual to pass. the estate 
 or interest sold. And, when not otherwise provided, the pro- 
 ceedings shall he, as nearly as possible, according to the practice 
 and procedure in force in the County Court; and when these are 
 no guide, the practice and procedure used in the Supreme Court 
 shall be followed. 1910, c. 31, s. 31. 
 
 As to appeals see Champion v. World Building Co., (1914) 51 
 C. L. J. 63. 
 
 32. Leasehold property. 1 — If the property sold in any proceed- 
 ings under this Act shall be a leasehold interest, the purchaser 
 of any such sale, shall be deemed to be the assignee of such lease. 
 1910, e. 31, s. 32. 
 
 33. In certain cases owner or contractor to pay costs. — When 
 it shall appear to the Judge in any proceedings to enforce a lien 
 or liens under this Act that such proceedings have arisen from 
 the failure of any owner or contractor, or both of them, to fulfil 
 the terms of the contract or engagement for the work .in respect 
 of which the liens, are sought to be enforced, or to comply with 
 the provisions of this Act, the judge may order the said owner or 
 contractor, or both of them, to pay all the costs of such proceed- 
 ings, in addition to the amount of the contract or sub-contract, or 
 wages due by him or them to any contractor, sub-contractor, or 
 lahorer, and may order a final judgment against such contractor 
 or owner, or 'both of them, for such costs. 1910, c. 31, s. 33. 
 
 34] Judgment for amount of claim. — Upon the hearing of any 
 claim for a lien, the court or judge may, so far as the parties before 
 him, or any of them, are debtor and creditor, give judgment 
 against the former in favor of the latter for any indebtedness or 
 liability arising out of the claim, in the same manner as if such 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 299 
 
 indebtedness or liability had been sued upon in the County 
 Court in the ordinary way, without reference to this Act. 
 
 And judgment may be given for the sum actually due, not- 
 withstanding such sum may exceed the ordinary jurisdiction of 
 the County Court. 1910, c. 31, s. 34. 
 
 See Sayward v. Dunsmuvr, (1905) 11 B. C. E. 375. 
 
 35. No appeal where action for less than $250. — In any action 
 for a lien where the amount claimed to be owing is less than two 
 hundred and fifty dollars, the judgment shall be final, binding, and 
 without appeal ; but in any other action for a lien an appeal shall 
 lie from any judgment or order of the judge in like manner as in 
 ordinary cases. 1910, c. 31, s. 35. 
 
 This provision applies only where a sum of money has been 
 awarded and the existence of a valid lien is pre-supposed. Cough- 
 Ian v. National Construction Co., (1909) 14 B. C. E. 339. 
 
 Where the amount adjudged to be owing was only $172.05, an 
 appeal from the judgment was dismissed. Gillies Supply Co. v. 
 Allan, (1910) 15 B- C. E. 375 (C.A.) ; 14 W. L. R. 458. 
 
 Though several lienholders may bring suit on their respective 
 and distinct claims in one action and judgment may 'be entered 
 .for the whole amount of said claims, yet for the purposes of ap- 
 peal each' claim is deemed to be severable, and the adjudication 
 thereon is a distinct one, and not appealable unless it amounts to 
 $250. .Galriele y. Jackson Mines, 15 B. C. E. 373, 2 M. M. C. 399. 
 The claims of several lien claimants, each one of which is under 
 $250, cannot be joined together so as to bring the amount up to 
 $250, and so permit of an appeal. Baker v. Uplands, (1913) 24 
 W. L. E. 768. No appeal lies to the Supreme Court of Canada 
 in an action to enforce a mechanic's lien. Champion & White v. 
 The World Building Co., 50 Can. S. C. R. 382. 
 
 36. Distribution of moneys realized under Act. — All moneys 
 realized by proceedings under this Act shall be applied and dis- 
 tributed in the following order : — 
 
 (1) The costs of all the lienholders of and incidental to the 
 proceedings and of registering and proving the liens ; 
 
300 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (2) Six weeks' wages (if so much be owing) of all laborers 
 employed by the owner, contractor, and sub-contractor; 
 
 (3) The several amounts owing for services rendered, work 
 done (in excess of six weeks' wages), and material placed or 
 furnished in respect of the works or improvements; 
 
 (4) The amounts owing the sub-contractor and other persons 
 employed by the owner and contractor ; 
 
 (5) The amount owing the contractor. 
 
 Each class of lienholders shall rank pari passu for their several 
 amounts, and the portions of said moneys available for distribution 
 shall he distributed among the lienholders pro rata according to 
 their several classes and rights. 
 
 Any balance of said moneys remaining after ' all the above 
 amounts have been distributed shall be payable to the owner or 
 other person legally entitled thereto. 1910, c. 31, s. 36. 
 
 37. Mechanic's lien on chattels. — Every mechanic or other per- 
 son who has bestowed money or skill and materials upon any chat- 
 tel in the alteration and improvement of its properties, or increas- 
 ing its value, so as thereby to become entitled to a lien upon such 
 chattel or thing for the amount or value of the money, skill, or 
 materials bestowed, shall, while such lien exists, but not afterwards, 
 in case the amount to which he is entitled remains unpaid for three 
 months after the same ought to have been paid, have power to 
 sell the chattel in respect of which the lien exists, on giving two 
 weeks' notice by advertisement in a newspaper published in the 
 city, town, or county in which the work was done, or in case there 
 is no newspaper published in such city, town, or county, then in a 
 newspaper published nearest thereto, stating the name of the 
 person indebted, the amount of his indebtedness, a description of 
 the chattel to be sold, the time and place of sale; and after such 
 sale such mechanic or other person shall apply the proceeds of such 
 sale in payment of 1 the amount due to him, and the costs of ad- 
 vertising and sale, and shall pay over the surplus (if any) to the 
 person entitled thereto, on application being made to him there- 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ' ACT. 301 
 
 for, and a notice in writing of the result of the sale shall be left 
 at or posted to the address of the owner at his last-known place of 
 abode or business. 1910, c. 31, s. 37. 
 
 See chapter entitled " Mechanics' Liens on Personalty," ante. 
 
 38. Certain proceedings not to be deemed satisfaction or waiver 
 of lien. — The taking of any security, or the acceptance or dis- 
 counting of any promissory note, or cheque (which, on presenta- 
 tion, is dishonored), for the claim, or the taking of any other 
 acknowledgment of the claim, or the taking of any proceedings for 
 the recovery of the claim, or the recovery ,of any personal judgment 
 for the claim, shall not merge, waive, pay, satisfy, prejudice, or 
 destroy any lien created by this Act, unless the lienholder agrees 
 in writing that it shall have that effect : Provided, however, that 
 a person who has extended the time for payment of any claim 
 for which he has a lien under this Act, to obtain the benefit of, 
 this section, shall institute proceedings to enforce such lien within 
 the time limited by this Act, but no further proceedings shall be 
 taken in the action until the expiration of such extension of time*: 
 Provided further that notwithstanding such extension of time, such 
 person may, where proceedings are instituted 'by any other person 
 to enforce a lien against the same property, prove and obtain pay- 
 ment of his claim in such suit or action as if no such extension 
 had been given. 1910, c. 31, s. 38. 
 
 A lien lost by taking a promissory note is not revived upon 
 dishonor thereof. Edmonds v. Tiernan, (1891) 2 B. C. E. 82, 21 
 Can. S. C. E. 406. See cases where this decision and the decisions 
 in two Manitoba cases are distinguished or questioned. Swanson 
 v. ThoUison, 6 W. L. E. 678; Clarice v. Moore, (1908) 1 Alta. L. E. 
 49, 8 W. L. B. 405, 411; Gorman v. Archibald, (1908) 1 Alta. 
 L. E. 524. 
 
 Where promissory notes had been received and discounted by 
 the. lienholder for the materials supplied, the lien was not thereby 
 waived. Coughlan v. National Construction Co., (1909) 14 
 B. C. E. 339. See particularly the judgment of Irving, J., at 350. 
 
 39. Judges of County Court to make rules of court. — The 
 
 judges of the County Courts, or any two of them, may make gen- 
 
302 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 eral rules and regulations, not inconsistent with this Act, for ex- 
 pediting and facilitating the business before such courts under this 
 Act, and for the advancement of the interests of suitors therein. 
 1910, c. 31, s. 40. 
 
 Costs. 
 
 40. Limit of fees in money or stamps. — No fees in stamps or 
 money shall be payable to any judge or other officer in any action 
 brought to realize a lien under this Act, nor on any filing, order, 
 record, or judgment, or other proceedings in such action, excepting 
 that every person, other than a wage-earner, shall, on filing his 
 statement of claim where he is a plaintiff, or on filing his claim 
 where he is not a plaintiff, pay in stamps one dollar on every one 
 hundred dollars, or fraction of one hundred dollars, of the amount 
 of his claim up to one thousand dollars. 1910, c. 3i, s. 41. 
 
 41. Limit of costs to plaintiff. — The costs of the action under 
 this Act awarded by the judge or officer trying the action to the 
 plaintiffs and successful lienholders, exclusive of the costs of any 
 appeal, shall not exceed in the aggregate an amount equal to 
 twenty-five per cent, of the amount of the judgment, besides actual 
 disbursements, and shall be in addition to the amount of the judg- 
 ment, and shall be apportioned and borne in such proportion as 
 the judge or other officer who tries the action may direct. 1910, 
 c. 31, s. 42. 
 
 42. Limit of costs to be awarded against plaintiff. — Where the 
 costs are awarded against the plaintiff or other persons claiming 
 the lien, such costs shall not exceed an amount in the aggregate 
 equal to twenty-five per cent, of the claim of the plaintiff -and 
 other claimants, besides actual disbursements, and shall be appor- 
 tioned and borne as the judge or said other officer may direct. 
 1910, e. 31, s. 43. 
 
 43. Costs where least expensive course not taken.^-In case 
 the least expensive course is not taken by a plaintiff under this 
 
THE BEITISH COLUMBIA MECHANICS' LIEN ACT. 303 
 
 Act, the costs allowed to the s61icitor shall in no case exceed what 
 would have 'been incurred if the least expensive course had been 
 taken. 1910, c. 31, s. 44. 
 
 A loan company forcing lienholders to go to trial to establish 
 their rights and priorities were ordered to pay the costs of the 
 trial. Palfrey v. Brown, 31 W. L. E. 535. 
 
 44. Costs of vacating lien. — Where the lien is discharged or 
 vacated under section 27 of this Act, or where in an action judg- 
 ment is given in favor of or against a claim for a lien, in addition 
 to the costs of an action, the judge or other officer may allow a 
 reasonable sum for costs of drawing and registering the lien, or 
 for vacating the registration of the lien. 1910, c. 31, s. 45. 
 
 45. Costs not otherwise provided for. — The costs of and in- 
 cidental to all applications and orders made under this Act and 
 not otherwise provided for shall be in the discretion of the judge 
 or officer to whom the application or by whom the order is made. 
 1910, c. 31, s. 46. 
 
 SCHEDULES. 
 
 SCHEDULE A. 
 To 
 
 You are hereby notified that the undersigned will claim a lien 
 under the. " Mechanics' Lien Act " for the price of [here give a 
 general description of material] delivered on or about the 
 day of ,19 , or delivered within ten days prior 
 
 to this date, and to be delivered hereafter, to be used in the works 
 or improvements on your premises, situate [description of the 
 premises] , which said material was ordered by 
 Amount due for material delivered to date, $ 
 Dated this day of , 19 . 
 
 1910, c. 31, Sch. A. 
 1799. 
 
304 THE LAW OF MECHANICS 5 LIENS IN CANADA. 
 
 SCHEDULE B. 
 
 Pat Eolx. 
 
 
 S3 
 
 -.2 
 'ft 
 
 "a 
 
 From 3rd Jan., 1910, to 10th 
 Jan., 1910 (inclusive) 
 
 T3 
 '3 
 
 a 
 
 3 
 O 
 
 E 
 < 
 
 Date of 
 
 payment 
 
 p. 
 
 Name 
 
 . No. 
 days em- 
 ployed 
 
 u 
 
 0) 
 Q. 
 
 (ST3 
 
 Total 
 amount 
 earned 
 
 Amount 
 
 due for 
 
 material 
 
 delivered 
 
 ■£.s 
 Is 
 
 R. Roe... 
 S. Doe... 
 
 
 Six days 
 
 $3.50 
 
 $21.00 
 
 $25.00 
 
 $21.00 
 $25.00 
 
 10th Jan., 
 
 1910 
 10th Jan., 
 
 1910 
 
 R. Roe... 
 S. Doe... 
 
 
 
 
 
 
 
 I hereby certify that the above statement is correct to the best 
 of my knowledge and belief, and is made by me in compliance and 
 in accordance with section 15 of the " Mechanics' Lien Act," on 
 account of [my contract to or employment by, as the case may be], 
 [here insert brief description of the work], for [owner's name], up 
 to the day of , 19 
 
 (Signed.), 
 
 Contractor. 
 Dated' this day of , 19 . 
 
 1914, c. 31, Sch. B. 
 
 SCHEDULE C. 
 
 In the Matter of the " Mechanics' Lien Act," and in the Matter 
 of a lien claimed by 
 I, , of ■ , British Columbia, make 
 
 oath and say: — 
 
 1. That , of. , claim a mechanic's lien 
 against the property or interest hereinafter mentioned, whereof 
 
 is owner. 
 
 2. That the particulars of the work done, services rendered, or 
 material furnished are as follows : — 
 
THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 305 
 
 3. That the work, service or material was finished, discontinued, 
 placed, or furnished, on or about the day of 
 
 4. That the said was in the employment of , 
 contractor for the work or service in respect of which the lien is 
 claimed, for days after the above-mentioned date. 
 
 5. That the sum of dollars is owing to in 
 respect of the same, and was, or will be, due on the day 
 of . 
 
 6. That the description \of the property to be charged is as 
 follows : — 
 
 Sworn at , B.C., this day of ,19 , 
 
 before me. 
 
 1910, c. 31, Sch. C. 
 
 SCHEDULE D. 
 
 To the Registrar of the County Court of 
 
 The undersigned hereby , consents to an extension of time until 
 the day .of , 19 , for instituting proceedings under 
 
 the " Mechanics' Lien Act" for work done and material placed or 
 furnished by , amounting to , dollars, in respect 
 
 of works or improvements on my premises situate 
 
 Dated this day pf , 19 . 
 
 1910, c. 31, Sch. D. 
 
 CHAPTEE 40. 
 
 An Act to Amend the " Mechanics' Lien Act." 
 
 (Assented to, May 19, 1917.) 
 
 XJIS MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of British Columbia, 
 enacts as follows: — 
 
 M.L.— 20 
 
306 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 1. Short title. — This Act may be cited as the "Mechanics' 
 Lien Act Amendment Act, 1917." 
 
 2. Amends section S.^Section 9 of the " Mechanics' Lien Act," 
 being chapter 154 of the "fievised Statutes of British Columbia, 
 1911," is hereby amended by adding thereto the following pro- 
 visoes : — 
 
 " Provided always that in connection with work done in or 
 about any mine or mineral claim, notwithstanding anything to the 
 contrary in this or any other Act contained, a laborer's lien as 
 provided for in section 6 hereof to the extent of twenty-five days* 
 wages as salary, whether the employment in respect of which the 
 same is payable is by the day, by the week, by the job or piece, or 
 otherwise, shall be absolute, and shall to such extent, but no further 
 or otherwise, be prior to any mortgage or other encumbrance what- 
 soever ; 
 
 " Provided further that the holder of any sueh mortgage or 
 other encumbrance may, at his option, on default by the mortgagor 
 or other encumbrancer, for a period of five days from the entry of 
 the judgment establishing any such lien, to satisfy the game, pay 
 the same, and may treat any money so paid as principal advanced 
 on account of such mortgage or other encumbrance, and money 
 so paid shall bear interest as from the date of such payment at the 
 rate provided for on principal in such mortgage or other encum- 
 brance." 
 
 The effect of this section making a laborer's lien for work done 
 in or about a mine, etc., to the extent specified, " absolute " and 
 prior to any mortgage, etc., is io exclude, in favor of such laborer 
 and to the extent aforesaid, all the conditions which might other- 
 wise have to be satisfied before a lien could be impressed upon 
 certain interests in the property. Isitt v. Merritt Collieries, Ltd., 
 (1920) 1 W. W. E. 879. In deciding this case Swanson, Co.J., 
 holds that the word "• absolute " in this amendment means " un- 
 conditional." 
 
THE MECHANICS' AND WAGE-EARNERS' 
 LIEN ACT OP MANITOBA. 
 
 CHAPTER 125. 
 
 An Act Respecting Liens of Mechanics, Wage-Earners and 
 
 Others. 
 
 TJ IS MAJESTY, by and with the advice arid consent of the 
 Legislative Assembly of Manitoba, enacts as follows : — 
 
 1. Short title. — This Act may be cited as " The Mechanics' and 
 Wage Earners' Lien Act." R. S. M. c. 110, s. 1. 
 
 2. Interpretation. — -In this Aet y unless the context otherwise 
 requires, — 
 
 (a) "Contractor.'' — The expression "(Contractor" means a 
 person contracting with or employed directly by the owner or his 
 agent for the doing of Work of placing or furnishing of materials 
 for any of the purposes mentioned in this Act; 
 
 ( : b) " Sub-colitfactor.'' — The expression "sub-contractor " 
 means a person not contracting with or employed directly by the 
 owner or his agent for the purposes aforesaid, but contracting with 
 or employed by a contractor^ or under him by another sub-con- 
 tractor ; 
 
 (c) "Owner."' — The expression "owner" extends to and in- 
 cludes any person, firm, association, body corporate or politic,- in- 
 cluding a municipal corporation, having any estate or interest in 
 the lands upon or in respect of which the work or service is done, 
 or materials are placed or furnished, at whose request and upon 
 whose credit or on whose behalf or with whose privity or consent 
 or for whose direct benefit any such work or service is performed 
 
308 THE LAW OF MECHANICS' LIMNS IN CANADA. 
 
 or materials are placed or furnished, and all persons claiming under 
 him or them whose rights are acquired after the work or service 
 in respect of which the lien is claimed is commenced or the 
 materials furnished have heen commenced to be furnished; 
 
 (d) "Person." — The expression "person" extends to and in- 
 cludes a body corporate or politic, a firm, partnership or association ; 
 
 (e) "Material." — The expression "material" includes every 
 kind of moveable property; 
 
 (f ) " Registry Office." — The expression " registry office " in- 
 cludes a land titles office ; 
 
 (g) " Registrar." — The expression " registrar " includes a dis- 
 trict registrar; 
 
 (h) " Wages." — The expression " wages " means money earned 
 by a mechanic or laborer for work done, whether by the day or as 
 piece work; 
 
 (i) , " Judge.'' — The expression " judge^ " means a judge of the 
 County Court of the judicial division in which the property 
 affected by a lien is situated. B. S. M. c. 110, s; 2; 3 Geo. 5, c. 32, 
 s. 8. 
 
 This section differs from the corresponding Ontario provi- 
 sion (section .2), by omitting "railway company" from the defini- 
 tion of owner. 
 
 A foreign unlicensed corporation is entitled' to acquire a lien 
 under this Act. See, Bank of Montreal v. Condon, (1896) 11 Man. 
 'L. K. 366. 
 
 Defendant mortgagees claiming through the owner have no 
 better right to dispute the lien, or to make any charge of bad faith, 
 than the owner. Brynjolfson v. Oddson, (1916) 27 Man. L. E. 
 390. 
 
 One who furnishes gravel and the use of a number of teams by 
 agreement with a contractor is a " sub-contractor " and not a 
 wage-earner, though he uses the term "wages" in his claim for 
 the purpose of computing the amount of it. Wilks v. Leduc, 
 (1916) 27 Man. L. E. 72. 
 
mechanics' lien act of manitoba. 309 
 
 Origin and Nature of Liens. 
 
 3. Contracts not to deprive third party of lien. — No agree- 
 ment shall be held to deprive anyone otherwise entitled to a lien 
 under this Act, and not a party to the agreement, of the benefit 
 of the lien; but the lien shall attach, notwithstanding snch agree- 
 ment. E. S. M. c. 110, s. 3. 
 
 See Ont. Act, section 5. 
 
 A contractor cannot bind any sub-contractor by any such agree- 
 ment. Anley v. Holy Trinity Church, (1885) 2 Man. L. E. 248. 
 
 A lien for materials only arises where the goods are supplied 
 for the purpose of being used in the particular building on which 
 the lien is claimed. Sprague v. Besant, (1885) 3 Man. L. E. 519. 
 See Ont. Act, section 6 (e), "to be used." See also Dominion 
 Radiator v. Cann, 27 N: S. E. 237. 
 
 4. Nature of lien. — Unless he signs an express agreement to 
 the contrary, any person who performs any work i or service upon 
 or in respect of, or places or furnishes any materials to be used 
 in the making, constructing, erecting, fitting, altering, improving or 
 repairing of, any erection, building, land 1 , wharf, pier, bulkhead, 
 bridge, trestle-work, vault, mine, well, excavation, sidewalk, paving, 
 fountain, fishpond, drain^ sewer, aqueduct, roadbed or way, or the 
 appurtenances to any of them for any owner, contractor or sub- 
 contractor, shall by virtue thereof have a lien for the price of 
 such work, service or materials upon the erection, building, land, 
 wharf, pier, bulkhead, bridge, trestlework, vault, mine, well,, excava- 
 tion, sidewalk, paving, fountain, fishpond, drain, sewer, aequeduct, 
 roadbed, way, and appurtenances thereto, and the lands occupied 
 thereby or enjoyed therewith, or upon or in respect of which the 
 said work or service is performed, or upon which such materials 
 are placed, or furnished to be used, limited, however, in amount 
 to the sum justly due to the person entitled to the lien and to the 
 sum justly owing (excepting as. herein provided) by the owner: 
 
 No lien for sum under $20. — Provided that no such lien shall 
 exist under this Act for any claim under the sum of twenty 
 dollars. 
 
310 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (2) Commencement of lien. — Such lien, upon registration as 
 hereinafter provided, shall arise and take effect from the date of 
 the commencement of such work or service, or from the placing of 
 such materials, as against purchasers, charges or mortgagees under 
 instruments, registered or unregistered, E. S. M. c. 110, s. 4. 
 
 This section omits the words " railway," " fence " and " fruit 
 and ornamental trees," which are included" in the Ontario section. 
 
 See Ont. Act, section 6. Sub-section (a) is not in the Ontario 
 Act, which omits also the limitation of liens to claims for twenty 
 dollars and upwards. 
 
 A workman 1 for a materialman is not entitled to a lien. Allen 
 v. Harrison, 9 W. L. E. 198. 
 
 The lien arises and takes effect against the owner from the com- 
 mencement of the work or service.: Merrick v. Campbell, (1914) 
 24 Man. L. E. 446, 17 D-. L. E. 415. 
 
 A _ contractor cannot enforce a lien for more than the amount 
 actually due according to the contract. Brydon v. Lutes, (1891) 
 9 Man. 463; McArthur v. Dewar, (1885) 3 Man. 72. 
 
 Municipal buildings' have in Manitoba been held to be sub- 
 ject to mechanics' liens. McArthur v. Dewar, (1885) 3 Man. 
 72 ;. McLennan and Winnipeg, (1882) 3 Man. 74. 
 
 Proceedings were taken to enforce a mechanics' lien by levy, • 
 after winding-up order had been made. Held, that neither section 
 16 (now section 22) nor 17 (now 23) of the Winding-up Act 
 could be invoked against proceedings. Sections 62 (now sections- 
 76, 77,' 78 and 79) and 66 (now 84), of that Act should be read 
 together. The lien was not created by the proceedings but prior 
 to that time; hence, section 66 (now 84) did not take it away. Re 
 Empire Brewing & Malting Co., (1891) 8 Man. 424. See Re Good 
 and Nepisiquit Lumber Co., (1911) 2 E. Jj. E. 252. 
 
 In Moore v r Bradley, (1887) 5 Man- 49, Dubuc, J., held that a 
 public school building was not exempt from the operation of, the 
 mechanics' lien law, and while some decisions elsewhere are op- 
 posed to this view it is now the prevailing view in' Canadian 
 Courts. See Ontario Act, section 6 (h). An assignee of a mechanic 
 is entitled to a lien and may make the affidavit necessary for regis- 
 ' tration. Kelly v. McKenzie, 1 Man. L. E. 169. See McAllister v. 
 Des Rochers, 132 Mich. 381. 
 
 The plaintiff's claim consisted of charges for different jobs, all 
 in his line of business, but ordered at different times, and as to the 
 
MECHANICS' LIEN ACT OF MANITOBA. 311 
 
 first gob, if considered separately, his lien was not filed within the 
 time required by the statute. It was held that, in such circum- 
 stances, a 'mechanic should not be required, in order to secure pay- 
 ment, to file a lien after completing each piece of work, and that 
 filing his lien after he has completed all of his work is sufficient. 
 Carroll v. McVicar, 15 Man. L. B. 379. 
 
 A subcontractor is entitled to a lien even though the contrac- 
 tor under whom he claims has agreed with the owner that no 
 workman shall be entitled to a lien. Anly v. Holy Trinity Church, 
 (1885) 2 Man. 248. An assignee of the contract price for the 
 erection of the building is not entitled to the money as against the 
 lien of a sub-contractor, unless the owner has in good faith bound 
 himself to pay the assignee. Anly v. Holy Trinity Church, 2 Man. 
 L. E. 248. • 
 
 As to lien of sub-contractor, see also Wasdell v. White, 4 
 W. L. E. 562 ; McCauley v. Powell, 7 W. L. E. 443. 
 
 In Robock v. Peters, (1900) 13 Man. 124, Killam, J., points 
 out a difference in the phraseology of section 4 (a) and section 5 
 (b), and says: "The difference is probably inadvertent, but liens 
 are purely statutory and must be strictly followed as in derogation 
 of ordinary rights." See Dunn v. Sedziqk, 17 Man. L. E. 484. 
 
 The daim of a lien-holder is a preferential claim under The 
 Dominion Winding-up Act (E. S. C. c.^144). Re Empire Brewing 
 & Malting Co., (1891) 8 Man. 424. 
 
 Under a former Act it was held that a lien had no existence 
 until it was registered. ,Kievell v. Murray, (1884) 2 Man. 209. 
 
 A lien for materials only arises where the goods are supplied 
 for the purpose of being used in the particular building on which 
 the lien is claimed. Sprague v. Besant, (1885) 3 Man. 519; but 
 a materialman is not bound to show that his materials were used 
 in the building ; delivery upon the ground for the purpose of being 
 used is sufficient. McArthur v. Dewar, (1885) 3 Man. L. E. 72. 
 See also Dominion Radiator Co. v. Cann, (1904) 37 N. S. B. 237. 
 See Ontario cases and references to this question in chapter 
 entitled, " The Lien of the Materialman," ante. 
 
 The court has no jurisdiction to enforce a lien out of its 
 territorial jurisdiction. Chadwick v. Hunter, (1884) 1 Man. 363. 
 A mechanics' lien registered against two lots owned by different 
 persons, in respect to work done upon two houses, one on each of • 
 
312 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the lots, on the order of one of the owners, and for an amount 
 claimed to be due for -work on both houses, without apportioning 
 the same, cannot be enforced, nor can effect be given to the lien as 
 against one of the lots only for the proper amount. Fairclough v. 
 Smith, (1901) 13 Man. L. E. 509. 
 
 An agreement was made with plaintiffs to instal plumbing in 
 two houses, one to be built on each lot. The work on A. was 
 finished in July, and on B. in January following. While the 
 plaintiffs were working on A. it was bought by H. who, 30 days 
 after completion: of plaintiffs' work on A. paid the defendant the 
 full purchase price, having no notice of any ^ien. Plaintiffs subse- 
 quently registered a lien against both lots. Held, the contract 
 was divisible, and that there was no lien against A. Lee v. Hill, 
 11 W. L. E. 611. 
 
 As to facts which would constitute separate sales of materials 
 so as to. require separate registrations, see Stephens' Paint Go. v. 
 Cottingham, (1916) 10 W. W. E. 627; Ohadwich v. Hunter, 1 Man. 
 L. E. 39. 
 
 / This section prevents a waiver of the statute by the lien claim- 
 ant except by an " express agreement." An estoppel in pais 
 cannot prevent such lien. United States Construction Go. 
 v. Bat Portage Lumber Co., Ltd., (1915) 25 Man. L. E. 793; 
 Anderson v. Fort William Commercial Chambers, Ltd., (1915.) 
 25 D. L. E. 319. While the retention of title is not incon- 
 sistentwith the statutory right to a mechanics' lien, if a lien claim- 
 ant invokes the provisions of the Mechanics' Lien Act to enforce ' 
 his claim for materials furnished for and erected in a building, he 
 should be taken to have elected to make them a part of the building 
 and realty against which he claims the lien and to be thereafter 
 estopped from claiming that the materials are his property, and that 
 he has a right to remove them. United States Construction Com- 
 pany v. The Bat Portage Lumber Co., (1915) 25 Man. L. E. 793. 
 
 ' If the .contractor agrees to assert no lien he will be bound by 
 such agreement. Brydon v. Lutes, 9 Man. L. E. 463. 
 
 Where it is agreed that all bills shall be paid by cheque of the 
 contractor (Ritchie v. Grundy, 7 Man. L. E. 532) or that the eon- 
 tractor shall satisfy all claims {Anly v. Holy Trinity Church, 2 
 Man. L. E. 248), or that the building shall be delivered free from 
 liens, the contractor's right to a lien will not be defeated. See 
 Schmid v. Palm Garden Imp. Co., 162 Pa. 211. 
 
MECHANICS' LIEN ACT OF MANITOBA. 31.3 
 
 Where payment under a building contract is conditioned on the 
 completion of the work to the satisfaction of the engineer, and upon 
 the strict compliance with all the provisions of the contract, the 
 contractor cannot recover the contract price without asserting and 
 proving strict compliance with all conditions precedent. Merriam, 
 v. Public Paries Board, (1912), 2 D. L. B. 702, following Brydon 
 v. Lutes, 9 Man. L. E. 463. See also Davidson v. Francis., 14 Man. 
 L. E. 141. There is no presumption that a husband is acting as 
 his wife's agent. Gillies v. Gibson, (1907) 7 W. L. E. 243. 
 
 As to non-liability of company for contract made by promoter, 
 see Desrochers v. Crump. (1911) 17 W. L. E. 47. 
 
 The lien comes into existence as soon as the work begins, or any 
 materials are delivered. McCauley v. Powell, (1908) 7 W. L. E. 
 443. 
 
 As to construction of word " claim," see Phelan v. Franklin, 
 (1905) 2 W. L. E. 29. 
 
 Although the lien may be registered before commencing or 
 during the progress of the work, an action thereon cannot be begun 
 before completion of the contract. Curtis v. \ Richardson, (1909) 18 
 Man. L. E. 519. 
 
 The defendant H. agreed to build a house for the defendant W. 
 for $4,860.75. The plaintiffs supplied lumber to H. for the build- 
 ing, and after they had delivered $1,075.68 worth of material on 
 the premises and had not been paid anything for it, they, saw W. 
 and made an arrangement with him, the terms of which were in 
 dispute between them. It was held, upon the evidence, that W. did 
 not undertake to pay the plaintiff for the deliveries then already 
 made, but entered into a new agreement with the plaintiffs, whereby 
 he agreed to take, on his own account, and pay for, the lumber he yet 
 required. 
 
 The plaintiffs having contended, as part of their case, that H. 
 was released by themselves and W. from all liability to them, did 
 not ask for judgment against H. It was held that the action should 
 be dismissed as against H., but without costs. The plaintiffs did 
 not press for judgment against the defendant company, mortgagees 
 from W., and as against the company the action was also dismissed 
 without costs. As against W., the plaintiffs were held entitled to 
 judgment for the full price of the goods supplied by them after the 
 new arrangement, and (by way of enforcing their mechanics' lien) 
 for a proportion of the price of the goods supplied before 'that 
 
314 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 arrangement, equal to 20 per cent, of the proportion which the 
 value of the work executed and materials delivered at the time 
 bore to the contract price. Rat Portage Lumber Co. v. Hewitt, 
 (1912) 22 W. L. E. 249, 6 D. L. E. 871. 
 
 If at the time of the abandonment by a contractor of his build- 
 ing contract, there is, by the terms of it, nothing payable to him 
 by the owner, a sub-contractor, whether for work or materials, can 
 have no lien upon the property, for anything due him by the 
 contractor. Wilhs v. Leduc, (1916) 27 Man. L. E. 72; (1917) 
 1 W. W. E. 4. 
 
 One lien" may be filed against two houses owned by two persons 
 together, though they afterwards divide the houses between them. 
 Poison v. Thomson, (1917) 26 Man. L. E. 410. 
 
 When the owner of a number of lots in one locality makes a 
 general arrangement with a materialman for the supply on credit 
 of such materials as he deals in for all the houses to be built by 
 him upon the different lots, and, in pursuance of such arrange- 
 ment, the materialman delivers such materials as are ordered by 
 such owner on the lots or at such place in the' vicinity as are 
 designated by the owner, for the purpose of their being used in 
 construction of houses on said lots, he is" entitled to file one lien 
 against all the lots for the cost of all such materials so delivered. 
 Poison v. Thomson, (1917) 26 Man. L. E. 410. 
 
 The Act does not authorize the registration of -one. lien for one 
 lump siim against the lands of different owners, although the work 
 may have been done or the materials furnished under one con- 
 tract for the building of houses on the lands of the different own- 
 ers, unkss, perhaps, in a case where the lien claimant did not know 
 and had no means of ascertaining before filing his lien, that the 
 lands were owned by different persons. Builders Supply Co. v. 
 Huddlestone, 25 Man. L. E. 718. 
 
 5. Property upon which lien shall attach. — The lien shall 
 attach upon the estate or interest of the owner as defined by this 
 Act in the erection, building, land, wharf, .pier, bulkhead, bridge, 
 trestlework, vault, mine, well, excavation, sidewalk, paving, foun- 
 tain, fishpond, drain, sewer, aqueduct, roadbed or roadway, and the • 
 appurtenances thereto, upon or in respect of which the work or 
 service is .performed or the materials are placed or furnished to 
 be used, and the lands occupied thereby or enjoyed therewith. 
 
MECHANICS' LIEN ACT OF MANITOBA. 315 
 
 (2) Where estate charged is leasehold. — In cases where the 
 estate or interest charged by the lien is leasehold, the fee simple 
 may also, with the consent of the owner thereof, be subject to said 
 lien, provided such consent is testified by the signature of suph 
 owner upon the claim of the lien at the time of the registering 
 thereof, and duly verified. 
 
 (3) Mortgaged land. — If the land upon or in respect of which 
 the work is done, or materials or machinery are placed, be encum- 
 bered by a mortgage or other charge existing or created before the 
 commencement of the work or of the placing of the materials or 
 machinery upon the land, such mortgage or other charge shall 
 have priority over a lien under this Act to the extent of the actual 
 value of such land at the time the improvements were com- 
 menced. E. S. M. c. 110, s. 5. 
 
 Compare Ontario Act, section 8 (1), and see cases thereunder. 
 
 S6e Flack v. Jeffrey, (1895) 10 Man. 514; and; In re Empire 
 Brewing & Malting Co., (1891) 8 Man. 424. 
 
 The lien attaches from the placing of the materials. Robock 
 v. Peters, (1900) 13 Man. 124. See statement of this case under 
 ' section 20, post. 
 
 It is probable that though the contract is never carried out the 
 lienholder may assert his lien upon the increase in value against 
 the vendor as if the relationship had been that of mortgagor and 
 mortgagee. Hoffstrom v. Stanley, (1902) 14 Man. 227. 
 
 In determining the value of a parcel of land upon which stands 
 a portion of a house which has been, by mistake, built partly upon 
 the parcel in question and partly on an adjoining lot owned by 
 another person, for the purpose of adjudicating upon the respec- 
 tive rights of a mortgagee and a lienholder, no regard can be had 
 to the fact that such other person would, if applied to, have con- 
 sented to the removal of the house off his lot, and the priority of a 
 mortgage on the lot in question over the lien of a workman subse- 
 quently arising, for the cost of removing the house so as to place 
 it wholly on the -parcel in question, is limited to the actual value 
 of such parcel with the part of the house upon it at the time he 
 began the work, which value must be ascertained without reference 
 to the. subsequent removal. 
 
316 THE LAW OF MECHANICS'" LIENS IN CANADA. 
 
 Bule 603 of the King's Bench Act affords no relief to the 
 mortgagee in such a case or any foundation for a contention that 
 the value should be ascertained by deducting the cost of removal 
 from the value after removal. Jack v. McKissock, (1917) 27 
 Man. L. E. 548. 
 
 Prior encumbrancers have priority over the mechanics-' liens 
 only to the extent of the actual value of the premises' at the time 
 the improvements are made, and the lienholders have priority as 
 to the increase in value effected by the improvements; the rights 
 of the latter cannot be worked out in an action for the foreclosure 
 of a vendor's lien or mortgage, but can only be given effect to in 
 an action brought to enforce their liens. Dure v. Roed, (1917) 27 
 Man. L. E. 417, (1917) 1 W. W. E. 1395, 34 D. L. E. 38. 
 
 When the plaintiff in an action to realize upon a mechanics' 
 lien intends to dispute the right of a prior mortgagee to priority 
 for more than the actual value of the land at the time the improve- 
 ments were commenced, being the limit of such priority imposed by 
 sub-section (3) of this section, it is not necessary to make the mort- 
 gagee a party to the action in the first place, hut the notice of trial 
 may, under section 35, be served upon the mortgagee and the 
 question of priority, -and for what amount may be determined at 
 the trial under section 37. Dominion Lumber & Fuel Go. v. Paskov, 
 29 Man. L. E. 325, (1919) 1 W. W. E. 657. 
 
 6. Application of insurance when lien attaches. — Where any 
 of the property upon which a lien is given by this Act is wholly or 
 partly destroyed by fire, any money received by reason of any 
 insurance thereon by an owner or prior mortgagee or ehargee shall . 
 take the place of the property so destroyed, and shall, after satisfy- 
 ing any prior mortgage or charge in the manner and to the extent 
 set out in sub-section (3) of the last preceding section, be subject 
 to the claims of all persons for liens to the same extent as if such 
 moneys were realized by a sale of such property in an action to 
 enforce a lien. E. S. M. c. 110, s. 6. 
 
 See Ont. Act, section 9, to the same effect. 
 
 7. . Limit of amount of lien. — Save as herein provided, the lien 
 shall not attach so as to make the owner liable for a greater sum 
 than the sum payable by the owner to the contractor. E. S. M. c. 
 ,110, s'. 7. 
 
 See Ont. Act, section 10, to the same effect. 
 
MECHANICS' LIEN ACT OF MANITOBA. 317 
 
 The contractor cannot by release or assignment of his rights 
 under his contract with the owner, defeat the registered lien of a 
 sub-contractoT claiming under him. Anly v. Holy Trinity Church, 
 (1885) 3 Man. L. E. 193, decided under a former Act, is no longer 
 applicable, in view of the present section 4 (2). 
 
 If at the time of the abandonment by a contractor of his build- 
 ing contract, there is by the terms of it, nothing payable to him 
 by the owner, a sub-contractor, whether for work or materials, can 
 have no lien /upon the property for anything due him by the con- 
 tractor, nor can he have any right to share in the percentage of the 
 contract price or value of the work actually done by the contractor 
 up to that time held back by the owner pursuant to section 9, 'post. 
 Wilhs v. Leduc, (1916) .27 Man. L. B. 72. 
 
 When the contractor has fulfilled his contract, the contract- 
 price if not paid in cash is " owing " to the contractor, although in 
 connection with some other transaction there was an old balance 
 due by the contractor to the owner. Bennett v. Devitt, (1915) 25 
 Man. L. E. 421. 
 
 8. Limit of lien when claimed by some person other than con- 
 tractor. — Save as herein provided, where the lien is "claimed by 
 any other person than the contractor, the amount which may be 
 claimed in respect thereof shall be limited to the amount owing 
 to the contractor or sub-contractor or other person for whom the 
 work or service has been done or the materials have been placed 
 or furnished. E. S. M. c. 110, s. 8. 
 
 See Ont. Act, section 11, to the same effect. See Black v. 
 Wiebe, (1905) 1 W. L. E. 75; reported fully under section 12, 
 post. 
 
 9, Percentage to be deducted and retained by owner. — In all 
 
 cases the person primarily liable upon any contract or by virtue of 
 which a lien may arise under the provisions of this Act shall, as 
 the work is done or materials are furnished under any contract, 
 deduct from any payments to be made by him in respect of such 
 contract, and retain for a period of thirty days after the completion 
 or abandonment of the contract, twenty per cent, of the value of 
 the work, service and materials actually done, placed or furnished, 
 as- defined by section 4 of this Act, and such value shall be cal- 
 culated on the basis of the price to he paid for the whole contract : 
 
318 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Provided that, when any contract exceeds fifteen thousand dol- 
 lars, the amount to be retained shall be fifteen per cent., instead 
 of twenty per cent. 
 
 (2) The liens created by this Act shall, be a charge upon the 
 amounts directed to be retained iby this section, in favor of sub- 
 contractors whose liens are derived under persons to whom such 
 moneys so 1 tfequired! to be retained are respectively payable^ 
 
 (3) All payments, up to eighty per cent; (or eighty-five per 
 cent, where the contract price exceeds fifteen thousand dollar's) 
 of such value, made in good faith by an owner to a contractor, or 
 by a contractor to a sub-contractor,- or by one sub-contractor to 
 another sub-contractory before n'otice in writing, of such lien given 
 by the person claiming the lien to the owner, contractor or sub- 
 contractor; as the case may' fee, shall operate as a discharge pro 
 tanto of the lien created by this Act. 
 
 (4) Payment of the percentage required to be retained under 
 this section may be validly made so as to discharge all liens or 
 charges under' this Act in respect thereof after trie expiration of 
 the said period of fiirfy days mentioned herein', unless in the 
 meantime proceedings hate Commenced under this Act to enforce 
 any lien or charge against such percentage as provided by section 
 21 of thia Act. E. S. M. c. 110, g. 9'. 
 
 Under this section a person who has delivered materials to the 
 contractor -loses his lien therefor, as against the 20 per cent, of the 
 contract price to be held back by the owner from' the contractor, 
 unless he registers his lien within 30 days after the abandonment 
 of the contract, if he had not supplied any materials to the con- 
 tractor , after such abandonment, though he wa's not notified of it, 
 and a delivery of some material's- for' Use in the building to the 
 owner after such abandonment, in exchange for some of the ma- 
 terials formerly supplied to the contractor, will not have the effect 
 of extending the time for registering the lien for the materials 
 supplied to the contractor. ' Brown v. Dunhill, 25 Man. L. E. 546. 
 
 The owner of a building in course of erection, when the con- 
 tract price exceeds $15,000, being required by this section to keep 
 back 'fifteen per cent, of the amounts from time to time earned 
 
MECHANICS' LIEN ACT OF MANITOBA. 319 
 
 by the contractor and retain such percentages until thirty days 
 after the completion or abandonment of the contract for the 
 benefit of sub-contractors who may become entitled to file liens, 
 must reserve such percentages at his peril, and cannot afterwards, 
 in an action by a person who has supplied materials, deduct there- 
 from any payment he may have made under section 10 for wages or 
 materials in order to prevent the filing of liens therefor, as section 
 10 at the end says in effect that payments made under it are not 
 to " affect the percentage to be retained by the owner as provided 
 by " section 9. M cArthur v. Martinson, 16 Man.- L. E. 387. 
 
 As to liability to sub-contractor of owner who fails to setain 
 percentage, see .Carroll v, McVicar, 15 Man, L. E. 379. 
 
 After bill filed and lis pendens registered another lienholder 
 filed a bill and obtained decree first. The latteT claimed to have 
 his Gosts added to his lien. The application Was defused. Section 
 24, post, qualifies this section. Henry V. Boives; (1883) 3 C. L. T. 
 606. 
 
 See Smith Co. v. Sissiboo Co., 36 IS. S. R. 348. On appeal in 
 this case (1904) 35 S. C. R. 93, Nesbiti, J., said in referring to sec- 
 tion 8 of the Nova Scotia Act, which is similar to section 9 of the 
 Manitoba Act : " The only ground upon which the plaintiffs can 
 hope to maintain a lien as against the defendant company would 
 be that section 8 of the Act applies, but we think that that section 
 does not by its terms apply to a case where there Was no price 
 specified or capable of being ascertained,, for the ejection of the 
 building, but the contract price of the building was blended with 
 considerations for other matters from which it could not be 
 separated." 
 
 As to retention of percentages, see Carroll v. McVicar, (1905) 
 2 W. L. E. 2'5; 41 C. L. J, 668; Phelan v. Franklin, (1905) 2 W. 
 L. E. 29. 
 
 If at the time of the abandonment by a contractor of his build- 
 ing contract there is, by the terms of it, nothing payable to him 
 by the owner, a sub-contractor, whether for work or materials, can 
 have no lien upon the property for anything due him by the con- 
 tractor, nor can he have any right to share in the percentage of the 
 contract price or value of the work actually done by the contractor 
 up to that time held back by the owner pursuant to this section. 
 Wilks v. Leduc, (1916) 27 Man. L. E. 72. 
 
 The value of the work upon which, to the extent of eighty per 
 
■320 THE LAW OP MECHANICS' LIENS IN CANADA. _ 
 
 cent, the owner may pay the contractor prior to receiving written 
 notice of a sub-contractor's lien claim, is, in case of abandonment 
 of the work while uncompleted by the principal contractor, the 
 value of the work actually done and material furnished up to the 
 date of abandonment, but such value is to be calculated on the 
 basis of the price to be paid for the whole contract. Merrick v. 
 Campbell (1914)- 24 Man. L. E. 446, 17 D. L. E. 415. 
 
 The period of thirty days during which the owner is to retain 
 twenty per cent, of the value from his contractor, for the protection 
 of other lienholders is to be computed from the completion or 
 abandonment of the contract by the principal contractor, butthe 
 expiry of such period does not relieve the owner from his obliga- 
 tion to protect the interests of a sub-contractor of whose right to 
 register a lien the owner has notice ; and such obligation is enforce- 
 able by a sub-contractor who was enabled to file his lien more than 
 thirty days after the abandonment of the work by the principal 
 contractor by having been permitted by the owner thereafter to go 
 on and complete the sub-contract, and who had filed his lien 
 within 30 days of completing his own work.' Merrick v. Campbell, 
 (1914) 24 Man. L. E. 446, 17 D. L. E. 415. 
 
 10. Payment made in good faith without notice of lien. — If 
 
 an owner or contractor chooses to make payments to any persons 
 referred to in section 4 of this Act for or on account of any debts 
 justly due to them for work or service done or for materials placed 
 or furnished to be used as therein mentioned, and within three 
 days afterwards gives, by letter or otherwise, to the contractor or 
 his agent, or to the sub-contractor or his agent, as the case may be,' 
 written notice of such payments, such payments shall as between 
 the owner and the contractor or as between the contractor and the 
 sub-contractor, as the case may be, be deemed to be payments to 
 the contractor or sub-contractor, as the case may be, on his con- 
 tract generally, but not so as to affect the percentage to be retained 
 by the owner, as provided by the last preceding section. E. S. M. 
 c. 110, s. 10. 
 
 See Ont. Act, section 13, to the same effect. 
 See McArthur v. Martinson, 16 Man. L. E. 387, noted under 
 section 9, supra. 
 
MECHANICS' LIEN" ACT OF MANITOBA. 321 
 
 Notice in writing to the owner by the sub-contractor giving the 
 particulars of the sub-contract and stating that the owner will be 
 held liable therefor is sufficient as a notice in writing of the lien, 
 and payments thereafter made by the owner to the principal con- 
 tractor, even within the statutory eighty per cent., are not protected 
 as against the sub-contractor's lien. Merrick v. Campbell, (1914) 
 24 Man. L. E. 446, 17 D. L. B. 415. 
 
 11. Priority of lien. — The lien created by this Act shall have 
 priority over all judgments, executions, assignments, attachments, 
 garnishments and receiving orders, recovered, issued or made after 
 such lien arises, and over all payments or advances made on ac- 
 count of any conveyance or mortgage after notice in writing of 
 such lien to the person making such payments or after registration 
 of such lien as hereinafter provided. 
 
 (2) Agreements for purchase, part of purchase money unpaid. 
 
 — In case of an agreement for the purchase of land, and the pur- 
 chase money or part thereof being unpaid and no conveyance made 
 to the purchaser, the purchaser shall, for the purposes of this Act 
 and within the meaning thereof, be deemed a mortgagor and the 
 seller a mortgagee. 
 
 (3) Priority among lienholders. — Excepting where it is other- 
 wise declared by this Act, no person entitled to a lien on any 
 property or to a charge on any moneys under this Act shall be 
 entitled to any priority or preference over another person of the 
 same class entitled to a lien or charge on such property or moneys 
 under this Act, and each class of lienholders, except where it is 
 otherwise declared by this Act, shall rank pari passu for their 
 several amounts, and the proceeds of any sale shall, subject, as 
 aforesaid, be distributed among the lienholders pro rata, according 
 to their several classes and rights. E. S. M. c. 110, s. 11. 
 
 See Ont. Act, section 14, to the same effect. 
 
 See also Eoffstrom v. Stanley, (1902) 14 Man. 227, 22 C. L. 
 T. 357; Rat Portage Lumber Co. v. Hewitt, (1912) 22 W. L. E. 
 249, 6 D. L. E..871. 
 
 MX.— 21 . 
 
322 THE LAW OF MECHANICS' MENS IN CANADA. 
 
 The Act does not authorize the registration of one lien for 
 one lump sum against the land of different owners, although the 
 work may have been done or the materials furnished under one 
 contract for the building of houses on the lands of the different 
 owners, unless, perhaps, in a case where the lien claimant did not 
 know and had no means of ascertaining before filing his lien, that 
 the lands were owned by different persons. Builders Supply Co. 
 v. Huddlestone, (1915) 25 Man. L. E. 718. 
 
 The representatives of the creditors of a building contractor 
 who contracts with the owner to take over, as the nominee of the 
 contractor, the work of completing the contract, and obtains from 
 the owner a stipulation whereby all moneys earned or to be earned 
 under the contract were to become payable to such representative 
 in the place of the original contractor, is entitled to file a me- 
 chanics' lien for the amount due on completion of the work in like 
 manner as would the original contractor, notwithstanding that 
 there was no express assignment in writing of the right to such 
 lien from the latter. Alsip v. Mohkmwn, (1913) 22 Man. L. E. 
 779, 9 D. L. E. 97. 
 
 The nominee of the contractor's creditors who by agreement 
 with the owner takes over the unfinished contract and completes 
 the same on the contractor's default, with a stipulation, that he 
 shall be entitled to the same amount as would be coming to such 
 contractor had he himself completed the work, will not be held 
 in an action brought by him to enforce a lien, to a strict com- 
 pliance with a clause of the original contract requiring the con- 
 tractor, before action brought, to supply evidence that no other 
 undischarged liens than his own remain a charge on the property, 
 if in fact there were no such liens and the owner raising such 
 objection had knowledge that the creditors other than the plaintiff 
 had agreed with the latter not to file mechanics' liens. Alsip v. 
 Monkman, (1913) 22 Man. L. E. 779. 
 
 12. Priority of lien for wages. — Every mechanic or laborer 
 whose lien is for work done for wages shall, to the extent of thirty 
 days' wages, have priority over all other liens derived through the 
 same contractor or sub-contractor to the extent of and on the 
 twenty per cent, or fifteen per cent., as the case may be, of the 
 contract price directed by section 9 of this Act to be retained,- to 
 
. MECHANICS' LIEN ACT OE MANITOBA. 323 
 
 which the contractor or sub-contractor through whom such lien is 
 derived is entitled, and all such mechanics and laborers shall rank 
 pari passu on said twenty per cent, or fifteen per cent., as the 
 case may he. 
 
 (2) Enforcing lien when contract not fulfilled. — Every wage- 
 earner shall be entitled to enforce a lien in respect of a contract 
 not completely fulfilled. 
 
 (3) Calculating percentage in such case. — If the contract 
 has not been completely fulfilled when the lien is claimed by wage- 
 earners, the percentage aforesaid shall be calculated on the work 
 done or materials furnished by the contractor or sub-contractor by 
 whom such wage-earners are employed. 
 
 (4) Percentage not to be otherwise applied. — Where the con- 
 tractor or sub-contractor makes default in completing his contract 
 the percentage aforesaid shall not, as against a wage-earner claim- 
 ing lien under this Act, be applied to the completion of the contract 
 or for any other purpose by the owner or contractor, nor to the 
 payment of damages forjthe non-completion of the contract by the 
 contractor or sub-contractor, nor in payment or satisfaction of any 
 claim of any kind against the contractor or sub-contractor. 
 
 (5) Devices to defeat priority of wage earners. — Every device 
 by an owner, contractor or sub-contractor adopted to defeat the 
 priority given to wage-earners for their wages by -this Act shall, as 
 respects such wage-earners, be null and void. E. S. M. c. 110, 
 s. 12. 
 
 See Ont. Act, section 15, and section 2 (7). 
 
 Defendant agreed to purchase land from D. & McC, price to 
 be paid 15th August, 1901. In default D. & McC. could either 
 cancel agreement forfeiting any payments made, or re-sell and 
 recover any deficiency from defendant. Defendant made improve- 
 ments on land and employed plaintiff as a carpenter. Plaintiff 
 claims lien for 'wages. No part of purchase money was paid. 
 Work went on after 15th August with concurrence of D. & McC. 
 
324 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Held, that parties must be regarded as mortgagor and mortgagee. 
 D. & McC. having granted extension could not cancel without 
 giving more time, hence agreement was still subsisting when 
 plaintiff did the work. Plaintiff was entitled to the lien, subject 
 to charge^ of D. & MaC. for unpaid purchase money and interest. 
 Hoffstrom v. Stanley, (1902) 14 Man. 227, 22 C. L. T. 337. 
 
 In Black v. Wiele, (1905) 1 W. L. E. 75, the facts were as 
 follows: The defendants, Wiebe and Jardine, entered into an 
 agreement with the defendant, Kate Hubert, to erect for her a 
 house on land belonging to her on S. Avenue, Winnipeg. Th« 
 agreement under which the work was to be done was contained in 
 a written contract, to which the plans and specifications of the 
 building were attached, forming a part of the agreement. The 
 contract price was $2,600, payable $30 on the execution of the 
 contract, $470 when the roof was covered in, $1,500 "on or before 
 the completion of the building," and the balance as should be 
 arranged between the 'parties. The $1,500_ was to be raised by a 
 loan on the premises, the contractor to receive an order for the 
 proceeds of the loan. The plaintiff supplied the lumber for the 
 erection of the house and also for the erection of a barn upon the 
 same lot. The lumber was supplied upon the order of the con- 
 tractors and pursuant to an arrangement made between them and 
 the plaintiffs. The house was never fully completed, but when 
 partially finished was occupied by Mrs. Hubert. The specifications 
 were departed from in certain particulars with the assent, as was 
 alleged, of the proprietress. The quality of the work and material 
 was not in accordance with the contract. Although it was alleged 
 that a stone foundation had been put in as an extra, the evidence 
 showed that the. building as it stood was, owing to defects, not 
 worth more than $2,000. A mortgage for $1,000 was placed on 
 the property and the proceeds applied on the contract. The plain- 
 tiffs received a portion of these proceeds, and the balance remain- 
 ing unpaid was $321.66. Part of the lumber supplied went 
 into the construction of the barn. The plaintiffs' lien did not 
 include the barn, but only referred to material used in the erection 
 of the house. The value of the lumber used for the barn was $100, 
 leaving $221.66 as the amount proved by the plaintiffs under the 
 lien. Several other liens were filed by other parties. 
 
 Perdue, J., having stated the above facts in his judgment, 
 said : — 
 
MECHANICS' LIEN ACT OP MANITOBA. 325 
 
 " It is urged on ^behalf of the owner that as the house has 
 never been completed there is nothing due to the contractors, and 
 that sub-contractors are, under section 8 of the Mechanics' and 
 Wage-Earners' Li«n Act, limited to the amount owing to the con- 
 tractors. Section 12 of the Act introduces special provisions for 
 the protection of wage-earners and provides for the enforcement of 
 the lien in their favor in respect to a contract not completely ful- 
 filled. It also provides that in such cases the wage-earners may 
 enforce their liens against the percentage required to be retained 
 by the proprietor, and this percentage was, in the case of 1 a contract 
 not completely fulfilled, to be calculated on the work done or 
 materials furnished by the contractor. The insertion in the Act 
 of the provisions contained in section 12 shows that the protection 
 extended to the lienholder of giving him a right to enforce his lien 
 derived through a contractor, where the contractor has not fulfilled 
 the contract, is limited to claims for wages. Where, however, the 
 money is payable under a contract by instalments as the work pro- 
 gresses, the general lienholders may enforce their liens to the 
 extent of the instalments earned in so far as the same remain 
 unpaid in the hands of the proprietor. Brydon v. Lutes, (1891) 
 9 Man. 463. 
 
 It was urged on behalf of the plaintiffs that the owner had 
 accepted the work by occupying the house and by mortgaging the 
 same. It is clear that the mortgage was in pursuance of a term 
 in the contract in order to raise money to pay the contractors, and 
 that this was done during the progress of the construction. The 
 giving of the mortgage could not, therefore, be taken as an accept- 
 ance of the whole work. There is a wide difference between the 
 receiving and retaining of a chattel and the occupation of a build- 
 ing erected upon the land of the occupant, in respect of the in- 
 ference of acceptance from the act of the party. This has been 
 clearly pointed out in Pattison v. Luchley, L. E. 10 Ex. 330; 
 Sumpter v. Hedges, (1898) 1 Q. B. 673, and other cases. The 
 building, although .incomplete and unsatisfactory, is upon the 
 owner's land and is, perhaps, partly paid for. The owner may, 
 although protesting against its incomplete or unsatisfactory state, 
 be compelled to use and occupy it, unless he abandoned his land 
 until the dispute is settled. Occupation under these conditions 
 should not be construed as an acceptance. The contract in the 
 case provided that $30 should be paid on execution of the instru- 
 
326 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 ment, and this payment has been made. A second payment of 
 $470 was to be made when the roof was covered in. This payment 
 became due and the contractors received on account of it the 
 equivalent of $200, leaving the sum of $270 still due and available 
 for lienholders. The proceeds of the mortgage were not applic- 
 able on this, but on the $1,500, under the terms of the contract. The 
 further sum of $1,500 was payable ' on or before the completion of 
 the building.' As the owner had the option of paying this sum 
 either before the completion of the building or upon its completion, 
 it is manifest that she is not legally compellable to pay the amount 
 until the longer period had elapsed, and that payment cannot be 
 enforced until the building has been completed." 
 
 For other cases, showing that mere occupation of the house 
 does not constitute acceptance, see citations under s. 6 of the On- 
 tario Act. 
 
 Although at the time of the abandonment by a contractor of 
 his building contract there is, by the terms of it, nothing payable 
 to him by the owner, a wage-earner may, nevertheless, have a lien 
 upon the percentage held back by the owner pursuant to section 9, 
 ante, and a right to preferential payment, under sub-sec. 2, of the 
 above section. Wilhs v. Leduc, (1916) 27 Man. L. R. 72. 
 
 13. Attempting to remove material affected by lien. — During 
 the continuance of a lien no portion of the materials affected 
 thereby shall be removed to the prejudice of the lien, and any at- 
 tempt at such removal may be restrained on application to a judge. 
 
 (2) Costs. — The judge to whom any such application is made 
 may make such order as to the costs of and incidental to the 
 application and order as he deems just. 
 
 (3) Goods furnished for certain purposes not to be subject to 
 execution. — When' any material is actually brought upon any land 
 to be used in connection with such land for any of the purposes 
 enumerated in section A of this Act, the same shall be subject to a 
 lien in favor of the person supplying the same until put in the 
 building, erection or work. E. S. M. c. 110, s. 13; 3 Geo. V., c. 
 32, ss. 2, 3. 
 
 See Ont. Act, section 16, to the same effect as this section, with 
 the exception of (6), which contains a substantial variation. 
 
mechanics' lien act oe manitoba. 327 
 
 Kegistration of Lien. 
 
 14. Where lien to be registered. — A claim for lien may be 
 registered in the land titles office in which instruments or deal- 
 ings affecting the lands affected or proposed to be affected thereby 
 are to be registered, if such lands have been brought, or if applica- 
 tion has been made to bring them, under the operation of " The 
 Eeal Property Act ;" and if the lands have not been so brought nor 
 application made therefor, then such statement shall be registered 
 in the registry office or land titles office for the registration district 
 or, land titles district in which such lands are situate. If the 
 lands be partly under- the operation of the said Act and partly 
 not, each portion shall be affected only by registration in the 
 proper office. E. S. M. c. 110, s. 14. 
 
 See Ont. Act, section 17, to the same effect. 
 
 15. A claim for lien shall state, — 
 
 (a) Contents of claim. — The name and residence of the person 
 claiming the lien and of the owner of the property to be charged 
 (or of the person whom the person claiming the lien, or his agent, 
 believes to be the owner of the property to be charged) and of the 
 person for whom and upon whose credit the work (or service) is 
 done, or the materials are furnished or placed, and the time or 
 period within which the same was, or was to be, done or furnished 
 or placed; 
 
 (b) a short description of the work (or service) done, or the 
 materials furnished or placed, or to be furnished or placed; 
 
 (c) the sum claimed as due or to become due; 
 
 (d) a description of the land to be charged, sufficient for the 
 purpose of registration; 
 
 (e) the date of expiry of the period of credit (if any) agreed 
 by the lienholder for payment for his work (or service) or mater- 
 ials, where credit has been given. 
 
 • (2) Form of claim. — The claim may be in one of the forms 
 given in Schedule A to this Act, and shall be verified by the affi- 
 
328 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 davit of the person claiming the lien or of his agent or assignee 
 having a personal knowledge of the matters required to be verified, 
 and the affidavit of the agent or assignee shall state that he has 
 such knowledge. E. S. M. c. 110, s. 15. 
 
 See Ont. Act, section 17 (a), to'the same effect, except that 
 clause (3) of that Act, providing for the registration of liens 
 against railway companies, is omitted here. 
 
 The affidavit verifying the claim may be sworn before the 
 claimant's solicitor. Poison v. Thompson, (1917) 26 Man. L. E. 
 410. 
 
 ■The claim need not give details of the work and materials. 
 See Form No. 1 in the Schedule, and Irwin v. Beynon, (1886) 4 
 Man. 10. 
 
 " Objection is taken to the description of the residence of the 
 claimant, which should state in what part of the town of Minne- 
 dosa he resides, but I hold that when he describes himself as of 
 the town of Minnedosa, it is quite sufficient." Irwin v. Beynon, 
 supra, per Dubuc, J. 
 
 " It is also argued that the statement of claim does not suffi- 
 ciently state who is the reputed owner, and also the person for 
 whom the work was done. The statement of claim registered 
 states that the plaintiff claims a lien upon the estate of G. W. 
 Beynon, barrister-at-law. I think this is sufficient and it is also 
 in accordance with the form given in the Ontario statute." Irwin 
 v. Beynon, supra, per Dubuc, J. 
 
 In Flack v. Jeffrey, (1895) 10 Man. 514, the lien as filed stated 
 that the work was commenced on a" specified day and that it was 
 finished " on or before " a certain other day. Held, following 
 Truax v. Dixon, 17 0. E. 356, and in view of the Manitoba Inter- 
 pretation Act, that the statement was sufficient. See Kelly v. 
 McZenzie, (1884) 1 Man. 169. 
 
 It is sufficient if the claim states the name of the person whom 
 the claimant believes to be the " owner " of the property. Poison 
 v. Thomson, (1917) 26 Man. L. E. 410. 
 
 16. What may be included in claim. — A claim for lien may 
 include claims against any number of properties, and any number 
 of persons claiming liens upon the same property may unite therein, 
 
MECHANICS' LIEN ACT OF MANITOBA. 329 
 
 but where more than one lien is included in one claim each lien 
 shall be verified by affidavit as provided in the last preceding sec- 
 tion. E. S. M. c. 110, s. 16. 
 
 See Ont. Act, section 18, to the same eSect. See also Fair- 
 dough y. Smith, (1901) 13 Man. 509, cited with the cases under 
 section 6 of the Ontario Act. 
 
 17. Claims not to be invalidated for informality. — A substan- 
 tial compliance only* with the two last preceding sections shall be 
 required, and no lien shall be invalidated by reason of failure to 
 comply with any of the requisites of the said sections, unless in the 
 opinion of a judge the owner, contractor or sub-contractor, mort- 
 gagee or other person, as the case may be, is prejudiced thereby, 
 and then only to the extent to which he is thereby prejudiced. 
 
 (2) Liens must be registered. — Nothing in this section con- 
 tained shall be construed as dispensing with registration of the 
 lien required by this Act. E. S. M. c. 110, s. 17; 3 Geo. V./c. 32, 
 s. 4. 
 
 See Ont. Act, section 19 to the same effect. 
 
 In Robock v. Peters, (1900) 13 Man. 124, the facts in which 
 are stated under section 20, post, it was held that although " S.'s " 
 claim was from 1st August to 27th October, he might claim for 
 work done prior to 1st August unless some one were prejudiced 
 and that the onus was on the person to show his being prejudiced. 
 
 A substantial compliance with the terms of the statute as to 
 the prescribed form of lien is sufficient to enable the lien to attach. 
 Flack v. Jeffrey, 10 Man. L. E. 514. See Scratch v. Anderson, 
 (1909) 2 Alta L. E. 109; Limoges v. Scratch, (1910) 44 Can. 
 S. C. E. 86. 
 
 It is not a fatal objection to a lien that it was registered against 
 too much land, if there were no fraudulent intent and no one is 
 prejudiced or injured thereby. Poison v. Thomson, (1917) 26 
 Man. L. E. 410. 
 
 18. Lien to be registered as an encumbrance. — The registrar, 
 upon payment of his fee, shall register the claim, so that the same 
 may appear as an encumbrance against the land therein described. 
 
330 THE LAW OF MECHANICS'" LIENS IN CANADA. 
 
 (2) Fee for registration. — The fee for registration of a claim 
 of lien for wages shall be twenty-five cents. E. S. M. c. 110; s. 18. 
 
 See Ont. Act, section 20, to the same effect. 
 
 19. Person registering a purchaser pro tanto. — Where a claim 
 for lien is so registered, the person entitled to the lien shall be 
 deemed a purchaser pro tanto, and within the provisions of " The 
 Eegistry Act " ; but, except as herein otherwise provided, " The 
 Eegistry Act " shall not apply to any lien arising under this Act. 
 E. S. M. c. 110, s. 19. 
 
 See Ont. Act, section 21, to the same effect. 
 
 20. Claims for liens, when to be registered. — A claim for lien 
 by a contractor or subcontractor may, in cases not otherwise pro- 
 vided for, be registered before or during the performance of the 
 contract or within thirty days after the completion thereof. 
 
 (2) A claim for lien for materials may be registered before 
 or during the furnishing or placing thereof or within thirty days 
 after the furnishing or placing of the last material so furnished 
 or placed. 
 
 (3) A claim for lien for services may be registered at any time 
 during the performance of the service or within thirty days after 
 the completion of the service. 
 
 (4) A claim for lien for wages may be registered at any time 
 during the performance of the work for which such wages are 
 claimed, or within thirty days after the last day's work for which 
 the lien is claimed. E. S. M. c. 110, s. 20. 
 
 See Ont. Act, section 22, to the same effect. 
 
 "Completion" means "substantial completion." See Kelly 
 V. McKenzie, (1884) 1 Man. 169; McLennan v. Winnipeg, (1882) 
 3 Man. 474; Irwin v. Beynon, (1886) 4 Man. 10. See also notes 
 under section 22, Ont. Act. 
 
 The plaintiff quit work on an elevator, it being understood 
 that he should return and finish his contract when the elevator 
 was far enough advanced to allow him to test the machinery 
 which he had placed in it. When the plaintiff's men returned 
 
MECHANICS'" LIEN ACT OF MANITOBA. 331 
 
 to finish the contract they were stopped by the company. Then 
 the plaintiff registered a mechanics' lien within thirty days from 
 the attempt to finish his contract, but more than thirty days 
 after his last work had been done on the elevator. It was held, 
 upon the evidence, that the lien was registered in time and could 
 be enforced. It was held, upon appeal, that the time limited 
 for the registration of claims for liens by section 20 does not com- 
 mence to run until there has been such performance of the con- 
 tract as would entitle the contractor to maintain an action for 
 the whole amount due thereunder. Bay v. Grown Grain Co., 
 (1907) 39 Can. S. C. E. 258. See Whimster v. Crow's Nest Pass 
 Coal Co., (1910) 13 W. L. E. 621. 
 
 In Chadwick y. Hunter, (1884) 1 Man. 39, it was decided 
 that where materials are supplied as required from time to time 
 during the progress of the work, not under a contract covering 
 the whole supply, each sale is a separate transaction and requires 
 separate registration. But see Rooock y. Peters, (1900) 13 Man. 
 124, in which this case is distinguished, and Morris v. Tharle, 
 (1893) 24 O. E. 159, followed, and Kelly v. McKenzie, supra, 
 held not applicable. In. Rooock v. Peters, supra, the- facts were 
 as follows : In 1899 defendant bought land and paid part of pur- 
 chase money. There was no conveyance. He made a contract 
 with plaintiff to build a hotel and stable. Work began in July 
 and finished on 5th of September. The. lien was registered on the 
 22nd of September, and a certificate of lis pendens on the 2nd of 
 November. There was no defence. Appointment and trial duly 
 fixed. " S." consented to supply materials on credit and did so 
 from time to time as they were ordered between 16th of June and 
 27th of October. Defendant occupied the hotel from July and the 
 work went on until after the 27th of October. " S." registered lien 
 on the 25th of November and certificate of lis pendens on the 20th 
 of January, 1900. Defendant obtained loan of $300 on the 5th of 
 August, 1899, and took mortgage for $435. A deed to defendant 
 was executed on the 18th of October when remaining $135 was 
 advanced by " B." " B.'s " mortgage was registered on the 7th 
 of November, 1899. Defendant mortgaged to loan company on 
 the 3rd of October for $900. Eegistration of mortgage 20th of 
 October, 1899. There was due on that mortgage only $22.75, 
 for solicitor's fees. Defendant mortgaged to S. & D. to secure 
 claims, dated 17th November, incumbrance registered 18th 
 
332 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 November, 1899. Defendant conveyed to "W." on 30th January 
 1900, registered 1st February, 1900. All these parties were 
 brought in by notice of trial and appeared by counsel. 
 
 Held, under sections 20 (2), 21, 28, 31, 32, 27 (1) and (2), 
 that " S.'s " claim could be realized in this action, although he 
 was not a party to it, and there was no binding contract to deliver 
 the materials, the several orders being so linked together as to 
 constitute one cause of action. The time ran from the supply 
 of the last materials. 
 
 Also, that incumbrancers other than lienholders might be 
 dealt with in this action. Bank of Montreal v. Haffner, (1884) 
 10 A. E. 592, and McVean v. Tiffin, (1885) 13 A. E. 1, modified by 
 section 23 of Ontario Act. If the work is done in good faith, and 
 in order to complete the building, and not colorably to revive the 
 lien, the time begins to run from the completion of such work and 
 from delivery of the last materials supplied in performing it. 
 Sieinman v. Koscuk, (1906) 4 W. L. E, 514. 
 
 The plaintiff's right to a lien depended on whether they were 
 entitled to reckon the thirty days after the_ completion of their 
 contract, from the doing of a small job of pointing some stonework 
 at the request of the owner more than thirty days after the com- 
 pletion of all the rest of the work. It was held that they were so 
 entitled. Brynjolfsen v. Oddsen, (1916) 27 Man. L. E. 390. 
 
 When materials are delivered to a contractor under one con- 
 tract covering them all, the time for filing the lien for all runs 
 from the last delivery and it is not necessary to -file separate liens 
 for each lot delivered. Poison v. Thomson, (1917) 26 Man. L. E. 
 410'. 
 
 Under this provision enabling claims for liens by contractors 
 or sub-contractors to be registered within thirty days after the 
 completion of "the contract," a sub-contractor is to register his 
 lien within thirty days after the completion of his contract with 
 the principal or superior contractor. Merrick v. Campbell, 
 (1914) 24 Man. L. E. 446, 17 D. L. E. 415. 
 
 Deteemination of Lien. 
 
 21. 'Liens to cease if not registered within time fixed by Act. — 
 
 Every lien which is not duly registered under the provisions of 
 this Act shall absolutely cease to exist on the expiration of the 
 
MECHANICS' LIEN ACT OF MANITOBA. 333 
 
 iime hereinbefore limited for the registration thereof. E. S. M. 
 c. 110, s. 21 ; 3 Geo. V., c. 32, s. 11. 
 
 See Out. Act, section 23, to the same effect. 
 
 See Davidson v. Campbell, (1888) 5 Man. L. E. 250, referred 
 to under section 23 of the Ontario Act. 
 
 Under a former Act the lien had no existence until registered 
 (Kievell v. Murray, (1884) 2 Man. 209. 
 
 22. When lien to cease if registered and not proceeded upon. — 
 
 Every lien which has been duly registered under the provisions of 
 this Act shall absolutely cease to exist after the expiration of 
 ninety days after the work or service has been completed or ma- 
 terials have been furnished or placed, or the expiry of the period 
 of credit, where such period is mentioned in the claim of lien 
 registered, unless in the meantime an action is commenced, to real- 
 ize the claim under the provisions of! this Act or an action is com- 
 menced in which the claim may be realized under the provisions of 
 this Act, and a certificate of lis pendens in respect thereof, issued 
 from the court in which the action is brought, according to form 
 No.' 5 in the schedule hereto, is registered in the proper registry - 
 office, or land titles office. E. S. M. c. 110, s. 22; 7-8 Ed. VII., c. 
 28, s. 2. 
 
 A certificate that some title or interest in the land is called in 
 question, without any reference to a mechanics' lien, is not a suffi- 
 cient compliance with the Act. Curtis v. Richardson, (1909) 18 
 Man. L. E. 519. 
 
 See Ont. Act, section 24 (1), to the same effect. 
 
 An action to realize the lien, commenced in a judicial division 
 other than that in which the property affected is situated, though 
 within the ninety days, cannot be transferred to the County Court 
 of the proper judicial division under sections 73 and 74 of the 
 " County Courts Act " so as to confer upon it any jurisdiction to 
 proceed with the realization of the lien. Meunier v. Hinman, 
 (1916) 27 Man. L. E. 70. 
 
 A claim, under this section, cannot be "realized" unless the 
 person who is the registered owner of the land at the time of the 
 commencement of the action is made a party to it, or unless there 
 
334 THE LAW OE MECHANICS'" LIENS IN CANADA. 
 
 is some other action pending, to which such owner is a party, in 
 which the claim may be "realized," and, in such case, although 
 the lien has been duly registered within the time required by the 
 Act, it absolutely ceases to exist unless some action to which the 
 registered owner is a party has been commenced under the provi- 
 sions of the Act, within the period of 90 days prescribed by the 
 Act. Abramovitch v. Vrondressi, (1913) 23 Man. L. E. 383, 
 11 D. L. E. 352. 
 
 Transmission of Lien. 
 
 23. Death of lienholder. — In the event of the death of a lien- 
 holder his right of lien shall pass to his personal representatives; 
 and the right of a lienholder may be assigned by any instrument 
 in writing. E. S. M. c. 110. s. 23. ' 
 
 See Ont. Act, section 26, to the same effect. 
 
 Discharge of Lien. 
 
 24. Discharge of lien.' — A lien may be discharged ,by a receipt 
 signed by the claimant or his agent duly authorized in writing, 
 acknowledging payment, and verified by affidavit and registered, 
 the fees for such registration being the same as for registering a 
 claim of lien. 
 
 (2) Security or payment into court and vacating lien thereon. 
 
 — Upon application a judge may receive security or payment into 
 court in lieu of the amount of the claim, and may thereupon vacate 
 the registration of the lien. 
 
 (3) Vacating registration on other grounds. — The judge may 
 vacate the said registration upon any other ground. E. S. M. c. 
 110, s. 24, part; 7-8 Ed. VII., c. 28, s. 3; 3 Gteo. V., c. 32, ss. 5, 6. 
 
 25. Certain acts not to prejudice right to enforce lien. — The 
 
 taking of any security for, or "the acceptance of any promissory 
 note for, or the taking of any other acknowledgment of, the claim, 
 or the giving of time for the payment of the claim, or the taking 
 
MECHANICS' LIEN ACT OF MANITOBA. 335 
 
 of any proceedings for the recovery of the claim or the recovery 
 of any personal judgment for the claim, shall not merge, waive, 
 pay, satisfy, prejudice or destroy any lien created by this Act, unless 
 the lienholder agrees in writing that it shall have that effect. 
 
 (2) The discounting or negotiation of any promissory note, or 
 other security, taken or accepted as aforesaid, shall not waive, pay, 
 satisfy, prejudice or destroy any lien created by this Act, but the 
 lienholder taking or accepting such promissory note, or other 
 security, shall retain his lien for the benefit of the holder of said 
 promissory note or other security : 
 
 Provided, however, that a person who has extended the time 
 for payment of any claim for which he has a lien under this Act, 
 shall, in order to obtain the benefit of this section, commence an 
 action to enforce such lien within the time limited by this Act, 
 and register a certificate as required by this Act, but no further 
 proceedings shall be taken in the action until the expiration of 
 such extension of time : 
 
 Provided, further, that, notwithstanding such extension of 
 time, such person may, where an action is commenced by any other 
 persons to enforce a lien against the same property, prove and 
 obtain payment of his claim in such action, as if no such extension 
 had been given. R. S. M. c. 110, s. 24, part; 7-8 Ed. VII., c. 28, 
 s. 1. 
 
 The cases of Arbuthnot Co. v. Winnipeg M. Co., 16 Man. L. R. 
 401, and National Supply Co. Y^Horrobin, 16 Man. L. E. 472, were 
 decided under a former section. 
 
 Discovert. 
 
 26. Lienholders to be entitled to information from owners as 
 to terms of contract. — Any lienholder or person entitled to a lien 
 may at any time demand of the owner or his agent the terms of 
 the contract or agreement with the contractor for and in respect of 
 which the work, services or materials is or are performed or furn- 
 ished or placed, and if such owner or his said agent shall not, at 
 
336 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the time of such demand or within a reasonable time thereafter, 
 inform the person making such demand of the terms of such 
 contract or agreement and the amount due and unpaid upon such 
 contract or agreement, or shall intentionally or knowingly falsely 
 state the terms of said contract or agreement or the amount due 
 or unpaid thereon; and if the person claiming the lien sustain loss 
 by reason of such refusal or neglect or false statement, said owner 
 shall be liable to him in an action therefor to the amount <cf such 
 loss. 
 
 (2) Order for inspection of contract by lienholders. — A judge 
 may on a summary application at any time before or after any 
 action is commenced for the enforcement of such lien, make an 
 order for the owner or. his agent to produce and allow any lien- 
 holder to inspect any such contract, and may make such order as 
 to the costs of such application and otherwise as may be just. 
 E. S. M. c. 110, ss. 25, 26 ; 3 Geo. V. c. 32, s. 7. 
 
 See Ont. Act, section 30, to the same effect. 
 
 Enforcement of Lien. 
 
 27. Liens to be realized in County Court. — A lien created by 
 this Act, whatever the amount thereof, may be realized by action 
 in the County Court of the judicial division in which the property 
 affected by the lien is situated, according to the ordinary procedure 
 of such court, except where the same is varied by this Act. 3 Geo. 
 V., c. 32, s. 1 (27). 
 
 See Meunier v. Hinman, (1916) '27 Man. L. R. 69, noted under 
 section 22, ante. 
 
 See Ont. Act, section 31 (1), (4), to the same effect. 
 
 See Roboch v. Peters, (1900) 13 Man. 124, where parties 
 were brought in by notice of trial. Under a former Act, where 
 any material amendment to a bill was made, the amended bill 
 had to be registered as a lis pendens within the time prescribed 
 for registration, or the lien would cease. Thus in Davidson v. 
 Campbell, (1888) 5 Man. 250, the bill alleged a contract with 
 defendant " C." for the performance of certain work in the 
 
MECHANICS' LIEN ACT OF MANITOBA. 337 
 
 erection of a building upon land of " C." By amendment made 
 after the time for filing the bill had elapsed the plaintiffs alleged 
 that their contract was with the defendants " K. and McD./' who 
 had contracted with " C." for the erection of the whole building, 
 thus changing their position from contractors to sub-contractors. 
 No new certificate of -lis pendens was filed. Held, that the plaintiff 
 could not rely upon the original bill and certificate of lis pendens. 
 But an immaterial amendment did not necessitate re-registration. 
 Irwin v. Beyrion, (1886) 4 Man. 10. 
 
 An owner of property who employed a contractor to build a 
 house and before the- filing of a lien by a sub-contractor against 
 the contractor conveyed all his interest in the land to a purchaser, 
 is neither a necessary nor a proper party to the action afterwards 
 commenced to realize the lien, as the plaintiff could not have any 
 relief against him. Although the plaintiff's claim would be lim- 
 ited to the amount due by the original owner to the contractor, 
 and he would have to prove what the indebtedness was, yet that 
 would not justify making the original owner a party, as the plain- 
 tiff could prove that indebtedness at the trial or -on a reference 
 to the Master without having the original owner before the court. 
 Christie v. McKay, 15 Man. L. E. 612, 2 W. L. E. 303. 
 
 See Dominion Lumber & Fuel Go. v. Pashov, 29 Man. L. E. 325, 
 (1919) 1 W.-W. E. 657, noted under section 5 ante. 
 
 28. Statement of claim. — A writ of summons shall not be issued, 
 but the action shall be commenced by filing in the office of the 
 court a statement of claim, entitled in the court and cause, giving 
 in plain and ordinary language the grounds and particulars of the 
 claim. 3 Geo. V. c. 22, s. 1 (28). 
 
 29. Notices of address, etc. — The statement of claim and every 
 copy thereof served shall contain or have endorsed upon it a notice 
 giving the name and address of the solicitor who issues the same 
 or of the plaintiff, if issued by the plaintiff in person, and the 
 office in which and the time within which the statement of defence 
 is to be filed. 3 Geo. V., c. 32, s. 1 (29). 
 
 30. Defence. — A defendant may, within sixteen days after be- 
 ing served with the statement of claim, file in the office of the 
 
 MX— 22 
 
338 THE LAW OF MECHANICS' LIEN'S 1ST CANADA. 
 
 court a statement of defence, entitled in the court and cause, show- 
 ing clearly and concisely the nature of his defence, and serve on 
 the plaintiff or his solicitor a copy thereof, and if he fail to do 
 so he shall, unless otherwise ordered by a judge, be precluded from 
 disputing the plaintiffs claim and right to a lien, and the plaintiff 
 shall have the right to sign interlocutory judgment against the 
 defendant in a manner similar to the signing of such judgment in 
 an action in the Court of King's Bench. 
 
 (2) The defendant may, in a proper case, be allowed in to 
 defend by order of the judge upon such terms as he shall think 
 just. 3 Geo. V., c. 32, s. 1 (30). 
 
 i 
 
 31. Notice of address.' — The statement of defence, and the 
 
 copy thereof served, shall contain or have endorsed upon it a notice 
 giving the name and address of the solicitor who files the same, or 
 of the defendant if filed by the defendant in person. 3 Geo. V., c. 
 32, s. 1 (31). 
 
 32. Action shall enure for benefit of all lienholders. — It shall 
 not be necessary to make any lienholders parties defendant to the 
 action, but all lienholders served with the notice of trial shall for 
 all purposes be treated as if they were parties to the action. 3 Geo. 
 V., c. 32, s. 1 (32). 
 
 33. Lienholders may join in action. — Any number of lien- 
 holders claiming liens on the same property may join in an action, 
 and any action brought by a lienholder shall be taken to be -brought 
 on behalf of all other lienholders on the property in question. 3 
 Geo. V., c. 32, s. 1 (33). 
 
 The expression " lienholder " in this section means a person 
 having a lien which was valid at the time of commencing his 
 action, so that when, in an action commenced by a lien claimant it 
 is decided that he had no valid lien and no action was commenced 
 within the time prescribed by section 22 of this Act by any other 
 person claiming, a lien on the same property, all the liens upon it 
 must fail., Builders Supply Co. v. Huddlestone, (1915) 25 Man. 
 L. E. 718. 
 
MECHANICS' LIEN ACT 0¥ MANITOBA. 339 
 
 34. Appointing day for trial. — After the filing and service of 
 the statement of defence, or after the time for filing and serving the 
 same, if none is filed and served, upon application to a judge by 
 any party to the action, he shall give an appointment, fixing a 
 time and place for the trial of the action, which -time may be the 
 date of the ordinary sittings of the court or otherwise. 3 Geo. V., 
 c. 32, s. 1 (34). 
 
 See Humphrey y. Cleave, 15 Man. L. E. 23, also Dixon v. Boss, 
 (1912) 1 D. L. E. 14.' 
 
 35. Service of notice of trial. — The party obtaining such ap- 
 pointment shall, at least eight clear days before the day fixed for 
 the trial (unless the judge directs that a shorter notice may be 
 given), serve a notice of trial, which may be according to form No. 
 10 in Schedule A to this Act, upon the solicitors for the parties 
 who appear by solicitors, and on all lienholders known to him who 
 have registered their liens as required by this Act, and on all other 
 persons having any registered charges, incumbrance or claims on 
 the said lands, who are not parties or who, being parties, appear 
 personally in the said action; and such service shall be personal, 
 unless otherwise directed by the judge or local judge who is to try 
 the case, who may, in lieu of personal service, direct in what man- 
 ner the notice of trial may be served. 
 
 See Ont. Act, section 37, to the same effect. 
 
 36. Every lienholder not already a plaintiff in the action, shall 
 within six days after being served with the notice of trial file in the 
 office of the court a statement showing the grounds and particulars 
 of his claim, and if he fail to do so, he shall, unless otherwise 
 ordered by the judge, be precluded from asserting his lien. 
 
 37. On the day fixed for the trial, or on such other day to 
 which the trial may be adjourned, the judge shall proceed to try 
 the action, and all questions which arise therein, or which are neces- 
 sary to be tried, to completely dispose of the action, and to adjust 
 
340 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the rights and liabilities of the persons appearing before him, or 
 upon whom the notice of trial has been served, and at the trial shall 
 take all accounts, make all inquiries, and give all directions, and do 
 all things necessary to try and otherwise finally dispose of the ac- 
 tion and of all matters, questions and accounts arising in the action 
 or at the trial, and to adjust the rights and liabilities of and give 
 all necessary relief to all parties to the action, or which have been 
 served with the notice of trial, and shall embody all the results in 
 the judgment. 3 Geo. V., c. 32, s. 1 (37). 
 
 When the, plaintiff in an action to realize upon a mechanics' 
 lien intends to dispute the right of a prior , mortgagee to priority 
 for more than the actual value of the land at the time the improve- 
 ments were commenced, it is not necessary to make the mortgagee 
 a party to the action in the first place, but the notice of trial may, 
 under section 35, be served upon the mortgagee and the question 
 of priority and for what amount may be determined at the trial. 
 Dominion Lumber & Fuel Co. v. Paskov, 29 Man. L. E. 325, 
 (1919) 1 W. W. E. 657. In this case the plaintiff- had joined the 
 mortgagee as a defendant to the action and in his statement of 
 claim had expressly conceded priority for the whole amount of the 
 mortgage. It was held that unless the mortgagee could show that 
 it had been induced to alter its position to its prejudice in conse- 
 quence of that concession, the plaintiff should be permitted to 
 amend. 
 
 38. Sale may be ordered. — The judge may, in the judgment, 
 order that the estate or interest charged with the lien may be sold, 
 and may direct the sale to take place at any time after judgment, 
 allowing, however, a reasonable time for advertising such sale. 
 
 (2) The judge may also direct the sale of any materials and 
 authorize the removal thereof. 3 Geo. V., c. 32, s. 1 (38). 
 
 39. Report on sale. — When a sale is had, the moneys arising 
 therefrom shall be paid into court to the credit of the action, and 
 the judge shall make a report on sale and therein direct to whom 
 the moneys in court shall be, paid, and may add to the claim of the 
 person conducting the sale his actual disbursements incurred in 
 
MECHANICS' LIEN ACT OF MANITOBA. 341 
 
 connection therewith ; and, where sufficient to satisfy the judgment 
 and costs is not realized from the sale, he shall certify the total 
 amount of the deficiency and the proportion thereof falling upon 
 each person entitled to recover, and the persons by the judgment 
 adjudged to pay the same. 
 
 (2) Vesting order. — The judge may make all necessary orders 
 for the completion of the sale, and for vesting the property in the 
 purchaser. 3 Geo. V., c. 32, s. 1 (39). 
 
 40. Deficiency recoverable by usual process. — All judgments in 
 favor of lienholders shall adjudge that the person or persons per- 
 sonally liable for the amount of the judgment shall pay any de- 
 ficiency which may remain after sale of the property adjudged 
 to be sold; and, whenever on such sale sufficient to satisfy the 
 judgment and costs is not realized therefrom, the deficiency may be 
 recovered against the property of sueh person or persons by the 
 usual process of the eourt. 3 Geo. V., c. 32, s. 1 (40). 
 
 See Ont. Act, section 48, to the same effect. 
 
 41. Personal judgment when lien fails. — Whenever any claim- 
 ant shall fail for any reason to establish a valid lien, he may never- 
 theless recover in the action a personal judgment against the party 
 or parties to the action for such sum or sums as may appear to be 
 due to him and which he might recover in an action in contract 
 against such party or parties. 3 Geo. V,, c. 32, s. 1 (41). 
 
 See Ont. Act, section 49, to the same effect. 
 
 42. Allowing claim to be proved after trial. — Any lienholder, 
 who has not proved his claim at the trial, may, on application to 
 the judge who tried the action and on such terms as to costs and 
 otherwise as may be just, be let in to prove his claim at any time 
 before the amount realized in the action has been distributed ; and, 
 where sueh claim is proved and allowed, the judge shall amend the 
 judgment so as to include such claim therein. 3 Geo. V., c. 32, 
 s. 1 (42). 
 
342 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 43. Consolidation of actions. — Where more than one action is 
 brought to realize liens in respect of the same property, a judge 
 may, on the application of any party to any one of such actions, or 
 on the application of any other person interested, consolidate such 
 actions into one action, and may give the conduct of the consoli- 
 dated action to any plaintiff in his discretion. - . 3 Geo. V., c. 32, s. 
 1 (43). 
 
 44. Carriage of proceedings. — The judge, on the application of 
 any lienholder entitled to the benefit of the action, may make an 
 order giving such lienholder the carriage of the proceedings, and 
 such lienholder shall thereafter for all purposes be deemed to be 
 the plaintiff in the action. 3 Geo. V., c. 32, s. 1 (44) . 
 
 45>. When judgment final. — In actions where the total amount 
 of the claims of the plaintiff and all other persons claiming liens 
 is one hundred dollars or less, the judgment at the trial shall be 
 final, binding and without appeal, except that, upon application 
 within fourteen days after .judgment is prondunced, the judge, who 
 tried the action may grant a new trial. 3 Geo. V., c. 32, s. 1 (45). 
 
 46. When appeal lies. — In actions where the total amount of 
 the claims of the plaintiff and all other persons claiming liens 
 exceeds one hundred dollars, any person affected by the judgment 
 may appeal therefrom to the Court of Appeal, whose judgment 
 shall be final and binding, and no appeal shall lie therefrom. The 
 procedure on such appeal shall be the same as in ordinary cases of 
 appeal from the County Court. 3 Geo. V., c. 32, s. 1 (46). 
 
 See Crown Grain Co. v. Day, (19(18) A. C. 504, declaring the 
 limitation of the right of appeal ultra vires. 
 
 47. limit of costs to plaintiff.* — The costs of the action awarded 
 by the judge trying the action shall not exceed in the aggregate an 
 amount equal to twenty-five per cent, of the amount of the judg- 
 ment, besides actual disbursements, and shall be in addition to the 
 amount of the judgment, and shall be apportioned and borne as 
 the judge may direct. 3 Geo. V., c. 32, s. 1 (47). 
 
MECHANICS' LIEN ACT OF MANITOBA. 343 
 
 See McDonald Dure Lumber Co. v. Workman, 18 Man. L.' E. 
 419 ; Humphreys v. Cleave, 15 Man. L. E. 23 ; Leibrock v. Adams, 
 17 Man. L. E. 575. 
 
 48. Limit of costs against plaintiff. — When the costs are 
 awarded against the plaintiff or other persons claiming liens, 
 such costs shall not exceed in the aggregate an amount equal to 
 twenty-five per cent, of- the claim of the plaintiff and other claim- 
 ants, besides actual disbursements, and shall be apportioned and 
 borne as the judge may direct. 3 Geo. V., c. 32, s. 1 (48). 
 
 49. Counsel fees. — Counsel fees shall not be deemed disburse- 
 ments under the next two preceding sections. 3 Geo. V., c. 32, s. 
 1 (49). 
 
 50. least expensive course to be taken. — If the least expen- 
 sive course is not taken by a party under this Act, the costs allowed 
 to him shall in no case exceed what would have been incurred if 
 the least expensive course had been taken. 3 Geo. V., c. 32, s. 1 
 (50). 
 
 51. Costs in discretion of judge. — The costs of and incidental 
 to all applications and orders made under this Act, and not other- 
 wise provided for, shall be in the discretion of the judge to whom 
 the application, or by whom the order, is made. 3 Geo. V., c. 32, 
 s. 1 (51). Eepealed. See c. 60 of the Statutes of 1914, post. 
 
 52. Costs of vacating lien. — Where a lien is discharged or 
 vacated under section 24 of this Act, or when in an action judg- 
 ment is given in favor of or against a claim for a lien, the judge 
 may allow a reasonable amount for costs of drawing and registering 
 the lien or for vacating the registration thereof. 3 Geo. V., c. 32, 
 s. 1 (52). 
 
 53. Wo fees on payments out of court. — No fees shall be pay- 
 able on any cheques or proceedings to pay money into court or 
 obtain money out of court in respect of a claim of lien, but suffi- 
 cient postage stamps to prepay a return registered letter . shall 
 
344 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 be enclosed with every requisition for cheques. 3 Geo. V., c. 32, 
 s. 1 (53). 
 
 54. Winnipeg actions may be referred to referee of K.B. — In 
 
 an action brought in the County Court of the judicial division of 
 Winnipeg, a judge of the said court may refer the action to the 
 referee in chambers of the Court of King's Bench, who thereupon 
 shall have the same powers and jurisdiction to hear and dispose 
 of the action and all matters and questions therein involved as a 
 judge would have under this Act, and his judgment shall 'be sub- 
 ject to the same right of appeal, but the action shall continue to be 
 an action in the County Court, and the proceedings shall be in- 
 tituled and taken therein, and in all other respects such proceed- 
 ings shall be the same as if the action had not been so referred. 3 
 Geo. V., c. 32, s. 1 (54). 
 
 55. King's Bench practice to be adopted in certain cases.— In 
 
 any case not satisfactorily covered by the procedure provided for 
 by this Act or by the ordinary procedure of the County Court, 
 the practice and procedure of the Court of King's Bench may be 
 adopted and applied. 3 Geo. V., c. 32, s. 1 (55). 
 
 Forms. 
 
 56. Forms. — The forms in the schedule hereto, or forms similar 
 or to the like effect, may be adopted in all proceedings under this 
 Act. 3 Geo. V., e. 32, s. 1 (56) .. 
 
MECHANICS'' LIEN ACT OF MANITOBA. 345 
 
 CHAPTEE 60. 
 
 An Act to amend " The Mechanics' and Wage-eaenebs' Lien 
 
 Act." 
 
 (Assented to February 2nd, 1914.) 
 
 HIS MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of Manitoba, enacts as follows: — 
 
 1. Section 51 of " The Mechanics' and Wage-earners' Lien Act," 
 being chapter 125 of the Eevised Statutes of Manitoba, 1913, is 
 hereby repealed and the following substituted therefor: — 
 
 51. Notwithstanding anything contained in "The County 
 Courts Act," the costs of and incidental to all actions, applications 
 and orders commenced or made under this Act shall be in the dis- 
 cretion of the judge, subject always to the limitations provided 
 for by sections 47, 48 and 49 of this Act. 
 
 2. This Act shall come into force on the day it is assented to. 
 
 SCHEDULE. 
 
 The following is the schedule referred to in this Act: — 
 
 Schedule A. 
 
 Poem No. 1. — (Section 15.) 
 
 Claim of Lien. 
 
 A. B> (name of claimant), of (here state residence of claim- 
 ant), (if so, as assignee of, stating name and residence of assignor), 
 under the " Mechanics' and Wage Earners' Lien Act," claims a 
 lien upon the estate of (here state the name and residence of owner 
 of the land upon which the lien is claimed) in the undermentioned 
 land in- respect of the "following work (service or materials), that is 
 to say (here give a short description of the nature of the work done 
 or materials furnished, and for which the lien is claimed), which 
 work (or service) was (or is to be) done (or materials were fur- 
 nished) for (here state the name and residence of the person upon 
 whose credit the work is done or materials furnished) , on or before 
 the day of , 19 . 
 
346 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 The amount claimed as due (or to become due) is the sum 
 of $ 
 
 The following is a description of the land to be charged (here 
 set out a concise description of the land to be charged sufficient for 
 the purpose of registration). 
 
 When credit has been given, insert: The said work was done 
 (or materials were furnished) on credit, and the period of credit 
 agreed to expired (or will expire) on the day of , 
 
 19' . 
 
 Dated at , this day of , 19 . 
 
 (Signature of claimant.) 
 E. S. M. c. 110, sch., form 1-. 
 
 FoEm No. 2.^(Section 15.) 
 Claim of Lien foe Wages. 
 
 A. B. (name of claimant), of {here state residence of claim- 
 ant), (if so, as assignee of, stating name and residence of assignor), 
 under the " Mechanics' and Wage Earners' Lien Act," claims a lien 
 upon the estate of (here state the name and residence of the owner 
 of land upon which the' lien is claimed) in the undermentioned 
 land, in respect of days' work performed while in the em- 
 
 ployment of (here state the name and residence of the person upon 
 whose credit the worle was done) on- or before the day- 
 
 of , 19 . 
 
 The amount claimed' as due is the sum of $ 
 
 The following is the description of the land to be charged 
 (here set out a concise description of the land to be charged suffi- 
 cient for the purpose of registration). 
 
 Dated at , this day of , 19 . 
 
 (Signature of claimant.) • 
 R. S. M. c. 110, sch., form 2. 
 
 Foem No. 3. — (Section 15.) 
 
 Claim of Lien foe Wages by Seveeal Claimants. 
 
 The following persons, under the " Mechanics' and Wage Earn- 
 ers' Lien Act," claim a lienupon the estate of (here state the name 
 
MECHANICS' LIEN ACT OP MANITOBA. 347 
 
 and residence of the owner of land upon which the lien is claimed) 
 in the undermentioned land in respect of wages for labor performed 
 thereon while in the employment of (here state name and residence 
 or names and residences of employers of the several persons claim- 
 ing the liens). 
 
 A. B. of (residence) $ for days' wages. 
 
 C. D. of (residence) $ for days' wages. 
 
 E. P. of (residence) $ for days' wages. 
 
 -The following is the description of the land to be charged (here 
 set out a concise description of the land to be charged sufficient for 
 the purpose of registration) . 
 
 Dated at , this day of , 19 . 
 
 (Signatures of the several claimants.) 
 
 E. S. M. c. 110, sch., form 3. 
 
 Foem No. 4. — (Section 15.) 
 
 Affidavit Verifying Claim. 
 
 I, A. B., named in the above (or annexed) claim, do make oath 
 that the said claim is true. 
 
 Or, we, A. B., and C. D., named in the above (or annexed) 
 claim, do make oath, and each for himself saith that the said claim, 
 so far as relates to him, is true. 
 
 [Where affidavit is made by agent or assignee, a clause must be 
 added to the following effect: I have full knowledge of the facts set 
 forth in the above (or annexed) claim.] 
 Sworn before me at , in 
 
 of , this day 
 
 of , 19 . 
 
 Or the said A. B. and C. D, were 
 severally sworn before me at 
 , in the of , this 
 
 day of , 19 . 
 
 Or the said A. B. was sworn before 
 me at in the 
 
 of this day of 
 
 , 19 . 
 
 E. S. M. c. 110, sch., form 4. 
 
348 THE LAW OF MECHANICS'" LIENS IN CANADA. 
 
 (Fohm No. 5. — (Section 22.) 
 
 Certificate of Lis Pendens. 
 
 {Style of Court and Cause.) 
 
 I certify that the above-named plaintiff has commenced an ac- 
 tion in the above court to enforce against the following land 
 {describing it) a. claim to a mechanics' lien for $ 
 
 Dated at , this day of , 19 . 
 
 f seal] E. S. M. c. 110, sch., form 6. 
 
 Poem No. 6. — (Section 35.) 
 
 Notice of Teial. 
 {Style of Court and Cause.) 
 
 Take notice that this action will be tried at the Court House in 
 the of , on the day of , 
 
 by a judge of this Court, and at such time and place the said 
 judge will proceed to try this action and all questions which arise 
 in or which are necessary to be tried to completely dispose of the 
 same and to adjust the rights and liabilities of the persons appear- 
 ing before him, or upon whom this notice of trial has been served, 
 and at such trial he will take all accounts, make all inquiries and 
 give all directions and do all things necessary to try and otherwise 
 finally dispose of this action, and of all matters, questions and 
 accounts arising therein, and will give all necessary relief to all 
 parties. 
 
 And further take notice that, if you do not appear at the trial 
 and prove your claim (if any) or prove your defence (if any) to 
 the action, the proceedings will be taken in your absence and you 
 may be deprived of all benefit of the proceedings and your rights 
 disposed of in your absence. 
 
 This is a mechanics' lien action brought by the above-named 
 plaintiff against the above-named defendants to enforce a 
 mechanics' lien against the following lands: {set out description 
 of lands) • 
 
 This notice is served by, etc. 
 
 E. S. M. c. 110, sch., form 10. 
 
REVISED STATUTES OF NEW BRUNSWICK. 
 
 1903. 
 
 CHAPTEK 147. 
 
 Kespecting Mechanics' Lien. 
 
 1. Short title. — This chapter may be cif"ed as " The Mechanics' 
 Lien Act." 57 V. c. 23, s. 1. 
 
 2. Interpretation. — Wherever the following words occur in 
 this chapter or in the schedule thereto, they shall be construed 
 in the manner hereinafter mentioned unless a contrary intention 
 appears : 
 
 (1) "Contractor." — "Contractor" shall mean a person con- 
 tracting with or employed directly by the owner for the doing of 
 work, or placing or furnishing of machinery or materials for any 
 of the purposes mentioned in this chapter. 
 
 (2) "Sub-contractor." — "Sub-contractor" shall mean a per- 
 son not contracting with or employed directly by the owner for 
 the purposes aforesaid, but contracting with or employed by the 
 " contractor " or under him by a " sub-contractor." 
 
 (3) " Owner." — " Owner " shall extend to and include a per- 
 son having any estate or interest in the lands upon or in respect 
 of which the work is done or materials or machinery are placed 
 or furnished, at whose request and upon whose credit, or on 
 whose behalf, or with whose privity or consent, or for whose 
 direct benefit any such work is done, or materials or machinery 
 placed or furnished, and all persons claiming under him whose 
 rights are acquired after the work in respect of which the lien is 
 claimed is commenced, or the materials or machinery furnished 
 have been commenced to be furnished. 
 
350 THE LAW 01" MECHANICS' LIENS IN CANADA. 
 
 (4) " Wage-earner." — " Wage-earner " shall mean any person 
 performing labor for wages, by the day, week or month as the 
 ease may be, and notby the job. 
 
 (5) "County Court."' — "County Court" in this chapter shall 
 mean the County Court of the county in which the lands sought 
 to be affected by the lien are situate. 
 
 (6) "Judge." — " Judge" shall mean the judge of the County 
 Court of the county in which the lands sought to be affected by 
 the lien are situate, or the judge of a County Court before whom 
 proceedings may be taken in case of the said judge being inter- 
 ested or related to any of the parties. 
 
 (7) "Registrar." — "Kegistrar" shall mean the registrar of 
 deeds of the county where the lands sought to be affected by the 
 lien are situate. 
 
 (8) "Registered." — "Kegistered" shall mean filed in the of- 
 fice of the registrar of deeds of the county where the lands sought 
 to be affected by the lien are situate. 57 V. c. 23, s. 2. 
 
 See Ontario Act, section 2. The Ontario Act includes a muni- 
 cipal corporation and a railway company under the definition of 
 " owner." 
 
 A person is not an " owner " within the meaning of sub-section 
 3 jof section 2 so as to make his land liable to a lien for materials 
 supplied under a contract with the tenant, for the purpose of 
 adding to or improving an hotel upon the land in the possession of 
 the tenant with an option to purchase, unless there is something 
 in the nature of a direct dealing between the owner and the person 
 furnishing the materials. Mere knowledge of, or consent to, the 
 materials being supplied, is not enough; there must be a request, 
 either express or by implication from circumstances, to give rise to 
 the lien. Eddy Co. Ltd. v. Chamberlain, (1917) 45 1ST. B. E. 261. 
 
 3. Agreement not to affect lien of person not a party thereto. — 
 
 No agreement shall be held to deprive anyone otherwise entitled 
 to a lien under this chapter, and not a party to the agreement, of 
 
REVISED STATUTES OF NEW BEUNSWICK. 351 
 
 the benefit of the lien, but the lien shall attach notwithstanding 
 such agreement. 57 V. c. 23, s. 3. 
 
 See Ont. Act, section 5. 
 
 4. Lien of mechanic, builder, laborer, contractor, etc., for 
 work, materials, etc. — Unless he signs an express agreement to the 
 contrary, every mechanic, machinist, builder, laborer, contractor 
 or other person doing work upon or furnishing materials to be 
 used in the construction, alteration or repair of any building or 
 erection, or erecting, furnishing or placing machinery of any 
 kind in, upon or in connection with any building, erection or 
 mine, shall, 'by virtue of being so employed or furnishing, have 
 a lien for the price of the work, machinery or materials upon the 
 building, erection or mine and the lands occupied thereby or 
 connected therewith. 57 V. e. 23, s. 4. 
 
 See Ont. Act, section 6, and cases cited thereunder. A number 
 of things mentioned in the Ontario Act as subject to the lien are 
 not specified in "this section, but at least some of these would 
 probably be held 4o be covered by the words, " building, erection 
 or mine, and the lands occupied thereby or connected therewith." 
 As to what constitutes a building or erection, see a large number of 
 cases cited in Adamson v. Rogers, (1895), 22 0. A. E. 415. 
 
 G. a builder, contracted to erect two houses for I\ in the city 
 of Moncton, one on Birch Street and one on Union Street. 0., 
 the claimant, claims to have been employed by G-., and at his 
 request did carpenter work on the Birch Street house to the 
 amount of $171,. and on the Union Street house to the amount of 
 $21.75. After deducting credits he claims a general balance of 
 $80.05, and filed a lien for such balance, covering both houses. It 
 was held that the lien on these two houses should have been dis- 
 charged, as a lien only attaches to the house upon or in respect to 
 which work is performed, although the work is done for a con- 
 tractor who had an entire contract with the owner for the erection 
 of both houses. O'Brien v. Fraser, (1918) 45 N. B. R. 539; 
 41 D. L. R. 324. 
 
 Property held by trustees for school purposes under the pro- 
 visions of the Schools' Act, C. S. 1903, c. 50, is not Crown pro- 
 perty and therefore not exempt from the operation of the Mechanics' 
 
352 
 
 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Lien Act, although such property is not liable to be sold ujider 
 execution. An order for the payment of money under the Me- 
 chanics' Lien Act can be enforced in the same way as a judgment 
 by compelling the School Trustees to make an assessment. Trustees 
 School Dist. No. 8 v. Gonnely, (1912) 41 N. B. R. 374. 
 
 5. Lien to attach to building, etc. — The lien shall attach upon 
 the estate and interest of the owner, as denned by this chapter, 
 in the building, erection or mine upon or in respect of which the 
 work is done or the materials or machinery placed qr furnished, 
 and the land oceupied thereby or connected therewith. 57 V. 
 c. 23, s. 5. 
 
 See Ont. Act, section 8. 
 
 6. (1) Lien for thirty days' wages. — Every wage-earner who 
 performs labor for wages upon the construction, alteration or 
 repairs of any building or erection, or in erecting or placing 
 machinery of any kind in, upon, or in connection with any build- 
 ing, erection or mine, shall, to the extent of the interest of the 
 owner, have, upon the building, erection or mine, and the land 
 occupied thereby or connected therewith, a lien for such wages, 
 not exceeding the wages for thirty days, or a balance equal to his 
 wages for thirty days. 
 
 (2) Lien for wages on property of wife. — The lien for wages 
 mentioned in this section shall attach, when the labor is in respect 
 of a building, erection or mine on property belonging to the wife 
 of the person at whose instance the work is done, upon the estate 
 or interest of the wife in such property as well as upon that of her 
 husband. 
 
 (3) Device to defeat lien for wages to be void. — Every device 
 by an owner or contractor which shall be adopted in order to 
 defeat the lien of wage-earners under this chapter, shall, as 
 respects such wage-earners, be null and void. 57 V. c. 23, s. 6. 
 
 See Ont. Act, sections 7 and 15. 
 
REVISED STATUTES OF NEW BRUNSWICK. 353 
 
 7. Reservation of percentage of price on completion of contract. 
 
 — The owner shall, in the absence of a stipulation to the contrary, 
 be entitled to retain, for a period of thirty days after the comple- 
 tion of the contract — 
 
 (a) Fifteen per centum of the price to be paid to the con- 
 tractor when such price does not exceed $1,000. 
 
 (b) Twelve and a half per centum of the price to be paid to 
 the contractor when such price is more than $1,000, but does not 
 exceed $5,000; and 
 
 (c) In all other cases, ten per centum of the price to be paid 
 to the contractor. 57 V. c. 23, s. 7. 
 
 See Ont. Act, section 12. 
 
 8. Limit to lien of sub-contractor. — In case the lien is claimed 
 by a sub-contractor, the amount which may be claimed in respect 
 thereof shall be limited to the amount payable to the contractor 
 or sub-contractor (as the case may be) for whom the work has 
 been done, or the materials or machinery haveibeen furnished or 
 placed. 57 V. c. 23, s. 8. 
 
 See Ont. Act, section 10. 
 
 9. (1) Pro tanto discharge of lien by payments up to 90 per 
 cent, of price made in good faith before notice of lien. — All pay- 
 ments up to ninety per .centum of , the price to be paid for the 
 work, machinery or materials, as defined by section 4 of this chap- 
 ter, made in good faith by the owner to the contractor, or by the 
 contractor to the sub-contractor, or by one sub-contractor to 
 another sub-contractor, before notice in writing by the person 
 claiming the lien has been given to such owner, contractor or 
 sub-contractor (as the case may be) of the claim of such person, 
 shall operate as a discharge pro tanto of the lien created by this 
 chapter, but this section shall not apply to any payment made for 
 the purpose of defeating or impairing a claim to a lien existing or 
 arising under this chapter. 
 
 M.L.— 23 
 
354 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (2) Lien on 10 per cent, of price for ten days after completion 
 of work, etc., where no notice of lien given. — A lien shall, in 
 addition to all other rights or remedies given by this chapter, 
 also operate as a charge to the extent of ten per centum of the 
 price to be paid by the owner for the work, machinery or mater- 
 ials as defined by section 4 of this chapter, up to ten days after 
 the completion of the work or of the delivery of the materials in 
 respect of' which such lien exists, and no longer, unless such notice 
 in writing be given as herein provided. 
 
 (3) Priority of lien for wages on 10 per cent, of price to con- 
 tractor. — A lien for wages for thirty days or for balance equal 
 to the wages for thirty days, shall, to the extent of the said ten 
 per centum ,of the price to be paid to the contractor, have priority 
 over all other liens under this chapter, and over any claim by the 
 owner against the contractor for or in consequence of the failure 
 of the latter to complete his contract. 
 
 (4) Increase of percentage where price does not exceed $1,000 
 or where price between $1,000 and $5,000. — When the total price 
 to be paid or contracted or agreed to be paid for the whole of the 
 work, machinery or materials, as defined by section 4 of this 
 chapter does not exceed $1,000, the three preceding sub-sections 
 of this section shall be read as if the word " ninety " was omitted 
 therefrom, and the word "eighty-five" inserted in lieu thereof, 
 and if the word " ten " was omitted therefrom and the word 
 " fifteen " inserted in lieu thereof ; and where the said total price 
 exceeds $1,000, but does not exceed $5,000, the said first three 
 sub-sections shall be read as if the word "ninety" was omitted 
 .therefrom and the word " eighty-seven and a half " inserted in 
 lieu thereof, and as if the word " ten " was omitted therefrom 
 and the words " twelve and a half " inserted in lieu thereof. 57 
 V. c. 23, s. 9. 
 
 See Ont. Act, section 12. 
 
 10. Owner not liable to sum greater than sum payable to con- 
 tractor. — Save as herein provided the lien shall not attach so as 
 
REVISED STATUTES OF NEW BKUNSWICK. 355 
 
 to make the owner liable to a greater sum than the sum payable 
 by the owner to the contractor. 57 V. c. 23, s. 10. 
 See Ont. Act, section 10. 
 
 11. Lien for material or labor supplied to person having lien. — 
 
 All persons furnishing material to or doing labor for the person 
 having a lien under this chapter, in respect of the subject of 
 such lien, who notified the owner of the premises sought to be 
 affected thereby, within thirty days after such materials fur- 
 nished or labor performed, of any unpaid account or demand 
 against such lienholder for such material or labor^ shall be entitled, 
 subject to the provisions of sections 6 and 9, to a charge therefor 
 pro rata upon any amount payable by such owner under said lien, 
 and if the owner thereupon pays the amount of such charge to the 
 person furnishing material or doing labor as aforesaid, such pay- 
 ment shall be deemed a satisfaction pro tanto of such lien. 57 V. 
 c. 23, s. 11. 
 
 See Ont. Act, section 12. 
 
 12. Trial where dispute as to claim under preceding section. — 
 
 In case of a dispute as to the validity or amount of an unpaid 
 account or demand, of which notice is given to the owner under the 
 preceding section, the same shall be first determined by action in 
 the proper court in that behalf; and pending the proceedings to 
 determine the dispute, so much of the amount of the lien as is in 
 question therein may be withheld from the person claiming the lien, 
 or the judge may order such amount paid into a bank to the credit 
 of the cause. 57 V. c. 23, s. 12'. 
 
 13. Payment of judgment or claim by owner where failure by 
 primary debtor to pay. — In case the person primarily liable to the 
 person giving such notice as mentioned in section 11, fails to pay 
 the amount for which judgment is recovered within ten days after 
 the judgment is obtained, the owner, contractor or sub-contractor 
 may pay the amount out of any moneys due by him to the perspn 
 
356 THE LAW OF MECHANICS' LIEXS IX CAXADA. 
 
 primarily liable as aforesaid, on account of the work done, or ma- 
 terials or machinery furnished or placed in respect of which the' 
 debt arose ; arid such payment if made after the judgment as afore- 
 said (or if made without any action being previously brought or 
 dispute existing, then, if the debt in fact existed, and to the extent 
 thereof) shall operate as a discharge pro tanto of the moneys so due 
 as aforesaid to the person primarily liable. 57 V. c. 23, s. 13. 
 
 14. Property not to be removed while subject to lien. — Dur- 
 ing the continuance of a lien, no portion of the property or mach- 
 inery affected thereby shall be removed to the prejudice of the lien ; 
 and any attempt at such removal may be restrained by application 
 to the judge. Disobedience of the judge's order restraining such 
 removal shall be punishable by attachment for contempt by the 
 judge as in the Supreme Court for disobedience of an order of a 
 judge of that court. 57 V. e. 23, s. 14. 
 
 See Ont. Act, section 16. 
 
 15. (1) Registration of claim of lien. — A claim of lien applic- 
 able to the case may be registered in the office of the registrar, and 
 shall state: 
 
 (a) The name and residence of the claimant and of the owner 
 of the property to be charged, and of the person for whom and upon 
 whose credit the work is done or materials or machinery furnished, 
 and the time or period (if any time is specified in the contract) 
 within which the same was or was to be done or furnished ; 
 
 (b) The work done or materials or machinery furnished; 
 
 (c) The sum claimed; 
 
 (d) The description of the land to be charged; 
 
 (e) The date of expiry of the period of credit agreed to by the 
 lienholder for payment for his work, materials or machinery,. where 
 credit has been given. 
 
 (2) Form of claim of lien for registration. — The claim may 
 be in one of the forms (1), (2) and (3) given in the schedule to 
 this chapter, and shall be verified by the affidavit of the claimant, 
 
REVISED STATUTES OF NEW BRUNSWICK. 357 
 
 or his agent or assignee having full knowledge of • the matters 
 required to be verified, and the affidavit of an agent or assignee 
 shall state that he has such knowledge. 57 Y. c. 23, s. 15. 
 
 See Ont. Act> section 17. 
 
 16. Joinder of claims for wages. — A claim for wages may in- 
 clude the claims of any number of wage-earners who may choose 
 to unite therein. In such case each claimant shall verify his claim 
 by his affidavit, but need not repeat the facts set out in the claim ; - 
 and an affidavit substantially in accordance with form (4) of this 
 chapter shall be sufficient. 57 V. c. 23, s. 16. 
 
 See Ont. Act, section 18. 
 
 17. (1) Duty of registrar to register claim of lien. — The regis- 
 trar, upon payment of his fees, shall register the claim so that the 
 same may appear as an incumbrance against, the land therein 
 described, and the day, hour and minute when the same was regis- 
 tered shall appear upon the registry. 
 
 (2) Fee to registrar. — The fee for registration shall be twenty- 
 five cents ;• if several parties join in one claim the registrar shall 
 have a further fee of ten cents for every person after the first. 
 
 (3) Claim to be entered in mechanics' lien book.; — The regis- 
 trar shall not be bound to copy in any registry book any claim 
 or affidavit, but he shall enter each claim in a book to be kept for 
 that purpose, to be called " The Mechanics' Lien Book," and shall 
 insert therein particulars of the claim, with a description of the 
 property against which the lien is sought. 57 V. c. 23, s. 17. 
 
 See Ont. Act, section 20. 
 
 18. Effect of registration of claim of lien. — Where a claim is 
 so registered the person entitled to the lien shall be deemed a 
 purchaser pro tanto, and within the provisions of the Eegistry Act, 
 chapter 151 of these Consolidated Statutes, but except as herein 
 otherwise provided, the Eegistry Act shall not apply to any lien 
 arising under this chapter. '57 V. c. 23, s. 18. 
 
 See Ont. Act, section 21. 
 
358 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 19. (1) When claim of lien for wages may be registered. — 
 
 Where the lien is for wages under sections 6 or 9, the claim may be 
 registered at any time within thirty days after the last day's labor 
 for which the wages are payable. 
 
 (2) Such lien shall not be entitled to the benefit of the provi- 
 sions of sections 6 and 9, after the said period, unless the same is 
 duly registered before the expiration of the said period so limited. 
 
 (3) Priority of lien for wages. — Such lien shall have the same 
 priority for all purposes after as' before registration. 57 V. c. 23, 
 s. 19. 
 
 See Ont. Act, section 22. 
 
 20. Where other claims of lien may be registered. — In other 
 cases the claim of lien may be registered before the commencement 
 or during the progress of the work, or within thirty days from the 
 completion thereof, or from the supplying or placing of the mach- 
 inery. 57 V. c./23, s. 20. 
 
 See Ont. Act, section 22. 
 
 81. Effect of failure to register lien within limited time. — 
 
 Every- lien which has not been duly registered under the provisions 
 of this chapter, shall absolutely cease to exist on the expiration of 
 the time hereinbefore limited for the registration thereof, unless in 
 the meantime proceedings are instituted and are being prosecuted 
 without delay to realize the claim under the provisions of this chap- 
 ter, and a certificate of the pending of such proceedings (which may 
 be granted by the judge), is duly registered. 57 V. c. 23, s. 21. 
 
 See Ont. Act, section 23. 
 
 22. (1) Within what time after registration of lien proceed- 
 ings to realize claim to be instituted, etc. — Every lien which has 
 been duly registered under the provisions of this chapter shall 
 absolutely cease to exist after the expiration of ninety days after the 
 work has been completed, or materials or machinery furnished, or 
 
REVISED STATUTES OF STEW BRUNSWICK. 359 
 
 / 
 
 wages earned, or the expiry of the period of credit, where such 
 period is mentioned in the claim of lien filed, unless in the mean- 
 time proceedings are instituted and are being prosecuted without 
 delay to realize the claim under the provisions of this chapter, and 
 a certificate of such proceedings (which may be granted by the 
 judge) is duly registered. 
 
 (2) Renewal of registration where proceedings not instituted. 
 
 - — The registration of a lien under this chapter shall cease to have 
 any effect at the expiration of six months 'from the registration 
 thereof, unless the lien shall be again registered within the same 
 period, except in the meantime proceedings have been instituted 
 to realize the claim and are being prosecuted without delay, and a 
 certificate of the pendency of such proceedings as aforesaid has 
 been duly registered as provided in the preceding sub-section. 57 
 V. e. 23, s. 22. 
 
 See Ont. Act, section 24. 
 
 Where the question is whether an alleged lien is in existence, an 
 order made by the trial Judge assuming to determine such question 
 without taking the evidence thereon, will on appeal be vacated, if 
 it appears that the lien was not prosecuted within the period pre- 
 scribed by this section. Boucher v. Belle Isle, 14 D. L. E. 146, 
 41 N. B. E. 509. 
 
 23. Effect of failure to institute proceedings within 90 days 
 after completion of work, etc., where no period of credit. — If there 
 is no period of credit, or if the date of the expiry of the period of 
 credit is not dated in the claim so filed, the lien shall cease to exist 
 upon the expiration of ninety days after work has been completed 
 or materials or machinery furnished, unless in the meantime pro- 
 ceedings have been instituted pursuant to section 22 of this chap- 
 ter and are being prosecuted without delay; and a certificate of the 
 pendency of such proceedings as aforesaid has been duly regis- 
 tered as provided in section 22. 57 V. c. 25, s. 23. 
 
 See Ont. Act, section 25. 
 
 24. Death of lienholder. — Assignment of right. — In the event 
 of the death of a lienholder his right of lien shall pass to his per- 
 
360 THE LAW bF MECHANICS' LIENS IN CANADA. 
 
 sonal representatives, and the right of a dienholder may be as- 
 signed by an instrument in writing. 57 V. c. 23, s. 24. 
 
 See Ont. Act, section 26. 
 
 25. Discharge of lien. — A lien may be discharged by a re- 
 ceipt signed by the claimant or, his agent, duly authorized in writ- 
 ing, acknowledging payment and verified by affidavit, and-filed in 
 the office of the registrar; such receipt shall be numbered and 
 entered by the registrar in the mechanics' lien book. The fees 
 shall be the same as for registering a claim for lien. 57 V. c. 23, 
 s. 25. 
 
 See Ont. Act, section 27. 
 
 26. Contractor to bear cost of registering discharge of lien. — 
 
 When there is a contract for the execution of the work as herein- 
 before mentioned, the registration of all discharges of liens shall 
 be at the cost of the contractor unless the judge otherwise orders. 
 57 V. c. 23, s. 26. 
 
 27. (1) Vacating registry on payment into court. — Upon ap- 
 plication to the judge, he may receive security or payment into 
 court in lieu of the amount claimed, and may thereupon vacate 
 the registry of the lien. 
 
 (2) The judge may annul the said registry upon any other 
 ground. 57 V. c. 23, s. 27. 
 
 See Ont. Act, section 27. 
 
 28. (1) Lien for work, etc., on chattels. — Sale of chattel. — 
 
 Every mechanic or other person who has bestowed money or skill 
 or materials upon any chattel or thing in the alteration and im- 
 provement in its properties, or which imparts an additional value 
 to it, so as thereby to be entitled by law to a lien upon such chattel 
 or thing for the amount or value of the money or skill and materi- 
 als bestowed, shall, while such lien exists, but not afterwards, in 
 case the amount' to which he is entitled remains unpaid for three 
 
REVISED STATUTES OF NEW BRUNSWICK. 361 
 
 months after the same ought to have been paid, have the right, in 
 addition to all other remedies provided by law, to sell the chattel 
 or thing in respect of which the lien exists, on giving one week's 
 notice by advertisement, by posters put up in three or more public 
 places adjacent to the place of sale, stating the name of the person 
 indebted, the amount of the debt, a description of the chattel or 
 thing to be sold, the time and place of sale (which shall be a public 
 place), and the name of the auctioneer, and leaving a notice in 
 writing two weeks prior to the sale at the last or known place of 
 'residence (if any) of the owner, if he be a resident of such county. 
 
 (2) Application of proceeds of sale. — iSueh mechanic or other 
 person shall apply the proceeds of the sale in payment of the 
 amount due to him and the cost of advertising and sale, and shall, 
 upon application, pay over any surplus to the person entitled 
 thereto. 57 V. c. 23, s. 28. 
 
 A special agreement does not of itself destroy the right to 
 retain the chattel except where the agreement contains some term 
 inconsistent With that right. Bathvrst Lumber Co. v. Nepisiguit 
 Lumber Co., (1911) 41 N. B. E. 41. 
 
 ■See Chapter XIV., " Mechanics' Liens upon Personalty," 
 ante. 
 
 29. Voluntary payment by owner to mechanics, etc*, to be 
 deemed a payment to contractor. — In case an owner chooses to 
 make payments to the mechanics, laborers, or other persons re- 
 ferred to in section 4, of this chapter, for or on account of, but not 
 exceeding, the amount of the just debts due to them for work 
 done or materials or machinery placed or furnished as therein 
 mentioned, without the proceedings mentioned in section 12, and 
 shall within three days afterwards give, by letter or otherwise, 
 written notice of such payment to the contractor or his agent, 
 such payment shall, as between the owner and the contractor, 
 be deemed to be a payment to the contractor, on the contract 
 generally, but not so as to affect the percentage to be retained 
 by the owner as provided by sections 7 and 9. 57 V. c. 23, s. 29. 
 
362 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 30. (1) Declaration by contractor. — Form of declaration. — 
 
 Before the contractor for any work shall be entitled to receive 
 a payment on his contract, it shall be his duty to produce to and 
 leave with the owner or his agent an affidavit or a statutory de- 
 claration by the contractor (or his agent, competent from per- 
 sonal knowledge to speak to the facts), stating that all persons, 
 who up to that time have been employed on the work and entitled 
 to wages, have been paid in full up to and inclusive of the four- 
 teenth day previous to such payment being made by the owner to 
 the contractor. The said affidavit or statutory declaration may 
 be to the 1 effect set forth in forms (5) and (6) in the schedule to 
 this chapter. 
 
 (2) Deduction from amount due contractor. — Or if it is ad- 
 mitted, or otherwise appears that any wages are unpaid, the con- 
 tractor shall not be entitled to receive the amount otherwise pay- 
 able to him without there being deducted therefrom an amount 
 sufficient to cover what is so unpaid to such wage-earners.' 
 
 (3) Protection of owner making payment under declaration 
 of contractor. — The said affidavit or statutory declaration shall 
 be conclusive evidence in favor of the owner making the payment; 
 unless at or before making the payment he had actual and express 
 notice of the wages not having been paid. 
 
 (4) Effect of payment made without declaration. — Any pay- 
 ment made on the contract without the owner having received 
 such affidavit, or statutory declaration, or with actual and express 
 notice of unpaid wages, shall not be a valid payment as against 
 persons whose wages are unpaid at the time of the payment on the 
 contract. 
 
 (5) Cases in which declaration not required.^The affidavit or 
 statutory declaration aforesaid shall not be necessary when the 
 architect's estimate for the month, in case the contract provides 
 for such estimate, does not exceed $100, or when the payment made 
 
REVISED STATUTES OF NEW BEUNSWICK. 363 
 
 in, good faith in respect of the progress of the work for the month 
 (in case the contract does not provide for estimates) does not 
 exceed $100. 
 
 Sub-section 1 of this section does not apply to a claim of lien 
 that is made after the contract has been completed, the section only 
 applies where a contractor is getting advances during the progress 
 of the work, that is where he is getting payment on progress esti- 
 mates. Brown v. Bathurst Lumber Co., Ltd., (1915) 28 D. L. E. 
 295. 
 
 31. Lien of wage-earners not to be defeated by garnishment, 
 execution, etc. — The' lien of wage-earners for thirty days' wages, 
 or for a balance equal to thirty days' wages, provided for by sec- 
 tions 6 and 9, shall not be defeated or impaired by any garnish- 
 ment had subsequently to the contract, or by any execution sub- 
 sequently issued, or by reason of the work contracted for being 
 unfinished, or of the price, for that or any other reason, not being 
 payable to the contractor. 57 V. c. 23, s. 31. 
 
 32. (1) Calculation of percentage where contract not com- 
 pleted. — In case of the contract not having been completely ful- 
 filled when lien is claimed by wage-earners, the percentage afore- 
 said shall be calculated on the work done or materials furnished 
 by the contractor. 
 
 (2) Lien on unfinished building. — Every wage-earner shall be 
 entitled to enforce a lien in respect of an unfinished building to 
 the same extent as if the building were finished. 
 
 (3) Percentage not to be applied in completion of work by 
 owner. — The percentage as aforesaid shall not, as against wage- 
 earners, be applied to the completion of the work by the owner 
 when the contractor makes default in completing the same, nor 
 to the payment of damages for the non-completion thereof by the 
 contractor. 57 V. c. 23, s. 32. . 
 
 33. Priority of claims of mechanics, etc., to advances under 
 mortgage during progress of work. — When a mortgage is given 
 
364 THE LAW OF, MECHANICS' LIENS IN CANADA. 
 
 to secure an intended loan of money, which money is to be paid 
 thereafter according or with reference to the progress of work 
 done, or materials or machinery placed or furnished as aforesaid, 
 on the land mortgaged, no advance thereafter made by the mort- 
 gagee shall have priority over the claims of mechanics, laborers 
 or other persons referred to in section 4 of this chapter as afore- 
 said, if the mortgagee at or before the time of such advance has 
 actual and express notice that there are any such claims as afore- 
 said unpaid; nor unless at the time of such advance he shall re- 
 quire and receive from the mortgagor or his contractor an affi- 
 davit or statutory declaration, stating that all such persons as 
 aforesaid have been paid in full up to the time of the advance. 
 The said affidavit or statutory declaration may be to the effect set 
 forth in form (7) in the schedule to this chapter. 57 V. c. 23, 
 s. 33. 
 
 34. Priority of claims of mechanics, etc., over purchaser or 
 mortgagee of unfinished building. — In case of the sale or mort- 
 gage of an unfinished house or building, if its being an unfinished 
 house or building is such as to be apparent to an ordinary obser- 
 ver, the purchaser, before paying his purchase money, or giving a 
 mortgage or other value or security for any balance of such 
 purchase money, or the mortgagee before advancing any money 
 on the security of a mortgage or otherwise, shall require from 
 the vendor (in the case of a sale, or from the mortgagor in the 
 case of a mortgage) a similar affidavit or statutory declaration 
 of the payment of all claims as is provided for in section 33 of 
 this chapter, and the purchaser or mortgagee shall not be entitled 
 to priority in respect to such claims, if at or before the time 
 aforesaid he had actual and express notice that there were such 
 claims as aforesaid unpaid; nor unless he shall have received 
 such affidavit or statutory declaration aforesaid. 57 V. c. 23, s. 34. 
 
 35. Where purchase money for land unpaid, vendor to be 
 deemed a mortgagee, etc. — In cases where there is, an agreement 
 
REVISED STATUTES OF NEW BRUNSWICK. 365 
 
 for the purchase of land, and the purchase money, or part there- 
 of, is unpaid, and no conveyance is made to the purchaser, the 
 purchaser shall for the purposes of this chapter, and within the 
 meaning thereof, be deemed a mortgagor and the seller a mort- 
 gagee. 57 V. c. 23, s. 35. 
 
 36. Effect of proceedings to enforce a lien on rights of mort- 
 gagee. — When any proceeding is taken to enforce a lien under 
 this chapter, in case a mortgagee of the land is served with a 
 written notice of such proceeding being had, he shall thereafter 
 be entitled to attend the proceedings; and in case of being so 
 served, he shall not thereafter, without 'the leave hereinafter 
 mentioned, take any proceedings for sale or foreclosure, nor 
 proceed to exercise any power of sale until the proceedings to 
 enforce the lien have terminated; but he may without leave 
 serve any notices required to be served in order to the due exer- 
 cise of the power. The leave aforesaid may be granted by the 
 judge, and shall only be granted by consent, or (if without 
 consent) on a reasonable consideration of all the circumstances 
 in view of what would be just to both parties. 57 V. c. 23, s. 36. 
 
 37. Address for service with claim of lien.-^Every claim of 
 lien shall give an address, at which all notices and, papers may 
 be served, and service of any notice or paper may be effected 
 by sending the same by registered letter to the address "so given. 
 57 V. c. 23, s. 37. , 
 
 38. Enforcement of lien. — Any person claiming a lien under 
 this chapter may enforce the same by means of the proceedings 
 hereinafter set forth. 57 V. c. 23, s. 38. 
 
 39. Statement of claim. — No writ of summons shall be neces- 
 sary, but the claimant may file a statement of claim with the 
 judge. 57 V. c. 23, s. 39. 
 
 See Ont. Act, section 31 (2). 
 
 40. Affidavit with statement of claim. — Certificate by Judge. — 
 
 Such statement of claim shall be verified by affidavit, Form (8) ; 
 
366 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 upon the filing of such statement of claim and affidavit the judge 
 shall issue a certificate in duplicate. 57 V. c. 23, s. 40. 
 
 See Ont. Act, section 31 (2). 
 
 41. [Registration of certificate. — Upon the registration of such 
 certificate in the office of the registrar, the action shall be deemed 
 to have been commenced as against the owner and all other par- 
 ties against whom the lien is claimed. 57 V. c. 23, s. 41. 
 
 See Ont. Act, section 31 (2). 
 
 The certificate, under this section, read with ss. 22, 38, 39, 40, 
 is the commencement of the lien proceedings against an owner. 
 Boucher v. Belle Isle, 14 D. L. E. 146, 41 N. B. E. 509. 
 
 42. Appointment of time and place for hearing claim. — Form 
 of certificate and appointment. — The judge shall also in and by 
 
 . such- certificate appoint a time and place at which he will inquire 
 into the claim of the plaintiff and take all necessary accounts; 
 such, certificate shall be issued in duplicate, and may be in the 
 Form (9) set forth in the schedule hereto. 57 V. c. 23, s. 42. 
 See Ont. Act, section 37. 
 
 43. Service of certificate and appointment.— A copy of such 
 certificate and appointment shall be served on the owner and 
 all other proper 1 parties, at least fifteen days before the day 
 therein named for taking the first proceedings thereunder. 57 
 V. c. 23, s. 43. 
 
 See Ont. Act, section 37. 
 
 44. Notice disputing claim. — Within ten days after the ser- 
 vices of such certificate and appointment any person served there- 
 with may file with the judge a notice in the Form (10) in the 
 schedule hereto disputing the plaintiff's right to a lien. 57 V. c. 
 23, s. 44.' 
 
 See Ont. Act, section 37. 
 
 45. Hearing of dispute as to claim, and certificate of finding. — 
 
 In ease a notice disputing the plaintiff's lien is filed, the judge 
 
REVISED STATUTES OF NEW BRUNSWICK. 367 
 
 shall, before taking any further proceedings, determine the ques- 
 tion raised by the notice, and if so required by any of the parties, 
 may thereupon issue a certificate of his finding. 57 V. c. 23, s. 45. 
 
 Where a notice disputing the lien is filed, the existence of the 
 lien must, as a distinct preliminary proceeding, be first and sepa- 
 rately determined by the court. Boucher v. Belle Isle, 14 D. L. E. 
 146, 41N.0B. E. 509. 
 
 46. Note instead of certificate of finding. — But if not required 
 to issue such last named certificate, it shall suffice for the judge 
 to enter in his book a note of his findings. 57 V. c. 23,' s. 46. 
 
 47. Verified statement of account by owner where proceedings 
 by sub-contractor. — Where no notice disputing the plaintiffs lien 
 is filed as aforesaid, and the proceedings are instituted by a sub- 
 contractor, the owner shall file with the judge a statement of 
 account, Form (11), verified by affidavit, Form (12), showing 
 what, if anything, he admits to be due for the satisfaction of the 
 plaintiff's lien and all other liens of the same class as plaintiffs; 
 such statement , shall be filed at least eight days before the day 
 named in the certificate mentioned in section 42 for taking ac- 
 counts, and in case the owner shall not file such statement, or shall 
 file an untrue statement, he may be ordered by the judge to pay all 
 costs incurred in establishing the true amount due and owing 
 from him. 57 V. c. 23, s. 47. 
 
 48. Verified statements of account by lien-holders. — All lien- 
 holders of the same class served with the appointment, or who 
 may claim to be entitled to the benefit of the- action, shall also 
 within six days from the day named in the appointment for taking 
 .ccounts, or within such further time as the judge may allow, file 
 with the judge a statement of account, showing the just and true 
 sum due to them respectively after giving credit for all sums in 
 cash, merchandise, or otherwise, to which the debtor is entitled to 
 credit on account of their respective claims, which account shall 
 
368 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 be verified by affidavit, and such account and affidavit may be in 
 the Forms (13) and (14) set out in the schedule hereto. 57 V. c. 
 
 23, s. 48. 
 
 49. Application by lienholder to prove claim where claim not 
 filed within limited time.— A lienholder who has registered his 
 lien, but has not filed his claim with the judge within the time 
 limited by the next preceding section, may apply to the judge to 
 be let in to prove his claim at any time before the amount realized 
 by the proceedings for the satisfaction of liens has been distributed, 
 and such application may be granted or refused, and upon such 
 terms as to costs or otherwise as may appear just. 57 V. c. 23, s.'49. 
 
 See Ont. Act, section 37 (6). 
 
 50. Hearing and proceedings on taking accounts. — Directions 
 to owner to pay money into bank. — Upon the return of the ap- 
 pointment to take accounts, the judge shall proceed to take an 
 
 , account of what is due from the owner and also what is due to the 
 respective lienholders who have duly filed their claims and shall also 
 tax to them respectively such costs as he may find them entitled to, 
 and shall settle their priorities, and shall make all other inquiries, 
 and take all necessary accounts for the adjustment of the rights of 
 the various parties, and shall thereupon make a report of the result 
 of such inquiries and accounts and shall direct that the money found 
 due by the owner shall be paid into a bank to the credit of the ac- 
 tion at the expiration of one month from the date of the report. 
 57 V. c. 23, s. 5.0. 
 
 See Ont. Act, section 37. 
 
 51. Costs where dispute as to amount due by owner. — In case 
 any dispute arises as to the amount due by the owner for the satis- 
 faction of liens under this chapter, or as to the amount claimed to 
 be due to any other lienholders, the costs occasioned by the dispute 
 shall be in the discretion of the judge, and shall be borne and paid 
 as he directs. 57 V. c. 23, s. 51. 
 
 See Ont. Act, sections 41, 42, 43, 44, and 45, as to costs. 
 
REVISED STATUTES OF NEW BRUNSWICK. 369 
 
 52. Order and certificate where finding in favor of owner. — 
 
 If nothing is found due by the owner, the judge may make an 
 order staying all further proceedings, and make such order as to 
 costs as may be just, and at the expiration of fourteen days there- 
 after may grant a certificate vacating the lien of the plaintiff, and 
 all other liens of the same class as the plaintiffs. 57 V. c. 23, s. 52. 
 See Ont. Act, sectibns 41, 42, 43, 44, and 45, as to costs. 
 
 53. Certificate vacating lien where payment by owner into 
 bank to credit of action. — Where anything is found due 'by the 
 owner he may on, or at any time before the day appointed for 
 payment, pay the amount found to be ■ due by him into a bank 
 named by the judge to the credit of the action, and thereupon, 
 upon the proof of such payment, the judge may grant ex parte a 
 certificate in Form (16) in the schedule to this chapter, vacating 
 the lien of the plaintiff, and all other liens of the same class as 
 plaintiffs. 57 V. c. 23, s. 53. 
 
 54. Costs on certificate vacating lien. — The judge may make 
 such order as to the owner's costs of obtaining and registering any 
 certificate vacating the lien as may be just. 57 V. c. 23, s. 54. 
 
 See Ont. Act, sections 41, 42, 43, 44, and 45, as to costs. 
 
 55. Effect of registration of certificate vacating lien. — Upon 
 the registration of a certificate vacating any lien or liens, the same 
 shall thereupon be vacated and discharged. 57 V. c. 23, s. 55. 
 
 See Ont. Act, section 27. 
 
 56. Payment out of bank. — Upon payment into a bank of 
 the amount which may be found due by the owner, the same shall 
 be (subject to the payment of any costs thereout, as may be or- 
 dered) paid out to the parties found entitled thereto by the report 
 of the judge. 57 V. c. 23,' s. 56. 
 
 57. Judgment for sale of land on default of payment by owner. 
 
 — In default of payment by the owner within the time directed 
 
 M.L.— 24 
 
370 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 by the report, 5 the plaintiff may apply to the said judge, who, upon 
 due proof of the default, may grant an order or judgment for the 
 sale of the land in question for the satisfaction of the lien of the 
 plaintiff, and other liens of the same class. 57 V. c. 33, s. 57. 
 
 See Ont. Act, section 37. 
 
 58. Form of judgment for sale. — The judgment for sale may 
 be in. Form (15), set forth in the schedule to this chapter. 57 V. 
 c. 23, s. 58. 
 
 59. Judgment to be entered with clerk of County Court. — 
 
 Such judgment for sale shall be entered as other judgments are 
 required to ^be entered in the office of the clerk of the County 
 Court and shall have the same force or effect as a judgment in the 
 ordinary case of an action between the said parties. 57 V. c. 23, 
 s. 59. 
 
 See Ont. Act, section 37. 
 
 60. Sale i by sheriff. — The sale under said judgment shall be 
 conducted by the sheriff who shall execute a deed to the purchaser ; 
 the proceedings on such sale shall be in the manner prescribed by 
 statute respecting sales of land made under writs of fieri facias. 
 57 V. c. 23, s. 60. 
 
 61. Report of sale by sheriff. — After the sale the sheriff shall 
 pay the proceeds into a bank to the credit of the action and make 
 a report upon the sale to the judge, who shall thereupon tax the 
 costs of the sale to the party entitled thereto, and shall apportion 
 the money realized among the parties entitled thereto, and may 
 order the moneys realized to be paid out of the bank to the parties 
 so found by him entitled thereto. 57 V. c. 23, s. 61. . 
 
 62. (1) Plaintiff to represent all lienholders in proceedings 
 for sale, etc. — For the proper proceedings to obtain an order for 
 sale and carrying out of the sale, and the apportionment of the 
 moneys realized thereunder, the plaintiff shall .be deemed suffici- 
 
REVISED STATUTES OF NEW BRUNSWICK. 371 
 
 ently to represent all other lienholders entitled to the benefit of 
 the action unless judge otherwise orders. 
 
 (2) Lienholders of a class to rank pari passu. — Where there 
 are several liens under this chapter against the same party each 
 class of the lienholders shall,' subject to the provisions of sections 
 6, 9 and 11, rank pari passu for the several amounts, and the pro- 
 ceeds of any sale shall, subject as aforesaid, be distributed amongst; 
 them pro rata according to' their several claims and rights. 
 
 (3) Adding parties. — The judge shall have power from time 
 to time to add any parties to the proceedings as he may deem 
 necessary or advisable, and may direct as to service of notices on 
 such new parties. 
 
 (4) Death of owner, etc. — The death of an owner or any other 
 defendant shall not cause the proceedings to abate, but they may 
 be continued against the personal representatives of such owner or 
 other defendant. 57 V. c. 23, s. 62. 
 
 63. Carriage of proceedings. — Any lienholder entitled to the 
 benefit of the action may apply for the carriage of the proceedings, 
 and the judge may thereupon make such order as to costs and 
 otherwise as may be just; and any lienholder who obtains the car- 
 riage of the proceedings shall, in respect of all proceedings taken 
 by him, be deemed to be the plaintiff in the action. 57 V. c. 23, 
 s. 63. 
 
 See Ont. Act, section 36. 
 
 64. Dismissal of proceedings for want of prosecution. — Any 
 
 person affected by the proceedings may apply to the judge to dis- 
 miss the same for want of due prosecution, and the judge may 
 make such order upon the application as to costs or 'otherwise as 
 may be just. 57 V. c. 23, s. 64. 
 
 65. Service on guardian of infant defendant. — Where any in- 
 fants are named as defendants the . appointments referred to in 
 
372 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 section 42 may be served upon the official guardian of such in- 
 fants. If there is no official guardian, the judge may appoint a 
 guardian ad litem. Such official guardian or guardian so ap- 
 pointed shall thereupon become, and be the guardian ad litem for 
 such infants in the proceedings, and it shall not be necessary to 
 serve any such infant defendant with any further or other proceed- 
 ings, and such infant shall be bound thereby. 57 V. c. 23, s. 65. 
 
 66. (1) Costs; — Reduction of costs where in excess of ten per 
 cent, of proceeds. — The fees and costs in all proceedings taken 
 under this chapter shall be such as are payable in respect of simi- 
 lar matters according to the ordinary procedure of the County 
 Court, but where the taxed costs of proceedings to enforce any. 
 lien are payable out of the amount realized by such proceedings 
 for the satisfaction of the lien, and shall exceed ten per cent, of the 
 amount realized, thereby for the satisfaction of the lien, such costs 
 shall be reduced proportionately by the judge so as the same shall 
 not in the aggregate exceed the said ten per cent., and no more 
 costs than such reduced amount shall be recoverable between party 
 and party or' solicitor and client. 
 
 (2) Limit to costs. — In no case shall the costs taxed against 
 any of the parties exceed ten per cent, of the amount in dispute 
 between such party and the party to whom the costs are awarded. 
 57 V. c. 23, s. 66. 
 
 See Ont. Act, sections 41, 42, 43, 44, and 45, as to costs. See 
 .also Z>o«aZ v. Segel, (1896) 32 C. L'.'J. 681. 
 
 67. Certificate for balance of claim where lien not paid in -full. 
 
 — After the amount of _ the lien shall be realized, any lienholder who 
 has proved a claim may apply to the Said judge, -upon notice to his 
 primary debtor, for judgment for the payment of any balance 
 which may remain due after deducting the amount received or 
 payable in respect of the lien, and thereupon the judge may grant 
 or refuse the application upon such terms as to costs or otherwise 
 as may be just; and in case he sees fit to grant the application he 
 
REVISED -STATUTES OF NEW BRUNSWICK. 373 
 
 will grant a certificate of the amount for which he finds the appli- 
 cant is entitled to judgment for debt and costs. 57 Y. c. 23, s. 67. 
 
 68. Certificate to be enforced as a judgment of County Court. — 
 
 Such certificate may be filed in the office of the clerk of the court., 
 and the same, whether the amount awarded- exceeds the ordinary 
 jurisdiction of the County Court or not, shall thereupon be entered 
 in the judgment book and shall thereupon become a judgment of 
 the_ court, and may be enforced in like manner as any other judg- 
 ment for the payment of money is enforced in the said court. 57 
 V. c. 23, s. 68, 
 
 See Ont. Act, section 47. 
 
 69. (1) Appeal. — Orders and certificates made by a judge 
 under this chapter shall be appealable to the Supreme Court in 
 like manner as any order or decision of a County Court judge in 
 ordinary actions is appealable. 
 
 (2) Stay of proceedings pending appeal.^In case of appeal 
 from any such order or certificate, the proceedings upon such 
 order or certificate may be stayed as in ordinary cases. 57 V. c. 
 23, s. 69. 
 
 See Ont. Act, section 40. 
 
 70. Proceeding to be deemed an action. — A proceeding under 
 this chapter shall be deemed to be an action. 57 V. c. 23, s. 70. 
 
 71. (1) Joinder of lienholders. — Proceedings by lienholder 
 deemed to be taken for whole class registering liens, etc. — Any 
 
 number of lienholders may join in one action or proceeding; and 
 any action or proceeding brought by a lienholder shall be taken to 
 be brought on behalf of all the lienholders of the same class: who 
 have registered their liens before or within fourteen days after the 
 commencement of the action, or who shall within the said fourteen 
 days, or within such further time as may be allowed for that pur- 
 pose, file with the judge of the County Court of the county where 
 
374 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the proceedings have been brought, a statement, entitled in or 
 referring to the said action, of their respective claims. 
 
 (2) Consolidation of proceedings. — Where separate proceed- 
 ings are instituted by lienholders, the judge may consolidate the 
 proceedings and give all such directions as to carrying on the same, 
 after consolidation, as he may deem necessary or desirable. 57 
 V. c. 23, s. 71. 
 
 See Ont. Act, section 35. , 
 
 But although the Act allows any number of lienholders to be 
 joined in one suit it does not enable a lienholder to consolidate 
 liens against several different buildings. O'Brien v. Fraser, (1918) 
 45 N. B. B. 539, 41 D. L. K. 324. 'Some decisions, hpwever, indi- 
 cate that the lien may attach against several pieces of property as 
 one individual claim. See Ontario Lime Assn. v. Grimwood, 22 
 0. L. E. 17; Poison v. Thomson, (1916) 29 D. L. E. 395. 
 
 72. Enlargement of time.— The judge may on good cause ex- 
 tend the time within which any proceedings are to be taken under 
 this chapter, upon application made either before or after the time 
 for taking any such proceedings 'has expired. 57 V. c. 23, s. 72. 
 
 73. Order by judge for payment out of money in bank. — 
 
 Any money paid into a bank under this chapter shall be paid out 
 by the order of the judge as he may direct. 57 V. c. 23, s. 73. 
 
 74. Provision for other judge to act in case of interest. — 
 
 In case the judge of the County Court in which the land, in respect 
 of which the lien is claimed is situate, is interested in any pro- 
 ceeding under this chapter, or related to any of the parties, the 
 'proceedings may be taken before any judge of another County 
 Court, who in so acting shall, for the purpose of such proceedings, 
 be deemed to be a judge of the County Court of the county in 
 which the lands in question are situate. 57 V. c. 23, s. 74. 
 
 75. Before whom affidavit may be sworn. — Any affidavit re- 
 quired under this chapter may be sworn before a justice of the 
 peace or commissioner for taking affidavits. 57 V. c. 23, s. 75. 
 
 See Ont. Act, section 17, note "j." 
 
REVISED STATUTES OF NEW BRUNSWICK. 375 
 
 76. Application of chapter. — The provisions of this chapter 
 shall not apply to contracts entered into prior to the first day of 
 August, A.D., 1894. 57 V. c. 23, s. 76. 
 
 See Ont. Act, section 50. 
 
 SCHEDULE. 
 
 Form 1 — Section 15. 
 Claim of Lien. 
 
 A. B. (name of claimant) of (here state residence of claim- 
 ant) (if so, as assignee of ), (stating name and residence 
 of assignor), under' the Mechanics' Lien Act, claims a lien upon 
 the estate oi s (here state the name and residence of owner of 
 the land upon which the lien is claimed), in the undermentioned 
 land in respect of the following work (or materials), that is to 
 say: (here give a short description of the nature of the work 
 done or the materials furnished for which the lien is claimed), 
 which work was (or is to be) done, (or materials were furnished), 
 for (here state the name and residence of the person upon whose 
 credit the work is done or materials furnished, on or before the 
 day of . The amount claimed as due (or to 
 become due) is the sum of $ 
 
 ( The following is a description of the 1 land to be charged: 
 (here set out a concise description of the land to be charged, 
 sufficient for the purpose of registration). (Where credit has been 
 given, insert) : The said work was done (or materials were fur- 
 nished) on credit, and the period of credit agreed to, expired (or 
 will expire) on the day of , A.D., 19 • . 
 
 Dated at , this day of , A.D., 19 . 
 
 (Signature of claimant.) 
 51 V. c. 23— Form (1). 
 
 Form 2 — Section 15. 
 
 Claim of Lien for Wages. 
 
 A. B. (name of claimant) of (here state residence of claim- 
 ant) (if so, as assignee of ), (stating name and residence 
 of assignor) "under the Mechanics' Lien Act, claims a lien upon 
 
376 ( THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the estate of (here state the name and residence of the owner of 
 the land upon which the lien is claimed), in the undermentioned 
 land in respect of days' work performed thereon while in, 
 
 the employment of (here state the name and residence of the 
 person upon whose credit the work was done), on or before the 
 day of 
 The amount claimed as due is the sum of $ 
 The following is a description of the land to be charged: 
 (here set out a concise description of the land to be charged, 
 sufficient for the purpose of registration). i 
 
 Dated at this day of , A.D., 19 . 
 
 (Signature of claimant.) 
 57 V. c. -23— Form '■ (2). 
 
 -Form 3 — Section 15. 
 Claim of Lien foe Wages by Several Claimants. 
 
 The following persons under the Mechanics' Lien Act claim a 
 lien upon the estate of (here state the name and residence of, the 
 owner of the land upon which the lien is claimed) in the under- 
 mentioned -lands in respect of wages for labor performed thereon, 
 while in the employment of (here state name a"nd residence or 
 names and residences of employers of the several persons claim- 
 ing the lien). 
 
 A. B., of (residence) $ , for days' wagBS. 
 
 C- D., of (residence) $ , for days' wages. 
 
 E. F., of (residence) $ , for days' wages. 
 
 The following is a description of the land to be charged : — 
 
 (Here set out a concise description of the land to be charged 
 sufficient for the purpose of registration.) 
 
 Dated at this day of , A.D., 19 . 
 
 (Signature of claimants.) 
 57 V. e. 23— Form (3). 
 
 ' Fohm 4 — Section 16. 
 
 Affidavit Verifying Claim. 
 
 I, A. B., named in the above (or annexed) claim, do make oath 
 that the said claim is true (or that the said claim so far, as relates 
 to me is true) or 
 
REVISED STATUTES OF NEW BRUNSWICK. 377 
 
 We, A. B. and C. D., named in the above (or annexed) claim, 
 do make oath, and each for himself, saith that the said claim so 
 far as it relates to him is true. 
 
 (Where the- affidavit is made by agent or assignee a clause 
 must be added to the following effect) : — 
 
 I have full knowledge of the facts set forth in the above (or 
 annexed) claim. 
 Sworn before me at in the 
 
 County of ' this day of Signature.) 
 
 , A.D., 19 . Or, > 
 
 The said A. B. and C. D. were severally sworn 
 before me at in the County 
 
 of this day of , 
 
 A.D., 19 . Or, 
 
 The said E. D. was sworn before me at | 
 
 , in the. County of this Y (Signature.) 
 
 day of , A.D., 19 . ) ■' 
 
 57 V. c. 23— Form (4). 
 
 (Signature.) 
 
 Fohm 5 — Section 30. 
 i 
 
 Contractor's Affidavit. 
 
 I, A. B., contractor (or sub-contractor, as the case may be), 
 for certain work on the land of , which may be known and 
 
 described as follows: (here describe land briefly), make oath and 
 say (or do solemnly declare) that I have paid all wages earned 
 in respect to or on the said- work up to and inclusive of the 14th 
 day preceding this day, that is to say, up to and inclusive of the 
 day of 
 Sworn (or declared), etc. 
 
 57 V. c. 23— Form (5). 
 
 Form 6— Section 30. 
 Affidavit of Agent. 
 
 I, A. B., agent for C D., contractor, (or sub-contractor, as the 
 case may be) in respect of certain work on the land of , 
 
378 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 which may be known and described as follows : (here describe land 
 briefly), make oath and say (or do solemnly declare) ; 
 
 That I know of my own personal knowledge, that all wages 
 earned in respect to or on the said work up to and inclusive of 
 the 14th day preceding this day, that is to say, up to and inclu- 
 sive of the day. of , have been paid. 
 
 Sworn to' (or declared), etc. 
 
 57 V. c. 23— Form (5). 
 
 Form 7 — Section 33. 
 Affidavit of Mortgagor. 
 
 I, A. B., the mortgagor named in a certain mortgage, bearing 
 date the day of , made between myself of the 
 
 first part and C. D., as mortgagee, and registered in the office of 
 the Eegistrar of Deeds for the County of , as No. , 
 
 make oath and say (or do solemnly declare) : — - 
 
 That all claims of mechanics, laborers and other ' persons re- 
 ferred to in the fourth section of the Mechanics' Lien Act, with 
 reference to work done, or materials or machinery placed or fur- 
 nished on the land included in the said mortgage have been paid 
 in full. I further say that all wages earned in respect to, or on 
 the said work, up to and inclusive of the 14th day preceding this 
 day, that is to say, up to and inclusive of the day 
 
 of , have been paid. 
 
 Sworn (or declared), etc. 
 
 57 V. c. 23— Form (7). 
 
 Form 8 — Section 40. 
 
 Affidavit Verifying Claim. 
 
 (Title of Court and Clause.) 
 
 I, make oath and say: that I have read (or heard 
 
 read) the foregoing statement of claim, and I say that the facts 
 
 therein set forth are, to the best of my knowledge and belief, true, 
 
 and the amount claimed to be due to me in, respect of my lien is 
 
 , the just and true amount due and owing to me, after giving credit 
 
REVISED STATUTES OF NEW BRUNSWICK. 379 
 
 for all sums of money or goods or merchandise to which (naming 
 the debtor) is entitled to credit as against me. 
 Sworn, etc. 
 
 57 V. c. 23— Form (8). 
 
 Form 9 — Section 42. 
 
 Certificate and Appointment by Judge. 
 
 (Title of Court and Clause.) 
 
 I certify that the above named plaintiff, claiming to be a 
 contractor with the defendant (naming the owner), or a sub- 
 contractor of the defendant, A. B. who is (or claims under C. D.) 
 a contractor with (naming the owner), has filed with me a state- 
 ment of his claim to enforce a mechanics' lien against (describe 
 the lands) and take notice that I will, at my chambers at the 
 of , in , proceed on , the day 
 
 of , to determine whether the plaintiff is entitled to the 
 
 lien in case his right thereto is disputed, and on the day 
 
 of I will, in case his right is undisputed, or if disputed, 
 
 is established before me, proceed and take all necessary accounts, 
 and tax costs, for the purpose of enforcing such lien, and if you 
 do not attend at the time and place appointed, and prove your 
 claim, if any, the proceedings will be taken in your absence, and 
 you may be deprived of all benefit of the proceedings. 
 Dated the day of , A.D., 19 . 
 
 Judge ■ of the - County Court. 
 
 (Signature.) 
 hi V. c. 23— Form (9). 
 
 Form 10 — Section 44. . 
 
 Notice Disputing Plaintiff's Eight of Lien. 
 (Title of Court and Cause.) 
 
 I dispute that the plaintiff is now entitled to a mechanics' lien 
 on the following grounds (setting forth the grounds shortly) : 
 
 (a) That the lien has not been prosecuted in due time, as 
 required by statute; 
 
380 the law of mechanics' liens in canada. 
 
 (b) That there is nothing due to plaintiff; 
 
 (c) That plaintiff's lien has been vacated and discharged; 
 
 (d) That there is nothing due by A. B. (the owner) for the 
 satisfaction of the plaintiff's claim. 
 
 (Signature of defendant, in person, or his solicitor.) 
 This notice is. filed by me, -A. B., defendant, in person, and 
 my address for service is (stating address within two miles of 
 Chambers or judge) (or, this notice is, filed by X. Z., of , 
 
 solicitor for the defendant, A. B.). 
 
 57 V. c. 23— Form (10). 
 
 Poem 11 — Section 47. 
 
 Statement of Accounts to be Filed by Owner. 
 
 (TitU of Court .and Cause.) 
 
 Amount of contract price for work contracted to be 
 performed (as plumber) on the lands in question 
 
 herein $500.00 
 
 Amount paid on account. 
 1903. 
 
 June 1. Paid E. F $200.00 
 
 July 5. Paid G. H. and B. K., sub-contrac- 
 tors of B. F 100.00 
 
 Total $300.00 
 
 Balance admitted to be due $200 . 00 
 
 for satisfaction of lien of plaintiff and other lienholders of same 
 class as plaintiff. 
 
 57 V. c. 23— Form (11). 
 
 Fokm 12 — Section 47. 
 
 Affidavit of Owner Verifying Account. 
 
 (Title of Court and Cause.) 
 
 I, A. B., of , being the owner of the lands in ques- 
 
 tion in this aetion, make oath and say: 
 
REVISED STATUTES OF NEW BRUNSWICK. 381 
 
 That I have in the foregoing account (or, account now shown 
 to me, marked "A") set forth a just and true account of the 
 amount of the contract price agreed to be paid by me to E. F., for 
 the work contracted to be done by him on the lands in question. 
 
 I have also jusjtly and truly set forth the payments made by 
 me on account thereof, and the persons (or person) to whom the 
 same were made, and the balance of $200, appearing by such 
 account to be still due and payable, is the just and true sum now 
 due and owing by me in respect of my contract with the said E. F. 
 
 Sworn, etc. , 57 V. c. 23— Form (12). 
 
 Form 13 — .Section 48. 
 Statement of Account by Lienholder. 
 
 (Title of Court and Cause.) 
 
 E. F. 
 
 To G. H., 
 1903. Dr. 
 
 Jan. 1. To 12 dozen brackets $12.00 
 
 Feb. 3. To 50 lbs. nails 5.00 
 
 Oct. 3. To 40 sheets glass 40.00 
 
 $57.00 
 1903. Cr. 
 
 Feb. 4. By cash $ 4.00 
 
 , , June 1. By cash 20.00 24.00 
 
 $33.00 
 57 V. c. 23— Form (13). 
 
 Form 14 — Section 48. 
 
 Affidavit of Lienholder Verifying Claim. 
 
 (Title of Court and Cause.) 
 
 I, G. EL, of (address and occupation) make oath and say: — 
 I have in the foregoing account (or, in the account now 
 shown to me, marked "A") set forth a just and true account of 
 
382 
 
 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 the amount due and owing to me by E. H. (the owner) (or, by 
 E. E.j who is a sub-contractor with the defendant L. G.) (the 
 owner) of the lands in question, and I have in the said account 
 given credit for all sums in cash or merchandise or otherwise, to 
 which the said E. P. is justly entitled to credit in respect of the 
 said account, and the sum of ($33) appearing by said account to 
 be due to me as the amount (or balance) of such account, is now 
 justly due and owing to me. 
 
 Sworn, etc. (address of claimant or his solicitor fot service to 
 be set forth as in Form (10)). 
 
 57 V. c. 23— Form (14). 
 
 Form 15 — Section 58. 
 (Title of Court and Cauqe.) 
 t)ate 
 
 Upon motion of the. aforesaid plaintiff, and upon hearing read 
 the statement, of claim, and the report made herein on the 
 day of , it is ordered and adjudged that the land in 
 
 question (describe the lands) be forthwith sold by the sheriff of 
 the said County ; that the purchase money be paid 
 
 into the bank of to the credit of this cause ; that the pro- 
 
 ceeds of the said sale be paid by the court to the person who may 
 be found entitled thereto by the judge pf the said court. 
 
 Entered, this day of , A.D., 19 . 
 
 Entered this 
 
 (Signature.) 
 Judge, etc. 
 day of , A.D., 19 . 
 
 (Signature.) 
 
 Clerk. 
 57 V. c. 23— Form (15). 
 
revised statutes of new brunswick. 383 
 
 Form 16 — Section 53. 
 
 Certificate Vacating Lien. 
 
 , (Title of Court and Cause.) 
 
 Date 
 
 I certify that the defendant A. B. (the owner) has paid into 
 the Bank of to the credit of this cause all moneys due 
 
 and payable by him for the satisfaction of the liens of the plain- 
 tiffs and E. F., G. H., J. K., and J. L., and their liens are hereby 
 vacated and discharged so far as the same affect the following 
 lands: (describe lands). 
 
 (Signature.) 
 Judge, etc. 
 
 57 V. c. 23— Form (16). 
 
 Form 17 — Section 52. 
 
 Certificate Vacating Lien. 
 
 (Title of Court and Cause.) 
 
 Date 
 
 I certify that I have enquired and find that the plaintiff is not 
 entitled to any mechanics' Ken upon the lands of the defendant 
 A. B. (the owner), and that his claim for lien is vacated and dis- 
 charged so far as the same affects the following lands: (describe 
 lands). 
 
 (Signature.) 
 Judge, etc. 
 
 57 V. c. 23— Form (17). 
 
384 the law of mechanics' liens in' canada. 
 
 Form 18 — .Section 67. 
 
 Certificate for Judgment for Balance after Eealization. 
 
 of Lien. 
 
 (Title of Court and Cause.) 
 
 , Date 
 
 Upon the application of A. B., on due notice to C. B., I do 
 certify that A. B. is entitled nnder the provisions of the Mechan- 
 ics' Lien Act to recover against C. D. $ debt and $ 
 costs, and that upon filing this certificate in the^ office of the clerk 
 of this x c,ourt he is entitled to enforce the same as a judgment of the 
 court. 
 
 (Signature.) 
 Judge, etc. 
 
 57 V. c. 23— Form (18). 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 
 
 CHAPTEE 2. 
 
 An Act to Amend, and Consolidate the Mechanics' Lien Act. 
 (Passed the 15th day of April, A.D., 1915), 
 
 Section. 
 
 1. Title. 
 
 2. Interpretation. 
 
 (a) Contractor. 
 
 (b) Material. 
 
 (c) Owner. 
 
 (d) Eegistrar. 
 
 (e) Sub-contractor. 
 
 (f) Wages. 
 
 3. Act not applicable certain 
 
 cases. 
 
 4. (1) 
 
 agreements 
 
 Certain 
 void. 
 (2) Limitation. 
 
 5. Agreement not defined party 
 
 entitled to lien. 
 
 6. When lien arises. 
 
 7. Property married woman. 
 
 8. (1) When it attaches. 
 
 (2) Upon what lien at- 
 taches. 
 
 Provision respecting 
 prior mortgage. 
 Lien dates from regis- 
 tration. 
 
 9. When property destroyed by 
 
 fire^ 
 10. Amount lien limited. 
 m.l. — 25 
 
 (3) 
 
 (4) 
 
 Sections 
 
 11. Amount in case of person 
 
 other than contractor. 
 
 12. (1) Deductions in favor of 
 
 contractors, etc. 
 
 (2) Amount to be retained. 
 
 (3) Lien a charge. 
 
 (4) Payments made befdre 
 notice. 
 
 13. Payments when allowed 
 
 against contractor. 
 1,4. Priority of lien. 
 
 15. Lien of mechanic, for wages, 
 
 priority of. 
 
 16. Materials not to be removed. 
 IT. Eegistration of lien. 
 
 18. Contents and form of claim. 
 
 19. Union of claims. 
 
 20. Irregularity not to invali- 
 
 date. 
 
 21. Claim to be registered. 
 
 22. Eegistry Act applies. 
 
 23. Eegistration in "other cases. 
 
 24. When lien expires unless ac- 
 
 tion brought. 
 
 25. When registered lien ex- 
 
 pires. 
 
 26. Lien ceases in certain cases 
 
 in 90 days. 
 
386 
 
 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Section. 
 
 27. Lien assignable. 
 
 28. Provisions respecting dis- 
 
 charge and vacating 
 lien. 
 
 29. Taking security, etc., not to 
 
 affect lien. 
 
 30. Enforcement of lien where 
 
 time extended. 
 
 31. Lienholder may demand in- 
 
 spection of contract. 
 
 32. Provisions respecting liens 
 
 on mining claims. 
 
 33. Jurisdiction of Court and 
 
 procedure. 
 34.- Trial and powers of Court.. 
 
 Section. 
 
 35. Notice of Triad. 
 
 36. Consolidation of actions. 
 
 37. Carriage of action. 
 
 38. Judgment in petty cases. 
 
 39. Appeal. 
 
 40. Costs. 
 
 41. Law stamps. 
 
 42. Deficiency after sale recover- 
 
 able. 
 
 43. Certificate vacating lien. 
 
 44. Mechanics' lien on chattels. 
 
 45. Personal judgment. 
 
 46. .Forms. 
 
 47. Acts repealed. 
 
 Be it enacted by the Governor, Council, and Assembly, as 
 follows :— 
 
 Shokt Title. 
 
 1. Title. — This Act may be cited as "The Mechanics' Lien 
 
 Act." 
 
 2. Interpretation. — In this Act — 
 
 (a) " Contractor." — " Contractor," shall mean a person con- 
 tracting with or employed directly by the owner or his agent 
 for the doing of work or service or placing or furnishing 
 materials for any of the purposes mentioned in this Act; 
 
 Ob) " Material."—" Material " or " materials " ' shall in- 
 clude every kind of movable property; 
 
 (c) " Owner." — " Owner " shall extend to any person, body 
 corporate or politic, including a municipal corporation and a 
 railway company, having any estate or interest in the land 
 upon or in respect of which the work or service is done, or 
 materials are placed or furnished, at whose request and 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 387 
 
 (i) upon whose credit, or 
 (ii) on whose behalf, or 
 (iii) with whose privity and consent, or 
 (iv) for whose direct benefit 
 
 work or service is performed or materials are placed or fur- 
 nished, and all persons claiming under him or them whose 
 rights are acquired after the work or service in respect of which 
 the lien is claimed is commenced or the materials furnished 
 have been commenced to be furnished; 
 
 (d) "Registrar." — "Registrar" means registrar of deeds; 
 
 (e) " Sub-contractor." i— " Sub-contractor " shall mean a 
 person not contracting with or employed directly by the owner 
 or his agent for the purposes aforesaid, but contracting with 
 or employed by a contractor, or under him by another sub- 
 contractor ; 
 
 (f) "Wages." — "Wages" shall mean money earned by a 
 mechanic or laborer for work done, whether by the day or other 
 time or as piece work. 
 
 See Ont. Act, section 2, and notes thereunder. 
 
 A foreign corporation would be entitled to acquire a lien under 
 this Act. See Bank of Montreal v. Condon, (1896) 11 Man. L. E. 
 366. 
 
 3. Act not applicable to certain cases. — Nothing in this Act 
 shall extend to any public street or highway, or to any work or 
 improvement done or caused to be done by a municipal corporation 
 thereon. 
 
 4. (1) Certain agreements void. — Every agreement, verbal or 
 written, expressed or implied, on the part of any workman, ser- 
 vant, laborer, mechanic or other person employed in any kind of 
 manual labor intended to be dealt with in this Act, that this Act 
 shall not apply, or that the remedies provided by it shall not be 
 available for the benefit of such person, shall be null and void. 
 
3.88 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (2) Limitation. — This section shall not apply to a manager, 
 officer or foreman, or to any other person whose wages are more 
 than $5.00 a day. 
 
 5. Agreement not defined, party entitled to lien. — No agree- 
 ment shall deprive any person otherwise entitled to a lien nnder 
 this Act who is not a party to the agreement, of the benefit of the 
 lien, but it shall attach, notwithstanding such agreement. 
 
 6. When lien arises. — Unless he signs an express agreement to 
 the contrary, and in that case subject to the provisions of section 
 4, any person who performs any work or service upon or in respect 
 of, or places or furnishes any material to be used in the making, 
 constructing, erecting, fitting, altering, improving or repairing of 
 any erection, building, railway, land, wharf, pier, bulkhead, bridge, 
 tres'tlework, vault, mine, well, excavation, fence, sidewalk, pave- 
 ment, fountain, fishpond, drain, sewer, aqueduct, roadbed, way, 
 fruit or ornamental trees/or the appurtenances to any of them, for 
 any. owner, contractor, or .sub-contractor, shall by virtue thereof 
 have a lien for the price of such wor-k, service or materials upon 
 the erection, building, railway, land, wharf, pier, bulkhead, bridge, 
 trestlework, vault, mine, well, excavation, fence, sidewalk, paving, 
 fountain, fishpond, drain, sewer, aqueduct, roadbed, way, fruit or 
 ornamental' trees, and appurtenances, and the land occupied there- 
 by or enjoyed therewith, or upon or in respect of which such work 
 or service is performed, or upon which such materials are placed or 
 furnished to be used, limited, however, in amountto the sum justly 
 due to the person entitled to the lien and to the sum justly owing 
 (except as 1 herein provided) by the owner. 
 
 (The foregoing section is as amended by c. 72 of the Acts of 
 1917). 
 
 See Ont. Act, section 6, and cases cited. 
 
 As to what constitutes a building or erection, see a large num- 
 ber 7 of cases cited in A-damson v. Rogers, (1895) 22 0. A. K. 415. 
 
 G. & W., who were awarded a contract to place heating appar- 
 atus in a hotel building owned by the defendant D., ordered 
 materials, required from plaintiffs in a letter stating: "We have 
 secured contract for hotel which requires above goods." Held, 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 389 
 
 that these words sufficiently identified the building for which the 
 goods were required. Dominion Radiator Co. v. Cann et al., 
 (1904) 37 N. S. R. 237. 
 
 The word " mine " used as affecting claims of others than 
 laborers includes the areas and the deposit of ore, and the parcel 
 of land on which such deposit is found ; and the word " appur- 
 tenances" refers to articles of movable property in working the 
 mine. Pelton v. Black Hawk Mining Co., (1903) 40 N. S. E. 
 385. 
 
 j Certain loads of gravel had been placed on the street in front 
 of a sidewalk adjoining the building which was being repaired. 
 As the gravel was not " placed on the land " it was held that it did 
 not come within the terms of the Act. Materials placed near 
 the land cannot be treated as within 'the terms of the section. 
 Brookfield v. Hopgood, (1919) decision of Wallace, Co. J., Hali- 
 fax, unreported. 
 
 " It appears that the builder at first paid the sub-contractors 
 promptly and then suddenly stopped paying them. Subsequently 
 one of them called on him twice for money, but unsuccessfully. 
 The last payment by the defendant to the builder was on the 10th 
 June. The builder had then represented to the wife of the de- 
 fendant, who was the active agent of the defendant, that the work 
 was all finished. Obviously this was a deliberately false statement, 
 and made for the purpose of getting payment from the owner. 
 Soon after it was made the builder " left town/' having failed to 
 pay any more money to the sub-contractor, or to do anything fur- 
 ther in relation to the contract. There could scarcely be stronger 
 evidence of an abandonment of a contract, unless the builder had 
 given a formal written notice to the owner that he had abandoned 
 the contract." Dooson v. Major, (1917) ; decision of Wallace, 
 Co.J., Halifax, unreported. 
 
 The hauling of the material to the land is essential to the 
 construction, and is as much work done in respect to the construc- 
 tion of a building as the labor of a hod-carrier who may at times 
 be obliged to leave the building and procure bricks or mortar some 
 distance from the land in question, and who nevertheless would 
 have a lien for labor so performed. The charge for the teamster's 
 work is, therefore, allowed. Falconer v. Harilen, (1920) ; Wallace, 
 Co.J., Halifax, K.S. (unreported). 
 
 7. Property married woman. — Where work or service is done 
 or materials furnished upon or in respect of the land of a mar- 
 
390 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 ried woman with the privity and consent of her husband he shall 
 be deemed to be actjng as well for himself so as to bind his own 
 interest, and also as her agent for the purpose of this Act, unless 
 before doing such work or service or furnishing such materials the 
 person doing or furnishing the same shall have had notice to the 
 
 contrary. 
 
 i 
 
 8. (1) When it attaches. — The lien shall attach upon the 
 estate or interest of the owner in the property mentioned in sec- 
 tion 6. 
 
 (2) Upon what lien attaches. — Where the estate or interest 
 upon which the lien attaches is leasehold, the fee simple may also, 
 with the consent of the owner thereof, be subject to the lien, pro- 
 vided that such consent is testified by the signature of the owner 
 upon the claim of lien at the time of the registering thereof, veri- 
 fied by affidavit. 
 
 (3) Provision respecting prior mortgage. — Where the land 
 upon or in respect of which any work or service is performed, or 
 materials are placed or furnished to be used, is incumbered by a 
 prior mortgage or other charge; and 
 
 (a) The selling value of the land is increased by the work 
 or service, or by the furnishing or placing of the materials; 
 and 
 
 (b) The mortgagee consents to the performance .of such 
 work or service or the furnishing, or placing of such materials ; 
 
 the lien shall attach upon such increased value in priority to the 
 mortgage or other charge. , 
 
 (4) Lien dates from registration. — Such lien, upon registra- 
 tion, as in this Act provided, shall attach and take effect from 
 the date of the registration as against subsequent purchasers, mort-. 
 gagees, or other incumbrancers. 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 391 
 
 9. When property destroyed by fire. — -Where any of the pro- 
 perty upon which a lien attaches is wholly or partly destroyed by 
 fire any money received by reason of any insurance thereon by an 
 owner or prior -mortgagee or chargee shall take the place of the 
 property so destroyed, and shall be subject to the claims of all per- 
 sons for liens to the same extent as if such money was realized by 
 a sale of such property in an action to enforce the lien. 
 
 10. Amount of lien limited.— Save as herein otherwise pro-' 
 vided, ' the lieri shall not attach so as to make the owner liable for 
 a greater sum than the sum payable to the contractor. 
 
 A sub-contractor cannot share in, the statutory percentage re^ 
 ■ tained or paid intp court, by the owner unless there is by the terms 
 of the contract money payable by the owner to the contractor. 
 The right of the sub-contractor, unlike the right of the wage-earner, 
 is measured by the amount justly due by the owner to the con- 
 tractor, and the owner would not be liable to the sub-contractor for' 
 •j a greater sum than is payable to the contractor. Boyce v. Kennedy, 
 (1919) ; Wallace, Co. J., Halifax, N.S. (unreported). 
 
 11. Amount in case of person other than contractor. — Save as 
 herein otherwise provided, where the lien is claimed by any person 
 other than the contractor the amount which may be claimed in 
 respect thereof shall be limited to the amount owing to the con- 
 tractor or sub-contractor or other person for whom the work or 
 service has been done or the materials placed or furnished. 
 
 See amendment made by e. 43 of the Acts of 1920. 
 See McDonald- v. Dominion Iron & Steel Co., (1903) 40 N. S. 
 E. 465. 
 
 12. (1) Deductions in favor of contraetors, etc. — In all cases 
 the person primarily liable upon any contract under or by virtue 
 of which a lien may arise shall, as the work is done or materials 
 are furnished under the contract, deduct from any payments to 
 be made by him in respect of the contract, and retain for a period 
 of thirty days after the completion or abandonment of the con- 
 tract, twenty per cent, of the value of the work, service and ma- 
 terials actually done, placed or furnished as mentioned in section 
 
392 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 6, and such value shall be calculated on the basis of the contract 
 price, or if there is no specific contract price, then on the basis of 
 the actual value of the work, service, or materials. 
 
 (2) Amount to be retained. — Where the contract price or 
 actual value exceeds $15,000,, the amount to be retained shall be 
 fifteen per cent, instead of twenty per cent. 
 
 (3) Lien a charge. — The lien shall be a charge upon the 
 amount directed to be retained by this section in favor of sub- 
 contractors whose liens are derived under persons to whom such 
 moneys so required to be retained are respectively payable. 
 
 (4) Payments made before notice.^All payments up to eighty 
 per Cent, or eighty-five per cent, where the contract price or actual 
 value exceeds $15,000, of such price or value made in good faith by 
 an owner to a contractor, or by a contractor to a sub-contractor, or 
 by one sub-contractor to another sub-contractor, before notice in 
 writing of such lien given by the person claiming the lien" to him, 
 shall operate as a discharge pro tanto of the lien. 
 
 (5) Payment of the percentage required to be retained under 
 sub-sections 1 and 2 may be validly made so as to discharge all 
 liens or charges in respect thereof after the expiration of . the 
 period of thirty days mentioned in sub-section 1, unless in the 
 meantime proceedings have been commenced to enforce any lien 
 or charge against such percentage as hereinafter provided. 
 
 B. contracted with the defendant company to transfer to 
 them a quantity of land, and to erect and equip a mill and to do 
 other work, for an agreed sum in bonds and shares of the com- 
 pany and other considerations. It was subsequently agreed, 
 verbally, that a portion of the proceeds of the bonds and shares 
 transferred to B. should be retained by a trust company as secur- 
 ity for the performance by B- of his contract for the erection of 
 the mill, to be paid out as the work progressed. In an action 
 against the company by the sub-contractor by whom the machinery 
 for the mill was supplied: — Held, that in the absence of notice, 
 the company are not liable to plaintiff for failure to retain out of 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 393 
 
 the moneys paid to B. the percentage required to be retained under 
 the provisions of the Act. Also that the transaction which took 
 place when the title to the property was transferred to the com- 
 pany, and the bonds and shares, the consideration therefor, were 
 delivered to B., was not one within the provisions of section 8 of 
 the Act and that the company was not required to retain anything 
 on that date for the benefit of future contractors. Smith Co. v. 
 Sissiboo, etc., Co., (1903) 36 N. S. E. 348. 
 
 On appeal to the Supreme Court of Canada this judgment was 
 affirmed, and it was held that section 8 which requires the owner 
 to retain fifteen per cent, of the contract price until the work is 
 completed did not apply,' as no price for building the mill was 
 specified, but the price was associated with other considerations 
 from which it could not be separated. Smith Co. v. Sissiboo, etc., 
 Co., (1904) 35 S. C. K. 93. 
 
 C. contracted with the owner of the Queen Hotel to do certain 
 work in connection with the hotel for the sum of $7,200. A sub- 
 contract was made by C. with M. to do certain work in connection 
 with the heating system for the sum of $250. M. in turn made a 
 sub-contract with plaintiff to do the latter work for the sum of 
 $200. 
 
 M. having assigned, plaintiff asserted a lien upon the hotel 
 property for the amount of his contract, with the sum of $21.90 
 for extras, making in all $221.90. It appeared that the balance 
 due by C. to M. was $75. It was held by Wallace, Co. J., that 
 under the circumstances in evidence plaintiff's lien was limited to 
 the sum of $75. An appeal from this judgment was dismissed by 
 the Supreme Court of Nova Scotia. Briggs v. Mclnnis, (1919) 
 53 X. S. R. 417. 
 
 " It is contended that under this section the phrase ' person 
 primarily liable ' must refer to the owner. But it cannot have 
 such a meaning in this section when dealing with contracts of sub- 
 contractors made with the main' contractor, because the section in 
 express terms requires the person primarily liable to make the 
 deductions from any payments made by him in respect to such 
 contract, that is to say, in this case, such sub-contract. But the 
 owner in the present case was 'not required to make any payments 
 to the sub-contractor, and, therefore, the ' person primarily 
 liable ' in this ease must be the person with whom the sub-con trac- 
 tor made his contract, — that is to say, the main contractor." 
 
394 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Briggs et al. v. Mclnnis et al, supra, per Wallace, Co. J., Halifax, 
 KB. 
 
 The above section has since been amended. See c. 43 of the 
 K S. Acts of 1920. 
 
 13. Payments, when allowed against contractor. — If an owner, 
 contractor or sub-contractor makes a payment to any person en- 
 titled to a lien, under section 6 for or on account of any debt justly 
 due to him for work or service done or for materials placed or fur- 
 nished to be used as therein mentioned, for which he is not prim- 
 arily liable, and within three days afterwards gives, by letter or 
 otherwise; written notice of such payment to the person primarily 
 liable, or his agent, such, payment shall be deemed to be a pay- 
 ment on his contract generally to the contractor or sub-contractor 
 primarily liable, but not so as to affect the percentage to be re- 
 tained by the owner as provided by section 12. 
 
 14. (1) Priority of lien. — The lien shall have priority over 
 all judgments, executions, assignments, attachments, garnish- 
 ments and receiving orders recovered, issued or made after such 
 lien arises, and over all payments or advances made on account of 
 any conveyance or mortgage after notice in writing of such lien 
 to the person making such payments or after registration of a 
 claim for such lien as hereinafter provided. 
 
 (2) Where there is an agreement for the purchase of land, 
 and the purchase money or part thereof is unpaid, and no con- 
 veyance has been made to the purchaser, he shall, for the pur- 
 poses of this Act, be deemed a mortgagor and the seller a mort^ 
 gagee. 
 
 (3) Except where it is otherwise provided by this Act no 
 person entitled to a lien on any property or money shall be en- 
 titled to any priority or preference over another person of the 
 same class entitled to a lien on such property or money, and each 
 class of lienholders shall rank pari passu for their several amounts, 
 and the proceeds of any sale shall be distributed among them pro 
 rata according to their several classes and rights. 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 395 
 
 15. (1) lien of mechanics, etc., for wages, priority of. — 
 
 Every mechanic or laborer whose lien is for wages shall, to the 
 extent of thirty days' wages, have priority over all other liens de- 
 rived through the same contractor or sub-contractor to the extent 
 of and on the twenty per cent, or fifteen per cent., as the case may 
 be, directed to be retained by section 12 to which the contractor or 
 sub-contractor, through whom such lien is derived is entitled, and 
 all such mechanics and laborers shall rank thereon pari passu. 
 
 (2) Every wage-earner shall be entitled to enforce a lien in 
 respect of a contract not completely fulfilled. 
 
 (3) If the contract has not been completed when th& lien is 
 claimed by a ,wage-earner, the percentage shall be calculated on 
 the value of the work done or materials furnished by the contrac- 
 tor or sub-contractor by whom such wage-earner is employed, hav- 
 ing regard to the contract price, if any. 
 
 (4) Where the contractor' or sub-contractor makes default in 
 completing his contract the percentage shall not, as against a 
 wage-earner claiming a lien, be applied by the owner or contractor 
 to the completion of the contract or for 'any other purpose, nor to 
 the payment of damages for the non-completion of the contract by 
 the* contractor or sub-contractor, nor in payment or satisfaction 
 of any claim against the contractor or sub-contractor. 
 
 (5) Every device by an owner, contractor or sub-contractor to 
 defeat the priority given to a wage-earner for his wages, and every 
 payment made for the purpose of defeating or impairing a lien, 
 shall be null and void. ' 
 
 See McDonald v. Dominion Iron & Steel Co., (1903) 40 N. S. 
 E. 465. 
 
 Material. 
 
 16. (1) Materials not to be removed. — During the continu- 
 ance of a lien no part' of the material affected thereby shall be 
 removed to the prejudice of the lien. 
 
 (2) Material actually brought upon any land to be used in 
 connection with such land for ' any of the purposes enumerated in 
 
396 THE LAW OF MECHANICS' MENS IN CANADA. 
 
 section 6, shall be subject to a lien in favor of the persons furnish- 
 ing it until placed in the building, erection or work, and shall not 
 be subject to execution or other process to enforce any debt other 
 than for the purchase thereof, due to the person furnishing the 
 same. 
 
 Eegisteation of Claim. 
 
 17. Registration of lien.' — A claim for lien may be registered 
 in the registry of deeds for the registration district in which the 
 land is situated. 
 
 18. (1) Contents and form of claim. — A claim for lien shall 
 state— 
 
 (a) the name and residence of the person claiming the 
 lien, and of the owner of the property to be charged (or the 
 person whom the person claiming the lien, or his agent, be- 
 lieves to be the owner of the property proposed to be charged) 
 and of the person for. whom and on whose credit the work or 
 service was, or is to be, done, or materials furnished or placed, 
 and the time within which the same was, or is to be done, or 
 furnished or placed ; 
 
 (b) a short description of the work or service done, or to 
 be done, or materials furnished or placed, or to be furnished 
 or placed; 
 
 (c) the sum claimed as due or to become due; 
 
 (d) a description of the land or property to be charged; 
 
 (e) the date of expiry of the period of credit, if any, 
 agreed upon by the lienholder for payment for his work or 
 service or materials, where credit has been given. 
 
 (2) The claim may be in one of the forms A or B in the 
 schedule to this chapter, or to the like effect, and shall be verified 
 by the affidavit (form C) of the person claiming the lien, or of his 
 agent or assignee having a personal knowledge of the matters 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 397 
 
 required to be verified, and the affidavit of the agent or assignee 
 shall state that he has such knowledge. 
 
 (3) Where it is desired to register a claim for lien against the 
 lands of a railway company, it shall be a sufficient description of 
 such lands to describe them as the lands of such railway company, 
 and every such claim for lien shall be registered in the registry of 
 deeds for the registration district in which such lien is claimed to 
 have arisen. 
 
 Sub-section 1 (d) was substituted for former sub-section by c. 
 72, s. 2, of the Acts of 19'17. 
 
 As to error in designating owner, not being fatal to lien, where 
 property can.be easily identified, see note to s. 23, post. 
 
 19. Union of claims. — A claim for lien may include claims 
 against any number of properties, and any number of persons 
 claiming liens on the same property may unite therein (form D), 
 but when more than one lien is included in one claim each lien 
 shall be verified by affidavit (form C), as provided in the next 
 preceding section of this Act. 
 
 20. (1) Irregularity not to invalidate. — Substantial compli- 
 ance only with the next two preceding sections of this Act shall be 
 required, and no lien shall be invalidated by reason of the failure 
 to comply with any of the requisites of such sections, unless in m the 
 opinion of the court or judge who has power to try the action under 
 this Act, the owner, contractor, or sub-contractor, or mortgagee or 
 other person, as the case may be, is prejudiced thereby and then 
 only to the extent to which he is thereby prejudiced. 
 
 (2) Nothing in this section contained shall be construed as 
 dispensing with the registration required by this Act. 
 
 21. Claim to be registered. — The registrar, upon payment of 
 a fee of twenty-five cents, shall register the claim so that the same 
 may appear as an incumbrance against the land so described. 
 
 22. Registry Act applies. — Where the claim for lien is so regis- 
 tered the person entitled to such lien shall be deemed the purchaser 
 pro tanto and within the provisions of "The Eegistry Act," but, 
 
398 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 except as in this Act provided, "The Kegistry Act" shall not 
 apply to any lien arising under this Act. 
 
 23. (1) Registration in other cases. — A claim for lien by a 
 contractor or sub-contractor, in cases not otherwise provided for, 
 may be registered before or during the performance of the con- 
 tract, or within thirty days after the completion or abandonment 
 thereof. 
 
 (2) A claim for lien for materials may be registered before 
 or during the furnishing or placing thereof, or within thirty days 
 after the furnishing or placing of the last material so furnished 
 or placed. 
 
 (3) A claim for lien for services may be registered at any time 
 during the performance of the service or within thirty days after 
 the completion of the service. 
 
 (4) A claim for lien for wages may be registered at any time 
 during the performance of the work for which such wages are 
 claimed, or within thirty days after the last work is done for which 
 the lien is claimed. 
 
 (5) In the case of a contract which is under the supervision of 
 an architect, engineer or other person upon whose certificate pay- 
 ments are to be made, the claim for lien by a contractor may be 
 registered' within the time mentioned in sub-section 1, or within 
 seven days after the architect, engineer or other person has given, 
 or has, upon application to him by the contractor, refused to give 
 a final certificate. 
 
 One Ehuland had a contract with Wright for the construction 
 of some houses. Dempster & Co. were the sub-contractors and 
 supplied Ehuland on his credit with materials for the work, the 
 whole of which was delivered before the 28th April, 1900. On 
 the 18th May, 1900, Dempster & Co. registered a lien against the 
 property under the Mechanics' Lien Act, 1899, but no proceed- 
 ings were instituted by them to realize the claim until 13th Au- 
 gust, 1900. On an application to set aside Dempster's lien, Eitchie, 
 J., delivered the following judgment : " I think the word ' con- 
 tract' in the 20th section of the Act means the original contract 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 399 
 
 with the owner and not the contract between the contractor and a 
 sub-contractor. If no claim has been registered, Dempster & Co. 
 could, I think, have registered one at any time within thirty days 
 after the completion of that contract. There seems to be no 
 reference to the abandonment of the contract except in section 9, 
 but in view of that section I am inclined to the opinion that an 
 abandonment would be held as equivalent to a completion, and no 
 claim could be registered after thirty days from the abandonment 
 of a contract. In this case no period of credit is mentioned in the 
 claim and Mr. Dempster has sworn in an affidavit attached to the 
 claim that none was given nor is the lien claimed upon materials 
 or machinery as provided by section 20, sub-section 2. The diffi- 
 culty, I think, arises in construing the words ' after the work or 
 service has been completed,' in the cases of sub-contractors. Does 
 this mean after the original contract has been completed or after 
 the completion of the sub-contract? Sub-sections 2 and 3 of sec- 
 tion 22 of the Ontario Act have been omitted from the correspond- 
 ing section (20) of our Act, and decisions on these sections, in- 
 cluding Mall v. Hogg, 20 0. E. 15, are not, I think, applicable. 
 Application dismissed. Dempster v. Wright, (1900) 21 0. L. T. 
 88. 
 
 Where a claim was erroneously made against a person who was 
 assumed to be the owner of the property but the lien claimant evi- 
 dently supposed that he was inserting the right name, and the 
 property could be clearly identified by the description, and no one 
 could be prejudiced by the mistake, an amendment, stating the 
 name of the true owner was granted, notwithstanding that the 
 statutory thirty days had expired. The claim is against the land and 
 building instead of the person, and the name of the alleged owner 
 is only a circumstance of description to give notice to purchasers. 
 Entire accuracy in such matters is not essential. Noonan v. Gaiety, 
 Limited, (1919). Decision of Wallace, Co. J., unreported. 
 
 Where the plaintiff misconstrued the terms of his contract and 
 assumed that he had completed it, and, therefore, removed his men 
 and materials from the property, it was held there was no " aban- 
 donment." The word " abandonment " would include such acts as 
 ■ flight, or a refusal to complete a contract on some specific ground, 
 while admitting its non-completion, and would also include such 
 deliberate neglect to continue the work, after due notice or request 
 from the employer, as would be equivalent to refusal, but the word 
 
400 THE LAW OF MECHANICS'" LIENS IN CANADA. 
 
 " abandonment '" in this section cannot mean ceasing to work 
 under the belief that the contract is completed. Boyce v. Huxtable, 
 (1919) ; Wallace, Co. J., unreported. 
 
 Espihy and Discharge of Lien. 
 
 24. When lien expires unless when action brought. — Every' 
 lien for which a claim is not registered shall absolutely cease to 
 exist on the expiration of the time hereinbefore limited for the 
 registration thereof, unless in the meantime an action is com- 
 menced to realize the claim or in which <the claim may be realized 
 under the provisions of this Act, and a certificate thereof (form 
 E) is registered in the registry office in which the claim for lien 
 might have been registered. 
 
 25. (1) Registered lien expires. — Every lien for which a claim 
 has been registered shall absolutely cease to exist on the expiration 
 of ninety days after the work or service has been completed or 
 materials have been furnished or placed, or after the expiry of the 
 period of credit, where such period is mentioned in the claim for 
 lien registered, or in the cases provided for in sub-section 5 of sec- 
 tion 23, on the expiration of thiffy days from the registration of 
 claim, unless in the meantime an action is commenced to realize 
 the claim or in which the claim may be realized under the provi- 
 sions of this Act, and a certificate is registered as provided by the 
 next preceding section. 
 
 (2) Where the period of credit mentioned in the claim for lien 
 registered, has not expired, it shall nevertheless cease to have any 
 effect on the expiration of six months from the registration or any 
 re-registration thereof if the claim Is not again registered within 
 that period, linless in the meantime an action is commenced and a 
 certificate thereof has been registered as provided by sub-section 1. 
 
 26. Lien ceases in certain cases in 90 days. — If there is no 
 period of credit, or if the date of the expiry of the period of credit 
 is not stated in the claim so registered, the lien shall cease to exist 
 
NOVA, SCOTIA MECHANICS' LIEN ACT. 401 
 
 upon the expiration of ninety days after the work or service has 
 been completed or materials furnished or placed, unless in the 
 meantime an action is commenced and a certificate thereof regis- 
 teredi as provided by section -24. 
 
 27. Lien assignable. — The right of a lienholder. may be as- 
 signed by an instrument in writing and, if not assigned, upon his 
 death shall pass to his personal representative. 
 
 28. (1) Provisions respecting discharge and vacating lien. — 
 
 A lien may be discharged by a receipt signed by the claimant, or 
 his agent, duly authorized in writing, acknowledging payment, 
 and verified by affidavit and registered. 
 
 (2) The receipt shall be numbered and entered like other in- 
 struments, but shall not be copied in any registry book, and there 
 shall be entered against the entry of the lien to which the discharge 
 relates the word " discharged " and the registration number of 
 such discharge. ; 
 
 (3) The fee shall be the same as for registering a claim. 
 
 (4) Upon application, the court or judge having jurisdiction 
 to try an action to realize a lien, may allow security for or payment 
 into court of the amount of the claim, and may thereupon order 
 that the registration of the lien be vacated or may vacate the regis- 
 tration upon any other proper ground and a certificate of the order 
 may be registered. 
 
 (5) Where the certificate required by sections 24 and 25 has 
 not been registered within the prescribed time, and an application 
 is made to vacate the registration of a claim for lien afterthe time 
 for registration of the certificate required by sections 24, 25 or 26, 
 the order vacating the lien may be made ex parte upon production 
 of the certificate of the registrar certifying the facts entitling the 
 applicant to such order. 
 
 Effect of Taking Secukitx oe Extending Time. 
 
 29. (1) Taking security, etc., not to affect lien. — The taking 
 of any security for, or the acceptance of any promissory note or 
 
 3X.L.— 26 
 
. 402 THE LAW OF MECHANICS' LIENS IX CANADA. 
 
 bill of exchange for, or the taking of any acknowledgment of the 
 claim, or the giving of time for the payment thereof, or the taking 
 of any proceedings for the recovery, or the recovery of a personal 
 judgment for the claim, shall not merge, waive or pay, satisfy, 
 prejudice or destroy the lien unless the claimant 1 agrees, in writ- 
 ing, that it shall have that effect. 
 
 (2) Where any, such promissory npte or bill of exchange has 
 been negotiated, the Iienholder shall not thereby lose his lien if, 
 at the time of bringing his action to enforce it, or where an action 
 is brought by another Iienholder, he is, at the time of proving his 
 claim in such action, the holder of such promissory note or bill 
 of exchange. * 
 
 (3) Nothing in sub-section 2 shall extend the time limited by 
 this Act for bringing the action to enforce the lien. 
 
 (4) A person who has extended the time for payment of a 
 claim for which he has a lien, to obtain the benefit of this section, 
 shall commence an action to enforce such lien within the time pre- 
 scribed by this Act, and shall register a certificate as required by 
 sections 24, 25 or 26, but no further proceedings shall be taken 
 in the action, until the expiration of such extension of time. 
 
 30. Enforcement of lien where time extended. — Where the 
 period of credit in respect of a claim has not expired, or where 
 there has been an extension of time for payment of the claim, the 
 Iienholder may nevertheless, if an action is commenced by any 
 other person to enforce a lien against the same property, prove 
 and obtain payment of his claim in such action as if the period of 
 credit or the extended time had expired. 
 
 Lienholder's Eight to Information. 
 
 31. (1) Lienholder may demand inspection of contract. — Any 
 Iienholder may at any time demand of the owner or his agent the 
 terms of the contract or agreement with the contractor for and in 
 respect of. which the work, service or material is or is to be per- 
 formed or furnished or placed, and if such owner 'or his agent 
 
NOVA SCOTIA MECHANICS' LIEN* ACT. 403 
 
 does not, at the time of such demand or within reasonable time 
 thereafter, inform the person making such demand of the terms of 
 such contract or agreement, and the amount due and unpaid upon 
 such contract or agreement, or if he knowingly falsely states the 
 terms of the contract or agreement, or the amount due or unpaid 
 thereon, and if the person claiming the lien sustains loss by reason 
 of such refusal or neglect or false statement, the owner shall be 
 liable to him in an action therefor for the amount of such loss. 
 
 (2) The court, or judge having jurisdiction to try an action to 
 realize a lien, may, on a summary application at' any time before 
 or after an action is commenced for the enforcement of such lien, 
 make an order requiring the owner or his agent to produce and 
 allow any lienholder to inspect any such contract or agreement 
 upon such terms as to costs as he may deem just. 
 
 Liens on Mining Claims. 
 
 32. (1) Provisions respecting liens on mining claims. — Every 
 laborer or workman to whom wages is due by any person, firm or 
 corporation for work or labor performed at a mine or in connection 
 with mining operations carried on by such person, firm or corpora- 
 tion, shall have a lien upon the property and mining leases or 
 licenses in respect to which such work and labor has been per- 
 formed to the extent of two months' wages. 
 
 (2) Such lien shall have priority over all other liens, mort- 
 gages or charges upon the said property and mining leases or 
 licenses, whether the same are prior or subsequent to the perform- 
 ing of such work and labor. 
 
 (3) In the registration of such lien it shall not be necessary to 
 describe the property and, mining leases affected' thereby, but it 
 shall be ■ sufficient to designate such property and mining leases as 
 the property and mining leases of such person or corporation. 
 
 (4) Such lien shall be registered in the office of the Commis- 
 sioner of Public "Works and Mines at Halifax, as well as at the 
 registry of deeds, of the registration district in which the mine is 
 
4:04 THE LAW OF MECHANICS' LIENS IX CANADA. 
 
 situate, and the provisions of this Act shall, in so far as the same 
 are applicable, apply to registration in the office of said Commis- 
 sioner. 
 
 (5) Proceedings to enforce a lien created by this section may 
 be taken at any time within six months from the registration 
 thereof and shall be deemed to be taken on behalf of all persons 
 holding such liens at the time such proceedings are commenced or 
 within thirty days thereafter. 
 
 (6) In this section the expression "mine" means a mine to 
 which the Coal Mines Eegulation Act or the Metalliferous Mines 
 Eegulation Act applies, and the expression " mining " shall have 
 the same meaning as the expression "to mine" in the Mines Act. 
 
 Eealizing Liens and Pbocedube. 
 
 33. (1) Jurisdiction of court and procedure. — The liens 
 created by this Act may be enforced by an action to be brought 
 and tried in the County Court of the County Court District in 
 which the lands are situated, whether the amount claimed is over 
 $800.00 or not, and according to the ordinary procedure of- such 
 court, except where the same is varied by this Act. 
 
 (2) Without issuing a writ of summons an action under this 
 Act shall be commenced by filing a statement of claim in the office 
 of the clerk. 
 
 (3) Any number of lienholders claiming liens on the same 
 property may join in the action, and any action brought by a lien- 
 holder shall be taken to be brought on behalf of all other lien- 
 holders on the property in question. 
 
 (4) It shall not be necessary to make any lienholders defen- 
 dants to the action, but all lienholders served with a notice of 
 trial shall, for all purposes, be treated as if they were parties to the 
 action. 
 
 (5) Every such lienholder who is not a party to the action 
 shall file his claim, verified by affidavit. (Form 6). 
 
 (6) The statement of claim shall be served within one month 
 after it is filed, but the court or judge having power to try' the ac- 
 tion may extend the time for service thereof. 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 405 
 
 (7) The statement of defence may be in one of the forms H 
 or I. The time for delivering a statement of defence shall be the 
 same as for' entering an appearance in an action in the Supreme' 
 Court. 
 
 (8) The service of all papers necessarily or usually served in 
 the enforcement of this Act may be effected by any literate person. 
 (This sub-section was added by c. 46, of the Acts of 1918). 
 
 See McDonald v. Consolidated G. M. Co., (1901) 21 C. L. T. 
 482, and Pennington v. Morley, (1902) 3 0. L. E. 514. 
 
 Notice of taking an order for judgment should be given prior 
 encumbrancers so as to protect their rights. Pelton v. Black 
 Hawk .Mining Co., (1903) 40 N. S. E. 385. 
 
 34. (1) Trial and powers of court.— After the delivery of. the 
 statement of defence, where the plaintiff's claim is disputed, or after - 
 the time for delivery of defence in all other cases, where it is desired 
 to try the action otherwise than at the ordinary sittings of the court, 
 either party may apply to a judge who has power to try the action 
 to fix a day for the trial thereof, and the judge shall make an ap- 
 pointment fixing the day and place of trial, and on the day ap- 
 pointed, or on such other day to which the trial is adjourned, shall 
 proceed to try the action and all questions which arise therein, 
 or which are necessary to be tried to fully dispose of the action, 
 and to, adjust the rights and liabilities of the persons appearing 
 before him, or upon whom the notice of trial has been served, and 
 at the trial shall take all accounts, make all inquiries, and give all 
 directions, and do all things necessary to try and otherwise finally 
 dispose of the action, and of all matters, questions and accounts 
 arising in the action, or at the trial, and to adjust the rights and 
 liabilities of, and give all necessary relief to, all parties to the 
 action, or who have been served with the notice of trial, and shall 
 embody all results in the judgment. (Form K) . 
 
 (2) The judge who tries the action may order that the estate 
 or interest charged with the lien be sold, and when by the judg- 
 ment a sale of the estate or interest charged with the lien is or- 
 dered, the judge who tries the action may direct the sale to take 
 
406 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 place at any time after judgment, allowing, however, a reasonable 
 time for advertising such sale. 
 
 (3) The judge, who tries the action may also order the sale 
 of any materials, and authorize the removal thereof. 
 
 (4) Any lienholder who has not proved his claim at the trial 
 of any action to enforce a lien, on application to the -judge who tried 
 the action, upon such terms as 1 to Costs and otherwise as are just, 
 may be let in to prove his claims at any time before the amount 
 realized in the action for the satisfaction of liens has been distri- 
 
 , buted, and where such claim is proved and allowed, the judge shall 
 amend the judgment so as to include such claim therein. 
 
 (5) Any lienholder for an amount not exceeding one hundred 
 dollars, or any lienholder not a party to the action, may attend in 
 person at th.6 trial of an action to enforce a lien, and on any pro- 
 ceedings in such action, or may be represented thereat or thereon 
 by a solicitor. 
 
 (6) "Where a sale is had the moneys arising therefrom shall be 
 paid into court to the credit of the action, and the judge upon 
 whose order the lands were sold shall direct to whom such moneys 
 shall be paid, and may add to the claim of the person conducting 
 the sale his actual disbursements incurred in connection there- 
 with; and where sufficient to satisfy the judgment and costs is 
 not realized by the sale, he shall certify the amount of such de- 
 ficiency, and the names of the persons, with the amounts, who are 
 entitled to recover the same, and the persons by the judgment 
 adjudged to pay the same, and such persons shall be entitled to 
 enforce the same by execution or otherwise, as a judgment of the 
 court. 
 
 35. Notice of trial. — The party who obtains an appointment 
 fixing the day and place of trial, shall, at least eight clear days 
 before the day fixed for the trial, serve a notice of trial, which may 
 be in the form L in the schedule, or to the like effect, upon the 
 solicitors for the defendants who appear by solicitors, and upon 
 all lienholders who have registered their liens as required by this 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 407 
 
 Act, and upon all other persons having any -registered charge or 
 incumbrance or claim on the said lands who are not parties, or, 
 who being parties, appear personally in the said action, and such 
 service shall be personal unless otherwise directed by the court or 
 judge who is to try the action, and the court or judge may, in lieu 
 of personal service, direct in what manner the notice of trial shall 
 be served. 
 
 36. Consolidation of actions. — Where more than one action is 
 brought to realize liens in respect to the same property, the court 
 or judge having power to try such actions may, on the application 
 of any party to any one of such actions, or on the application of 
 any other person interested, consolidate all such actions into one 
 action, and may give the conduct of the consolidated action to any 
 plaintiff in his discretion. 
 
 37. Carriage of action.— Any lienholder entitled to the benefit 
 of the action may apply for the carriage of the proceedings, and 
 the court or judge having power to try the action may thereupon 
 make an order giving such lienholder the carriage of the proceed- 
 ings, and such lienholder shall, for all purposes in the action, be 
 the plaintiff in the action. 
 
 38. Judgment in petty cases. — In any action where the total 
 amount of the plaintiff and other persons claiming liens is one 
 hundred dollars or less, the judgment of the court or judge having 
 power to try such action shall be final, binding, and without ap- 
 peal, except that upon application, within fourteen days after 
 judgment is pronounced to the court or judge who tried the same, 
 a new trial may be granted. 
 
 39. Appeal. — In all actions where the total amount of the 
 claim of the plaintiff and other persons claiming liens is more than 
 one hundred dollars, any party affected thereby may appeal there- 
 from to the Supreme Court, en banc, whose judgment shall be 
 final and binding, and no appeal shall lie therefrom. The " Judi- 
 
408 THE LAW- OF MECHANICS' LIENS IX CANADA. 
 
 cature Act " and the rules of the Supreme Court shall, so far as 
 the same are applicable, apply to all appeals under this section. 
 
 40. (1) Costs. — The costs of the action under this Act awarded 
 to the plaintiffs and successful lienholders, shall not exceed in 
 "the aggregate an amount equal to twenty-five per cent, of the 
 amount of the judgment, besides actual disbursements, and shall be 
 in addition to the amount of the judgment, and shall be appor- 
 tioned and borne in such proportion as the judge who tries the 
 action may direct. 
 
 (2) Where the costs are awarded against the plaintiff or other 
 persons claiming the lien, such costs shall not exceed an amount in 
 the aggregate equal to twenty-five per cent, of the claims of the 
 plaintiff and other claimants, besides actual disbursements, and 
 shall be apportioned and borne as the judge may direct. 
 
 (3) In case the least expensive course is not taken by a plain- 
 tiff under this Act, -the costs allowed to the solicitor shall in no 
 case exceed what would have been incurred if the least expensive 
 course had been taken. 
 
 (4) Where a lien is discharged or vacated under section 28 of 
 this Act, or where in an action judgment is given in favor of or 
 against a claim for a lien, in addition to the costs of an action, 
 the judge may allow a reasonable amount for costs of drawing 
 and registering the lien or for vacating the registration of the 
 lien. 
 
 (5) The costs of and incidental to all applications and orders 
 made under this Act, and not otherwise provided for, shall be in 
 the discretion of the judge. 
 
 In mechanics' lien actions it is a sound rule that the owner is 
 entitled ordinarily to his costs out of the fund. In the present case 
 some of the costs incurred related to the contestation of the claim 
 of the Starr Construction Company/ The owner, by retaining and 
 subsequently paying into court the proper sum, had fulfilled the 
 obligation imposed upon him by the statute, and as that amount 
 was not accepted as correct, and an issue was thereby created, it 
 seems just and reasonable that, on a trial of that issue, where the 1 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 409 
 
 owner (who is, in such case in a position analogous to a stake- 
 holder) succeeds, he should be entitled to his costs out of the fund, 
 before the fund is divided among the other parties whose claims 
 have been established. Silliher & McMann v. Smith, (1920) ; 
 Wallace, Co. J., Halifax, N.S., unreported. 
 
 41. Law stamp. — Every statement of claim filed in the City of 
 Halifax in an action to enforce a lien under this Act shall be 
 accompanied by a fee of fifty cents, which shall be included in the 
 costs, and paid, by law library stamp. 
 
 42. Deficiency after sale recoverable. — All judgments in favor 
 of lienholders shall adjudge that the person or persons personally 
 liable for the amount of the judgment shall pay any deficiency 
 which may remain after sale of the property adjudged to be sold, 
 and whenever on a sale of any property to realize a lien undeT 
 this Act sufficient to satisfy the judgment and costs is not realized 
 therefrom, the deficiency may be recovered against the property of 
 such person or persons by the usual process of the' court. ■ 
 
 43. Certificate vacating lien. — A certificate vacating a lien 
 may be in one of the forms M or N in the schedule, or to the like 
 effect. 
 
 Miscellaneous Peovisions. 
 
 44. (1) Mechanics' lien on chattels. — Every mechanic or other 
 person who has bestowed money, or skill and materials upon any 
 chattel or thing in the alteration and improvement in its proper- 
 ties, or for the purpose of imparting an additional value to it, so 
 as thereby to be entitled to a lien upon such chattel or thing for 
 the amount or value of the money, or skill and materials bestowed, 
 shall, while such lien exists, but not afterwards, in case the amount 
 to which he is entitled remains unpaid for three months after the 
 same ought to have been paid, have the right, in addition to all 
 other remedies provided by law, to sell by auction the chattel or 
 thing in respect to which the lien exists, on giving one week's 
 notice by advertisement in a newspaper published in the county in 
 
.410 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 which the work, was done, or in case there is no newspaper pub- 
 lished in such county, then in a newspaper circulating therein, 
 stating the name of the person indebted, the amount of the debt, 
 a description of the chattel or thing to be sold, the time and place 
 of sale, and the name of the auctioneer, and leaving a like notice 
 in writing at the last known place of residence (if -any) of the 
 owner, if he is a resident of such county. 
 
 (2) Such mechanic, or other person, shall apply the proceeds 
 of the sale in payment of the amount due him, and the costs of 
 advertising and sale, and shall upon application pay over any sur- 
 plus to the person entitled thereto. 
 
 See Chapter XIV., " Mechanics' Liens upon Personalty " and 
 cases cited, including Nova Scotia cases. 
 
 As to insufficiency of possession, see McKenzie v. Martinson, 
 (1902) 40 K S. E'. 346. 
 
 A shipwright who, under a contract for repairs in course of 
 execution, has possession of the defendant ship at the time of her 
 arrest at the suit of the plaintiffs, can claim priority in the distri- 
 bution of the proceeds of the sale of the vessel under an order of 
 the court, in respect to the claim for work in completing such 
 repairs after the arrest, — the repairs being necessary and having 
 been made in good faith, although without the sanction of the 
 court. The award for such repairs was, in the circumstances, sub- 
 ject-to this restriction^ — " so far as the selling value of the defend- 
 ant ship was thereby increased." Halifax Shipyards, Limited, 
 (Intervenors), and Montreal Dry Docks and Ship Repairing Com- 
 pany, (Plaintiffs) v. The Ship " Westerian," (1919) 19 Can. Ex. 
 C. E. 259, affirmed on appeal to the Supreme Court of Canada, 
 (1920). 
 
 The restricting clause quoted would not apply if the assent of 
 the plaintiffs to the completion of the repairs had been expressly 
 given or might fairly have been implied. Jowitt & Sons v. Union 
 Gold Storage Co., (1913) 3 K. B. 1. 
 
 The right of the plaintiffs who seized the vessel is in the value 
 of the vessel at the date of the seizure, and not in the value subse- 
 quently enhanced by the necessary work of the shipwright. 
 
 45. Personal judgment. — When jn any action brought under 
 the provisions of this Act, any claimant fails for any reason to 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 411 
 
 establish a' valid lien, he may nevertheless recover therein a per- 
 sonal judgment against the party or parties to the action for such 
 sum or sums of money as appear to be due him from such party 
 or parties, and which he might recover in an action on the contract 
 against such party or parties. 
 
 ' Where certain work done was done on property which could 
 not be the subject of a lien there can be no recovery of a personal 
 judgment for such work. Falconer v. Hartlen, (1920) ; Wallace, 
 Oo. J., Halifax, K.S. (unreported). 
 
 46. Forms. — The forms in the schedule hereto, or forms simi- 
 lar thereto, or to the like effect, may be adopted in all proceedings 
 under this Act. 
 
 47. Acts repealed. — The Acts and parts of Acts in the 
 schedule hereto are repealed to the extent in such schedule men- 
 tioned. 
 
 SCHEDULE. 
 
 Form A.- — Section 18. 
 
 Claim of Lien foe Eegisteation. 
 
 A. B. (name of claimant) of (here state residence of claimant, 
 and, if so, as assignee of, stating name and residence of assignor), 
 under the " Mechanics' Lien Act," claim a lien upon the estate of 
 (here state the name and residence of owner of land upon which 
 the lien is claimed), in the undermentioned land in respect to the 
 following work (service or materials), that is to say (here give a 
 short description of the nature of the work done or materials fur- 
 nished, and for which the lien is claimed), which work (or ser- 
 vice) was (or is to be) done (or materials were furnished) for 
 (here state the name and residence of the person upon whose credit 
 the work is done or materials furnished), on or before the 
 day of 
 
 The amount claimed as due (or to become due) is the sum 
 of $ . 
 
412 THE LAW OF MECHANICS' MUSTS IN CANADA. 
 
 The following is a description of the land to be charged (here 
 set out a concise description of the land to be charged sufficient 
 for the purpose of registration). 
 
 When credit has been given, insert: The said work was done 
 (or materials were furnished) on credit, and 'the period of credit 
 agreed to expired (or will expire) on the day of ,- 
 
 19 . ■ > 
 
 Dated at this day of , 19 . 
 
 {Signature of Claimant.) 
 
 Poem B.— Section 18. 
 Claim of Lien foe Wages foe Begisteation. 
 
 A. B. (name of claimant) of (here state the residence of claim- 
 ant, and, if so, as assignee of, v stating name and residence of as- 
 signor), under the "Mechanics' Lien Act," claims a lien upon the 
 estate of (here state the name and residence of the owner of land 
 upon which the lien is claimed) in the undermentioned land in 
 respect, to days' work performed thereon while in the employ- 
 
 ment of (here state the name and residence of the person upon 
 whose credit the work was done) on or before the day 
 
 of , 19. . 
 
 The amount claimed as due is the sum of $ 
 
 The following is the description of the land to be charged (here 
 set out a concise description of the land to be charged sufficient 
 for the purpose of registration). 
 
 Dated at this day of , 19 . 
 
 {Signature of Claimant.) 
 
 Foem C. — Sections 18, 19. 
 Affidavit Vieifying Claim. 
 
 I, A. B., named in the above {or annexed) claim, make oath and 
 say that the said claim is true. 
 
 Or, We, A. B. and C. D., named in the above {or annexed) 
 claim, make oath and say, and each for himself saith, that the said 
 claim, as far as relates to him, is true. 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 413 
 
 (Where the affidavit' is made by agent or assignee, a clause must 
 be added to the following effect.) I have full knowledge of the 
 facts set forth in the above (or annexed) claim. 
 
 Sworn before me at 
 in the county of 
 this day of 
 
 19 . 
 
 Or, the said A. B. and CD. were sever- ^ 
 
 ally sworn before me at , 
 
 in the county of , 
 
 this day of , 19 . 
 
 Or, the said A. B. was sworn before me 
 at , in the county 
 
 of , this day 
 
 of , 19 . 
 
 Form D. — Section 19. 
 Claim oe Lien foe Wages by Several Claimants. 
 
 The following persons under the " Mechanics' Lien Act/' claim 
 a lien upon the estate of (here state the name and residence of the 
 owner of the land upon which the lien is claimed) in the under- 
 mentioned land, in respect to wages for labor performed thereon 
 while in the employment of (here state name and residence or 
 names and residences of employers of the several persons claiming 
 the lien.) 
 
 A. B., of (residence) $ 
 
 for 
 
 days' wages 
 
 C. D., of (residence) $ 
 
 for 
 
 days' wages 
 
 E. P., of (residence) $ 
 
 for 
 
 days' wages 
 
 The following is the description of the land to be charged (here 
 set out a concise description of the land to be charged sufficient for 
 the purpose of registration). 
 
 Dated at this day of , 19 . 
 
 (Signatures of the several Claimants.) 
 
414 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Foem E — Section 24. 
 
 Certificate op Lis Pendens. 
 
 (Style of Court and Cause.) 
 
 I certify that the above-named plaintiff has commenced an ac- 
 tion in the above court to enforce against the following land (de- 
 scribing it) a claim of mechanics' lien for $ 
 
 Dated this day of , 19 . 
 
 Prothonotary (or Clerk.) 
 
 Foem G — Section 33. 
 
 Affidavit of Lienholdee Verifying Claim. 
 
 (Style of Court and Cause.) 
 
 ,1, G. H., of (address and occupation), make oath and say: 
 I have in the foregoing account (or, in the account now shown 
 to me, marked A), set forth a just and true account of the amount 
 due and owing to me by B. H. (the owner), or by E. F., who is a 
 contractor with the defendant, L. G. (the owner), of the lands in 
 question, and I have in the said account given credit for all sums in 
 cash, or merchandise, or otherwise, to which the said B. F. is justly 
 entitled ,to credit in respect to the said account, and the sum of 
 $ appearing by such account to be due to me as the amount 
 
 (or balance) of such account is now justly due and owing to me. 
 Sworn, eic. 
 
 Foem H — Section 33. 
 
 Defence. 
 
 (Style of Court and Cause.) 
 
 A. B. disputes that the plaintiff is now entitled 
 
 to a mechanics' lien on the following grounds: (setting forth the 
 grounds shortly.) 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 415 
 
 (a) That the lien has not been presented in due time, as re- 
 
 quired by statute. , 
 
 (b) That there is nothing due to the plaintiff. 
 
 (c) That the plaintiff's lien has been vacated and discharged. 
 
 (d) That there is nothing due by (owner's name) for the satis- 
 
 faction of the plaintiff's claim. 
 
 Delivered on the day of by A. B. in person, 
 
 whose address for service is (stating address) or 
 
 Delivered on the day of by Y. Z., solicitor 
 
 for the said A. B. 
 
 Note. — If the owner does not dispute the claim entirely, and 
 only wishes to have the accounts taken, he may use the following 
 form : — 
 
 Form I — Section 33. 
 
 Defence Where There are no Matters Disputed, or Where 
 the Matters in Dispute are Matters oe Account. 
 
 > (Style of Court and Cause.) 
 
 A. B. admits that the plaintiff is entitled to a lien, 
 
 and claims that the following is a just and true statement of the 
 account in question: — 
 
 Amount of contract price for work contracted to be 
 performed by E. F., as plumber, on the lands in 
 question herein , $500 00 
 
 Amounts Paid on Account. 
 
 June 1st, 1900, paid E. F $200 00 
 
 June 1st, 1900, paid G. H. and I. K., sub- 
 - contractors of E. F... 100 00 300 00 
 
 Balance admitted to be due $200 00 
 
 For satisfaction of the lien of plaintiff and other lienholders 
 (as the case may be) A. B., before action, tendered to the plaintiff 
 $ in payment of his claim, and now brings into court 
 
 $ and submits that that account is sufficient to pay the 
 
 plaintiff's claim and asks that this action be dismissed as against 
 him, with costs'. 
 Delivered, etc. 
 
416 THE LAW OP MECHANICS' £lENS IN CANADA. 
 
 Form K — Section 34. 
 
 Judgment. 
 
 In the Court 
 
 S.S. Plaintiff, 
 
 Between and 
 
 Defendant. 
 
 This action coming on for trial before in 
 
 at upon opening of . the matter and it appearing that- 
 
 the following persons have been duly served with notice of trial 
 herein (set put the names of all persons served with notice of trial) 
 and all such persons (or as the case may be) appearing at the trial 
 (if so,) and the following persons not having appeared, (set out the 
 names of non-appearing persons), and upon hearing the evidence 
 adduced and what was alleged by counsel for the plaintiff and for 
 G. D. and E. F. and the defendant (if so) (and by A. C. appearing 
 in person). 
 
 1- This court doth declare that the plaintiff and the several per- 
 sons mentioned in the first schedule hereto are respectively entitled 
 to a lien under " The Mechanics' Lien Act," upon the lands de- 
 scribed in the second schedule hereto, for the amounts set opposite 
 their respective names in the first, second and third cojumns of the 
 first schedule, and the persons primarily liable for such claims 
 respectively are set forth in the fourth column of such schedule. 
 
 2. (If so.) And this court doth further declare that the several 
 persons mentioned in the third schedule hereto are also entitled to 
 some lien, charge or incumbrance upon the said lands for the 
 amounts set opposite their respective names in the fourth column 
 of the third schedule. 
 
 3. And this court doth further order and adjudge that upon the 
 defendant (A. B., the owner) paying into court to the credit of this 
 action the sum of- (gross amount of liens in the first 
 and third schedules for which the owner is liable) on or before the 
 
 day of next that the said liens in the said first 
 
 schedule mentioned be and the same are hereby discharged, (and 
 the several persons in the third schedule mentioned shall release and 
 discharge their said claims and assign and convey the said prem- 
 ises to the defendant (owner) and deliver up all documents on oath 
 to the said defendant (owner) or to such person as he appoints and 
 the said moneys so paid into court shall be paid out in payment of 
 the claims of the said lienholders ({/ so, and incumbrancers). 
 
NOVA SCOTIA MECHANICS LIEN ACT. 
 
 417 
 
 4. But if the said defendant (owner) makes default in payment 
 of the said moneys into court as aforesaid, this court doth order and 
 adjudge that the said lands be sold with the approbation of 
 
 of this court at , and that the purchase money be paid 
 
 into court to the credit of this action, and all proper' parties do join 
 in the conveyances as the said directs, 
 
 5. And this court dofh order and adjudge that the said purchase 
 money be applied in or towards payment of the several claims in the 
 said first (and third) schedule (s), mentioned as the said 
 directs, with subsequent interest and subsequent costs to be com- 
 puted and taxed. 
 
 6. And this court doth further order and adjudge that if the 
 purchase money is insufficient to pay in full the claims of the sev- 
 eral persons mentioned in the first schedule, the persons primarily 
 liable for such claims as shown in such schedule do pay to the per- 
 sons to whom they are respectively primarily liable the amounts 
 remaining due to such persons forthwith after the same have been 
 ascertained by 'the said ' . 
 
 7. (If so,) and this court doth declare that have 
 not proved any lien under " The Mechanics' Lien Act," and that 
 they are hot entitled to any such lien, and this court doth' order and 
 adjudge that the claims of lien respectively registered by them 
 against the lands mentioned in the second schedule be and the same 
 are hereby discharged. 
 
 Dated ' the day of , 19 . . : ; 
 
 SCHEDULE 1. 
 
 Names of lien holders 
 
 entitled to 
 
 Mechanics' Liens 
 
 Amount of 
 
 debt and 
 
 interest (if 
 
 any) 
 
 Costs 
 
 Total 
 
 Names of primary 
 debtors 
 
 SCHEDULE 2. 
 
 The lands in question in this matter are (set out description- 
 sufficient for registration purposes. ) 
 
 K.L- 27 
 
418 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 SCHEDULE 3. 
 
 Names of persons entitled 
 to encumbrances 
 
 other than 
 Mechanics' Liens 
 
 Amount of debt 
 
 and interest 
 
 (if any) 
 
 Costs 
 
 Total 
 
 Form L — Section 35. 
 
 Notice of Thial. 
 
 (Style of Court and Cause.) 
 
 Take notice that this action will be tried at the court house at 
 on the day of by and at such 
 
 time and place the will proceed to try the action and all 
 
 questions which arise in or which are necessary to be tried to com- 
 pletely dispose of the action, and to adjust the rights and liabilities 
 of the persons appearing before him, or upon whom this notice of 
 trial has been served, and at such trial he will take all accounts, 
 make all enquiries, and give all directions, and do all things neces- 
 sary to try and otherwise finally dispose of this action, and of all 
 matters, questions, and accounts arising in such action, and will 
 give all necessary relief to all parties. 
 
 And further take notice, that if you do not appear at the trial 
 and prove your claim, if any, or prove your defence, if any, to the 
 action, the proceedings will be taken in your absence, and you may 
 be deprived of all benefit of the proceedings, and your rights dis- 
 posed of in your absence. 
 
 This is a Mechanics' Lien action brought by the above named 
 plaintiff against the above named defendants to enforce a mechan- 
 ics' lien against the following lands : (set put description of lands.) 
 
 This notice is served by, etc. 
 
NOVA SCOTIA MECHANICS' LIEN ACT. 419 
 
 Form M — Section 43. 
 
 Certificate Vacating Lien. 
 
 (Style of Court and Cause.) 
 
 I certify that the defendant, A. B. (the owner) has under an 
 order made herein by and dated the day of 
 
 paid into court to the credit of this cause all money due and payable 
 by him for the satisfaction of the liens of the plaintiff and E. F., 
 G. H., I. J., and K. L., and their liens are hereby vacated and dis- 
 charged so far as the same affect the following lands: (describe 
 lands). 
 
 Dated at the day of 19 . 
 
 Prothonotary (or Clerk.) 
 
 Form N— tSection 43. 
 
 Certificate Vacating Lien. 
 
 (Style of Court and Cause.) 
 
 I certify that I have inquired and find that the plaintiff is not 
 entitled to any Mechanics' Lien upon the lands of the defendant 
 A. B. (the owner) and that his claim of lien is hereby vacated and 
 discharged so far as the same affects the following lands: (describe 
 lands. ) 
 
 Dated at the day of 19 . 
 
 Referee. 
 
 ACTS EEPEALED. 
 
 EXTENT OF REPEAL. ' 
 
 Revised Statutes, 
 
 1900, 
 
 The Whole Chapter. 
 
 c. 171. 
 
 
 The Whole Act. 
 
 Acts 1902, c. 27. 
 
 
 Section 3. 
 
 Acts 1903, c. 68. 
 
 
 The Whole Act. 
 
 Acts 1904, c. 25. 
 
 
 The Whole Act. 
 
 Acts 1905, c. 31. 
 
 
 The Whole Act. 
 
 Acts 1909, c. 40. 
 
 
 The Whole Act. 
 
 Acts 1914, c. 40. 
 
 
 
ONTARIO MECHANICS' LIEN ACT. 
 
 CHAPTEK 140. 
 
 An Act Kespecting Liens of Mechanics, Wage-earners and 
 
 Others. 
 
 HIS MAJESTY,' by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows: — < 
 
 1. Short title.— This Act may be cited as Jhe Mechanics' and 
 Wage-earners' Lien Act. 10 Edw. VII. c. 69, s. 1. 
 
 2. Interpretation. — In this Act : — 
 
 (a) " Contractor." — " Contractor " 'shall mean a person 
 contracting with or employed directly by the owner or his agent 
 for the doing of work Or servide or placing or furnishing 
 materials for any of the purposes mentioned in this Act; 
 
 (b) " Material."— " Material " or "materials" shall in- 
 clude every kind of movable property; 
 
 (c) " Owner." — " Owner " shall extend to any person, body 
 corporate or politic, including a municipal corporation and a 
 railway company, haying any estate or interest in the land upon 
 which or in respect of which the work or service is done, or 
 materials are placed or furnished, at whose request and 
 
 (i)' upon whose credit, or 
 
 (ii) on whose behalf, or 
 
 (iii) with whos,e privity and consent, or 
 
 (iv) for whose direct benefit, 
 work or service is performed or materials are placed or fur- 
 nished, and all persons claiming under him or them whose 
 
ONTARIO MECHANICS' LIEN ACT. 421 
 
 rights are acquired after the work or service in respect of which 
 the lien is claimed is commenced or the materials furnished 
 have been commenced to b.e furnished. 
 
 (d) " Registrar." — " Eegistrar " shall include Master of 
 Titles and Local Master of Titles; 
 
 (e) "Registry office." — "Eegistry office" shall include 
 i Land Titles Office; 
 
 (f ) " Sub-contractor." — " Sub-contractor " shall mean a 
 person not contracting with or employed directly by the owner 
 or his agent for the purposes aforesaid, but contracting with or 
 employed by a "contractor, or under him by another sub-con- 
 tractor; 
 
 (g) "Wages." — "Wages" shall mean money earned by a 
 mechanic or laborer for work done, whether by the day or 
 other time or as piece work. 10 Edw. VII. c. 69, s. 2. 
 
 An unpaid vendor who advances funds to the purchaser to build 
 upon the land is not an " owner," so as to subject the land to 
 mechanics' lien for work done and materials furnished under con- 
 tracts with the purchaser but by virtue of section 14 (2) is deemed 
 " mortgagee." Marshall Brick Co. v. York Farmers' Colonization 
 Co., (1917) 54 Can. S. C. B. 569, 36 D. L. E. 420. 
 
 (a) " Contractor." — Any person contracting directly with the 
 " owner " is a contractor. The nature and extent of the lien of 
 contractor are dealt with in the chapter . entitled "Who may ac- 
 quire a lien," ante. The architect is a " contractor." Read v. 
 Whitney, (1919) 45 0. L. E. 377. 
 
 (b) "Sub-contractor." — The lien of the sub-contractor is con- 
 sidered in the chapter entitled, " Who may acquire a lien," ante. 
 
 As ordinarily there would be no obligation on the part of an 
 owner to pay the contractor's debts, the sub-contractor in a claim 
 against the 1 " owner " must show that this liability was created by 
 the statute and that his claim as sub-contractor comes within its 
 terms. Reeve v. Elmendorf, 38 N. J. L. 125. 
 
 (c) "Owner." — Municipal corporations are now within the 
 definition of " owner " given in this section. In General Contract- 
 
422 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 ing Co. v. Ottawa, (1909) 16 0. W. E. 479, the court considered 
 that the language of some of the. sections of the Act seemed to 
 imply an intention to include some classes of municipal property. 
 The question whether existing Mechanics' Lien Acts in Canada 
 create a lien against property held by a municipal corporation is 
 discussed in the chapter entitled, " Property which may be subject 
 to lien," ante. 
 
 Work contracted by a sub-lessee in pursuance of an agree- 
 ment with his lessor authorizing him to build upon the land, con- 
 stituted a " request," Orr v. Robertson, 23 D. L, E. 17; 34 0. L. E. 
 147, but although the lien' given attaches to the estate or interest 
 of the " owner " it does not include -a purchaser of land whereon 
 improvements were made prior to his taking possession without his 
 request, express or implied. Cut-rate Plate Glass. Co. v. Solodmshi, 
 25 D. L. E. 533, 34 0. L. E. 604. See also Sterling Lumber Co. v. 
 Jones, 29 D. L. E. 288, 36 0. L. B. 153. 
 
 As to mechanics' liens on trust property see Pond, Extrx. v. 
 Harrison, L. E. A. 1916, B. and annotations. 
 
 The contract should be sufficiently definite to enable the amount 
 to be determined with reasonable certainty. Wilder v. French, 75 
 Mass. 395 ; Eisendrather v. Gebhardt, 124 111. App. 325, affirmed, 
 222 111. 113 ; Merritt v. Crane Co., 225 111. 181. One member of a 
 partnership can make a contract involving a lien. Wahlstrom y. 
 Trulson, 165 Mass. 429. 
 
 A railway company is also within the definition of " owner " in 
 this section. The constitutionality and scope of this and similar 
 provisions as applicable to railway companies are discussed in the 
 chapter entitled, " Property which may be subject to lien," ante. 
 
 See cases cited under chapter, " The Owner and his Interest," 
 ante. 
 
 (d) " Or service." — These words would probably be construed 
 as enlarging the scope of the section so as to clearly include profes- 
 sional services rendered by engineers and architects in respect to 
 the building, in addition to superintendence. 
 
 (e) " With whose privity or consent." — To create a lien 
 against the interest of an " owner " there must be something in the 
 nature of direct dealing between the contractor and the " owner " 
 or person whose estate is sought to be charged. Where an 
 " owner " merely has knowledge that the work is being done or 
 that the material is being furnished, and silently assents to and 
 
ONTARIO MECHANICS WEN ACT. 
 
 423 
 
 benefits by the furnishing of such work or materials a lien is not 
 thereby created against his interest. See Gearing V. Robinson, 
 (1900) 27 A. E. 364, and cases cited under chapter entitled, 
 " Consent of Owner," ante. 
 
 (f ) An architect has been held to be a " contractor " under sec- 
 tion 2 (a), contracting with the owner for the "doing of work or 
 service," and the assistant architect is a " sub-contractor " under 
 section 2 (f), employed by the "contractor." Read. v. Whitney, 
 (1919) 45 0. L. B. 377. 
 
 A homestead entrant is an "owner." Beaver Lumber Co. v. 
 Miller, (1917) 32 D. L, E. 428 (Sask.). 
 
 Actual possession under a grant from the Crown, coupled with 
 a statutory right to register the grant, and thereupon to become 
 the owner in fee, creates an estate or interest upon which a 
 mechanics' lien may attach. Dorrell v. Campbell, (1917) 1 W. W. 
 E. 500, 23 B. C. E. 500, 32 D. L. E. 44. 
 
 Public school buildings and the lands upon which they are 
 erected are subject to the provisions of the Mechanics' and Wage- 
 earners' Lien Act. Benson v. Smith & Sons, (1916) 37 O. L. E. 
 257, 31 D. L. E. 416. See Hazel v. Lund, 25 D. L. E. 204 (B.C.) ; 
 Connely v. Haveloch School Trustees, 9 D. L. E, 875 (NB.). 
 
 Eoads laid out by private persons cannot be regarded as public 
 highways before dedication. Vannatta v. Uplands Limited, (1913) 
 25 W. L. E. 85. 
 
 A workman is entitled to a lien upon the part of a sewer ex- 
 tending below water mark in,to the ocean, upon which he worked. 
 Baker v. Uplands, (1913) 24 W. L. E. 768. 
 
 Public school buildings and the lands upon which they are 
 erected are subject to the provisions of this Act. Benson v. Smith, 
 37 0. L. E. 257, 31 D. L. E. 416; but a lien cannot be enforced 
 under this Act against a'railway company incorporated under Do- 
 minion Act. Johnson v. C. N. R. Co., 44 O. L. B. 533, 47 D. L. E. 
 75. 
 
 A ' person who has delivered material ' to be used in the con- • 
 struction and improvement of a place, although the place of de- 
 livery is upon the land, is not a person who has done work or ser- 
 vice upon the premises within the meaning of section 6 of the 
 British Columbia Act, and is not entitled to a lien. Vannatta v. 
 Uplands 'Limited (1913) 25 W. L. E. 85. This section as worded 
 differs from the corresponding section in Mechanics' Lien Acts 
 
424 THE LAW OE MECHANICS* LIINS IN CANADA. 
 
 in other provinces, which has been construed to give a lien for 
 haulage of materials. 
 
 Where claimants supplied teams of horses, wagons and drivers 
 to the contractor for hauling sand, gravel and earth upon the 
 property, for which they were paid so much per day, and these 
 teams, wagons and drivers were subject to the contractors' fore- 
 man and did only what work he required of them, it was held that 
 these claims were covered by the words of the British Columbia 
 Act, section 6,— -" every person who does work or service or causes 
 work or service to be done upon," etc., and should be allowed. 
 Vannattav. Uplands Limited, (1913) 25 W. L. E.-85. 
 
 As to lien claim where building is partly on two parcels of 
 land, see Sheppard v. Davidovitch, (1916) 10 O...W.-K 159. 
 
 A purchaser of an unfinished building whose deed is registered 
 prior to the registration of any mechanics' liens without actual 
 notice thereof, thereby acquires a priority by virtue of the Kegistry 
 Act (E. S. 0. 1914, c. 124) and takes the property free of the liens. 
 Mere knowledge that building was going on upon the land does 
 not amount to actual notice; nor can the purchaser be deemed an 
 ■ " owner " within the meaning of this section. Sterling Lumber 
 Co. v. Jones, (1916) 36 0. L. E. 153, 29 D. L. E. 288. See also 
 Cool v. Koldofshy, 35 0. L. E. 555, 28 D. L. E. 346 ; Marshall 
 Brick Co. v. York Farmers Colonization Co. (1917) 54 Can. S. 
 C. E. 569, 36 D. L. E. 420; Cut-Rate Plate Glass Co. v. Solodin- 
 ski, 34 0. L. E. 604, 25 D. L. E. 533 ; Orr v. Robertson, 23 D. L. 
 E. 17, 34 0. L. E. 147. 
 
 A lien which appears to be for work done at the instance of., 
 other persons, without indicating that the work was done for the 
 " owner " of the property to be charged, is incurably defective, 
 and the owner's subsequent undertaking to assume such lien is not 
 binding on him. Northern Plumbing & Keating Co. v. Greene, 
 (1916) 27 D. L. E. 410, 34 W. L. E. 293 (Sask.). 
 
 A contractor's offer to build a pair of semi-detached houses on 
 two adjoining lots, owned by different persons, naming separate 
 terms for each house but addressed to both owners together, 
 implies a distinct acceptance by each of them, and the acceptance 
 by one does not create a joint contract binding on both as subject- 
 ing both lots to a mechanics' lien for plumbing materials fur- 
 nished for both houses ; nor can the interest of the accepting owner 
 be charged for materials furnished on the adjoining lot not at " his 
 
ONTARIO MECHANICS' LIEN ACT. 425 
 
 request or for his direct benefit." Compaigne v. Carver, (1916) 
 35 0. L. E. 232, 27 D. L. E. 76. 
 
 The lien may also attach against several pieces of property as 
 one individual claim; the fact that the houses are subsequently 
 divided between different owners cannot impair the lien, which 
 becomes effective from the time of the commencement of the work. 
 Poison v. Thomson, (1916) 26 Man. L. E. 410, 29 D. L. E. 395, 
 34 W. L. E. 7*5. 
 
 Under the Saskatchewan Act it has been held that a material- 
 man is not entitled to register as one individual claim, a lien for 
 the amount due for materials supplied by him to the contractor, 
 against all the lands jointly of the owners of different parcels, who 
 had made separate contracts with the contractor for the erection 
 of houses on their respective parcels ; nor do they have such inter- 
 est in one another's land as " owners " so as to charge the other's 
 land for materials furnished at the owner's request o,r benefit. 
 Security Lumber Go. v. Plested, (1916) 9 Sask. L. E. 183, 27 
 D. L. E. 441, 34 W. L. E. 352. 
 
 Actual ppssession under a Crown grant coupled with the statu- 
 tory right to register same, and thereupon to become the owner 
 in fee, creates an estate or interest upon which a mechanics' lien 
 can attach. Dorrell v. Campbell, (1916) 32 D. L. E. 44, 35 W. 
 L. E. 500, 22 B. C. E. 584. 
 
 Where a squatter on Crown land accepts work and materials 
 applied to the erection of a building thereon he will be considered 
 an "owner." Macdonald v. Hartley, (1918) 3 W. W. E. 910 
 (B.C.). 
 
 To create a lien against the interest of an " owner for work 
 done and materials furnished with his privity and consent," there 1 
 must be something in the nature of a direct dealing -between the 
 contractor and the owner or person whose estate is to be charged; 
 when the latter merely has knowledge that the work is being done 
 or materials furnished, and silently assents thereto and benefits 
 thereby, a lien is not thereby created against his interest. Such 
 lien is not created for wprk done and materials furnished under 
 a contract exclusively with a lessee of the property. Eddy Co v. 
 Chamberlain and Landry, 37 D. L. E. 711 (1ST.B.). 
 
 An agreement for the sale of land which contains a covenant 
 binding the purchaser to erect certain works on the land at a cer- 
 tain cost and contains a covenant by the vendor, the owner, to 
 
426 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 remit a specified amount from the purchase price on the comple- 
 tion of said undertaking, is such a request in -writing as gives a 
 mechanics' lien arising from the erection of the said works gen- 
 eral application under section 6 of the British Columbia Mechan- 
 ics' Lien Act, and therefore the Jien is not restricted to the increase 
 in value of the premises by reason of such works. British Colum- 
 bia Granitoid Oo. v. Dominion Shipbuilding Engineering and 
 Dry Dock Co., (1918) 2 W. W. E. 919 (B.C.). 
 
 3. Exception of streets or highways. — Nothing in this Act 
 shall extend to any public street or highway, or to any work or 
 improvement d6ne or caused to be done by a municipal corpora- 
 tion thereon. 10 Bdw. VII. c. 69, s. 3. 
 
 The lien for work done in clearing a townsite, consistingof sev- 
 eral tracts, extends to the whole land benefited by the work, except 
 whatever may be excluded from it by being "a public street or 
 highway." Beseloff, v. White Rock Resort Dev. Co., 23 D. L. R. 676. 
 
 4. (1) Contracts waiving application of Act to be void. — Every 
 agreement, verbal or written, express or implied, on the part of 
 any workman, servant, laborer, mechanic or other person em- 
 ployed in any kind of manual labor intended to 1 be dealt with in 
 this Act, that this Act shall not apply, or that the remedies pro- 
 vided by it shall not be available for the benefit of such person, 
 shall be null and void. 
 
 (2) Exception as to certain employees. — This seetion shall not 
 apply to a manager, officer or foreman, or to any other person 
 whose wages are more than $5 a day. 10 Edw. VII. c. 69, s. 4. 
 
 (a) "Shall be null and void." — This section is intended to 
 protect those who do the manual labor, and the effect of the whole 
 section is to limit its application to that class. 
 
 5. Effect upon third party of agreement waiving lien. — _ No 
 
 agreement shall deprive any person otherwise entitled to a lien 
 under this Act who is not a party to the. agreement, of the benefit 
 of the lien, but it shall attach notwithstanding such agreement. 
 10 Edw. VII. c. 29, s. 5. 
 
ONTARIO MECHANICS' UEN ACT. 427 
 
 (a) "No agreement." — This section is to be read in connec- 
 tion with sections 10, 11, 12 and 15, post. 
 
 Unless by the agreement the ' contractor forfeits all claim to 
 payment in the event of a mechanics' lien heing claimed or regis- 
 tered, it is difficult to understand how such an agreement could 
 affect any persons but the parties to it and their representatives 
 and assignees. The section in terms only applies to persons 
 "otherwise entitled to a lien under the Act." By sections 6 and 
 ll the lien is limited to the sum payable by the owner to the con- 
 tractor subject to the provisions of sections 12 and 15 as to per- 
 centage to be retained. If, then, there is nothing due by the 
 owner to the contractor there can be no lien and this section will 
 not help the sub-contractor, unless it is held to mean that any 
 such agreement, viz., that provides that nothing shall be due until 
 completion, or that the right to payment shall be forfeited }f 
 any mechanics' lien is claimed or registered or otherwise takes 
 away the contractor's right to payment, shall not deprive the sub- 
 contractor of the benefit of the lien. Such a construction would 
 in effect be extending the provisions of the Act creating the lien, 
 which this section does not purport to do. It is probable that the 
 section does not go further than to preserve to sub-contractors and 
 others not parties to the agreement the right to enforce their liens 
 against the owner to the extent at least of the percentage to be 
 retained, even though the owner has attempted to protect himself 
 against liens by his agreement with the contractor. 
 
 Special provision is made in section 15 for wage-earners, and 
 section 4, supra, enacts that any such agreement made by a " work- 
 man, servant, laborer, mechanic or other person employed in any 
 kind of manual labor, intended to be dealt with in this Act," and 
 who receives not more than five dollars a day, shall be mill and 
 void and of no effect. 
 
 In a building contract for the erection of a church the con- 
 tractor agreed with the building committee to settle with all 
 other persons doing work upon or furnishing materials for the 
 construction thereof, and stipulated that , neither he nor they' 
 should have any lien upon the building for their work or mater- 
 ials. Held binding on the sub-contractors, though made without 
 their knowledge or assent. It was also stipulated that twenty per 
 cent, of the contract price should not be payable until thirty days 
 after the architect should have accepted the work and that the 
 
428 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 balance of. the contract price so to be retained should not be pay- 
 able until all sub-contractors were fully paid and settled with. 
 Held, that no trust was thereby created in favor of the sub- 
 contractors, as to the sum agreed to be retained; and, the contractor 
 having assigned his interest in the contract to a third party, and 
 the committee having waived their right to insist that the sub- 
 contractors should be paid, that the assignee was entitled to receive 
 the twenty per cent, retained, to the exclusion of the sub-contrac- 
 tors. F-orhan v. Lalonde, (1880) 27 Gr. 600. See 47 Vic. c. 18, 
 s. 1 ; 59 Vic. c. 35, s. 4. 
 
 6. General right of workman or materialman to a lien. — 
 
 Unless he signs an express agreement to the contrary, and in that 
 case subject to the provisions of section 4, any person who performs 
 any work or service upon or in respect of, or places or furnishes any 
 materials to be used in the making, constructing, erecting, fitting, 
 altering, improving or repairing of any erection, building, railway, 
 land, wharf, pier, bulkhead, bridge, trestlework, vault, mine,* well, 
 excavation, fence, sidewalk, pavement, , fountain, fishpond, drain, 
 sewer, aqueduct, roadbed, way, fruit or ornamental trees, or the, ap- 
 purtenances to, any of them, for any owner, contractor or sub-eon- 
 tractor, shall by virtue thereof have a lien for the price of such 
 work, service or materials upon the erection, building, railway, 
 land, wharf, pier, bulkhead, bridge, trestlework, vault, mine, well, 
 excavation, fence, sidewalk, paving 1 , fountain, fishpond, drain, 
 sewer, aqueduct, roadbed, way, fruit or ornamental trees, and 
 appurtenances, and the land occupied thereby or enjoyed there- 
 with, or upon or in respect of which such work or service is per- 
 formed, or upon which such materials are placed or furnished to 
 be used, limited however, in amount to the sum justly due to the 
 person entitled to the lien and to the sum justly owing, except as 
 herein provided, by the owner. 10 Edw. VII. c. 69, s. 6. By 8 
 Geo. V. c. 29, this section was amended by adding after the word 
 "upon" in the eighteenth line thereof, the words "or adjacent 
 to." 
 
 (a) "Any person." — See cases cited in chapter entitled, 
 "Who may acquire a lien," ante. 
 
ONTARIO MECHANICS' UEN ACT. 429 
 
 (b) "Performs any work or service." — A blacksmith em- 
 ployed for sharpening and repairing tools at a mine is entitled 
 to a lien ; a cook is not. Work on tools is work on a mine ; cooking 
 is not. Davis v. Grown Point M. Co., (1901) 3 0. L. K. 69. But 
 a materialman is not entitled to a lien for tools furnished the con- 
 tractor with which to work on the building. Evans v. Lower, 
 (1904) 58 Atl. Eep. 294. 
 
 To create a lien there must be something in the nature of direct 
 dealing between the contractor and the person whose estate .is 
 sought to be ( charged. Mere knowledge that the work is being 
 done or the materials furnished is not enough, nor is silent assent. 
 
 The lien claimant to succeed must have been employed to do • 
 the work or furnish the materials by some one having either an 
 interest in the land or an interest in a contract made with the 
 owner. The person with whom the contract wag made must be 
 an " owner " or else some relation of the parties must have ex- 
 isted which would give a right of lien. Gearing v. Rbbinson, 
 (1900) 27 A. B. 364;. Webo v. Gage, (1902) 1 O. W. E. 327; 
 Flack v. Jeffrey, (1895) 10 Man. 514; Blight v. Ray, (1893) 23 
 O. E. 415; Graham v. Williams, (1884) 8 O. E. 478; 9 0. E. 458; 
 Sampson v. Dalrymple, (1852) 11 Cush. 308; Batchelder v. 
 Hutchinson, (1894) 161 Mass. 462, 464. See also Garing v. 
 Bunt, (1895) 27 0, E. 149; Cornell v. Barney, (1884) 33 Sup. 
 Ct. N.Y. 134; 94 N". Y. 394, and cases cited in Ch. VIII. and Ch. 
 IX., ante. 
 
 To create a lien in favor of the materialman, there must be a 
 request of the owner and the furnishing of the materials in pur- 
 suance of that request, either upon the owner's credit or on his 
 behalf or with his privity or consent or for his direct benefit. See 
 Slattery v. Lillis, 10 0. L. E. 697. '• 
 
 The section is to be read distributively. Brooks-Sandford Co. 
 v. Theodore TeXier Const. Co., (1910) 22 0. L. E. 176. 
 
 The contractor is not entitled to a lien merely because he has 
 performed work or service; such work or service must be per- 
 formed under a definite contract. If, therefore, a contractor is 
 wrongfully prevented by the owner from fully performing his 
 contract he has no lien for damages caused thereby, although he 
 has a right of action for such damages. In like manner, if the 
 contract is rescinded, the contractor cannot claim a lien for work 
 or materials furnished afterwards; nor can the contractor recover 
 
430 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 unless he shows that the person with whom he made the contract 
 had some interest in the land and was not a mere occupant with- 
 out title. Gearing v. Robinson, (1900) 27 A. E. 364; Webb v: 
 Gage, (1902) 1 0. W. E. 327; Stevens v. Lincoln, (1874) 114 
 Mass. 476. 
 
 A contractor cannot recover in an action for damages for 
 wrongful dismissal and breach of contract and for declaration of 
 lien already registered. A motion was granted to cancel regis- 
 tration and strike out statement of claim as the claim disclosed 
 no reasonable cause of action. On appeal the Divisional Court 
 varied the order by omitting the part which directed the vacating 
 of the lien, without prejudice to the right of plaintiff to file a new 
 statement of claim for damages for wrongful dismissal. Beveridge 
 v. Hwwes, (1903) 3 O. W. E. 619. 
 
 A sub-contractor who has performed labor or furnished 
 materials may file a lien therefor before the completion of the 
 building. Baldridge v. Morgan, (1910) 24 Am. & Eng. Ann. 
 Oas. 337. When the sub-contractor has performed labor or fur- 
 nished materials his contract is executed. The building might be 
 still in construction or 1 it might never be completed, and when by 
 force of the statute a privity of contract exists between the owner 
 and a sub-contractor without reference to the original contract 
 there is no good reason that the sub-contractor should be com- 
 pelled to wait the happening of an event which neither fixes nor 
 affects his rights and which he cannot control. lb. 
 
 It is essential before the lien can arise that the material 
 should be furnished and placed upon the land upon which the lien 
 is claimed. Ludlam-Ainslie Lumber Co. v. Fallis, (1909) 19 O. 
 L. E. 419. Proximity to the land is not enough. Milton Pressed 
 Brick Co. v. Whalley, 42 D. L. E. 395, 42 O..L. E. 369. (But the 
 Ontario Act has since been amended so as to include materials 
 placed " adjacent to " the land to be affected. See 8 Geo. V. c. 29, 
 s. 1, Oht.). As to whether it is essential to the lien that the ma- 
 terials should be incorporated in the building, see the chapter en- 
 titled, " The Lien of the Materialman," ante. 
 
 An action was brought by a materialman who supplied mater- 
 ials to the contractor for the work done by him for the owner. The 
 work was done by the contractor, the defendant Bishop, under an. 
 agreement with the owner (the appellant) and the work contracted 
 for was the erection and completion of two brick houses. By the 
 
ONTARIO MECHANICS' LIEN ACT. 431 
 
 terms of the agreement the work was to be completed on, or before, 
 the 14th August, 1902. The contractor proceeded with the work, 
 but only a comparatively small part had been done on that date. 
 The owner entered into new contracts with other tradesmen for 
 the completion of the work, and it was completed by them at his 
 expense. The official referee decided that -the owner was not en- 
 titled to set-off against the value of the work done by the contrac- 
 tor the difference between the actual cost to the owner of the work 
 and the price he had agreed to pay to the contractor. On appeal it 
 was held that it was a proper conclusion from the evidence that 
 there was an unqualified and absolute refusal by the defendant 
 Bishop to go on with and complete the work > on his contract, after 
 he had been more than once requested to do so, which evidenced 
 an intention no longer to be bound by the contract and justified 
 the appellant in proceeding to complete; and the appellant was, 
 therefore entitled to recover the damages sustained by him owing 
 to the default of defendant Bishop in the performance of his agree- 
 ment. These damages exceeded the amount found due to the de- 
 fendant Bishop. 
 
 The appeal was allowed with costs, and the judgment appealed 
 from was set aside so far as it affected the appellant and the 
 action as to him was dismissed with costs. Ontario Paving Brick 
 Go. v. Bishop, (1904) 2 0. W. E. 1063, 4 0. W. E. 34. 
 
 The creation of the lien is contemporaneous with the commence- 
 ment of the work (McNamara v. Eirkland, 18 0. A. E. 2116), but 
 the right to a lien may be waived by the contractor for a sufficient 
 consideration during the pendency of the work. Kelly v. Johnson, 
 (1911), 215 111. 135. 
 
 An infant can plead infancy and defeat the lien. Price v. 
 Jennings, 62 Ind. Ill; Alvey v. Reed, 115 Ind. 148. 
 
 The burden is on the claimant to show that there is a debt due 
 and to establish all essential facts. Merritt v. Crane Co., 126 111. 
 App. 337; Brant v. City of New York, 186 1ST. Y. 599; Bradley Co. 
 v. Qagham, 208 Pa. 511. 
 
 Tearing down a building to erect a new one will create a lien, 
 but the mere demolition or removal of a building may not give a 
 lien. Thompson-Starrett Co. v. Brooklyn Heights Realty Co., Ill 
 App. Div. (N.Y.) 358. 
 
 Where work is done on a foundation, but the building is not 
 proceeded with, the workmen are entitled to a lien against the land. 
 Baker v. Waldron, 92 Me. 17. 
 
432 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 A lien may be enforced upon a quantum meruit {Fuller v. 
 Beach, (1912) 21 W. L. B. 391), unless the contract is entire and 
 there is no default of owner. Kelly v. Tourist Hotel Co., (1910) 
 20 0. L. E. 267. See Craigholme v. Southwicke, (1916) 21 0. W. 
 E. 445. 
 
 Under some statutes the knowledge of the owner and his fail- 
 ure to give the statutory notice of non-responsibility will subject 
 the owner's interest to the lien. Limoges v. Scratch, (1910) 44 
 S. C. E. 86. See High River Trading Co. v. Anderson, (1909) 10 
 W. L. E. 126. 
 
 As to trade fixtures, see Hanson v. News -Pub. Co., 97 Me. 102. 
 
 As to unreasonable and arbitrary refusal of architect's certi- 
 ficate, see Blome v. Wahl-Hennis Institute, (1909) 150 111. App. 
 164; Thaler Bros. v. Greisser, (1911) 229 Pa. 512, and cases cited 
 ante, page 77. 
 
 As to completion to satisfaction of inspector being a condition 
 precedent, see Schultz v. Faber, (1912) 21 W. L. E. 163, and 
 eases cited ante, at page 77. 
 
 ' (c) " In respect of," etc. As to the construction of this phrase 
 in a statute, see Brett v. Rogers, (1897) 1 Q. B. 525; Anlil v. 
 Godwin, (1899) 15 Times Eep. 462. See also remarks of Mac- 
 Mahon, J., in Davis v. Crown Point Milling Co., (1901) 3 O. L. E., 
 at p. 69 ; Woodruff v. Oswego Starch Factory, 74 1ST, Y. Supp. 961, 
 963, 70 App, Div. 481 ; Muzzey r. Reardon, 57 N. H. 378. 
 
 (d) " Places or furnishes any materials." — See cases cited in 
 chapter, entitled^ " The Lien of the Materialman." See also Fried- 
 man v. County of Hampden, (1910) 204 Mass. 494. 
 
 (e) "To be used." — A materialman is not bound to show that 
 his materials were used in the building; delivery upon the ground 
 for the purpose of being used is sufficient (McArthur v. Dewar, 
 (1885) 3 Man. 72), but a materialman has no lien unless the 
 materials were supplied for the purpose of being used in the 
 particular building upon which he claims to have a lien. Pollock 
 y. Morrison, 177 Mass. 412; Sprague v. Besant, (1885) 3 Man. 
 519. In the latter case, Taylor, J., said: "It will be observed 
 the words are not 'material used' or 'materials which have been 
 used,' but ' materials to be used,' plainly implying that to give a 
 lien to the person furnishing the material he must have supplied it 
 for the purpose of being used in the particular building upon which 
 he claims to have the lien." See, also, Dominion Radiator Co. v. 
 
ONTARIO MECHANICS' WEN ACT. 433 
 
 Cann, (1904) 37 N. S. E. 237. It is not necessary that the mater- 
 ials should actually have formed- part of the structure. It is suffi- 
 cient if their use was necessary and they were consumed in the 
 making of the improvements. Bepauno Chemical Co. v. Green- 
 field, 59 Mo. App. 6; Hercules Powder Co. v. Knoxville L. & J. B. 
 Co., (1904) 67 L. E. A. 487. The test is whether such materials 
 were necessary to the work of erection under the contract. 
 
 See chapter, " The Lien of the Materialman," ante. The 
 material must at least he placed upon the land. In Ludlam & 
 Ainslie Lumber Co. v. F edits, (1909) 19 0. L. E.' 419, it would 
 seem that the court concluded that the lien would have attached 
 if the material had been placed upon the landj under the control 
 of the owner, within the statutory time, even although not incor- 
 porated in the building. This is now the prevailing view in Canada. 
 
 Whether the transaction was really materials furnished for a 
 building or merely a sale of a chattel is mainly a question of fact. 
 If it is shown that such chattels are so attached as to become part 
 of the structure, and it was contemplated by the parties that they 
 should be furnished, a lien may be enforced by furnishing them, 
 or for work performed for attaching them. La Qrill v. Mallard, 90 
 Cal. 373; General Fire Extinguisher Co. v. Chaplin, (1903) 183 
 Mass. 375. See Bunting v. Bell, (1876) 23 Gr. 588; The Scottish 
 American Investment Co. v. Sexton, (1894) 26 O. E. 77'. 
 
 There is no lien for unsuitable or unnecessary materials furn- 
 ished, but not used. Hunter v. Blanchard, 18 111. 318; Boyd v. 
 Mole, 9 Phila. 118. 
 
 One merely guaranteeing- payment for material is not one who 
 furnishes material arid is not entitled to a lien. Bounds v. Bash- 
 man, 116 Me. 199. 
 
 Where one owner^ enters into an entire contract for the supply 
 of material to be used in seyeral buildings the materialman can 
 ask to have his lien follow the form of the contraot, and that it be 
 for an entire sum upon all the buildings. If the owner desires to 
 invoke the statute to the extent of having the lien upon any 
 building confined to the value of the material going into that 
 building, the onus is upon him to show the facts, and, if the facts 
 cannot be ascertained, less violence will be done to the statute by 
 construing it as indicated than by rendering it nugatory in many 
 instances • in which the legislature apparently intended a lien to 
 exist. Ontario Lime Association v. Grimwood, (1910) 22 O. L. E. 
 
 MX— 28 
 
434 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 17. Poison v. Thomson, (1916) 29 D. L. E. 395. In Indiana 
 it has been held that it is not sufficient for the enforcement 
 of a materialman's lien to show that the materials were furn- 
 ished to the contractor and were in fact used in the building, 
 and that the contractor purchased them for that purpose ; it must 
 further appear that they were furnished by the materialman for 
 use in the particular building on which it is sought to hold a lien. 
 Topp v. Standard Metal Co., (1910) 47 Ind. App. 483. But the 
 terms of the contract must be considered. 
 
 Where a materialman furnishes material to an owner of cer- 
 tain land ostensibly for the construction of a building on that 
 land the materialman is entitled to a lien on that land, even if the 
 materials were not actually incorporated in the building. Canadian 
 Lumber Yards, Limited v. Ferguson et al., (1920) 1 W. W. R. 
 266. See also Kalbfleisch v. Hurley, 34 0. L. R. 268, 25 D. L. R. 
 469. 
 
 1 ' (f ) " In the making, construction, etc." — Making slight changes 
 in a building, which work is merely incidental to the putting in of 
 machinery which is personal property, will not give rise to a 
 mechanics' lien, even under statutes allowing a lien for alterations 
 and repairs. Curnew v. Lee, (1886) 143 Mass. 105. 
 
 Defendant employed contractor under a written contract to 
 clear land for cultivation purposes. A laborer who worked for the 
 contractor in clearing the land was held not entitled to a lien under 
 s. 4 of the British Columbia Act, as amended. Black v. Hughes, 
 (1902) 22 C. L. T. 220. 
 
 The lien is given for labor furnished, as well as for labor per- 
 formed (Wera v. Bowerman, 171 Mass. 458), but under some 
 statutes where a person contracts to furnish completed articles his 
 employees have no lien. Monroe v. Ciarke, (1912) 107 Me. 134. 
 
 Where the owner dismisses the contractor and arranges with a 
 sub-contractor of the original " contractor" to finish the work, the 
 sub-contractor is entitled to a lien as a " contractor " in respect 
 to all work done after such arrangement. Petrie v. Hunter, 2 
 O. R. 233; 10 A. R. 127. 
 
 The lien does not extend to unliquidated damages due to the 
 contractor from the owner on account of the violation of the terms 
 of the contract. Hoyt v. Miner, 7 Hill (N.Y.) 525. 
 
 A provision that a certain portion of the money shall be held 
 by the owner is imperative, and the owner neglects it at his peril. 
 
ONTARIO MECHANICS' LIEN ACT. 435 
 
 Torrance v. Cratchley, 31 0. E. 546 ; Green Lumber Co. v. Nutri- 
 ment Co., 113 111. App. 635. 
 
 There can 'be no doubt that filling in and grading the earth 
 about buildings already erected would be work giving a lien under 
 this section. Even under a statute not so comprehensive in its 
 terms it has been held that a mechanics' lien may exist for grading 
 a lot, the test being whether it was reasonably necessary for the 
 proper construction and occupation of a house. Reid v. Berry, 
 (1901) 178 Mass. 260. See also Perry v. Potashinshi, (1897) 169 
 Mass 351. 
 
 Whether grading a lot on which a house is afterwards built, 
 is done as part of the work of construction, so as to constitute a 
 commencement of the building, is a question of fact depending on 
 the circumstances of each particular case. Boisot, s. 57, citing 
 Kelly v. Posenstock, 45 Md. 389. 
 
 The lien given for labor and materials furnished in respect to 
 any structure or land includes hauling the materials there. Fowler 
 v. Pompelly, (1903) 76 S. W. 173; McClainY. Hutton, 131 Cal. 
 132; Hill v. Newman, (1861) 80 Am. Dec. 473. 
 
 Pumping water which an independent contractor caused to 
 flood the basement is properly allowed as an extra expense in a 
 suit to enforce a mechanic's lien (Vaughan v. Ford, (1910) 162 
 Mich. 37) ; but items for street car tickets and meals for the sup- 
 erintendent of the work are not proper items in a claim of lien. 
 Haas Electric & Mfg. Oo. v. Springfield Amusement Park Co., 
 (1908) 236 111. 452. 
 
 A contractor who has built two separate buildings on the same 
 lot under two distinct contracts does not acquire a lien on the 
 entire property for his entire account. Currier v. Friedrick, 
 (1875) 22 Gr. 243. See Oldfield v. Barbour, 12 Pr. Eep.554; 
 Fairclough v. Smith, (1901) 13 Man. 509. 
 
 Commenting on the decision in Currier v. Friedrick, supra, 
 Boisot says (s. 174) : " The reason, given for the decisions from 
 Massachusetts, Minnesota and Canada is that a mechanic cannot 
 have a lien on one building for work done on another. But, as 
 we have seen, this rule does not apply where both buildings are 
 erected on the same lot, for the same owner, under one contract. It 
 seems difficult to see why the fact that the work was done under 
 two or more contracts between the same parties should make any 
 difference." But it would be an extension of the terms of the 
 statute to impose an incumbrance upon one property for work 
 
436 THE LAW OE MECHANICS' LIENS IN CANADA. 
 
 done upon another. Where there are two contracts they must be 
 separated. See O'Brien v. Fraser, 41 D. L. J. at, p. 327, where 
 McKeown, C. J., says, " I think the law is correctly stated in Wal- 
 lace's Mechanics' Lien Laws in Canada. 
 
 In Fairclough v. Smith, supra, the lien was registered against 
 two lots of land owned by different persons in respect to work 
 done upon two houses, one on each of the lots, on the order of one 
 of the owners and for an amount claimed to be due for the work 
 on both houses, without apportioning the amount- as between the 
 I two. Killam, C.J., said : " I regret that I can devise no method to 
 give effect to the claims asserted in this suit. It is impossible to 
 find that the registered claims were sufficient to bind both lots held 
 severally, and it seems equally impossible to give effect to them 
 against one of the lots only for the proper amount. To choose 
 ' one or the other to be bound would be wholly arbitrary." See also 
 Booth v. Booth, (1902) 3 0. L. E. 294, cited, post', and Orr v. 
 Fuller, (1899) 172 Mass. 597, referred to under s. 17, post. 
 
 The Act does not give a lien upon property owned by one per- 
 son for materials furnished in respect of another property owned 
 by another person. Dunn v. McCallum, (1907) 14 0. L. B. 249. 
 See Ontario Lime Association v. Grimwood, 22 0. L. E. 17; Build- 
 ers' Supply Co. v. Huddlestone, 25 Man. L. E. 718. 
 
 Where there is an entire contract for labor and materials and 
 the claim for materials was disallowed, it was held that the plain- 
 tiff, a sub-contractor,, could nevertheless recover for the labor, 
 under the terms of the British Columbia Act. Brown v. Allan, 
 (1913) 25 W. L. E. 128; Iruin v. Victoria Home Cons. Co., fol- 
 lowed. 
 
 Where the terms of the contract were "15 per cent, time and 
 materials," and defendant bought and supplied' some bricks, the 
 plaintiffs were held to be entitled to the 15 per cent, conrmis- 
 sion on the materials furnished by the, defendant. Thomas v. 
 Roelofson, (1917) 13 0. W. K. 201. Plaintiffs under a contract 
 to do extensive repairs, were to be paid by the owner on the basis 
 of 15 per cent, on the cost of the work. Plaintiffs engaged a firm 
 of plasterers as sub-contractors to do the plastering. It was con- 
 tended by defendant that he should not' be required to pay this 
 sub-contractor's bill, involving a fair profit to the sub-contractor, 
 and also pay to the plaintiffs 15 per cent, profit on the charge 
 made by the sub-contractor. It appeared, however, from the evi- 
 dence that this method of getting the plastering done, including 
 the sub-contractor's profit, was at least as cheap as if the plaintiffs 
 
ONTAEIO MECHANICS' UEN ACT. 437 
 
 had directly supervised the* work, and as this work cost the plain- 
 tiffs the amount of the plasterer's bill, the 15 per cent, was 
 properly chargeable. Falconer v. Ilartlen, (Wallace Co. J.), unre- 
 ported (N.S.). 
 
 (g) " Altering, improving or repairing." — See. Curnew v. Lee, 
 143 Mass. 105, as to certain work on a building not constituting 
 an alteration within the statute. See also construction of the word 
 "repaired" as used in Workmen's Compensation Act, 1897. Dredge 
 V. Conway, 70 L. J. K. B. 494, (1901) 2 K. B. 42, 84 L. T. 345. 
 
 (h.)" Shall by virtue thereof have a 'lien." — There are conflict- 
 ing decisions upon the question whether a right to a lien arises 
 where the work has been done on public buildings, such as school- 
 houses, which are not liable to sale, in execution. The question is 
 dealt with in the chapter entitled, " Property which may be sub- 
 ject to lien," ante. 
 
 , (i) "Upon the erection, building, etc., and the lands occupied 
 thereby, or enjoyed therewith." It has been held in Pennsylvania 
 (Presbyterian Church v. Stetler, 26 Penn. 246), that a .destruction 
 of the building for which the work has been done or the materials 
 furnished, by fire, or otherwise, discharges the lien. Lewis, C.J., 
 in delivering the opinion of the Court in that case, said : " The 
 equity of a mechanics' lien -upon a building is founded upon the 
 labor and materials furnished by him in constructing it. Attach- 
 ing itself to the building, and depending upon it for existence, the 
 lien must, necessarily, share the fate of the building'. So, if the 
 building, after erection, should be destroyed by accident, before 
 the ground on which it stood passed to a purchaser, the lien would 
 be gone. The reason for binding the land is gone, with the build- 
 ing." See also Coddington v. Dry Dock Co., (1863) 31 N. J. L. 
 477. But a recent decision in Missouri (Hooven v. Featherstone, 
 
 (1901) 49 C. C. A. 229), holds that the lien continues attached to 
 the real estate, notwithstanding the 1 destruction of the building. 
 See also to the same effect, Armigo v. Mountain Electric Co., 
 
 (1902) 67 Pac. Eep. 726; Smith v. Neubauer, (1895) 33 L. E. A. 
 685. Under the lien Acts existing in Canada, it would probably 
 be held that after the lien is acquired it will continue attached to 
 the entire freehold, and the destruction of the building will not 
 defeat it. 
 
 Where a lien on a mine was claimed in British Columbia, it ap- 
 peared that none of the work was done and none of the materials 
 
438 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 were furnished on mining locations Nos. 128 and 129, but these 
 were " enjoyed " with No. 258, on which the work was done, and 
 it was held that the former locations were therefore subject to the 
 lien. Davies v. Grown Point M. Co., (1901) 3 0. L. E. 69. 
 
 As to the area of land subject to the lien, Fuller, C.J., in 
 Springer Land Association v. Ford, (1897) 168 IT. S. 513, said: 
 " The truth is that what area of land is subject to lien in a given 
 case largely depends on the character of the improvement. The 
 extent of ground proper and necessary to the- enjoyment of a build- 
 ing, a wall or a fence, would not be the same as that required for 
 or appertaining to an irrigation system, but the principle of deter- 
 mination is the same." 
 
 " In one sense lands cannot be said to be ' enjoyed with ' a 
 building until it has been erected, but, as the lien may be regis- 
 tered before the execution of the work, and may expire before the 
 land has become occupied, the words dq not admit of so narrow 
 a construction, and the purposes for which the building is to 
 be erected, the situation of the adjoining land of the owner, the 
 contract for the performance of the work, and all other relevant 
 facts and circumstances must be taken into consideration in deter- 
 mining what lands are affected by the lien." Wentitforth Lumber 
 Co. v. Coleman, (1904) 3 0. W. E. 618, per Osier, J.A. 
 
 A mechanics' lien is maintainable for installing a water system 
 in a dwelling house as against the land occupied or enjoyed there- 
 with and which was specified in the lien which was registered, al- 
 though the parcel of land itself upon which the house was situate 
 was not included in the registered claim of lien ; its omission there- 
 from operated only as a relinquishment of part of the security and 
 did not have the effect of extinguishing the remainder of it. Jack- 
 son Water Supply Co. v. Bardeck, (1915) 21 D. L. B. 761. Where 
 the buildings are separate but are all on one tract the lien extends 
 to the whole parcel. Judah v. Cheyne, (1913) 53 Ind. App. 476. 
 
 A house not attached to the land upon which it rests is a chat- 
 tel, not part of the realty. Devine v. Callery, 38 D. L. E. 542, 40 
 0. L. E. 505. 
 
 (j) " Wharf." — A statute giving a lien on wharves " and other 
 structures connected therewith " extends to all structures on, or 
 connected with, a wharf. Collins v. Drew, (1876) 67 K Y. 149. 
 
 The word " wharf " as used in two statutes in England (Factory 
 and Workshops Act, 1895, s. 23, and Workmen's Compensation 
 
ONTARIO MECHANICS' LIEN ACT. 439 
 
 Act, s. 7), was held to include a floating structure carrying cranes 
 for loading and unloading vessels, and which was moored in the 
 Elver Thames, 500 feet from the shore by chains fastened to piles 
 driven in the bed of the river. There was no. connection with the 
 shore except by boats. Ellis v. Cory, (1902) 1 K. B. 38. See also 
 Haddock v. Humphrey, (1900) 1 Q. B. 609; Kenny v. Harrison, 
 (1902) 2 K. B. 168. 
 
 Where the land is sold under execution, or otherwise, the lien 
 is transferred to the proceeds. Phillips, ss. 196-8. 
 
 Under the Winding-Up Act (E. S. C. c. 129), s. 62, the lien 
 is a preferential claim. Be Empire Brewing and Malting Com- 
 pany, (1891) 8 Man. 424. See Re Ibex Co., (1902) 9 B. C. 557. 
 
 As a liquidator represents no higher claim than that of the in- 
 solvent company, liens registered within thirty days after their 
 commencement, for materials supplied and for work done, prior to 
 the service of the petition to wind up the company, are to be paid 
 in priority to ordinary creditors. Re Clmtin Thresher Co., (1910) 
 15 O. W. E. 318. 
 
 A private corporation cannot defeat a lien on the ground that 
 the contract was ultra vires. General Fire Extinguisher Co. v. 
 Magee, (1901) 49 Atl. Eep. 366. 
 
 There can be no lien on the property of a minor for work 
 ordered by his guardian where the guardian had not obtained an 
 order of the court authorizing him to have the work done. Copley 
 v. O'Neil, (1869) 57 Barb. (N. Y.) 299; Collins v. Martin, (1877) 
 41 "0". C. Q. B. 602. 
 
 In the absence of a valid legal authority for the making of 
 improvements no lien for such improvements can attach to an 
 infant's land — whether the contract is made with the guardian 
 or with the infant in person. Logan Planing Mill Co. v. Aldredge, 
 (1908) 15 L. E. A.' 1159. 
 
 (k) "Limited, however, in amount." — In Smith Co. v. Sissiboo 
 Pulp & Paper Co., (1903) 36 N". S. E. 348; (affirmed, (1904) 35 
 S. C. E. 93), Mr. Justice Graham, in referring to s. 3, s.-s. 1 of the 
 Nova Scotia Mechanics'! Lien Act, which is similar to section 6 of 
 the Ontario Act, said (at p. 358) : "It is quite clear that, except 
 where the owner has made payments contrary to the provisions of 
 section 8" — (section 12 of Ontario Act) — "that is, either exceed- 
 ing the 85 per cent, before the time limit, or within that amount 
 after notice in writing of the lien, or which are not bona fide, a 
 
440 THE LAW OF MECHANICS' LIENS IX CANADA. 
 
 sub-contractor isnot entitled to enforce his lien against the property 
 1 for a greater amount than the amount due from the owner to the 
 contractor. This is the effect of s. 3, s.-s. 1, last part " — (section 6 
 of the Ontario Act, .last part) — "and ss. 6 and 7." See Briggs v. 
 Lee, (1880) 27 Gr. 464; ss. 13 (3) ; ss. 14 (1) and s. 47. See also 
 remarks of Bole, Co. J., in Leroy v. Smith, 8 B. C. 293, on similar 
 words in corresponding section of British Columbia Act. 
 
 (1) " Except as herein provided." — " Herein" i.e., by ss. 12, 15. 
 
 This section (6) differs from former section 4 in the British 
 Columbia Act, and the decision in Anderson v. Codsall, (1900) 7 
 B. C. B. 404, would not apply to this or any section of the Ontario 
 Act. 
 
 The lien is subject to the dower of the wife of the owner. Van 
 Vrouker v. Eastman, (1843) 7 Met. 157, 161, .163; 20 Am. and 
 Eng. Ency. of Law, 2nd ed., 486. 
 
 The general lien under this section and the special one in the 1 
 nature of a vendor's lien upon the material itself^ depend upon the 
 placing upon the land to be affected, of the material in question. 
 Proximity to the land is not enough, it must be on the land. Mil- 
 ion Pressed Brick Co. v. Whalley, (1917) 42 0. L. R. 369, 42 
 D. L. R. 395. The section has since been amended by adding after 
 the word " upon " in the eighteenth line thereof the words " or 
 adjacent to." The decisions under the" Alberta Act are in conflict 
 with the above case. See Trussed Concrete Steel Co. v. Taylor 
 Engineering Co., (1919) 46 D. L. B. 663. Although an unimport- 
 ant part of the contract remains unfinished, one who contracts to 
 supply material or do work; on a building is entitled to enforce a 
 lien for the contract price less the cost of completing the contract. 
 Taylor Hardware Co. v. Hunt, (1917) 39 O. L. E. 85, 35 D. L. E. 
 504., See also 36 D. L. B. 383. 
 
 , Where a builder has substantially completed the work, but a 
 portibn of it is not as it should be according to the contract, he is 
 entitled to recover the price agreed upon subject to a deduction, the 
 measure of which is the sum which it would take to alter. the work 
 so as to make it correspond with the contract. Halsbury, (1918) 
 Supp. 
 
 The representative of the creditors of a building contractor who 
 contracts with the owner to take over, as the nominee of the con- 
 tractor, the work of completing the contract, and obtains from the 
 owner a stipulation whereby all moneys earned or to be earned 
 
ONTARIO MECHANICS' LIEN ACT. 441 
 
 under the contract were to become payable to such representative in 
 the place of the original contractor, is entitled to file a mechanics' 
 lien for the amount due on completion of the work in like manner 
 as would the original contractor, notwithstanding that there was 
 no express assignment in writing of the right of such lien from the 
 latter. Alsip v. Monhman, (1912) 9 D. L. E. 97 (Man.). 
 
 There is no lien in respect to the cost of preparing for work 
 to be done upon a site, although such work has been frustrated with- 
 out fault of the contractor. British Columbia Granitoid Co. v. 
 Dominion Shipbuilding, Engineering and Dry Doclc Co., (1918) 
 2W.W. E. 919 (B.C.). 
 
 A mechanics' lien will attach for all materials supplied in the 
 erection of a building, although the time for filing has expired as 
 to certain classes of material, ordered at a different time, where 
 it is shown that there was a prior agreement to purchase all material 
 required for the building from such vendor. WhitloGlc v. Loney, 
 (1918) 38 D. L. E. 52, 10 Sask. L. E. 337. See also Flett v. World 
 Construction, 15 D. L. E. 628, 19 B. C. E. 73. 
 
 The lien of a contractor attaches when he has completed his 
 contract, but if the contract provides for interim payments, a lien 
 attaches -when each payment 'becomes due to the extent of the 
 amount thereof. Braden v. Brown, (1917) 24 B. C. E. 374. 
 
 The words of the section relating to work to be done in con- 
 nection with a "mine," would not include the drilling of an oil 
 well. Henshaw v. Federal Oil & Gas Corp., Ltd., (1916) 28 
 D. L. E. 750. 
 
 The Act does not give a lien for work done or materials burn- 
 ished in connection with the digging of wells, apart from the work 
 done or materials furnished in connection with one of 1 the " works " 
 enumerated in the section. Stiffel v. Corwm, (1911) 1 W. W. E. 
 339i 
 
 The lien of a sub-contractor does not attach until he has com- 
 pleted his contract, or until, if the contract provides for interim 
 payments on account, such a payment becomes due. Nepage v. Pin- 
 ner, 21 D. L. E. 315; Braden v. Brown, (1917) 3 W. TV. B. 906 
 (B.C.). 
 
 Where the act of the employer prevents the completion of the 
 work the employer cannot set up non-completion in answer to the 
 lien. Taylor Hardware Co. v. Himt, (1917) 36 D. L. E. 383. 
 
 An estoppel in pais cannot prevent a lien. " It would emascu- 
 late this section to hold that an estoppel in pais would do what the 
 
442 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 section declares only a signed agreement can do." Anderson v. 
 Fort William Commercial Chambers, (1915) 25 D. L. E. 319, per 
 Kiddell, J. . 
 
 The statute does not extend to the cost of preparing for work 
 to be done upon a site, such as assembling of the necessary tools and 
 equipment, although such work has been frustrated without fault 
 of the contractor. Any such loss must be treated as damages. Brit- 
 ish Columbia Granitoid, etc., Co. v. Dominion Shipbuilding, Engin- 
 eering and Dry Dock Co., (1918) 2 W. W. E. 919. 
 
 "Where land has a potential value as a future business site, and 
 is subject to a mechanics' lien for material used in erecting a 
 building thereon, the proper method of determining the increased 
 selling value occasioned by the building, is to ascertain the value > 
 of the property without the building, and then sell the whole 
 property. Whitlock v. Loney, (1918) 38 D. L. E. 52, 10 Ssisk. 
 L. E. 377. 
 
 Where the title to furnaces sold is retained by a vendor until 
 • the payment of the price, the rights of such parties in Ontario are 
 governed by section 9 of the Conditional Sales Act, E. S. 0. 1914, 
 c. 136, and such vendor cannot rank as a lienholder under the 
 provisions of the Mechanics' and Wage-Earners' Lien Act. Hill v. 
 Storey, (1915) 34 0. L. E. 489, 25 D. L. E. 247. 
 
 As to right of lessor of article who leases to owner with a right 
 to purchase and reserves the title until paid, see V. S. Construc- 
 tion Co. v. Bat Portage Lumber Co., 25 D..L. E. 162, 9 W. W. E. 
 657, 33 W. L. E. 101. 
 
 Electric light fixtures and an electric light sign on the outside 
 of the building, put up by the tenant, were considered not to have 
 become part of the realty, but to be chattels removable by the tenant. 
 Peters, Rohls & Co. v. Maclean, (1913) 25 W. L. E. 358 (Alta.). 
 See also Re McConkey, (1920) 47 0. L. E. 411; Scott Fruit Co. v. 
 Wilkins (1920) 3 W. W. E. 155. 
 
 The old rule applicable to the construction of covenants was 
 quoted approvingly by Hodgins, J.A., in Deldo v. Gough- Sellers, 
 34 O. L. E. at p. 277. It was thus stated by Buller, J., in Terry v. 
 Duntze; 2 H. Bl. 339 : " It is a rule of construction long estab- 
 lished in the construction of covenants, that if any money is to 
 be paid before the thing is done, the covenants are mutual and in- 
 dependent. ... By the terms of the contract then two several 
 sums of money were to be paid before the thing to be done was 
 done. The plaintiffs, therefore, were clearly entitled to their 
 
ONTARIO MECHANICS' LIEN ACT. 443 
 
 action for the money without averring performance, and the 
 defendant to his remedy on the covenants." See also Government 
 of Newfoundland v. Newfoundland R. W. Co., (1888) 13 A. C. 
 199; Workman, Clark & Co. v. Lloyd Brazileno, (1908) 1 K. B. 
 968. 
 
 7, When husband's interest liable for work done or materials 
 furnished on land of married woman. — Where work or service is 
 done or materials are furnished upon or in respect of the land 
 of a married woman with the privity and consent of her husband, 
 he shall be conclusively presumed to be acting as well for himself 
 so as to bind his own interest, and also as her agent for the pur- 
 poses of this Act, unless before doing such work or service or fur- 
 nishing such materials the person doing or furnishing the same 
 shall have had actual notice to the contrary. 10 Edw. VII. c. 
 69, s. 7. 
 
 (a) " Lands of a married woman." — Before this section was 
 passed the separate property of a married woman only became sub- 
 ject to a mechanics' lien by virtue of a contract made by her or 
 under authority express or implied. There was no presumption 
 that the husband acted as the agent of the wife; the question of 
 agency was one of fact to be determined from all the circumstances 
 of the case. Wagner v. Jefferson, (1876) 37 TJ. C. Q. B. 551 ; Kin- 
 caid v. Reid, (1884) 7 0. E. 12. Knowledge by the wife that the 
 work was being done on her property and silent acquiescence was 
 not sufficient to make her property subject to the lien. See West 
 v. Sinclair, (1892) 23 C. L. J. 119, 12 €. L. T. 44. In the absence 
 , of knowledge of or participation in a fraudulent intent on the part 
 of the husband to improve his wife's property at the expense of 
 his creditors, the wife's property was not liable for such improve- 
 ments. To protect contractors and others in dealing with the 
 husband when the property was the wife's separate estate this sec- 
 tion was enacted. Instead of the claimant being compelled to prove 
 the husband's authorization by the wife, he is now conclusively pre- 
 sumed to be acting as the agent of his wife, unless the claimant 
 has actual notice to the contrary. 
 
 The contract, however, is the contract of the wife"; hence, where 
 the husband makes one contract for repairs to two houses, one be- 
 longing to his wife and the other to himself, a lien cannot be claimed 
 
444 THE LAW OE MECHANICS* LIENS IN CANADA. 
 
 against both properties for an amount due in respect to both houses 
 without apportioning the same. Fairclough v. Smith, (1901) 13 
 Man. 509. 
 
 A husband may assert. a lien upon the property of his wife for 
 work or materials performed or supplied. Booth v. Booth, (1902) 
 3 0. L. R. 294. 
 
 Under this section a married woman will not.be permitted to 
 shew that her husband was not authorized by her to make the con- 
 tract unless she can also shew that the contractor had actual notice 
 of the absence of such authority. 
 
 A person contracting with ithe husband without actual notice 
 that the husband was not authorized to make the contract may assert 
 a mechanics' lien upon the interest of the wife in the property sub- 
 ject to the lien, as well as upon the interest of the husband. 
 
 As to effect of verbal undertaking by wife, to secure builder, by 
 a mortgage, see Chute v. Gratten, 32 N. B. E. 549. 
 
 Formerly a widow's dower was not affected by the lien of the 
 mechanic unless the husband acquired the property after the lien 
 had attached. Schceffer v. Weed, 8 111. 513 ; Gove v. Cather, 23 111. 
 634; Bishop v. Boyle, 9 Ind. 169. 
 
 The lien may, probably, under this section be enforced against 
 the widow's dower since the husband may bind his wife's estate or 
 interest. 
 
 8. (1) Property upon which lien shall attach. — The lien shall 
 attach upon the estate or interest of the owner in the property 
 mentioned in section 6. 
 
 (2) Where estate charged is leasehold/ — Where the estate or 
 interest upon which the lien attaches is leasehold the fee simple 
 may also, with the consent of the owner thereof, be subject to the 
 lien, provided that such consent is testified by the signature of the 
 owner upon the claim of lien at the time of the registering thereof, 
 verified by affidavit. 
 
 (3) Prior mortgage. — Where the land upon or in respect of 
 which any work or service is performed, or materials are placed or 
 furnished to be used, is encumbered by a prior mortgage or other 
 charge, and the selling value of the land is increased by the work 
 or service, or by the furnishing or placing of the materials, the lien 
 
ONTARIO MECHANICS' LIEN ACT. 445 
 
 shall attach upon such increased value in priority to the mortgage 
 or other charge. 10 Edw. VII. c. 69, s. 8. 
 
 By 8 Geo. V. c. 29, s. 3, s.-s- 1 of this section was amended by 
 adding at the commencement thereof the words ' " save as herein 
 otherwise provided." 
 
 Where a mortgage has been duly registered, advances made 
 thereunder after mechanics' liens on the mortgaged property have 
 arisen, but before their registration, take precedence of the liens. 
 A mortgage having been held to have priority over liens, both 
 upon the land and the improvements, a lienholder cannot take 
 away that priority by shewing that the work and materials in- 
 creased the selling value of the property. Warwick v. Sheppard, 
 (1917) 39 O.L.E. 99, 35 D.L.E. 98. Under the Saskatchewan Act 
 it has been held that a lienholder for materials supplied and used 
 in the construction of a building upon land subject to an existing 
 mortgage is entitled to rank upon the increased value in priority to 
 the mortgage in the proportion only that the value of the materials 
 supplied by him exclusively bears to the whole cost of the building, 
 and not for any part of the increase brought about otherwise. In 
 computing the proportionate amount, no regard should be taken to 
 amounts paid the lienholder on account before the action was 
 brought. Security Lumber Co. v. Duplat, (1916) 9 Sask. L. E. 
 318, 29 D. L. E. 460, 34 W. L. E. 1131. See Northern Trust Co. v. 
 Battell, (1916) 9 Sask. L. E. 103, 29 D. L. B. 515. The value 
 of the property before the lien attached is to be taken for the pur- 
 pose of fixing the upset price for which ihe lienholder could have 
 priority over a mortgagee as against the increase in value of the 
 mortgaged premises by reason of the work and improvements; the 
 latter, however, must be limited only to the extent to which the 
 specific contract enhances the selling value, and not for work and 
 improvements by others under independent contracts ; if no greater 
 •sum than the upset price is obtained at the sale the lienholder has 
 no priority, and his only recourse, is against the equity of redemp- 
 tion. Champion v. The World, (1916) 22 B. C. B. 596, 27 D. L. E. 
 506, 34 W. L. E. 317. 
 
 A vendor of land to whom a portion of the purchase price is 
 due is to be treated as if mortgagee, despite the fact that the land 
 has been conveyed to the purchaser, and mortgaged by him ; a duly 
 registered reconveyance to the' vendor in payment of the unpaid 
 purchase money, the vendor assuming the existing mortgage, has 
 
446 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 priority to any unregistered lien under the Mechanics' and Wage- 
 Earners' Lien Act of which the vendor had no actual notice. 
 Charters v. McGracken, (1916) 36 0. L. E. 260, 29 D. L. E. 756. 
 
 It is not essential to the preservation of a lien against a prior 
 mortgagee that it shall be stated in the registered claim that it is 
 against the mortgagee, inclusively or otherwise. Whaley v. Linnen- 
 bank, (1916) 36 0. L. E. 361, 29 D. L. E. 51. 
 
 As to question of lien upon increased value in priority to 
 mortgage, see Henderson v. Morris, (1916) 10 0. W. E. 34. 
 
 Sub-section 3 of this section gives a lien priority over mortgages 
 upon the increase of work or service done thereon or materials 
 supplied. Section 14 gives priority to a lien which has been 
 registered, or of which written notice has been given to the mort- 
 gagee upon the land itself, including the buildings and erections 
 thereon, over all subsequent advances under a mortgage. 
 
 The priority of an unpaid vendor is not forfeited by the sub- 
 stitution of a' mortgage for the unpaid amount. Cook v. Koldoff- 
 sky, (1916) 28 D. L. E. 346. See also Sterling Lumber Co. V. 
 !fones, 29 D. L. E. 288. 
 
 By 8 Geo. V. e, 29, s. 4, this section was amended by adding 
 thereto the following sub-section: (4) The selling value of land 
 incumbered by a prior mortgage or other charge, shall be deemed 
 to be increased by the value of the work or service performed upon 
 and of the material furnished or placed thereon or adjacent thereto. 
 
 (a,)" The lien, etc." — That is, every lien created by section 6, 
 whether arising by virtue of the performance of 'work Or. services 
 or the placing or furnishing of materials in the making or im- 
 proving of any building, etc.,- upon such building, etc., for the 
 price of such work, service or material, limited in amount to the 
 sum justly due to the person entitled to the lien and to the sum 
 justly owing (except as to the percentage to be retained) by the 
 owner. This' lien is now further limited to "the estate or interest 
 of the owner as denned by this Act." 
 
 This section, read with section 6 and the definition of " owner " 
 in section 2, gives the principal characteristics of a mechanics' lien.' 
 It arises by virtue of a contract, but may be claimed by persons not 
 parties to that contract, as sub-contractors and laborers; the per- 
 son against whom it is claimed must have some estate or interest 
 in the property sought to be made subject to the lien ; it is limited 
 in amount both by the sum due the claimant and the amount owing 
 
ONTARIO MECHANICS' LIEN ACT. 447 
 
 by the owner ; and it only binds the estate or interest of the owner, 
 that is the person with whom a contract, express or implied, for the 
 performance of the work or service or the placing or furnishing 
 of the materials has been made. Subject to the limitations imposed 
 by the Act every person who performs work or furnishes material 
 in the carrying out of the contract has pro tanto a lien for the 
 price thereof. There is nothing in the Act to indicate that it was 
 intended to be operative to a greater extent than as giving a statu- 
 tory lien, issuing. in process of execution, of efficacy equal to, but 
 not greater than, that possessed by the ordinary writs of execution. 
 A mechanics' lien is not analogous to a vendors' lien. King v. 
 Alford, (1885) 9 0. E. 643. The mechanics' lien is the creature 
 of the statute and must be limited by its provisions. This section 
 applies to and qualifies all liens created by the Act. Crone v. 
 Struthers, (1875) 22 Gr. 247. 
 
 The lien of a sub-contractor being limited to the amount owing 
 by the owner attaches not only upon the property on which the 
 work is done or materials furnished, but also upon the amount so 
 due by the owner. The lien arises from the commencement of the 
 work or the furnishing of materials, continues for thirty days 
 without registry, and by registration for sixty days longer ; at any 
 time within those periods proceedings to enforce may be taken and 
 lis pendens registered. See Lang v. Gibson, (1885) 21 C. L. J. 74. 
 Compare McOully v. Ross, (1886) 22 C. L. J. 63, and 22 C. L. J. 
 75. 
 
 The lien is an interest in land. Stewart v. Gesner, (1881) 
 29 Gr. 329; Ormsby v. Ottman, (U.S.) 85 Ted. 492, 29 C. C. A. 
 295. 
 
 (b) "Shall attach upon the estate or interest of the owner." — 
 A further limitation of the lien is imposed by these words, and 
 it was considered necessary to declare expressly that the definition 
 of " owner " contained in section 2, is applicable. It follows, as 
 an essential to the existence of a lien, that the person at whose 
 request, and upon whose credit or on whose behalf or with whose 
 privity or consent or for whose direct benefit the work or service is 
 performed or materials are placed or furnished should have some 
 estate or interest in the land sought to be affected by the lien. If 
 he has any estate or interest, however small, the lien attaches to 
 the extent of that interest. Not only must he have an estate" or 
 interest, but the work, etc., must be done at his request. Graham 
 
448 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 v. Williams, (1885) 8 0. E. 478, on appeal, 9 0. E. 458; Gearing 
 v. Robinson, (1900) 27 A. E. 364; Webb v. Gage, (1902) 1 0. W. E. 
 327; Fairclough v. Smith, (1901) 13 Man. 509. The contractor, 
 workman or materialman, must inquire as to the estate or interest 
 of the employer in the land ; he accepts the employment or supplies 
 the materials at his own risk. 
 
 The lien attaches upon this estate -or interest from the com- 
 mencement of the work or service or from the commencement of 
 the furnishing of materials. Section 2 (3) ante. In this respect 
 the present differs from the preceding Act and from the present 
 Manitoba Act, under which the lien attaches from the placing of 
 the materials. See Manitoba Act, s. 4 (a), ante; Robock v. Peters, 
 (1900) 13 Man. 124. 
 
 See cases cited in chapter " The Owner and His Interest," 
 arnte. See also chapter entitled " Priorities," ante. 
 
 (c) " Where the estate or interest charged by the lien is lease- 
 hold." — The landlord's interest only becomes subject to the lien 
 where this sub-section is complied with. He may have been aware 
 that the work was being done, the doing of the work may even 
 have been one of the terms of the lease, yet his interest will not be 
 
 'affected by the lien unless by his own consent signified as pro^ 
 vided. Webb v. Gage, (1902) 1 0. W. E. 327; Graham v. Williams, 
 (1885) 8 0. E. 478, 9 0. E. 458; Flack v. Jeffrey, (1895) 10 Man. 
 514- It does not matter that the landlord becomes entitled to the 
 benefit of the improvements. See Birkett v. Brewder, (1902) 1 
 0. W. E. 62. 
 
 It follows also from this sub-section that a lien upon the land- 
 lord's interest must be registered. The lien upon the tenant's is 
 good for thirty days without registry ; here the consent must be 
 signified at the time -of registering the lien. 
 
 (d) " Upon or in respect of any work or service is performed." 
 ' — rThe lien extends only to the property upon or in respect of which 
 the work is performed or the materials furnished to be used, and 
 this being so, it follows that though the work is done under one 
 contract and for the same owner, no lien is created upon one 
 property for work done or materials furnished upon another dis- 
 tinct property. Currier v. Friedrick, (1875) 22 Gr. 243; Oldfield 
 v. Barbour, (1888) 12 P. E. 544; Rice v. Nantasket Co., (1870), 
 140 Mass. 256. If the amount for which the lien is claimed can be 
 apportioned between two or more properties, or if separate prices 
 
ONTARIO MECHANICS' LIEN ACT.- 449 
 
 are fixed, it seems a separate lien may be claimed on each property 
 for the amount due in respect to it. Booth v. Booth, (1902) 3 
 0: L. E. 294; Shaw v. Thompson, (1870) 105 Mass. 345; but see 
 Fairclough v. Smith, (1901) 13 Man. 509; Bathbun v. Hayford, 
 (1862) 87 Mass. 406. In an action by a husband against a wife 
 to enforce a lien, it appeared that defendant's wife and plaintiff's 
 mother each owned a dwelling, both dwellings being in one building 
 which was damaged by fire. Plaintiff contracted to repair both for 
 a lump sum — the amount of insurance. Held, that the amounts 
 due in respect to each dwelling might be separated and that plain- 
 tiff came within sections 4 and 7 of the Act. Booth v. Booth, supra. 
 
 In Webb v. Gage, (1902) 1 0. W. B. 327, defendant leased 
 premises to the Hoeffner Co. The company agreed to erect build- 
 ings and plant to the value of $100,000, which were to become the 
 property of defendant. Held, that the lien only attached to the 
 company's interest. 
 
 Where a contractor was to furnish the plant, etc., necessary 
 for the carrying out of the contract, which was to become the 
 property of the owner if the contract was not fulfilled, it was 
 held that the value of the plant so furnished should not be in- 
 cluded in the amount on which the owner was required to retain 
 the percentage, though the contractor had failed to complete the 
 contract "and 1 the plant had become the property of the owner. 
 Birkett Y.Brewder, (190-2) lOf.E. 62. 
 
 (e) "Prior mortgage." — These words have been substituted 
 for the words "encumbered by a mortgage or other charge existing 
 or created before the commencement of the work or the placing 
 of the materials or machinery." It may be that the change has 
 slightly restricted the meaning. A " prior mortgage " is a mortgage 
 existing, though not necessarily registered at the time of the lien. 
 Cooky. Belshaw, (1893) 23 O. E. 545. As alien may be registered 
 immediately after the contract is made, and before the perform- 
 ance of any work or the placing of any materials (see section 22), 
 it would seem that a mortgage may be made before the commence- 
 ment of the work or the placing of materials and not be a prior 
 mortgage. The correct statement seems to be that the lien attaches 
 at the time when the work is being performed or when tne materials 
 are placed, and, while it attaches as the work progresses, it relates 
 back to the time when the contract was made. The distinction is 
 not of much consequence since it has been held that, except in the 
 
 M.L.— 29 
 
450 l THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 case of actual notice, the -lien may be defeated by prior registration 
 of a conveyance, mortgage or other instrument. Hynes v. Smith, 
 (1879) 27 Gr. 150; Beinhart v. Shutt, (1888) 15 O. E 335; 
 Wanty v. Robins, (1888) 15 0. E. 474; West v. Sinclair, (1892) 
 28 C. L. J. 119, 12 C. L. T. 44; McVean v. Tiffin, (1885) 13 
 A. E. 1; McNamara v. Kvrkland, (1891) 18 A. E. 271. Save as~ 
 between rival lienholders it is difficult to see how effect is to be 
 given to section 21, which provides that "except as herein other- 
 wise provided, the Begistry Act shall not apply to any lien arising 
 under this Act." It is probable that actual notice will in any 
 event defeat prior registration. -See Rose v. Peterkin, -(1885) 13 
 S. C. E. 710, and remarks of Killam, J., in Robock v. Peters, 
 (1900) 13 Man/ 124, at p. 145. 
 
 A mortgage subsequent in point of time takes priority over an 
 unregistered lien., Cooky. Belshaw, (1893) 23 0. B. 545. A mort- 
 gagee for future advances is also protected- to the extent of all 
 advances made before registry of the lien and before he had actual 
 notice of the lien. Ibid. 
 
 Where a mortgage has been duly registered, advances made 
 ^hereunder after mechanics' liens on the mortgaged property have 
 arisen, but before their registration, take precedence of the liens. 
 Warwick v. Sheppar'd, 35 D. L. E. 98, 39 O. L. E. 99. But the 
 claim of a mortgagee in British Columbia in respect of advances 
 made subsequently to the commencement of the work done by lien- 
 holders is postponed to the rights of the lienholders. National 
 Mortgage Co. v. Rolston, 59 Can. S. C. B. 219. 
 
 It has been held that a mortgage, subsequent to a lien, but 
 given for the purpose of paying off prior incumbrance will be pro- 
 tected to the extent of such prior incumbrance. Locke v. Locke, 
 (1898) 32 C. L. J. 332. In Massachusetts, under a similar pro- 
 vision, it has been held that a mortgagee, under a mortgage given 
 to pay off existing mortgages, even to himself, acquires no rights 
 under them. Batchelder v. Hutchmson, (1894) 161 Mass. 462; 
 Easton v. Brown, (1898) 170 Mass. 311. See Colonial Investment 
 & Loan Co. v. McCrirnmon, (1905) 5 0.*W. E. 315. 
 
 The lien for materials supplied as against a mortgage has 
 priority over the mortgage only to the extent of the materials placed 
 on the ground before the mortgage money was advanced. Robock 
 v. Peters, (1900) 13 Man. L. E. 12. 
 
 See also chapter entitled " Priorities," ante. 
 
ONTARIO MECHANICS' LIEN ACT. 451 
 
 (f ) " Upon such increased value." — Under the Mechanics' Lien 
 Acts in some of the United States mechanics' liens are given priority 
 over., mortgages as to the building, but are postponed to prior 
 mortgages as to the land; in some other States the Act gives the 
 mortgage priority to the extent of the value of the land when the 
 contract under which the lien arose was made. See Wimberley v. 
 Mayberry, (1891) 94 Ala. 240, 14 L. E. A. 305 ; Croshey v. N. W. 
 Mfg. Co., 48 111. 481. The latter is in effect the same as the priority 
 here given. While, however, the mechanics' lien only has priority 
 over the mortgage to the extent of the increased value, yet if 
 there is a surplus after satisfaction of the mortgage, the lienholder 
 may resort to it for satisfaction of the balance of his claim. 
 
 Unless the selling value of the property has been increased 
 the lien has no priority over the mortgage. Kennedy v. Haddow, 
 (1890) 19 0. E. 240. The lien, however, may be asserted subject 
 to the prior'rights of the mortgagee. See Boake Mfg. Co. v. Mc- 
 Crimmon, (1905) 6 O. W. E. 979. 
 
 The mortgagee is a necessary party to any proceedings to en- 
 force a lien against the increased value, and unless he is a party 
 the premises must be sold subject to the mortgage. Finn v. Miller, 
 (1889) 10 C. L. T. 23. In this case a mortgagee, not a party to 
 the proceedings, having sold under a power of sale in the mortgage, 
 applied to have the registry of the lien and lis pendens vacated, 
 and the order was made, the mortgagee to pay surplus proceeds 
 into court, to be available for the lienholders. 
 
 Several lienholders may be entitled to share,. pro rata in this 
 increased value. Banh of Montreal v. Haffner, (1882) 3 0. E. 
 183; Broughton v. Smallpiece, (1878) 25 Gr. 290. See this latter 
 case also as to limitation of contractors' lien to increased value of 
 land, irrespective of buildings. , 
 
 The mortgagee should be made a party to the proceedings when 
 a prior lien on account of increased value is claimed, and the 
 statement of claim should set up such prior lien. Douglas v. 
 Chamberlain, (1878) 25 Gr. 288; Richards v. Chamberlain, (1878) 
 25 Gr. 402. The onus is on the lienholder to prove the amount by 
 which the selling value of the property has been increased, and 
 the decree should settle the amount and the priorities. Croshey v. 
 Corey, 48 111. 442 ; Croshey V. N. W. Mfg. Co., 48 111. 481 ; and see 
 Roboch v. Peters, (1900) 13 Man. 124. The same provisions as 
 
452 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 to the time within which proceedings must be taken against an 
 owner apply to proceedings to enforce a lien against a prior mort- 
 gagee (Bank of Montreal v. Haffner, (1884) 10 A. E. 592; Eeffer 
 v. Miller, (1895) 10 C. L. T. 90), nor can the mortgage be added 
 after the time has expired though the proceedings against the 
 owner were commenced in time. McDonald v. Wright, (1868) 14 
 Gr. 284; Keffer v. Miller, supra; Larkim v. Larkin, (1900) 32 
 A. E. 80. 
 
 Where there is an actual agreement for the sale of the property, 
 but no conveyance has been made, the purchaser is to be considered 
 a mortgagor, and the vendor, a mortgagee. See section 13 (2); 
 Hoffstrom v. Stanley, (1902) 14 Man. 227. It seems, however, 
 that a tenant with an option of purchase is not to be considered a 
 mortgagee, nor the landlord a mortgagor. Graham v. Williams, 
 (1888) 9 0. E. 458; Blight v. Bay, (1893) 23 0. E. 415. 
 
 Where on a reference in a mechanics' lien, proceeding under a 
 former Act it was found as between a lienholder and a prior 
 mortgagee that the selling value of the property has been increased 
 by the work done and materials supplied to an amount equal to 
 the claim of the lienholder who is declared entitled to rank on such 
 increased value in priority to the mortgagee, and pending the 
 proceedings, the premises are destroyed by fire, the claim of the 
 lienholder is at end so far as the interests of the mortgagee are 
 affected by it : — Semble, the ' amount of the increased value to 
 which the lienholder is entitled to resort as against the mortgagee 
 cannot be ascertained until the property has been sold. Patrick v. 
 WaTboume, (1896)' 2?' O. E. 221. Under section 9 of the present 
 Act the insurance money stands in the place of the destroyed 
 building. 
 
 As to 'claim of lienholders to priority under special agreement, 
 see Boake Mfg. Co. v. McCrimmon, (1905) 6 O. W..E. 979. 
 
 The limitation of the priority of mechanics' liens over mortgages 
 to the amount whereby the premises have been increased in value 
 by the work, does not apply where no money was advanced by the 
 mortgagee, until after the commencement of the work for which the 
 lien is claimed. Coiling v. Stimson, 10 D. L. E. 597. 
 
 9. Application of insurance when lien attaches. — Where any of 
 the property upon- which a lien attaches is wholly or partly 
 
ONTARIO MECHANICS' WEN ACT. 453 
 
 destroyed by fire any money received by reason of any insurance 
 thereon by an owner or prior mortgagee or chargee shall take the 
 place of the property ■ so destroyed^ and shall be subject to the 
 claims of all persons for liens to the same extent as if such money 
 was realized by a sale of such property in an action to enforce the 
 lien. 10 Edw. VII. c. 69, s. 9. 
 
 (a) "Any insurance." — A lienholder has an insurable interest' 
 in the building to which the lien attaches, though the lien is only 
 inchoate. Insurance Co. v. Svnson', (1880)' 103 U. S. 25. In 
 Greene v. Holmstead Fvre Ins. Co., (1880) 82 N. Y. 517, a policy 
 of insurance provided that the company should not be liable if 
 without written consent thereon the property should thereafter 
 be encumbered in any way. Subsequently to the issuing of the 
 policy a mechanics' lien was filed against the 1 property, but no v 
 proceedings were ever taken to enforce the same. It was not shown 
 that the plaintiff had knowledge of the filing of the lien until after 
 the destruction of the property by fire. Held, that the filing of 
 the lien did not create an incumbrance within the meaning of the 
 condition and that the policy was not avoided thereby. The term 
 " incumbrance " as used in an application for fire insurance relat- 
 ing to the incumbrance on the property should be construed to 
 include a subsisting lien of a mechanic or materialman for which 
 a claim had been filed. Redman v. Phoenix Fire Ins. Co., (1881) 
 8 N". W. 226; 51 Wis. 293; 37 Am. Eep. 830. 
 
 Before this section was enacted the lienholder had no fight to 
 enforce his lien against the proceeds of an insurance policy taken 
 out by the owner or mortgagee. Patrick -v. Walboume, (1896) 27 
 O. B. 221. As to destruction of building in course of erection, 
 see Appleby v. Myers, (1867) L. E. 2 C. P. 651, in which case 
 Blackburn, J., says : " We think that where, as in the present case, 
 the premises are destroyed without fault on either side, it is a 
 misfortune equally affecting both parties, , excusing both from 
 further performance of the contract, but giving a cause of action 
 to neither." See other cases on this point cited, ante. 
 
 Under this section the lien is extended to the proceeds of fire 
 insurance policies whether taken out by the owner, mortgagee or 
 chargee. It should be noted, however, that in the case of a prior 
 mortgagee the lien would extend only to the increased selling 
 value of the property subject to lien. The person asserting the 
 
454 THE LAW OF MECHANICS* LIENS IN CANADA. 
 
 lien must establish the fact of such increased selling value before 
 he can make any claim to insurance money payable to a prior 
 mortgagee. The proceeds of fire insurance policies are now made to 
 take the place of the property subject to the lien and are made 
 available to the lienhb-lder. At the same time the lienholder's right 
 to proceed against the land is not taken away, so that he has his 
 remedy both against the insurance money and the land. Only 
 insurance against fire is mentioned in the section ; destruction -of 
 the building from any other cause is not provided for. 
 
 As to application of insurance money, see Agnew , v. East, 
 (1916) 10 0. W. N. 428, 11 0. W.'N. 78. 
 
 10. Limit of amount of owner's liability;. — Save as herein 
 otherwise provided, the lien shall not attach so as to make the 
 owner liable for a greater sum than the sum payable by the owner 
 to the contrae'tor. 
 
 A sub-contractor supplying materials is not entitled to claim, 
 where, owing to the contractor's default there is no " sum justly 
 due or payable," to the contractor by the owner. Wilhs v. Leduc & 
 Toronto General Trusts, (1916) 87. Man. L. E. 72, 30 D. L. E. 
 792, 35 W. L. E. 4. See Deldo ,v. dough-Sellers, 25 D. L. E. 602. 
 
 (a) "Payable by the owner to the contractor." — This section 
 is to be read with sections 6, 11, 12, 14 and 15. Subject to the 
 provisions of these sections as to the lien of wage-earners, the per- 
 centage to be retained, bona fide payments to lienholders and pay- 
 ments made to defeat the lien, the owner can assert against the 
 lienholder the same defences as he can against the contractor.' It 
 was held in Crone v. Struthers, (1875) 22 Gr. 248, that as nothing 
 was payable at the time the lien was claimed there Was no lien, 
 and that the lien being the creature of the statute, must be limited 
 by its provisions. Any condition or stipulation agreed upon be- 
 tween the owner and contractor, performance of which is a condi- 
 tion precedent to the contractor's right to recover from the owner 
 rriay be set up by the owner in answer to a sub-contractor's claim 
 to be entitled to a lien, i.e., an independent lien. See Rice Lewis 
 case. This statement would not apply to the statutory percentage 
 retention provision in section 12. The usual case is non-fulfilment 
 of the contract. Appleby v. Myers, (1867) L. E. 2 C. P. 651; 
 Thorn v. Mayor of London, (1874) L. E. 10 Ex. 112; Crone y. 
 
ONTAKIO MECHANICS' LIEN ACT. 455 
 
 Struthers, supra; Goddard v. Coulson, (1884) jLO A. E. 1; Sherlock 
 V. Powell, (1899) 26 A. E. 407; Dermott v. Jones, (1864) 2 Wall. 
 1. But the owner may, by acceptance of the work or by other acts, 
 waive a compliance with the contract. A certificate from the 
 architect may be made a condition precedent to the contractor's 
 right to recover, and though the contractor may set up in an action 
 against the owner and architect that the certificate has been wrong- 
 fully and fraudulently withheld from him, it seems that the lien- 
 holder cannot join the 'architect as defendant in proceedings' to en- 
 force the lien. Bagshaw v. Johnson, (1901) 3 0. L. E. 58. Id 
 Good v. Toronto H. & B. Ry. Co., (1899) 26 A. E. 133, it was 
 held that the rule that the contractor was bound by the provision 
 of the contract making the decision of the engineer final did not 
 extend to a case where the named engineer, while in fact the engi- 
 neer of the employer, was described in the contract as the engineer 
 of a third person. Fulfilment of the contract is not excused because 
 the work cannot be completed according to-the plans and specifica- 
 tions prescribed. / 
 
 In an action by a sub-contractor asserting a lien can the 
 "owner" plead by way of set-off a debt, due- to him by the 
 contractor entirely unrelated to the original contract under which 
 the work was done or the material furnished ? It would defeat the 
 primary purpose of the statute if a general debt could be set off 
 against the amount payable under the contract. The principle of 
 set-off cannot apply unless there has been an agreement providing 
 for such set-off before the lien arose. Bennett v. Devitt, (1915) 25 
 Man. L. E. 421. 
 
 See also Smith Co. v. The Sissiboo Pulp & Paper Co., (1903) 
 36 N. S. E. 348; (1904) 35 S. C. E, 93; Smith v. Bernhardt. 
 (1909) 11 W..L. E. 623. 
 
 The rights of lienholders are measured by the amount " justly 
 owing," by the owner to the contractor, and where an agreement 
 provides payment by instalments, with the right to retain an 
 amount as a drawback on the completion of the work, the lien 
 accrues for the full amount of any instalment payable, subject to 
 the owner's right of deduction in the event of the non-completion 
 of the whole contract. Deldo v. Gough-Sellers Investments, 34 
 O. L. E. 274, 25 D. L. E. 602. 
 
 11. limit of lien when claimed by some other than contractor. 
 
 — 'Save as herein otherwise provided, where the lien is claimed by 
 
456 THE LAW OF. MECHANICS' LIEN'S IN CANADA. 
 
 any person other, than the contractor, the amount -which may be 
 claimed in respect thereof shall be limited to the amount owing to 
 the contractor or sub-contractor or other person for whom the work 
 or service has been done or the materials placed or furnished. 
 
 (a) "Limited to the amount." — This section is also to be read 
 with. sections 6, 11, 12, 14 and 15, and deals with cases in which; 
 the lien is claimed by sub-contractors and others who do not con- 
 tract directly with the owner. The lien claimed by a person per- 
 forming work or furnishing materials for'a sub-contractor is limited 
 not only to the amount due by the owner to the contractor, but 
 also to the amount due to {he sub-contractor for whom he has 
 done work or service or furnished materials. All payments made 
 bona fide up to the percentage mentioned in section 12, are pro- 
 tected unless notice in writing has been given by the person claim- 
 ing the lien. Payments made to defeat Or impair the lien are, by ' 
 section 15, null and void to the extent of the sums improperly paid. 
 Briggs v. Lee, (1880) 27 Gr. 464. Sections 9 and 10 are both 
 subject to the provision of section 14 giving wage-earners a prior 
 .claim for, thirty days' wages on the percentage retained under 
 section 12. 
 
 As to both claim and costs being paid out of the twenty per 
 cent., see Ontario Paving Brick Co. v. Bishop, 4 0. W. R. 34; Gold 
 Medal Furniture Co. v. Craig, (1905) 6 0. W. R. 954. 
 
 There can be no claim as on a quantum meruit for the price of , 
 work actually done or materials actually supplied where the con- 
 tract is an entire and indivisible one, and performance is a condi- 
 tion precedent. Sherlock v. Powell, (1899) 26 A. R. 407. 
 
 The amount due to a contractor or sub-contractor cannot be 
 determined in proceedings to enforce the lien unless the parties 
 liable on .the contract or sub-contract are before the court. Wood 
 v. Stringer, (1890) 20 O. R. 148. 
 
 12. (1) Retention of percentage by owner for thirty days. — 
 
 In all cases the person primarily liable -upon any contract under 
 or by virtue of which a lien may arise shall, as the work is done or 
 materials are furnished under the contract, deduct from any pay- 
 ments, to be made by him in respect of the contract, and retain 
 for a period of thirty days after the completion or abandonment of 
 
ONTAEIO MECHANICS' LIEN ACT. 457 
 
 the contract, twenty per cent, of the value of the work, service and 
 materials actually done, placed or furnished as mentioned in sec- 
 tion 6, and such value shall be calculated on the basis of the con- 
 tract price, or if there is no specific contract price, then on the 
 basis of the actual value of the work, service or materials. 
 
 (2) Where contract price exceeds $15,000. — "Where the contract 
 price or actual value exceeds $15,000, the amount to be retained 
 shall be fifteen per cent, instead of twenty per cent. 
 
 (3) Effect of lien on amounts retained. — The lien shall be a 
 charge' upon the amount directed to be retained by this section in 
 favor of sub-contractors whose liens are derived Tinder persons to 
 whom such moneys so required to be retained are respectively pay- 
 able. 
 
 (4) Payments made in good faith without notice of lien. — 
 
 All payments up to eighty per cent, or eighty-five per cent, where 
 the contract price or actual value exceeds $15,000 of such price or 
 value made in good faith by an owner to a contractor, or by a con- 
 tractor to a sub-contractor, or by one sub-contractor to another 
 sub-contractor, before notice in writing of such lien given by the 
 person claiming the lien to him, shall operate as a discharge pro 
 tanto of the lien. 
 
 (5) Payment of percentage and discharge of liens. — Payment 
 of the percentage required to be retained under sub-sections 1 aiid 
 2 may be validly made so as to discharge all liens or charges in 
 respect thereof after the expiration of the period of thirty days 
 mentioned in sub-section 1 unless in the meantime proceedings 
 have been commenced to enforce any lien or charge against such 
 percentage as provided by sections 23 and 24. 10 Edw. VII. c. 
 69, s. 12. 
 
 (a) "Primarily liable." — This section is for the protection of 
 sub-contractors. It creates a fund out of which persons claiming a 
 lien under a contract not made directly with the owner may have 
 their lien satisfied. Before the year 1882 the percentage to be 
 
458 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 retained was upon " the price to be paid to the contractor." Under 
 the former section it was held that the owner was not required to 
 retain a percentage upon all payments made to the contractor. It 
 was sufficient if such payments did not in the aggregate exceed the 
 
 •specified percentage of the whole contract price, and if the con- 
 tractor failed to complete the contract, or if for any other reason the 
 contract price never became due, there was no fund . available to 
 satisfy the liens of sub-contractors. Goddard v. Coulson, (1884) 
 10 A. E. 1; Harrington v. Saunders, (1887) 23 C. L. J. 48, 7 
 C, L. T. 88; Truax V, Dixon, (1889) 17 0. E. 366; Reg gin v. 
 Manes, (1892) 22 0. E. 443; Re Sear and Woods, (1892) 23 0, E. 
 474. In Re Cornish, (1884) 6 O.E.,259, it was held that where 
 a contractor failed to complete his contract and his surety under- 
 took to finish the work there were two contracts, and that the ten 
 per cent, was to be paid on the amount earned under each. It was 
 also held that a mechanics' lien was postponed to the owner's claim 
 for damages for non-completion; the priority of a wage-earner's 
 lien was not decided. See Harrington v. Saunders, supra; McBean 
 v. Kinnear, (1892) 23 0. E. 313. 
 
 It was afterwards held in Russell v. French, (1896) 28 0. E. 
 215, that if any owner, contractor or sub-contractor under whom 
 a lien may arise pays more than the specified percentage of the 
 value of the work and materials done or finished, he does so at his 
 
 . peril, and a lien may be successfully asserted against him to the 
 extent of the, percentage which he should have retained, by any 
 lienholder who is prejudiced by the excessive payment. 
 
 But this decision was not followed in Farrell v. Gallagher, 
 (1911) 23-0. L. E. 130, which declared that this section recognizes 
 that the charge is a charge upon money to become payable to the 
 contractor. 
 
 1 In the subsequent important case of Rice Lewis & Son, Ltd. v. 
 Harvey et al., (1913) 9 D. L. E. 114, doubts as to the construction 
 of this section were removed. It was held that the property owner 
 is, as regards lienholders holding claims against the principal con- 
 tractor, a trustee of the twenty per cent, of payments which become 
 due to the latter under the contract during the progress of the 
 work; and the owner will be liable for such percentage, so far as 
 may be required to satisfy the unpaid lien claims, although by his 
 contract he was to* pay and did pay the contractor only 80 per cent, 
 of the value of work as certified by progress certificates of the 
 
ONTARIO MECHANICS LIEN ACT. 
 
 459 
 
 architect, where the contractor afterwards abandoned the work and 
 the 20 per cent, retained of the value so certified by the architect 
 was insufficient to pay the cost of completing the contract. The 
 property owner is entitled, to deduct from the sums for which he is 
 liable to his contractor on progress estimates while the work is 
 going on, twenty per cent, thereof (or fifteen per cent, where the 
 contract price exceeds $15,000), for the protection of persons 
 entitled to liens as sub-contractors; and the owner is not entitled 
 as against the sub-contractor to apply such percentage to answer 
 the cost of completing the work on the contractor's default. The 
 principle established by Farrell r. Gallagher, supra, that the 
 Act does not make the owner liable for any greater sum than he 
 has contracted to pay (save in the case of wage-earners), is recog- 
 nized as sound, but where the owner has agreed to make interim 
 payments to the contractor as the work progresses, he is required 
 by the Aet to hold 20 per cent, of such interim payments as a 
 statutory fund available ifor all lienholders, and this fund is not 
 answerable for any sum which the owner may claim against the 
 contractor upon the completion of the work. When there is but 
 one payment called for by the contract, general lienholders must 
 take the situation as it is found to be, for there is no provision 
 requiring the creation of a " statutory fund " for the protection of 
 the lienholders. This fund is to be created by the owner deducting 
 20 per cent " from any payment to be made by him in respect of 
 the contract." When there is a lump sum to be paid upon the com- 
 pletion of the contract and the work is not done, nothing is pay- 
 able. Burton v. Hoohwith, (1919) 45 O. L. E. 348, 48 D. L. E. 
 339: 
 
 The statutory amount of payment which the owner may retain 
 forms a fund available for the lienholders only, to which the 
 owner cannot resort as security against or to make good any loss 
 occasioned by the non-fulfilment of the contract. Peart Bros. Hard- 
 ware Co. v. Battell, (1915) 8 Sask. L. E. 305, 23 D. L. B. 193, 8 
 W. W. E. 1159, 31 W. L. E. 956. 
 
 The fact that the owner did not retain from his contract any 
 of the percentage of the value of the work does not make him 
 liable for sub-contractors' claims, as to which no lien was filed or 
 notice of claim given the owner until after the expiry of thirty 
 days following the abandonment of the work by the principal con- 
 tractor, the statutory obligation to retain the percentage being 
 
460 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 limited to thirty days after completion of abandonment of the 
 contract with the owner. BrooJcs v. Mundy, 16 D. L. E. 119. 
 
 As to the computation of the 15 per cent., see Birkett v. Brewder, 
 22 C. L. T., 1 0. W. E. 62. 
 
 Where a statute requires seryice of notice of claim this is con- 
 strued to mean personal service. Syhes Steel Roofing Co. v. Ber- 
 stein, 156 111. App. 500; South Side Lumber Co. \. Date, (1910) 
 156 111. App. 436. 
 
 (b) "Period of thirty days." — 'Section 22 limits the time 
 within which a lien may be registered to within thirty days after 
 the completion of the work or the supplying of the materials for 
 which the lien is claimed. By retaining the percentage for the 
 same period the owner, contractor 6r sub-contractor is in a position 
 to know whether any lien will be asserted, the same limit of time 
 being adopted in both instances. The twenty per cent, to be 
 deducted from the payments to be made is not twenty per cent, 
 of the payments, but twenty per cent, of the value of the work 
 done and materials furnished, calculated on the basis of 'the con- 
 tract price. As to the proper method of finding the value of the 
 work done prior to default byva defaulting contractor, see Batts 
 v. Poyntz, (1916) 11 0.- W. N. 204. 
 
 (c) " Shall be a charge."— -Under a former section where the 
 contractor or sub-contractor never earned the contract price a sub- 
 contractor had no lien or claim upon the percentage. See God- 
 dard v. Coulson, (1884) 10 A. E. 1; Harrington v. Saunders, 
 (1887) 23 C. L. J. 48, 7 C. L. T. 88 ; Truax v. Dixon, 17 O. E. 366 ; 
 Reg gin v. Manes, (1892) 22 O. E. 443; Re Sear and Woods, 23 
 O. E. 474. 
 
 (d) "Payments." — This word. is here used not in' its technical 
 but in a popular sense. It covers a bill of exchange, promissory 
 note, tripartite agreement and payments directed by the contractor 
 to be made to third parties. Jennings v. Willis, (1892) 22 O. E. 
 439. Also payments made by the owner or contractor to sub-con- 
 tractors in order to obtain the delivery of goods or to get work 
 done; it would be otherwise in the case of payments made to the. 
 assignee of the contractor. McBean v. Einnear, (1892) 23 O. E. 
 313. ' . Payments made to contractors or sub-contractors are only 
 invalid when they would have been liable for the satisfaction of a 
 lien. (lb.) The percentage, payment of which is protected, is to 
 be computed upon the value of the work actually done or materials 
 furnished. 
 
ONTAKIO MECHANICS' LIEN ACT. 461 
 
 To defeat the effect of the statute the owner is allowed to show 
 that payment has been made "without notice" of the lien of all 
 that he became liable to pay. Hence the. onus of showing payments 
 which will extinguish the lien is upon the owner. The owner is 
 entitled to be credited with the amount of promissory notes, made 
 by the contractor and endorsed by the owner which became due 
 and were taken up as payments upon the building contract before 
 the notice of lien was filed. It is not absolutely necessary that 
 such notes should be charged up in the account. Prom the time 
 the agreement is made to pay the notes, as well as from the time of 
 their actual payment by the owner, he is entitled to have them 
 treated as payments upon the building contract existing between 
 him and the contractor. Smith v. M&rriam, (1873) 67 Barb, 
 (N.Y.) 40.3. Payments made after the lienholder's claim has at- 
 tached, of moneys not due according to the terms of the contract, 
 should not be protected. Travis v. BreckemHdge, 43 S. C. E. 59 ; 
 Ringland v. Edwards, (191J) 19 W. L. E. 686. 
 
 The -acceptance by the owner of an order' drawn on him by the 
 contractor for part of the moneys due upon the contract, which 
 order was made payable to a contractor who had filed a mechanics' 
 
 i lien for the amount represented thereby, and the owner's promise 
 in writing to pay it, .accepted Jry the sub-contractor in satisfaction 
 of the lien which was thereupon discharged of record, constitutes a 
 payment, and the filing of the order is not requisite in order to 
 make it valid as .against subsequent lien claimants. A provision 
 requiring the filing of orders drawn by a contractor or sub-con- 
 tractor upon the owner for moneys payable upon the contract does 
 not affect payments made by the owner on account of labor per- 
 formed or materials furnished under the contract. Harvey v. 
 Brewer, (1904) 178 N". Y. App. 5. 
 
 (e) "Notice in writing." — Payments to the extent of the per- 
 centage mentioned will not be protected if before payment is made 
 notice in writing ha^ been given by a person claiming a lien. The 
 necessity for this provision is obvious as otherwse the owner before 
 making any payment would always be obliged to make a search to 
 ascertain if any lien had been registered. Only bond fide payments 
 are protected. See section 15 as to the payments, made for the 
 purpose of defeating or impairing liens. 
 
 Lien claimants for materials wrote to the owner a letter asking 
 
 ' him, when making a payment to ' the contractor " on the Lisgar 
 
462 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Street buildings " to " see that a cheque for at least $400 is made 
 payable to us on acount-of brick delivered, as our account is con- 
 siderably over $700, and we shall be obliged to register a lien if a 
 payment is not made to-day." Held, Meredith, J., dissenting,- a 
 sufficient " notice in writing " of their lien. Craig v. Cromwell, 
 (1900) 32 0. E. 27, affirmed, 27 A. E. 58B. On the appeal in 
 this eas£, at p. 387, Osier, J.A., thus refers to the notice" required 
 by sub-section 2,, of the former section: " The object of the notice 
 is, to warn the owner that he cannot safely make payments on ac- 
 count of the contract price even within the 80 per cent, margin, 
 because of the existence of liens of which he was not otherwise 
 hound to inform himself or to look for. The notice does not com- 
 pel him to pay the lien. It does not prove the existence of the lien. 
 Its sole purpose is to stay the hand of the paymaster until he shall 
 be satisfied — either by the direction of the debtor— -or of the court in 
 case proceedings are taken to realize the lien — that there is a 
 lienj and that some amount is really due and owing to the lien- 
 holder., . . . The notice under ^section 11, sub-section 2, is 
 purely informal, and was manifestly intended to be so, no form or 
 special particulars of detail being prescribed in regard that it might 
 have to be given promptly or by illiterate persons who mighty as 
 it were, read and understand the sections as they ran." 
 
 (f) "May he validly made."^-The payment of the percentage 
 retained cannot be validly made to any person within the thirty 
 days mentioned in sub-section 1. . After the expiration of the thirty 
 days payments may be validly made to lienholders unless proceed- 
 ings have been taken under sections 23 and 24 to enforce a lien or 
 charge against the percentage retained. Proceedings by one lien- 
 holder would be sufficient as such proceedings would' be available 
 for ( other lienholders claiming against the amount retained. 
 
 A mechanics' lien is postponed to the owner's claim for dam- 
 ages ; as to a wage-earner's lien quaere. 
 
 In Torrance v. Cratchley, (1900) 31 0. E. 546, Street, J., in 
 referring to the 11th and following" sections says (at p. 549) : " The 
 only object of the provision requiring the owner to retain the 
 twenty per cent, for thirty days appears to be that indicated by 
 sub-section 3 of section 11, viz., to give persons entitled to liens an 
 opportunity of enforcing them against the fund directed to be 
 retained." 
 
ONTARIO MECHANICS' LIEN ACT. 463 
 
 This section recognizes that the charge is a charge upon money 
 to become payable to the contractor; and when, by reason of the 
 contractor's default, the money never becomes payable, those claim- 
 ing under him and having this statutory charge upon this fund, 
 if and when payable, have no greater right than he himself had 
 and their lien fails. Farrell v. Gallagher, (1911) 23 0. L. E. 130. 
 
 There is no sum " justly owing " or " payable " by the owner to 
 the contractor where the building was never completed by the con- 
 tractor and where the building contract provided that time was 
 of the essence of the contract and stated a specific time for comple- 
 tion and fixed a specific sum for every day beyond a stated period 
 that the owner is denied the full possession of the premises. Mc- 
 Manus v. Rothschild, (1911) 25 0. L. E. 138. 
 
 Where there is no lien for the laborers a contractor has no right 
 to withhold payment of the amount due sub-contractors until these 
 laborers are paid. Wooleh v. Bradley, (1911) 18 W. L. E. 622. 
 
 " Calculated on basis of contract price." . See Batts v. Poyntz, 
 (1916) 11 0. W, N". 204. 
 
 In Craig v. Cromwell, (1900) 27 A. E., at p. 587, Osier, J.A,, 
 said : " Section 12 would appear to authorize him (the owner) to 
 pay the sub-contractor, but if he does so he assumes the risk of being 
 able to prove as between himself and the contractor, that the debt 
 was justly due and his right or power to pay the sub-contractor 
 does not depend upon notice having been given to him under s. 11 
 s.-s. 2." " 
 
 In Torrance y. Cratchley, (1900) 31 'O. E. 546, Street, J., re- 
 ferring to this section, said : " Section 12 of the Act was much 
 urged upon as supporting the lien-holder's contention. That sec- 
 tion appears, however, merely to give authority to the owner with- 
 out the consent of the contractor, but upon mere notice to him to 
 make payments out of the contract price direct to persons who 
 would be entitled-to liens, limiting, however, the right to make such 
 payments to the moneys which the owner is not directed to retain 
 under the 11th section. It does not apply at all to the moneys 
 which the owner is directed to retain, and, therefore, it does not 
 affect the present case." 
 
 13. Payments made direct by owner to persons entitled to lien. 
 
 — If an owner, contractor or sub-contractor makes a payment to 
 any person entitled to a lien under section 6 for or on account of 
 
464 THE LAW OP MECHANICS' LIEN'S IN CANADA. 
 
 any debt justly due to him for work pr service done or for materi- 
 als placed or furnished to be used as therein mentioned, for which 
 he Is not primarily liable, and within three days afterwards 
 gives, by letter or otherwise, written notice of such payment to the 
 person primarily, liable,, or his agent, such payment shall be deemed 
 to be a payment on his contract generally to the contractor or sub- 
 contractor primarily liable but not so as to affect the percentage 
 to be retained by the owner as provided by section 12. 10 Edw. 
 VII. c. 69, s. 13. 
 
 14. (1) Priority of lien. — The lien shall have priority over all 
 judgments, executions, assignments, attachments, garnishments 
 and receiving orders recovered, issued or made after such lien 
 arises, and over all payments or advances made on account of any 
 conveyance or mortgage after notice in writing of such lien to the 
 person making such payment or after registration of a claim for 
 such lien as hereinafter provided. 
 
 (2) Agreements to purchase where part of purchase money 
 unpaid. — Where there is an agreement for the- purchase of land 
 and the purchase money or part thereof is unpaid, and no con- 
 veyance has been made to the purchaser, he shall, for the purposes 
 of this Act, be deemed a mortgagor and the seller a mortgagee. 
 
 (3) Priority among lienholders. — Except where it is otherwise 
 provided by this Act, no person entitled to a lien on any , property 
 or money shall be entitled to any priority or preference over an- 
 other person of the same class entitled to a lien on such property 
 or money, and each class of lienholders shall rank pari passu for 
 their several amounts, and the proceeds of any sale shall be dis- 
 tributed among them pro rata according to their several classes 
 and rights. 10 Edw. VII. c. 69, s. 14.- 
 
 By 8 Geo. V. c. 29, s. 5, sub-section- 2 of section- 14 was 
 amended by adding at the commencement thereof the words "Save 
 as herein otherwise- provided." 
 
 An unpaid vendor who advances funds to the purchaser to build 
 upon the land is not an " owner " within the meaning of section 
 
ONTAEIO MECHANICS' WEN ACT. 465 
 
 2 (c), so as to subject the land to mechanics' lien for work done and 
 materials furnished under contracts with the purchaser, but by vir- 
 tue of the above section such vendor is deemed a " mortgagee " for 
 the purpose of giving priority to the liens upon the increased 'sell- 
 ing value of the land caused by the improvements. Marshall Brick 
 Co. v. York Farmers' Colonization Co., (1917) 54 Can. S. C, E. 
 569, 36 D. L. R. 420 ; Sterling Lumber Co. v. Jones, 29 D. L. E. 
 288. 
 
 (a) " Assignments, attachments, garnishments." — The conflict- 
 ing views expressed in Lang v. Gibson, 21 C. L. J. 74; and McCully 
 v. Boss, 22 C. L. J. 63, are disposed of by this section. 
 
 A sub-contractor commenced work on 19th August, 1903, and 
 finished on 11th October, 1904, and registered his lien October 12th, 
 1904. Contractor gave an equitable assignment of amount due 
 him 14th October, 1903, and notice was given to the owners. At 
 that time $2,588 had been earned, /but not payable until architect's 
 certificate given 4th November, 1904. Held, under section 13 (1), 
 that the lien was entitled to priority over the assignment, for the 
 full amount of the lien and not merely for that portion thereof actu- 
 ally earned by the sub-contractor up to the date of the assignment. 
 Under section 14 the sub-contractor's lien related back to the com- 
 mencement of his work. 
 
 The assignment was valid and bound the debt assigned though 
 it was not payable at the date of the assignment. The debt due and 
 owing was a sufficient consideration for the assignment of a chose 
 in action and the assignment was, therefore, not revocable or im- 
 peachable as being voluntary. Ottawa Steel Castings Co. v. Domin- 
 ion Supply Co., 5 O. W. R. 161, 41 C. L. J. 260, 25 C. L. T. 58. 
 
 (b) "Advances made on account of any conveyance or mort- 
 gage," i.e., advances made on security of a mortgage registered prior 
 to the lien. It is, therefore, necessary for the mortgagee to ex- 
 amine the registry for mechanics' liens on every occasion of making 
 a fresh advance on the mortgage. 
 
 (c) " The purchaser shall be deemed a mortgagor and the seller 
 a mortgagee." — See Blight v. Ray, 23 0. E. 415. See also Hoffstrom 
 v. Stanley, (1902) 14 Man. 227, 22 C. L. T. 337, cited under sec- 
 tions 8 and 15. 
 
 (d) "Excepting where it is otherwise declared." — The excep- 
 tion is that in favor of the liens for wages for thirty days or less. 
 
 M.L.— 30 
 
466 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 See section 12 (1) as to the percentage to be retained, and section 
 11. 
 
 (e) "According to their several classes and rights." — It had 
 formerly been decided (Goddard v. Coulson, (1884) 10 A. E. 1; 
 Re Cornish, (1884) 6 0. E. 259; and Re Sear v. Woods, 23 0. E. 
 474) that where a contractor never earned the percentage retained, 
 a sub-contractor under him had no lien against the owner in re- 
 spect to such percentage, but it was held in Russell v. French, 28 
 0. E. 215, that that percentage is liable for the claims of sub- 
 contractors even though the contractor had not actually earned it. 
 Meredith, C,. J., said : " That percentage it was the duty of the 
 owner to retain out of the payments to be made to the contractor, 
 and it appears to have been intended to form a fund for the pay- 
 ment of the lienholders, and not subject to be affected by the 
 failure of the contractor to perform his contract." The three cases 
 cited, supra, are, therefore, not applicable to the present Act. See 
 also Rice 'Lewis v. Harvey, 9 T). L. E. 114. 
 
 As to the effect of general assignment for the benefit of credi- 
 tors upon mechanics' liens -registered before the date of the assign- 
 ment, see In re Demaurez, (1899) 5 Terr. L. E. 84. 
 
 The assignment of a lienable claim carries with it the right to 
 the lien and clothes the assignee with authority to take the neces- 
 sary legal proceedings to perfect and enforce it. Sichler v. Spen- 
 cer, 17 B. C. E. 41; Boyer v. Keller, (1913) 258 111. 106; Tisddle 
 Lumber Co. v. Read Realty Co., (1912) 154 App. Div. 270. 
 
 By section 8 (3) a lien is given priority over mortgages upon 
 the increase in selling value of land by reason of work or service 
 done thereon or materials supplied. The above section gives pri- 
 ority to a lien which has been registered or of which written notice 
 has been given to the mortgagee upon the land itself, including 
 the buildings and erections thereon, over, all subsequent advances 
 under a mortgage. 
 
 The priority of an unpaid vendor is not forfeited by the sub- 
 stitution of a mortgage for the unpaid amount. 
 
 Actual notice not in writing is not sufficient to give a lien the 
 priority over mortgages provided under this section. Cooh v. 
 Koldoffsky, (1916) 28 D. L. E. 346. See Cut-Rate Plate Glass 
 Co. v. Solodinshi, 25 D. L. E. 533; Sterling Lumber Co. v. Jones. 
 29 D. L. E. 288. 
 
ONTAEIO MECHANICS' WEN ACT. 467 
 
 15. (1) Priority of lien for wages. — Every mechanic or 
 laborer whose lien is for wages shall, to the extent of thirty days' 
 wages, have priority over all other liens derived through the same 
 contractor or sub-contractor to the extent of and on the twenty per 
 cent, or fifteen per cent., as the case may be, directed to be retained 
 by section 12, to which the contractor or sub-contractor through 
 whom such lien is derived is entitled, and all such mechanics and 
 laborers shall rank thereon pari passu. 
 
 (2) Enforcing lien in such cases. — Every wage-earner shall 
 be entitled to enforce a lien in respect of a contract not com- 
 pletely fulfilled. 
 
 (3) Calculating percentage when contract not fulfilled. — 
 
 If the contract has not been completed when the lien is claimed 
 by a wage-earner, the percentage shall be calculated on the value of 
 the work done or materials furnished by the contractor or sub- 
 contractor by whom such wage-earner is employed, having regard 
 to the contract price, if any. 
 
 (4) Percentage not to be otherwise applied. — Where the con- 
 tractor or sub-contractor makes default in completing his con- 
 tract the percentage shall not, as against a wage-earner claiming 
 a lien, be applied by the owner or contractor to the completion of 
 the contract or for any other purpose, nor to the payment of dam- 
 ages for the non-completion of the contract by the contractor or 
 sub-contractor, nor in payment or satisfaction of any claim against 
 the contractor or sub-contractor. 
 
 (5) Devices to defeat priority of wage earners. — Every device 
 by an owner, contractor or sub-contractor to defeat the priority 
 given to a wage-earner for his wages, and every payment made for 
 the purpose of defeating or impairing a lien shall be null and void. 
 10 Edw. VII. c. 69, s. 15. 
 
 (a) "Every wage-earner." — This sub-section is only meant to 
 apply to wage-earners who are in the position of sub-contractors, 
 
468 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 and who are not themselves in default in respect to their own con- 
 tracts. 
 
 Defendant agreed to purchase land from D. & McC, price to be 
 paid 15th August, 1901. In default D. & McC. could either 
 cancel agreement forfeiting any payments made or re-sell and 
 recover any deficiency fr6m defendant. Defendant made im- 
 provements on land and employed plaintiff as a carpenter. Plain- 
 tiff claimed lien for wages. No part of purchase money was paid. 
 Work went on after 15th of August with concurrence of D. & McC. 
 Held, that parties must be regarded as mortgagor and mortgagee. 
 
 D. & McC. having granted extension could not cancel without giv- 
 ing more time, hence agreement was s,till subsisting when plaintiff 
 did the work. Plaintiff was entitled to the lien subject to charge 
 of D. & McC. for unpaid purchase money and interest. 3off- 
 strom v. Stanley, (1902) 14 Man. L. B. 227. 
 
 (b) " The percentage."— See Black v. Wiebe, (1905) 1 W. L. 
 
 E. 75; Brydon v. Lutes, (1891) 9 Man. L. E. 463; Brienzi v.. 
 Samuel, 12 0. W. E. 1233. 
 
 The defendant P. contracted to build a house for the defendant 
 T., but abandoned the contract when the work was not half done. 
 Liens were claimed by wage-earners, and proceedings were had 
 under the provisions of the Act. It was contended that section 14 
 (3) enacts a rule for wage-earners, in a case in which the contract 
 has not been completely fulfilled, different from the rule in any 
 other set of circumstances, and that the only thing to be looked 
 a,t is the value of the work done and materials furnished by the 
 contractor: — Held, that the interpretation of the words of this 
 sub-section is to be found from an examination of the course of 
 legislation, and there is nothing therein to indicate that " the 
 percentage afdresaid " is not the same percentage as that in sub- 
 section (1) of this section, and in section 11, and, therefore, in 
 ascertaining the amount upon which is to be computed the 20 per 
 cent, provided by the Act, the value of the work done and materials 
 furnished is to be calculated upon " the basis of the price to be 
 paid for the whole contract." Cole v. Pearson, 17 0. L. E. 46. 
 
 (c) " The value of the work done." — Where lienholders (other 
 than wage-earners) claiming under, the contractors claimed that 
 the owner must account to them for 20 per cent, of tbe value of 
 the work done, and could not resort to this 20 per cent, to recoup 
 herself for damages sustained by the contractors' breach of con- 
 
ONTARIO MECHANICS' MEN ACT. 469 
 
 tract it was held that where the contract was a losing one for the 
 contractors, "the value of the work done" to the contractors and 
 those claiming under them could only be arrived at by taking the 
 contract price, plus the extras, and deducting the omissions and the 
 cost of completion, including rectification. Farrell v. Gallagher, 
 (1911) 23 0. L. E. 130. 
 
 But the subsequent important case of Rice Lewis & Son, Ltd. 
 v. Harvey et al., (1913) 9 D. L, E. 114, sets at rest doubts in rela- 
 tion to the construction of this section and section 12. (See notes 
 of this case under section 12.) In this case it was held that the 
 special provision for priority of wage-earners whereby it is de- 
 clared that as against wage-earners the percentage required to be 
 retained by the owner to answer liens shall not be applied by the, 
 owner to the completion of the contract on the contractor's default 
 nor to the payment of damages for non-completion, does not affect 
 the other provisions of the Act regarding mechanics' liens gener- 
 ally; and it is not to be implied from such prohibition that the 
 owner may in cases other than for wages so apply the statutory per- 
 centage toward the cost of completion as against the liens of 
 materialmen or sub-contractors in the event of the contractor's 
 default. 
 
 (d) "Shall lie taken to he null and void." — Under a former 
 Act it was held that payments were valid which were made to a 
 contractor by an " owner," after registration of the lien of a sub- 
 contractor, but without notice thereof or without any intention to 
 impair the claim. Briggs v. Lee, (1880) 27 Gr. 464. Other cases 
 under the former Act touching this question of payments are: 
 Be Sear v. Woods, (1892) 23 0. E. 474; Jennings v. Willis, 
 (1892) 22 0. E. 439, and McBean v. Kinnear, (1892) 23 0. E. 
 313. 
 
 The question as to any payment being made for the " purpose " 
 mentioned is a question which must be determined according to 
 the special circumstances of each case and the burden of establish- 
 ing the purpose or intent would be on the lienholder. 
 
 See also Ottawa Steel Castings Co. v. Dominion Supply Co., 
 cited under section 14 (a) . 
 
 While the contract ' remains in force no payment made to the 
 contractor, after notice of lien has been filed by a sub-contractor, 
 can affect the lien thereof (McMillan v. Seneca Lake G. & W. Co., 
 12 N". Y. Supr. Ct. 12), and the owner cannot plead in defence to 
 
470 THE LAW OF MECHANICS' MENS IN CANADA. 
 
 the lien any payments thereafter made by him. Boisot, section 
 367; Morehouse v. Moulding, 74 111. 322; Budd v. Trustees, 
 (1888) 51 N. J. Law 36; Anderson v. Huff, (1892) 49 N. J. Eq, 
 349. After notice to the owner from a sub-contractor, the owner 
 cannot rightfully pay the original contractor so as to defeat the 
 demands of the sub-contractor, nor can he pay one sub-contractor 
 in full, and another nothing, as his partiality may determine. 
 Phillips, section 62 (h) ; Morehouse v. Moulding, supra. As to 
 payments made by collusion for the purpose of defeating other 
 claimants, see Hofgesang v. Meyer, 2 Abb. N". Cas. (N.Y.) 111. 
 
 Any legal assumption of liability by' the owner on account of 
 the contractor, such as the acceptance of an order for the payment 
 of money, is equivalent to a payment, and has the same effect. 
 Qibson v. Lenanej (1883) 94 N.Y. 183. 
 
 Material. 
 
 16. (1) Restraining attempt to remove material affected by 
 lien.* — During the continuance of a lien no part of the material 
 affected thereby shall be removed to the prejudice of the lien. 
 
 (2) Exemption from execution of material furnished for cer- 
 tain purposes. — 61 V. c. 2I&, s. 13 (3) Man. — Material actually 
 brought upon any land to be used in connection with such land for 
 any of the purposes enumerated in section 6, shall be subject to a 
 lien in favor of the person furnishing it until placed in the build- 
 ing, erection or work, and shall not be subject to execution or other 
 process to enforce any debt other than for the purchase thereof, 
 due by the person furnishing the same. 10 Bdw. VII. c. 69, s. 16. 
 
 (a) "During the continuance of, a lien." — The life of a lien 
 is controlled by' section 23 and section 24. 
 
 As to the object of this section see observation of Meredith, 
 C.J.C.P., in Benson v. Smith, (1915) 37 0. L. E. 257. 
 
 (c) "Material." — This would include any plant or machin- 
 ery or materials brought upon the land for the purpose of being 
 used in the work upon the building (Dixon v. La Farge, 1 E. D. 
 Smith 722), or in blasting in order to lay the foundations of a 
 building. Hazard Powder Go. v. Byrnes, 12 Abb. Pr. 469, s.c. 
 
ONTARIO MECHANICS' LIEN ACT. 471 
 
 21 How. Pr. (N.Y.)- 189; Giant Powder Co. v. Oregon Pac. By. 
 Co., 42 Fed. 470. Under a statute giving a lien for " timber or 
 other materials used in or about the mine," a lien lies for powder, 
 steel and candles furnished for the use of the mine. Keystone 
 Min. Co. v. Gallagher, 5 Col. 23; California Powder Works v. 
 Blue Tent & Mines, 22 Pac. Rep. 391. 
 
 (d) "Shall not be subject to execution." — See Ludlaw-Ains- 
 lie Lumber Co. v. Fallis, (1909) 19 0. L. R., at p. 424. 
 
 (e) " Due by the person furnishing the same." — These words 
 should be read in connection with the words "any debt" in sub- 
 section 2. They refer only to persons furnishing or procuring 
 materials in pursuance of the provisions of section 6. See sections 
 6 and 13. 
 
 Sub-section 2 of this section was amended by 8 Geo. V. c. 29, s. 
 2, by adding after the word " upon " in the first line thereof the 
 words " or adjacent to." 
 
 Registration of Lien. 
 
 (As to registration of liens against mining claims and mining 
 lands, see R. S. 0. c. 32, s. 182). ' , 
 
 1^. (1) Registration of claim for lien. — Rev. Stat. c. 26.— 
 
 A claim for a lien, Forms 1, 2 and 3, may be registered in the 
 registry office of the registry division, or where the land is regis- 
 tered under the Land Titles Act in the land titles office of the 
 locality in which the land is situate, and shall set out: — 
 
 (a) Contents of claim of lien. — The name and residence 
 of the person claiming the lien and of the owner, pr of the 
 person whom the person claiming the lien, or his agent, believes 
 to be the owner of the land, and of the person for whom the 
 work or service was or is to be done, or materials furnished or 
 placed, arid the time within which the same was or was to be 
 done or furnished or placed; 
 
 (b) a short description of the work or service done or to 
 be done, or materials furnished or placed or to be furnished or 
 
 , placed. 
 
472 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (c) the sum claimed as due or to become due; 
 
 (d) a description of the land sufficient for the purpose of 
 registration and, where the land is registered under the Land 
 Titles Act, also a reference to the number of the parcel of the 
 land and to the register in which such land is registered in the 
 Land Titles Office; 
 
 (e) the date of expiry of the period of credit when credit 
 has been, given. 
 
 (2) Form of affidavit. — The claim shall be verified, by the 
 affidavit, Form 4, of the person claiming the lien or of his agent or 
 assignee, having a personal knowledge of the matters required to be 
 verified, and the affidavit of the agent or assignee shall state that 
 he has such knowledge. 
 
 (3) Description of land where lien registered against railway. 
 
 — When it is desired to register a claim for lien against a railway, it 
 shall be sufficient description of the land of the railway company 
 to describe it as the land of the railway company, and every such 
 claim shall be registered in the general registry in the registry 
 office for the registry division wherein which such lien is claimed 
 to have arisen. 10 Edw. VII. c. 69, s. 17. 
 
 (a) "May be registered." — The registration does not create 
 the lien, but is necessary to keep it alive after thirty days from 
 the completion of the work or the furnishing of the materials. See 
 in this connection sections 22, 23, 24 and 28 and cases cited. 
 
 As to registration being necessary to charge the interest of a 
 lessor, see ante, notes under section 8. 
 
 A lien may be registered and enforced against a mere posses- 
 sory interest. Christie v. Mead, (1888) 8 C. L. T. 312. 
 
 Where G. claimed a lien in respect io materials furnished by 
 virtue of an assignment from the original furnisher thereof: — 
 Held, that " G." had a right to register a claim for the same, but 
 the affidavit of verification required by section 4, sub-section 2, 
 must be made by himself and not by the assignor. Grant v. Dunn, 
 (1883) 3 0. E. 376. 
 
ONTARIO MECHANICS' LIEN ACT. 473 
 
 A claim may be registered by the assignee of the person doing 
 the work or furnishing the materials. See sub-section 2 of this 
 section and also section 26. 
 
 Constructive notice of lien is not sufficient to postpone a mort- 
 gage taken subsequent to the contract but registered ,prior to the 
 registry of the lien. Notice must be actual. Knowledge of the 
 existence of the contract is not sufficient notice. West v. Sinclair, 
 (1892)12 C. L. T. 44, 28 C. L. J. 119. 
 
 As to the application of the Registry Act to liens, see Wanty 
 v. Robins, (1888) 15 0. E. 474; Rose v. Peterkin, (1885) 13 S. 
 C. E. 677 ; McNamara v. Kirkland, (1891) 18 A. E. 271; Miller v. 
 Duggan, (1890) 23 1ST. S. E. 120, (1892) 21 S. C. E. 33. 
 
 There was no evidence that plaintiff had notice of contract 
 under which defendant, Eoy, claimed title, and her conveyance 
 was registered after registry of lis pendens in present action. 
 Held, that she need not have been joined as defendant as she took 
 subject to the proceedings in the action. , Fraser v. Griffiths, 
 (1902) 1. 0. W. E. 141. 
 
 A lienholder claiming priority against a prior registered 
 mortgagee or grantee should make such a party an original de- 
 fendant and the grounds of the claim should be stated. Reinhart 
 v. Shutt, (1888) ,15 0. E. 325. 
 
 A claimant who files a claim for lien does not thereby waive 
 any other right he may have against his debtor in respect to the 
 claim. Dunn v. Stakern, (1885) 43 N. J. Eq. 401; Cremier v. 
 Byrnes, 4 E. D. Smith (N.Y.) 756. 
 
 (b) " The name and residence."-^-T\a.m\iSs were day labor- 
 ers who did work for defendants in Eainy Eiver District and 
 say they resided in that district. Held,, that the statutory act 
 which gives vitality to the lien is its due registration and this may 
 be effected by affidavit of an agent or assignee. The Act allows 
 wage-earners (section 32) to group themselves as litigants, and as 
 all are within the limits of the district and the address of the 
 solicitor is given, the action should not be stayed. Grerar v. 
 C. P. R., (1903) 5 0. L. E. 383. "Objection is taken to the 
 description of the residence of the claimant, which should state 
 in what part of the town of Minnedosa he resides, but I hold that 
 when he describes himself as'of the town of Minnedosa it is quite 
 sufficient." Irwin v. Beynon, (1886) 4 Man. 10, per Dubuc, J. 
 See also Anderson v. Godsall, (1900)~7 B. C. E. 404, where it is 
 
474 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 stated that the rule which might apply to a' large city as to giving 
 the street, and number of the residence would not apply to small 
 towns and villages. ' See ,also similar remarks by Boyd, C, in 
 Crerar v. C. P. R. Co., (1903) 5 0. L. R. 383. 
 
 Under a former Act it was held that the remedy of the lien- 
 holder is against the increased value of the premises and the lien- 
 holder cannot question the validity of a mortgage. 
 
 The name of the town and county in which the lienholder re- 
 sides was held a sufficient address under 56 Vict. c. 24, s. 11. The 
 •Act only authorized "proceedings to enforce the lien," and the 
 bona fides of a mortgage cannot be brought up and decided in 
 such proceedings. Dwfton v. Horning, .(1895) 31 C. L. J. 281, 
 26 0. R. 252. 
 
 (c) "'Of the owner of the property to be charged." — Work was 
 commenced by contractor _ on 31st December, 1877. Two mort- 
 gages were recorded on the 31st May and 8th June respectively. 
 Contractor afterwards registered lien and began action on 28th 
 August, 1878. The Master held that the mortgagees were prior 
 incumbrancers and refused to make them parties. Judgment 
 affirmed. Eynes \. Emith, (1879) 15 C. L. J. 136. In Irwin v. 
 Beynon, supra, Dubuc, J., said : " It is also argued that the state T 
 ment of claim does not sufficiently state who is the reputed owner 
 and also the person for whom the work was done. The statement 
 of claim registered stated that the plaintiff claims a lien upon the 
 estate of G. W. Beynon, barrister-at-law. I think this is sufficient 
 and it is also in accordance with the form given in the Ontario 
 statute." A notice of lien is sufficient which, under special cir- 
 cumstances, states the name of the owner in the alternative. 
 Abelman v. Myer, 122 App. Div. (KY.) 470. - 
 
 If a notice fails to state the name of the true owner, the validity 
 of the lien is preserved so far as the person named as owner and 
 against whom a lien is,asked may in fact have some title or interest 
 to the extent of that interest. Strauchen y. Pace, (1909) 195 App. 
 Div. (N.Y.) 167. Substituting the name of a wrong party as 
 contractor in a statement of the lien is fatal to the claim. Lacy 
 v. Piatt Power Co., (1909) 157 Mich. 545. See Curtis v. Medan- 
 shy, (1910) 141 App. Div. (N.Y.) 883. The inversion of the 
 names of the lienor and the contractor, in the caption of the state- 
 ment of account included in the certificate filed by a lienor, which 
 inversion is an obvious error, does not affect the validity of the lien. 
 
ONTARIO MECHANICS' LIEN ACT. 475 
 
 Be Vingb v. Hall, (1910) 205 Mass. 407. A misnaming the owner 
 is immaterial where no prejudice is shewn. Bevelstohe Saw Mills 
 Co. v. Alberta Bottle Co., 9 Alta. L. E. 155, 21 D. L. E. 779 ; Poison 
 v. Thomson, 29 D. L. E. 395. See also Foster v. Brocklebank, 23 
 D. L. E. 38. 
 
 (d) "The land is situated/'-^Wheie the land aSected by the 
 lien is partly iD one registration division and partly in another, 
 the registration should be made in both divisions. See Arkansas 
 River L. R. & C. Co. v. Flinn, 33 Pac. 1006 ; 3 Colo. App. 381. 
 As to the area of land subject to the lien, see Springer Land As- 
 sociation v. Ford,, (1897) 168 IT. S, 513; Whalen v. Colins, (1895) 
 164 Mass. 147. The latter case decides that the statutes do Hot 
 authorize the holder of a lien at his own option to enforce it upon 
 a part only of the land subject to the lien. The question as to 
 whether the whole or only a part of such land shall be sold, is for 
 the court. See also on this point, Pollock v. Morrison, (1900) 
 176 Mass. 83. 
 
 (e) "The sum claimed as due." — As between the parties' the 
 fact that the lien is claimed for a greater sum than is actually 
 owing does not vitiate the claim when honestly made. Springer. 
 Land Association v. Ford, (1897) 168 F. S. 513; Kendall y. 
 Fader, (1901) 199 111. 294. But when a party inserts in a notice 
 of lien statements of fact which are not only untrue, but are wil- 
 fully and intentionally false in some important respect he thereby 
 forfeits the right to a lien and renders the notice void or ineffectual. 
 Aeschlimann v. Presbyterian Hospital, (1901) 165 N. Y. App. 
 296. A very large number of cases are reviewed in this case. See 
 also Vaughan v. Ford, (1910) 162 Mich. 37; Mont joy v. Reward, 
 10 W. L. E. 282. 
 
 (f ) " Owner." — See notes under section 2, sub-section 3, and 
 section 8. See also Be Kly'n v. Could, (1901) 165 N. Y. App. 282. 
 
 (g) " Of the person for whom and upon whose credit the work 
 or service was or is to be done." — In a case under the former Act, 
 (Wallis v. Skain, (1892) 21 O. E. 532) it was held that the omis- 
 sion from the registered claim of lien of the name and residence of 
 the person for whom or upon whose credit the work is done or 
 materials furnished is fatal to the lien. But see section 19. 
 
 (h) "And the time." — Under the British Columbia Mechan- 
 ics' Lien Act it was held that a miner may enforce a lien against 
 a mineral claim and that an affidavit stating that work finished or 
 
476 THE LAW 05 MECHANICS' LIENS IN CANADA. 
 
 discontinued " on or about " a stated date was sufficient. Holden 
 V. Bright Prospects G. M. Co., (1893) 6 B. C. E. 439. 
 
 In Flack v. Jeffrey, (1895) 10 Man. 514, the lien as, filed stated 
 that the work was commenced on a certain day and that it was 
 finished on or before a certain other day. Held, following Truax 
 v. Dixon, 17 6. E. 356, and in view of the Manitoba Interpreta- 
 tion Act, that the statement was sufficient. 
 
 (i) "Description of the land to be charged." — The description 
 need not be strictly accurate. In Cleverley v. Moseley, (1889) 148 
 Mass. 280, a very inaccurate description was held sufficient. " A 
 description' is sufficient which will enable one who is familiar with 
 the locality to identify the land with reasonable certainty." Dodge 
 v. *Halk (1897) 168 Mass. 435. See also Pollock v. Morrison, 
 (1900) 176 Mass. 83; 177 Mass. 412; Noonan v. Gaiety Theatre 
 Co., noted under corresponding section of the Nova Scotia Act. 
 See also Dri&eoll v. Floyd, (1914) 217 Mass. 33. 
 
 While precision in description of the land is not necessary, the 
 description must be sufficient in itself to identify the property. 
 Evidence dehors is not admissible to supply a deficiency (Hurley 
 v. Tucker, (1908) 128 App. Div. (NY.) 580); but if there ap- 
 pear enough in the description to enable a party familiar with the 
 locality to identify with reasonable certainty the premises intended 
 to be described, to the exclusion of others, it will be sufficient. 
 Linden Steel Co. v. Bef. Co., 138 Pa. io ; Smith v. Newbaur, 144 
 Ind. 95 ; Safe Deposit & Steel Co. v. Columbia Iron and Steel Co. f 
 176 Pa. 536. Whe^e no one is misled by unintentional misstate- 
 ments the lien will stand. Bingle v. Wallis Iron Works, 149 NY. 
 439. The precise terms of the contract need not be set out. 
 Felgenhauery. Haas, (1907) 123 App. Div. (N.Y.) 75.' 
 
 As illustrating an inaccurate but sufficient description and an 
 insufficient description, compare York v. Barstow, (1900) 175 
 Mass. 167 and Muto v. Smith, (1900) 175 Mass. See also for suf- 
 ficient description, Christie v. Mead, (1888) 8 0. L. T. 312, cited 
 under section 8. In Orr v. Fuller, (1889) 172 Mass. 597, it was 
 held that the fact that the work was done and the materials were 
 furnished in the erection of several houses under one contract with 
 the owner of a tract of land which had no visible division war- 
 rants a finding, if not a ruling, that the whole tract is one lot and 
 that there is a mechanics' lien upon the whole of it for the whole 
 sum due. See Phillips v. Gilbert, 101 TJ. S. 721 ; Stoltze v. Hurd, 
 (1910) 24 Am. & Eng. Ann. Cas. 871. 
 
ONTARIO MECHANICS' UEN ACT. 477 
 
 (j) " Verified by the affidavit." — For form of affidavit, see the 
 schedule to this Act. As to immaterial defect, see Currier v. 
 Friedriclc, (1875) 22 Gr. 243; Waters y. Goldberg, (1908) 124 
 App. Div. (N.Y.) 511. An affidavit attached to a lien was sworn 
 before a person who afterwards became plaintiff's solicitor, where- 
 upon objection was raised to the affidavit. The objection was over- 
 ruled. Elliott v. McCollum, (1899) 19 C. L. T. 412. See also 
 Crerar v. 0. P. B. Co., 5 0. L. E. 383. Vernon v. Cooke, 49 L. J. 
 C. P. 767, followed; Baker v. Ambrose, (1896) 2 Q. B. 372, dis- ' 
 tinguished. 
 
 But where the statement was" filed without affidavit attached, 
 the registry of lien was vacated. It was suggested that section 19 
 might be applied, but the; Master said that this was confined in its 
 terms to sections 17 and 18. It would be judicial legislation to say 
 that no affidavit was necessary. Bruce v. National Trust Co., 
 (1913) 11 D. L. E. 842. The nature of the procedure under this 
 Act was considered in Canada 8. L. & B. Co. v. Pools, (1907) 10 
 0. W. E. ,1041. 
 
 As to who is authorized to take the affidavit, see E. S. O. c. 74, 
 s. 12 ; Truax v. Dixon, 25 C. L. J. 249 ; E. S. O. c. 175, s.-ss. 3 and 
 4; Canada Permanent Loan & Savings Co. v. Todd, 22 0. E. 515. 
 Cf. Baker v. Ambrose, (1896) 2 Q. B. 372. 
 
 The particulars of claim in an affidavit for a lien were: "The 
 putting in bath-tubs, wash-tubs, hot and cold water connections, all 
 necessary pipes, boiler and hot water furnace and waste pipes, $220." 
 Part was'for material and part for labor. It was held, Davie, C.J., 
 dissenting, that the statement was fatally defective, as including 
 two classes, in regard to one of which there was no statutory lien. 
 Davie, C.J., was of opinion that the particulars were sufficient and 
 that the separation of the price of the labor from that of the ma- 
 terial was a function of the court exercisable at the trial. Wetter 
 v. Shupe, (1897) 6 B. O. E. 58. 
 
 In another case the particulars for lien were : " Brick and stone 
 work and setting tiles in the house situate upon the land herein- 
 after described for, which I claim the balance of $123." Held, in- 
 sufficient. Knott v. Cline, (1896) 5 B. C. E. 120. See also John- 
 son v. Braden, 1 B. C. E. Pt. 2, p. 265; Gogan v. Walsh, (1878) 
 124 Mass. 516; Clarke v. Kingsley, (1864) 8 Allen (Mass.) 543. 
 
 A notice of lien alleging an agreement to furnish the plumbing 
 for a dwelling house, stable and gardener's cottage for a certain 
 sum and that the lien claimants had furnished certain of the 
 
478 THE LAW OF MECHANICS' 'LIENS IN CANADA. 
 
 materials and had done a portion of the work, but failing to state 
 how much of the agreement had been performed or the value 
 thereof, is fatally defective. White v. Living stone, 69 App. Div. 
 361; (1903) 174, F.I 538. 
 
 A claim is not insufficient because it fails to set forth the plans 
 and specifications which are made part of an alleged contrast. 
 Oriental Hotel Co. v. Griffiths, (1895) 30 L. B. A. 765. 
 
 One partner may verify the lien claim of the firm. Waters v. 
 Goldberg, (1908) 124 App. Div. (N.Y.) 511. 
 
 A notice which fails to state the kind or amount of labor per- 
 formed or materials furnished' by the lien claimant is invalid. 
 Toop y. Smith, (1905) 181 K Y. 283. 
 
 (k) '' Or of his agent." — In a recent New York case, even 
 where these words were omitted, it was held that the affidavit of an 
 agent was sufficient. McDonald v. Mayor of New York, (1902) 
 170 N". Y. App. 409 See Devings v. Hall, (1910) 205 Mass. 407. 
 But without these words in a former Ontario Act the affidavit of 
 an agent was held insufficient. Grant v. Dunn, (1883) 3 0. E. 
 376. 
 
 See observations on this section in Dunn v. McCallum, (1907) 
 14 0. L. E. 249. , 
 
 It is not essential that the true ownership of the property be 
 stated in the claim, and it is immaterial that the claim describes 
 too much land, nor is the claim void (under the Manitoba Act) if 
 sworn before a solicitor for the claimants. Poison v. Thomson, 
 (1916) 39 Man. L. E. 410, 29 D. L. E. 395, 34 W. L. E. 745; 
 Ontario Lime Association v. Grimwood, (1910) 22 0. L. E. 17. 
 
 Where the statute required that a statement of claim shall be 
 filed by " the person claiming it " and shall be " signed and 
 sworn to by him or a person in his behalf," it is sufficient if it is 
 signed in the name of the firm by one of the. partners and is 
 sworn to by that partner. Lays v. Hurley, (1913) 215 Mass. 582. 
 
 As to a defective description not being material see Hiltyard 
 v. Bobbins, (1913) 53 Ind. App. 107 N . 
 
 An unregistered foreign company is entitled to register a 
 mechanics' lien. Wortman v. Frid Lewis Co., (1915) 9 W. W. 
 E. 812. 
 
 18. What may be included in lien; — A claim for lien may 
 include claims against any number of properties, and any number 
 
ONTARIO MECHANICS' LIEN ACT. 479 
 
 of persons claiming liens upon the same property may unite 
 therein, but where more than one lien is included in one claim each 
 lien shall be verified by affidavit as provided in section 17. 10 
 Edw. VII. c. 69, s. 18. 
 
 (a) " Any number qf properties.' '—-In other words, one claim 
 of lien for registration may include work done or materials furn- 
 ished in respect to different properties of the same owner. Hal- 
 stead & Harmount Co. v. Arick, (1904) 76 Conn. 382. 
 
 The policy of the mechanics' lien law is to make every building 
 and the lot on which it is erected liable to the lien for work done 
 upon it and for materials furnished for the erection and construe- ' 
 tion of the building. Where a number of buildings are erected 
 under a single contract upon contiguous lands the statute does not 
 contemplate that there should be a separate and distinct lien claim 
 filed for each one of the buildings. It recognizes but a single lien. 
 Johnson v. Algor, (1900) 65 N. J. L. 363. 
 
 See Dunn v. McCallum, (1907) 14 0. L. B. 249; Ontario Lime 
 
 Association v. Grimwood, 22 0. L. E. 17; Builders Supply Co. v. 
 
 Huddlestone, 25 Man. L. E. 718. 
 i 
 
 19. (1) Informality in cases of registering liens. — A substan- 
 tial compliance with sections 17, 18 and 31 shall be sufficient,- and 
 no lien shall be invalidated by reason of failure to comply with any 
 of the requisites of those sections unless, in the opinion of the 
 court, judge or officer who tries an action under this Act, the 
 owner, contractor or sub-contractor, mortgagee or other person, is 
 prejudiced thereby, and then only to the extent to which he is 
 thereby prejudiced. 
 
 (2) Exception. — Nothing in this section shall dispense with 
 registration of the claim for lien. 10 Edw. VII. c. 69, s. 19, — 
 as amended by Geo. V. c. 30, s. 4. 
 
 (a) "A substantial compliance."— -This is a salutary provision. 
 The parties to be affected by a claim are entitled to such informa- 
 tion as it is essential for them, to have iu order to protect them 
 against imposition and to safeguard their rights, but it is intended 
 by the legislature that the terms of sections 17 and 18 should be 
 followed merely in substance, so that on the one hand valid 
 claims would not be lost on mere technicalities by applying a rigid 
 
480 THE LAW OF MECHANICS' LIENS IN CANADA. _ 
 
 literality to the terms of these sections, and on the other hand the 
 obvious purpose "of the sections -would be secured by such com- 
 pliance with their provisions as would by affording sufficient data 
 ensure protection to owners, contractors, sub-contractors, mort- 
 gagees or other interested persons. 
 
 The courts will doubtless be indulgent in respect to omissions 
 and defects which do hot affect the substance of the notice and are 
 not necessary as safeguards against imposition. In Crerar v. C. P. R. 
 Co., (1903) 5 0. L. E. 383, Boyd, C, said: "But these forms 
 are not of inflexible use, and if the verification is in the same 
 way and to like effect as in the case of registration, I think 
 there has been ' substantial compliance," to use the phrase found 
 in section 19 (1), with the scheme of the Act. . . . It is not 
 desirable, nor is it needful, that all the niceties of practice in due 
 sequence should attach to the summary procedure provided for the 
 realization of workmen's liens." See also observations of Killam, 
 C.J., in Robock v. Peters,, (1900) 13 Man. 139. Defective descrip- 
 tions of the land to be charged are immaterial if the description is 
 sufficient to prevent anyone from being misled. On the other hand 
 a total non-compliance with such conditions cannot be waived even 
 by the owner, at least so far as third persons are concerned. Boisot, 
 S. 5; White v. School District, 42 Conn. 541; Burnside v. O'Hara, 
 ,35 111. App. 150. In a recent New York case (Mahley v. German 
 Bank, (1903) 174 K Y. App. 499), it was held that a notice of 
 lien which failed to state when the first item of work was done or 
 anything from which that time might be inferred, as required by 
 sub-division 6 of section 9 of the 1ST. Y. Lien Law, was insufficient, 
 notwithstanding that the notice substantially complied with the 
 other provisions of the statute ; since the provision thereof that the 
 law shall be construed liberally does not authorize the court to dis- 
 pense with 1 what the statute says the notice shall contain. In 
 Canada, however, the saving clause in a Mechanics' Lien Act may 
 operate to make a lien effective although the affidavit of lien did 
 not shew, as required by the statute, the name and residence of the 
 owner of the property or interest to be charged, if the property 
 may be, otherwise identified. Foster, v. Brocklebank, 22 D. L. E. 
 38. As to effect of other defects in affidavit see Lemon v. Young, 
 (1916) 10 0. W. K 82. i 
 
 Where a lien was filed against the owner of a property on which 
 a building had been erected by the lessee, the failure to state the 
 
ONTARIO MECHANICS' LIEN ACT. 481 
 
 correct name of the person for whom the materials had been furn- 
 ished and the labor performed would not invalidate the lien. 
 Steewes V. SinclaAr, (1903), 171 N. Y. 676., As to sufficiency of 
 statement of labor performed, see Clarke v. Heylmcm, 80 N. Y. S. 
 794. A recent case in Massachusetts, Angier v. Bay State, (1901) 
 178 Mass. 163, illustrates the nature of the errors which may defeat 
 a claim. 
 
 Claiming a lien upon- too much property will not absolutely 
 invalidate the lien. Ontario Lime Assn. V. Grimwood, (1910) 22 
 6. L. E. 17. 
 
 The plaintiff contracted- with E. to supply him with lumber 
 to be used in a building he was erecting at Port Arthur for the 
 defendant. The lumber was sent in different "shipments, the last 
 .of which arrived at Port" Arthur on November 11th, 1907, and was 
 taken possession of by E.'s foreman, but was not in fact placed upon 
 defendant's land. E. having made default in payment, the plain- 
 tiffs on December 10th, registered a claim for lien for the price of 
 the lumber. It was held, that the lien was registered too late. 
 Ludlam-Amslie Lumber Co. v. Fallis, (1909) 19 0. L. E. 419. 
 See Dunn v. McCallum, (1907) 14 0. L. E. 249. 
 
 The validity of the lien will not be affected by the omission of 
 an item as credit in the statement of the lien, or by an under- 
 statement of the amount due the claimant if it does not appear 
 affirmatively that the defendant was misled by inaccuracies. Tich- 
 ert) v. Richardson, (1905) 189 Mass. 53. See Thompson?. Luciano, 
 (1912) 211 Mass. 169. As to fatally defective omission, see Riley \. 
 Durfey, (1911) 145 App. Div. N. Y. 583. 
 
 A substantial compliance exists if enough appears on the face 
 of the statement to point the way to successful inquiry. American 
 Gar & Foundry Go. v. Alexandria Water Co., (1906) ,215 Pa. 520. 
 The question of a validity of a notice turns' upon substantial com- 
 pliance with the provisions of the statute, with the limitation that 
 this rule of .construction cannot be applied so far as to dispense 
 entirely with what the statute says the notice shall contain. Waters 
 v. Goldberg, (1908) 1,24 App. Div. (NY.) 511. A, sufficient de- 
 scription of the materials furnished in a statement annexed to the 
 claim and marked as Exhibit A will constitute " a substantial com- 
 pliance." Monarch Lumber Co. v. Garrison, (1911) 18 W. L. E. 
 686. 
 
 MX.— 31 
 
482- THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 A claim for a lien was made out on a printed form, and was 
 against the contractor for the erection of certain buildings, the 
 i claimant erroneously believing this contractor to be the owner. 
 
 The claim was for " materials supplied " on or before a named 
 date, no description of the materials being given and no mention 
 , being made of the commencement of the lien. The claimant's 
 residence was given as "of Toronto." It was held that the claim- 
 ant's residence was sufficiently designated; that the claim against 
 the contractor was sufficient, the Act merely requiring it to be made 
 against the owner or person believed to be the pwner; that it was 
 not necessary to give the date of the commencement of the lien; 
 and that while the term " materials supplied " was not a substantial 
 compliance with the Act, yet under this section it did not invalidate 
 the lien, no prejudice being occasioned thereby, and that the lien 
 tvas therefore valid. Barrington v. Martm, 16 0. L. E. 635. 
 
 A lien will not be defeated by the fact that the claim described 
 more land than should be within the lien. Scott v. Goldinghurst, 
 123 Ind. 258. . 
 
 While, the inclusion through mistake of non-lienable items will 
 not destroy the claimant's right to a lien where said items can he 
 "segregated from the others, yet unless this can be done with reason- 
 able certainty the defect is fatal to the whole lien. Gilbert Hunt 
 Co. v. Parry, (1910) 59 Wash. 446, 23 Am. & Eng. Ann. Cas. 225. 
 i A failure to insert in the statement of claim the individual 
 names of the partners is not fatal to the lien claimed. Lays v. 
 Hurley, (1913) 215 Mass, 582. 
 
 If through mistake, made in good faith, the actual owner is . 
 not named, but the name of some one else, supposed to be the owner, 
 is erroneously inserted, such error is not material. Poison v. 
 Thomson, (1916) 29 D.L., E. 395. 
 
 ■ (b) " Dispensing with registration." — If the provision's of sec- 
 tion's are complied with, no other registration of the lien is neces- 
 sary, except where the lien is claimed against the owner of the fee. 
 
 i 
 
 20. (1) Effect of registration.' — The registrar, upon payment of 
 the proper fee, shall register the claim, describing it as " Mechan- 
 ics' Lien," against the land therein described in like manner as if 
 it were a mortgage, but he shall "not copy the claim or affidavit in 
 any registry book. 
 
ONTARIO MECHANICS LIEN ACT. 
 
 483 
 
 (2) Fee for registration. — The fee for registration of a claim 
 for lien shall be twenty-five cents, and if several persons join in 
 one claim the registrar shall be entitled to a further fee of ten 
 cents for each person after the first. 10 Edw. VII. c. 69, s. &0. 
 
 (a) ' " Shall register." — As to the registrar omitting or delaying 
 to register the claim, see Lawrie v. Rathbun, (1876) 38 U. C. Q. B. 
 255; Getchell 'v.' Moron, (1878) 124 Mass. 404, 408; Orne v. Bar- 
 stow, (1900) .175 Mass. 193. 
 
 21. Status of lienholder.— Rev. Stat. cc. 124, 126.— Where a 
 ' claim is so Tegistered the person entitled to the lien shall be deemed 
 a purchaser pro tanto and within the provisions of the Begistry 
 Act and the Land Titles Act/ but except as herein otherwise pro- 
 vided those Acts shall not apply to any lien arising under this 
 Act. ~ 10 Edw. VII. c. 69, s. 21. 
 
 (a) " Shall be deemed a purchaser pro tanto." — Mortgagees 
 under registered mortgage had advanced money to pay. off prior 
 mortgage and for improvements, when lien filed and action begun. 
 Mortgagees were not parties. Mortgagees notified lienholders and 
 sold under mortgage and applied for order vacating registry of 
 liens and lis pendens. Order granted mortgagees to pay surplus 
 proceeds into court where they would be available for lienholders. 
 Finny. Miller, (1889) 10 C. L. T. 23, 26 C. L. J. 55. See Resell 
 v. Russell, (1881) 28 Gr. 419; McOormick v. Bullivant, (1878) 
 14 C. L. J. 85. See also Hynes v. Smith, 8 P. E. 73, 27 Gr. 150. 
 In that case, however, the effect of former sections '7 and 2, sub- 
 section 3, does not appear to have been considered except in the 
 
 _ dissenting judgment of Proudf oot, J. 
 
 (b) "Except as herein otherwise provided." — 'Sections 22, 23 
 and 24 contain the exceptions. 'See McVean v. Tiffin, (1885) 13 
 A. E. 1; Wanty v. Robins, (1888) 15 0. E. 474. 
 
 (c) "Those Acts shall not apply." — See Latch v. Bright, 
 (1869) 16 Grl 653, and notes .under sections 2 and 8. See the 
 Ontario Eegistry Act, sub-sections 87, 97, and Rose v. Peterkin, 
 (1885) 13 S. C. E. 677, which decided that although section 81 
 E. S. O. c. Ill, declared that " no equitable lien, charge or interest 
 affecting land shall be deemed valid in any court in this province 
 after this Act shall come into operation as against a registered 
 
484 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 instrument executed by the same party, his heirs or assign," that 
 section did not apply to a case in which the party registering such 
 instrument had actual notice of the equitable lien, charge or inter- 
 est,- even though the same had been created by parol. 
 
 See also Miller v. Duggan, (1890) 23 N". S. B. 120; (1892) 21 
 S. C. E. 33. 
 
 22. (1) Limit of time for registration.-«-A claim for lien by a 
 contractor or sub-contractor, in cases not otherwise provided for, 
 may be registered before or during the performance of the con- 
 tract, or within thirty days' after the completion or abandonment 
 thereof. 
 
 (2) Materials. — A claim for lien for materials may be regis- 
 tered before or during the furnishing or placing thereof, or within 
 thirty days 'after the furnishing or placing pf the last material so 
 furnished or placed. 
 
 (3) Services. — A claim for lien for services may be registered 
 at any time during the performance of the service, or within thirty 
 days after the completion of the service: 
 
 (4) Wages. — A claim for lien for wages may be registered at 
 any time during the performance of the work for which such 
 wages are claimed, or within thirty days after the last work is done 
 for which the lien is claimed. 
 
 (5) /In case of supervision by architect, etc. — In the case of a 
 contract which is under the supervision of an architect, engineer 
 or other person upon whose certificate payments are to be made, 
 the claim for lien by a contractor may be registered within the 
 time mentioned in sub-section 1, or within seven days after the 
 architect, engineer or other person has given, or has, upon appli- 
 cation to him by the contractor, refused to give a final certificate. 
 10 Edw. VII, c. 69, s. 22. 
 
 (a) "In cases not otherwise provided for."— i.e., such cases as 
 are not provided for in sub-sections (3) and (4). 
 
 (b) " Within thirty days." — Where there is a prior arrange- 
 ment, although not binding, between a contractor and a supplier of 
 
ONTARIO MECHANICS' LIEN ACL". ' 485 
 
 building materials, whereby the former undertakes to procure from 
 the latter all the material required for a particular building con- 
 tract, so that, although the prices and quantities are not defined 
 until orders are given and deliveries made, the entire transaction, 
 although it may extend over some months, is linked together by 
 the preliminary understanding on both sides, a lien for all mater- 
 ials so supplied is in time if registered within thirty days of the 
 furnishing of the last item. Morris v. Tharle, (1893) 24 0. R 
 159; Bobock v. Peters, (1900) 13 Man. L. R. 124. 
 
 The plaintiffs contracted with E. to supply him with lumber 
 to be used in a building he was erecting for the defendant on 
 lands in Port Arthur. The lumber was sent in different shipments, 
 the last of which arrived at Port Arthur on November 11th, 1907, 
 and was taken possession of by E.'s foreman, but was not in fact 
 used in the defendant's building or placed upon his land. E 
 having made default in payment, the plaintiffs on December 10th 
 registered a claim for lien on the lands for the price of the lumber. 
 It was held that the lien was registered too late, as it was not 
 registered until more than thirty days had elapsed since any ma- 
 terial furnished by the plaintiffs had been placed upon the 
 land or used in the construction of the building. Ludlam-Ainslie 
 Lumber Co. v. Fallis, (1909) 19 O. L. R. 419. 
 
 The thirty days within which the registration is to be effected 
 should be computed not from the time certain trifling alterations 
 were made in the machinery as supplied, but from the time the 
 machinery was supplied and placed. Neill v. Carroll, (1880) 28 
 Gr. 30. See Summers v. Beard, 24 0. R. 641. But this decision 
 is not now followed. In view of later legislation the old eases on this 
 question are not applicable in Ontario. Hurst v. Morris, 32 O. L. 
 R. 346, 351. See chapter " Computing the Statutory Time," ante. 
 
 It cannot be said as a matter of law that work done by a 
 mechanic under a contract substantially performed at an earlier 
 date' is only colorable because it is trifling in amount and done 
 with the ulterior purpose of saving the lien. Miller v. Wilkin- 
 son, (1896)' 167 Mass. 136. See Brynjolfson v. Oddson, (1916) 27 
 Man. L. R. 391, where all the recent decisions are reviewed. See 
 also Benson v. Smith, 37 0. L. R. 257', 31 D. L. R. 416. 
 
 The right of one furnishing materials to a contractor for use 
 in a building to fix his lien for the materials begins when the last 
 
486 THE LAW OF MECHANICS' LIENS IN CANADA. , 
 
 material is delivered, whether it is used in the, building or not. 
 Voighiman & Co. v. Southern By. Co., (1910) 24 Am: & Eng. 
 Ann. Cas. 211. See chapter entitled " The Lien of the Material- 
 man/' ante. 
 
 A claim cannot be amended after the time limit for filing has 
 expired. May, etc., Brick Go. v. General Engineering Co., 180 
 111. 535. As to the right to amend lien see Bafuse v. Hunter, 12 
 B. C. E. 126. The claim must be filed within the statutory time 
 and in conformity with the statute. Hilliard v. Allen, 4 Cush. 
 532; Christian v. Alice, 104 111. App. 177. 
 
 Under the provisions of the Act of 1874, it was held that a 
 contractor, though entitled to a lien upon property for the con- 
 struction of which he had furnished material to an original con- 
 tractor or another sub-contractor, must in order to enforce such 
 lien institute proceedings for that purpose within thirty. days after 
 the material furnished; the lien in such case arising from the 
 furnishing of the material or the doing of the work, not -from 
 registration as under the Act of 1873. McCormick v. Bullivant, 
 (1877) 25 Gr. 273. 
 
 See Lindop v. Martin, (1883) 3 C. L. T, 312; Morris v. Tharle, 
 (1893) 24 0. E. 159, and Bathbone v. Michael, (1909) 9 0. L. E. 
 428, 20 0. L. E. 503. 
 
 Merchants supplied material to the contractor for certain 
 buildings and claimed a lien in respect thereof. There was no 
 contract for the placing of these materials upon the property; the 
 last of them was bought by the contractor from the merchants 
 oh the -22nd November and were by him placed in the building 
 on the > 23rd November.. Held, that the time for registering the 
 claim of lien under section 21, E. S. O. 1877, c. 126, began to run 
 from the 22nd November. Hall v. Hogg, (1890) 20 0. E. 13. 
 
 See Dempster v. Wright, (1900) 21 C. L. T. 88,: referred to 
 under section 20 of the Nova Scotia Mechanics' Lien Act. 
 
 In a number of -Massachusetts cases it has been held that the 
 , filing must be "within thirty days after the last of the items for 
 which a lien is given was performed or furnished, although other 
 items for which there is no lien were performed or furnished later. 
 Gale v. Blaikie, (1880) 129 Mass. 206; Kennebec Co. v. Picker- 
 ing, (1886) 142 Mass. 80; Worthrn v. Cleveland, (1880) 129 
 Mass. 570; O'Driscoll v. Bradford, (1898) 171 Mass. 231. 
 
ONTARIO MECHANICS' LIEN ACT. 487 
 
 If a sworn statement of a mechanics' lien is filed within thirty 
 days after the claimant had ceased to labor and if the last items 
 of labor were performed in good faith under the contract, the lien 
 is none the less valid because before the , work named in the last 
 items was done, ,no work had been done for about 34 days, and 
 before the last work was done the houses on which the lien was 
 claimed appeared to be completed and were purchased by their 
 present owner without knowledge of any lien. D. L. Billings Co. 
 7. Brand, (1905) 187 Mass. 417. See. also Cole v. TJM, 46 Conn. 
 296, and Nichols v. Culver, 51 Cohn. 177. But see Kilbourne v. 
 UcEwan, 6 W. L. E. 562. , 
 
 . Sundays are inpluded in the thirty days, and if' the last day 
 falls on Sunday, the registration must take place the day before. 
 See Haley, v. Young, (1883) 134 Mass, 364; Oakland Manufactur- 
 ing Co. v. Lemieux, 98 Me. 488 . See also Bowes ,v. N. Y. 
 Christian Home, 54 How. Pr. 509, as to rule about computation 
 of time. 
 
 But in Ontario and other Canadian provinces the Interpretation 
 Act (B. S. 0. 1897, c. 1, s.-ss. 16 and 17) provides that if the time 
 limited for the doing of anything expires upon a Sunday, such 
 thing may be done on the day next following which is not a holi- 
 day. 
 
 Under the Massachusetts Act, a person who furnishes lumber 
 at a certain price per thousand feet at different times under, an 
 entire contract in the. erecting of a building, loses his lien if he 
 neglects to file his statement of the amount due him within thirty 
 days after the last item is furnished which is actually used in 
 the erection of the building. In this case the last lot of lumber 
 sent was piled up in the building and not used. Kennebec Fram- 
 ing Co. v. Pickering, (1886) 142 Mass. 80. But this decision would 
 not be followed in some provinces of Canada. See chapter entitled 
 " The Lien of the Materialman,' 7 ante. 
 
 Whether the last work done by a mechanic was part and parcel 
 of the original job or not depends upon evidence and upon the 
 finding of that fact the lien depends. Eolden v. Winslow, 18 Penn. 
 160 ; Bartlett v. Kmgom, 19 Penn. 341. 
 
 The putting up of a wire screen, without request or knowledge 
 of the owner, after the sub-contractor's contract had been sub- 
 stantially finished, after final payment had been demanded and 
 treated as due by him, does not operate to revive a lien, the right 
 
488 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 to which had previously expired. Schaller-Hoerr Go. v. Gentile, 
 (1910) 153 111. App. 458. 
 
 Lien creditors are concluded as to the sufficiency of the com- 
 pletion of the building, in the absence of fraud or mistake, by, its 
 acceptance by the architect and the owner. Oriental Hotel Co. v. 
 Griffiths, (1895) 30 L. E. A. 765. 
 
 (c) "Abandonment." — In Boyce v. Huxtable, (1919), unre- 
 ported, Wallace, Co. J. (Halifax), after finding as a fact that the 
 plaintiff ceased work under the genuine belief that he had com- 
 pleted his contract, the belief being erroneous, however, because 
 of the plaintiffs misconstruction of the- contract, thus interprets 
 the -word " abandonment," — " It is now contended by defendant 
 that plaintiff's letter and the subsequent removal of his workmen 
 constituted an " abandonment " of the contract. Counsel for de- 
 fendant argues that as_ there was no completion there must have 
 been an abandonment in view of the foregoing facts. But a situa- 
 "tion may exist which would involve neither a completion 'nor an 
 abandonment of the contract. Plaintiffs letter was due to an 
 erroneous construction of the contract. Indeed, instead of an aban- 
 donment of the contract his letter asserts that he had completed 
 it, and he subsequently acted in accordance with that inaccurate 
 assertion. Usually an abandonment of a contract takes place 
 either by the contractor " throwing up " the job because of financial 
 or other inability to continue it, or by his suddenly leaving town for 
 parts unknown, or by his refusing, to complete the contract on some 
 specific ground, -although at the same time recognizing that the 
 contract wafe not completed. The word "abandonment" in this 
 section cannot mean ceasing to work under the belief and with the 
 assertion that the contract is completed, but must mean a refusal 
 to Complete a contract admittedly incomplete, or such deliberate 
 neglect to continue the work after due notice or request from the 
 employer as would be equivalent to refusal. (See Anderson v. 
 F.ort William Commercial Chambers, Ltd., 25. D. L. E. 321). In 
 the present case no such condition arose. I therefore decide that 
 the contract was not abandoned." 
 
 Long delay in completing a contract ordinarily would be a 
 material element in deciding whether the contract had been aban- 
 doned. This together with the extent of the unfinished parts of 
 the contract wel,l might be decisive in passing upon the good faith 
 of the lien claimant. If, in addition, a time had been fixed for the 
 
ONTARIO MECHANICS' LIEN ACT." 489 
 
 completion of the contract, delay thereafter might be a significant 
 fact. Winer v. Rosen, (1918) 231 Mass. 418. 
 
 The plaintiff entered into a contract with the defendant to 
 furnish the necessary materials and labor for the alteration of a 
 building. It was provided that upon the refusal, neglect or 
 failure' of the contractor to perform being certified by the architect 
 the owner might after three days' written notice to the contractor 
 provide any such labor or materials and deduct the cost thereof from 
 any money due or to become due under the contract, and also that 
 if the architect should certify that such refusal, neglect or failure 
 was sufficient ground for such action, the owner might terminate 
 the contract and complete the work. The architect having furn- 
 ished such certificate, it was held that the plaintiff's conduct 
 amounted to such an abandonment of the work as justified the, 
 defendants in terminating the contract. Midtoum Contracting Co. 
 v. Goldsticker, (1914) 165 N. Y. App. Div. 264. 
 
 (d) " May be registered."— A mistake of the registrar in con- 
 nection with the registration cannot prejudice the claimant. Get- 
 chell v. Moran, (1878) 124 Mass. 404, 408; Lawrie v. Rathbun, 
 (1876) 38 U. C. Q. B. 255, and Orne V Barstow, (1900) 175 
 Mass. 193. 
 
 (e) "Materials." — Materials were supplied from day to day, 
 nothing being said as to the particular building and there being 
 no express contract. Held, that the lien might be registered at 
 any time within thirty days from the last item. In the absence of 
 appropriation payment on running account to be credited on the 
 first items and lien might be claimed for balance. Lindop v. 
 Martm, (1883) 3 C. L. T. 312. See British Columbia Timber Co. 
 v. Leberry, (1902) 22, O. L. T, 273. See also Robock v. Peters, 
 (1900) 13 Man. 124, the facts in which are stated under section 
 20 of the Manitoba Lien Act, ante, in which case . Chadwick v. 
 Hunter, 1 Man. 39, is distinguished, and Morris v. ■ Tharle, 24 
 O. E. 159, followed. Summers v. Beard, (1894) 24 0. E. 641, and 
 Eelley V. McKenzie, (1884) 1 Man. 169, not applicable. 
 
 "Where a materialman contracts to deliver material in a manu- 
 factured form, the contract is for materials only, and a lien can- 
 not be had for labor performed in manufacturing the materials as 
 a claim for labor. Tracey v. Wetherell, (1896) 165 Mass. 113; 
 Donaher v. Boston, (1879) 126 Mass. 309. 
 
.490 THE LlWOI MECHANICS' LIENS IN CANADA. 
 
 An existing' building which is sold for the purpose of consti- 
 tuting part of a larger building to be erected may be considered 
 materials furnished within the statute. Selden v. Melks, 17 Cal. 
 128. 
 
 Where materials were supplied from time to time as required, 
 not under any contract, it was held that the furnishing of each lot 
 of goods was a separate transaction. Chadwick v. Hunter, (1884) 
 1 Man. 39 ; See this- case distinguished in Boboch v. Peters, (1900) 
 13 Man. 124, and Morris v. Tharle, (1893) 24 0. E. 159, followed! 
 
 A claimant who has supplied material to be used in the erection 
 of a building under a contract by which the materials were to be 
 supplied from time to time and has filed a lien, which at the request 
 of the owner, he has subsequently discharged, taking instead an 
 order upon certain moneys, which was not paid, cannot, upon 
 supplying further material under his contract and within the stat- 
 utory period, file a lien for the total amount of his claim. Wcrtman 
 v. Frid-Lems Co., (191?). 33 W. L. E. 119 (Alta.). 
 
 A mechanics' lien is enforceable if registered within the statu- 
 tory period from the last delivery of materials, even though the 
 materials last delivered may never have been used in the construc- 
 tion of the building, if they were furnished for the purpose of 
 being used therein. Kalbfleisch v. Hurley, 25 D. L. E. 469, 34 
 0. L. E. 268. 
 
 "When a contractor Working for several owners has but a single 
 contract for the supply of materials with the materialmen, the 
 time of filing a lien by the latter against an owner is not to be 
 measured with reference to the duration of deliveries under the 
 contract between the materialman and the contractor, but by the 
 completion of the work by the contractor for the several owners. 
 Be Moorehouse y. Leake, (1886) 13 0. E. 290. As to the time 
 within which a sub-contractor for materials must register, see 
 Hall v. Hogg, (1890) 20 6. E. 13. 
 
 Where the work has been done and accepted by the " owner " it 
 was formerly held that the existence of trifling defects subsequently 
 . rectified by the contractor will not extend the time until thirty days 
 from the date when the defects were rectified, even though the work 
 was accepted on the understanding that the defects were to be 
 remedied. Makins v. Robinson, (1884) 6 0. E. 1; Eilbourne V. Mc- 
 Ewan, 6 W. L. B. 562; Kelly v. McKenzie, (1884) 1 Man. 169. See 
 also Neill v. Carroll, 28 Gr. 30, affirmed 28 Gr. 339. See report 
 as to this case in Summers v. Beard, (1894) 24 0. E. 641. But 
 
ONTARIO MECHANICS LIEN ACT. 
 
 491 
 
 Summers, v. Beard and similar' cases are now treated as over-ruled 
 See Day V. Grown Grain Co., 39 S. C. B. 258, and cases cited in 
 Chapter XII, ante. ' • 
 
 But in a number of recent Massachusetts t cases it has been 
 held that where the last work) although trifling in amount and 
 done with the ulterior purpose of saving the lien, was neverthe- 
 less called for by the contract which had been treated as fully 
 completed at an earlier ' date, the thirty days are to be reckoned 
 from such last work. Morse, Williams Co. v. Ellis, (1899) 172 
 Mass. 378; Sprague v. McDougall, (1899) 172 Mass. 553; Mona- 
 ghan v. Goddard, (1899) 173 Mass. 468; Burrell v. Way, (1900) 
 176 Mass. 164; McLean v. Wiley. (1900) 176 Mass. 233. See also 
 D. L. Billings Go. v. Brand, (1905) 187 Mass. 417, and Irwin v. 
 Benyon, (1886) 4 Man; L. E. 10. 
 
 (f) "Services." — This word used here and in section 6 is 
 broad enough to include, the professional work of an architect in 
 drawing plans and specifications, or the work of an engineer in 
 furnishing expert, calculations in respect to the building subse- 
 quently erected. See chapter, " Who May Acquire a Lien," ante. 
 
 (g) "Wages,"- — See- section 2 (7), ante. 
 
 (h) " Upon whose certificate." — The certificate of an archi- 
 tect in a dispute between the building owner and the builder is no 
 estoppel in an action by the building owner against the architect 
 for negligence. Badgley ,v. Dickson, (1886) 13 0. A. E. 494; 
 Rogers v. James, (1891) 8 Times L. E. 67- 
 
 A person who has delivered materials to the contractor loses 
 his lien therefor, as against the twenty per cent, of the contract 
 price to be held back by the owner from the contractor, unless he 
 registers his lien within thirty days after the abandonment of the 
 contract, if he has not supplied any materials to the contractor 
 after such abandonment, though he was not notified of it, and a 
 delivery of some materials for use in the building to the owner after 
 such abandonment, in exchange for some of the materials form- 
 erly supplied to the contractor, will not have the effect of extending 
 the time for registering the lien for the materials supplied to the 
 contractor. Brown v. Dunhill, (1916) 25 Man. L. B. 546. 
 
 Where all the work, by a person claiming a mechanics' lien is 
 done, or all the materials are furnished, under one entire continuing 
 contract, although at different times, a lien claim filed within the 
 statutory period after the last item was done or furnished is 
 
492 THE LAW> OF, MECHANICS' LIENS IN CANADA. 
 
 sufficient as to all the -items ; and, in order that the contract may 
 be a continuing one within this rule it is not necessary that all 
 the work or materials should be ordered at one time, that the 
 amount or nature qf work or materials should be determined at the 
 time of the first order, or that the prices sh'puld be then agreed 
 upon j but a mere general agreement to furnish labor or materials 
 for a particular building or improvement is sufficient if complied 
 with. Morris V. Tharle, 24 0. R. 159; Whiilock v. Loney, (1917) 
 3 W. W. R. 971, 37 D. L. R. 52 (Sask.) See also Hwst v. Morris, 
 32 0. L. R. 346; JFZett v. World Construction, 15 D.,L. R. 628. 
 
 The time for registration does not begin to run until after 
 the completion of additional work necessary for the full perform- 
 ance of the contract. Benson v. Smith & Son, (1916) 37 0. L. R. 
 257, 31 D. L. R. 416; Anderson v. Fort William, 25 D. L..E. 319, 
 Kalofleisch v. Hurley, 25 D. L. R. 469; Coiling v. Stimson, 10 
 D. L. R. 597. 
 
 Work performed by a contractor on buildings in pursuance of 
 and to complete his contract, after the date fixed for completion, 
 entitles him to file his mechanics' lien within the statutory limit 
 of time as from the performance of such work,— even if the work 
 be trifling in extent or value. Brynjolfson v. Oddson, 27 Man. 
 L. R. 390, (1917) 1 W. W. R. 1000, 32 D. L. R. 270. 
 
 No lien attaches to the land in the absence of evidence that 
 any materials furnished for the building were supplied within the 
 statutory period of the registration of the lien. Compaigne v. 
 Carver, 35 0. L. R. 232, 27 D. L. R. 76. 
 
 The obligation of the owner to retain a statutory percentage of 
 the value of the work and materials is limited to the period of 
 thirty days after the completion or abandonment of the contract 
 , by the contractor with whom the owner had contracted, and where 
 such contractor had abandoned the jvork uncompleted and the 
 owner had to pay more than the balance of the contract price to 
 finish it, a sub-contractor filing his claim more than thirty days 
 after the principal contractor's abandonment although within thirty 
 flays of his own last work on the building, has no lien, if nothing 
 then remained due the principal contractor. Brooks v. Mundy, 
 16D.L. R. 119. 
 
ontabio mechanics' lien act. 493 
 
 Expiet and Discharge of Lien. 
 
 23. Expiry of liens. — Every lien for -which a claim is not reg- 
 istered shall absolutely cease to exist on the expiration of the time 
 hereinbefore limited for the registration thereof unless in the 
 meantime an action is commenced to realize the claim, or in which 
 the claim may be realized under the provisions of this Act, and a 
 certificate thereof is registered in. the registry office in which the 
 claim for lien might have been registered. 10 Edw. VII. c. 69. 
 s. 23. 
 
 (a) ." For which a claim is not registered." — Under the present 
 Act the cases' of Burritt v. Renihan, (187?) 25 Gr. 183, and Neill 
 v. Carrol, (1880) 28 Gr. 30, 339, and see Ritchie v. Grundy, (1891) 
 7 Man. 532, are no longer applicable in this connection, as an 
 action can now be commenced and a lis pendens registered before 
 the period of credit has expired. See section 28. ' See Rooock v. 
 Peters, (1900) 13 Man. 124. 
 
 (b) "An action is commenced." — i.e., by any lienholder. See 
 section 32; Bunting v. Bell, (1876) 23 Gr. 584; Hovenden v. 
 Ellison, (1877) 23 Gr. 448; McPherson v. Gedge, (1883) 4 O. E. 
 246. 
 
 In an action brought against the builder and owner the plain- 
 tiff must show that his right of action was complete at the time 
 the action was commenced. Titus v. Gunn, (1903) 69 N. J. L. 410. 
 
 The period of ninety days, limited by section 21 of the 
 Mechanics' Lien Act, (1887) for the commencement of proceed- 
 ings to enforce the lien applies to an action or proceeding against a 
 mortgagee or other person claiming an interest in the lands, and 
 that whether proceedings have or have not been taken against the 
 owner within the ninety days. The plaintiffs, assignees of a 
 mechanics' lien, brought an action against the owner and a prior 
 mortgagee, but this action was dismissed as against the mortgagee 
 ior want of prosecution. Having succeeded in obtaining a judg- 
 ment establishing their lien as against the owner, they brought 
 this action after the lapse of more than ninety days from filing their 
 lien, to obtain a declaration of priority over the prior mortgagee 
 to the extent that the work increased the selling value of the land. 
 Held, reversing the judgment in 3 O. E. 183, that the lien had 
 
494 THE LAW OE MECHANICS'' LIENS IN CANADA. 
 
 ceased to exist as against the 1 mortgagee. Bank of Montreal' v. 
 Haffner, (1884) 10 A. E. 592; s.c, 29 Gr. 319. See Cole v. Hall, 
 (1888) 12 P. R. 584; 13 P. R. 100; Keffer v. Miller, (1890) 10 
 C. L. T. 90, and McGwM v. Fletcher, {!&%$) 3 Terr. L. R. 137, 
 in which case Cole v. Hall, supra, is criticized. 
 
 In an action under a former Act by lienholders to enforce their 
 lien it was held that it is not necessary to make other holders 
 of registered liens parties in the first instance in order to attack 
 their status as lienholders; but this can be done when they are 
 added as defendants in the Master's office. Hall v. Hogg, (1890) 
 14 P. R. 45. 
 
 (c) ." An action is commenced to realize the claim." — In David- 
 son v. Campbell, (1888) 1 Man. 250, the bill alleged a contract 
 with defendant, C, for the' performance of certain work in the 
 erection' of a building upon land of C. By amendment made after 
 the time for filing the bill had lapsed, the plaintiffs alleged that 
 their contract was with the defendants K. and McD., who had con- . 
 traeted with C. for the erection of the whole building, thus chang- 
 ing their position from contractors to sub-contractors. No new- 
 certificate of lis pendens was filed. , Held, that the plaintiff could 
 not rely upon the original bill and certificate of lis pendens I The' 
 ease might be different if formal amendments were made, but the 
 course taken in the present proceedings!, if sanctioned, would be 
 introducing by amendment an entirely new cause of action after 
 the expiration of the period for commencing their suit. " If the 
 lien ceased to exist in consequence of the plaintiffs not filing a bill 
 upon their real contract, it could not be revived by a failure to 
 plead properly, and the plaintiffs ought not thereby to acquire 
 rights whjoh they had not when the bill was amended," per Killam, 
 J. See Cole v. Hall, cited supra. 
 
 The " owner," and also the person liable on the contract 
 under which the plaintiff claims, should both be made defendants. 
 (See Wood v.. Stringer, 20 O. R. 148), and also a prior mortgagee 
 where relief is sought against him under section 8. Bank of Mont- 
 real v. Haffner, 29 Gr. 319; (1884) 10 A. R. 592. See -also notes' 
 under section 31, " Parties." 
 
 (d) "A certificate thereof." — For form of certificate for'regis^ 
 tration, see Appendix. 
 
 (e) "Duly registered." — For cases in relation to errors of 
 registrar in indexing or omitting to index instruments, see section 
 22. 
 
ONTARIO MECHANICS' LIEN ACT. 495 
 
 As* to what constitutes sufficient registration of 'lis pendens, see 
 Bunting v.'Bell, (1876) 23 Gr. 584; McPherson v. Gedge, (1883) 
 4 0. E. 246. See also section- 32. 
 
 24. (1) When lien to cease if registered and not proceeded 
 upon. — Every lien for which a claim has been registered shall 
 absolutely cease to exist on the expiration of ninety days after the 
 ■work or service has been completed or materials have been fur- 
 nished or placed, or after the -expiry of the period of credit, where 
 such period is mentioned in the claim for lien registered, or in the 
 cases provided for by sub-section 5 of section 22, on the expira- 
 tion of thirty days from the registration of the claim, unless in 
 the meantime an action is commenced to realize the claim or in 
 which the claim may be realized under the provisions of this Act, 
 and a certificate is registered as provided by the next preceding 
 section. 
 
 (2) Necessity for renewal. — Where the period of credit men- 
 tioned in the claim for lien registered has not expired, it shall 
 nevertheless cease to have any effect on the expiration of six months 
 from the registration or any re-registration thereof if the claim is 
 not again registered within that period, unless in the meantime an 
 action is commenced and a certificate thereof has been registered 
 as provided by sub-section 1. 10 Bdw. VII. c. 69, s. 24. 
 
 Any proceeding taken during the existence of a lien, is within 
 the meaning of the words " unless in the meantime an action is 
 commenced," the words " in the meantime " being held to mean 
 any time before the lien ceases to exist. 
 
 Where , a lienholder had registered a claim of lien and judg- 
 ment in the action had been delivered, but not signed, a lienholder 
 who registered his lien after the judgment was delivered may be 
 let in to prove his claim on payment of his own costs of the ap- 
 plication. Endie-Bouglas v. Hitch & Co., (1912) 9 D. L. K. 239. 
 
 (a) "Registered." — When a contractor working for several 
 owners has but a single contract for the supply of materials with 
 the materialman the time of filing a lien by the latter against an 
 owner is not to be measured with reference to the duration of 
 deliveries under the contract between the materialman and the 
 
496 THE LAW OF MECHANICS' LIENS IN' CANADA. 
 
 contractor, but by the completion of the work by the contractor 
 for the several owners. Be Moorehouse v. Leake, (1886) 13 0. E. 
 290 ; but the time for registration of a sub-contractor's lien or the 
 bringing of an action to enforce it is not extended by any delay 
 on the part <of "the contractor or sub-contractor to whom the ma- 
 terials are supplied in actually placing them on the premises. 
 Thus where merchants supplied materials to the contractor for 
 certain buildings and it appeared that there was no contract for 
 the placing of these materials upon the property, the last of them 
 being bought by the contractor from the merchants on 22nd 
 November and by him placed in the building on the 23rd Novem- 
 ber, it was held that the time for registering the claim of, lien 
 under section 21 of the Statute of 1877 began to run from the 
 22nd of November. Hall v. Hogg, (1890) 20 0. E. 13. 
 
 (b) "Shall absolutely cease to exist:" — An action was begun 
 to enforce a -lien against M., the person for whom the work was 
 done, and at that time the owner. The action was begun within 
 the ninety days, but. after advances by M. to C, plaintiff obtained 
 ex parte order adding C. after expiry of the ninety days.' Order 
 set aside as no right of action against C. after expiry of ninety 
 days, and action dismissed against C. and lis pendens against him 
 vacated. Bank of Montreal v. Haffner, 10 A. E, 593 followed. 
 Keffer v. Miller, (1890) 10 C. L. T. 90. 
 
 (c) "The expiry of the period of credit." — See Burritt v. 
 Renihan, (1877) 25 Gr. 183; H agger ty v. Grant, (1892) 2 B. C. 
 E. 173, and sections 25 and 28. 
 
 (d) "An action is commenced to realize the claim." — Persons 
 who have registered liens but have taken no proceedings to realize 
 them cannot have the benefit of proceedings taken by other persons to 
 enforce liens against the same land where the liens of such other 
 persons are not enforceable. Be Sear v. Woods, (1892) 23 O. E. 
 474. A defence filed by a lienholder within the period mentioned 
 in the Act, in an action by the owner of the property to set aside a 
 lien is not a proceeding " to realize the claim " within the mean- 
 ing of section 23 of the Act, though a counterclaim if properly 
 framed and a certificate thereof duly registered might be. McNa- 
 mara v. Eirkland, (1891) 18 A. E. 271. 
 
 (e) "If the claim is not again registered." — Ee-registration 
 is unnecessary if proceedings are taken under section 28. 
 
 The ninety ' days, allowed by this section for commencing an 
 action to realize a claim are not to be computed exclusively of 
 
ONTARIO MECHANICS' IJEN ACT. 497 
 
 long vacation. Although such an act is begun by a proceeding 
 called a "statement of claim," the Kules of Court with respect 
 to the filing of the statement of claim in an action begun by 
 writ of summons are not applicable to it. Where the last of the 
 materials in respect of which the plaintiffs claimed a lien were 
 furnished on May 30th, 1907, and the lien was registered within 
 a month, but the action for the enforcement was not begun by 
 the filing of a statement of claim until September 23rd, 1907, it 
 was held that the lien had ceased to exist. Canada Sand, Lime 
 and Brick Co. v. Ottaway, (1907) 15 0. E. 128. See Wesner 
 Drilling Co. v. Tremblay, 18 0. L. E. 439. 
 
 (f) "In the meantime." — These words have the primary sig- 
 nification of during or within the time which intervenes between 
 one specified period or event and another. In strictness there is 
 in contemplation a terminus a quo, as well as a terminus ad quern 
 — a date or event with which the period begins as well as a date 
 or event with which it ends. But in some instances the terminus 
 a quo is not in mind at all, but it is the terminus ad quern which 
 is the only date in contemplation. In such a case the words are 
 equivalent to before such an event, date or period. The result is 
 that any proceedings taken during the existence of the lien are 
 taken " in the meantime " within the, meaning of this section if 
 taken before the expiration of the period therein mentioned. 
 Eadie-Douglas v. Hitch & Co., (1913) 48 C. L. J. 672, (1912) D. 
 * L. E. 239. 
 
 25. When lien to cease if there is no period of credit. — If 
 
 there is no period of credit, or if the date of the expiry of the 
 period of credit is not stated in the claim so registered, the lien 
 shall cease to exist upon the expiration of ninety days after the 
 work or service has been completed or materials furnished or 
 placed, unless in the meantime an action is commenced and a, cer- 
 tificate thereof registered as provided by section 23. 10 Edw. VII. 
 c.69, s. 25. 
 
 (a) "Period of credit." — See note under section 28(a) and 
 cases cited thereunder. 
 
 (b) " Work or, service has been completed or materials fur- 
 nished." — Where the work has been done and accepted by the 
 
 mx.— 32 
 
498 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 " owner " the existence of trifling .defects subsequently rectified 
 by the contractor will not extend the time until thirty days from 
 the date when the defect was rectified, even though the work was 
 accepted on the understanding that the defect was to be remedied. 
 Makin v. "Robinson, (1884) 6 0. E. 1; Kelly v. McKenzie, (1884) 
 
 1 Man. 169. See reference to Neill v. Carroll, ante, p. 6, which 
 case is inaccurately reported in 28 Gr. 339. See note summarizing 
 Irwin v. Beynon, (1886) 4 Man. 10, ante. The case of Neill v. 
 Carroll is now treated as overruled. See chapter " Computing the 
 Statutory Time," ante. 
 
 - Where the ninety days since the completion of the work had 
 expired, the Court cannot assist the lienholder by permission to 
 file an affidavit nunc pro tunc. Lemon v. Young, (1916) 10 0. 
 W. N. 82. 
 
 26. Assignment or death of lienholder. 1 — The right of a lien- 
 holder may be assigned by an instrument in writing and, if not 
 assigned, upon his death shall pass to his personal representative. 
 10 Edw. Vll. c. 69, s. 26. 
 
 A bank holding an assignment of the balance of the contract 
 price owing by the owner to the principal contractor has a suf- 
 ficient interest to be added a party defendant in a mechanics' lien 
 action. Dorrell v. Campbell, (1916) 22 B. C. E. 584, 27 D. L. E. 
 425, 34 W. L. E. 367. 
 
 It is doubtful whether there can be "an assignment of a part 
 of a claim so as to entitle the assignee to maintain an action for 
 the recovery of such part from the debtor under section 58 (5) of 
 the Judicature Act (Ont.). The Court of Appeal favored the 
 view presented in Foster v. Baker, (1910) 2 K. B. 636, in prefer- 
 ence to the eariier case of Skipper v. Halloway, (1910) 2 K. B. 
 630. Seaman v. Canadian Stewart Co., (1911) 18 0. W. E. 56; 
 
 2 O. W. N. 576. 
 
 (a) "The right of a lienholder may be assigned." — A counter- 
 claim or set-off is available against the assignee. Lawrence v. 
 Congregational Church, (1900) 164 N. Y. App. 115. A defect 
 of parties to an action by an assignee, arising from the failure 
 to join a prior- assignee, to whose assignment plaintiffs assign- 
 ment was expressly subject, is waived where the attention of the 
 trial court is not directed to the point at the trial. lb. See this 
 
ONTABIO MECHANICS' LIEN ACT. 499 
 
 ease also as to effect of an order substituting assignee as plaintiff, 
 as an adjudication of the right to prosecute the action. See also 
 Moore v. Dugan, (1901) 179 Mass. 153, and Hawkins v. Mapes- 
 Beeves Co., (1904) 178 N. Y. App. 236. Under a general assign- 
 ment for the benefit of creditors made by a general contractor who 
 has furnished and provided materials and towards the erection of 
 a building for which moneys are due or to become due to him, 
 the assignee takes such moneys, subject to liens filed by laborers, 
 mechanics, materialmen or sub-contractors, subject to the assign- 
 ment and within the ninety days prescribed by the statute. Kane 
 Co. v. Kinney, (1903) 174 N". Y. App. 69. As to effect of assign- 
 ment of claim before filing lien, see Williams v. Weiribaum, (1901) 
 178 Mass. 239. See also Wiley v. Connelly,. (1901) 179 Mass. 
 360. As to what constitutes an equitable assignment, see Van 
 Kannell Revolving Door Co. v. Astor, 119 App. Div. (N.Y.) 214. 
 As to sufficiency of assignment, see Alsip v. Monkman, (1912) 22 
 W. L. E. 667. 
 
 A mechanic having a claim for the erection of buildings under 
 a contract assigned his claim to the plaintiff to secure money due 
 to the plaintiff, and the plaintiff for the purpose of enabling the 
 mechanic to register undeirthe Act re-assigned to him. Held, that 
 such" re-assignment enabled the mechanic to make the claim for 
 registry notwithstanding the equitable right of plaintiff. Currier 
 v. Frederick, (1875) 22 Gr. 243. 
 
 The lien is created when the work is performed, and an as- 
 signment of the claim after the work is done carries the lien with 
 it. Wiley v. Connelly, (1901) 179 Mass. 360. 
 
 27. (1) Discharge of lien.— A lien may be discharged by a 
 receipt signed by the claimant, or his agent duly authorized in 
 writing, acknowledging- payment, and verified by affidavit and 
 registered. 
 
 (2) Registration. — The receipt shall be numbered and entered 
 like other instruments, but shall not be copied in any registry 
 book, and there shall be entered against the entry of the lien to 
 which the discharge relates the word " discharged " and the regis- 
 tration number of such discharge. 
 
 (3) Fee. — The fee shall be the same as for registering a claim. 
 
500 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (4) Security or payment into court and vacating lien thereon. 
 
 — Upon application the court, judge or officer having jurisdiction 
 to try an action to realize a lien, may allow security for or pay- 
 ment into court of the amount of the claim, and may thereupon 
 order that the registration of the lien be vacated or may vacate 
 the registration upon any other ground and a certificate of the 
 order may be registered. 
 
 (5) When notice of application to vacate not requisite. — Where 
 the certificate required by section 23 or 24 has not been registered 
 within the prescribed time, and an application is made" to vacate 
 the registration of a claim for lien after the time for registration 
 of the certificate required by sections 23, 24 or 25 r the order vacat- 
 ing the lien may. be made ex parte upon production of the certifi- 
 cate of the proper registrar certifying the facts entitling the appli- 
 cant to such order. 10 Bdw. VII., c. 69, s. 27. 
 
 " If any one affected by the registration of a lien desires to 
 take advantage of the cesser thereof by reason of the provisions of 
 sections 23, 24 or 25, he may apply ex parte under section 27, 
 sub-section 5 to vacate the registration of the certificate of lis 
 pendens; and if he is successful the lien itself may be discharged. 
 In such a ease there is no trial, and no judgment can be pro- 
 nounced. But where the question is left to be tried, the provisions 
 of section 49 apply, and a judgment for the amount properly due 
 may be had, although no lien is established." Kendler v. Bern- 
 stock, 33 0. L. E. 351, 22 D. L. E.475, per Hodgins, J.A. 
 
 (a) "A receipt." — Any form of receipt which acknowledges 
 payment of a specified claim and is verified by affidavit sworn' be- 
 fore a commissioner is sufficient, if registered. 
 
 (b) "Or, his agent duly authorized in writing." — It is desir- 
 able to register also the written authority of the agent. 
 
 (c) " Court or judge or officer." — These tribunals are desig- 
 nated in section 34. See as to awarding costs, section 44. 
 
 An order, in Chambers, was granted, vacating, upon payment 
 into Court of $3,787.36, two mechanics' liens, registered by the 
 defendants against interests in certain lands in Toronto. On 
 appeal the Court directed that the money paid into Court in this 
 action be, transferred to the credit of the proceeding commenced 
 
ONTARIO MECHANICS' WEN ACT. 501 
 
 under this Act; one of tip liens having been extinguished by pay- 
 ment, the portion of the money paid into Court applicable to that 
 lien should be paid out to the plaintiffs. Yolles v. Robertson, 
 (1920) 18 0. W. N. 85, 126. 
 
 (d) "Payment into court." — The mode of payment is pre- 
 scribed by the Con. Eules, 405, 410. 
 
 (e) " Upon any other proper ground." — Mortgagees under reg- 
 istered mortgage had advanced money to pay off prior mortgage 
 and for improvement when lien filed and action begun. Mort- 
 gagees were not made parties. Mortgagees notified lienholders 
 and sold under mortgage and applied for order vacating registry 
 of liens and lis pendens. Order granted mortgagees to pay the 
 surplus proceeds into court where it could be applied for by lien- 
 holders. Finn v. Miller, (1889) 10 C. L. T. 23, 26 C. L. J. 55. 
 
 Defendant was sole owner of lots covered by plaintiffs' lien at 
 the time the contract was made. Later, defendant sold part of the 
 lands without notice to plaintiffs. Plaintiffs registered certificates 
 of lien and lis pendens against all the property. Defendant's motion 
 to vacate the registry was dismissed. Ontario Lime Association v. 
 Grimwood, (1910) 22 O. L. E. 17. 
 
 By the Land Titles Act, chapter 28 of the Statutes of Ontario, 
 section 67, it is provided that on its appearing to the satisfaction 
 of the proper Master of Titles that a lien under the Mechanics' and 
 Wage-earners' Lien Act has ceased to exist, the Master may make 
 an entry accordingly, or an entry cancelling the claim; and the 
 land affected shall thereby be released from the claim. 
 
 Where a lien has been filed by a partnership, even though it be 
 trading under the name of what purports to be an incorporated com- 
 pany, the Eegistrar is justified in insisting that a discharge of the 
 lien be executed by all the partners, or some one duly. authorized 
 on their behalf, and that proof be given him of the composition of 
 the partnership. Be Land Titles Act; Be Mechanics Lien Act, 
 (Sask.), (1918) 1 W. W. E. 411. 
 
 Effect of Taking Security oe Extending Time! 
 
 28. (1) Effect generally.— The taking of any security for, or 
 the acceptance of any promissory note or bill of exchange for, or 
 the taking of any acknowledgment of the claim, or the. giving of 
 time for the payment thereof, or the taking of any proceedings for 
 
502 THE LAW OF MECHANICS' LIENS' IN CANADA. 
 
 the recovery, or the recovery of a personal judgment for the 
 claiiri, shall not merge, waive, pay, satisfy, prejudice or destroy 
 the lien unless the claimant agrees in writing that it shall have 
 that effect. 
 
 (2) Where period of credit not expired. — Where any such 
 promissory note or bill of exchange has been negotiated the lien- 
 holder shall not thereby lose his lien if, at the tiine of bringing his 
 action to enforce it, or where an action is brought by another lien- 
 holder, he is, at the time of proving his claim in such action, the 
 holder of such promissory note or bill of exchange. 
 
 (3) Time for bringing action not extended. — Nothing in sub- 
 section 2 shall extend ,the time limited by this Act for bringing 
 the action to enforce the lien. 
 
 (4) Time for bringing action by person who gave time for 
 payment.' — A person who has extended the time for payment of 
 a claim for which he has a lien, to obtain the benefit of this section, 
 shall commence an action to enforce such lien within the time 
 prescribed by this Act, and shall register a certificate as required 
 by sections 23, 24 or 25, but no further proceedings shall be taken 
 in the action until the expiration Of such extension of time. 10 
 Edw. VII. c. 69, s. 28. 
 
 (a) " The taking of any security." — The taking of security, 
 note or acknowledgment or the giving of time, destroys the lien if 
 the lien-holder neglects to proceed to enforce his lien within the 
 time limited by sections 23, 24 and 25. 
 
 A lien lost by taking a promissory note is not revived upon dis- 
 honor thereof ." Edmonds v. Tierrwm,, (1891) 2 B. 0. E. 82, 21 S. 
 C. E. 406. This case has now no application in Ontario owing to the 
 provisfons of this section. See Broohs-Sanford Hardware Co. v. 
 Telier Construction Co., (1910) 17 O. W. B. 167, 22 O. L. E. 176. 
 
 Without this section ii would be a question of fact in every 
 ease whether the note was taken in payment of the account. Casey 
 v. Weaver, (1886) 141 Mass. 280; Jones v. Shawhan, 4 Watts & 
 Serg. (Pa.) 257. If the note was taken in payment the lien was 
 gone. If the note was not taken in payment it amounts to no 
 
ONTAKIO MECHANICS' LIEN ACT. 503 
 
 waiver of the lien. Edwards v. Derrichson, (1859) 28 N. J. L. 
 39; Jones v. Moores, (1893) 74 N. Y. 109, 22 N. Y. Supp. 53; 
 Unneman v. Sie&er, (1895) 92 N. Y. 477, 33 N. Y. Supp. 129. 
 The other provisions fit the Act must be complied with even if it 
 involves taking proceedings to enforce the lien before the matur- 
 ity of the note, in which case it seems that proceedings may be taken 
 within the time, subject, possibly, to being stayed until after the 
 maturity of the note. 
 
 After the note has been negotiated the debt then becomes due 
 to a third party and the original creditor becomes a guarantor of 
 payment of the debt. While the note is in, the hands of a third 
 party no proceedings can be taken to enforce the lien. If the lien 
 claimant pays the note and is the holder of the note at the time he 
 begins proceedings the fact of his having negotiated the note will 
 not take away his lien. 
 
 The foregoing proposition, contained in the first edition of this 
 treatise, is quoted approvingly in Swanson v. Moiliso.n, (1907) 6 
 W. L. E. 678, and Broolcs-Sanford Co. v. Theodore Teller Const. 
 Co., (1910) 19 O. L. E. 303. 
 
 See also McLean v. Wiley, (1900) 176 Mass. 233; Brewer Co. 
 v. B. & A. B. B. Co., (1901) 179 Mass. 228. 
 
 There is a conflict in the decisions as to the provision in this 
 section in its application to promissory notes when discounted. 
 See Swanson v. Mollison,^ (1907) 6 W. L. E. 678, in which the 
 decision in Edmonds v. Tiernan, supra, is distinguished, and the 
 decisions in National' Supply Co. v. Horrooin, 16 Man. L. E. 472, 
 and Arbuthnot Co. v. Winnipeg Mfg. Co., 16- Man. L. E. 401, were 
 questioned. See also Coughlan v. National Construction Co., 14 
 B. C. E. 339, holding that where promissory notes had been re- 
 ceived and discounted by the lienholder for the materials supplied, 
 the lien was not thereby waived. " See also Clarice v. Moore, 1 Alta. 
 L. E. 49. 
 
 29. Proving claim in action by another lienholder. — Where the 
 period of credit in respect of a claim has not expired, or where 
 there has been an extension of time for payment of the claim, the 
 lienholder may nevertheless, if an action is commenced by any 
 other person to enforce a lien against the same property, prove 
 and obtain payment of his claim in such action as if the period of 
 credit or the extended time had expired. 10 Edw. VII. c. 69, s. 29. 
 
504 THE LAW OF MECHANICS' LIENS IN CANADA. ' 
 
 LlENHOLDEES' ElGHT TO INFORMATION. 
 
 30. (1) Lienholder's right to information from owner as to 
 terms of contract. — -Any lienholder may at any time demand of 
 the owner or his agent the terms of the contract or agreement 
 with the contractor for and in respect of which the work, service or 
 material is or is to be performed or furnished or placed, and if such 
 owner or his agent does not, at the time of such demand or within 
 a reasonable time thereafter, inform the person making such de^ 
 mand of the terms of such contract or agreement, and the amount 
 due and unpaid upon such contract or agreement, or if he know- 
 ingly falsely states the terms of the contract or agreement, or the 
 amount due or unpaid thereon, and if the person claiming the lien 
 sustains loss by reason of such refusal or neglect or false statement, 
 the owner shall be liable to him in an action therefor for the 
 amount of such loss. 
 
 (2) Order for inspection of contract by lienholders. — The 
 
 court, judge, or officer having jurisdiction to try an action to 
 realize a lien may, on a summary application at any time before or 
 after an action is commenced for the enforcement of such lien, 
 make an order requiring the owner or his agent to produce and 
 allow any lienholder to inspect -any such contract or agreement 
 upon such terms as to costs as he may deem just. 10 Edw. VII. c. 
 69, s. 30. 
 
 (a) "Any lienholder may at any time demand" — A form of 
 demand is not given in the Act and a written demand is really un- 
 necessary. This section is for the protection of sub-contractors, 
 laborers and materialmen. See Lumbard v. Syracuse, (1874) 55 
 N. Y. 494. 
 
 (b) "An action therefor," i.e., an ordinary action. 
 
 (c) " The court, judge or officer." — See sections 31 and 34. as 
 to these tribunals. 
 
 . Under a former Act (E. S. 0. 1887, c. 126, s. 23), which allowed 
 proceedings to recover the amount of a mechanics' lien to be taken 
 under certain circumstances in County Courts and Division 
 Courts, it was held that this provision applied only to actions in 
 
ONTARIO MECHANICS' LIEN ACT. 503 
 
 which the party seeking to enforce his lien was suing in the ordi- 
 nary way to obtain judgment and execution. These courts can- 
 not entertain an action in the nature of an action of account by a 
 lienholder against a mortgagee who has sold the land in question 
 under mortgage prior to the lien, though there may be wider 
 powers by way of summary application. Hutson v. Vdlliers, 
 (1892) 19 A. E. 154. 
 
 Action to Eealize Claim. 
 
 31. (1) Mode of realizing lien.— A lien may be realized by 
 action in the Supreme Court, according to the ordinary procedure 
 of that court, excepting where the same is varied by this Act. 
 
 (2) Statement of claim. — Without issuing a writ of summons 
 an action shall be commenced by filing in the proper office a state- 
 ment of claim, verified by affidavit, Form 5, which affidavit may be 
 made by any of the persons named in sub-section of section 17. 
 
 (3) Service. — The statement of claim shall be served within 
 one month after it is filed, but a judge or officer having jurisdiction 
 to try the action may extend the time for service thereof, and the 
 time for delivering the statement of defence shall be the same as for 
 entering an appearance in an action in the Supreme Court. 
 
 (4) Parties. — It shall not be necessary to make any lienholders 
 parties defendant to the action, but all lienholders served with the ' 
 notice of trial shall for all purposes be deemed parties to the action. 
 10 Edw. VII. c. 69, s. 31 (as amended by Geo. V., c. 30, s. 5). ' 
 
 When any part of a claim has matured, an action lies, and in 
 that action all claims, whether then payable or not, are to be dealt 
 with at the trial, as provided for in section 37. Northern Lumber 
 Mills y. Rice, (1918) 41 0. L. E. 201, 40 D. L. E. 128. 
 
 (a) "Excepting where the same is varied." — Sub-sections 2, 
 3 and 4 and section 33 state the variations from ordinary procedure. 
 
 (b) "A statement of claim." — Where there was no averment 
 in statement of claim that anything was due by the owner, held, 
 on demurrer, that the statement of claim was bad. Townsley v. 
 
506 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Baldwin, (1889) 10 C. L. T. 13. A statement of claim did not 
 disclose the kind of. materials,, etc. Held, bad, but as lien is 
 operative when- registered and action brought and certificate of 
 lis pendens registered, plaintiff's lien was not prejudiced. John- 
 son v. Braden, (1887) 1 B. 0. E. Pt: 2, p. 265. 
 
 All actions and proceedings to enforce mechanics' liens must 
 be brought and taken in the High Court of Justice under the 
 procedure enacted by 59 Vict. e. 35, as amended by 60 Vict. c. 24. 
 Although by sections 31 and 32 of the former Act, a County 
 Court Judge has complete jurisdiction in such an action or pro- 
 ceeding if in the High Court, yet, if the proceedings are insti- 
 tuted in a County Court he has no jurisdiction. In Be Ribble v. 
 Aldwell, (1898.) 18 G, L. T. 59. Under 53 Vict. c. 37, it is com- 
 petent to join liens so as to give jurisdiction to the High Court 
 though each apart may be within the competence of an inferior 
 court. The plaintiffs in proceeding under that Act to enforce 
 their lien filed with a Master as the " statement of claim " a copy 
 pf the claim lien and affidavit , registered, verified by an affidavit, 
 and the Master thereupon issued his certificate. Held, that if the 
 " statement of claim filed was not in proper form, yet as it. con- 
 tained all the facts required for compliance with the. Acj;, an amend- 
 ment nunc pro tunc should be allowed." Bicherton v.. Dakm, 
 (1890) 20 O. E. 192; 695. See Beveridge v. Howes, (1903) 2 
 O. W. E. 619; Canada Land, etc., Co,, v. Poole, (1907) 10 O. W. 
 E. 1041. 
 
 Parties; Plaintiffs. — A plaintiff need not name any other lien- 
 holders as co-plaintiffs. 
 
 Defendants. — The " owner " and any subsequent transferees 
 should be made parties. Any prior mortgagee' against whom the 
 plaintiff claims relief under section 8 (3) should also be made a 
 defendant. A decree enforcing a mechanics' lien is a conclu- 
 sive determination of the rights of the parties, but it does nof con- 
 clude persons who are neither parties nor privies. Bank of Mont- 
 real V. Hoffner, (1884) 29 Gr. 319, 10 A. E. 592, S. C. sub nom. 
 Bank of Montreal v. Worswick, ■ Cass. Dig. 289. In Fraser y. 
 Griffiths, (1902) 1 O. W. E. 141, where plaintiff had no notice of 
 contract under which defendant Bay claimed title and her con- 
 veyance was registered after registration of lis pendens in present 
 action, held, that she need not have been joined as defendant as 
 she took subject to the proceedings in the action. 
 
ONTARIO MECHANICS' LIEN ACT. 507 
 
 A .mortgagee filed a bill of sale, making certain lien-holders 
 under "the Act parties defendants therein, alleging that the work 
 by virtue of which their liens arose, was commenced after the 
 registration of his mortgage. Held, that the lien-holders should 
 have been made parties in the Master's office; the costs of making 
 them defendants by bill were disallowed, on revision of taxation. 
 Jackson v. Hammond, (1879) 8 IV E. 157. 
 
 The grantees of the owner, although the transfers to them were 
 fraudulent, are entitled to contest the validity of the lien. Toop 
 v. Smith, (1905) 181 N. Y. 283. 
 
 Where a bill is filed by a sub-contractor against the owner of 
 the property and a contractor with him- to enforce a claim against 
 such contractor; the owner of the property and all persons claim- 
 ing to have liens are necessary parties in the Master's office, whose 
 costs will be ordered to be paid out of the amount found due the 
 contractor and the balance distributed ratably among the several 
 lien-holders and a personal order made against the contractor for 
 the deficiency, if any. A suit brought by a lien-holder operates 
 for the benefit of all of the same class, so that a suit instituted by 
 one within the thirty days mentioned in the Act, keeps alive all 
 similar liens then existing. Hovenden v. Ellison, (1877) 24 
 Gr. 448. See Finn v. Miller, (1889) 10 C. L. T. 23, 36 0. L. J. 
 55. 
 
 A plaintiff in an action to enforce a mechanics' lien is not 
 obliged to add as a, party an encumbraneee whose claim was 
 created pendente lite. Canada Foundry Company, Limited v. Ed- 
 monton Portland Cement Company, Limited, (1919) 2 W. W. E. 
 310. 
 
 A bank holding an assignment of the balance of the contract 
 price owing by the owner to the principal contractor has a suffi- 
 cient interest to be added a party defendant in a mechanics' lien 
 action. Dorrell v. Camplell, 27 D. L. E. 425, 22 B. C. E. 584. 
 See also 32 D. L. E. 44. 
 
 In an action for the enforcement of a lien on land the title 
 to which was in the A. Company, while the defendant company 
 held an agreement for the purchase of the land, it appeared that 
 the work of the plaintiff company was done for the defendant com- 
 pany, and it was alleged by the plaintiff company, that the selling 
 value of the land was increased by that work, and the plaintiff com- 
 pany claimed a lien in priority to the A. Company for the amount 
 
508 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 of the increased value. The only defendant to the action as begun 
 was the defendant company. The A. Company was served with 
 notice of the trial, hut not until after the time for bringing an 
 action for the enforcement of the lien had elapsed; the A. Com- 
 pany did not appear, and was not represented at the trial. It was 
 held upon the appeal of the A. Company, that, if it ever became 
 a party to the action, it was only when the notice of trial was served 
 upon it, and that the lien as against it, if it ever existed, was then 
 at an end. Metals Recovery Co. v. Molybdenum Products Co., 
 (1919) 46 0. L. E. 532. There is a difference between the pro- 
 visions of the Ontario and the Manitoba Acts. See Dominion 
 Lumber & Fuel Co.'y. Paskov, (1919) 29 Man. L. E. 325. 
 
 Plaintiff in action to enforce lien joined architect as defendant 
 and claimed damages against him for fraudulently withholding 
 certificate. Held, that he should be struck out as defendant and 
 claim against him dismissed.' Actions under the Mechanics' Lien 
 Act have many incidents created by the Act which other actions do 
 not have, but no power is given to join such a claim. The claim 
 was good as against the owner, but as against the architect plaintiff 
 must pursue his ordinary remedy. Bagshaw v. Jfihnson, (1901) 
 3 0. L. E. 58. See also Larkin v. Larkin, (1900) 32 0. B. 80, 
 cited, ante. 
 
 (c) "Shall be served within one month after it is filed." — An 
 order allowing service of writ out of • jurisdiction should also . au- 
 thorize service of statement of claim at the same time and fix a 
 time for delivery of defence. If not, eight days must be allowed 
 from time limited for appearance under Eule 246. Chapter 153, 
 section 35 (1) requires appointment to be signed hy judge, and 
 section 36 requires eight clear days' notice of trial. Mclver v. 
 Crown Point, (1900) 19 P. E. 335. 
 
 The plaintiff registered a mechanics' lien against the defendant 
 'company, and subsequently filed his statement df claim. He ob- 
 tained an order for 'the service of the statement of claim out of the 
 jurisdiction, and service was effected in pursuance thereof. The 
 defendant company applied to have the order and service there- 
 under set aside, on the ground that there was no statutory author- 
 ity therefor: Section 28, sub-section 1, of the Mechanics' Lien 
 Act, E. S. N. S. c. 171, provides that "the liens created by this 
 chapter may be enforced by actions to be brought and tried ac- 
 cording to the ordinary procedure in the respective courts." Sub- 
 
ONTARIO MECHANICS'' 'LIEN ACT. 509 
 
 section 2 of the same section provides that without issuing a writ 
 of summons an action under this chapter shall be commenced by 
 filing in the office of the prothonotary ..." a statement of 
 claim verified by affidavit." Sub-section 6 provides Lhat "the 
 statement of claim shall be served within one month after it is 
 filed." Held, that the service was good by reason of section 28 of 
 the Act, the ordinary procedure of the court with respect to the 
 service of a writ having been followed in serving the statement of 
 claim. Application dismissed with costs. McDonald v. Console' 
 dated G. M. Co., (1901) 21 C. L. T. 482. 
 
 But a more recent decision in Ontario is in conflict with this 
 case. In the Ontario case it was decided that service of a statement 
 of claim out of the jurisdiction as the initial step in the action is 
 not allowed under the Judicature Eules, and the history of legis- 
 lation as to service out of the jurisdiction in Ontario is given. See 
 In re Busfield, Whaley v. Busfield, (1886) 32 Ch. D. 123. It is 
 not a matter of practice, but of jurisdiction. The provisions in 
 that behalf form a complete code on the subject and cannot be ex- 
 tended by analogy. Pennington v. Morley, (1902) 3 0. L. E. 514. 
 This case, which was decided by Meredith, C.J., is more in accord- 
 ance with the principles governing service out of the jurisdiction 
 than the case reported in 21 C. L. T. 482 and probably correctly 
 states the law on the subject. 
 
 The month is a calendar month. See the Interpretation Acts 
 (E: S. 0. c. 1, s. 8, s.-s. 15) ; E. S. F.'S. c. 1, s. 22, s.'-s. 24; E. S. M. 
 c. 89, s. 8 (q) ; E. S. B. C. c. 1, s. 10, s.-s. 16; E. S. N. B. c. 1, s. 8, 
 s.-s. 27; E. 0. Terr. c. 1, s. 8, s.-s. 18. 
 
 " The Eules of Practice and Procedure '* must be applied. Can- 
 ada Land Co. v. Poole, 10 0. W. E. 1041. 
 
 Amendment of pleadings. See Orr v. Davie, 22 0. E. 430. 
 
 Where a single debt .exists for work done or materials furnished 
 in the erection of several buildings, the liens therefor are to be en- 
 forced by a single lien claim, and a single declaration, in which the 
 debt is to be apportioned among the buildings and curtilages ac- 
 cording to their respective liability. Culver v. Lieberman, (1903) 
 69 IS. J. L. 341. 
 
 (d) "Be deemed parties." — See Bobock v. Peters, (1900) 13 
 Man. 124, where parties were brought in by notice of trial. 
 
 As to the general scheme of the Act, and the provisions dealing 
 with procedure to enforce a lien, see Robertson v. Bullen, (1908) 
 
510 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 13 0. W. E. 56. A decree enforcing the lien does not conclude per- 
 sons who are neither parties nor privies. Bank of Montreal v. 
 Kaffner, 10 0. A. B. 599. 
 
 Plaintiffs instituted lien proceedings and also issued a writ for 
 the same relief. Motion by defendants to have latter action stayed 
 was dismissed on the ground that the two proceedings are quite 
 different, for in the personal action, there may be a more speedy 
 recovery, and a different and fuller judgment than in the other pro- 
 ceeding, therefore it was not right to interfere. Hamilton Bridge 
 Works v. General Contracting Co., (1909) 14 0? W. E. 646; 1 0. 
 W. N". 34. 
 
 When an action to enforce a lien for materials supplied by the 
 plaintiffs under one contract for several buildings was brought 
 against several defendants having separate interests in the land 
 sought to be charged, a summary application by the defendant G., 
 who made the contract with the plaintiffs, and was also. alleged to 
 have an interest in the land, to vacate the registry of the lien, upon 
 the ground that there could be no valid lien against several build- 
 ings, was dismissed, it being held that it was not so clearly demon- 
 strated that the lien was bad that it should be vacated upon a sum- 
 mary application by G., who was not in a position to invoke the 
 benefit of the Eeg'stry Act. Dunn v. McGallum, (1907') 14 0. L. 
 E. 249, distinguished; Ontario Lime Association v. Grimviood, 
 (1910) 22 0. L. E. 17. 
 
 32. Lienholders joining in action. — Any number of lienholders 
 claiming liens on the same land may join in an action, and an action 
 brought by a lienholder shall be taken to be brought on behalf of 
 the other lienholders. 10 Edw. VII. c. 69, s. 32. 
 
 (a) " On behalf of the other lienholders." — Plaintiffs were day- 
 laborers who did Work for defendants in Eainy Eiver District and 
 said that they resided in that district. Held, that the statutory 
 act which gives vitality to a lien is its due registration, and this may 
 be effected by affidavit of an agent or assignee. This section allows 
 wage-earners to group themselves as litigants and as all are within 
 the limits of the district and th6 address of the solicitor is given 
 the action should not be stayed. Crerar v. C. P. R., (1903) 5 0. L. 
 E. 383. 
 
 See Bobock v. Peters, (1900) 13 Man. 124. 
 
ONTARIO MECHANICS' LIEN ACT. 511 
 
 (b) Under section 15 of a former Act (1877) it was held that 
 suits brought by a lienholder should be taken to be brought on 
 behalf of all lienholders of the same class, and in case of a plain- 
 tiff's death or his refusal or negleet to proceed, the suit may by 
 leave of the court be prosecuted by any lienholder of the same 
 class. > A number of unregistered lienholders brought an action 
 under the Act to enforce their liens against one G., which pro- 
 ceeded to the close of the pleadings and was then dismissed with the 
 plaintiff's assent. P., the assignee of a registered lienholder, rely- 
 ing on the action, took no steps to enforce his lien or to register a 
 certificate within ninety days, under section 21. On being informed 
 of the dismissal of the action he applied to be allowed to inter- 
 vene as plaintiff and to prosecute the suit on his own behalf. Held, 
 that the applicant should be allowed to intervene and prosecute the 
 action, and that the applicant was of the same class as the plain- 
 tiffs, in that they all contracted with, or were . employed by, G. 
 Lienholders. "of the same class" are those who have contracted 
 with the same person, whether their liens are registered or not. 
 McPherson v. Gedge, (1883) 4 0. K. 246. A lienholder thus 
 intervening must indemnify the original plaintiff against all costs 
 past and future (Patterson v. Scott, 4 Gr. 145) and if he carry on 
 the action' in the name of the original plaintiff, he must also give 
 the defendant security for his costs. McPherson v. Gedge, supra. 
 No such intervention can be beneficial unless the original plaintiff 
 had a right of action. Re Sear v. Woods, (1892) 23 0. E. 474. See 
 also Builders Supply Co. v. Huddlestone, 25 Man. L. E. 718. 
 
 When any claim is ripe for action and the defendants fail to 
 settle it, an action lies, and in that action all claims, whether 
 then payable or not, are to be dealt with at the trial as provided 
 for in section 37. 'Northern Lumber Mills, Limited v. Rice, (1917) 
 41 0. L. E. 201. 
 
 Ah action to enforce a lien was dismissed by consent when the 
 trial came on'. A lienholder for wages applied for leave to proceed 
 with the action, and it was ordered that the applicant be substi- 
 tuted on behalf of himself and all other lienholders of the same ■ 
 class and that necessary amendments be made. E. S. 0. c. 126, 
 s. 30. Richardson v. Mark, (1891) 11 C. L. T. 283. 
 
 A class suit, after decree, cannot be dismissed, as the decree 
 enures to the benefit of other creditors. Neither on the same prin- 
 ciple can any order be made vacating the lis pendens to the pre- 
 
512 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 judice of other creditors. The only proper order is that all pro- 
 ceedings in the suit on the part of the plaintiff be stayed, but 
 without prejudice to»the rights of other 'creditors (if any) to apply 
 to prosecute the same. Arnberg v. Thornton, (1874) 6 P. E. 190. 
 
 Under a former Act, which enacted that a plaintiff represented 
 " all other lienholders entitled to the benefit of the action," it was 
 held that in a case where a lien had been discharged the day be- 
 fore proceedings had commenced and said lien had not been reg- 
 istered, it could not be added to the claim to give jurisdiction. 
 Watson v. Kennedy, (1891) .11 C. L. T. 340. In Hall v. Pilz, 
 (1886) 11 P. E. 449, where the words in question were "all other 
 registered lienholders," they were construed to mean all who had 
 an apparent right by virtue of the registration of their liens. 
 
 ' Under a Manitoba Act, after a bill filed and lis pendens regis- 
 tered, another lienholder filed a bill and obtained a decree first and 
 applied to have his costs added to his lien, but this application 
 was refused. Section 24 of the Manitoba Act qualifies section 9 
 of that Act. Henry v. Bowes, (1883) 3 C. L. T. 606. 
 
 Lienholders not parties to the action must see that it is pro- 
 secuted to judgment or it may be dismissed or compromised. 
 Smith v. Doyle-, (1879) 4 0. A. E. 477. 
 
 Each individual building must bear the burden of its own 
 construction. O'Brien v. Fraser, (1918) 45 N. B. E. 539, 41 D. 
 L. E. 324. 
 
 33. Who may try action to enforce lien. — The action shall be 
 ^ried in the County of York before the Master in Ordinary or the 
 Assistant Master in Ordinary, and outside of the County of York 
 before a judge of the county or district court of the county, or dis- ■ 
 trict in which the land is situate. 6 Geo. V., c. 30, s. 1, repealing 
 former section. 
 
 (a) "In which the lands are situate." — Under a former Act it 
 was held that the lien should be enforced in the Division Court for 
 the division in which the cause of' action arose and defendant 
 resided. Where there was no machinery providing for the sale, the 
 sale should be by the order of a judge acting as Master in Chan- 
 cery. Dartnell, J. A form of order is given in this case. See 
 B. S. O. (1877) c. 120, s. 12; 36 Vict. c. 27, s. 5; 38 Vict. c. 20, s. 
 10. Burt, v. Wallace, (1881) 17 C. L. J. 70. 
 
 See Yolles & Rotmberg v. Robertson, (1920) 18 O. W. K 85. 
 
ONTARIO MECHANICS' LIEN ACT. 513 
 
 34. Powers of certain officers. — The Master in Ordinary, Assist- 
 ant Master ,in Ordinary and the County or District Judge, in addi- 
 tion to their ordinary powers, shall have all the jurisdiction, pow- 
 ers and authority of the Supreme Court to try and completely dis- 
 pose of the action and questions arising therein. Geo. V. c. 30, 
 s. 2. 
 
 (a) " All the jurisdiction, powers and authority." — These 
 words are simply sufficient to enable such officers to make any 
 appointment or to" grant any order necessary to dispose of all ques- 
 tions in the action. See Hall v. Hogg, (1890) 14 P. E. 45; 
 Patten v. Laidlaw, (1895) 26 0. E. 189. See also sections 41, 42 
 and 43 as to limitation of costs. 
 
 (b) "Including the giving or refusing of the costs." — A cer- 
 tain sum was found due from the owner to the contractor and the 
 latter was found indebted to other lienholders. Payment of the 
 former sum into court was ordered and made, the amount, how- 
 ever, being insufficient to pay the claims of lienholders against 
 the contractor. The latter then appealed unsuccessfully and was 
 ordered to pay the costs of appeal to the owner, who claimed that 
 these costs should be paid out of the moneys paid by her into 
 court. Held, that by the payment into court for distribution she 
 was discharged from her liability and the money ceased to be hers, 
 and that she was not entitled to have the costs due to her deducted 
 from the amount paid in. Patten v. Laidlaw, supra. 
 
 An interlocutory application to stay proceedings brought by 
 workmen against both their employer and the property owner 
 should not be granted to enable the owner to complete the work 
 on the contractor's default, and go ascertain the balance, if any 
 owing by the owner under the contract; such a question should 
 not be determined in Chambers, but should be determined at the 
 trial, or if the pleadings properly raise the question of law under 
 Ont. Consolidated Eule 259, it can be determined by a motion in 
 court. Saltsman v. Berlin fyobe & Clothing Co., (1912) 6 D. L. 
 E. 350. 
 
 35. Consolidation of actions. — Where more actions than one 
 are brought to realize liens in respect of the same land, a Judge or 
 officer having jurisdiction to try such actions may, on the applica- 
 
 M.L.— 33 
 
514 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 tion of any party to any one of them, or on the application of any 
 other person interested, consolidate all such actions into one action, 
 and may give the conduct of the consolidated action to any plain- 
 tiff as he may see fit, 10 Edw. VII. c. 69, s. 35. 
 
 Where an action is intended to realize a mechanics' lien, but 
 the plaintiffs statement of claim fails to set out the allegations and 
 prayer for relief, necessary to entitle him to the usual- judgment 
 in such an action, a certificate of lis pendens should not be issued, 
 and if issued it cannot be validated by amending' the statement of 
 claim. Since a certificate of lis pendens under this section is the 
 act of the court, acting through its clerk, it cannot if improperly 
 issued be validated by something which a party to the action does 
 at some subsequent time of his own motion. Home v. Jerikyn, 
 (1912), 5,Alta. L. E. 359. 
 
 (a) "May apply to a judge or other officer." — See Robock v. 
 Peters, (1900) 13 Man. 124. In West v. Sinclair, (1892) 12 C. 
 K T/ 44; 28 C. L. J. 119, the jurisdiction of a Master, under 53 
 Vict. c. 37, to set aside a conveyance as fraudulent under Stat. 
 Eliz. is considered. A Master in Chambers has jurisdiction to 
 vacate -registration of mechanics' liens under E. S. 0. c. 120, s. 23. 
 In Be Peake, (1886) 6 C. L. T. 596. , 
 
 Under a former Act it was held that a Master had no jurisdic- 
 tion to entertain summary proceedings to enforce a mechanics' lien 
 action begun in the County Court, nor could he amend the- heading 
 ' of papers by substituting High Court for County Court. Jacobs 
 v. Robinson, (1894) 16 P. E. 1. 
 
 In Secord v. Trumm, (1890) 20 O. E. 174, it was held that 
 the Ontario Statute, 53 Vict. c. 37, was intended to simplify pro- 
 cedure in the High Court alone, and that the Division and County 
 Courts were unaffected by it. 
 
 In the High Court, proceedings to enforce a mechanics' lien 
 must be taken under 39 Vict. c. 45, as amended by 60 Vict. c. 24. 
 
 A Master of the High Court of Justice has no jurisdiction as 
 such to entertain a summary proceeding under 53 Vict. c. 37, 
 to enforce a mechanics' lien begun in a County Court. Secord v. 
 Trumm, supra, followed. Nor can he confer jurisdiction upon him- 
 self by subsequently directing an amendment to the affidavit and 
 papers filed by substituting the High Court for the County Court. 
 Jacobs v. Robinson, (1894) 16 P. E. 1. 
 
ONTARIO MECHANICS' LIEN ACT. 515 
 
 A County Court Judge has jurisdiction as Master of proceedings 
 in High Court, but not if instituted in County Court. In re Bibble 
 v. Aldwell, (1898) 18 C. L. T. 59. 
 
 As to policy of consolidation see Sheppard v. Davidovitch, 
 (1916) 10 0. W. N. 159. In this case one lien claimant 'built 
 partly on two parcels of land. , As to enforcing lien where defend- 
 ant does not appear, see Guest v. Linden, 1 D. L. R. 908. 
 
 In Hutson v. Valliers, (1892) 19 A. E. 154, it was held that 
 R. S. 0. c. 126, s. 23, does not give County and Division Courts 
 jurisdiction in an action of account by lienholder against mortgagee 
 who has sold through powers in summary proceedings. Resort must 
 be had to High Court for equitable relief. (McLennan, J., dis- 
 senting.) 
 
 (b) "To fix a day for the trial." — There should be notice of 
 application to fix the day for trial. No judicial officer can fix the 
 day for trial before another judicial officer. Counterclaim for dam- 
 ages for breach of contract may be asserted in mechanics' lien action. 
 Pilkington v. Brown, (1898) 19 P. R. 337. 
 
 (c) "Report on the sale."— See Con. Rules 743, 769. The 
 Master's certificate is thus equivalent to a judgment of the court 
 and may be so enforced. 
 
 (d) " A judgment of the court." — A petition was presented by 
 a judgment creditor to vacate the judgment so far as it affected 
 petitioner. The judgment recited that petitioners had a lien and 
 declared that plaintiffs and others were entitled to liens, but did 
 not otherwise settle priorities. Petitioners had no notice of trial 
 and did not appear. The trial took place on 30th June, 1903. The 
 sheriff had petitioners fi. fa. on 15th June, 1903. It was ordered 
 that the names of petitioners and all reference to their claim be 
 struck out of the judgment. Haycock v. Sapphire, (1903) 2 0. 
 W. R. 1177; 7 0. L. R. 21. Plaintiff claimed interest from date 
 when lien arose. Held, that interest being an incident of the 
 principal sum found due and unreasonably withheld is properly 
 allowed and secured by the lien, but should be paid from date of 
 action. Metallic Roofing Co. v. Jamieson, (1903) 2 O. W. R. 316. 
 
 A judgment by a claimant against the contractor is not con- 
 elusive upon the owner. It may be offered as evidence of the 
 amount due, but it will not prevent the owner from showing that 
 the claim is excessive to the knowledge of the claimant. Taylor 
 v. Wahl, (1903) 69 N". J. L. 471. 
 
516 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 36. Transferring carriage of proceedings. — Any lienholder en- 
 titled to the benefit of an action may apply for the carriage of the 
 proceedings, and the Judge or officer may take an order giving siich 
 lienholder the carriage of the proceedings. 10 Edw. VII. c. 69, 
 s. 36. 
 
 37. (1) Appointing day for trial. — After the delivery of the 
 statement of defence where the plaintiff's claim is disputed, or after 
 the time for delivery of defence in all other cases, where it is de- 
 sired to try the action otherwise than before a Judge of the Supreme 
 Court, either party may apply to, a Judge or officer who has juris- 
 diction to try the action to fix a day for the trial thereof, and the 
 Judge or officer shall appoint the day and place of trial. 
 
 (.2) Notice of trial and service of. — The party obtaining an 
 appointment for the trial shall, at least eight clear days before the 
 day appointed, serve notice of trial, Form 6, upon the solicitor for 
 the defendants who appear by solicitors, and upon defendants who 
 appear in person, and on all lienholders who have registered their 
 claims as required by this Act, or who are known to him, and on all 
 other persons having any charge, incumbrance or claim on the land 
 subsequent in priority to the lien, who are not parties, and such ser- 
 vice shall be personal unless otherwise directed by the Judge or 
 officer who may direct in what manner the notice of trial may be 
 served. 
 
 (3) Trial. — The judge or officer shall try the action and all 
 questions which arise therein or which are necessary to be tried in 
 order to completely dispose of the action and to adjust the rights 
 and liabilities of the persons appearing before him or upon whom 
 the notice of trial has been served, and shall take all accounts, make 
 all enquiries, giye all directions, and do all other things necessary 
 to finally dispose of the action and of all matters, questions and 
 accounts arising therein or at the trial, and to adjust the rights and 
 liabilities of and give all necessary relief to all parties to the action 
 and all persons who have been served with the notice of trial, and 
 shall embody the results in a judgment, Form 7. 
 
ONTARIO MECHANICS' UEN ACT. 517 
 
 (4) Sale. — The judge or officer may order that the estate or 
 interest on which the lien attaches be sold, and where, by the judg- 
 ment, a sale is directed -he may direct the sale tp take place at any 
 time after the judgment, allowing a reasonable time for advertising 
 such sale. i 
 
 (5) Sale of materials. — The judge or officer may also direct 
 the sale of any materials and authorize the removal thereof. 
 
 (6) Letting in lienholders who have not proved their claims 
 at trial. — A lienholder who has not proved his claim at the trial 
 on application to the Judge or officer before whom the action was 
 tried, may be let in to prove his claim on such terms as to costs and 
 otherwise as may be deemed just at any time before the amount 
 realized in the action for the satisfaction of liens has been distri- 
 buted, and where such a claim is allowed the judgment shall be 
 amended so as to include such claim. 
 
 (7) Right of lienholders to representation. — Every lienholder 
 for an amount not exceeding $100 may be represented by a solicitor 
 or by an agent who is not a solicitor. 10 Edw. VII. c. 69, s. 37. 
 
 When any part of a claim has matured, an action lies, and in 
 that action all claims, whether then payable or not, are to be dealt 
 with at the trial, as provided for in this section. Northern Lumber 
 Mills v. Bice, (1918) 41 0. L. E. 201, 40 D. L. E. 128. Where 
 a lienholder had registered a claim of lien and judgment in the 
 action had been delivered, but not signed, a lienholder who regis- 
 tered his lien after the judgment was delivered may be let in to 
 prove his claim on payment of his own costs of the application. 
 Eadie-Douglas v. Hitch & Co., (1912)- 9 D. L. E. 239. Under a 
 section in the Nova Scotia Act, similar to section 37 (3), it was 
 decided that it is sufficient if the trial judge disposes of all ques- 
 tions which are necessary to be tried to enable him to dispose of 
 the action. * Dixon v. Boss, 1 D. L. E. 17. 
 
 (a) "At least eight clear days/'^-Both the day of service and 
 the day of trial are to be excluded from the eight days. 
 
 (b) " Who have registered their claims." — See Bobock v. Peters, 
 (1900) 13 Man. 124, and Bunting v. Bell, (1876) 23 Gr. 584. 
 
518 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 (e) " Persons having any charge or incumbrance." — " In pro- 
 ceedings under the Mechanics' and Wage-earners' Act, section 36 
 seems to render it unnecessary to consider how far one or the other 
 of these modes of procedure would have been the proper one to 
 apply, for, as I have pointed out, it is the persons who are incum- 
 brancers at the time fixed for the service of notice of trial and 
 those only who are required to be served, service of notice of trial 
 on them being the mode by which incumbrancers not already 
 parties to the proceedings are brought in." Haycock v. Sapphire 
 Corundum Co., (1903) 7 0. L. B. 21, per Meredith, C.J., at p. 23. 
 
 As to dismissal of proceedings to enforce lien, default of plain- 
 tiff in making discovery, etc., see Ramsay v. Gordon, (1912) 2 
 D. L. E. 889. 
 
 Where a contractor has a claim against an owner of land larger 
 than the value of the land, and wishes to prove his claim in an 
 action, independently of mechanics' lien proceedings, section 37 does 
 not give the officer charged with the trial of the lien proceedings 
 power to stay the independent action. Dick v. Standard Under- 
 ground Cable Co., (1912) 23 0. W. E. 96. 
 
 An interlocutory application to stay proceedings brought ,by 
 workmen against both their employer and the property owner, 
 should not be granted to enable the owner to complete the work 
 on the contractor's default and so ascertain the balance, if any, 
 owing by the owner under the contract; such a question should 
 not be determined at Chambers. Saltsman v. Berlin Robe & 
 Clothing Co., 6 D. L. E. 350. 
 
 As to proceedings to vacate lien filed on land of stranger, see 
 Boggs v. Hall, 13 D. L. E. 941. 
 
 As to the necessity for service upon defendants who do not 
 defend, see Elliot v. Rowell, (1916) 11 0. W. N. 203. 
 
 Where a contractor has a claim against an owner of land larger 
 than the value of the land and wishes to prove his claim in an 
 action, independently' of mechanics' lien proceedings, this section 
 does not give the officer charged with the trial of the lien proceeds 
 ings power to stay his independent action. Dick v. Standard 
 Underground Cable Co., (1912) 23 0. W. E. 96. 
 
 38. Report where land is had. — Where a sale is had the judge 
 or officer with whose approbation the sale takes place shall make a 
 report thereon and therein direct to whom the money realized shall 
 
ONTABIO MECHANICS' LIEN ACT. 519 
 
 be paid, arid may add to the claim of the person conducting the sale 
 his actual disbursements in connection therewith, and where enough 
 to satisfy the judgment and costs is not realized he shall certify the 
 amount of the deficiency and the names of the persons, with their 
 amounts, who are entitled to recover the same, and the persons by 
 the judgment adjudged to pay the same, and the persons entitled 
 may enforce payment by execution, or otherwise, as on a judgment. 
 10 Bdw. VII. c. 69, s. 38. 
 
 The final judgment in a lien suit is the decree of sale which 
 establishes the lien for a certain amount and orders a sale of the 
 premises. The warrant of sale which issues upon and follows this 
 decree corresponds to an execution. Massasoit-Pocasset National 
 Bank v. Bordm,. (1917) 228" Mass. 581. 
 
 38. Right of lienholders whose claims are not payable to share 
 in proceeds. — Where property subject to a lien is sold in an action 
 to enforce a lien, every lienholder shall be entitled to share in the 
 proceeds of the sale in respect of the amount then owing to him, 
 although the same or part thereof was not payable at the time of 
 the commencement of the action or is not then presently payable. 
 10 Edw. VII. c. 69, s. 39. 
 
 The right, title and interest of certain parties under a lease of 
 lands was offered for sale by the court, pursuant to a judgment in 
 a mechanics' lien action. The lands were, at the time of the sale, 
 subject to a tax imposed by the Supplementary Revenue Act, 1907, 
 though this was not known either to the vendors or purchaser. 
 Held, that the purchaser took subject to the tax, and the utmost 
 relief to which he was entitled was to have the contract wholly 
 rescinded. W earner Drilling Co. v. Tremblay, (1909) 18 0. L. E. 
 439. 
 
 New Teial and Appeal. 
 
 40. (1) Where judgment of court of first instance to be final. 
 — Where the aggregate amount of the claims of the plaintiff and 
 all other persons claiming liens is not more than $100, the judg- 
 ment shall be final and without appeal, but the judge or officer who 
 
520 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 tried the action may, upon application within fourteen days after 
 judgment is pronounced, grant a new trial. 
 
 (2) Where appeal to Divisional Court final.— Where the aggre- 
 gate amount of the claims of the plaintiff and all other persons 
 claiming liens is more than $100, and not more than $500, any 
 person affected by the judgment may appeal therefrom to a Divi- 
 sional Court, whose judgment shall be final and without appeal. 
 
 (3) Appeal in other cases. — In all other cases an appeal shall 
 lie and may he had in like manner and to the same extent as from 
 the decision of a judge trying an action in the Supreme Court with- 
 out a jury. 10 Edw. VII. c. 69, s. 40. 
 
 (a) "7s more than $100." — The right of appeal is governed 
 by the aggregate amount of the claims. 
 
 Con. Eule 826 is applicable to an appeal by the respondent in 
 the court below from an order of the Division Court reversing the 
 judgment upon the trial where the amount in question is more 
 than $100 and not more than $200, and therefore security for the 
 costs of such an appeal must be given unless otherwise ordered. 
 Sherlock v. Powell, (1889) 18 P. E. 312. 
 
 (b) "As from the decision of a judge trying an action in the 
 High Court without a jury." — See Judicature Act, section 7'5 (1), 
 and Con. Eule 787. See also the Supreme and Exchequer Court 
 Act (E. S. €., c. 135), and amendments thereto. ■ See sections 24, 
 28 ; Cass. Pr. 14-17. 
 
 Under 53 Vict. c. 37, ss. 13 and 35, it was held that section 35 
 of that statute applied to appeals from " Certificates,' 7 and not 
 "Eeports." An appeal from a report is to judge in court under 
 Eule 850. Wagner v. O'Donnell, (1891) 11 C. L. T. 962; 14 P. E. 
 254. The practice given is grafted on the ordinary practice of the 
 Court. See BieTcerton v. Dakin, 20 0. E. 192, 695; Wentworth 
 Lumber Go. v.Voleman, (1904) 3 O. "W. E. 618; see Sherlock v. 
 Ppwell, 18 P. E. 312. 
 
 Fees and Costs. 
 
 41. (1) Limits of fees in money or stamps: — No fees in stamps 
 or money shall be payable to any Judge or other officer, in any 
 
ONTARIO MECHANICS' LIEN ACT. ,521 
 
 action brought to realize a lien under this Act, nor on any filing, 
 order, record or judgment, or other proceeding in such action, 
 excepting that every person other than a wage-earner shall, on filing 
 his statement of claim where he is plaintiff, or on filing his claim 
 where he is not a plaintiff, pay in stamps $1 on every $100 or frac- 
 tion of $100 of the amount of his claim up to $1,000, and $1 on 
 every $1,000 or fraction of $1,000 of the amount of his claim over 
 $1,000. Geo. V^,c. 30, s. 3. 
 
 (2) Fees of local master. — When the proceedings are taken 
 before a local master who is paid by fees such amount shall be 
 payable to him in cash instead of in stamps. 10 Edw. VII. c. 69, 
 s. 40. • 
 
 42. Limit of costs to plaintiff.— The costs of the action, exclu- 
 sive of actual disbursements awarded to the plaintiffs and successful 
 lienholders, shall not exceed in the aggregate twenty-five per cent, 
 of the total amount awarded to them by the judgment, and shall be 
 apportioned and borne in such proportion as the judge or officer 
 who tries the action may direct. 10 Edw. VII. c. 69, s. 42. 
 
 (a) " The "costs of the action." — i.e., solicitqrs' costs. Court 
 fees are dealt with by section 40. See section 45 for costs for draw- 
 ing and registering or vacating the lien. 
 
 (b) "Actual disbursements" do not include counsel fees paid 
 by the defendant's solicitor to counsel retained in the course of 
 the -proceedings, and a fortiori not eounsel fees charged by the 
 solicitor ■ himself . Cobban Mfg. Go. v. Lake Simcoe Hotel Co., 
 (1903) 5 O. L. E. 447, followed in Humphreys v. Cleave, 15 Man. 
 L. E. 23. See note under section 37 of the Manitoba Act, ante. 
 
 Where the defendants unsuccessfully appealed to the Divisional 
 Court, the Master should have added to the amount allowed the 
 plaintiffs, the cost of the appeal successfully opposed by them. 
 Wesner Drilling Co. v. Tremblay, (1909) 18 O. L. E. 439. The 
 judgment in the action directed the Master to compute and tax 
 subsequent interest and subsequent costs; the Master should have 
 taxed to the plaintiffs their costs in connection with the sale pro- 
 ceedings, the same not exceeding twenty-five per cent, of the judg- 
 
522 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 ment recovered, and not merely the disbursements. Wesner Drilling 
 Co. V. Tremblay, supra. 
 
 " Judgment," in this section is identical with " judgment " in 
 section 37 (3). Powell Lumber & Door Co. v. Hartley, (1915) 9 
 0. W. 1ST. 249. 
 
 (c) "Shall be apportioned and borne." — The officer can exer- 
 cise a judicial discretion in fixing the costs. 
 
 Defendant amended defence by paying into court twenty per 
 cent, and costs to date. Held, that subsequent costs were payable 
 by defendant. Ontario Paving Company v. Bishop, (1904) 4 
 0. W. E., 34. 
 
 Costs of appeal are not included in costs which by section 42 
 shall not exceed twenty-five per cent, of amount of judgment. See 
 costs of appeal, dealt with by former section 45 and in discretion 
 of court or judge. Gearing v. Robinson, (1900) 19 P. E. 192. As 
 to scale of costs between party and party, see Freeze v. Corey, 7 
 W. L. E. 287. 
 
 See summary of all important cases decided in Western Canada 
 where the question of costs was dealt with, 2 Canadian Encyclopedic 
 Digest, section 127, pp. 425-427. 
 
 43. Limit of costs to be awarded against plaintiffs. — Where 
 costs are awarded against the plaintiff or other persons claiming 
 liens they shall not exceed twenty-five per cent, of the claim of the 
 plaintiff and the other claimants besides actual disbursements, and 
 shall be apportioned and borne as the judge or officer may direct. 
 10 Edw. VII. c. 69, s. 43. 
 
 (a) " Costs." — See Gearing v. Robinson, 19 P. E. 192; Hall v. 
 Pilz, 11 P. E. 449 ; Truax v. Dixon, 13 P. E. 279 ; Hall v. Hogg, 
 14 P. E. 45 ; Patten v. Laidlaw, 26 O. E. 189 ; Simpson v. Rubeck, 
 (1912) 21 0. W. E. 360 ; Rowlin v. Rowlin, 9 O. W. E. 297 ; Jamie- 
 son v. Hagar, if 0. W. N. 104, 
 
 (b) " The claim of the plaintiff and the other claimants." — 
 Actual disbursements under this section do not include counsel fees 
 paid by solicitor to counsel, and, a fortiori, counsel fees charged 
 by solicitor himself or his firm. Cobban M. Co. v. Lake Simcoe 
 Co., (1903) 5 O. L. E. 447. 
 
 This sectioniwas intended to make it the interest of both parties 
 to proceed as inexpensively as possible. See Rowlin y. Rowlin, 
 (1907) 9 0. W. E. 297. ' 
 
ONTARIO MECHANICS' LIEN ACT. 523 
 
 44. Costs where least expensive course not taken. — Where the 
 least expensive course is not taken by a plaintiff the costs allowed 
 to him shall in no ease exceed what would have been incurred if 
 the least expensive course had been taken. 10 Edw. VII. c. 69, 
 s. 44. 
 
 See Bowlin v. Rowlin, 9 0. W. E. 297. 
 
 45. Costs of drawing and registering and vacating registration 
 of lien. — Where a lien is discharged or vacated under section 27, 
 or where judgment is given in favor of or against a claim for a lien, 
 in addition to the costs of the action the judge or officer may allow 
 a reasonable amount for the costs of drawing and registering the 
 claim for lien or of vacating the registration thereof. 10 Edw. VII. 
 c. 69, s. 45. 
 
 46. Costs not otherwise provided for. — The costs of and inci- 
 dental to all applications and orders not otherwise provided for 
 shall be in the discretion of the judge or officer. 10 Edw. VII. c. 
 69, s. 46. 
 
 ■ On motion, ex parte, by the defendant and owner for leave to 
 pay into court $225, the amount of the claim, and $75 as security 
 for costs and for discharge of lien, Cartwright, K.C., M. in C, 
 held that notice should be given plaintiff or his consent obtained 
 before any order should be granted. Wilms v. Williamson, (1911 ) 
 Lear's Digest, 604. 
 
 Payment Out of Couet. 
 
 47. (1) Payments out of court. — Except in actions tried by 
 a judge of the Supreme Court, the judge or officer who tries the 
 action, where money has been paid into court and the time for pay- 
 ment out has arrived, shall forward a requisition for cheques with 
 a certified copy of his judgment and of the report on sale, if any, 
 to the accountant of the Supreme Court who shall, upon receiving 
 the same, make out and return to the judge or officer cheques for 
 the amounts payable to the persons mentioned in the requisition, 
 
524 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 and the judge or officer, on receipt of cheques, shall distribute them 
 to the persons entitled. 
 
 (2) Fees.' — No fees or stamps shall be payable on any cheques 
 or on proceedings to pay money into court or to obtain money out. 
 of court, in respect of a claim for lien, but sufficient postage stamps 
 to prepay a return registered letter shall be enclosed with every 
 requisition for cheques. 10 Edw. VII. c. 69, s. 47. 
 
 Judgments in Actions. 
 
 48. Form of judgment in favor of lienholders. — All judgments 
 in favor of lienholders shall adjudge that the party personally liable 
 for the amount of the judgment shall pay so much of any deficiency 
 which may remain after sale of the property directed to be sold 
 as might have been recovered in an ordinary action against him, 
 and where on the sale enough to satisfy the judgment and costs is 
 not realized such part of the deficiency may be recovered by execu- 
 tions against the property of such party. 10 Bdw. VII. c. 69, s. 48. 
 
 (a) ' " Shall pay so much of any deficiency." — This section gives 
 to the lienholder a right to judgment against the person in respect 
 to whom his claim arises for any balance remaining due after 
 realizing upon the lien. The lienholder mu"st first proceed against 
 the property. If it is not sufficient he is entitled to judgment. A 
 lienholder may always abandon his claim to a lien and sue on his 
 contract, but this and the succeeding section are the only provi- 
 sions for recovering personal judgments in proceedings to enforce 
 mechanics' liens. See Dunn v. McCallum, (1907) 14 0. ~L. E. 249. 
 
 49. Personal judgment when blaim for lien fails. — Where a 
 claimant fails to establish a valid lien he may nevertheless recover 
 a personal judgment against any party to the action for such sum 
 as may appear to be due to him and which he might recover in an 
 action against such, party. 10 Edw. VII. c. 69, s. 49. 
 
 (a) " Recover therein a personal judgment." — The debtor, how- 
 ever, must be a party to the proceedings. Under a section which 
 provided that if the lien claimant shall fail for any reason to estab- 
 
ONTARIO MECHANICS' UEN ACT. 525 
 
 lish a valid lien he may recover judgment for such sums as are 
 due him or which he might recover in an action on a contract; a 
 defendant in an action to foreclose a mechanics' lien who has filed 
 no lien as required by the mechanics' lien law is not entitled to 
 recover a personal judgment though he might have, a claim against 
 the owner. Deane Steam Pump Co. v. Clark, 84 N. Y. S. 851. 
 
 The right of a plaintiff to pursue his right for the debt and also 
 for the enforcement of his lien at the same time, but by different 
 actions, cannot be questioned. • Pierce v. Kirmey, 152 App. Div. 
 (NY.) 638. 
 
 This section is generally construed to apply only to cases in 
 which the lien claimed has been defeated in consequence of some 
 technicality or informality, or where the lien claimed has been 
 rendered valueless by reason of the priority of other liens, or by 
 some similar occurrence, but does not apply to cases where the 
 plaintiff could never have had a valid lien. 
 
 As to motion for summary judgment against defendants per- 
 sonally liable, see Robertson v. Bullen, 13 0. W. E. 56. 
 
 Plaintiffs instituted proceedings under Mechanics' Lien Act 
 and' also issued a writ for the same relief. Motion by defendants 
 to have latter action stayed was dismissed on the ground that the 
 two procedures are quite different, for in the personal action there 
 may be a more speedy recovery and a different and fuller judgment 
 than in the other proceedings. Hamilton Bridge Works v. General 
 Contracting Co., (1909) 14 0. W. E. 646. 
 
 The right to a personal judgment under Mechanics' Lien Acts, 
 is, of course, purely statutory, and in order to obtain a personal 
 judgment it must first be shown that there was a right to a lien. 
 Where no lien could legally exist this form of proceedings cannot 
 be resorted to for the. purpose of enforcing a mere personal con- 
 tract between the parties. Johnson & Carey Co. v. C. N. R. W. Co., 
 (1918) 44 0. L. E. 538; Murphy v. Watertown, 112 App. Div. 
 (KY.) 670; Weyer v Beach, 79 N. Y. 409; Quinn v. Allen, 85 111. 
 39. 
 
 But if a contractor, having a lienable claim, fails to enforce his 
 ■lien against the owner because of failure to commence the action 
 within the' statutory period, the contractor may be awarded in the 
 same hearing a personal judgment. Kendler v. Bernstock, 33 
 0. L. E. 351, 22 D. L. E. 475. 
 
526 the law of mechanics' liens in canada. 
 
 Liens on Chattels. 
 
 50. (1) Right of mechanics entitled to lien on a chattel to 
 sell the chattel. — Every mechanic or other person who has bestowed 
 money or skill and materials upon any chattel or thing in the alter- 
 ation and improvement of its properties, or for the purpose of im- 
 parting an additional value to it, so as thereby to be entitled to a 
 lien upon such chattel or thing for the amount or value of the 
 money or skill and materials bestowed shall, while such lien exists 
 but not afterwards, in case the amount to which he is entitled 
 remains unpaid for three months after the same ought to have 
 been paid, have the 'right, in addition to any other remedy to 
 which he may be entitled, to sell by auction the chattel or thing, 
 on giving one week's notice by advertisement in a newspaper pub- 
 lished in the municipality in which the work was done, or in case 
 there is no newspaper published in such municipality then in a 
 newspaper published nearest thereto, setting forth the name of the 
 person indebted, the amount of the debt, a description of the 
 chattel or thing to be sold, the time and place of sale, and the 
 name of the auctioneer, and leaving a like notice in writing at 
 the last known place of residence, if any, of the owner, if he is a 
 resident of such municipality. 
 
 (2) Application of proceeds of sale. — 'Such mechanic or other 
 person shall apply the proceeds of the sale in payment of the 
 amount due to him and the costs df advertising and sale, and shall, 
 upon application, pay over any surplus to. the person entitled 
 thereto. 10 Edw. VII. c. 69, s. 50. 
 
 See chapter entitled " Liens on Personal Property," ante. See 
 also Schultz v. Beddick, 43 U. C. E. 155; Blanchard v. Ely, 179 
 Mass. 586 ; Keith v. Maguire, 170 Mass. 210 ; Bruce v. Everson, 1 
 Cab. & E. 18 ; Sinclair v. Bottles, 9 B. & C. 92. 
 
ONTARIO MECHANICS' LIEN ACT. 527 
 
 FORMS. 
 
 As to the use of these forms, see observations of Boyd, C, in 
 Crerar v. C. P. B. Co., (1903) 5 0.- L. E. 383, and Osier, J.A., in 
 Craig v. Cromwell, (1900) 27 0. A.'E., at p. 589. 
 
 FOEM 1. 
 
 (Sections 17-22.) 
 Claim foe Lien. 
 
 A. B. (name of claimant) of 1 (here state residence of claimant), 
 (if claimant is a personal representative or assignee set out the 
 facts) under the Mechanics and Wage-earners Lien Act claims a 
 lien upon the estate of (here state the name and residence of owner 
 of the land upon which the lien is claimed), in the undermentioned 
 land in respect of the following work (or service or materials) that 
 is to say (here give a short description of the nature of the work 
 done or to be done, or materials furnished or to be furnished, and 
 for which ihe lien is claimed), which work (or service) was (or 
 is to be) done (or materials were or are to be furnished) for (here 
 state the name and residence of ihe person upon whose request the 
 work is done or to be done, or the materials furnished or to be 
 furnished) , on or before the day of 19 . 
 
 The amount claimed as due (or to become due), is $ 
 
 The following- is the description of the land to be charged (here 
 set out a concise description of the land to be charged sufficient for 
 the purpose 'of registration) • 
 
 (Where credit has been given, insert; The work was done (or 
 materials were furnished) on credit, and the period of credit agreed 
 to expire (or will expire) ) on the day of 19 . 
 
 Dated at this day of 19 . 
 
 (Signature of Claimant.) 
 10 Edw, VII. c. 69, Form 1. 
 
528 the law of mechanics' liens in canada. 
 
 Form 2. 
 
 (Sections 17-22.) 
 
 Claim for Lien for Wages. 
 
 A. B. (name of claimant) of (here state residence of claimant), 
 '(if claimant is a personal representative or assignee set out the 
 facts) under the Mechanics' and Wage-earners' Lien Act, claims 
 a lien upon the estate of (here state the name and residence of 
 owner of the land upon which the lien is claimed), in the under- 
 mentioned land in respect of work performed (or to be performed) 
 thereon while in the employment of (here state the name and resi- 
 dence of the person upon whose request the work was or is to be 
 performed), on or before the day of , 19 . 
 
 The amount claimed as due (or to become due), is $ 
 
 The following is the description of the land to be charged 
 (here set out a concise description of the land to be charged, suffi- 
 cient for the purpose of registration) . 
 
 Dated at this day of 19 . 
 
 ■• (Signature of Claimant.) 
 
 10 Bdw. VII. c. 69, Form 2. 
 
 Form 3. 
 , (Sections 17-22.) 
 Claim for Lien for Wages by Several Claimants. 
 
 The following persons claim a lien under the Mechanics' and 
 Wage-earners' Lien Act, upon the estate of (here state the name 
 and residence of the owner of land upon which the lien is claimed), 
 in the undermentioned land in respect of wages for labor performed 
 (or to be performed) thereon while in the employment of (here 
 state name and residence or names and residences of employers of 
 the several persons claiming the lien). 
 
 A. B. of (residence) $ for wages. 
 
 C D. $ 
 
 E. F. " $ " 
 
ONTARIO MECHANICS' LIEN ACT. 529 
 
 The following is the description of the land to be charged (here 
 set out a concise description of the land to be charged sufficient for 
 the purpose of registration). 
 
 Dated at this day of 19 . 
 
 (Signatures of the several claimants.) 
 
 10 Edw. VII. c. 69 Form 3. 
 
 Form 4. 
 
 (Sections 17-22.) 
 
 Affidavit Verifying Claim. 
 
 I, A. B., named in the above (or annexed) claim, make oath 
 and say that the said claim is true. 
 
 Or, we, A. B. and C. D., named in the above (or annexed) claim, 
 make oath and each for himself makes oath that the said claim so 
 far as relates to him, is true. 
 
 Where the affidavit is made by agent or assignee a clause must 
 be added to the following effect: I have full knowledge of the 
 facts set forth in the above (or annexed) claim. 
 
 Sworn before me at 
 
 
 in the 
 
 county of 
 
 , this 
 
 day 
 
 of 19 . 
 
 
 
 Or, The said A. B. and C. D. were 
 
 severally sworn before me at in 
 
 the county of this day 
 of 19 . 
 
 Or, The said A. B. was sworn before me 
 at in the county of' 
 
 this day of 19 . 
 
 10 Edw. VII. c. 69, Form 4. 
 
 mx.— 34 
 
530 the law op mechanics' liens in canada. 
 
 Form 5. 
 
 (Section SI.) 
 
 Affidavit Verifying Claim on Commencing an Action. 
 
 (Style of Court and Cause.) 
 
 I, make oath and say, that' I have read (or heard 
 
 read) the foregoing statement of claim, and that the facts therein 
 set forth are, to the best of my knowledge and belief, true, and 
 the amount claimed to be due to me in respect of my lien is the 
 just and true amount due and owing' to me after giving credit 
 for all the sums of money or goods or merchandise to which (nam- 
 ing the debtor) is entitled to credit as against me. 
 
 SwOrn before me, etc. 
 
 10 Edw. VII. c. 69, Form 5. 
 
 As to defective affidavit and powers of referee at trial see Lemon 
 v. Young, (1916) 10 0. W. N. 82. 
 
 Form 6. 
 
 Notice of Trial. 
 
 (Style of Court and Cause.) 
 
 Take notice that this action will be tried at the in 
 
 the of in the County (or district) of 
 
 on the day of by and 
 
 at such time and place the will proceed to try 
 
 the action and all 'questions which arise in or which are necessary 
 to be 'tried completely to dispose of the action and to adjust the 
 rights and liability of the persons appearing before him or upon 
 whom this notice of trial ha"s been served, and at such trial he 
 will take all accounts, make all enquiries, and give all directions 
 and do all things necessary to try and otherwise finally dispose of 
 this action and all matters, questions and accounts arising therein 
 and will give necessary relief to all parties. 
 
 And further take notice that if you do not appear at the trial 
 and prove your claim, if any (or your . defence, if any), to the 
 
ONTARIO MECHANICS' LIEN ACT. 5M 
 
 action the proceedings will be taken in your absence and you may 
 be deprived of all benefit of the proceedings and your rights dis- 
 posed of in your absence. 
 
 This is a mechanics' lien action brought by the above named 
 plaintiff against the above named defendants tb enforce a mechanics' 
 lien against the following lands: (s'et out description of lands). 
 
 This notice is served by, etc. 
 
 Dated 19 . 
 
 To 
 
 10 Edw. VII. c. 69, ; Form 6. 
 
 Fqem 7. 
 Judgment. 
 
 In the Supreme^ Court of Ontario. ' 
 
 Monday, the day of 19 . 
 
 (Name of Judge or Officers). 
 
 William Spencer, Plaintiff, 
 
 and 
 Thomas Burns, Defendant. 
 
 This action coming on for trial before at 
 
 upon opening of the matter, and, it appearing that the iollowing 
 persons have been duly served with notice of trial herein (set out 
 names of all persons served with notice of trial), and all such 
 persons (or as the case may be), appearing at the trial (or and the 
 following persons not having appeared, (set out names of. non-appear- 
 ing persons), and upon hearing the evidence adduced and what was 
 alleged by counsel for the plaintiff and for C. D. and E. F. and 
 the defendant (or and by A. B. appearing in person). 
 , 1. This court doth declare that the plaintiff and the several 
 persons mentioned in the first schedule hereto are respectively 
 entitled to a lien under the Mechanics' and Wage-earners' Lien 
 Act, upon the land described in the second schedule hereto, for 
 the amounts set opposite their, respective names in the 2nd, 3rcT and 
 4th columns of the said first schedule, and the persons primarily 
 liable for the said claims respectiyely are set forth in the 5th column 
 of' the said schedule. 
 
 3. (And this court' doth further declare that the several per- 
 sons mentioned in schedule 3 hereto are also entitled to some lien, 
 
532 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 charge or incumbrance upon .the said land for the amounts set 
 oppdsiie their respective names in ' the 4th column of the said 
 schedule 3, according to the fact). 
 
 3. And this court doth further order and adjudge that upon 
 the defendant (A. B. the owner) paying into court to the credit 
 of this action the sum of (gross amount of lien in 
 schedules 1 and 3 for which owner is liable), on or before the 
 
 day of next, that the said liens in the said 1st schedule men- 
 
 tioned be and;the same are hereby discharged (and the several per- 
 sons in the said 3rd schedule are to release and discharge their 
 said claims aii,d assign and convey the said premises to the defendant 
 (owner) and deliver up all documents on oath to the said defend- 
 ant (owner), or to whom he may appoint), and the said money so 
 paid into court is to be paid out in payment of the claims of the 
 said lienholders (or any incumbrancers). 
 
 4. In case the said defendant (owner) shall make default in 
 payment of the said money into court, this court doth order and 
 adjudge that the said land be sold with the approbation of the 
 Master of 'this court at , and that the purchase money 
 be paid into court to the credit of this action, and that all proper 
 parties do join in the conveyance as the said Master shall direct. 
 
 5. And this Court doth order and adjudge that the said pur- 
 chase money, be applied in or towards payment of the several claims 
 in the said 1st (and 3rd) schedule(s) mentioned as the said Master 
 shall direct, with subsequent interest and subsequent costs to be 
 computed and taxed by the said Master. 
 
 6. And this Court doth further order and adjudge that in 
 case ,the said purchase money shall be insufficient to pay in full 
 the claims of the several persons mentioned in the said 1st schedule, 
 the persons primarily liable for such claims as shewn in the said 
 1st schedule do pay to the persons to whom they are respectively 
 primarily liable the amount remaining' due to such persons forth- 
 with after the same shall have been ascertained by the said Master. 
 
 7. (And this court doth declare that- have not proved 
 any lien under the Mechanics' and "Wage-earners' Lien Act, and 
 that they are not entitled to any such lien, and this Court doth 
 order and adjudge that the claims of liens registered by them 
 against the land. mentioned in the said 2nd schedule be and the 
 same are hereby discharged, (according to the fact). ; 
 
 10 Edw. VII. c. 69, Form 7. 
 
ontabio mechanics'- lien act. 
 Schedule 1. 
 
 533 
 
 Names of lienholders 
 
 entitled to 
 
 Mechanics' Liens 
 
 Amount of 
 
 debt and 
 
 interest (if 
 
 any) 
 
 Costs 
 
 Total 
 
 Names of primary 
 debtors 
 
 (Signature of officer.) 
 10 Edw. VII. c. 69, Schedule 1. 
 
 Schedule 2. 
 
 The lands in question in this matter are 
 {Set out oy a description sufficient for registration purposes.) 
 
 (Signature of officer.) 
 10 Edw. VII. c. 69, Schedule 2. 
 
 Schedule 3. 
 
 Names of persons entitled 
 to encumbrances 
 
 other than 
 Mechanics' Liens 
 
 Amount of debt 
 
 and interest 
 
 (if any) 
 
 Costs 
 
 Total 
 
 10 Edw. VII. c. 69, Schedule 3. 
 
 (Signature of officer.) 
 
QUEBEC LAW RELATING TO MECHANICS' 
 
 LIENS. 
 
 The civil law, in its relation to the subject of mechanics' liens, 
 has already been referred to. (See Chapter I., p. 2.) 
 
 The law of the Province of Quebec on this subject is based on, 
 the civil law as originally declared in art. 2013 of the Civil Code, 
 which came into force on the first of August, 186,6. ' The law was 
 changed in 1894, when twelve articles were added, 2013A to 
 2013L, and these articles have subsequently undergone some 
 change. Article 2013 at present 'reads as follows: — 
 
 "2013. A laborer, workman, architect, builder and the sup- 
 plier of materials have a right of preference over the vendor and 
 other creditors, on the immovable, but only upon the additional 
 value given to the immovable by the work done." 
 
 " In case the proceeds are insufficient to pay the laborer, work- 
 man, architect, builder and the supplier of materials, or in cases of 
 contestation, the additional value given by the work is established 
 by a relative valuation effected in the manner prescribed in the 
 Code of Civil Procedure." 
 
 " The aforesaid privileged claim is paid only upon the amount 
 established as tying the additional value given to the immovable 
 by the work done." 
 
 The articles in the Code of Procedure referred to in art. 2013 
 of the Civil Code are the three following: — 
 
 Article 805. 
 
 i 
 
 Code of Procedure. — " In case the disposable moneys are in- 
 sufficient, the prothonotary, if the record does not offer, him^suffi- 
 cient data to confirm the relative valuation himself, must suspend 
 the distribution and report the facts to the judge, in the following 
 cases :- — 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 535 
 
 " (1) When several immovables or pieces or parcels of land, 
 separately- charged with different claims, are sold for one aild the 
 same price; 
 
 " (2) When a vendor's claim comes in concurrence with a 
 builder's privilege; 
 
 " (3) When a creditor has some preferable claim upon part 
 of an immovable by reason of improvements or other cause." 
 
 Article 806. 
 
 "806. Upon application of one of the parties interested, after 
 notice given to the others, the judge orders experts to be named 
 in the ordinary manner, in order to establish the respective values 
 of the immovables, pieces of land, or improvements, and the pro- 
 portion which should be allotted to each out of the moneys to be 
 distributed." 
 
 Article 807. 
 
 " 807. The relative valuation being established upon the re- 
 port of the experts, the cause is sent back to the prothonotary by 
 the judge in order that he may proceed to determine the order of 
 the collocation and the distribution of the moneys." 
 
 Decisions Under Article 2013. 
 
 A plaintiff who has a legal privilege on a property in connec- 
 tion with the work done by him thereon, cannot, in the event of a 
 fire, claim by a conservatory, attachment the proceeds of policy 
 covering the building, because these proceeds do not represent the 
 property but represent a debt resulting from a contract of insur- 
 ance. Be Anna Isaacs et vir v. Samuel Tafler & The Guardian 
 Assurance Co., Limited, Garnishee, (1910) 11 Que. P. E. 359. 
 
 The privilege given to laborers, workmen, architects and build- 
 ers by the Civil Code, arts. 2013 et seq., extends only to persons of 
 the classes mentioned under engagement with the owner of lands 
 or the building contractors employed by him and does not enure 
 to the benefit of sub-contractors or persons furnishing labor or 
 
536 THE LAW OE MECHANICS' LIENS IN CANADA. 
 
 materials without direct agreement with or knowledge of the 
 owner. Frechette v. Ouimei, Q. E. 28 S. C. 4. 
 
 There is no provision of the law which gives a clerk the right 
 de piano to attach the movable possessions of his employer on 
 which he has a lien for his salary without proving acts on the part 
 of the employer which are likely to prejudice his lien. Gladu v. 
 Hurtubise, 10 Q. P. E. 272. 
 
 The ■ cessionaire of a privileged debt and registered according 
 to the dispositions of art. 2013 et seq. C. €. has not an hypothe- 
 cary action against the detenteur of the immovable in question 
 until after the signification of the transfer upon the personal , 
 debtor. The service made on the detenteur is not sufficient. 
 Demers v. Byrd, 17 K. B. 303. On appeal, this decision was 
 reversed. See decision on appeal noted in decisions under article 
 2013 B, post. 
 
 The expenses of tilling and sowing do not constitute an incum- 
 brance in the sense of art. 2072 of the Civil Code, the special privi- 
 lege for tilling and sowing only exist when the immovable is sold 
 before the harvest. Cooke, J., Carnignan v. Gilbert, 7 Q. P. E. 
 364, 
 
 Motormen and conductors of an electric railway and the carters 
 who carry materials, clear away . snow, etc., for their companies, 
 are employees of a railway doing manual labor in the sense of art. 
 9 of 2009 C. C. 
 
 These employees have a right of privilege on the tramway and 
 its 'outbuildings for their wages during three months without 
 respect to the date of the seizure or of the sale which may have 
 taken place of them. Paquette et al. v. New York Trust, 15 K. B. 
 .179. 
 
 A contractor for making timber by the job has, for what may 
 be due him, the lien given by art.. 1994c. of the Civil Code. 
 
 A creditor having a lien upon movables may as a rule exercise 
 the right by conservatory attachment to secure his privilege. Boss 
 v. St. Onge, Q. E. 14 K. B. 478. 
 
 A corporation held to the upkeep of a public road which agrees 
 by contract with a company that the latter can construct and operate 
 a tramway on condition that they perform the work of mainten- 
 ance, acquire no privilege on the tramway for the cost of the same 
 works which it is forced to do owing to the failure of the company. 
 Morse v. Levis County Railway et al., 30 S. C. 353. 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 537 
 
 A company operating an electric tramway, by permission of 
 the municipal corporation, on rails laid on public streets vested 
 in the municipality, to secure the principal and interest of an 
 issue of its debenture-bonds, hypothecated its real property, tram- 
 way, cars, etc., used in connection therewjth, to trustees for the 
 debenture-holders, and transferred the movable property of the 
 company and its present and future revenues to the trustees. By 
 a provincial statute, 3 Edw. VII. c. 91, s. 1 (Que.), the deed was 
 validated and ratified. On the sale, in execution, of the tramway, as 
 a going concern : — Held, that whether at the time of such sale, the 
 cars in question were movable or immovable in character, the effect 
 of the deed and ratifying statute was to subordinate the rights of 
 other creditors to those of the trustees, and, consequently, the un- 
 paid vendors thereof were not entitled, under art. 2000 of the 
 Civil Code of Lower Canada, to priority of payment by privilege 
 upon the distribution of the moneys realized on the sale and execu- 
 tion. 
 
 Per Girouard, J., Duff, J., contra: — After the car in question 
 had been delivered to the tramway company and used by it for the 
 operation of their tramway, they became immovable by destina- 
 tion. 
 
 In the result, the judgment appealed from, Q. E. 18 K. B. 82, 
 was affirmed. Ahearn & Soper Limited v. The New York Trust 
 Company, 42 S. C. B. 267. 
 
 The mason has a special privilege in the nature of a mortgage 
 upon any building erected by him and for repairs. This privilege, 
 howeyer, will not be allowed to the prejudice of other creditors of 
 the proprietor, unless within a year and day there be something 
 specific to show the nature of the work done or the amount of the 
 debt due thereon. 
 
 Court of Appeals, 1827, Jourdain & Miville, Stuart's Bep. 263 ; 
 1 B. J. E. Q. 249, 513. 
 
 The valuation made at the instance of the architect or builder 
 at the time of the inscription of his privilege may be attacked by 
 the vendor, and the latter may obtain a contradictory valuation, if 
 the two privileges are in conflict. 
 
 Monk, J., I860, Doutre v. Green, 5 L. C. J. 152 ; 9 B. J. E. Q. 
 137. 
 
 The 1 builder of a railway has no right of retention on the work 
 done by him unless he has acquired and preserved the privilege 
 
>538 , THE LAW OP MECHANICS-* LIENS IN CANADA. 
 
 conferred by article 2013 on the additional value given by him to 
 the immovables. 
 
 Bainville, J., 1882, Banque d'Hochelaga v. Montreal, Portland 
 & Boston Ry. Co., M. L. B.'l Si C. 146; 8 L. K 99. 
 
 In virtue of art. 2013 C. C, the builder who has observed the 
 formalities required by that article has no privilege other than 
 for the additional value given to the real estate by the buildings 
 put up by him, and he has no privilege or hypothec on the land 
 itself. 
 
 The registration of the relative valuation required by article 
 2013 for the preservation of the said privilege does not create a 
 tacit hypothec in favor of the builder on the said immovable. 
 
 .K. B., 1885, Corporation du Seminavre de St. Hyacinthe & 
 Banque de St. Hyacinthe, M. L. B. 1 Q. B. 396, 4 Q. B. B. 293, 29 
 L. C. J. 261, 8 L. N. 354. 
 
 It was sufficient for the expert to state in his second report, 
 made within six months, that the works described had been exe- 
 cuted and that sush works had given to the immovable the addi- 
 tional value fixed by him. 
 
 If the expert includes in his valuation works for which the 
 builder had 'by law no privilege, such error will not be a cause of 
 nullity, but will only entitle the interested parties to ask for a reduc- 
 tion of the expert's valuation. 
 
 Dufresne v. Prefontaine, 21 S. C. B. 607, Q. B. 16 L. K 48. 
 
 Held (reversing the judgment of Trenholme, J.) : The fact 
 of describing in the memorial for the registration of a laborer's 
 privilege the immovables affected by such privilege in the follow- 
 ing manner : " Two lots of land known and designated under the 
 numbers two'C. and three C. of the official sub-division of lot num- 
 ber 907," instead of designating them, as described in the cadastre, 
 as : " two lots of land known and designated under the numbers, 
 two, sub-division C, and three, sub-division C, both of the sub- 
 division of official No. 907," is not an irregularity sufficient to 
 involve the nullity of the registration privilege, especially when the 
 designation in the memorial is identical with that contained in the 
 title of the owner (who had acquired the immovables from the 
 respondent) and in the report of seizure, and 'when the registrar, 
 on presentation of the memorial, had registered the same against 
 these immovables such as they were described in the books of his 
 office. 
 
QUEBEC LAW EELATING TO MECHANICS' LIENS. 539 
 
 In this ease, the Respondent who had caused the immovables 
 to be sold had filed in the record a declaration that the land was 
 not worth more than $3,000 (the property and the buildings thereon 
 had been sold for $5,000), and a hypothecary creditor represented 
 by the attorney, of the respondent had. obtained an order from the 
 court for the distribution of the moneys without proceeding to a 
 ventilation (i.e., relative valuation of the land and of the build- 
 ings to establish the value of improvement). 
 
 Held, that, under these circumstances, the respondent, who was 
 dominus litis, must be held to have acquiesced in the omission of 
 such ventilation, and that he could not be heard to complain that 
 the amount of the increase of value given to the land by the new 
 constructions thereon had not been established by a ventilation. 
 
 The omission- by the workman, to give notice to the proprietor 
 of the immovable within three days after the registration of the 
 memorial (2103 C. C) does not affect the validity of this regis- 
 tration or of the privilege. 
 
 Daniel v. MacDuff, in the Court of King's Bench in Appeal, 
 1904, E. J. Q. 13 K. B. 361. 
 
 The holder of a note secured by a builder's lien may, in suing 
 on it, claim a declaration of the existence of the lien in his favor. 
 A contractor may take, in his own name, a builder's lien not only 
 for the work done by himself, but also for that done by a sub-eon- 
 tractor, and in these circumstances it is not necessary that his 
 contract with the sub-contractor, should be made known to the 
 owner of the works to be constructed. 
 
 The time limited for registry of a builder's lien runs from the 
 date on which the works were entirely completed and not from 
 that on which the person entitled to the lien begins to profit frpm 
 their construction before completion. The owner of the works to be 
 constructed cannot take advantage of the lien being registered too. 
 late nor even of entire failure to register it. La Banque Jacques 
 Cartier v. Picard, (1900) 18 Que S. C. 502. 
 
 The plaintiff having contracted to furnish materials to a builder 
 to be used in the construction of a building, gave written notice 
 to the defendant, owner of the land, under article 2013g, of the 
 Civil Code of Quebec, and subsequently registered a memorial 
 that he had furnished materials to the amount stated, and he then 
 notified defendant of such registration. The present action was 
 brought against the owner of the immovable more than three 
 
540 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 months subsequently, asking that he be condemned .to pay the 
 amount. No proceedings had been taken against the purchaser of 
 the materials : Held, that the privilege created in favor of the 
 supplier of' the materials, and his recourse against the owner of 
 the land, by the registration of the memorial, lapse unless legal 
 proceedings are taken within three months following the notice 
 to have the debtor condemned — by the " debtor " in article 2013i 
 being meant the purchaser of the materials. Lalonde v. LaBelle, 
 (1899) 16 Que. S. C. 573. 
 
 A contractor who stipulates directly with the proprietor of a 
 building which is being constructed, is entitled to register a priv- 
 ilege under the terms of article 2013 as amended by 59 .Vict. (Q.) 
 c. 42. 
 
 The additional value referred to in the above article is the 
 additional value given to the immovable by the work at the time 
 it is done. Galarneau v. Tremllay, (1903) 22 Que. S. C, 143. 
 (Archibald, J.). 
 
 A manufacturer who enters into an agreement with a contractor 
 to deliver a number of closets intended for a building which the 
 contractor has undertaken to construct, is not a workman, but a 
 •furnisher of materials. The registry by the manufacturer of a 
 workman's lien upon the immovable of the owner to secure pay- 
 ment of the price of the closets is void under the circumstances, 
 the manufacturer not being entitled to other security for such pay- 
 ment than that given by law in articles 2013g, 2013h, 2013i, 20131, 
 when he conforms to the provisions of these several articles. The 
 contract between the manufacturer and the, contractor is a sale 
 and not a letting of work {louage d'ouvrage). To enable a work- 
 man to claim a lien upon the immovable of an owner it is essential 
 that he should be employed upon such immovable. It is not suffi- 
 cient for him to work at and finish materials intended for the 
 building which the owner constructs or causes to be constructed. 
 Montmorency Cotton Mills Co. v. Gignac, (1901) 10 Que. Q. B. 158. 
 
 When the owner of land builds , on it, the person furnishing 
 material who desires to obtain a right of hypothec should, before 
 delivery of /the material, give notice to him who lends money to 
 the owner, and a notice given too late to such lender will not suf- 
 fice to give said right of hypothec. When two portions of the 
 same land have been sold by separate contracts to' different pur- 
 chasers and buildings are put upon it, the furnisher of material for 
 
QUEBEC UW BERATING TO MECHANICS' WENS. 541 
 
 -the building should in the particulars of claim (bordereau) which 
 he registers under article 2013, indicate the part of the land belong- 
 ing to each purchaser, and his registration will have no effect if 
 he describes the whole land as being the property of the two pur- 
 chasers. Paquette v. Mayer, (1900) 18 S. C. 563. 
 
 The enhanced value given to an immovable by a workman is 
 settled by valuation at the time of the decree, when the moneys 
 are sufficient to pay the workman who has registered' a privilege 
 or in case the increased value is disputed by parties interested. The 
 contention when it can take place should 'be raised by a pleading 
 au fond, and not by inscription en droit. The defendant being 
 owner of the immovable, the workman need not allege the increase 
 in value. Therrien v. Hainault, (1901) 8 E. de J. 314, 5 Que. 
 P. E. 61 (Pagnuelo, J.). 
 
 See also under this article, Brassard v. Chiskolm, (1898) 4 
 E. Q. de J. 419, and La Banque Jacques Oartier v. Picard, (1899) 
 E. J. Q. 15 6. C. 389. 
 
 As to the restricted powers of an official of a municipality to 
 bind the municipality, see Noiseaux v. La Cite de Lachine, (1919) 
 24 Eev. Leg. 491. 
 
 When lumbermen take action for wages with conservatory 
 seizure, and at the same time claim a lien upon the timber cut, 
 and this right is denied upon the ground that the notice given 
 was irregular, there is a chose jugee in a subsequent action to 
 ' compel a person formerly in possession of the timber cut, which 
 had been disposed of, to bring into court an amount representing 
 its value, in order to permit them to exercise their liens. Marinier 
 r.Riordan Paper Mills Co., (1917) 51 Que. S. C. 532. 
 
 By the passing of 4 Bdw. VII. c. 43 (1904), the legislature of 
 Quebec has explicitly given to the supplier of materials a right of 
 privilege, by adding to articles 2013 and 2013a, the words "the 
 supplier of materials," and consequently the latter has now a 
 privilege on the increased value, and not only an hypothec on the 
 whole property. Since the passing of that statute, the supplier 
 of materials is one of the privileged creditors by article 2013. 
 Under article 2013, the creditor's privilege "dates only from 
 the registration within the proper delay," which by analogy 
 must mean, in the case of the supplier of materials, thirty days 
 after the building is completed. 
 
542 - THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 The obligation imposed by law upon the supplier of materials 
 to preserve his right of notifying the owner is sufficiently fulfilled 
 when, before delivering the materials, the supplier obtains delivery 
 receipts signed by the owner or by his authorized employees. It 
 was held, from the deeds filed, that the notices had been properly 
 given; such notices could be legally given by the supplier of 
 materials to the plaintiff's vendor during the whole course of the 
 building, as well before as after the plaintiff's deed of acquisition; 
 the defendant was not bound to register his privilege before the 
 registering of plaintiffs title; the defendant, the supplier of 
 materials, had notified the plaintiffs' vendors of the registering of 
 his privilege and he had also notified the plaintiffs themselves; 
 and, finally, at the time of the institution of the present action, 
 the defendant was still within the statutory "delays." Pacaud v. 
 Limoges, (1918) 24 Eev. de Jur. 4. Affirmed, 56 Que. S. C. 242. 
 
 A' person who agrees with the proprietor to build him a house, 
 to purchase the materials required therefor and to supply labor, 
 is a " builder," and acquires, after due observance of the formalities, 
 the privilege provided. St. Just v. BlancKette, (1910) 2! Que. 
 K. B. 1. ; 
 
 An architect has a lien on the increased value given to an im- 
 movable property by the buildings thereon erected in accordance 
 with his plans and specifications, provided he had his lien regis- 
 tered within 30 days from the date at which such buildings became 
 fit for the use intended for them. Brunswick Bailee Collender 
 Cq..y. Bacette, (1916) 49 Que. S. C. 50. 
 
 A laborer who works on the macadamizing of a public road has 
 not a lien on the road, it being a part of the public domain. 
 Desrosiers v. Leedham, 49 Que. S. C. 33. 
 
 An action by a contractor against an owner for the price for 
 which the defendant executed a deed of obligation in favor of the 
 plaintiff is an action based upon a hypothec and not upon a lien. 
 Choquette v. Couture, 17 Que. P. E. 480. 
 
 Civil Code, 2013A. — " For the purposes of the privilege the 
 laborer, workman, architect and builder rank as follows: — (1) 
 The laborer; (2) The workman; (3) The architect; (4) The 
 builder, 
 
 " 2013B. — The right of preference or privilege upon" the im- 
 movable exists as follows: — 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 543 
 
 "Without the registration of the claim, in favor of the debt 
 due the laborer, workman and builder, during the whole time 
 they are occupied at the work, or while such work lasts, as the 
 case may be ; and with registration provided it be registered 
 within thirty days following the date upon which the building 
 has become ready for. the purpose for which it is intended. 
 
 "But such right of preference or privilege shall. exist only for 
 one year from the date of registration, unless a suit be taken in 
 the interval or unless a longer delay for payment has been stipu- 
 lated in the contract." 
 
 Decisions Under Article 2013B. 
 
 The obligation of the proprietor to pay the price of the work 
 does not. come into effect until after the execution of such works 
 and their examination and acceptance by the architect on the terms 
 and conditions of contract. Mireault v. Gauthier, 17 B. de J. 361. 
 
 The doctor's privilege for medical attendance during the last 
 illness, though subject to registration within six months if not 
 registered, takes priority over hypothecs previously registered: 
 Tellier, Archibald and Bruneau, JJ., 14 E. de J. 136. 
 
 A workman who causes his claim to be registered on the im- 
 movable on which his work is performed in order to secure a 
 privilege or hypothec under Art. 2013B, but neglects to bring 
 suit within the delay prescribed in the article, is not bound to 
 cause the registration to be cancelled at his expense. The owner 
 of the immovable must put him in default (en demeure) to sign 
 the discharge, attend to the cancelling and pay the cost. Ryry v. 
 Gariepy, 36 Que. S. C. 238. 
 
 The laborer's lien and that of the furnisher of materials 
 (article 2013 C. C. amended by 4 Edw. VII. c. 43), are distinct; 
 they are acquired and kept valid by different means ; the lien 
 for furnishing materials, notably, as different from that of the 
 laborer, is not liable to be set aside under the provisions of article 
 2013b C. C. The action provided in 2013b C. C. may be a per- 
 sonal action, nothing in the context indicating that it must be of 
 any other kind to preserve the lien of the creditor of the laborer ; 
 there must be a judgment against the debtor with recourse re- 
 served to maintain the lien. Tremblay v. Simard, (1909) D. B. 36 
 S. C. 398. 
 
544 THE, LAW OF MECHANICS' LIENS IN CANADA. 
 
 A house, even when leased and occupied by the lessee, does not 
 " become ready for the use to which it is destined " so long as 
 there ' is work to be finished, such as joining work and painting. 
 The delay of 30 days for registering the builder's preference or 
 privilege only begins to run from the eoinpletion of such work. 
 LeUllier, de St. Just v. Blamchette, 21 Que. K. B. 1. 
 
 Where article 2013b provides that a builders' and workmen's 
 privilege exists only for one year from the date of registration 
 unless a suit be taken in the interval, the suit required is a hypoth- 
 ecary action to enforce the privilege and a personal action against 
 the debtor does not suffice. The action to enforce a builders' 
 privilege under this article is a personal hypothecary action if the 
 property is still in the debtor's hands, or an action in declaration 
 of hypothec if it has passed into the hands of third parties. Demers 
 v. Byrd, (1912) 6 D. L. E. 807 (Quebec King's Bench), 41 Que. 
 K. B. 330. 
 
 A building has not become fit for the use intended for it, ac- 
 cording to the terms of this article, as long as any work in it is to 
 be done, even if it was inhabited by its owner, who had installed 
 in it a bar for his hotel. Brunswick-Balke Collendar Co. v. Bacette, 
 49 Que. S. C. 50. 
 
 A laborer who has worked at the macadamizing of a public 
 road cannot have a lien on that road, the latter being a part of 
 the public domain. Desrosiers v. Leedham, 49 Que. S. C. 33. 
 
 Where a privilege both by the law as it previously existed and 
 by the amending Act, is made to depend upon and date from its 
 registration, the effects of the registration of such privilege after 
 the coming into force of the amended statute are governed by the 
 provisions thereof. Therefore, the prescription applicable to a 
 builder's privilege registered after the coming into force of the 
 amended statute, 59 Vict. (Q.) c' 42, is that of one year from the 
 date of the registration. 
 
 In order to obtain the hypothecary privilege of a supplier of 
 material under this article, the memorial or bordereau registered 
 must state the cost of the materials furnished, apart from the cost 
 of the work done. 
 
 The fact that subsequently to the registration of a builder's 
 privilege, the person registering the same accepted notes for his 
 claim from the debtor and agreed to have the same renewed for a 
 term of three years, has not the effect of altering the conditions of 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 545 
 
 the privilege- or prolonging its existence beyond the period fixed 
 by law. Doherty, J., City of Monreal v. Lafebvre, (1898) K. J. Q. 
 14 S. C. 473. This judgment was confirmed in the Court of 
 Queen's Bench in Appeal, and is reported, E. J. Q. 19 Q. B. 282. 
 And the judgment of the Court of Queen's Bench in Appeal was 
 confirmed by the Privy Council. Lord Macnaghten, who delivered 
 the judgment, remarked that " their Lordships entirely concurred 
 in the judgment of the Court of Queen's Bench delivered by La- 
 coste, C.J., who adopted the reasoning of the Superior Court," 
 La Banque d'Bochelaga v. Stevenson, (1900) A. C. 600. 
 
 The thirty days provided for registry of the lien of a laborer, 
 workman or contractor, are computed from the time when the 
 construction of the building on which they have worked is ended, 
 and not from the date on which it was first used. Quintal v. 
 Bmard, (1901) 20 S. 0- 199. 
 
 See also La Banque Jacques Cartier v. Picard, (1900) Lange- 
 lier, J., 18 S. C. 502. ; 
 
 The registration of a builder's privilege, for work done at 
 the request of a person owning an immovable subject to a resolu- 
 tory condition entitling the vendor to demand the dissolution of 
 the sale by reason of failure to pay the price, ceases to have any 
 effect after the vendor has taken back the property under the 
 condition. La Tour v. L'Heureux, (1900) 16 Que. S. C. 485. 
 
 The words in this article concerning the privilege on immovable 
 with registration " unless a suit be taken in the interval, or unless 
 a longer delay for payment has been stipulated in the contract," 
 refer to an action by the creditor to recover his claim during 
 the year, and not to anything relating to the validity of the 
 privilege. Waxman y. Girouard, 24 Rev. Leg. 429. 
 
 A letter by a contractor to the proprietor notifying him that his 
 work is terminated, in the absence of any proof to the contrary, 
 will be considered as fixing the date upon which the building has 
 become ready for the purpose for which it is intended, and in 
 which the builder may register a privilege under this article. Weiss 1 
 v. Silverman, (1918) 24 Bev. Leg. 204. (Reversed by Supreme 
 Court of Canada) . 
 
 The signing and delivery of a document by one entitled to a lien 
 for material and labor, within the delay in which he had a lien on 
 the property without registration under this article, by which he 
 
 m.l. — 35 
 
546 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 renounces all legal privilege, is an absolute renunciation which 
 extinguishes such privilege. Weiss v. Silverman, 58 Can. S. C. E. 
 363, 47 D. L. E. 161, 
 
 " 201 3C. — The preservation of the privilege is subject to the 
 following conditions : — 
 
 " The laborer and workman must give notice in writing, or 
 verbally before a witness, to the proprietor of the immovable, that 
 they have not been paid for their work, at and for each term of 
 payment, due to them." 
 
 " Such notice may be given by one of the employees in the 
 name of all the other laborers or workmen who are not paid, but 
 in such cases the notice must be in .writing." 
 
 " The architect and builder shall likewise inform the proprie- 
 tor of the immovable, or his agents, in writing, of the contracts 
 which they have made with the chief contractor, within eight days 
 from the signing of the same." 
 
 Decisions Undeh Abticle 2013C. 
 
 The right of privilege is a strict right resulting from the law, 
 and whoever claims a privilege should scrupulously observe the 
 formalities prescribed by the law creating it. 
 
 The workman who claims a lien for his wages should inform 
 the owner of the' estate that he has not been paid for his work 
 " to and for each term of payment which is due him," and- should 
 give such notice at once on the expiration of the term; notice 
 given six days after the expiration of the term, and when the 
 owner had settled with his contractor is insufficient to preserve 
 the lien of the workman. The knowledge the owner should have 
 of the workman having been employed by his contractor cannot 
 take the place of the notice required by law. Wells v. Newman, 
 (1897) De Lorimier, J., 12 S. C. 216. 
 
 In' the matter of a lien the prescribed formalities are essential, 
 and should be strictly observed ; a builder desiring to preserve his 
 lien as such should give the owner of the immovable on which 
 he wishes to have a lien a notice in writing of the contract within 
 eight days from the date on which it was signed pursuant to the 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 54? 
 
 provisions of article 2013a C. C. Moreau v. Quimont, 8 Que. P. E. 
 424 (Loranger, J.). 
 
 A promise of sale of an immovable with delivery and actual 
 possession is equivalent to a sale thereof, and the notice to preserve 
 a mechanics' lien, articles 2013c and 2103, may be properly given 
 to the promissor — buyer ; such notices are not required under pain 
 of nullity, and he who has the right to give them may renounce it 
 and the recognition which he gives, in a petition to the court, of 
 the registration of such lien, is equivalent thereto. The disclaimer 
 made by a vendor of immovable property of a lien registered 
 against it, under reserve of a right to contest it, does not liberate 
 him from the obligation of guaranteeing his purchaser against it. 
 Lavoie v. Desrosiers, (1914) 46 Que. S. C. 89. 
 
 An action for workmen's privilege is of its nature hypothecary, 
 and is within the jurisdiction of the Superior Court, whatever the 
 amount claimed. Pontini v. Lacavalier, (191*5) 16 Que P. E. 371. 
 
 Workmen acquire a privilege on the immovable on which their 
 work is performed as regards the increased value thus given to it, 
 in a two-fold manner; (a) without registration for the period of 
 the duration of the work, or (b) by registration within thirty days 
 of the completion of the work for one year only, unless a suit be 
 brought in the interval to recover upon it. To secure such a 
 privilege the notices required by article 2013c must be given, 
 otherwise it does not accrue. When, therefore, a contractor pays 
 wages to laborers hired by a sub-contractor, for which he is not 
 liable and for which they have not secured a privilege, as afore- 
 said, no subrogation takes place and he cannot set up a claim 
 for the amount against the sub-contractor. Harris Manufactur- 
 ing Co. v. McGovern, S. C. 340 C. E. 
 
 The lien on immovables under article 2013 et seq. exists for 
 the benefit of workmen in the service of sub-contractors though no 
 notice of the sub-contract has been given to the owner. It is 
 sufficient if there is given to the latter a verbal notice before a 
 witness that the workmen have not been paid for each term of pay- 
 ment due them. Therefore, they can register their claims in the 
 manner and for the purposes provided for by article 2013c. Rous- 
 seau v. Toufin, Q. E. 32 S. C. 228. 
 
 The notice given by a sub-contractor after the expiration of 
 the delay of eight days prescribed by 2013c can not give rise to 
 the privilege foreseen by this article. 
 
548 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 The architect charged with the overseeing 'Of the construction 
 of a building is not the agent of the proprietor to receive service 
 of the prescribed notice. 
 
 Inability of a contractor to pay his workmen, avowed before 
 them and the owner, and the promise of the latter to pay them as 
 soon as the works are finished, is a verbal notice sufficient- to per- 
 mit the workmen to register a lien upon the increased value given 
 to the immovable, by their labor. -Laflamme v. Laplante, 51 Que. 
 S. C. 38. . ' 
 
 The formalities prescribed are essential and of strict right. 
 Moreau v. Guimont, 8 Q. P. E. 424. 
 
 The want, of notice to the owner within 3 days after the registra- 
 tion of the architect's lien does not affect the validity of this regis- 
 tration because no provision in the law meets the, case in which a 
 notice is not given. Brunswick Balhe Collender Co. v. Bacette, 
 49, Que. S. C. 50. - 
 
 Aeticle 2013D. 
 
 " 2013D. — In order to meet the privileged' claims of the 
 laborer. and workman, the proprietor of the immovable may retain 
 an amount equal to that which he has paid or will be called upon 
 to pay, according to the notices he has received, so long as such 
 claims remain unpaid." 
 
 Article 2013E. 
 
 "2O130E. — In the event of a difference of opinion between 
 the creditor and the debtor, with respect to the amount due, the 
 creditor shall, without delay, inform the proprietor of the im- 
 movable, by means of a written notice, which shall also mention 
 the name of the creditor, the name of the debtor, the amount 
 claimed, and the nature of the claim." 
 
 " The proprietor then retains the amount in dispute until noti- 
 fied of an amicable settlement or a judicial decision." 
 
 Article 2013F. 
 
 "2013F.— The sale to a third party by the proprietor of the 
 immovable or his agents, or the payment of the whole or a portion 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 549 
 
 of the contract price, cannot in any way affect the claims of per- 
 sons who have a privilege under Article 2013, and who have com- 
 plied with the requirements of Articles 2013A, 2013B 2013C 
 and 2103." 
 
 Aeticle 2013G. 
 
 "SS013G.— The supplier of materials shall, before delivery of 
 the materials, give notice in writing to the proprietor of the im- 
 movable, of contracts made by him for the delivery of materials, 
 and mention the cost thereof, and the immovable for which they- 
 are intended." 
 
 Decisions Undee Aeticle 2013G. 
 
 The person who furnishes building materials only acquires a 
 lien on the property for which they are intended by giving a 
 notice to the owner, before delivering them, in which he sets out 
 the contract for the materials, their cost and their intended designa- 
 tion. Carriere v. Sigouin, Q. E. 33 S. C. 423. 
 
 The privilege granted to the supplier of materials by article 
 2013 of the Civil Code as replaced by 59 Vict. e. 42, s. 2, and 
 amended by 4 Edw. VII. c. 43, is not distinguishable from the 
 hypothecary privilege given by article 2013b and that consequently 
 the action of the supplier in declaration of privilege cannot be 
 maintained, if it be not alleged and proved that notice has been 
 given to the owner of the immovable pursuant to article 2013g 
 C. C, of the contract for the materials and before delivery. Carriere 
 v. Milot, 15 E. de J. 89. 
 
 The lien of the person who supplies materials for an immov- 
 able of which they become part only arises on observance of the 
 necessary condition of giving notice to the owner before delivery 
 specifying the contracts under which they are supplied, their cost 
 and describing the immovable for which they are intended. Carriere 
 v. Sigouin, Q. E. 18 K. B. 176, affirming 33 S. C. 423. 
 
 The materialman who registers his lien must give notice of the 
 registration of the owner of the property subject to the lien within 
 three days of the registration on pain of absolute nullity. ' Duncan 
 v. Brunelle, 10 Q. P. E. 268. 
 
 Article 2013g C. C. which obliges the materialman, for the 
 preservation of his lien, to give notice of it to the owner of the 
 
550 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 property on which the materials are used, does not apply where 
 the materialman deals directly with the owner of the property. 
 
 The materialman is not bound to give notice to one who at 
 the time of the delivery of the materials had made to a third party 
 a formal agreement for sale, before the completion of the work. 
 Buncm v. Brunette, 10 Q. P. E. 268. 
 
 The person who furnishes materials for construction of a 
 building acquires a lien for his debt only on the essential condition 
 of giving to the owner of the land, before delivery, notice of the 
 contract to furnish containing a statement of the cost and specify- 
 ing the immovable for which they are intended. W. Rutherford 
 Sons Company v. Racicot, Q. B. 19 K. B. 428. Cf. Garriere v. 
 Sigouin, Q. E. 18 K. B. 176. 
 
 The promise of sale of the land by the owner to the contractor 
 to whom the materials have been sold and delivered which is not 
 Tegistered, is of no effect as against third parties in whatever relates 
 to the creation of the lien. W. Rutherford & Sons Co. v. Racicot, 
 Q. E. 19 K. B. 428. 
 
 The notice required by article 2013g, 59 Vict. c. 46, s. 2, to give 
 to the person furnishing materials for a building a lien under 
 the first paragraph of article 2013, and the hypothec provided for 
 by article 2013Z is necessary whether he deals directly with the 
 owner or by sub-contract from the contractor. Racicot v. Wm. 
 Rutherford & Sons Co., Q. E. 36 S. C. 97 Ct. Eev. ' 
 
 Where a privilege, both by the pre-existing law and by the 
 statute amending the same, is made to depend upon and to date 
 from its registration, the effects of the registration of such, privilege 
 effected only after the coming into force of the amending statute 
 are governed, as to the duration of the privilege and the time 
 by which it is prescribed, by the provisions of the amending Act; 
 consequently the prescription applicable to a builder's privilege 
 which was only registered after the coming into force of the 
 amending Act, 59 Vict. (Q) c. 42, is that of one year from the 
 date of the registration, although the work for which .the privilege 
 was sought was done before the amending Act came into force. 
 
 In order to obtain the hypothecary privilege of a supplier of 
 materials under article 2013 (1) of the Code, the formalities pre- 
 scribed by law, as to notice to the proprietor, must be complied 
 with, and the memorial or bordereau mentioned in article 2013 
 
QUEBEC UW RELATING TO MECHANICS' LIENS. 551 
 
 C. C, must state the cost of the materials furnished. La Banque 
 d'Hochelaga v. Stevenson, 9 Que. Q. B. 282. 
 
 Held, affirming the above decision, on appeal to the Judicial 
 Committee of the Privy Council, that under the Quebec Civil 
 Code, as amended by '59 Vict. c. 42, a builder's privilege is limited 
 to one year from the date of registration thereof ; and with regard 
 to an hypothecary privilege conferred on suppliers of materials, it 
 only arises on notice being given to the proprietor under article 
 2013g and registered under article 2103, and lapses unless the 
 prescribed legal proceedings are taken within three months from 
 the date of notice. La Banque d'Hochelaga v. Stevenson, B. J. Q. 
 9 Q. B. 282, (1900) A. C. 600. 
 
 An action in which a materialman claims from the contractor 
 the price of materials furnished by him, and asks against the 
 owner of the land upon which buildings have been erected with the 
 plaintiff's materials that the land shall be declared to be charged 
 with the amount Of the plaintiff's claim unless the owner prefers 
 to pay the price of the materials, will be dismissed upon demurrer 
 by the owner if it does not appear that the plaintiff has begun his 
 action within the three months following the notice mentioned in 
 article 2013g, O. C. McLaren v. Loyer, (1901) 3 Q. P. B. 60, 
 20 C. L. T. 277. 
 
 See also Paque'tte v. Mayer, (1900) 18 S. C. 563, cited ante, 
 under art. 2013, and Montmorency Cotton Mills Go. v. Gignac, 
 (1901) 10 Que. Q .B. 158, cited ante, under article 2013. See also 
 Charpenter v. Lapointe, (1901) 7 B. de J. 92 (Pagnuelo, J.), and 
 Harris v. Qharbonneau, (1901) 7 B. de J. 119, B. J. Q. 25 S. C. 
 180 (Pagnuelo, J.). 
 
 The notice required by this article is essential to the validity of 
 the lien. 
 
 An architect not specially authorized has no power to receive 
 from a materialman the written notice which should be given to 
 the owner to create a lien, especially if the architect is at the same 
 time one of the contractors on the building. Duncan Company v. 
 Desjardins, 51 Que. S. C. 71. 
 
 Builders and furnishers of material cannot acquire any lien 
 upon an immovable possessed under agreement for sale except 
 by giving notice to the owner of the immovable in conformity with 
 articles; this notice is an essential condition of the '■lien, which 
 
552 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 can only be claimed by following strictly the formalities imposed 
 by law. Kalmanovitch v. Fragile, (1917) 52 Que. S. C. 171. 
 
 Under articles 2013-2013Z, no delay is fixed for registration of 
 the privilege of a supplier of materials, and the latter has no 
 priority in respect of his hypothecary privilege over a purchaser 
 of the land who registered his title prior to the registration of the 
 privilege. Emard v. Gauthier, (1916) 29 D. L. E. 315, 49 Que. 
 S. C. 413. 
 
 Where a proprietor cancels the contract made with a contractor 
 and pursues the work himself and employs the same workmen, he 
 is to be considered as building for himself and as being substituted 
 for the contractor. Under these circumstances one of the workmen 
 may register a lien upon the property for work done and for the 
 supply of materials without giving the notice required by 2013c 
 and 2013g, the notice provided for under 2013 being sufficient. 
 Temple Baptist Church v. Terras, (1915) 48 Que. S. C. 84. 
 
 Aeticle 2013H. 
 
 " 201 3H, — In order to meet the privileged claims of the sup- 
 pliers of materials, the proprietor of the immovable retains, on 
 the contract price, an amount equal to that mentioned in the no- 
 tices he has received." 
 
 ' Article 20131. 
 
 " 20131.- — The notices mentioned in article 2013G have the 
 effect of an attachment by garnishment on the contract price. 
 
 "Within the three months following the notice given in ac- 
 cordance with article 2013G, the interested parties must take legal 
 proceedings to have the debtor condemned and the ■ seizure de- 
 clared valid, otherwise the latter lapses; and, to such suit, the 
 proprietor of the immovable must be made a party." 
 
 See McLaren v. Villeneuve, 11 Q. B. 131. 
 
 Where a garnishment becomes void owing to the 'creditor fail- 
 ing to take action within the three months following the notice, 
 the owner is free from the obligation imposed on him by article 
 2013h y of retaining, on the price of the building contract, an 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 553 
 
 amount equal to that of the privileged claim. Noiseaux v. La Cite 
 de Lachine, (1918) 24 Eev. Leg. 491. 
 
 The builder is not subject to paragraph 2 of this article. 
 Letellier de St. Just v. Blanchette, 21 Que. K. B. 1. 
 
 Article 2013J. 
 
 " 2013J. — In the event of the proprietor of the immovable 
 erecting the building himself without the intermediary of any, 
 contractor, the notices mentioned in article 2013G- may be given 
 to the person or persons who lend or may lend money to the person 
 building, and thereupon the latter shall, mutatis mutandis, be 
 subject; to the provisions of the preceding articles. 
 
 Article 2013K. 
 
 - " 201 3K. — No transfer of any portion of the contract price 
 or of the amount borrowed, as the case may be, either before or 
 during the execution of the work, can be set up against the said 
 suppliers of materials, nor can any payment, exceeding the cost 
 of the work done, according to a certificate of the architect or 
 superintendent of the works, affect their rights." 
 
 Decisions Under Article 2013K. 
 
 A valid privilege may be obtained by registration of a claim for 
 building materials furnished, although the person to whom they 
 were furnished was in possession of the land only under an unreg- 
 istered conditional promise of sale, and the registration of the 
 privilege was made only with such formalities as would be suffi- 
 cient if he had been the absolute owner ; but upon violation of the 
 conditions and the determination of the right of the conditional 
 purchaser to obtain a title, the privilege in question, as well as all 
 acts depending upon a right of property in the conditional pur- 
 chaser, becomes null and void; and therefore the property cannot 
 be seized and brought to sale under a judgment against the latter, 
 to which the conditional vendor was not a party. Metivier v. Wand, 
 (1898) Q. E. 13 S. C. 445. (Archibald, J.). 
 
554 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Article 2013L. 
 
 " 2013L. — On notice given to the proprietor in virtue of ar- 
 ticle 2013G, and registered according to article 2013, the sup- 
 pliers of materials shall have a hypothecary privilege which shall 
 rank after: the hypothecs previously registered and the privileges 
 created by this Act." 
 
 Decisions Under Article 2013L. 
 
 Although the right of suppliers of materials is called in article 
 2013Z in the French version "un droit d'hypotheque," and in the 
 English version " a hypothecary privilege," the right is neverthe- 
 less of the nature of a privilege and not of the nature of a hypothec, 
 and all suppliers for the same building who have availed them- 
 selves of the privileges of the article and registered their claims, 
 rank concurrently. Jamieson v. Charbonneau, 17 Que. S. C. 514. 
 (Archibald, J.). 
 
 Where a contractor's lien has been registered by the husband 
 of the claimant, duly authorized to this effect, it fulfils the re- 
 quirements of the law that the lien " shall be registered by the 
 claimant himself. Camirand v. Dwramd, 10 Q. P. E. 174. 
 
 See also City of Montreal v. Lefebvre, (1898) E. J. Q. 14 S. C. 
 473 (Doherty, J.), and reference to decision of that case, sub nom. 
 La Banque d'Rochelaga v. Stevenson, under article 2013g. 
 
 See also MacLaren & Villmewve, (1900) E. J. Q. 11 Q. B. 131, 
 contra Court of Eeview, 1889 ; Lalonde v. LaBelle, E. J. Q. 16 S. C. 
 573, cited ante, under article 2013. 
 
 On the subject of payment of workmen and in connection with 
 it, reference might be had to articles 1697A to 1697D of the Civil 
 Code, both. inclusive. These four articles refer to the payment of - 
 workmen employed by builders or contractors and the manner in 
 which they may secure their claim by giving notices to the 
 proprietor of the land. 
 
 No delay is stated within which the supplier of materials must 
 register his claim against a building, when he delivers the material 
 directly to the proprietor. In the event of the sale of the building, 
 and the registration of his deed by the purchaser before registration 
 by the supplier of materials of his claim, the latter loses his privilege. 
 Emard v. Oauthier, (1913) 20 E. de J. 138. 
 
quebec law relating to mechanics i liens. 555 
 
 Registration of Privilege of Builders, Etc. 
 Civil Code 2103. 
 
 " 2103. — The privilege of the persons mentioned in article 
 2013 dates, in the eases mentioned in the first clause of article 
 2013B, only from the registration, within the proper delay, at 
 the registry office of the division in which is situated the immov- 
 able affected by the inscription, of a notice or memorial drawn 
 up according to form A, with a deposition of the creditor, sworn 
 to before a justice of the peace or a commissioner of the Superior 
 Court, setting forth the nature and amount of the claim, and 
 describing the immovable so affected." 
 
 " (2) In registering such memorial, it is sufficient to mention, 
 opposite the official number of the cadastre which describes the 
 immovable, if the cadastre be deposited, or opposite the title of 
 the registered deed, if the cadastre be not yet deposited, the name 
 of the claimant and the amount due at the time the memorial is 
 filed." 
 
 " (3) The memorial shall be made out in duplicate, one copy 
 of which shall remain in the archives of the registry office, and the 
 other be delivered to the creditor with the registrar's certificate 
 thereon." 
 
 " (4) The creditor shall, within three days from the registra- 
 tion of the memorial, give a written notice to the proprietor of the, 
 immovable, or to his agents, if he cannot be found." 
 
 Decisions Under Articles 2103 and 2168. 
 
 See Doutre v. Greene, cited under article 2013. 
 
 In Quebec, article 2168 of the Civil Code must be strictly com- 
 plied with in respect to the description of an " immovable " in the 
 notice for registration of a workman's " privilege." A description 
 as part of lot 4101 of the cadastre of the Parish of Montreal, 
 omitting the conterminous properties, does not comply with said 
 article, which provides that in any place where the official plans are 
 in force the true description of a part of a lot is by stating that 
 it is part of a certain official number upon the plan and in the 
 
556 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 book of reference, and mentioning who is the owner and the 
 properties conterminous thereto. Such notice, therefore, did not 
 create any privilege. Therien v. Menault, (1902) 21 S. C. 452. 
 
 A builder is without privilege on the proceeds of real estate, 
 if he has not complied with the formalities prescribed by 4 Vfct., 
 c. 30, ss. 31 and 32 (C. S. L. C. 352-3), requiring a proces-verbal 
 to be made before the work is begun ; establishing the state of the 
 premises in regard to the work about to be made ; requiring also a 
 second proces-verbal within six months after the completion of the 
 work, establishing the increased value of the premises; requiring 
 also that the second proces-verbal, establishing the acceptance of 
 the worl^ be registered within thirty days from the date of such 
 second proces-verbal, in order to secure such privilege: Berthelot, 
 J., 1861, Clapin v. Nagle, 6 L. C. J. 196, 10 E. J. E. Q.^ 271, 
 E. J. Q. 1 C. B. 332. 
 
 The person who has advanced moneys for the construction of a 
 division wall between him and bis neighbor cannot claim a privilege 
 when the neighboring property is sold by the sheriff as against the 
 hypothecary creditors of said land, if he has not observed the 
 formalities required by the registry ordinance, C S. L. C. c. 37, s. 
 26, s.-s. 4, even though the value of the land has been augmented 
 by the construction of the wall. 1863, Taschereau, J., Stillings v. 
 McGillis, 14 L. C. E. 129, 12 E. J. E. Q. 342, E. J. Q. 1 Q. B. 332. 
 
 The possessor in good faith who has put up buildings on the 
 land of another is not held, in order to be paid for his work, to 
 establish that he has complied with the requirements of articles 
 2013 and 2103 of the Civil Code. These articles apply only to the 
 builder or other workmen who put up buildings for the owner of 
 the land under a contract with the proprietor. 1904, Gagne, J., 
 Chmic Hardware Company v. Laurent, 1 E. de J. 278; 1892, 
 Supr. Court of Canada, Dufresne & Prefoniame, 21 S. C. E. 607, 
 16 L. N. 48. See also the case of Daniel v. Macduff, eited under 
 article, 2013 of the' Civil Code. 
 
 At different times in recent years essays have appeared in law 
 periodicals on this subject in the Province of Quebec, and among 
 these the more notable, perhaps, are those written by Mr. Baker, 
 Advocate, 1 Eev. Leg. N. S., page 281, by Mr. Belanger, Notary, 
 in the same volume, page 376, by Mr. Baudion, Notary, 6 Eev. Leg. 
 N". S., 273, and by Mr. Lafontaine, K.C., in the second volume of 
 La Themis, page 161. 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 557 
 
 The whole subject has been treated by. Mr. Pelissier, K.C.,. of 
 the Quebec Bar in a short treatise' entitled " Architects et Entre- 
 preneurs." 
 
 The law as stated in articles 2013 to 2013k has been in force 
 since January, 1894. It is said to be doubtful whether the large 
 class of workmen and builders, whom it was intended to benefit, 
 derive any substantial advantage from it. Some legal writers in 
 Quebec do not regard this' law as beneficial, and point out that 
 in a country like ours, still comparatively new and requiring capital 
 from abroad, everything that diminishes the security offered to an 
 intending lender necessarily makes it more difficult for the pro- 
 prietor of land to borrow. He may have thousands of dollars of 
 land value to offer, but, as the lender will naturally require a first 
 mortgage, applications for loans will frequently be refused be- 
 cause the capitalist sometimes considers that a first mortgage can- 
 not secure him with certainty, since builders, contractors, archi- 
 tects and workmen will be privileged for their claims in prefer- 
 ence to his. 
 
 The difficulty is frequently overcome by waiting until thirty 
 days after the completion of the buildings, but this delay is in 
 itself an objection, hampers business and delays loans. 
 
 It is, claimed that this legislation has sometimes stood in the 
 way of loans on vacant real estate, and thus prevented building 
 operations and, therefore, there is a difference of opinion in the 
 Province of Quebec in respect to the beneficial effect of the present 
 law in its relation to .builders, contractors, architects and workmen. 
 In the other provinces of Canada, while there was formerly con- 
 siderable diff erence of opinion as to the advantage of mechanics' 
 lien legislation, there is to-day, as a result of important amend- 
 ments to the original legislation, general satisfaction with the 
 present legislation, which is regarded on the whole as decidedly 
 beneficial' to, the classes for whom it was specially intended. See 
 observations in Chapter I., at p. 8. 
 
 A lien of a materialman registered after the coming into force 
 of the amending Act is governed by the latter- Act, although the 
 materials for which the lien is sought were delivered before the 
 Act came into force. Cantm v. Chevalier, 52 Que. S. C. 97. 
 
558 the law of mechanics' liens in canada. 
 
 Lien of Workmen on Movable Phopeety. 
 
 The workman by the law of Quebec has a secured right of re- 
 tention in the thing which he has improved by his work, or a 
 right to be paid by privilege out of the priee. The Civil Code 
 contains several articles dealing with these rights- 
 
 In some cases there is more than a right of retention or of 
 privilege. For instance, a right of ownership is recognized in the 
 workman who has been provided with materials by his employer 
 in some cases and these cases, as stated in article 429 of the Code, 
 are entirely subordinate to the principles of natural equity. The 
 Code then proceeds- to enumerate a set of rules which are obligatory 
 in the cases where they apply, and serve as examples for cases not 
 provided for according to circumstances. The first of these rules 
 is contained in article 430 of the Code, which reads as follows : — 
 
 " 430. — When two things belonging to different owners have 
 been united so as to form a whole, although they are separable and 
 one can subsist without the other, the wholV belongs to the owner 
 of the thing which forms the principal part, subject to the obli- 
 gation of paying the value of the other thing, to him to whom it 
 belonged." 
 
 And the commentators of the corresponding article of the Code 
 Napoleon lay it down that a fortiori the principle of article 430 
 is to apply when the things are not separable without inconvenience 
 or cannot be separated at all. 
 
 The pulpwood contractor who has employed sub-contractors, 
 and who has been obliged to cart the blocks from the forest to the 
 river on account of the failure of one of his sub-contractors, can- 
 not oppose his alleged privilege for having hauled these blocks or 
 for having kept the common pledge to the privilege of the wood- 
 cutter for having made the blocks. 
 
 Under these circumstances the contractor would not even have 
 any privilege for he 'could only fulfil his contract with the company 
 which has employed him. 
 
 In any event if, one of the contractors had a privilege he could 
 not exercise it by contesting the seizure conservators of the wood- 
 cutters and demanding main levee from them, but only by produc- 
 ing an opposition afin de conserver on the proceeds of the sale 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. 559 
 
 of an execution of the S. C. of the wood-cutter. Marinier v. 
 Therrien et al., 12 E. de J. 488 (Taschereau, J.). 
 
 Notice of registration of a lien is for the proprietor only, and 
 he may waive it. " Though a lien registered upon a property has 
 been transferred as collateral security, the right of action of the 
 transferor still exists and can be continued in his name. Lavoie v. 
 Derosiers, (1913) 46 Que. S. C. 405. 
 
 An action by a contractor against an owner for the price for 
 which the defendant executed a deed of obligation in favor 
 of the plaihtiff, is _ an action based upon a hypothec and not 
 upon a lien; and if no document is produced showing that a 
 lien was registered against the immovable, and that notice of 
 the lien was given to the owner, the judgment will be for dis- 
 missal only reserving the rights of the plaintiff. Choquette v. 
 Couture, 17 Que. P. E. 480. 
 
 The want of notice to the owner within three days after the 
 registration of an architect's lien does not affect the validity of this 
 registration because no provision in the law meets the case in 
 which a notice is not given. Brunswick Balhe Collender Co. V. 
 Bacette, (1916) 49 Que. S. C. 50. 
 
 " 431. — That part is reputed to be the principal one to which 
 the other has been united only for the use, ornament or comple- 
 tion of the former." 
 
 The text of the Article 567 of the Code Napoleon is similar to 
 article 431 of the Civil Code of Quebec, and the French commenta- 
 tors agree that where a, person has written, printed, painted or 
 engraved on paper, linen or other material not 'belonging to him, the 
 proprietor of the material would only have a right to his' material 
 or to damages' where there were any. 
 
 -The next rule depends on the relative value of the thiflgs united 
 together. 
 
 "430. — However, when the thing united is much more valu- 
 able than the principal thing, and has been employed without the 
 knowledge of its owner, he may require that the thing so united 
 be separated in order to be returned to him, although the thing to 
 which it has been joined may thereby suffer some injury." 
 
 Article 433 deals with a case where it is impossible to say which 
 is principal or which is accessory. 
 
560 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 "433. — If two things united so as to form a whole, one can- 
 not be considered as the accessory of the other, the more valuable, 
 or, if the values be nearly equal, the more considerable in bulk is 
 deemed to be the principal." 
 
 "434. — If an artisan or any other person have made use of 
 any material which did not belong to him to form a thing of a 
 new description, whether the material can resume its previous 
 form or not, he who was the owner of it has a right to demand the 
 thing so formed, on paying the price of the workmanship." 
 
 Decisions Under Article 434. 
 
 Workmen and laborers in a quarry have no privilege on the tools 
 serving in the work nor on a stone taken out of the quarry and cut, 
 especially when the tools and this stone did not belong to the 
 man who employed the workman : 1878, Court of Keview, Prevost 
 v. Wilson, 22 L. C. J. 70, 1 L. N". 232. (The other decisions 
 under this article relate to the cutting of wood or trees on. land of 
 another, without authority, and do not come within the purposes 
 of this compilation.) 
 
 Article 440 oe the Code. 
 
 "440. — In all cases where a proprietor whose material has 
 been employed without his consent, to make a thing of a different 
 description, may claim the proprietorship of such thing, he has 
 the choice of demanding the restitution of his material in the 
 same kind, quantity, weight, measure and quality, or its value." 
 
 Article 441 of the Code. 
 
 "441. — Whoever is bound to give back a movable object upon 
 which he has made improvements or additions for which he is 
 entitled to be reimbursed, may retain such object until he has 
 been so reimbursed, without prejudice to his personal remedy." 
 
 The workman, who has made improvements to a movable thing 
 for which improvements he has a right to be reimbursed, may retain 
 
QUEBEC LAW RELATING TO MECHANICS'' LIENS. 561 
 
 the object until he has been reimbursed, and he has in the thing a 
 right of pledge. The person who so retains a thing for improve- 
 ments made by, him, as 'pledgee, opposes the sale of the 'thing re- 
 tained or pledged: Belleau v. Pitou, (1887) 13 Q. L. R. 337, 11 
 L. N. 86 (Cassault, J.). 
 
 The printer has a lien oh manuscript given him to be printed, 
 for the costs of the printing. Dussmlt v. F-ortin, (1893) R. J. Q., 
 4 S. C. 304 (Andrews, J.). 
 
 " 1993. — Privileges may be upon the whole of the movable 
 property, or upon certain movable property only." 
 
 " 1994. — The claims which carry a privilege upon movable 
 property are the following, and where Several of them come to- 
 gether they take precedence in the following order, and according 
 to the rules hereinafter declared, unless some special law dero- 
 gates therefrom." 
 
 " 1. Law costs and all expenses incurred in the interest of the 
 mass of the creditors; 
 
 "2. Tithes; 
 
 " 3. The claims of the vendor ; 
 
 " 4. The claims, of creditors who have a right of pledge or of 
 retention; 
 
 " 5. Funeral expenses ; 
 
 "6. The expenses of the last illness; 
 
 " 7. Municipal taxes ; 
 
 " 8. The claim of the lessor in accordance with article 2005 ; 
 
 " 8a. The claim of the owner of a thing lent, leased, pledged 
 or stolen, in accordance with article 2005A ; 
 
 " 9. Servants' wages and those of employees of railway com- 
 panies engaged in manual labor, and sums due for supplies of 
 provisions ; 
 
 " 10. The claims of the Crown against persons accountable for 
 its moneys; 
 
 " The privileges specified under the numbers 5, 6, 7, 9 and 10 
 extend to all the movable property of the debtor, the others are 
 special, and affect only some particular objects." 
 
 Article 1994 C. O. does not have the effect of making the owner 
 of the wood a personal debtor of the lumberman who has worked 
 
 m.l. — 36 
 
562 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 in the service of another person and that the condemnation of the 
 appellant as such personal debtor jointly and severally with the sub- 
 contractor, plaintiff's employee, must be set aside. , Laurentide 
 Paper Co. v. Pompre, 15 E. de J. 278. 
 
 In the case of the privilege given by article 1994 C. C. the 
 woodcutter who works for a contractor cannot issue a writ of 
 saisie conservatoire until the owner of the wood has received the 
 prescribed notice. 
 
 As this privilege has no legal existence before the proprietor 
 of the wood has received the prescribed notice, the seizure of the 
 wood is premature, illegal and void. Carrol, J., Houle v. Couture 
 et al, 8 Q. P. R. 398. 
 
 The persons mentioned in article 1994 0. C. are not confined to 
 those Whose remuneration is fixed according to the time they work, 
 but also includes all persons who engage to cut wood for so much a 
 cord.' St. Onge v. Boss, 7 Q. P. E. 108 (Tait, A.C.J.). 
 
 AKTICLE 2001 OF THE CODE. 
 
 " 2001. — Creditors having a right of pledge or of retention 
 rank according to the nature of their pledge or of their claim. 
 
 " The following is the order among them : — 
 
 " Carriers ; 
 
 " Hotel keepers ; 
 
 " Mandataries or consignees ; 
 
 " Borrowers in loan for use ; 
 
 " Depositaries ; 
 
 " Pledgees ; 
 
 "Workmen upon things repaired by them,. and persons having 
 a privilege in virtue of article 1994 C; 
 
 " Purchasers against whom the right of redemption is exercised, 
 for the reimbursement of the price and the moneys laid out upon 
 the property; 
 
 " This privilege cannot, however, be exercised, unless the right 
 is still subsisting, or could have been claimed at the time of the 
 seizure, if the things have been sold." 
 
 See The Inverness By. v. Canadian Lines, 29 S. C. 151. 
 
 The builder of a vessel to be delivered complete is not a 
 " dernier equipeur " within the meaning of article 931 C. 0. P. with 
 
QUEBEC LAW RELATING TO MECHANIC^' LIENS. 563 
 
 respect to the price to be paid for such vessel, but such builder is 
 protected by the builder's privilege to receive payment of the price. 
 The builder's privilege of retention until payment of the price 
 is lost by voluntary delivery. Eayden v. Meunier, 13 E. de J. 
 149. (Archibald, J,). 
 
 4 EDW. VII. C. 43. 
 
 An Act to Amend the Civil Code, Eespecting the Privileges 
 
 of Architects, Builders, Workmen and Suppliers 
 
 oe Materials. 
 
 (Assented to 2nd June, 1904.) 
 
 HIS MAJESTY, with the advice and consent of the Legisla- 
 tive Council and of the Legislative Assembly of Quebec, 
 enacts as follows: — 
 
 1. Article 2013 of the Civil Code, as replaced by the Act 59 
 Victoria, chapter 42, section 2, is amended: — 
 
 (a) By striking out the word "and" after the word. 
 " architect " in the first and sixth lines, and 
 
 (b) By adding, after the word "builder," in the first and 
 sixth lines, the words "and the supplier of materials." 
 
 2. Article 2013a of the said Code, as enacted by section 2 of the 
 said act, is amended by adding thereto the following paragraph :— 
 
 " 5. The supplier of materials." 
 
 By Act of the Quebec Legislature' (7 Geo. V. c. 52, s. 1), para- 
 graph 7 of Article 2009 was replaced by the following :• — 
 
 7. The claim of the workman, supplier of materials, builder 
 and architect, subject to the provisions of Article 2013 and follow- 
 ing: 
 
 By section 2, articles 2013, 2013a to 2013Z inclusive of the Civil 
 Code, as enacted, replaced or amended, as the case may be, by Acts 
 of 29 Vict. c. 42, and 4 Edw. VII. c. 43, are repealed. By section 
 3, the following articles are inserted in the Civil Code in the place 
 and stead of the articles repealed by section 2 : — 
 
564 THE LAW OE MECHANICS' LIENS IN CANADA. 
 
 " 2013. — The workman, supplier of materials, builder and 
 architect have a privilege and a right of preference over all other 
 creditors on the immovable, but only upon the additional value 
 given to such immovable by the work done or the materials. 
 
 " 2013A. — The word " workman " includes the artisan, the 
 laborer and generally every one who makes his living by manual 
 labor. The words " supplier of materials " include the supplier not 
 only of raw materials but also of every manufactured object which 
 enters into any construction. The word " builder " includes both 
 contractor and sub-contractor. The words " end of the work " 
 mean the date at which the construction is ready for the use for 
 which it is intended. 
 
 " 2013B. — In case the proceeds are insufficient to pay all the 
 claims, the additional value given to the property is established by 
 a relative valuation ordered by a judge, upon summary petition 
 presented by any interested party, after such notice as the judge 
 deems necessary. 
 
 The judge appoints, in his discretion, one or three experts, who 
 proceed with- the valuation, and make, their return within the 
 delay and according to the formalities ordered. On the question 
 Of valuation, their decision, after homologation by the judge, is 
 final and unappealable. 
 
 "2013C. — Such privileges rank as follows, — 1. The workman; 
 2. The supplier of materials ; 3. The builder ; 4. Thfe architect. 
 
 " 2013D. — The workman has a privilege, by reason of the work 
 he has done on an immovable, for arrears up to twenty days, whether 
 he was engaged by the proprietor or by a contractor. No formality 
 is necessary to secure this privilege. Such privilege shall subsist 
 for thirty days after the end of the work, and need not be registered. 
 But the privilege is extinguished On failure of the workman to 
 sue his debtor within such delay, and to bring the proprietor into 
 the case, as well as the registrar of the division in which the pro- 
 
QUEBEC LAW RELATING TO MECHANICS' LIENS. ' 565 
 
 periy is situated, in order to give notice of such privilege to the 
 latter, who must make note of the suit in the index of immovables. 
 During the whole period and up to the end of the work, the pro- 
 prietor is entitled to retain, on the contract price, an amount 
 sufficient to pay the privileged claims. Any amount fixed by the 
 sworn certificate of the architect or engineer in charge of the work 
 shall be deemed sufficient, and, failing such architect or engineer, 
 a like certificate may .be given by a licensed architect or a duly 
 qualified engineer of this Province, who may be agreed upon by 
 the interested parties, or, failing such agreement, appointed by a 
 judge of the Superior Court. The builder may not exact, any 
 payment on the contract price before he furnishes to the pro- 
 prietor a statement, under his signature-, of all amounts due by 
 him for labor and materials. Several workmen may join in one 
 action, the costs of which shall be those of a personal action for 
 the amount claimed. 
 
 2013E. The supplier of materials has a privilege on the im- 
 movable in the construction of which the materials supplied to 
 the proprietor or builder have been used, or for the construction 
 of which they have been specially prepared. Such privilege, how- 
 ever, shall take effect only upon the registration of a notice, given 
 to the proprietor or his representative, informing him of the 
 nature and costs of 'the materials to be supplied, as well as the 
 cadastral number of the immovable property affected, and shall 
 apply only to those furnished, or those specially prepared and not 
 delivered, for the immovable in question, after receipt of such 
 notice by the proprietor, and its registration. In order to meet 
 the privileged claims of the supplier of materials, the proprietor 
 of the immovable is entitled to retain on the contract price an 
 amount equal to that mentioned in the notices he has received. 
 Such privilege is extinguished on failure of the supplier of ma- 
 terials to sue his debtor within thirty days after the end of the 
 work, with the same formalities as those prescribed for the claim 
 of the workman. 
 
566 THE LAW OF MECHANICS' LIENS' IN CANADA. 
 
 The supplier of materials is also entitled, in case of the insol- 
 vency of the proprietor or builder, or in case of failure to make 
 payment at the periods agreed upon, to revendicate the materials 
 he , has supplied, but which have not yet been incorporated into 
 the building. 
 
 2013lP. The builder, or the architect, has a privilege on the 
 immovable for the work he has done as such, provided that before 
 the expiration of thirty days after the end of the work, he regis- 
 ters by memorial, at the registry office of the division in which 
 ' the property is situated, a statement of his claim. Notice of such 
 registration must be given, within the same delay, to the proprie- 
 tor. Such privilege is extinguished after six months following the 
 date of the end of the work, unless the creditor takes an action 
 against the . proprietor -to preserve it. In such action; the regis- 
 trar must be called into the case in order to give him notice of 
 such action,. and to cause him to note the same in his index of 
 immovables. 
 
 In the case where the builder has- had the work done, either 
 wholly or in part, by sub-contract, if the sub-contractor has noti- 
 fied the proprietor of his sub-contract, such sub-contraetor shall 
 have a privilege upon the immovable for all the work done after 
 such notification, piovided that 'before the expiration of thirty days 
 after the end of the work he registers a statement of his claim. 
 Such privilege is subject to the same formalities as that of the 
 builder or architect, in so far- as concerns its creation and extinc- 
 tion. The proprietor, in case the sub-contractor has notified him 
 of his sub-contract, is entitled to retain, on the contract price, an 
 amount sufficient to meet the privileged claim of the sub-contractor ; 
 and any amount fixed by a certificate given in compliance with the 
 formalities contained in article 3013d shall be deemed sufficient. 
 
 By section 4 of the Act, article 2103 is amended: (a) By 
 repealing the first paragraph thereof, and the form A mentioned 
 therein, and by replacing the said first paragraph thereof by the 
 following : — 
 
 2103 1. The privilege of every person, except the workman, 
 mentioned in article 2013, is created and preserved by registration 
 
QUEBEC LAW RELATING TO MECHANICS' WENS. 567 
 
 within the proper delay at the registry office of the division in 
 which. the immovable is situated, of a notice or memorial, drawn 
 up in the form of an affidavit of the creditor or his representative, 
 sworn to before a justice of the peace, a commissioner of the 
 Superior Court, or a notary, setting forth the name, occupation 
 and residence of the creditor, the nature and amount of his claim, 
 and the cadastral number of the immovable so affected; 
 
 (b) By replacing paragraph 4 thereof by the following: — 
 
 4. After the expiration of six months from the date of regis- 
 tration of any privileged claim or from the date of the end of 
 the work, whichever be the latest, without an action having been 
 taken to preserve it, any interested party may cause the registrar 
 to radiate such claim by filing with him a written application to 
 that effect, supported by an affidavit of the expiry of such delay, 
 and served on the priviliged creditor or his representative not later 
 than eight days prior to such filing. 
 
 5. In the event of an action having been taken, the registrar is 
 bound to radiate the registration of the claim upon the filing with 
 him of a judgment dismissing the action, or other order of the 
 Court, ordering him to do so, or of a certificate from the prothono- 
 tary establishing that the action has been discontinued. 
 
 By section 5 of the Act, it is enacted that said Act shall 
 not affect privileges legally acquired under the articles of the Civil 
 Code repealed by section 2. Such privileges legally acquired, 
 shall remain subject to the same laws until they are extinguished. 
 
 By Act 4 Geo. V. c. 64, s. 1, article 1994<Z, was inserted in the 
 Civil Code, in the following terms: — ; 
 
 1994D. Workmen who have worked for persons giving theatrir 
 cal or other profit — making exhibitions, including circuses, shall 
 have a privilege upon things used for the purposes of such exhibi- 
 tions, above mentioned, and which belong to such persons, for 
 thirty days' salary due and unpaid. 
 
 By Act 8 Geo. V. c. 76, article 1994 of the Civil Code was 
 amended by replacing paragraph 9 thereof with the following : — 
 
 9. 'Servants' wages, and those of employees of railway compan- 
 ies engaged in manual labor, sums due under article 7340 of Que- 
 
568 THE LAW OF MECHANICS' LIEN'S IN CANADA. 
 
 bee Kevised Statutes 1909, and- sums due for the supplies of pro- 
 visions. (Article 7340 Q. E. S. 1909, deals with claims of per- 
 sons injured). 
 
 By Act 4 Geo. V. c. 64, article 2001 of the Civil Code, as re- 
 placed by 60 Vict. c. 50, s. 34, is amended by inserting therein, 
 after the words : "Workmen, upon things repaired by them, and 
 persons having a privilege in virtue of article 1994c, in the 11th 
 and 12th lines thereof, the words : "or 1994cZ." 
 
SASKATCHEWAN REVISED STATUTES 1909. 
 
 CHAPTEE 150. 
 
 An Act Respecting the Liens of Mechanics, Wage-earners 
 
 and Others. 
 
 Short Title. 
 
 1. Short title. — This Act may be cited as " The Mechanics' Lien 
 Act." 1907, c. 21, s. 1. 
 
 Interpretation. 
 
 V 
 
 2. Interpretation. — In this Act unless the context otherwise 
 requires the expression : 
 
 1. " Contractor." — " Contractor " means a person contracting 
 with or employed directly by the owner or his agent for the doing of 
 work or placing or furnishing materials for any of the purposes 
 mentioned in this Aqt; 
 
 2. " Sub-contractor." — " Sub-contractor " means a person not 
 contracting with or employed directly by the owner or his agent 
 for the purposes aforesaid but contracting with or employed by a 
 contractor or under him by another sub-contractor; 
 
 3. " Owner." — " Owner " extends to and includes any person, 
 firm, association, body corporate or politic having any interest or 
 estate in the lands upon or in respect of which the work or service 
 is done or materials are placed or furnished at whose Tequest and 
 upon whose credit or on whose behalf or with whose privity or con- 
 sent or for whose direct benefit any such work or service is per- 
 formed or materials are placed or furnished and all persons claim- 
 ing under him or them whose rights are acquired after the work or 
 
570 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 service in respect of which the lien is claimed is commenced or the 
 materials furnished have been commenced to be furnished; 
 
 4. " Person." — " Person " extends to and includes a body cor- 
 porate or politic, a firm, a partnership or association ; 
 
 5. " Material." — " Material " or " materials " includes every 
 kind of movable property; ' 
 
 6. " Wages."- — " Wages " means money earned by a laborer 
 for work done whether by time or as piece work; 
 
 7. " Court."—" Court " means the District Court of the judicial 
 district wherein the property in respect of which the lien is claimed 
 is situated; 
 
 8. "Judge." — "Judge" means a judge of the District Court;" 
 
 9. "Clerk of the court."— " Clerk of the court" means the 
 clerk of the District Court; 
 
 10. " Registrar." — " Begistrar " means the registrar of land 
 titles for the land registration district within which the property 
 in respect of which the lien is claimed, is situated. 1907, c. 21, s. 2. 
 
 As to definition of "owner," see Independent Lumber Co. v. 
 Bocz, (1911) 4 Sask. L. E. 103, 16 W. L. E. 316. 
 
 A mechanics' lien can only attach upon the estate or interest 
 of the'person at whose request and upon whose behalf and for whose 
 direct benefit the work is done; a lien which appears to be for 
 work done at the instance of other persons^ without indicating that 
 the work was done for the " owner " of the property to be charged 
 is incurably defective, and the owner's subsequent undertaking to 
 assume such lien is not binding on him. Northern Plumbing & 
 Heating Co. v. Greene, (1916) 27 D. L. E. 410, 34 W, L. E. 293. 
 
 A materialman is not entitled to register as one individual claim, 
 a lien for the amount due for material supplied by him to the con- 
 tractor, against all the lands jointly of the owners of different par- 
 cels, who had made separate contracts with the contractor for the 
 erection of houses on their respective parcels ; nor do they have such 
 
SASKATCHEWAN EEVISED STATUTES 1909. 571 
 
 interest in one another's land as " owners " within the meaning of 
 this section so as to charge the other's land for materials furnished 
 at the owner's request or for his benefit. Security Lumber Co. v. 
 Plested, (1916) 27 D. L. E. 44i; 9 Sask. L. E. 183, 34 W. L. E. 352. 
 
 Lien, Pekson Entitled to, Creation, Effect and Eegistea- 
 
 tion OF. 
 
 3. Contracts where workmen waive rights under this Act to 
 be void. — Every agreement or 'bargain verbal or written, express 
 or implied, which may hereafter be entered into on the part of 
 any workman, servant, laborer, mechanic or other person 
 employed in any kind of manual labor intended to be dealt with 
 in this Act by which it is agreed that this Act shall not apply or 
 that the remedies provided, by it shall not be available for the 
 benefit of any person entering into such agreement, is and shall be 
 null and void and of no effect as against any such workman, ser- 
 vant, laborer, mechanic or other person. 1907, c. 21, s. 3. 
 
 4. Mature of lien. — Unless he sign an express agreement to 
 the contrary and in that case subject to the provisions of section 
 3, any person who performs any work or service upon or in respect 
 of or places or furnishes any materials to be used in the making, 
 constructing, erecting, fitting, altering, improving or repairing 
 of any erection, building, land, wharf, pier, bulkhead, bridge, 
 trestlework or mine or the appurtenances to any of them for 
 any owner, contractor or sub-contractor shall by virtue thereof 
 have a lien for the price of such work, service or materials upon 
 the erection, building, wharf, pier, bulkhead, bridge, trestlework 
 or mine or the appurtenances thereto and the lands • occupied 
 thereby or enjoyecl therewith or upon or in respect of which the 
 said service is performed or upon which such materials are placed 
 or furnished to be used limited, however, in amount to the sum 
 justly due to the person entitled to the lien and to the sum justly 
 owing (except as hereinafter provided) by the owner. 1907, c. 
 21, s. 4. 
 
572 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 A mechanics' lien will attach for all materials supplied in the 
 erection of a building although the time foT filing has expired as 
 to certain classes of material, ordered at a different time, where - 
 it is shewn that there was a prior agreement to purchase all material 
 required for the building from such vendor. Whitloch v. Loney, 
 10 Sask. L. E. 377 (1917), 3 W. W. E. 971, 38 D. JU. E. 52. 
 
 The lien is in effect a statutory charge upon the estate or inter- 
 est of the owner. Galvin-Walston Lumber Co. v. McEinnon, 
 (1911) 16 W. L.E. 310. : 
 
 A person holding the land under an agreement to purchase 
 has an interest or estate on which a lien would attach. Mont joy v. 
 Heward School District, 10 W. L. E, 282. 
 
 An owner who took possession of the premises and sold the 
 same, and stated accounts with the contractor, was held to have 
 accepted the work, and to have waived the presentation of an 
 architect's certificate. Smith v. Bernhardt & Fry, (1909) 2 Sask. 
 L. E. 315. 
 
 Damages for delay in performance cannot be set-off against a 
 sub-contractor. Smith v. Bernhardt & Fry, (1909)- 2 Sask. L. E. 
 315. , 
 
 A reduction in the amount of the claim will not render the 
 lien void. Mont joy v. Heward School District, (1909) 10 W. L. E. 
 282. 
 
 Under the Saskatchewan Mechanics' Lien Act, a lien may attach 
 against a sehoolhouse and upon the land upon which it is situated. 
 Lee v. Broley, (1909) 11 W. L. E. 38. 
 
 A sub-contractor is in the same position as a contractor, and is 
 only required to have furnished materials with the intent and 
 expectation that the materials are going into the building. Mont joy 
 v. Heward School District Corporation, (1909) 10 "W. L. E. 282. 
 
 Where a materialman furnishes material to an owner of certain 
 land, ostensibly for the construction of a building on that land, the 
 materialman is entitled to a lien on that land even if the materials 
 were not actually incorporated in the building. Canadian Lumber 
 Yards, Limited v. Ferguson et al., (1920) 1 W. "W. E. 266. 
 
 A person in actual possession of land has a title thereto as 
 against all the world except the true owner; and a person so 
 actually in possession has a sufficient interest in the land to come 
 within the meaning of " owner," as defined by paragraph 3 of 
 section 2, but in order to amount to an interest which would sup- 
 
SASKATCHEWAN HEVISED STATUTES 1909. 573 
 
 port a lien under the Mechanics' Lien Act, the actual possession or 
 interest must exist at the time the materials were ordered. Galvin- 
 Walson Lumber Co. v. McEinnon, (1911) 16 W. L. E, 310, 4 Sask. 
 L. E. 68. 
 
 In re'speot to entire contracts, the doctrine of " substantial com- 
 pliance" is not adopted. Smith v. Bernkari, (1909) 11 W. L. E. 
 623, but the matter is placed upon a satisfactory basis by modern 
 interpretation. Taylor v. Hardware Co., 35 D. L. E. 504, and the 
 fact that in an entire contract some item of the work has been done 
 negligently or inefficiently or improperly would not prevent the 
 builder from recovering in the action. In such case the builder 
 would be entitled to recover the contract price less so much as is 
 found ought to be allowed in respect of 'the items of defective work. 
 
 Where the property owner joins with the contractor in giving 
 the order for material to be supplied in the erection of the building 
 and it is charged to their joint account, the owner may be held 
 liable for the full price in a mechanic's' lien action brought against 
 them both to enforce payment, although only a lesser sum be due by 
 him to the contractor. Rogers Lumber Co. v. Gray & Hosmer, 
 (1913) 10 D. L. E. 698. 
 
 Sections creating the right to a lien should be strictly con^ 
 strued, but provisions dealing with procedure on the enforcement 
 of the lien should receive a broad and liberal construction. Nobbs 
 v. C. P. R., 6 W. W.JR. 759, 27 W. L. E. 664. 
 
 As to Claim of lien for ploughing and breaking land see Jordan 
 v. Haugerud, (1919) 1 W. W. E. 506. No lien for cultivating and 
 caring for an orchard which substantially enhances the value of 
 the land can be secured under a statute giving a lien to any 
 person who clears, grades, fills in or otherwise improves real 
 property. ■ Howe v. Myers L. R. A., (1917) D. 349 and annotations. 
 
 Where a claimant does not file his lien within the prescribed time 
 but subsequently files it and before the actual filing thereof other 
 claimants file their liens, but do no work or supply no material 
 ' for which they would become entitled to file liens until after the 
 first claimant files his lien, the first claimant, having done the 
 work for which his lien was filed, is entitled to priority over the 
 other claimants. St. Pierre v. Uekert, (1915) 8 Sask. L. E. 416, 
 23 D. L. E. 592, 31 W. L. E. 909. 
 
 A homestead entrant is an " owner," and a materialman is 
 entitled to file a lien against the homestead for material furnished. 
 Beaver Lumber Co. v. Miller, (1917) 32 D. L. E. 428. 
 
574 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 5. Work done or materials furnished on lands of married 
 women. — Where work or service is done or materials are furnished 
 upon or in respect of the lands of any married woman with the 
 privity and consent of her husband he shall be conclusively 
 presumed to be acting for himself so as to bind his own interest 
 and also as the agent of such married woman for the purposes of 
 this Act unless the person doing such work or service or furnish- 
 ing such material shall have had actual notice to the contrary be- 
 fore doing such work or furnishing such materials. 1907, c. 21, 
 s. 5. 
 
 6. Contracts not to deprive third party of lien.— No, agreement 
 shall be held to deprive anyone otherwise entitled to a lien under 
 this Act and not a party to the agreement of the benefit of the lien, 
 but the lien shall attach notwithstanding such agreement. 1907, 
 c. 21, s. 6. 
 
 7. Property upon which lien shall attach.— The lien shall 
 attach upon the estate or interest of the owner as defined by this 
 Act in the erection, building, land, wharf, pier, bulkhead, bridge 
 trestlework or inine and the appurtenances thereto upon or in 
 respect of which the work or service is performed or the materials 
 placed or furnished to be used and the lands occupied or enjoyed 
 therewith. 
 
 « 
 
 (2) Where estate charged is leasehold. — In cases where the 
 estate or interest charged- by the lien is leasehold the land itself 
 may also with the consent of the owner thereof be subject to the 
 said' lien provided such consent is testified by the signature of such 
 owner upon the claim of lien at the time of the filing thereof and 
 duly verified. 
 
 A lienholder for materials supplied and used in the construction 
 of a building upon land subject to an existing mortgage is entitled 
 to rank upon the increased value in priority to the mortgage in the 
 proportion only that the value of the materials supplied by him 
 exclusively bears to the whole cost of the building, and not for any 
 
SASKATCHEWAN' REVISED STATUTES 1909. 575 
 
 part of the increase brought about otherwise. In computing this 
 proportionate amount, no regard should be taken to amounts paid 
 the lienholder on account "before the action was brought. Security 
 Lumber Co. v. Duplat, (1916) 9 Sask. L. E. 318, 29 D. L. E. 460, 
 34 'W. L. E. 1131. See Northern Trusts v. Battell, (1916) 9 
 Sask. L. E. 103, 29 D. L. E. 515, 33 W. L. E. 738. 
 
 Where land has a potential value as a future business site, and 
 is subject to a mechanics' lien for material used in erecting a build- 
 ing thereon, the proper method of determining the increased selling 
 value occasioned by the building is to ascertain the value of the 
 property without the building, and then sell the whole properly. 
 Whitlock v. Loney, (1918) 10 Sask. L. E. 377, 38 D. L. E. 52. 
 
 See notes under corresponding section in Mechanics' Lien Acts 
 of other provinces, ante. 
 
 The onus of proving that the selling value of the land was 
 increased by the materials furnished and placed is on the lien 
 claimant. It does not follow from the mere fact that materials 
 were furnished and placed upon the land that the selling value of 
 the properly had been thereby increased. Independent Lumber 
 Co. v. Bocz, (1911) 16 W. L. E. 316, 4 Sask. L. E. 103. See 
 additional references to this case in chapter on " Priorities," ante. 
 
 (A former sub-section (3) was repealed by chapter 38 of the 
 Statutes of 1913.) 
 
 8. Application of insurance when lien attaches. — Where any of 
 the property upon which a lien is given by this Act is wholly or 
 partly destroyed by fire any money received or receivable by reason 
 of any insurance thereon by an owner or prior mortgagee or 
 chargee shall take the place of the property so destroyed and shall 
 be subject to the claims of all persons for liens to the same extent 
 as if such moneys were realised by the sale of such property in an 
 action to enforce a lien. 1907, c. 21, s. 8. 
 
 (As amended by section 27 of the Statutes of 1915.) 
 
 9. Limit of amount of lien. — Save as herein provided the lien 
 shall not attach so as to make the owner liable for a greater sum 
 than the sum payable by the owner to the contractor. 1907, c. 21, 
 s. 9. 
 
576 THE LAW OE MECHANICS' LIENS IN CANADA. 
 
 10. Limit of lien when claimed by some other than contractor. 
 
 — Save ate herein provided where the lien is claimed by any other 
 person than the contractor the amount which may be claimed in 
 respect thereof shall be limited to the amount owing to the con- 
 tractor or sub-contractor or other persqn for whom the work or 
 service has been done or the materials have been placed or fur- 
 nished. 1907, c. 21, s. 10. 
 
 11. Percentage to be deducted and retained by owner for thirty 
 days. — In all cases the person primarily liable upon any contract 
 under or by virtue of which a lien may arise under the provisions 
 of this Act shall as the work is done or materials furnished under 
 the contract deduct from any payments to be made by him in 
 respect of tne contract and retain for a period of thirty days after 
 the completion or abandonment of the contract twenty per cent, 
 of the value of . the work, service and materials actually done, 
 placed or furnished as mentioned in section 4 of this Act and such 
 values shall be calculated on the basis of th& price to be paid for 
 the whole contract; and the liens, created by this Act shall be a 
 charge upon the amount directed to be retained by this section in 
 favor of the sub-contractors whose liens are derived under persons 
 to whom such moneys so required to be retained are respectively 
 payable. 
 
 (2) Payments made in good faith without notice of lien. — 
 
 All payments up to eighty per' cent, of such value made in good 
 faith by. an owner to a contractor or a contractor to a sub-contrac- 
 tor or by one sub-contractor to another sub-contractor before notice 
 in writing of such lien given by the person claiming the lien to 
 the owner, contractor or sub-contractor, as the case may be, shall 
 operate as a discharge pro tanto of the lien created by this Act. 
 
 (3) Payment of the percentage required to be retained under 
 sub-section (1) of this section may be validly made so as to dis- 
 charge all liens or charges under this Act in respect thereof after 
 the expiration of the said period of thirty days mentioned in sub- 
 
SASKATCHEWAN REVISED STATUTES 1909. 577 
 
 section (1) of this section, unless in the meantime proceedings 
 shall have been commenced under this Act to enforce any lien or 
 charge against such percentage as provided by sections 23 and 24 
 of this Act. 1907, c. 21, s. 11. 
 
 This provision requiring the owner to deduct twenty per cent, 
 from any payments to be made by him in respect of the contract 
 when applied to a contract providing for payment of 80 per cent, 
 on the progress certificates, requires him to deduct twenty per cent, 
 of the 80 per cent. The amount so deducted forms a fund for 
 the lienholders, and thereafter it is available for them only, and 
 not as a fund to which the owner can resort as security against or ' 
 to make good any loss occasioned by the non-completion of the 
 contract. 
 
 Where the amount required to complete the work over and above 
 the contract price far exceeds the amount retained, the lienholders, 
 other than wage-earners, have no claim upon the amount. Peart 
 v. Phillips, (1915) 8 'Sask. L. E. 305, 23 D. L. E. 193, 31 W. L. B. 
 956. 
 
 See notes under corresponding section of Ontario Act, ante. 
 
 12. Payments made direct by owner to persons entitled to lien. 
 — In ease an owner or contractor chooses to make payments to any 
 person referred t6 in section 4 of this Act for or on account of any 
 debts justly due to them for work or service done or for materials 
 placed or furnished to be used as therein mentioned and shall 
 forthwith give by letter notice in writing of. such payment to the 
 contractor or his agent or to the sub-contractor or his agent, as the 
 case may be, such payments shall as between the owner and the 
 contractor or as between the owner and the sub-contractor, as the 
 case may be, be deemed to be payments to the contractor or the 
 sub-contractor, as the case may be> on his contract generally but 
 not so as to affect the percentage to be retained by the owner as 
 provided by section 11 of this Act. 1907, c. 21, s. 12. 
 
 Payments made by the owner will not discharge him from lien 
 existing at the time of such payments. Union x. Porter, (1908) 9 
 W. L. E. 325. 
 
 mx.— 37 
 
578 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 13. Priority of lien. — The lien created by this Act shall have 
 priority over all .judgments, executions, assignments, attachments, 
 garnishments and receiving orders recovered, issued or made after 
 such lien arises and over all conveyances or mortgages registered 
 after registration of such lien as in this Act provided. 
 
 (2) Agreements for purchase where part of purchase money 
 unpaid.— In case of an agreement for the purchase of land and 
 the purchase money or part thereof is unpaid and no conveyance 
 made to the purchaser the purchaser shall for the purposes of this 
 Act and within the meaning thereof be deemed a mortgagor and 
 the seller a mortgagee. 
 
 (3) Priority among lienholders. — Excepting where it is other- 
 wise declared by this Act no person entitled to a lien on any pro- 
 perty or to, a charge on any moneys under this Act shall be entitled 
 to any priority or preference over another person entitled to a lien 
 or charge on such moneys or property under this Act and all lien- 
 holders except where it is otherwise declared by this Act shall rank 
 pari jiassu for their several amounts and the proceeds of any sale 
 shall subject as aforesaid be distributed among them pro rata. 
 1907, c. 21, s. 13. 
 
 See chapter entitled " Priorities," ante. See also Independent 
 Lumber Co. v. Bocz, (1911) 16 W. L. E. 316. 
 
 A lienholder has a right to pay, off the unpaid purchase money 
 under an agreement for sale to the same extent as he would have 
 had if the vendor's claim were that of a mortgagee. WhitlocTc v. 
 Loney.'lQ Sask. L. E. 377, (1917) 3 W. W. E. 971, 38 D. L. E. 52. 
 
 14. Priority of lien for wages. — Every mechanic or laborer 
 whose lien is for wages shall to the extent of thirty days' wages 
 have priority over all other liens derived through the same con- 
 tractor or sub-contractor to. the extent of and on the twenty per 
 cent, of the contract price directed to be retained by section li of 
 this Act to which the contractor or sub-contractor through whom 
 such lien is derived is entitled and all such mechanics and labor- 
 ers shall rank thereon pari passu. 
 
SASKATCHEWAN REVISED STATUTES 1909. 579 
 
 (2) Enforcing lien in such cases. — Every wage-earner shall 
 be entitled to enforce a lien in respect of the contract not com- 
 pletely fulfilled. 
 
 (3) Calculating percentage when contract not fulfilled. — 
 
 In case of the contract not having been completely fulfilled when 
 the lien is claimed by wage-earners the percentage aforesaid shall 
 be calculated on the work done or materials furnished by the con- 
 tractor or sub-contractor by whom such wage-earners are employed. 
 
 (4) Percentage not to be otherwise applied. — Where the con- 
 tractor or sub-contractor makes default in completing his contract 
 the percentage aforesaid shall not as against a wage-earner claim- 
 ing a lien under this Act be applied to the completion of the con- 
 tract or for any other purpose by the owner or contractor nor to 
 the payment of damages for the non-completion of the contract by 
 the contractor or the sub-contractor nor in payment or satisfaction 
 of any claim of any kind against the contractor or sub-contractor. 
 
 (5) Devices to- defeat priority of wage-earners. — Every device 
 by any owner, contractor or sub-contractor adopted to defeat the 
 priority given to wage-earners for their wages by this Act shall as 
 respects such wage-earners be null and void. 1907, c. 21, s. 14. 
 
 15. Payments made for purpose of defeating claim for lien. — 
 
 Nothing in this Act contained shall apply to make legal any pay- 
 ment made for the purpose of defeating or impairing a claim for 
 a lien arising or existing under this Act and all such payments 
 shall be taken to -be null and void. 1907, c. 21, s. 15. 
 
 16. Restraining attempt to remove materials affected by lien. — 
 During the continuance of a lien no portion of the materials af- 
 fected thereby shall be removed to the prejudice of the lien and 
 any attempt at such a removal may be restrained on application 
 to the court or to a judge having power to try an action to realise 
 a lien under this Act. 
 
580 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (2) Costs. — The court or judge to whom any such application 
 is made may make such order as to the costs of and incidental to 
 the application and order as he deems just. v 
 
 (3) Materials furnished for certain purposes not to be subject 
 to execution. — When any material is actually brought upon any 
 land to be used in connection with such land for any of the pur- 
 poses enumerated in section 4 of this Act the same shall not be 
 subject to execution or other process to enforce any debt (other 
 than for the purchase thereof) due by the person furnishing the 
 
 .same. 1907, c. 21, s. 16. 
 
 See Ontario Act, section 16. 
 
 17. Registration of lien. — A claim for lien applicable to the 
 ease may be filed in the land titles office of the land registration 
 district in which the land is situated and shall set out: 
 
 (a) The name and residence of the person claiming- the lien 
 and of the owner of the property to be charged and. of the 
 person for whom and upon whose credit the work or ser- 
 vice was or is to be done or materials furnished or placed 
 and the time or period within which the same was or was 
 to be done or furnished or placed; 
 
 (&) A short description of the work or service done or the 
 materials furnished or placed or to be furnished or placed ; 
 
 (c) The sum claimed as due or to become due; 
 
 (d) A description of the property to be charged; 
 
 (e) An address for service on the party claiming the lien. 
 
 (2) Form of claim. — The claim may be in one of the forms 
 giyen in the schedule to this Act and shall, be verified by the affi- 
 davit of the person claiming the lien or of his agent of assignee 
 having a personal knowledge of the matters required to be verified 
 and the affidavit of the agent or assignee . shall state that he has 
 such knowledge. 1907, c. 21, s. 17. 
 
 By chapter 38 of the Statutes of 1913, s. 3, the above section 
 was amended as follows: — 
 
SASKATCHEWAN REVISED STATUTES 1909. 581 
 
 3.. Clause (a) of section 17 amended.— Clause (a) of section 17 
 of the said Act is amended by striking out all the words after the 
 word " the " in the -fifth line and inserting in place thereof the 
 words "date upon' which the contract or service was completed, 
 the last material furnished or the last work done; or, where the 
 claim is registered before the contract, service, furnishing of 
 material or work, has been completed, the time or period, within 
 which the same was to be performed or completed." 
 
 A claim of lien was defectively drawn, but there was a sufficient 
 description of the materials furnished in a statement annexed to 
 the claim and marked as exhibit A, which statement, however, was 
 not duly identified by affidavit. It' was held that there was such 
 a substantial compliance with this section of the Act as should be 
 held good under section 19. Monarch Lumber Go. v. Garrison, 
 (1911) 18 W. L. E. 686. See Grapper v. Gillespie, (1909) 11 
 W. L. E. 310; Mont joy v. Heward School District Corporation, 
 (1908) 10 W. L. E. 282. 
 
 18. What may be included in claim. — A claim for lien may 
 include claims against any number of properties and any number 
 of persons claiming liens upon the same property may unite 
 therein; but where more than one lien is included in one claim 
 each lien shall be verified by affidavit as provided in section 17 of 
 this Act. 1907, e. 21, s. 18. 
 
 A reduction in the amount of the claim will not render the 
 lien void. Mont joy v. Heward School District, (1908) 10 W. L. E. 
 282. 
 
 19. (1) Claims not to he invalidated for informality (1908). — 
 
 A substantial compliance with sections 17 and 18 of this Act shall 
 only be required and no lien shall be invalidated by reason of fail- 
 ure to comply with any of the requisites of the said section unless 
 in the opinion of the court or judge who has power to try an action 
 under this Act the owner, contractor or sub-contractor, mortgagee 
 or other person, as the case may be, is prejudiced thereby and then 
 only to the extent to which he is thereby prejudiced. 
 
582 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 (2) Nothing in this section contained shall be construed as 
 dispensing with filing of the lien required by this Act. 1907, c. 
 21, s. 19. 
 
 On a reference, in an action for sale under a mortgage, a claim 
 was made by C. under a lien registered against three separate 
 properties of which only one in question in this action. As 
 the claim of lien showed how it was made out, and the amount 
 claimed against each property, it was held that the claim was suffi- 
 cient under this section. Orapper v. Gillespie, 11 W. L. E. 310. 
 
 A claim of lien did not appear to be executed properly under 
 the seal of the plaintiffs, an incorporated company, but the court; 
 aljowed proof to be made, upon an appeal, that the document was 
 actually sealed with the corporate seal of the plaintiffs, and deter- 
 mined that attestation was unnecessary and that the execution 
 was proper. Monarch Lumber Co. v. Garrison, (1911) 18 "W. L. E. 
 686. 
 
 An error in naming the owner of the land with respect to which 
 a lien is claimed is not sufficient to prevent the instrument claim- 
 ing the lien from showing substantial compliance with the statu- 
 tory forms. Nobbs v. C. P. B., 6 W. "W. E. 759, 27 W. L. E. 664. 
 
 Technical compliance with the directions of the Act may be 
 excused where no one is prejudiced by the defects and there is sub- 
 stantial compliance under this section. Manitoba Bridge & Iron 
 Works v. Gillespie, (1914) 20 D. L. E. 524. 
 
 20. Lien to be registered an incumbrance. — The registrar upon 
 payment of the prescribed "fee shall register the claim so that the 
 same may appear as an incumbrance against the land therein 
 described. 1907, c. 21, s. 20. 
 
 21. Lienholder to be deemed a purchaser. — Where a claim is so 
 filed the person entitled to the lien shall be deemed a purchaser 
 pro tanto. 1907, c. 31, s. 21. 
 
 22. Claims for liens when to be filed. — A claim for lien by a 
 contractor or sub-contractor may in cases not otherwise provided 
 for be filed before or during the performance of the contract or 
 within thirty days after the completion thereof. 
 
SASKATCHEWAN REVISED STATUTES 1909. 583 
 
 (2) A claim for lien for materials may be filed before or dur- 
 ing the furnishing or placing thereof or within thirty days after 
 the furnishing or placing of the last material so furnished and 
 placed. 
 
 (3) A claim for lien for services may be filed at any time dur- 
 ing the performance of the service or within thirty days after the 
 completion of the service. 
 
 (4) A claim for lien for wages may be filed at any time during 
 the performance of the work for which such wages are claimed or 
 within thirty days. after the last day's work for which the lien is 
 claimed. 
 
 (5) In the case of a contract which is under the supervision 
 of an architect, engineer or other person upon whose certificate 
 payments are to be made the claim for a lien by a contractor may 
 be filed within the time mentioned in sub-section (1) of this sec- 
 tion or within seven days after the said architect, engineer or other 
 person has given his final certificate or has upon application to 
 him by the contractor refused to give a final certificate. 1907, c. 
 21, s. 22. , 
 
 A contractor agreed with an owner to build a house for the 
 latter. Plaintiff, a sub-contractor, supplied hardware at different 
 times during the work, and installed plumbing and heating ap- 
 paratus, and not being paid, filed a lien. The last work done was 
 on the furnace on January 3rd, the other work done by plaintiff 
 having been completed and material supplied at an earlier date. 
 The lien was filed oil February 2nd. The sub-contractor gave no 
 formal notice of his claim to the owner, but payment of the account 
 had been discussed between them on several occasions and the owner 
 had promised to protect this sub-contractor. It was held that the 
 owner by his conversations with plaintiff and assurance of protection 
 of the account had waived notice of claim of lien. Smith v. Bern-, 
 hardt, (1909)' 2 Sask. L. E. 315. 
 
 It was contended that the plumbing,, heating and hardware sup- 
 plied by the sub-contractor constituted three different contracts, and 
 that, therefore, the thirty days must be reckoned from the comple- 
 tion of each, but the court held that they were all supplied with the 
 same object by one party to another, the parties standing in the 
 
584 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 same relationship, and .were so supplied as material and labor 
 coming within the scope of the plaintiff's business, and were so 
 bound into one as to form an entire contract, the last work on 
 which having been done on January 3rd, the lien was filed in time. 
 Smith v. Bernhardt, (1909) 2 Sask.'L. E. 315, 
 
 Where all the work by a person claiming a mechanics' lien is 
 done, or all the materials are furnished under one entire continuing 
 contract, although at< different times, a lien claim filed within the 
 statutory period after th6 last item was done or furnished is suffi- 
 cient as to all the items; and, in order that the contract may be 
 a. continuing one within this rule it is not necessary that all the 
 work or materials should be ordered at one time, that the amount 
 or nature of work or materials should be determined at the time of 
 the first order, or that the prices should be then agreed upon; but a 
 mere general agreement to furnish labor or materials for' a particu- 
 lar building or improvements is sufficient if .complied with. Whit- 
 lock v. Loney, 38 D. L. E. 52, (1917) 3 W. W.' E. 971. 
 
 A mechanics' lien will attach for all materials supplied in the 
 erection of a building although the time for filing has expired as 
 to certain classes of material, ordered at a different time, where it 
 is shown that there was a prior agreement to purchase all material 
 required for the building from such vendor. Whitlock v. Loney, 
 (1918) 10 Sask. L. E,' 377, 38 D. L. E. 52. 
 
 Duration of Lien. 
 
 23. Lien to cease if proceedings not had within time fixed 
 by Act. — Every lien a claim for which is not duly filed under the 
 provisions of this Act shall cease to exist at the expiration of the 
 ' time hereinbefore limited for the filing thereof unless in the mean- 
 time an action is commenced to realize the claim or in which the 
 claim may be realised under the provisions of this Act and a cer- 
 tificate thereof according to form 6 in the schedule hereto signed 
 by the clerk of the court is- duly filed in the land titles office of 
 the land registration district wherein the property in respect of 
 which the lien is claimed is situated. 1907, c. 21, s. 23J 
 
 " Provided however that the failure to file such claim or to comr 
 mence such action within the time mentioned in this and the pre- 
 
SASKATCHEWAN REVISED STATUTES 1909. 585 
 
 ceding section shall not defeat such lien except as against interven- 
 ing parties becoming entitled to a lien or charge upon such land 
 whose claim with respect to said land is registered prior to the 
 registration of such lien ox as against an owner in reapect 
 of payments made in good faith to a contractor after the expiration 
 of said period of thirty days before any claim of lien is filed or 
 notice thereof given to the owner." 
 
 (The above amendment was added by chapter 38 of Statutes of 
 1913.) 
 
 This amendment does not create a priority in favor of inter- 
 vening liens for work not performed and materials not furnished. 
 St. Pierre v. ReJcert, 8 Sask. L. E. 416, 23 D. L. E. 592. 
 
 By chapter 34 of the statutes of 1917, section 21, the following 
 amendment to the above section was made: — 
 
 21. Section 23 of the Mechanics' Lien Act, as amended by sec- ' 
 tion 4 of chapter 38 of the statutes of 1913, is further amended by 
 inserting between the words " that " and " the " in the first line of 
 the proviso the words " claims may be filed and actions commenced 
 after the time hereinbefore limited for so doing, and that." 
 
 An assignment of a mechanics' lien should be registered under 
 the Land Titles Act. Be Registration of Assignment of Mechanics' 
 Lien, 5 W. W. E. 1191. 
 
 24. When a lien which has been duly filed shall expire. — 
 
 Any person claiming any right, title or interest in and to any 
 property in respect of which any claim of lien is filed as herein- 
 before provided may at any time after thirty days have expired 
 since the filing of such lien require the registrar to notify the lien- 
 holder by notice in writing in form 5 in the schedule to this Act 
 forwarded by registered mail to the address for service of the said 
 lienholder that unless an action to realise such claim or lien in 
 which such claim may be realised be instituted and a certificate, 
 that such action has been so instituted, which certificate shall be in 
 form 6 of the schedule hereto and signed by the clerk of the court 
 in which such action is so instituted, be deposited in the said land 
 titles office within thirty days from the date of such notice that 
 such lien shall absolutely cease to exist; and if such action is not 
 so instituted and the certificate aforesaid so filed within thirty 
 
586 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 days from the date of the mailing of such notice such lien shall 
 thereupon absolutely cease to exist and the registrar shall vacate 
 the registration thereof unless prior to the expiration of the said 
 thirty days there be filed in the said land titles office an order of a 
 judge extending the time for instituting such actibn. 1907, c. 21. 
 s. 24. 
 
 The right, title or interest which entitles a person to require 
 the registrar to send out the notice provided for by this section is 
 not necessarily a registered one, and so long as any one claiming 
 a right, title or interest in the property in question requires him 
 to serve the notice he must follow the provisions of this section. 
 Re Land Titles Act, (1919) 1 W. W. E. 47. 
 
 TRANSMISSION OF LlEN. 
 
 25. Death of lienhol&er. — In the event of the death of the 
 lienholder his right of lien shall pass to his personal representa- 
 tives and the right of a lienholder may be assigned by any instru- 
 ment in writing. 1907, c. 21, s. 25. 
 
 Discharge and Vacating Lien. 
 
 26. Discharge of lien. — A lien may be discharged by a receipt 
 signed by the claimant or his agent duly authorized in writing 
 acknowledging payment and verified by affidavit and filed with the 
 registrar; such receipt shall be numbered and entered by the reg- 
 istrar like other instruments but need not be copied in any book; 
 the fees shall be the same as for registering a claim of lien. 
 
 (2) Security or payment into court and vacating lien thereon. 
 
 — Upon application the court or judge may receive security or 
 payment into court in lieu of the amount of the claim and may 
 thereupon vacate the filing of the lien. 
 
 (3) Vacating filing on other grounds. — The court or such 
 judge may vacate the said filing upon any other ground. 1907, 
 c. 21, s. 26. 
 
SASKATCHEWAN REVISED STATUTES 1909. 587 
 
 Where a mechanics' lien has been filed by a partnership, even 
 though it be trading under the name of what purports to be an in- 
 corporated company, the registrar is justified in insisting that a 
 discharge of the lien be executed by all the partners, or some one 
 duly authorized on their behalf, and that proof be given him of the 
 composition of the partnership. Re Land Titles Act, Be Mechanics' 
 Lien Act, (1918) 1W. W. E. 411. 
 
 Effect of Taking Security on Lien. 
 
 27. Certain acts not to prejudice right to enforce lien. — The 
 taking of any security for or the acceptance of any promissory note 
 for or the taking of any other acknowledgment of the claim or the 
 giving of time for the payment of the claim or the taking of any 
 proceedings for the recovery of the claim or the recovery of any 
 personal judgment therefor shall not merge, waive, pay, satisfy, 
 prejudice or destroy any lien created by this Act unless the lien- 
 holder agrees in writing that it shall have that effect. 1907, c. 
 21, s.,27. 
 
 Lienholdee Entitled to Infoemation and Inspection of 
 
 Contract. 
 
 28. Lienholders to be entitled to information from owner as 
 to terms of contract. — Any lienholder may at any time demand 
 from the owner or his agent the terms of the contract or agree- 
 ment with the contractor for and in respect of which the work, 
 services or materials is or are performed or furnished or placed 
 and if such owner or his said agent shall not at the time of such 
 demand or within a reasonable time thereafter inform the person 
 making, such demand of the terms of such contract or agreement 
 or the amount due and unpaid upon such contract or agreement 
 or shall intentionally, knowingly or falsely state the terms of said 
 contract or agreement or the amount due or unpaid thereon and 
 if the person claiming the lien shall sustain loss by reason of such 
 refusal or neglect or false statement the said owner shall be liable 
 
588 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 to him in an action therefor to the amount of such loss. 1907, c. 
 21, s. 28. 
 
 POWEE OE COUET TO OeDEE INSPECTION. 
 
 29. Order for inspection of contract by lienholder. — The court 
 or a judge may on a summary application at any time before or 
 after any action is commenced for the enforcement of such lien 
 make an order for the. owner or his agent to produce and allow 
 any lienholder to inspect any such contract and may make such an 
 order as to the costs of such application and order as may be just. 
 
 ' 1907, c. 21, s. 29. 
 
 Enfoecement of Liens, Peoceduee. 
 
 30. Mode of realising liens.— -Notwithstanding anything con- 
 tained in The Judicature Act -and The District Courts Act all 
 actions to realise under a lien irrespective of the amount involved 
 or that the title to land is called in question shall be brought, tried 
 and determined in the district court in the same manner and sub- 
 ject to the same right of appeal as ordinary actions in the 1 court. 
 1907, c. 21, s. 30. 
 
 The effect of this section is, notwithstanding section 26 of the 
 District Courts Act, to confer upon the judge of the District Court 
 jurisdiction to try in a mechanics' lien action all questions of title 
 necessary for the determination of the interest of the owner in the 
 land upon which the lienholder has his lien, and this includes juris- 
 diction to determine whether or not a mortgage which stands on the 
 title in priority to the lien, and which, being a charge on the land 
 covered by the lien, purports to cut down the interest which the 
 owner would otherwise have therein, is a valid charge thereon. 
 Canadian^ Lumber Yqrds, Limited, v. Dunham, (1920) 2 W. "W. B. 
 1029; 53 D. L. E. 574. 
 
 ■ (The following amendments were added to this section by 
 chapter 38 of the Statutes 'of 1913.) 
 
 30a.' — Lienholder's parties to action. — It shall not be necessary 
 to make any liehholders parties defendant to the action, but all 
 
SASKATCHEWAN REVISED STATUTES 1909. 589 
 
 lienholders served with the notice of trial shall for all purposes be 
 deemed parties to the action. 
 
 30b. Notice to lienholders. — The party setting an action down 
 for trial shall at least ten days before the opening of the sitting of 
 the court at which the action is to be tried serve notice of trial in 
 form 7 in the schedule to this Act, upon all lienholders who have 
 filed their claims as required by this Act, or who' are known to 
 him; such service shall be personal, unless otherwise directed by a 
 judge, who may direct in what manner the notice of trial may be 
 served. 
 
 The District Court has exclusive jurisdiction over mechanics' 
 lien cases. Shuttelworth v. Seymour, (1914) 7 Sask. L. E. 74, 
 6 W. W. E. 1583, 29 W. L. E. 394. 
 
 31. Lienholder joining in action. — Any number of lienholders 
 claiming liens on the same property may join in an action and 
 any action brought by a lienholder shall be taken to be brought on 
 behalf of all other lienholders oh the property in question. 1907, 
 c. 21, s. 31. 
 
 32. Trial. — Upon the trial of any action to realize under a lien 
 the judge shall decide all questions which arise therein or which 
 are necessary to be tried in order to completely dispose of the 
 action and to adjust the rights and liabilities of all, parties con- 
 cerned and shall take all accounts, make all inquiries and give all 
 directions and do all other things necessary to try and otherwise 
 finally dispose of the action and of all matters, questions and ac- 
 counts arising in the action or at the trial and to adjust the fights 
 and liabilities of and give all necessary relief to all parties con- 
 cerned and shall embody all results in the judgment. 
 
 (2) Estate may be sold. — The judge who tries the action may 
 order that the estate or interest charged with the lien may be sold 
 and when by the judgment a sale is directed of the estate or inter- 
 est charged' with the lien the judge who tries the action may direct 
 the sale to take- place at any time after- judgment, allowing how J 
 
590 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 ever a reasonable time for advertising such sale and may make all 
 necessary orders, for the completion of the sale and vesting the 
 property in the purchaser. 
 
 (3) Sale of materials. — The judge who tries the action may 
 also direct the sale of any materials and authorize the removal of 
 the same. 
 
 (4) Letting in lienholders who have not proved their claims 
 at trial. — Any lienholder who has not proved his claim at the 
 trial of an action to enforce a lien on application to the judge who 
 tried the action on such terms as to costs and otherwise as may be 
 just may be let in to prove his claim at any time before the amount 
 realized in the action for the satisfaction of liens has been distri- 
 buted and where such a claim is proved and. allowed the judge shall 
 amend the judgment so as to include such claim therein. 
 
 (5) Report where sale is held. — When a sale is held the judge 
 shall direct to whom the moneys in court shall be paid and may 
 add to the claim of the person conducting the sale his actual dis- 
 bursements in connection therewith and where sufficient to satisfy 
 the judgment and costs is not realised from the sale he shall certify 
 the amount of the deficiency and the names of the persons with 
 their amounts who are entitled to recover the same and the persons 
 by the judgments adjudged to pay the same; and such persons 
 shall be entitled to enforce the same by execution or otherwise as 
 a judgment' of the court. 1907, c. 21, s. 32. 
 
 The Creditors Eelief Act, E. S. S. 1909, c. 63,. which provides 
 that, subject to the provisions of the Act, there shall be no priority 
 among execution creditors is applicable where land is sold to sat- 
 isfy a mechanics' lien and there is a surplus paid into Court and 
 a number of executions have been registered against the owner. The 
 section is not the less applicable because other mechanics' liens inter- 
 vened between the first and later executions, if the claims under such 
 liens have been abandoned. Beaver Lumber Go. v. Quebec Bank 
 et al (1918) 11 Sask. L. E. 320, 42 D. L. E. 779, (1918) 2 W. 
 W. E. 1052. 
 
SASKATCHEWAN REVISED STATUTES 1909. 591 
 
 The District Court judge was held to have jurisdiction to 
 determine the validity of a prior mortgage attacked by the lien- 
 claimant in a mechanics' lien action. Canadian Lumber Yards, 
 Limited, v. Dunham, (1930) 2 W. W. E. 1029. 
 
 33. Consolidation of actions. — When more actions than one are 
 brought to realise liens in respect of the same property a judge 
 may on the application of any party to any one of such actions or 
 on the application of, any other person interested consolidate all 
 such actions into one action and may give the conduct of the 
 consolidated action to any plaintiff he sees fit. 1907, c. 21, s. 33. 
 
 34. Transferring carriage of proceedings.' — Any lienholder en- 
 titled to the benefit of the action may apply for the carriage of the 
 proceedings and the judge may thereupon make an order giving 
 such lienholder the carriage of the proceedings and such lien- 
 holder shall for all purposes thereafter be the plaintiff in the ac- 
 tion. 1907, c. 21, s. 34. 
 
 35. Costs of drawing, filing and vacating registration of lien. — 
 
 Where a lien is discharged or vacated under section 26 of this Act 
 or where in an action judgment is given in favor of or against a 
 claim for a lien in addition to the costs of an action the judge may 
 allow a reasonable, amount for costs of drawing and filing the lien 
 or for vacating the registration of the lien. 1907, c. 21, s. 35. 
 
 36. Costs not otherwise provided for.- — The costs of and inci- 
 dental to all applications and orders made under this Act and not 
 
 otherwise provided for shall be in the discretion of the judge to 
 whom the application or order is made. 1907, c. 21, s. 36. 
 
 37. Form of judgment in favor of lienholder.— -All judg- 
 ments in favor of lienholders shall adjudge that the person or per- 
 sons personally liable for the amount of the judgment shall pay 
 any deficiency which may remain after sale of the property ad- 
 judged to be sold and whenever on a sale of any property to realize 
 a lien under this Act sufficient to satisfy the judgment and costs is 
 
592 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 not realised therefrom the deficiency may be recovered by execu- 
 tion against the property of such person or persons. 1907, c. 21, 
 s. 37. 
 
 An order by a District Court judge striking out a mortgagee's 
 defence in a mechanics' lien action is a " final order " from which 
 an appeal can be taken. Canadian Lumber Yards, .Limited, v. 
 Dunham, (1920) 2 W. W. E. 1029. 
 
 38. Personal judgment when claim of lien fails. — Whenever 
 in an action brought under the provisions of this Act any claimant 
 shall fail for any reason to establish a valid lien he. may neverthe- 
 less recover therein a personal judgment against any party or parties 
 to the action for such sum or sums as may appear to be due to him 
 and which he might recover in an action on contract against such 
 
 , party or parties. 1907, c. 21, s. 38. 
 
 By chapter 43 of the Statutes of 1915, s. 27 (2), the following 
 section was added after section 38 : — 
 
 38a. Time for filing may be extended. — Where in this Act a 
 time is limited for filing a document or taking a proceeding, and 
 through accident, mistake or inadvertence the time thus limited 
 has been allowed to expire without such document being filed or 
 proceeding taken, a judge may nevertheless, upon such terms as 
 may seem just, extend the time so limited ; such enlargement to 
 be subject to the rights of third persons accrued by reason of the - 
 failure or omission to file the document or take the proceeding 
 within the time limited. 
 
 Poems. 
 
 39. Forms. — The forms in the schedule hereto or forms simi- 
 lar thereto or to the like effect may be adopted in all proceedings 
 under this Act. 1907, c. 21, s. 39. 
 
 Liens for Improvement of Chattels. 
 
 40. liens for improvement of chattels, enforcing. — Every 
 mechanic or other person who has bestowed money or skill and 
 
SASKATCHEWAN REVISED STATUTES 1909. 593 
 
 materials upon any chattel or thing in the alteration and improve- 
 ment of its properties or for the purpose of imparting an addi- 
 tional value to it so as thereby to be entitled to a lien upon such 
 chattel or thing for the amount or the value of the money or skill 
 and materials bestowed shall while such lien exists but not after- 
 wards in case the amount to which he is entitled remains unpaid 
 for three months after the same ought to have been paid, have the 
 right in addition to all other remedies provided by law to sell the 
 chattel or thing in respect of which the lien exists on giving one 
 month's notice by advertisement in a newspaper published in the 
 locality in which the work was done or in case there is no news- 
 paper published in such locality or within ten miles of the place 
 where the work was done then by posting up not less than five 
 notices in the most public places' within the locality for one month 
 stating the name of the person indebted, the amount of the debt, 
 a description of the chattel or thing to be sold, the time and place 
 of sale and the name of the auctioneer and leaving a like notice in 
 writing at the residence or last known place of residence, if any, 
 of the owner, as the case may be, or by mailing the same to him by 
 registered letter if his address be known. 
 
 (2) Sueh mechanic or other person shall apply the proceeds of 
 the sale in payment of the amount due to him and the costs of 
 advertising and sale and shall upon application pay over any sur- 
 plus to the person entitled thereto. 1907, c. 21, s. 40. 
 
 See chapter " Liens on Personalty," ante. 
 
 mx. — 38 
 
594 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 SCHEDULE. 
 The following is the schedule of forms referred to in this Act. 
 
 FORM 1. 
 
 {Section 17.) 
 Claim of Lien' foe Begjstbation. 
 
 A. B. (name of claimant) of (here state residence of claimant) 
 (if so,, as assignee of stating name and residence of assignor) under 
 The Mechanics' Lien Act elaims a lien upon the estate of (here 
 state the name and residence of owner of the land upon whiek 
 the lien is chimed) in the undermentioned land in respect of the 
 following work (service or materials) that is to say (here give a 
 short description of the nature of the work done or materials 
 furnished and for which the lien is claimed) which work (or 
 service) was ( or is to be) done (or materials were furnished) for 
 (here state the name and residence of the person upon whose credit 
 the world is done or materials furnished) on or before 
 day of 
 
 The amount claimed as due (or to become due) is the sum pf 
 $ 
 
 The following is the description of the land to be charged 
 (here set out a concise description of the land to be charged suffi- 
 cient for the purpose of registration). 
 
 Dated at this day of 19 . 
 
 Signature of Claimant. 
 
 By chapter 46 of the Statutes of 1912-1913, section 38, this 
 form and forms 2 and 3 were amended by adding beneath the 
 words " signature of claimant " at the foot of each of said forms 
 the words "address for service." 
 
 By chapter 38 of the Statutes of 1913, the following amendment 
 was made: — 
 
 6. Form 1 in the schedule to the said Act is amended by strik- 
 ing out all the words in the first paragraph after the word 
 " claimed " in the ninth line and inserting the following in place 
 
SASKATCHEWAN REVISED STATUTES 1909. 595 
 
 thereof: "The contract or service was completed °? the J* 8 * 
 material was furnished or the last work was fane, on the 
 day of A.D. or the contract or service to be 
 
 completed or the material is to be furnished or the work is to 
 be done on or before the day of A.D. , 
 
 and the name and address of the person for whom the work was 
 done or material furnished is ," 
 
 FOKM 2. 
 (Section 17.) 
 
 Claim of Lien bob Wages foe Registration. 
 
 A. B. (name of claimant) of (here state residence of claimant) 
 (if so, as assignee of, stating name and residence of assignor) 
 under The Mechanics' Irien Act claims a lien upon the estate of 
 (here state name and residence of the owner bf land upon which 
 the lien is claimed) in the undermentioned land in respect 
 of days' work performed thereon while in the employ- 
 
 ment of (here state the name and residence of the person upon 
 whose credit the work was done) on or before the day 
 
 of 
 
 The amount claimed as due is the sum of $ 
 
 The following js the description of the land to be charged (here 
 set out a concise description of the land to be charged, sufficient 
 for the purpose of registration). 
 
 Dated at this day of 19 . 
 
 ■ ) » " » i i f " r r ( " m m t ■ m f f ■ t j 
 
 Signature of Claimant. 
 (See note to previous form.) 
 
 FORM 3. 
 
 (Section 18.) 
 
 Claim foe Lien foe Wages bt Several Claimants. 
 
 The following persons under The Mechanics' Lien Act claim a 
 lien upon the estate of (here state the name and residence of the 
 owner of land upon which the lien is claimed) in the undermen- 
 
596 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 tioned land in respect of wages for labor performed thereon while in 
 the employment of (here state name and residence or names and 
 residences of employers of the several persons claiming the lien). 
 
 A. B. of (residence) $ for days' wages. 
 
 C. D. " $ for days' wages. 
 
 E. F. " $ for days' wages. 
 
 The following is the description of the land to be charged (here 
 set out a concise description of the land to be charged sufficient 
 for the purpose of registration). 
 
 Dated at this day of 19 . 
 
 (See note to Form 1.) 
 
 Signatures of Several Claimants. 
 
 POEM 4. 
 
 (Section 17.) 
 
 Affidavit Veeifying Claim foe Kegistbation. 
 
 I, A. B., named in the above (or annexed) claim, do make oath 
 that the said claim is true. 
 
 (Or, We, A. B. and 0. D., named in the above (or annexed) 
 claim, do make oath and each for himself says that the said claim 
 so far as it relates to him is true.) 
 
 (Where affidavit made by agent or assignee a clause must be 
 added, to the following effect: I have full knowledge of the facts 
 set forth in the above (or annexed) claim.) 
 Sworn before me at 
 
 in the Province of Saskatchewan 
 
 this day of 19 . 
 
 (Or the said A. B. and C. D. 
 
 were severally sworn before me 
 
 at , in the Province of 
 
 Saskatchewan, this 
 
 day of 19 .) 
 
 (Or the said A. B. was sworn 
 
 before me at in the 
 
 Province of Saskatchewan, this 
 
 day of 19 .) 
 
SASKATCHEWAN REVISED STATUTES 1909. 597 
 
 FOEM 5. 
 (Section ££•) 
 To 
 
 Under the provisions of section 24 of The Mechanics' Lien Act 
 I hereby notify you that the claim of lien filed by you on the day 
 of 19 , against the following property namely : 
 
 shall absolutely cease to exist unless an action to realise such 
 claim of lien or in which such claim may be realised be instituted 
 and a certificate that such action has been so instituted (which 
 certificate shall be in form 6 of the schedule to The Mechanics' 
 Lien Act, signed by the clerk of the court in which such action is 
 instituted) be deposited in the land titles office for the registration 
 district of . within thirty days from the date of 
 
 this notice or within such thirty days you file with me an order 
 of a judge extending the time for instituting such action. 
 
 Dated at this day of 19 . 
 
 Registrar: 
 
 FOEM 6, 
 
 (Sections 28 and 2Jf.) 
 
 In the District Court of the Judicial District of 
 Between 
 
 Plaintiff. 
 and 
 
 Defendant. 
 I certify that the above named plaintiff has commenced an 
 -action in the above court to enforce against the following land 
 (describing it) & claim of mechanics' lien for $ 
 Dated this day of 19 . 
 
 Clerk of the Court. 
 
598 THE LAW OP ^MECHANICS' LIENS IN CANADA. 
 
 By chapter 38 of the Statutes of 1913, the following form was 
 ad^ed : — 
 
 7. The following form shall be form 7 in the schedule to the 
 said Act: — 
 
 FORM 7. 
 
 Notice of Teial. 
 
 (Style of Court and Cause.) 
 
 Take notice that this action will be tried at the sittings of 
 this court to be holden at in the Province of Sas- 
 
 katchewan, on the day of and at such time 
 
 and place all questions which arise in or which are necessary to 
 be tried completely to dispose of the action 1 , and to adjust the 
 rights and liabilities of the persons appearing before the court, or 
 upon whom the notice of trial has been served, will be tried, and 
 all accounts will be taken, inquiries made, directions given s and 
 necessary Relief given to all parties. 
 
 And further take notice that if you do not appear at the trial 
 and prove your claim, if any (or your defence, if any), the pro- 
 ceedings willbe taken in your absence, and you may be deprived 
 of all benefit of the proceedings, and your rights disposed of in 
 your absence. 
 
 This is a mechanics' lien action, brought to enforce a mechanics' 
 lien against the following lands (set out description of lands) . 
 
 This notice is served, etc. 
 
INDEX 
 
 Abandonment of contract, effect of, on lien, 389, 399 
 
 Discontinuance may not mean abandonment, 76 
 
 Status of new contractor, 93 
 
 Percentage computed in case of, 95 
 
 Of work by contractor, 389, 399 
 Acceptance of order, equivalent to payment, 470 
 Accessorial materials not included in lien on personalty, 203 
 Accidental destruction of chattel, 226 
 Accounts, how taken on summary judgment, 297 
 
 Parties entitled to notice of taking, 516 
 Action, to enforce lien on realty, adding lienholder as a party, 297 
 
 Amendment of bill in, effect of, 494 
 
 Appeal in, when it lies, 519 
 
 Begun by one lienholder sufficient, 253 
 
 Carriage of proceedings in, 516 
 
 Certificate of lis pendens to be registered, 495 
 Must be filed in time, 295 
 
 Commencement of, to enforce charge on percentage, 456 
 • Consolidation of, court may order, 513 
 
 Costs of, 521-523 
 
 Court in which to be brought, 505 
 
 Defence in, time for delivering, 505. 
 
 Deficiency, judgment to be awarded for, 341 
 
 Pees of court in, 520 
 
 For partial performance, 84 
 
 Forms of proceedings in, 266, 303, 345, 375, 411 
 See Forms. 
 
 How to be brought, 505 
 
 Is for penalty or forfeiture, 278 
 
 Judgment in, when appealable, 519 
 
 Judgment in, when final, 520 
 
 Jurisdiction of Divisional Court in, 520 
 
 Jurisdiction of County Court Judge in, 519 
 
 Keeps alive other liens, 510 
 
 Lienholders on same property need not be made parties, 509 
 
 Other lienholders may attend trial of, 513-515 
 
600 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Action — Continued. 
 
 Otlier lienholders may be let in to prove claim, 513 
 
 Lis pendens, when to be registered, 493 
 
 Materials, sale of, may be ordered in, 516 
 
 Mortgagee, prior, against, 506 
 
 Parties to action against prior mortgagee, 506 
 
 Premature commencement of, 14 
 
 Time for bringing action against prior mortgagee, 506 
 
 Payments out of court, how to be made in, 523 
 
 Plaintiff must show that his right of action is complete, 493 
 
 Procedure in, 493 
 
 Eegistered lien, time for, 495 
 
 Sale may be ordered in, 516 
 
 Statement of claim in, 505 
 
 Service of statement of claim in, 505 
 
 To enforce lien is a proceeding in rem, 28 
 
 Trial of, 516 
 
 Appointment of day for trial of, 516 
 
 Notice of trial of, 516 
 
 Premature commencement of, 14 
 
 Procedure at trial of, 516 
 
 Kequirements of certificate of, 295 
 
 Writ of summons dispensed with in, 505 
 Actions, consolidation of, 513 
 Acts, Mechanics' Lien, limitation of, 277 
 Advances made on account of any conveyance, effect of in relation 
 
 to lien, '465 
 Affidavit, agehts or assignees verifying claim by, 476 
 
 Persons authorized to take, 477 
 
 Must distinguish different classes of claims, 119 
 
 Proving claim for registration, 471 
 
 Defects in, 291 
 
 Sufficiency of, 291 
 
 Verifying statement of claim, 476 
 See Forms. 
 Agent, act of, deemed that of principal, 43, 59, 276 
 Agent, affidavit of verification by, 478 
 
 Binding principal, 145 
 
 Discharge of lien by, 499 
 
 For wife, husband acting as, 59, 60, 272 
 
INDEX. 601 
 
 Agents, del credere, supplying materials, lien for, 106, 232 
 Agreement, to waive lien on realty, effect of, 75, 426 
 
 To waive lien invalid as against persons not parties, 427 
 
 To waive lien must be signed, 426 
 
 Effect of on lien of third party, 426 
 Alberta Mechanics' Lien Act, 228 
 Alteration of building, lien for, 428 
 
 What constitutes, 437 
 Ambiguity of former sections, commented on, 5, 6, 7, 8 
 Amendment of claim material, necessitates re-registration, 336 
 Amendment cannot be made -after time for filing expires, 486 
 Amendment refused where land misdescribed, 275 
 Amendment of lien, right to, 294 
 Amendment of pleadings, 294 
 Amendment of statutes, effect of, 46, 47, 48 
 Amount of lien, 439 
 
 Arbitration, effect of agreement for, 150 
 Appeals in action to enforce lien, 519 
 Appeals, limitation of, 342 
 Appropriation of payments, 274 
 Area of land subject to lien, 17 
 
 Architect, provisions respecting, under Quebec law, 534,- 542 
 Architect, certificate of when condition precedent, 77, 88 
 
 Action against, for damages cannot be joined with lien claim, 
 90 
 Architect, certificate of, when unnecessary, 189 
 
 Undue influence of, 78 
 Assignment of lien of, 295 
 
 When entitled to lien, 70-72 
 
 Provision where architect refuses final certificate, 484 
 Artisan, lien of, on chattels. See Lien on Personalty. 
 Assignee of lienholder, affidavit of, for registration, 472 
 
 Eights of, 294; 472 
 
 When bound by agreement to waive lien, 426 
 Assignment of debt, by contractor, when invalid, 464 
 
 General, for benefit of creditors, effect of, 466 
 
 Of lien of architect, 295 
 
 Of lien must be in writing, 498 
 
 Of lien of lienholder, 465, 498 
 
 Effect of, on lien on chattel, 217 
 
602 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Assignment of Debt — Continued. 
 
 Priority of lien over, 464 
 
 Sufficiency of, 498 
 Attachment of debt, effect of, on lien on chattel, 217 
 
 Priority of lien on realty over, 179, 181, 464 
 Authority of owner, for work on chattel essential, 201, 205 
 
 May be implied from circumstances, 201 
 Bailee, delivery of chattel to, for safe custody, does not affect lien, 
 
 216, 222 
 Bankruptcy does not affect lien on chattel, 223 
 Bankruptcy of owner of realty, 85 
 Bias possible, does not disqualify engineer, 87 
 Bridge lien can be claimed for work on, 428 
 British Columbia Mechanics' Lien Act, 269 
 Builder had no lien at common law, 1 
 
 Must notify the proprietor of the immovable, of contract, under 
 Quebec law, 534, 
 Building, church is a, subject to lien, 437 
 
 Effect of, destruction of, 78, 437 
 Building, lien for erection of, 23, 84, 85 
 
 Failure to complete, 87 
 
 Lien on, apart from land, 23 
 
 For public or charitable use not liable to lien, 51 
 
 Municipal, not generally liable to lien, 52 
 
 Municipal, in Manitoba liable to lien, 50 
 
 When personal property, 24 
 Burden of procedure rests on plaintiff, 30, 32 
 Burden of proof rests on plaintiff, 77, 144 
 Care of chattel, lien claimant must take ordinary, 223 
 Certificate insufficiently complying with Act, 333 
 
 Cannot be set aside, when, 87 
 
 Architect's or engineer's, non-production of, when excused, 78 
 
 Conclusive character of, 88 
 
 Of lis pendens, when to be registered, 493 
 
 Architect's or engineer's, when condition precedent, 76, 85, 
 88, 431, 456 
 
 Begistration of contractor's lien after last, 484 
 
 Of architect no estoppel, 166 
 Charge on percentage, duration of, 456 
 
 Extent of, 457 
 
INDEX. 
 
 603 
 
 Charge on Percentage- — Continued. 
 
 Sub-contractor, when entitled to, 45 7 
 
 Time for bringing suit to enforce, 460 
 
 Wage-earners' priority on, 467 
 Classification of lien claimants, 28 
 
 Completion of building, acceptance by architect, conclusive evi- 
 dence of, 488 I 
 Chattel mortgage, priority of lien for fixtures over, 67 
 Chattels. See Lien on Personalty. 
 Church, is a buildibg subject to lien, 53 
 Civil law the foundation of lien system, 3 
 
 Prevailing in Holland, 4 
 Claim of lien, computation of time for filing, 186, 484 
 
 Contents of, 471 
 
 Defective, held sufficient,' 122 
 
 Description of property in, 476 
 
 Effect of misnomer of owner in, 36, 294, 475 
 
 Name of reputed owner in, 36, 294, 475 
 
 Verification of, 476 
 
 When against several adjacent buildings, 119 
 
 When time begins to run, 186, 484 
 
 When to be registered, 484 
 Coal mining is not "work" in respect of a building or improve- 
 ment, 144 
 Collateral security, effect of acceptance of, on lien, 501 
 Common law, gave no lien on realty, 1 
 " Completion," meaning of, 7, 291 
 Composition deed, execution of, releases lien, 217 
 Computation of percentage, 457 
 Condition precedent to enforcement of lien, architect's certificate, 
 
 77,88 
 Conditional Sales Act, effect of, 127 
 Consent of lessor must be written in some cases, 136 
 Consent of owner essential to lien, 142 
 " Consent," what is, 142 
 
 Mere knowledge of owner not, 142 
 
 Of lessor, in writing, necessary to charge fee simple, 136 
 Consolidation of actions, court may order, 513 
 Constitutionality of legislation respecting railways, 54 
 
604 THE LAW OF MECHANICS:' LIENS IN CANADA. 
 
 Construction of Lien Acts, general rules of, 33 
 
 Massachusetts Act, 42 
 
 New York Act, 42 
 
 Effect should not be given to technical objection, 40 
 
 Judiciary will not extend rules of, to eases not provided for, 41 
 
 Not retrospective, 46 
 
 Provisions creating the right to a lien strictly construed, 34 
 
 Provisions dealing with enforcement of lien liberally con- 
 strued, 40 
 Contract, acceptance of imperfect performance of, 455 
 
 Abandonment of, equivalent to completion in computing time 
 for registration, 76, 389, 399 
 
 Determined by wrongful seizure of works, 87 
 
 Effect of entire, 100 
 
 Husband's, when binding on wife's estate, 50 
 
 If rescinded, no lien for subsequent work, 76 
 
 Immoral, 91 
 
 Imperfect performance of, recovery notwithstanding, 84 
 
 Impossible of performance, effect of, 89 
 
 Including buildings owned by different persons, 276 
 
 Lien is dependent on, 10 
 
 Lienholder may demand terms of, 504 
 
 Minor not able to make, subjecting his property to lien, 54, 
 431, 439 
 
 Order for the inspection of, by lienholder, 504 
 
 Owner's improper termination of, 76 , 
 
 False statement of terms of, liability for, 504 
 
 Performance of, when not essential to recovery, 84 " 
 
 Prevented by destruction of subject-matter, 78 
 
 Quantum meruit, 82, 199, 232 
 
 Statement as to, when to be filed by contractor, 504 
 
 Time may be essence of, 87 
 
 Substantial performance of, 82, 83, 84 
 
 To waive lien, void, 426 
 
 By trustee binds trust estate, 13, 139 
 
 Waiver of terms of, 77 
 
 Waiver of time for performance, 83 
 
 Written, controls specifications, 88 
 Contractor, lien of the, 73, 421 
 
 Abandonment of work by, 76 
 
INDEX. 
 
 605 
 
 Contractor — Continued. 
 
 Assignee of, how far bound by agreement to waive lien, 427 
 
 Cannot defeat lien of sub-contractor, 315 
 
 Dismissal of, 76, 77, 78 
 
 Had no lien at common law, 1 
 
 Right to lien, 73 
 
 Materials furnished by, exempt from execution, 470 
 
 No lien for damages, 76, 199 
 
 Responsibility, where foundation walls collapse, 86 
 
 Restriction of lien, to amount to, 439 
 
 Effect of payments to, 460 
 
 Pay roll receipted when to be posted, 287 
 
 Particulars of contract when to be filed by, 504 
 
 Performance of contract by, when condition precedent to 
 
 recovery, 84 
 Personal representative of, how far bound, by agreement to 
 
 waive lien, 426 
 Cannot bind sub-contractor if not a party to agreement, 316 
 Cooking, no lien for, 278 
 Corporation, right of foreign unlicensed, to lien, 216 
 , May claim lien, 420 
 Property of municipal, when exempt, 49, 421 
 Costs, appointment of, 521 
 
 Limit of, in lien action, 521 
 Meaning of, 343 
 Of action to enforce lien, 521 
 Of registering discharge of lien, 523 
 Of registering lien, recoverable in action, 523 
 Owner, when liable to pay, 298 
 Payable out of percentage retained, 408 
 Counsel fees, when not taxable, 343 
 County Court, judges of, may make rules, 301 
 Judges of, may try lien actions, 513 
 General powers of, 513 
 Jurisdiction of, 515 
 Cumulative remedy, lien law a, 45 
 
 Credit, effect of, on time for' bringing action to enforce lien, 494 
 Evidence of, from entries, 123 
 Period of, to be stated in registered claim, 495 
 Effect of not stating period of, 497 
 
606 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 Creditors, order of priority of, under Quebec law, $34 
 Criticisms of legislation respecting liens., 5 
 Crown, goods of, not subject to lien, 325 
 Curtesy, rigbt to, 184 
 
 Custom of trade in Canada in relation to general lien, 201 
 Damages, action for, cannot be joined with claim to .enforce lien, 
 197,200 
 
 For non-completion, even if pot available as set off, may be 
 inquired info a.t trial, 84 
 
 Consequential, will not" give lien, 92 
 
 Fo lien for unliquidated, 199 
 
 Liquidated, can be retained by owner against sub-contractors, 
 199 
 
 Lien postponed to owner's claim for, 462 
 Day, fractions of, not counted in computing time, 196, 263 
 Death of lienholder, effect pf, 11 
 Defects in former Mechanics' Lien Acts, 5->8 
 Defect, ground for vacating registration, 263 
 Defective statement of claim or affidavit, effect of, 391, 292 
 Defence, time for delivering, 505 
 Defendants, who should be made, 501 
 Definition of common law lien, 1 
 Definitions. See Words and Phrases. 
 Delay in performance not necessarily breach, 84 
 
 Cannot be set off against lienholder, 92 
 Demolition of building may not give lien, 433 
 Description, what constitutes sufficient, 293, 476 
 
 Defects in, under Quebec law, 535 
 Destruction of property, effect of, on cpntraet or lien, 78, 437 
 Difficulties attending legislation respecting liens, 4 
 Discharge of lien, application for, 499 
 
 By agent, 500 
 
 Costs of registering,, hqw borne, 5J?J 
 
 How effected, 499 
 
 Motion for, 500 
 
 Eegistration of receipt, 499 
 
 Security may b§ required on, 499 
 Dismissal, action by contractor for- wrongful, 76 
 Dismissal of contractor, subcontractor finishing work, 89 
 Dismissal of contractor, and removal of plant, 76, 78 
 
INDEX. 
 
 607 
 
 Dower, when bound by lien, 54, 184, 449 
 
 Drain, lien for work on, 428 
 
 Drain pipe, lien for laying, 13 
 
 Dynamite considered " materials," 115 
 
 Enforcement. See Action, 
 
 Enforcement of lien in personalty, 227 
 
 England has no mechanics' lien law covering realty, 2 
 
 Equitable assignment, order amounting to, 235 
 
 Equitable estate, how affected by lien, 129 
 
 Equities cannot be invoked in construing I4en Act, 45. 
 
 Escrow, purchaser under deed held in, may subjeet interest to lien, 
 
 140 
 Estoppel, Acts which create, 158, 159, 160 
 
 Application of principle of, 150 
 
 Certificate of architect no, 78 
 
 In relation to lien on chattel, 220 
 
 In pais does not prevent lien, 153 
 
 Of owner, 137, 150 
 Evidence, of agency, 43, 59, 276 
 
 By entries, 123 
 
 Non-completion of contract, 88 
 
 Of incorporation of materials in building, 127 
 Execution, effect of, levy under, on lien on ehattel, 217 
 
 Lienholder may enforce claim by, 439 
 Execution, lienholder's right to, against primary debtor, 524 
 
 Material exempted from, 470 
 Experts, jeport of, establishes relative valuation in Quebec, 535 
 Extent of lien, 15-22 
 
 Extras, claim for, recoverable when, 127, 200 
 Extras, when lien may not be had for, 200 
 Jgm* extent of, covered by Hen, 15 
 Pees of court in action to enforce liens, 520 
 Fee simple, how bound, in contract with lessee, 451 
 
 Effect of instantaneous seisin of, 177 
 Fences, lien can be claimed for work on, 428 
 Fire, property destroyed by, lien attaches to insurance, 452 
 
 Effect on contract, 79 
 Firms, lien on chattel not lgst by dissolution of, 223 
 Fixtures, lien for, 63, 153, 379 
 
 Trfde, 140 
 
608 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Foreign corporation may claim lien, 238 
 Forms, judicial references to, 527 
 
 Affidavit of owner verifying account, 529 
 
 Affidavit verifying claim for registration, 529 
 
 Affidavit verifying claim in commencing an action, 527 
 
 Authorized by Act, 527 ' 
 
 Judgment in lien action, 531 
 
 Lien-holder's statement. of account, 528 
 
 Notice of sale of chattels, 526 
 
 Notice of trial of lien action, 530 
 
 Objections to, should not prevail, when no prejudice, 250 
 
 Precise verbiage not essential in, 479 
 
 Schedule of, to Act, 527-533 
 
 Statement of claim for work done or materials supplied, 527 
 
 Statement of claim for wages, 528 
 /Foundation, lien for work done on a, 431 
 Fraud will estop the owner of the fee from setting up his title, 158 
 
 Fraud, delivery of chattel when procured by, does not forfeit 
 lien, 222 
 Fraudulent claim of excessive lien, effect of, 15 
 Fraudulent retaking of chattel by owner, effect of, 222 
 Furnaces, lien for, '63 
 Future acquired property, lien on, 130 
 Future advances, effect of mortgage to secure, 447 
 Garnishment, priority of lien over, 465 
 Grading a lot, lien for, 435 
 
 Guardian of minor cannot create lien unless, authorized, 439 
 Gunpowder considered as "materials/' 115 
 Hauling materials, lien includes claim for, 123 
 High Court, enforcing lien in, 505. 
 
 Husband and wife, wife's interest when bound by contract with 
 husband, 19, 59, 272 
 
 Lien may be asserted by husband against wife, 19, 59 
 
 Husband presumed to be agent of,' 59, 163 
 Immoral contracts, 91 
 
 Imprdvements, inside of building, lien for, 13 
 Improvements, fixtures considered as, 64 
 Improvements, included in lien on realty, 14 
 Increased value, lien has priority over mortgage to extent of, 447 
 Incorporation of materials in building, when necessary for lien 
 107-109 
 
INDEX. 
 
 609 
 
 Incorporation of materials when not necessary for lien, 107-109 
 Infant entitled to lien, 16, 54 
 
 Cannot subject his property to lien, 54, 431, 439 
 Information, lien-holders may demand from owner, 504 
 Incumbrancers, how made parties to action, 516 
 
 Notice of trial to be served on, 516 
 Injunction restraining the removal of materials, 470 
 Instantaneous seisin, owner having, effect of on lien, 177 
 Insurable interest, 452 
 
 Insurance, proceeds of when subject to lien, 246, 452 , 
 Interest, an incident. of the principal sum, payable under the lien, 
 
 513 
 Interest of owner, 129 
 Interpleader, 246 
 Interpretation Acts, .effect of, 46 
 Interpretation of words. — See Words and Phrases. 
 Judgment against contractor not conclusive upon owner, 515 
 Judgment, priority of, 179 
 Judgment under Woodmen's Lien Act prevents judgment under 
 
 mechanics' lien proceedings, 166 
 Judgment, personal,' may be recovered, 524 
 Jurisdiction, service of statement of claim out of, 505 
 Jurisdiction, service of writ out of, 505 
 
 Jurisdiction, court has no, to enforce lien out of territorial, 29 
 Jurisdiction of County and Division Courts, 519 
 
 Of Master, 513 
 
 Of Court of Appeal, 520 - 
 
 In British Columbia, 297 
 King, goods of the, not subject to lien, 225 
 Knowledge of the owner that the work is being done is insufficient 
 
 to create lien, 74 
 Laborer, definition of, 270 
 
 Lien of, 423, 428 
 
 Employed in clearing land for cultivation not entitled to lien, 
 274,573; 
 Land set apart for educational purposes may not be subject to 
 
 lien, 51 
 Land, extent of, bound by lien, 14, 476 
 
 Precision required under Quebec law in describing, 535 
 
 Lien is an interest in, 11 
 
 m.l. — 30-(- 
 
610 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Landlord, interest of, when not bound by lien, 446 
 
 Lien upon the interest of, must be registered, 446 
 Leasehold, lien on, 129, 446 
 Legal services, no lien for, 69 
 
 Lessor, interest of, how bound on contract with lessee, 129 
 Lessee may subject property to lien, 11 
 Lienholders, any number may join in action, 510 
 
 Action by, to be for benefit of others, 510 
 
 Burden is on, to shew debt, 30, 32, 74, 144 
 
 Effect of agreement to waive lien, 426 
 
 Assignment by, 498 
 
 Eight of, as against attaching creditor, 465, 498 
 ■ Attendance of, at trial, 517 
 ' Classification of, 510 
 
 ' Death of, rights of personal representatives, 498 
 
 Notice of trial to be served on, 505 
 
 Owner may be required to give information to, 505 
 ' Priority of, 167 
 
 Eight to inspect owner's contract, 506 
 
 Eights of registered, 510 
 
 To be deemed purchasers, 483 
 
 May be let in to prove claim at trial, 517 
 
 Form of judgment in favor of, 531 
 
 Claim of, a preferential claim, 319 
 
 May assert lien upon the increased value even though con- 
 tract is never carried out, 130, 132 
 Lien on personalty, as distinguished from pawn or pledge, 204 
 
 Attaches when chattel comes in possession of mechanic,.. 202, 
 206 
 
 Characteristics of, 201, 202 
 
 Claimant must take care of chattel, 224, 225 
 
 Continues where claimant is prevented by owner from finish- 
 ing work, 222 
 
 Destruction of chattel, 226 
 
 Discharge of, where prevented by fraud, 222 
 
 Enforcement of, 227 
 
 Essentials of, 205 
 
 Effect of estoppel on, 220 
 
 Existence under civil law, 204 
 
 Extent of, 204 
 
INDEX. 611 
 
 Lien on Personalty — Continued. 
 
 For trade fixtures, 204 
 
 General, 201 
 
 Accessorial materials not included in, 204 
 
 How affected by attachment, execution or assignment, 217 
 
 How lost, 214 
 
 Originally gave no right to sell chattel, 204 
 
 Application of proceeds of sale, 526 
 
 Owner of chattel must authorize work, 205 
 
 Eights of owner of chattel, 224 
 
 Eights of third person under, 225 
 
 Not lost by dissolution of partnership, 223 
 
 Not lost by Statute of Limitations, 223 
 
 Not destroyed by unliquidated claim, 204, 222 
 
 May be lost by estoppel, 220 
 
 Particular, 201 
 
 Possession essential to, 206 
 
 Notice of sale to be given, 526 < 
 Lien on personalty, effect of taking security on, 215 
 
 Effect of tender, 219 
 
 Authority of owner, for work, implied, 206 
 
 Only work of skill will give, 212 
 
 Eight of sale given under, 526 
 
 Waiver of, 213 
 
 Instances which are not waiver of, 214, 215, 216 
 
 Not attachable or assignable, 217 
 Lien on movable property in Quebec, 548 
 Lien on realty a charge upon the whole realty, 14, 15 
 
 Action to enforce registered, time for, 493 
 
 Agreement to waive, effect of, 426 
 
 Agreement to waive, must be signed, 427 
 
 Amount for which it may be claimed, 442 
 
 Arises from contract or direct dealing, 10 
 
 History of legislation relating to, 8 
 
 Is an interest in land, 12 
 
 Architect, when entitled to, 70 
 
 Effect of destruction of building, 76, 437 
 
 Claims of lien for registration, 483 
 
 Commencement of, 431 
 
 Characteristics of, 451 
 
612 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Lien on Realty — Continued. '. .[ 
 
 Defects in claim for registration, 263, 291, 292 
 
 For materials before mortgage money is advanced, 167, 171 
 
 Classes of, 29 
 
 Of wage^earner,102 
 
 ' For work done on different lots, without apportionment, unen- 
 forceable, 18, 19, 20, 27.6; 277 " 
 
 Extent of contractor's] 73 , 
 
 Commencement of, 10 
 
 Contents of claim of, for registration, 471 
 
 Cost of registering recoverable, 521 - 
 
 Cost of discharge, how borne, 521 
 
 Effect of giving credit on, 495-497 
 
 Date at which it commences, 10 
 
 Effect of death of person entitled to, 10 
 
 Distinguished from vendor's lien, 19 
 
 Discharge, how effected, 499 • 
 
 Does not 'create an estate in the realty, 10 
 
 Duration of, 495 
 
 Equitable estate, how affected, 451 
 
 Equity how. invoked in construing right to, 41, 43 
 
 Estate or interest charged by, 10 
 
 Extent of land subject to, 16-18 
 
 How i,t arises, 10 
 
 Is against the land, not the person, 399 
 
 Has priority over mortgage to extent of increased value, 183 
 
 Effect of imperfect performance of contract on, 80, 84 
 
 For grading, 16 
 
 For fixtures, 63 
 
 For hauling materials to land, 123 
 
 Improvements outside of the building may be subject to, 13 
 
 Land Titles Act cannot over-ride Mechanics' Lien Act, 174 
 
 May be claimed on materials not incorporated in the building, 
 113-120 
 
 Increased selling value, lien on, 185 
 
 Instalments, when contractor may recover, 240 
 
 Instantaneous seisin, effect, of; 177 
 
 Insurable, 452 
 
 Of wife for contract of husband, 22, 57 
 
 Insurance money, when bound by, 452 
 
 Is a statutory right, 1 
 
INDEX. 
 
 613 
 
 Lien on Realty— ^Continued. 
 
 Eemedy is cumulative, 30 
 
 Laborer when entitled to, 272-275 
 
 Leasehold liable to, 11, 25 
 
 Limited to amount due by owner, 439 
 
 Limit of amount of, 439 
 
 Lessor's interest when bound by, 129-140 
 
 No lien for unliquidated damages, 197 
 
 No lien for boring for oil, 238 
 
 Minor may acquire, 16, 54 
 
 Public buildings exempt from, 50 
 
 Only owner's interest in land bound by, 451 
 
 Dominion railways exempt from, 54 
 
 Assignees of owner, how far bound, 295, 427, 472 
 
 No lien for clearing land, 275 
 
 Nature and scope of, 10 
 
 No lien upon one property for work on another, 18 
 
 Of contractor, 73 
 
 Of sub-contractor, 93 
 
 Trust estate may be subject to, 13, 139 
 
 Person entitled to, 31 
 
 Pre-emption, right of, may be bound by, 135, 271 
 
 Payments made to defeat the lien void, 456 
 
 Property affected by, not to be removed, 470 
 
 Priority over assignments, attachments, etc., 464 
 
 Eailway lands not subject to, 54 
 
 Whether discharged by destruction of building, 78, 437 
 
 Eegistration of, annulling, 499 
 
 Eegistry Act, how it affects, 472 
 
 Eelates back to commencement of work, 13 
 
 Separate buildings on same lot, 275 ' 
 ' • 'Sub-contractors entitled to, 93 
 
 Mode of realizing, 505 
 
 Takes effect from what time, 13 
 
 Takes priority over incumbrances not recorded when work was 
 begun, 13, 167 
 
 Unregistered, time for enforcing, 493 
 
 For wages, devices to defeat, void, 467 
 r Work done partly on land of owner and partly on land of 
 stranger, 20 
 
 Work, performance of, requisite to right of, 77 
 
614 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Lis pendens, certificate of when to be registered, 249 
 
 Signed and verified for registration, 493 
 Liquidator, status of, 182 
 Local judge, jurisdiction of, 336 
 Louisiana code based on civil law, 3 
 Manitoba Mechanics' Lien Act,- 316 
 
 Married Woman, interest of, when bound by contract of husbandj 
 19, 59-63, 272 
 
 Lien on property of, 19, 59-63, 272 
 
 Husband presumed to be agent of, 59, 163 
 Maryland enacted first statute respecting liens, 4 
 " Material " defined, 187 
 Materials, commencement of lien for, 105 
 
 Cost of, as distinguished for work done, must be stated under 
 Quebec law, 543 
 
 Definition of, 105, 470 
 
 Destroyed in the using, lien may be claimed for, 115 
 
 Furnished for wrong property, 25 
 
 Lien for, includes hauling, 123 
 
 When exempt from execution, 470 
 
 No lien for, where cannot be distinguished from other claim, 
 119 
 
 Incqrporation of, in building, how for necessary, 107-114 
 
 Not incorporated in building, lien may be claimed for, 107 
 
 Must be contemplated for particular property, 107-114 
 
 No lien if debt ceases to be for, 107 
 
 Parties must intend to use, 110 
 
 When treated as " used," 126 
 
 Eemoval of, forbidden, 470 
 
 Eented articles are not, 122 
 
 Sidewalks, lien for, 106 
 
 No lien unless good supplied for particular building, 107-114 
 
 Sale of, may be ordered in action, 516 
 
 Supplying in manufactured foTm, no lien for labor, 105 
 
 Distinction between a furnisher of, and a workman, under 
 Quebec law, 540 
 
 Notice to be given by supplier of, under Quebec law, 548 
 Materialman, lien of, 105 
 
 Mechanics, right of, to lien. — See Liens on -Personalty, Liens, on 
 Eealty. 
 
INDEX. 615 
 
 Mines subject to mechanics' liens, 43? 
 
 Mineral claim option, may be subject to lien, 187 
 
 Minors entitled to lien, 16, 54 
 
 Cannot subject their property to lien, 54, 431, 439 
 Misrepresentation will operate as estoppel of owner, 158 
 Mistake in claim, effect of, 476-480 
 Mistake, effect of erecting building on wrong lot, 25 
 Mortgage for money to be advanced for building purposes, priority 
 
 of, 181 
 Mortgage, chattel, priority of, 176 
 
 Subsequent to lien, but given to pay off prior incumbrance, 167 
 
 Prior lien ranks in priority to, for increased value of land, 167, 
 171 
 
 Bona fides of, not dealt with in proceedings to enforce lien, 474 
 
 May be made before commencement of work and not be a 
 prior, 446 
 
 Subsequent, takes priority over unregistered lien, 447 
 Mortgagee, prior, priorities of lienholders against, 448 
 
 May be estopped by conduct, 150 
 
 Parties to action to enforce lien against, 505 
 
 Time for bringing action against, 493 
 
 Eight of lienholders as against subsequent, 167 
 
 A necessary party to proceedings for lien against increased 
 value, 448 
 Mortgagor is " owner " until foreclosure, 139 
 Municipal corporation, property of, whether liable to lien, 254 
 Municipal buildings in Manitoba subject to liens, 50 
 New Brunswick Mechanics' Lien Act, 349 
 Newfoundland legislation, 27 
 New York Lien Act, how construed, 42 
 Note, taking promissory, when waiver of lien, 150 
 
 Made by contractor, owner who takes up, entitled to be 
 credited, 150, 501 
 Notice of lien, effect of, no prior registration, 178 . 
 
 Imperfect, when sufficient, 473 
 
 By person claiming a lien, effect of on payments, 461 
 
 On sale of chattel, 526 
 
 By workman, omission to give, immaterial under Quebec law, 
 539 
 
 Sub-contractor to give, 463 
 
616 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 Notice of Lien — Continued. 
 
 Sufficiency of notice of lien, 471 
 Which workman must give in Quebec, 546 
 Ontario Lien Act, historical development of, 2 
 Onus of proving increased value, on claimant, 167 
 Onus may shift, 32, 173 
 
 Option, estate of the holder of an, may be subject to lien, 278 
 Origin of lien on land, 2 
 Origin of lien on chattels, 1 
 Overpayment to contractor, 238 
 Owner of chattel, rights of, 224 
 
 May inspect property, 224 
 
 Authority of, for work, implied from circumstances, 215 
 Owner of realty, definition of, 129, 420 
 
 Accepting work, 84 
 
 Kiglit of, to information, 13 
 
 How far p bound by lien, 445 
 
 Consent of, when necessary, 130 
 
 May be required to give information to lienholder, 504 
 
 Estoppel- of,. 157 
 
 Infant as, cannot subject property to lien, 54, 431, 439 
 
 Includes railway company, 54 
 
 Instantaneous seisin of, 167 
 
 Interest of, 129 
 
 Extent of liability of, 17 
 
 Becomes a trustee of statutory fund, 13 
 
 Married woman, 19, 59, 272 
 
 Mere knowledge of work will not create lien against his inter- 
 est, 129 
 
 Effect of payments by, to contractor, 460 
 To sub-contractor, 460 
 
 Percentage of price to be retained by, 456 
 
 Ketention of percentage, how far compulsory, 462 
 
 Effect of taking possession where contract imperfectly exe- 
 cuted, 84 
 
 Partnership, effect of, 69 
 
 Privity of, contract, necessary, 446 
 
 Occupation of premises by, is not acceptance of work,- 84 
 
 When set-off may not be set up by, 287 
 
 Trustee as, 13, 139 
 
INDEX. 617 
 
 Owner of Eealty — Continued. 
 
 Work must be done at his request, 446 
 
 Vendee in possession under contract to purchase an, 137 
 Owners of real estate formerly apprehensive of effect of Lien Act, 5 
 Particulars, sufficiency of, 471 
 Parties in lien suits, adding, 506 
 
 Assignees, 294, 472 
 
 Defendants, 506 
 ■ Plaintiffs, 506 
 
 Husband and wife, 19, 59, 272 
 
 Eights of, concluded by decree, 30 
 
 Liable, must be before court to determine amount due, 453 
 Partner, powers of, 68, 82 
 
 Partnership, lien on chattels not lost by dissolution of, 82 
 Payment to contractor, validity of, 460 
 
 Made to defeat lien, void, 467 
 
 Premature, not protected, 461 
 
 By owner, validity of, 457 
 
 Definition of, 460 
 
 Acceptance of order, equivalent to, 470 
 
 Into court by owner, effect of, 513 
 
 Out of court, how to be made in action, 523 
 
 To subcontractor, validity of, 460 
 Pay-roll receipted to be posted on work, 287 
 " Pay-roll or sheet," meaning of, 287 
 
 Receipted for woodman's wages, 287 
 Pennsylvania one of the first States to introduce lien law, 4 
 
 Act, scope of, 14 
 Percentage to be retained, sub-contractor's rights in, 390 
 
 To be retained, wage-earners' rights in, 467 
 
 To be retained on amount actually earned, 457 
 
 Must be retained for period of thirty days, 456 
 
 Person paying more than specified percentage does so at his 
 peril, 457 
 
 How computed, 458 
 Performance of contract, excuses for abandonment, 86 
 
 Effect of taking possession, 86 
 
 Mechanic prevented from, without his fault, 85 
 
 Substantial, 83 
 
 Trivial imperfection of no effect, 83 
 
 m.l. — 39a 
 
618 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Personal judgment, statutory remedy ftot forfeited by, 165 
 Personal' representative, when bound by agreement to waive lien, 
 .. 427 
 
 Of deceased lienholder entitled to lien, 498 
 Personalty. — See Lien on Personalty. 
 
 Pleading, objection as to non-compliance must be alleged in, 288 
 Possession of real estate, effect of owner taking, 86 
 
 Of chattel essential to lien, 205 
 
 Exclusive, not essential, 207 
 ■ Must be lawful, 206 
 
 Must be uninterrupted, 205 
 
 Actual and constructive, 205 
 
 Involuntary surrender of, does not affect lien, 206 
 
 Eegaining of, will not revive lien, 211 
 
 What is sufficient, 207 
 Possessory interest may be chargeable with a lien, 138 
 
 Powder, lien for, 115 
 Pre-emption, right to, may be bound by lien, 271 
 Price to be paid by owner, charge on, 456 
 
 Eetention of percentage authorized, 456 
 Priorities as between mechanics' liens, 167 
 
 Order of, under Quebec law, 543 
 
 How affected by notice, 461 
 Privilege, duration of, in Quebec, 544 
 
 Order of claims of, under Quehec law, 561 
 
 Special, of a mason under Quebec law, 539 
 
 In favor of supplier of materials under Quebec law, lapses 
 when, 541 
 
 Persons entitled to, order of priority of, under Quebec law, 543 
 Procedure to enforce lien on personalty, 227 
 Procedure to enforce lien on realty, 510 
 Proceeding in rem, lien is in the nature of, 24 
 Proceedings, carriage of, 516 
 Profits, no lien for loss of, 199 
 Promissory note, taking, when waiver of lien, 150 
 . Effect of, on claim in Quebec, 545 
 
 Made by contractor, owner who takes up entitled to be 
 credited, 503 
 Property subject to lien, area of, 50 
 
 Buildings, 50 
 
INDEX. 619 
 
 Property Subject to Lien — Continued. 
 
 Fixtures, 63 
 
 Mines, 437 
 
 Public, 50 
 
 Eailway, 54 
 Public property exempt, 50 
 Pumping water, claim for, allowed, 435 
 
 Purchaser, where part of money unpaid, deemed mortgagor, 139 
 Quantum meruit, when lien allowed for, 82, 199, 232 
 
 No claim as on a, where contract entire, 79 
 Quebec Act of 1774, provisions of, 3 
 Quebec law, 534 
 Eailway company, lien on lands of, 54, 58, 59 
 
 Eights of builder of, under Quebec law, 535 
 
 Dominion, how far affected by, 54 
 
 Description of lands of, for registration, 476 
 
 How far Ontario Lien Act applies to, 54 
 
 Not included in definition of " owner," in Manitoba, 315 
 Eatification by wife, of act of husband, 59-61 
 Eeceipt on discharge of lien, 499 
 Eeceiver, effect of appointment of, 184 
 Eegistration of lien necessary to keep it alive, 11, 12, 263 
 
 Prior, effect of as against lien, 74 
 
 Costs of, recoverable, 521 
 
 Claim may be registered by assignee, 471 
 
 Discharge of, order for, when made, 499 
 
 Claim for, may include any number of properties, 478 
 
 Time for, not prolonged by supplying trifles, 7 
 
 Dispensed with, when, 482 
 
 Duty of registrar on, 482 
 
 Effect of omission of duty of registrar, 482 
 
 Pee for, 482 
 
 Eegistry Act, application of, 173 
 
 Time for, of sub-contractors, 495 
 
 Informalities in, not to invalidate, 473 
 
 Manner of, 482 
 
 When made in land titles office, 471 
 
 Defective description in, under Quebec law, 535 
 
 Time for, 483 
 
 Vacating, on giving security, 499 
 
620 THE LAW OP MECHANICS' LIENS IN CANADA. 
 
 Registration of Lien — Continued. 
 
 Of lien for wages, 483 
 
 Of privilege of builders, under Quebec law, 555 
 
 Of lis pendens when necessary, 495 
 
 Of contractor's lien, after last certificate, 484 
 
 Of land in different divisions, 472 
 
 Of a builder's lien, under Quebec law, time limited for, 539 
 
 Purpose of, 12 
 
 Effect of notice on prior, 483 
 Registry Act, how lien proceedings may be affected by, 472 
 Remedial legislation, Lien Act is, 36 
 Remedy cumulative, a mechanics' lien is a, 45 
 Rentals, loss of probable, claim for, 197 
 Repairs, lien for, 428 
 
 Repeal of lien law, construction of repealing Acts, 46 
 Representation and warranty, distinction between, 80 
 Replevin, effect of, on lien, 2-18 
 
 Report on sale of land to be made by judge or officer, 518 
 Residence, sufficient description of, 328 
 Retrospective effect, Mechanics' Lien Acts to have no, 46 
 Rules of practice and procedure must be applied, 509 
 Running account, principles applicable to, 186 
 Sale of chattels, right given by the Act, 201 
 
 Of land, court may order, 517 
 
 Of materials may be ordered, 517 
 
 Report on sale of land, 518 
 
 "Notice of, of chattels, 526 
 
 Of immovable by proprietor cannot affect privilege under 
 Quebec law, 549 
 School-houses subject to lien, 50, 52 
 Security, effect of taking, on lien on land, 501 
 
 Effect of taking, on lien on chattels, 214 
 
 Otherj if looked to, destroys lien on chattels, 214 
 
 Vacating. lien on realty on giving, 499 
 Service, hen for, 491 
 
 Meaning of, 491 
 
 Claim for, when to be registered, 484 
 Service of statement of claim out of jurisdiction, 505 
 Service of notice means personal service, 460 
 
' INDEX. 621 
 
 Set-off does not affect lien on chattel, 214 . 
 
 Owner may, against claim of contractor, a payment to sub- 
 contractor in certain cases, 89 
 Sheriff's rights under levy on chattel covered by lien, 217 
 Ship, lien On, for repairs, 410 
 Sidewalk, lien for materials, 428 
 
 Lien for work on, 428 
 Specifications, contract must be performed according to, 455 
 Specifications controlled by written contract, 86 
 
 Owner does not warrant that they can be carried out, 87 
 
 Written contract controls, 86 
 Statement of claim, proceedings to be commenced by filing, 505 
 
 Immaterial defects in, 472 
 
 •Service of, when to be effected, 505 
 
 To be verified by affidavit, 476 
 Statute of Limitations, lien on chattel not lost by, 222 
 
 Does not give a lien but only potential right of creating it, 31 
 
 Interpretation of, 33 
 
 Eepeal of, 46 
 Statutory percentage, owner a trustee of, i3 
 
 How it is paid, 98, 102 
 Storage charges on chattel not recoverable, 210, 224, 225 
 Street, public, not the subject of lien, 426 
 Sub-contractor, earlier legislation valueless to, 4 
 
 Assignment by,' when invalid, 288 
 
 Definition of, 117 
 
 Acquires no lien for materials until incorporated in build- 
 ing, 109 
 
 Estoppel of, 234 
 
 Lien of, 8, 29, 93, 452 
 
 Default of, 88 " " 
 
 When contractor in default, rights of, 89 
 
 Lien Hot by way of subrogation, 93 
 'Limit of claim of, against owner, 454 
 
 Under contract as such, cannot claim as materialman, 125 
 
 Exemption of materials from execution, 470 
 
 Notice of lien to be given to owner, 455 
 
 Effect of neglect to give notice, 455 
 
 Payment of, by owner, 460 
 
622 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Sub-contractor — Confirmed. 
 
 Owner may set up stipulation with contractor as answer to 
 claim of, 454 
 Subrogation lien of sub-contractor not by way of, 93, 429 
 Substantial compliance with certain sections sufficient, 37, 39, 250, 
 
 329,481 
 "Substantial performance," doctrine of, 80, 82, 83 
 Substantial performance of contract by sub-contractor a condition 
 
 precedent to payment, 15 
 Sunday, when included in computation of time, 196, 487 
 Superintendents, when entitled to lien, 72 
 Tax, special, purchaser takes land subject to, 519 
 Teamsters, lien for work of, 236 
 Technicalities disregarded once lien is created, 38 
 Tenants, rights as to certain fixtures, 67 
 Tender, effect of, in relation to lien on chattel, 218, 219 
 
 Made for the purpose of deceiving other tenderers, effect of, 
 , 76, 84, 88 
 Time, computation of, 186, 187, 249 
 
 When Sunday included in computation of, 196 
 
 Essence of contract, when, 87 
 
 Limited for registry, who computed in Quebec, 535 
 
 For action to enforce registered lien, 494 
 
 For registering lis pendens, 495 
 
 Inexact statement in claim as to, sufficient, 186 
 Third parties not deprived of lien by agreement, 426 
 ' Trade fixtures, law relating to, unchanged, 204, 432 
 Trial, appointing day for, 516 
 
 Notice of, 516 
 Trifling work supplied after substantial completion, 186 
 Trust estates when subject to mechanics' liens, 13, 139 
 Use by owner not necessarily acceptance, 86 
 Valuation additional, how ascertained under Quebec law, 534 
 Vendor, interest of, when bound, 279 
 
 Lien of, distinguished from mechanics', 19 
 Wages, definition of, 421 
 
 Lien forj priority of, 467 
 
 Contract not fulfilled in case of lien for, 467 
 
 Devices to defeat lien for, void, 467 
 
INDEX. 623 
 
 Wages — Continued. 
 
 Priority of lien for, 467 
 
 Kegistration of lien for, 484 
 Wage-earner, lien of, 102 
 
 Priority of, 183 
 Waiver of architect's certificate, 86 
 
 Lien on realty, acts which are not, 150,. 153, 154 
 
 Terms of contract, 77 
 
 Lien, effect of agreement for, 150 
 
 Other rights, filing claim for lien not, 473 
 
 Lien on realty, by workman, void, 426 
 
 Lien by submitting matter to arbitration, 150 
 
 Lien on personalty, loss of possession, 206 
 
 Lien on personalty, by taking security, 214 
 
 Lien on personalty, by assignment or execution, 216 
 
 Lien on personalty, various modes of, 201 
 Warranty and representation, distinction between, 80 
 Wharves, lien on, 438 
 
 Meaning of, 53 
 
 Widow's dower, subject to lien, 54, 184, 449 
 Wife, interest of, when bound by contract of husband, 19, 59, 272 
 
 Lien on property of, 19, 59, 163, 272 
 
 Husband presumed to be agent of, 59, 163 
 Winding-up Act, lien a preferential claim under, 59, 163, 278, 439 
 Woodmen's Lien Act, prior action under, effect of, 280 
 Woodmen's wages, provisions as to, 275 
 Words and phrases : — 
 
 " Abandonment," 76, 389, 399 
 
 "Adjacent to," 112 
 
 " Altering," 437 
 
 "And," 40 
 
 " Any kind of debt," 278 
 
 " Any person," 6? 
 
 " Building or erection," 351 
 
 " By the day," 103 
 
 " Claim," 316 
 
 " Completion," 7, 291 
 
 " Consent," 145 
 
 "Contract," 398 
 
 " Contractor," 92, 420 
 
624 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Words and Phrases — Continued. 
 "Creditor," 11 
 "Day," 185 
 " Delivery," 273, 292 
 " Enjoyed with," 26, 234 
 "Erecting," 72 
 " Extra work," 237 
 " Fixtures," 65 
 " Furnished," 122 
 " Furnisher of materials," 234 
 " Has ceased," 231 
 u Improvement," 66 
 " Improving," 437 
 " Increased value," 448 
 " In the erection of the building," 104 
 " In the making, constructing," 434 
 "'In the meantime," 497 
 " In respect of," 432 
 " Interest," 135, 274 
 "Incumbrance," 453 
 "Justly due," 95 
 " Justly owing," 96, 198 
 "Knowledge of the work," 244 
 " Labor," 69. 
 " Land is situated," 475 
 "Land on which," 17 
 " Leaseholder," 135, 245 
 " Lienholder," 26 
 " Materials," 17, 107, 114, 115, 116 
 " Materials supplied," 482 
 " Materialman," 291 
 " Mine," 389 
 " Month," 509 
 " Mortgage," 241 
 " Mortgagee," 170 
 " Near," 112 
 " Notice in writing," 461 
 " On or before completion," 328 
 " On or about," 292 
 " Other structures," 54 
 
INDEX. 625 
 
 Words and Phrases — Continued. 
 " Or," 40 
 
 " Owner," 130, 139, 141, 229, 245, 279, 350 
 " Name and residence," 473 
 " Payable," 198 
 " Payments," 460 
 " Payments to be made," 99 
 " Percentage," 468 
 " Person," 55 
 
 " Person primarily liable," 393, 457 
 " Placed/' 111 
 " Placing," 236 
 " Prejudiced," 250 
 " Prior mortgage," 169 
 " Primarily liable," 393, 457 
 " Privity and consent," 130, 144 
 "Eealized," 333. 
 " Eepaired," 147 
 " Eepairing," 437 
 " Eegistry office," 421 
 " Bequest," 130, 142 
 " Service," 10, 11, 71 
 " Service of notice," 461 
 "'Sub-contractor," 117 
 " Subsequent encumbrancers," 245 
 " Substantial compliance," 479 
 " Substantial performance," 80 
 " Supplies," 120 
 " The contract," 102, 332 
 " To be used," 432 • 
 
 " The last material," 194 
 " Unjustly made to suffer," 250 
 " Upon," 112 
 
 " Upon the credit of the owner," 143 
 " Used," 126 
 
 " Value of the work done," 468 
 " Wages," 421 
 "We have secured contract for hotel which requires above 
 
 goods," 105 
 " Wharf," 438 
 
626 THE LAW OF MECHANICS' LIENS IN CANADA. 
 
 Words and Phrases — Confirmed. 
 
 " Without notice," 461 
 
 "Work," 69, 71 
 
 " Work or labor upon a building," 69, 71 
 
 "Work upon the construction," 237 
 Work, on chattel must be skilful, to create lien, 205 
 
 On chattel must be authorized by owner, 205 
 
 Eor realty need not be done at site of building, 73 
 
 Must be in accordance with contract, 75 
 Workman for materialman not entitled to lien, 103 
 Workman, distinction between, and manufacturer, 542 
 
 Enhanced value given to moveable by, how settled, 543