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" Woe unto him that bulldeth hiR hou»e by unrighteousnesi, and his chambers by wrong; that useth bia neighbour'a service without wages, and giveth him not for his work." TORONTO : ROWSELL & HUTCHISON, 1878. ^' ./,>v Sntered according to Act of Parliament of Canada, in the year of our Lord one thousand eight hundred and seventy-eight; by Gboroe Smith Holmestzd, in the office of the Minister of Agriculture. «& ■K/ ti . J i.lO'lf .'!>^/0 ' i J 1 1 - MWSf LL AMD HUTCmsON, PRIXTBR8, KIMQ STtBtT, TOBOMTO. PREFACE. Prior to the passing of " The Mechanics' Lien Act" of 1873, mechanics and others, doing work, or furnishing materials, for the erection, alteration, or repair of buildings upon the lands of another, were not by the law of the Province of Ontaria entitl . 1 to any lien or claim upon such lands, for the price of the work and materials, so done, or furnished. Under the law as it formerly stood, the only remedy for work done upon, or materials put into, buildings, was such as might be afforded by the personal liability of the person, for whom and at whose request, and upon whose credit, the work was done, or materials furnished. The materials by being incorporated into the structure upon the land in most cases became, in contempla- tion of law, part of the soil, and as such were liable to be sold under executions against the lands of the owner, or would pass to a transferee of the land. This state of the law operated harshly on mechanics and others who had done work and furnished material, and they were often doomed to see the fruit of their labour and money pass into the hands of others, without having received, or being able to collect from their debtor, any compensa- tion whatever therefor. „ ir/iij- ^ IV PREFACE. The object of **The Mechanics' Lien Act" is to remedy this apparent injustice, and to aflPord to those doing work, or supplying materials, for the erection, repair, or alteration of buildings upon the land of others, the additional security of a lien upon the land (including all erections thereon) for the price of such work and materials ; and by this means to prevent as far as possible their labour and materials from being appropriated by others, without their receiving compensation. Legislation of this kind has been frequent in the United States and in many States of the Union, laws of this kind are to be found in force. The first Mechanics' Lien Act which came into force in this Province was passed in the year 1873. It restricted the i-ight of lien on the land, to those who had contracted directly with the owner of the land ; but it gave to sub-contractors the right of serving notice of their claims upon the owner, and upon such notice being served, authorized the owner to pay the claims out of any money due by him to the contractors primarily liable therefor. In 1874 a further Act was passed which extended the right of lien on the land to sub-contractors. The Act of 1873 was not in express terms wholly repealed, but only so much of it as conflicted with the later Act, but many of the sections of the Act of 1873 were re-enacted verbatim in the Act of 1874. Out of these two Acts the Revised Statute was consolidated, and it has been said of the consolidation that it has in some PREFACE. y respects partaken more of the character of legislation than the consolidation of existing Acts. (See Walker v. Walton, 1 App. E. p. 592., per Proudfoot, V. C.) Any doubts, however, as to the legal effect of the revision are now set at rest by 41 Vic. c. 6, (0.) The Act as it now stands appears open to three objections. Fird, — That it cas,ts upon the owner, who may be in no default whatever, the burthen of getting removed from the registry at his own expense, the various liens which may be recorded against his land. In the case of Walker v. Walton, supra, Mr. Justice Burton stated that a case had come under his notice, where a proprietor had put up a building, and had paid his contractor as his payments fell due, and on endeavouring to deal with his property, found no less than thirty-two claims registered against it, by parties who had been employed by the contractor, and although it was true none of these claims could be enforced, yet it prevented the owner dealing with his property, until he had gone to the expense of getting all the registrations removed. Where liens are registered against the lands of an " owner" who has made no default, he ought in bare justice to be allowed to retain out of the money payable under his contract, the expense of removing such liens from the registry. Secondly, — The statute provides in effect that the institution of a suit by a lien-holder shall keep alive all other liens of the same VI PREFACE. class. Some of these liens may not have been registered, and after the institution of the suit, there is nothing in the Act to require their registration. ,...- — The fact that claims may thus be kept alive without registra- tion seems likely to lead to difficulty, both in ascertaining who are the parties properly entitled to the benefit of the suit, and also in making title to lands sold under decrees made in such suits. If the benefit of the suit were restricted to lien-holders of the same class, whose claims are registered before, or within a limited time, say thirty days, after the institution of the suit, these difiiculties would be obviated. Thirdly, — The form of statement of claim for registration as set forth by the Act, does not require the claimant to show when the debt in respect of which the lien is claimed, is due and payable. This is necessary in order that persons searching th^ registry may be enabled to see when the period for bringing a suit to enforce the lien will expire. Wherever credit has been given this should appear. The result of this defect in the form of claim is, that the Registry Office really affords no evidence as to the time when registered liens will cease, unless prosecuted by suit. The language of the Act is in some places somewhat obscure, arising in part from the blending of the two Acts of 1873 and 1874 into one. Instead of contenting myself with pointing out the difficulties, I have deemed it better to state my opinion as to the probable meaning of the passages where they exist ; at the PREFACE. VU same time I have done so with some diffidence, and not without feeling that the views which I have expressed may not in all cases commend themselves to the judgment of others. In preparing this edition of the Act, I have endeavoured to elucidate its meaning and effect, not only for the professional reader, but also for the class for whose benefit the Act was designed, and I am in hopes that it may prove of some practical utility to both classes of readers. i The number of reported decisions upon the Act thus far pronounced in our own Courts, is comparatively few, but con- siderable light is cast upon it by the decisions of the Courts of the United States on kindred statutes., and I have particularly to acknowledge my obligations to Mr. Phillips for the assistance which I have derived from his book on Mechanics' Liens, in the preparation of this little work. i > ' In addition to the Act giving mechanics a lien on land, the Act empowering artisans and others to sell chattels on which they have acquired a lien, is also included. . „, ,..-.,;. , -, - ... G. S. H. Osgoode Hall, August 24, 1878. ,,.,,. .. . ! ■ M i i « . '/■ i> ^<•/■J>,; ;. v;-v 'U'/i^'ti; ,.a'-''i^', v.'i % ■;■■■• ■uh-f^\ a.mAX A .. ... 'f^' if '''^'" . m ,.: .» TiBii^'Vi m<&. • ,.. ,., ,:.,.. ■..:».: %/■.,.'■ J-^..^ -- s t3ii'ii<; -if i?T; -1'3^a?^ ' TABLE OF CASES. Ai'iuovir V. Carrathers 22 Arnbery v. Thornton 34 A noldi T. Qouin 9 Babcook ▼. Bedford 16 Bateman t. Boynton 88 Boult V. Wellington Hotel Co 16 Brett ▼. Smith 16 Broughton v. Smallpieoe 21 Bunting T. Bell 5, H, 83, 40 Burnhnm v. Waddell 64 BurrittT. Reniban 18, 84, 40, 42 Collins V. Martin 6 Copley V. O'Neill 6 Coraant q. t. V. Taylor ., .. 41 Crawshay v. Homfray 63 Crone ▼. Struthers 20 Currier v. Friedrick 14, 19, 84 Dempsey ▼. Carson 68 Douglas v. Chamberlain 7, Ul, 22 Ellis T. Hamelin 10 Esslinger t. Huebner 7, 11 Fraserv. Looie 22 Oreenbill ▼. Church '...., 88 Hamilton n . Bankin 88 Hartley v. Hitohcook 68 Hartop V. Honre 64 Hovenden t. Ellison 88, 40, C6 Jackson ▼. Cummins 62 King V. England 64 Lucas T. Goodwin 10 Milburn v. Milbum . . . , 68 Munro v. Butt lO MoCormick v. Bullivant 6 McNeil V. Eeleber 68 Pattinson ▼. Luckley 10 Pawson V. Hail 16 Rand T. Leeds lo Richards v. Chamberlain 7 Smith V. McDonald 80 Wagner v. Jefferson 7 Walker V. Walton t Williams V. Grey 61 / ■.:r^,U^.':>. .-. .1 ': J .i <.■.., -fee; t J i ! C X ■• i;: i=^'\-ii\i i" ■)&: f}j '.'■.'■'• ^•••jcfXC^.i/vXM" ^'::/.;ji,]Hij?.,'l*^ -.%. i;.-,*? ,3 csr'(- '■;■,' ■t-." ,•! M.ii:{ .■.tsaO )j;;i-»JiOi-itH*.J j't., a;/tTt'' ;i(|j -' .*■!] .-VA i-fivrtc- ■EJ!' £!;,V.y/ i (;i THE MECHANICS' LIEN ACT, ; BBINO THD REVISED STATUTE OF ONTARIO, CHAPTER 120. An Act to establish Liens in favour of Mechanics, Machinists, and others, (a) ■' Short title, s. 1. Interpretation, s. 2. Lien where to arise, e. 8. Registration of claim, ss, 4, 6. Property upon whioli lien to at« taoh, 8. 6. Mortgages, extent to which have priority over liens, s. 7. Claims against lien holders : May be paid by the owner of the premises, s. 8. DeterminaiioQ of, when dis- puted, s. 9. Failure to pay amount awarded, B. 10. Payments made before notice of claim to lien, s. 11. Realizii^g liens : In County, and Diyision, Courts, 8. 12. In Chancery, 8. 13. Sale may be ordered, s. 14. Suits to be for all lien-holders, B. 15. Death of lien-holder, s. 16. Where several lien-holders, pro rata distribution, s. 17. Arbitration where amount of claims of sub-contractors dis- puted, ss. 18, 19. Unregistered liens, when to cease, s. 20. Registered liens, when to cease, 8. 21. Property affected not to be re- moved, 8. 22. Security in lieu of liens, ss. 28. 24. Materials for building, when exempt from executions, s. 25. Registry Act not to apply, 8. 26. (a) This Act came intr for^e on Slat December, 1877. (See R. S. 0., p.Wii.) THE MECHANICS LIEN ACT. ; I ^ Sections 1, 2. TTER MAJESTY, by And with the advice and con- "^•■^ sent of the Legislative Assembly of the Province of Ontario, enacts as follows: — Short Title. 1. This Act may be cited as " Ths Mechanics' Lien Act" interpreta- 2. In the Construction of this Act— tion of words ■ KK " Contrac- tor." ;4 : -i^,i;.r " SalM»n- traotcr." (1) " Contractor" (a) shall mean a person contracting with or employed directly hy the owner for the doing of work, or placing or furnishing of machinery, or materials for any of the purposes mentioned in this Act,: ;^, ^ "\..^^ (2) "Suh-contractor" (6) shall mean a person not con- tracting with or employed directly by the owner for the purposes aforesaid, but contracting with or employed by the " Contractor," or under him by another " Sub- contractor " ; and " Owner." (3) « Qwner " (c) shall extend to and include* person having any estate or interest, legal or equitable, in the lands upon, or in respect of which the work is dane» or materials or machinery are placed or furnished, at whose request and upon whose credit, or on whose THE MECHANICS LIEN ACT. behalf, or with whose privity or consent, or for whose ^"^'°° ^ direct benefit any suc h work is done, or materi* Is or machinery placed or furnished, andall persons claiming under him, (cZ) 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. (38 Vic. c. 20, s. 1.) * (a) " Contractor" Every person contracting directly with the "owner" Contractor, is a " contractor" under the Act. Where therefore the " owner" ooq- tracts with several different persons to construct different parts of the building, each person so contracted with is a " contractor," and eacli "contractor" would appear to be a heu-holJer of the same class. ■.•;;'*'• {5'ee Bunting v. Bdl, 23 Gr. 584. ) bit '■lA ft>':?:»; \K'/-i:>iAi,.W ,vfvV the land. (6) ** Sub-contractor." Underthe Act of 1873 ••sub-contractors" were Sub-contrac- not entitled to register liens, but were only entitled to give notice to torentiund the "owner" of their claims against the •contractor." {See section *ol'6non 8.) The Act of 1874, however, extended the right to register liens, to "subcontractors." {McCormkh v. BulUmnt, 25 Or. 273.) By the definition here given of the word " sub-contractor" it would seem to include all sub-contractors, in however remote a degree they may stand from the original contractor. For example, if A contract with the *' owner" to build a house, and then B-contraots with A to do the painting and papering, B is a "sub-contractor," and as this section in effect declares that any person employed by a '< s' b-contractor" is himself a "sub-contractor," it folloi^a that if C contract with B to do part of the painting, and D contract with B to do the papering, and £. contract with C to furnish the paint required for the work, and F contract with D to furnish the paper therefor, B, C, D. £, and F are all " sub-oontrivotora" under the Act, and as such entitled to liens. (e) ** Owner.** It is important to bear in mind that the lien given by this Act to '' contractors" and " sub-contractors" is to attach upon the estate and interest, legal and equitable, of the " owner" in the build- ing, erection or mine upon or in respect of which the work is done, or Section 2. Owner in- cludei per- sons bsTing any estate or interest in land, for whom work done, &c. ^ THE mechanics' LIEN ACT. the materials or machinery placed or furnished. {See section 6. ) This section provides that the word " owner" is to extend to and include persons having " any estate or interest, legal or equitable, in the lands upon, or in respect of which the work is done, or materials or machi- nery are placed or furnished, at whose request ami upon whose credit, or on whose behalf, or toith whose privity or consent, or for whose direct benefit any such work is done," So also where a mortgage was given to secure future advances, and Further ad- advances were made after a right of lien had been acquired under the vanccs after Act, but before registration thereof and without any actual knowledge *" w of the lien by the mortgagee, it was held that the lien holder was not regtgtration entitled to priority over the claim of the mortgagee in respect of such or actual subsequent advances. {Ricliurda y. Chamberlain, 2^ Qr. ^02.) ... notice. 3. Unless there is an express agreement (a) to the Mechanics . . . and others contrary, every mechanic, machinist, builder, miner, to have u«iw labourer, contractor or other person (b) doing work (c) structiog. upon or furnishing materials to be used (c?)in the construc- tion, alteration or repair of any building or erection, or erecting, furnishing, or placing machinery of any kind (e) ^ .> ,,.\ 8 ■* ' THE mechanics' LIEN ACT. **^ '• in, lipon, or m connection with any building, erection, T or mine, shall by virtue of being so employed (/) or fur- nishing, have a lien or charge for the price of such work, machinery or materials upon such building, erection or mines, and the lands occupied thereby, or enjoyed therewith, and limited in amount {g) to such sum as is justly due to the person entitled to such lien. (36 Vic. c. 27, s. 1 ; 38 Vic. c. 20, s. 2.) ter liens with whom to be made. Agreement (a) " An express agreement." It is not stated with whom such express not to regis- agreement is to be made. To disentitle a " contractor" to a lien it is clear the agreement must be made between the "contractor" and the "owner." But whether such an agreement between a "contractor" and the •' owner" would hind a " sub-contractor," is not so clear. On the one hand it may be said that only the persons who are actually parties to the agreement can be bound by it (see Ouermey Mechanics' Lien Law, ss. C26-7,) and on the other hand it may be said that a sub-contractor must be assumed to contract subject to all the equities existing between the '• owner" and the " contractor," and if the latter have debarred himself and his sub-contractors by express agreement from any lien on the property, any *'sub-controctor" claiming under him or any of his '* sub-contractors" is bound by the agreement. The latter view seems the more correct one. {See Phillips on Mechanics' Liens, B. 272) Persons contracting ns sub-contractors in the expectation of acquiring a lien under the Act, at all events would do well, before engaging in the work, or furnishing materials, to enquire of the *< owner" whether there be any agreement between him and the " con' tractor" debarring the latter or his ** sub-contractors" from olaimiug a lien. For even assuming that the right of " sub-contractors" to regis- ter lien^ can only be barred by an express agreement between them- selves and the " owner" ; their liens might nevertheless be rendered fruitless by the " owner" stipulating with the " contractor" not only that the latter and his " sub-contractors" should not be entitled to tiny THE MECHANICS LIEN iCT. ;.-: -i^'- I lien, but also that in the event of any lien being claimed or ref;istered, the money to be payable under the contract should be forfeited, because the lien of the '* sub-contractor" being limited to what v due by the *« owner" to the ''contractor," if nothing be due, the "sub-contractor" can get no benefit from his lien. Section 8. ^j (b) "Or other person." An architect is entitled to a lien under this Architect section, for drawing plans and specifications, and Ruperintending the entitled to erection of a building. {Arnoldi v. Oovin, 22 Gr. 314.) Uenforplans Ac. A " contractor " is entitled to a lien upon the estate, not only for his own personal labour, but also for the labour of all employed by h'm, and also for all materials he has furnished or procured to be furnished for which he is liable. The fact that a lien is also given to the journeyman or other labourers employed by the " contractor " is not inconsistent with the latter's right of lien : the effect of the " sub-con- tractors " enforcing their liens against the land is merely to diminish pro tanto the lien of the "contractor." (See Phillips on Mechanics' Liens, «. 40. ) (c) " Doing ivorTc" In order to entitle the mechanic or matenal-man to enforce a lien for his work or materials, the work must be done and the materials must be furnished substantially according to the original contract between the "owner" and the "contractor," whether the work be done and the materials be furnished by the "contractor" himself or any "sub-contractor" under him. If there be any sub- stantial variation from the contract, then there must be actual accept- ance of the work and materials by tie " owner" sufficient to create a new contract to pay for them, or he must have assented to the variation or must himself have prevented ihp performance of the contract. Lien holder is entitled to lien not only for his own work but for that of others employed by him. Work must be substan- tially accord- ing to con- tract made with owner. Exceptions to rule. Where buildings are erected on the land of another, or repairs or alterations are made to such buildings, the possession of the land by the owner necessarily involves possession of the buildings in their existing state, and no inference can be drawn merely from such possession, or even from actual user of the buildings so erected, altered, or repaired, of an acceptance of an imperfect performance of the contract for the erection, alteration, or repair thereof, so as to entitle the contractor to recover, either on the special contract or under 2 Acquies- cence in breach of building con- tract cannot be inferred flrcm posses- sion of land by owner. " 10 Eecilon 3. ■/. THE MECHANICS LIEN ACT. Whether it will suffice that a sub- contractor's work is in accordance with the con- tract made between him and his im. mediate em- ployer ? the common counts a quantum meruit. {See Munro v. Butt, 8 E. & B. 738 ; Ellis v. Hamelin, 8 Taunt. 62, and Paitinson v. Luckley, L. R. 10 Ex. 830.) But where the deviation from the contract arises in respect of some matter, the performance of which does not constitute a condition pre- cedent to the right to recover, as, for instance, the completion of the work by a certain dny, the value ot the work may be recovered and a lien thereon might in such case be enforced. {Lucas v. Godwin, 8 Biug. N, C. 737.) v.. Under a statute which provided that " every building shall be e. -bject to a lien for the payment of all debts contracted for work done or materials furnished for or about the erection or construction of the same,*' it was held that it was sufficient to entitle a sub-contractor furnishing materials and work, to a lien therefor, that his work was in accordance with the contract made by him with the contractor, not- withstanding that as between the owner and the contractor there was uo performance of the contract. {See Rand v. Leeds, 2 Phila. 160.) It seems, howevec, unlikely that such a conclusion could be arrived at under our Act in the face of section 6, which provides that the '' lien shall not in any case attach upon such estate and interest (i. e., of the ' owner.'), so as to make the same or the owner thereof liable to the payment of any greater sum, than the sum payable by the owner to the "contractor." Under this provision, any defence which the "owner" could set up against a claim by the " contractor," for the price would seem equally available against any "sub-contractor" under him. be per- formed on Not neoM- It is immaterial whether all the labour is actually performed on the sary that all land, or in the work shop, or elsewhere, if it finally go into the work labor should contracted for. {See Phillips on Mechanics' Liens, s. 40.) But the work or services mast be immediately connected with the erection. {lb. s. 155.) ((Q " To be lued." The question has freqomtlj arisen in the United Stfttei whether It is esdential to entitle a material-man to a lien, that the material in respect of which the lien ia claimed, should have been Mtually inoorporated in the bailding erected en the land apon wfaioh the lie& is elaimed. {See PhiU^ on Meehaniet Lktu^ w. 148*161.) Lien of material- man tbr materials. THE MECHANICS* LIEN ACT. It has been held under this Act that as between Hen-holders tntt." se and for materials furnished to a contractor (and a fortiori to a sub- contractor) there is no lien under the Act until the materials have been affixed to the building or erection. But as between material men and the "owner" of a building, the former have a lien for materials sold to the latter, to be used en the building, though not used, and others procured elsewhere. All the claimant in the Jatter case is required to show, is the fact that the materials were furnished for the purpose of being used in constructing or repairing the building. {See Bunthvj V, Bell, 23 Or. 588.) Questions may arise between different material men, where both had sold on the credit of the building, the materials of one having been used in its erection and the others not ; but such questions would have to be adjusted by a Court of Equity. {See EssUnger v. Huebner, 22 Wis. 002.) 11 SoctloD 3. As between lien holders inter ae, material must bave been actually used on building to entitle ma- terial-man to lien. As between material- man anu owner secus. {e)'' Placing machinery of any hhul." The word "machinery," as here Machinery used, would only c:>ver machines of a fixed or stationary character, and must be of would not be construed to include locomotives and portable machines. ^"f_°' {See Phillips on Mechanics^ LienSf a, 178.) stationary character. (/) " Shall by virtue of being so employed." The employment here Employment spoken of must be by some person having either an interest in the of lien-bolder land, or an interest direct, or indirect, in a contract made with a per- necessary to son having an interest in the land. The employment by a person "®*** '^°* having neither an interest in the land nor an interest in a contract made with an " owner" of the land, would give no right to a lien under the Act. {See section 2, p. 6, note c.) {g) ^* Limited in amount" The lien is *. . THE MECHANICS LIEN ACT. 13 time or period within whicL the same was, or was to "'^ *• be, done or furnished ; (b) The work done, or materials or machinery fur- nished ; {c) The sum claimed as due, or to become due ; . (d) The description of the land to be charged, (g) 3. When such statement is so registered, the person entitled to said lien shall be deemed a purchaser (h) pro ianto, and within the provisions of " Tlie Registry Act." (3G Vice. 27,s.2.) (n) " In the form or to the effect" It is not essential that the exact Form of wording of the form given in the schedule should be followed, but it claim to be seems essential that all the facts required by sub-sections «, 6, c, and d, "^^S'**^"**- "should be embodied in the notice filed. For form of statement {see post p. 47. ) (i) ^'•Mmj be filed." Although the registration of theolaim isnotnecea- Registration sary to create a lien, it is essential to its continuance ''after the of claim expiration of thirty days after /the work has been completed or "^^^^ *»«<»•- materials or machinery furnished," unless in the meantime a suit have ^"^* been commenced to enforce it, by the lien-holder or some other lien- holder of the same class, and a certificate of lis pendens regist-ired. {See sect. 20.) If the period of credit between the " owner " and the " contractor," or the other lien-holder and his debtor, extend beyond the thirty days, and the claim of the lien-holder b^ not registered, the omission to register will have the effect of defeating the lien. For where the period of credit has not expired, no suit can be brought to «nforee the lien. (Burritt ▼. Renihan, 26 Gr. 183.) (c) ^^Before or during the progress of the work" «£c. The claim may be withIn what registered for work before its commencement or during its progress, or time daim 14 THE MECHANICS* LIEN ACT. Section 4. must be registered. within thirty dayu after its oompletioo ; but the olnim for materials or machinery can only be registered within thirty days from the supplying of the materials or placing the machinery. The word "supplying" would appear to be intended to refer to materials farniHhed under the preceding section, (ace aa. b and aectiom 20 and 21,) and not merely to machinery. • Where materials or maQhinery under a single contract are dolivered piece-meal, it would seem that the thirty days in which the suit must be brought or lien registered would not commence to run uutil there had been a complete delivery of all the material or machinery included in the particular contract. AfiBdavit of verification. (d) " Verified by the affidavit." Where the aifidavit referred to the claim as •• the paper annexed, marked A," and the paper annexed had no such mark on it, but was proved to be the paper prepared for regis- try, and in that condition annexed to the affidavit, it was held that the omission to mark it A did not invalidate the registration, {Ciin-icr V. Friedrick, 22Gr. 243.) Form of Affidavit of verification of claim. FORM OP AFFIDAVIT VERIFYING CLAIM. '!',tV>/. County op i I, {name of deponent in full,) of {residence and To wit. J occupation) make oath and say : 1. I claim alien upon the estate or interest of [name of " owner"^ of land] of , in respect of the work [or materials] mentioned in the annexed {or above written) statement of claim. 2. I further say that all of the said work [or materials] in the said statement of claim specified was done [or were furnished] by me for the construction (or alteration or repair) of a building or erection upon the lands in the said* statement of claim mentioned, [or I further say that the machinery in the statement of claim mentioned was erected (or famished or placed) by me in {or upon or in connection with) a building {or erection or mine) upon the lands in the said statement of claim mentioned,] for and upon the credit of {name of owner, contrac- tor, or 8ub-contractoi't by whom deponent toaa employed.) THE MECIIAKICS' LIEN ACT. 15 3. I further Bay the sold work was done {or is to be done) [rr tL? Sftotion 4. said materials or machinery, were so furnished {or placed or erected) by me upon the said premises] as aforesaid, on the — — day of ' or on or before the day of , or between the day of — -, and the day of •— .] 4. The amount duo {or and to become due) in respect of the said worlc {or materials or machinery) is the sum of $ {amount nten- tioned in statement of claim.) 6. That the land upon which [such work was done (or such materials or machinery) were so furnished {or place or erected] is to the best of my knowledge and belief correctly described in the said annexed {or above written) statement of claim. Sworn before me at the of — in ^he^ County of this day of ^ (Signature of depone^it.) {Signature of Commissioner.) A Commissioner for takiug affidavits in tho County of . (c) "Be/ore any Commia^iouer." The Commissioner must be one ggfore appointed by one of the Superior Courts to administer oaths in the whom to be County where the affidavit is bworii. The jurat of tho affidavit should "worn. bhow thai tho person before whom the oath is taken is such a com- missioner, but the words, "A Commissioner, &c.," are sufficient. {Babcock v. Bedford, 8 C. P. 527 ; Pawson v. Hall, 1 U. 0. P. R. 294 ; 5rett V. iSniii/t, ifi. 309.) (0 ' • The name and residence of the owner of the property to he charged. " yf^^ ^fflda- The "owner" here spoken of is the person against whose interest in vltto contain the land the lien is to be enforced, not necessarily the owner of the fee {see ante sec. 2, p. 6, note c.) Where the ••owners" were a cor- poration aggregate, tho misnomer of the corporation in the registered claim was held to invalidate the registration as against a subsequent mortgagee. {Boult ▼. Wellington Hotel Co., before Bloke, V. C. at Guelph, Ist October, 1878.) . v r^ ^v- ; ; ^^,^.,3,,^ -^e i. s " 16 Section P. V"^ THE MECHANICS LIEN ACT. (.7) " The description of the land to be charged." Care must be taken correctly to describe the land, \7bere it forms part of a subdivision according to a registered plan it must be described according to that plan. General descriptions such ns " part of lot A," without specify- ing distinctly the part intended should be avoided. Effect of registration. (7t) "Shall be deemed a purchaser." The claim, whether registered or unregistered, is liable to be defeated by payments not exceeding ninety per cent, of the contract price made in good faith by the owner " to the contractor" or by the "contractor" or "sub-contractor" to the person by whom the lien-holder was employed before they receive notice in writing 0/ the lien. {Seefc. 11.) In addition to registration, in order effectually to protect the claim of the lien-holder notice in writing to the "owner," is in all cases necessary, and where the lien is claimed by a " sub-contractor" notice should be given to the " con- tractor" and all the " sub-contractors," if any, through whom the lien-holder claims. By registration the Hen-holder acquires priority over all prior unregistered deeds of which he ha- - (a) "Materials or machinery are ji'utced." Although ns we have seen ■ a lien may io some oases exist for materials furnished " to be used" in the construction or repnir of building, although such material ma}' not be actually incorporated, {see section 3) yet under this section it is clear there must be an actual incorporation of the material in order to ) give the lien-holder any prior claim as ngainst a mortgagee, because it is of the very essence of the provision in favour of the lien-ho!der that , THE MECHANICS LIEN ACT. 21 the value of tbe land is increased, by the work done and materials fur- nished, in respect of which the lien is claimed. .... {h)" By a mortgage or other charge existing or created before tJie com- mencement of tlie wwk" ike. As against a registered lien the mortgage or other charge must be registered, or one of which the lien-holder had actual notice before registering liis lien, otherwii•> Section 8. Mortgagee against whom relief claimed is a necessary party. Allegations in bill must be positiTe. THE MECHANICS LIEN ACT. has done, ns no other lien has been set up, he must be taken to have done so for the benefit of the mortgagee." From this case it appears that where the improvements have been made by several parties, each is entitled to priority on the sum by which the selling value of the property has been increased by the improvements, in the proportion which the value of the work done or materials furnished by him bears to the value of the whole improvements; and that where the property is insufficient for the payment of the mortgage debt, the lien-holder is bound to credit as against the sum in respect of which be is entitled to priority, all payments made on account of his claim, and that all paymeats made by the owner in reduction or satisfaction of the claim of lien-holders, will be deemed to be made in ease of the mortgagee. Under the ordinary rule, as to the application of payments, the creditor in the absence of express appropriation by the debtor to the contrary, would be entitled to apply money received from his debtor in discharge of that claim, for which he holds the least security. (See Armour v. Carruthers, 4 U. C. L. J. 210; Fraser v. Lock, 10 Gr. 207.) And it might, with some show of reason, be urged that a lien-holder receiving payments from bis debtor, in the absence of any appropriation thereof by the debtor, is entitled to apply them first in discharge of that part of his claim, which is practically unsecured. This point, however, does not seem to have been taken before the learned Vice-Chancellor. Where relief is claimed against a mortgagee under this section, the mortgagee is a necessary party to the suit, and the bill must state distinctly that the encumbrance was created on the land before the commencing of the work or placing of the materials thereon, and where the bill stated the date of the mortgage as ''on or about," &c., it was held insufficient to found a decree against the mortgagees, notwithstanding that they had suffered the bill to be taken pro confesso. (Douglas v. Chamberlain, 25 Gr. 288.) ;t:'»^Tjr f-ZJ-J.' .( f'j*-y-!\>\^ . r i''« employed or furnishing." Under the Act of 1873 no right of lien guJ!^^'"^"/*® existed until registration of the claim. {See 36 Vic. c. 27, s. 2.) But tractor is not under this Act no active assertion of a claim on the part of the lien- entitled tea holder is now essential to his right of lien. The right of lien is "*"* °° *^* given by the statute, and enures to the benefit of the lien-holder with- out registration or bringing of suit, for the space of thirty drys after the work is completed, or the material furnished. The words " claim- ing a lien " would therefore probably be construed as equivalent to ''having a lien." They would not, therefore, include a person debarred by express agreement from having a lien- t (c) ** Within thirty days after aueh material is furnished or labotv ■ per- Time within formed*" That is by the person giving tbs notice. Until this period which notice has elapsed, the lien of the "contractor" or •* sub-contractor," for to be given. whom th« work has been done or material furnished, will continue 24 THE mechanics' LIEN ACT. Section 0. witbout registration or suit, not only for the vork done and materials furnished by bimself, but also for those which he hns procured to be done and furnished by others, and for the pnyment of which he is liable. (See ante p. 9, iwte h.) Sub-con- ^^^ "Shallbe entitled to a charr/e pro rata upon any amount pay able hif tractor ^j^^ otvner under said lien." The charge here created is upon the giving notice entitled to money pnyable by the •* owner " to the person entitled to the lien, and charge upon not upon the land. All creditors of the lien-holder entitled to give, money duo and giving, notice under this 8ect:on, stand on an equal footing and *° ^ "^"^"^ are entitled to a pro rata share of the amount payable by the owner to their common debtor. The Act of 1873, sec. 11, expressly pro- vided that the owner sbouM " thereupon pny the amount of such charge." The omission of these words, however, would not seem to alter the liability of the owner, ns the fact that the person giving notice is entitled to a charge involves the right to enforce that charge by suit in default of payment by the owner. from owner. Effect of payment of claim of sub- contractor by owner. (c) " //■ the owner thereupon pays.^* It would not be safe for an " owner " to pay any claim of which he receives notice under this section, without first informing the primary debtor of the claim, in order to give him an opportunity of disputing its validity if he desired to do so. Payments made by an " owner" to a creditor serving notice under this section, before such creditor's claim has been ascertained by arbitration, are at the risk of the " owner," and are only a valid dis- charge pro tanlo of the lien, provided such indebtedness actually existed. (See post sec. 10, p. 26, note h.) i ciakor*" 9. In case of any dispute {a) as to the validity or against lien- amount of such Unpaid account or demand, the same holders, Low * to be ad- shall be first determined by suit in the proper Court in justed. . that behalf, or by arbitration under sections eighteen and nineteen, at the option of the person having such unpaid account or demand against the lien-holder ; and during the pending of the proceedings (6) to determine lL_. THE mechanics' LIEK ACT. 26 the dispute so much of the amount of the lien (c) as is section lo. in question therein may be withheld from the person claiming the lien. (36 V. c. 27, s. 11.) (a) '* In case of any diapiUe." The dispute here contemplated ia a dis- pute between the creditor who gives notice under section 8, and his primary debtor. The option of having auoh dispute settled by suit or arbitration is reserved to the creditor giving notice, and in this case arbitration is not compulsory as provided by section 18. Under the Act of 1873 the dispute was to be settled by suit in the proper Court, the clause as to arbitration first appears in the Revised Statute. Disputes as to claims of sub-con- tractors gifing notice to owner, to be settled by suit or arbi- tration. (6) " During the ■pending of the proceedings." There must be a suit, Pending suit or proceeding Jn arbitration, actually pending, in order to entitle the o' arbitra- owner to withhold the money in dispute, from a lien-holder or other °" ''^^" creditors giving notice. The mere existence of a dispute is not snffi- gy^er oient. It ia therefore incumbent on the creditor giving notice, in the stayed. event of his claim being disputed, to proceed at once by suit or arbitra- tion to settle the dispute. (c) " So much of the amount of the lien as is in question." The amount Amount in question which the owner is entitled to withhold is so much of the wbich owner money due by him to the lien-holder, as the cteditor whoso claim is *<> withhold. disputed would be entitled to receive, assuming his claim to be correct. 10. In case the person primarily liable to the person Failure to entitled to the lien («) fails to pay the amount awarded ^^"^ within ten days after the award is made, the owner, contractor or sub-contractor may pay the same out of any money due by him to the person primarily liable as aforesaid, on account of the work done or materials or machinery furnished or placed in respect of which the indebtedness arose ; and such payment, if made after an award, (6) shall in all cases, or if made without 4 26 THE MECHANICS LIEN ACT. Section 10. Qj^y arbitration having been previously had or dispute existing, then if the indebtedness in fact existed, (c) and to the extent thereof, operate as a discharge jjj'O tanto of the moneys so due as aforesaid to the person primarily liable. (38 V. c. 20, s. 8.) " Entitled to the lien." (a) "Entitled to the lien." This section departs from the phrnseologj of the preceding Bections. The words "giving such notice" would seem to have been more appropriate here. The difference in the language is accounted for by the fact that the present section origin- allj formed part of the Act of lb74, and in that Act, which first gave the right of lien to *' sub-contractors," provision was maj^e fur the adjustment of disputes arising as to the liens of sub-contractors by arbitration (see sectiom 18 andlQ), and the present srction originally followed section 19. This section is now apparently intended to apply not only to arbitrations under section 18, but also to arbitrations under section 9. The words, " entitled to the lien," would therefore probably now be construed as including both sub-contractors having liens on the land and those who, under section 8, have a charge or lien upon the money payable by the owner to some other person in respect of the I Effect of pay- ment of claim of lien- holder by party not primarily liable. After awrd pro tanto discharge of lien. After decree or Judgment which ii sab* sequently tevened quoere. (h)" Such payment if made after an award." It will be observed tlint this section makesno provision for payments made after a judgment or decree in a suit brought by a creditor under section 9. The omission may be accounted for by the fact that the section formed part of the Act of 1874, and was originally intended to meet the case of payments to sub-contractors whose liens were disputed, and which, under the Act of 1874, {see sections 18 and 10) were in all cases to be settlo'* by arbitration. It is therefore doubtful whether a pay- ment made to a creditor serving notice under section 8, after a judg« ment or decree in his favour would protect the person paying him, should such judgment or decree be subsequently reversed. But a payment made after an award would appear to be clearly a protection to the payer as against the primary debtor, even though the award vere subsequently set aside. The remedy of the latter in such case THE MECHANICS LIEN ACT. 27 would appear to be ngninst the payee only. If the primary debtor Section 11. intend to dispute the award, it would seem that he should at onoe institute a suit in Chancery to restrain the payment of the disputed claim by the " owner" or his own immediate debtor. {e)" Then if the indebtedness in/act existed." If the " owner," '« con- Payment tractor," or •• sub-contractor" assume to pay the claim of a creditor made before who serves notice under section 8, without an award being first award is no made on the claim, such payment will not be a discharge of the f?. "*®. indebtedness of the payer to the primary debtor, pro tanto, unless indebted- such creditor's claim in fact existed. It would therefore seem abso- neas in fact lutely necessary for the security of the party making payment, without existed, fin award having been first made, that the admission of the primary debtor should be obtained to the correctness of his creditor's claim. The statute seems to cast the burthen of obtaining the admission on the " owner" ; at all events, it makes no provision for the cro iitor procuring it, bat only provides for the case of a dispute. It would have been more reasonable if the law had cast upon the creditor the duty of obtaining his debtor's admission of the correctness of his claim, or of establishing it by suit or award, and have protected all payments made after either judgment, decree, or award. 11. All payments [up to ninety per centum (a) of the Payments made bona price to be paidfor the work, (6) machinery or materials, ;!d« before as defined by section three of this Act,] made in good 01^1^0? liea faith (h) by the owner to the contractor, or by the con- ^''""** tractor 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 dis- charge pro tanto of the lien created by this Act ; but . ; , ,,, this section shall not apply to any payment made for ■'■^*; the purpose of defeating or impairing a claim to a lien 28 THE mechanics' lien act. fiectionii. existing or arising under this Act. (38 V. c. 20, s. 5.) (41 V. c. 17, s. 1.) Payments not exceed- ing 00 per cent, of con- tract price protected in certain caaes. (a)" Up to ninety per centum. " The words within braclcets were intro- duced by ainendment. {See 41 Vio. c. 17, s. 1, pout p. 49.) By sec- tion 2 of that Act all sub-contractors are entitled to a charge on the ; smaining ten per cent, of the price to be paid by the " owner," which is to endure for ten days after the completion of the work or furnish- ing of materials, without either registration or service of notice. In order to protect himself against this charge, an owner should take care to provide thut ten per cent, of the contract price shall njt be payable until at least ten days after the completion of the contract. Payments by the " owner" exceeding the ninety per cent., even if made pursuant to oontract, are not protected as againut the charge of ''sub-contractors." I 10 per cent, should be re- served on all sub-con- tracts. Right of sab- contractor pnjudiced by over pay- ment by his debtor. (b) *' €f the 2iric'; to he paid for the work" These words would seem to apply to the price to be paid under the contract, by virtue of which the payments are made, whether that oontract be made between the owner and contractor, or between a contractor and a sub-contractor, or between one sub-contractor and another sub-contractor. The Act does not in terms state what is to be the effect of a sub-contractor making payment in excess of the ninety p^^r cent. It is clear that the land of the owner could not be made chargeable therefor, except perhaps to the extent of any sum for which it might be liable to a lien in favour of the sub-contractor making such overpayment. The sub-contractor prejudiced by the overpayment, would also seem to have an equity to rank in the place of the party making the overpay- ment, on the ten per cent, of the price payable \y the owner, on which a charge is created in favour of Hen-holders by 41 Vic. c. 17, s. 2. (See post p. 60.) i Payments must be made bona Me. (c' " Made in good faith." Registration of a lien will not invalidate payments subsequently made bond fide by a person on whom no written notice of the lien has been served, provided they do not in the aggregate exceed the ninety per cent, of the contract price. The reasonableness of this provision is apparent, for otherwise it would be incumbent on every ''owner," "contractor," or "sub-contractor" not only to search THE mechanics' LIEN ACT. 29 in the registry office for liens every time he might wish to make a Section 12. pnyment to his ••oontrnotor" or ••sub-contractor," but all such poy- ments would have to be made In the Registry Office, for fear that between the search and the payment a lien might bo registered. Only payments made in good faith are protected. Payments made for the purpose of defeating or impairing a claim to a lien existing or arising under the Act, would be void as against the person entitled to such lien. 12. When the amount of the claims (a) in respect of Enforooment *•" 01 lien in any lien is within the jmnsdiction of the County or Dwuion "^ T . and County Division Courts respectively, proceedmgs to recover courts, the same accordinor to the usual procedure of the said Court by judgment and execution, may be taken in the proper Division Court, (6) or in the County Court of the county in which the land charged is situate ; (c) or proceedings may be taken before the Judge of the said Courts, who may proceed in a summary manner by sum- mons and order, and may take accounts {d) and make requisite enquiries, and in default of payment may direct the sale of the estate and interest charged at such time as the same can be sold under execution, (e) and such further proceedings may be taken for the purpose aforesaid as the Judge thinks proper in his discretion. 2. Any conveyance under the seal (/) of the County Court Judge shall be effectual {g) to pass the estate or interest sold. 3. The fees and costs in all proceedings taken under this section shall be such as are payable in respect of 30 THE MECHANICS LIEN ACT. Section 12. ^jjg ] jj^g qj. similar matters, according to the ordinary procedure of the said Courts respectively. (^G V. c. 27, s. 5 ; 38 V. c. 20, s. 10.) In what Court suit to enfv/rce lien to be brought. DiTision Court juris- diction. County Court juris- diction. Cases where injunction required. («) •' What the amount of the clawis." This must mean the nggregftte amount of the clnims of the lienholders o)i the land. (See section 15.) The a{:gregate amount oi ths claii;i3 of a contractor and his eub-con- tractors on the land, cannot exceed the original cnitcract price agreed on between the " owner " and ** CQntractor." la determining the Court in which a suit to enforce a lieu should be commenced, the question would appear to be governed not by the amount of the plaintiff's own claim, but by the amount claimed to remain due by the ''owner." Where this sura does not exceed $100, the Division Court would appear to have jurisdiction, (see 41 Vic. r. S, s. 6), and where it exceeds $100, and does not exceed §400, and the amount is liquidated or ascertained by the act of the parties, or the signature of the "owner," or where the amount is not so liquidated or ascertained, and does not exceed $200, then the County Court has jurisdiction. {See " The County Courts Act," s. 19). Where, how- ever, an injunction is required to restrain the removal of any erection or machinery from the property over which the lien is claimed, the jurisdiction of the County Court to grant the relief is confined to cases where the amount claimed does not exceed $200. (See section 22.) Where a plaintiff in Chancery claimed by bis bill that there was due from the *' owner " a sum exceeding the jurisdiction of the County Court, but only recovered a sum within the jurisdiction of the Division Court, it was held that he was only entitled to costs according to the Lower Scale. (Smith v. McDmald, 25 Gr. 000.) Division Court. (&) " Proper Division Court." (See " The Division Courts Act," s. 62.) County Csurt. (c) " County Court of the County in which the land clvarrjed ia situate. "' Where the land charged is situate partly in one county and partly in another, the County Court of neither county would appear to have jurisdiction, and in such a case the suit would have to be brought in Chancery. ' .^.-'oijw it -; i . , r THE mechanics' LIES ACT. 31 {(I) " And may take accounts. " All suits brought by n lien-holder are Section 12. to be taken to be brought on behalf of all the lien-holders of the same Accounts to class. (See section 15.) An account must be taken not only of be taken in the claim of the lien-holder by whom the suit is brought, but also of ""'^ *° ®"" the claims of all other lien-holders of the same class. The Act does °^"^ *"*' not provide for their being actually made parties in suits brought in a Division or County Court, but they would clearly be entitled to notice of the proceedings and to prove their claims. It would also appear to be necessary to take an account of the claims of all other lien- bolders and subsequent encumbrancers, who would he entitled to share in the proceeds of the sale, in the event of the interest of the owner iu the land charged being sold. A day would also have to be appointed for payment by the " owner." In Chancery one month from the date of the Master's report is usually appointed, whether the estate or interest charged bo a freehold or chattel interest, but where the suit is brought in a Division or County Court, it would appear that the Legislature intended that the "owner" should have at least a year allowed him for payment where the estate charged is a freehold. {See infra, note e.) • (e) '* Atsuchtime as the same canhe sold under execution." Where the imie within est^ite ohurgvd is a leasehold or other chattel interest, the interest of the whidi land "owner" would be salable under a fi. fa. goods after eight days notice, c (See " The Execution Act," s. 19; " Tlie Division Courts Act," a. 174.) Where the estate however is a freehold, a sale could not take place under execution within less than twelve months from the day on which the writ against lands was delivered to the sheriff. {See "The Execution Act," sec. 14, ss 2.) And no sale of freehold lands can be had under execution until after a return of " nulla bona" by the sheriff of the county in which such lands are situate. {lb. sec. 15.) It does not seem probable, however, that the Legislature intended to require either the issue of a^. fa. goods or a,fi.fa. lands as a 'preliminary to a sale under this Act, although the time at which a sale of lands can take place under execution is really made dependent on the time at which such writs are delivered to the sheriff. The words, " at such time," &c, may possibly be taken to mean the limit of evjhi, days or twelve months from the time the amount due by the owner is ascertained hy the Cou;t or .Judge according as the estate charged is a chattel, or freehold inten'st. ; i . \;.' .'L:.' 32 THE MECHANICS LIEN ACT. Section 13. (/•)" Any conveyance under tJte seal." Tbe County Court Judge bv "g Conveyance ^^ officio Judge of the Division Court, all conveyances made in of land, pursuance of the order of either the Division or County Court, are to where sale in ^e made by him. The statute only speaks of the seal, but the signature of the Judge should also^be appended to the instrument. {g) " Shall be effectual. " If the Court by which the sale was ordered had no jurisdiction under the Act to direct a sale, it is very doubtful whether this section would jrive validity to the conveyance. The consent of the parties cannot give the Court a jurisdiction which it does not by law possess, and a fortiori the pnssive acquiescence of the parties in the Court assuming jurisdiction would be equally ineffectual. Division or County Court. Effect of deed. Procedure in Ctiancery. 13. In other cases the lien may be realized in the Court of Chancery according to the ordinary procedure of that Court, (a) (36 V. c. 27, s. G : 38 V. c. 20, s. 11.) Forms. (a) For forms of bills and other proceedings in suits brought in Chancery see Appendix, 2^ost p. 57. 14. The said Judge or Court, (ct) in his or its discie- Tlie Court may order sale and i> tion, may also direct the sale of any machinery, (6) and moval of machinery, authorize its removal. (36 V. c. 27, s. 7; 38 V. c. 20, s. 15.) (a) '* Tlie oaidJudge or Court." These words apply to any Judge or Court having jurisdiction to euforoe the lien. Wliat ma- (&) " Any macJiinery." This section authorizes the sale of machinery chinerymay apart from the land on which it has been placed, notwithstanding the generality of the words ''any machinery," machinery which is not Bubje'tt to the claim of the lien-holder could not be ordered to be sold or removed under this section. {See ante p. 11, note e.) Neither is it probable that the jurisdiction hereby conferred would be exercised except in cages where it would be for the general benefit of all parties interested that the machinery should be sold apart from the land. be ordered to be sold or removed. THE mechanics' LIEN ACT. 98 16. Any number of lien-holders may join in one suit, section 15. and all suits brought by a lien-holder shall be taken to hoiders^tobo be brought on behalf of all the lien-holders of the same J^J^^J^'^^^^"^ class ; (a) and in the event of the death of the plaintiff °f '^e same ' class. therein, or his refusal or neglect to proceed therewith, may, by leave of the Court in which the suit is brought, on such terms as may be deemed just and reasonable, be prosecuted and continued by any other lien-holder of the same class. (38 V. c. 20, s. 13.) (a)'* Shall be taken to he hrougld on behalf of all the lien-holders of the Suit by lien- mme class." It is not necessary that all lien-holders should be made *'°'<^®' ^^ * 6T1UTA fVir parties to the bill, but all those having liens at the date of the filing j^^gfli. -^ -11 of the bill, who are not parties to the bill, must be added as defen- others of the dants in the Master's office, {See Hoveiulen v. Ellison, 24 Gr. 448.) same class. Lien-holders of '' the same class " would appear to be those who have ° "* , . , , ,, "the same contracted with tho same person, e. i«ims of all parties would be cast upon the plaintiff or other I y w'jing on the proceedings. (c)''Pro Tf'a acc^'- ^'''gtotJieir several classes and rights." This does not appear to mean that in f.7ery case in which the sum realised from the land is insufficient to pay all the liens thereon, in full ; that all liens are to abate in equal proportion, some liens may be paid in full, notwithstanding a deficient fund, e. g., if the dividend payable to S. C. 3 d, as shewn above, were, but for his sub-contract with S. C. 7 e (say $90), the latter would appear to be entitled to be paid in full, and S.C.Sd would have to bear the loss because he is indebted to S. C. 7 e in $80, and the latter stands in his place, to that amount. But lien-holders of the same class are entitled to a pro rata distribution, e. g., if the dividend coming to S. C. 4d were icss than $100, his sub- contractors 8/ and 9/ would be entitled to a pro rata distribution of it, 8/ being entitled to three-fifths, and 9/ to two-fifths of the dividend. Lien-bolders entitled to execution for deficiency as against their primary debtor. ((?)*' Shall respecfiveli/le entitled to execution." The right of execution is against the primary debtor only. No execution would lie against the "owner," except in favour of a "contractor." The right to obtain execution is here given only after the distribution of the proceeds of the sale of the property subject to the lieu ; but a lien- holder may sue his debtor and recover judgment and execution without waiting until the property subject to his lien has been realised. 18. In case a claim is made by a sub-contractor (a) in Disputed claims to be referred to redDcct of E HcH (h) to whicli hc is entitled, and a dispute arbitration. / ^ . arises (e) as to the am ount due or payable in respect thereof, the same shall be settled by arbitration, (d) THE MECHANICS LIEW ACT. 37 2. One arbitrator shall be appointed by the person section is. making the claim, one by the person by whom he was employed, and the third arbitrator shall be appointed (d) by the two so chosen. 3. The decision of the arbitrators or a majority of them shall be final (e) and conclusive. (38 V. c. 20, s. 6.) {a)" By a sub-contractor." This provision is oorfioed to claims made by sub-contractors. As to persons coming Tvitliia that desigcatioa (See section 2, ss. 2.) (by* In respect of a lien" The claim of the sub-contractor must be made in respect to a lien to which he is entitled on the land, and not merely in respect of a charge upon the money payable by the owner under bis contract, under section 8, or under 41 Vic. c, 17, s. 2, post p, 49. Disputes as to claim of (c)" A dispute arises." The dispute here contemplated is one between ^"^'••»"- the " Bub-contraotor" and the person by whom he was employed. iiensoni'' d to be settled (d)" Shall be settled by arbitration." The word «« shall" is imperative, by arbitra- {See " The Interpretation Act," e. 8, ss. 2 ; Bev. Stats., p. 3.) tion. (e)" Third arbitrator sliall be appointed." This section provides that the third arbitrator shall be appointed by the arbitrators chosen by the respective parties. Section 19 provides that in case either party refuse to appoint an arbitrator, or the two arbitrators appointed fail to agree on a third, the appointment may be made by a County Judge, but no provision seema to haye been made empowering an arbitrator appointed by the County Judge for one of the parties, to join with his oo-arbitrator in appointing a third arbitrator. Section 19 would pro- bably be construed as aiding section 18, and to authorize the arbitrator appointed by the Judge, to appoint a third, although the point is not free from doubt. Appoint- ment of arbi- trators. Whether ar- bitrator ap- pointed by Judge of County Court can join in ap. pointment of a third qucere. (/) " Shall be final," It is only when the submission is by rule of Effect of Court, or can be made a rale of Court, or has the eifeoi of a rule of award. 38 THE MECHANICS LIEN ACT. Section 19. No reUef against award ex- cept in equity. Court, that the Courts have any jurisdiction to set aside an award on motion. (Ititsnell on Arbitration, 5th ed., 648.) Here no provision is made for malting the submission a rule of any Court. The only remedy of any party dissatisfied with an award made under this sec- tion would be by suit in Chancery. (See Oreenhill v. Church, 8 Rep. Ch. 49; Hamilton v. Bankin, 8 DeG. & Sm. 782.) As to the grounds on which an award can be impeached in equity. {See Russell on Arbitration, 5th ed., 660 & 703 ; Story's Equity Juris., 12th ed,, ss. 1450-8, and see Bateman v. Boynton, L. R. 1 Chy. 359.) Form of ap- pointment of arbitrator. FORM OF APPOINTMENT OF ARBITRATOR. Whereas I, A. 6., claim to be entitled to a lien upon the estate and interest of (name of "owner") in (describe the lands), for and in respect of a claim of $ , which I claim to be due to me by you for work done (or materials furnished), which claim you dispute. I do therefore hereby, and by virtue of the statute in that behalf, appoint C. D. of an arbitrator, to determine all matters in dispute between us touching my said claim. And I do hereby require you, within three days after the service hereof, to appoint an arbitrator on your behalf, and in default of your so doing I shall apply to the Judge of the County Court of the county of {the county in lohich the lands lie) to appoint an arbitrator for you. t . Dated this day cf (Signature of sub-contractor wliose claim is disputed.) To (name of debtor disptiiing the claim.) Befiuaito jg jjj ^^^^ either of the parties interested in any appoint arbl- *^ '' trators. guch dispute refuses or neglects within three days after notice in writing requiring him to do so, to appoint his arbitrator, or if the two arbitrators appointed (a) fail to agree upon a third, the appointment may be made by a County Judge of the County in which the lands THE MECHANICS' LIEN ACT. 39 in respect of which the lien is claimed are situate, (h) Section 20- (38 y. c. 20, s. 7.) (a)"Ori/the tioo arhitratora appointed." It is not clear whether these Appoint- words are confiacd to two arbitrfttors appointed by the parties thorn- ""«•** ©'"r- selves, or whether they include the case of one arbitrator appointed '*™*°™ °y Judge of by one of the parties, and the other by a County Judge. If the words county are restricted to arbitrators appointed by the parties, then wherever Court one of the arbitrators is appointed by the Judge for a party malcing outiiorized in default, neither the County Judge nor the arbitrator appointed by him certain caaeB would appear to have power to appoint a third arbitrator. It will, however, be probably found that an arbitrator appointed by a Judge for one of the parties has by necessary implication all the powers of an arbitrator chosen by the parties themselves, including the right of joining in the appointment of a third arbitrator. (See C. L. P. Act, ■iecs. 216 and 217.) {by Imchich the lands, d-c, are situate." Where the lands subject to Judge en- tbe lien are partly in one county and partly in another. The Judge of titled to ja- neither County would appear to have jurisdiction. risdlctlon. 20. Every lien which has not been duly registered (a) wi»en un. registered under the provisions of sections four and five, shall lieushaii absolutely cease to exist after the expiration of thirty days after the work has been completed, or materials or machinery furnished, unless in the meantime (6) proceed- ings are instituted to realize the claim under the pro- visions of this Act, and a certificate thereof (c) (which may be granted by the Judge or Court before whom, or in which the proceedings are instituted), is duly__, rep[istcredjcjj^ in the Reg istry Office of the County.or other Registration Division wherein the lands in respect of which the lien is claimed are situate. (38 V. c. 20, s. 14 ; 36 V. c. 27, s. 4.) 40 THE MECHANICS LIEN ACT. fiection20. (a)" Not been iluly registered." The registration of a lien forwork Within what most be made before or during ita performance, or itithin thirty days after its completion, and a lien for materials or machinery, must be registered within thirty days after they have been furnished, or placed upon the land. (See section 4.) time lien must be re- gistered. Where lien not regis- tered suit to be instituted. Suit not maintainable till period of credit expired. (b) " Unless in the meantime." It is not essential to the preservation of the Hen that the proceedings should have been instituted by the lien-holder himself, it will be sufficient if they have been instituted by some other lien-holder of the same class. {See section 15. Bimtiwj V. BeV, 23 Gr. 584 ; Hovenden v. Ellison, 24 Gr. 448.) But a suit by one lien-holder would not have the effect of reviving the lien of another lien-holder of the same class which had expired under this section for want of registration before the suit was commenced. In order to entitle a lien-bolder to maintain a suit to enforce his lien, the period of credit between the "contractor" and ••owner" must have expired. (Burritt v. Renilian, 25 Gr. 183,) and, semble, where the suit is brought by a " sub-contractor " the period of credit between him and the "contractor" or "sub-contractor" by whom he was employed, must also have expired. Certificate of lis pendens must lie re- gistered. Form of csrtificate. {c)"A certificate thereof. ^^ This means a certificate that the proceed- ings have been commenced. The certificate should shew the names of the parties, plaintiff and defendant, to the suit, and should also accurately describe the land over which the lien is claimed, as it is described in the proceedings. FORM OF CERTIFICATE OF LIS PENDENS. la {name of Court.) .. , _ J 2tv\l^r/i:n u't ;:!ii3rt"^' ft'!;?'!?*'*. ^- ;:•, -'•'■ I certify that in a suit or proceeding in {name of Court) between A B, plaintiff, and C I) and E F, defendants, some title or interest is called in question in the following land, {describing it as in the bill of complaint or otlier proceedings. Dated at, &c. {A^'^n ^li' /' . ,' ..'•; As witness my hand, [and the seal of the said Court, or my office.} }^y'i;v: !>« T-^iin: Ui^'< (Signature of Judge or ClerJt.) ■ ■ ' ■ lit , THE mechanics' LIEN ACT. 41 The certificate in Chancery may be under the seal of the Court or Section 21. under the seal of office (if any) of the officer signing the same. (See How to be " Tlie Registry Act," a. 49.) Where the seal of a Court of Record is authenti- affixed to the certificate, it proves itself, and can be registered without *='**^' affidavit. {See " The Registry Act," «. 48, Rev. Stat., p. 1076.) But where the certificate is not under the seal of a Court of Record, semhle, an affidavit of attestation is necessary. Division Courts are not Courts of Record. (See " The Division Courts Act," R. S. 0. c. 47, s. 7, hut gee Corsant q. t. v. Tayl&r, 10 C. L. J. 321.) ((/) "Duly registered." The proceedings must not only have been Within what commenced within the thirty days, but the certificate must have been "^J'^^'^' registered within that period, or the lien will cease. Where the land ,ggJt^y^ in question is situate partly in two registration divisions, a certificate of the commencement of the proceedings must be registered in both divisions. 21. Everylienwhichhasbeendulyregistered((x)under when registored the provisions of sections four and five shall absolutely Hen shaii - C6B8C* cease to exist after the expiration of ninety days after the work has been completed, or materials or machinery | furnished, or the expiry of the period of credit, (6) unless ( in the meantime proceedings are instituted to realize the claim under the provisions of this Act, and a certi- ficate thereof (which may be granted by the Ju ige or Court before whom, or in which the proceedings are instituted), is duly registered in the Registry Office of the County or other Registration Division wherein the lands in respect of which the lien is claimed are situate. (36 V. c. 27, s. 4) (a) " Whiah has been duly registered." The preceding section having ^^^^ ^^^^^ prescribed the time within which sutt must be brought to enforce which soit to 6 42 'the mechanics' lien act. SMtion 22. be brought where lien registered. unregistered liens, the present section presoribea-the time witliin whioh A suit must be brought to enforce a registered lien. By registering the claim within the thirty days after the completion of the work or furnishing of the materials, an additional period of sixty days is gained for commencing a suit to enforce the claim. period ot credit." Certificate *' ^*P*'y °' (ft) "Orthe expiry of the period of credit." Theperiodof credit between the " owner" and "contractor" may expire before that between a "sub- contractor" and the person by whom he is employed; in such a case it would seem that "the period of credit" intended by these words would be the latter perrod, as until that had elapsed, the lien-ho'der would not appear to be in a position to commence a suit to enforce his lien. (See Burritt v. Renihan, 25 Qr. 188.) At the same time it must be confessed that this construction creates an additional difiSoulty in the way of ascertaining when the land is free from liens, as it neces- sitates enquiry of each person who has registered a claim whether the period of credit between him and the person by whom he was employed has expired. The suit lAust have been commenced, and the certificate of lis pendens registered within the ninety days. A suit by any one otiUpmdeM ijen-holder will keep alive all other liens of the same class, existing at to be regis- tered. *^' ^'^^ °^ ^® commencement of the proceedings. (See section 15, ante p, 33, note a.) Property 22. During the continuance of any lien, (a) no portion the lien not of the property affected thereby, or the machinery mored"^ therein shall be removed to the prejudice of such lien ; and any attempt at such removal may be restrained by application to the County Court or the Judge thereof, or the Court of Chancery respectively, according as the claim (h) is under or over the sum of two hundred dollars. (36 V. c. 27, s. 8 ; 38 V. c. 20, s. 16.) ,n2 .6 v/ When lien ezpiiM. , Vi" (a) " During the continuance of any lienV A lien if unregistered before the ezpiratioD of thirty^days from the completion of fiie work, or the deliT«7 of tlie materials, will eease mden witliin that time ■ 43 Section 23. Court in which suit to be brought where in- junction sought to re* strain re- moTtl of property. THE mechanics' LIEK ACT. proceedings have been inBtitated by the Hen-holder or some other Hen- holder of the same class, to realize the Hen, and a certificate of such proceedings have been registered in the proper registry oflSoe. {See section 20.) A registered Hen wUl cease at the expiration of ninety days from the completion of the work or delirery of the materials, or the expiry of the period of credit, unless proceedings are in the meantime commenced, and a certificate thereof registered as aboye mentioned. {See section 2\.) (hy* According as tJie claim." It is not clear fk'om the Act whether the words " the claim" are intended to apply to the individual claim of the lien-holder seeking relief, or whether they refer to the amount claimed to remain due from the " owner" for the satisfaction of the claims of all Hen-holders. The latter would seem to be the real sum in question, where the suit is brought by a lien-holder. {See ante section 16.) The jurisdiction of the County Court for the purpose of this section is limited to $200. The result of this section would appear to be that wherever an injunction to restrain the removal of property subject to a lien is sought, it can in no case be obtained in a Division Court, but must be sought in oases, where the claim is under $200, in the County Court, and in all other cases in Chancery. There seems no good reason why the powers conferretl by this section should not have been extended to the Division anci County Courts in all cases within their respective jurisdiction. ,, ,,^,j^j ^^ ^^,j ^„..^j( ( <.ji ,, 23. Upon application to the County Court or the seennty Judge thereof in claims under two hundred dollars,(a.) and "«« otum, to the Court of Chancery in other cases, such Judge or Court may receive security or payment into Court in lieu of the amount of such claim, and may thereupon vacate the registry of such !ien, or may annul the said registry upon ai^ ©ther ground, {b) (36 V. c 27, s. 9 ; 38 V. c. 20, 8. 17.) {a) "tn clcUnu under tw6 htundred doUars" In this seotion the word <• claims " claims " must refer to the elium of the Indltidnal Kei^Iidlder whose «n^ t^*^" olaim is sought to be vacated or discharged. '^'•'^mim 44 Section 24. Treating legistered liens. Form of order vacat- ing a lien. Wrongful claim or re- f osal to dis- charge, costs. THE MECHAXICS LIEX ACT. (6)" Upon any other grottnd." Full authority is by this section given for the vaoating or acnulling of liens which have been improperly registered, or which have been satisfied, or for any other reason ought to be vacated. . ^ ^,.. V l."' J FORM OF ORDER VACATING LIEN. ' :...)- •.'..»■.!'...-•. (Style of cause.) Upon the application of {owner), in presence of the solicitor for the {Uen-holder), and upon hearing read {affidavits and other papers on which application Jounded), it is ordered that the claim of {name of lien-holder) to a lien upon the estate or interest of {name of owner) in the following lands, viz., {description of lands as in registered claim), in respect of the following work {or materials), that is to say, {describing it as in the registered claim), done {or furnished) for {name of person for whom xoork done or materials furnished), on or before the day of , and in respect of which the sum of $ was claimed by the said {lien-holder), as due {or to become due), and which said claim was registered in the Registry Office of on the day of , at o'clock, as No. be, and the same is hereby vacated and discharged. ■ J.i.v;r.,,i:,?;' ,?;i^ * . ' ,; . ' " 24. In any of the said cases, (a) the Court or Judge may proceed to hear and determine the matter of the said lien, (6) and make such order as seems just, and in case the person claiming to be entitled to such lien has wrongfully refused to sign (c) a certificate of discharge thereof, or without just cause claims a larger sum to be due than is found by such Judge or Court, the Judge or Court may order and adjudge him to pay to the other party such costs as the Judge or Court may think fit to award. (36 V. c. 27, s. 9 ; 37 V. c. 20, s. 17.) (a) "In any of thesaid cases.*' This section, in the Act of 1873, formed part of the preceding section. The words, ''in any of the said cases,*' I I THE MECHANICS LIEN ACT. 45 therefore would aeem to refer to the oases referred to in that section, Section 96. viz. : (1^ Gases in which application is made to vacate a lien on giving security, or paying money into Court ; and (2) Cases in which applica- tion is made to vacate or annul a registered lien on any other ground. (6) " Hear and determine the maiter of the said lien." It is only the On motion to matter of the particular lien in dispute that is here referred to. vacate lion. Court can- not order Under this section, therefore, it would not appear to he intended, that the Court on a motion to vacate a lien should make an order for its 7ale ofpro- realization by a sale of the property, even though the Court should perty even find in favour of the lien-holder, as that might involve the rights of though lien other lien-holders (if any) who would not be parties to the proceedings, upheld- All that can be determined and adjudicated upon is the validity of the . particular lien in dispute. (c) " Wrongfully re/used to sign." The statute makes no provision requiring a lien-holder to pay f jr the registry of the discharge when signed. A lien -holder would be deemed to have wrongfully refused to sign, even though he did eo under a bon&Jide belief that bis claim was not satisfied or could be enforced, if such were not in fact the case. Materials used in ocn- struction of bulldingi) not.to be suhieot to execution in certain ( 25. Whenever any mechanic, artisan, machinist, builder, miner, contractor, or other person, has fur- nished or procured any materials (a) for use in the con- struction, alteration, or repair of any building, erection, or mine, at the request of and for some other person, (6) such materials shall not be subject to execution, (c) or other process, to enforce any debt, other than for the purchase thereof, due by the person furnishing or pro- curing such materials, {d) and whether the same have or have not been in whole or in part, worked into, or made part of, such building or erection. (36 V. c. 27, s. 13.) (a) *' Any materials." It is only materials furnished or procured for uateriai use in the oonstruotion, alteration or repair of any building, erection protected ii()- Seetton 25. fh>m execu- tion. THE MECHANICS LIEN ACT. or mine, at the request of and for some other person, that are pro- tected from execution by this section. Machinery, except such a9 may be furnished ior any of the purposes above mentioned, does not appear to be protected. (6) " At the reqttest of and for some other person." These words limit the application of this section to material furnished or procured by "contractors" or "sub-contractors." Materials furnished or procured by an owner for the erection, alteration, or repair of a building on his own property, would not be irithin the section. Ezeentions as against which, ma- terial pro- tected. (c) " Shall not be subject to execution." This section is not intended to exonerate the materials from all executions, but only from executions to enforce any debts, due by the person by whom the material was furnished or procured, excepting such as were incurred by the latter for the purchase of the materials. The proper construction of the Act appears to require that the words "any debt" should be qualified by the clause "due by the person furnishing or procuring such materials," for if the lattei- words were to be held only to qualify the words " other than for the purchase thereof," it would seem to follow that the materials of all buildings erected by one person for another, after the passing of the Act, are absolutely and indefinitely exempted ttom all liability to execution, whether it be against the owner or any other person, a result which, it is needless to say, could never have been intended. Although the Act does not protect the material from execution to enforce a debt incurred for the purchase thereof, it does not follow that the material will, in all cases, be salable, even under such an execution, that will depend on ivo '^ther the material bad, or had not, ceased to be the property of the debtor. After the material has become incorporated in the building, there is nothing in this sec- tion to exonerate it from liability to executions to enforce debts due by the '* owner". But such executions will not defeat the rights of those who have, previously to the delivery of the writs to the sheriff, acquired a right of lien under this Act. '^J "' HHi-.h.' hilt \{i 4uf.ii.1Ki a,\ {d) **Due by the person furnishing vr procuring such materials." These words are to be read in connection wiv'h the previous part of this Motion, from which it will be seen that they refer only to persons famishing or procuring materials for the specific purposes mentioned,. I THE mechanics' LIEN ACT. 47 "a< the request of and for some other person." It is only against Section 26. certain debts of such persons that npaterial is protected. In other words, this section exempts the material from liability for certain debts due by the person hy whom it is furnished or procured to be furnished, but does not exempt it from any debts due by the person to, or for wliom, it is furnished or procured. For example, material furnished by a " contractor " for an «' owner ' ' would be free from the debts of the "contractor," except those incurred for the purchase of the material, but not from the debts of the " owner," so soon as the material should, by incorporation into his building, or otherwise, have become his property. 26. Except SO far as herein otherwise provided, (a) Application the provisions oVThe Registry Act" shall not apply state in. to any lien arising under the provisions of this Act. (38y. c. 20, S.18.) . , (a) "OtJierwise provided.^* See sections^, 20, 21. SCHEDULE {Referred to in section 4') STATKMENT OP CLAIM, (a) ^^ B of under " The Mechanics' Lien Act," claims a lien upon the estate or interest of C. D. of , in respect of the following work {or materials), that is to say, . which work was {or is to be) done {or materials were furnished) for the said C. D. on or before the day of . , , , , a"; (a) The form here given omits to require the claimant to state when Defect in the amount of his claim is payable. " This omission makes it impos- Jjj^*"'"^ Bible to ascertain by searching the registered claim when the period "°* for bringing a suit to enforce the lien will run out, as there will be nothing on the registry to shew when the period of credit, if any, will expire. {See section 21.^ •.-oi'i'i ^o -iitiH'iafc't I 48 THE mechanics' LIBK ACT. The amount olaimed as due, or to become due, is tbe sum of dollars. The description of the lands to be charged is the following: (Description 0/ land.) „ . „ ... , , -r Dated at , this . day of , A.D. 18 . (36 V. c. 27, Sched.) " , r 1 1 ,., .1 . ;V.''>i/!7'.n.i v'..t Jte /!'ICiiL,- i. ■ ' " ' • _. THE mechanics' LIEK ACT. 41 VICTOKIiE CHAPTER 17. '' '^'^ "An Act to amend the Mechanics* Lien 49 a Act." ■-.(iO !• / ^k; [^aacn<«;rf to 7<7t March, 1878.] WHEREAS it is desirable to afford greater pro- 4iy.c.i7, tection to the earnings of the working Mechanics, — Labourers, and suppliers of material, than is now pro- vided by law ; Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — I Section eleven of the Revised Statutes of Ontario, g,^ g^^j^ chapter one hundred and twenty, intituled "An Act ^;;-^' to estabUsh Liens in favour of Mechanics, Machinists, and others," is hereby amended as follows : — 11. All payments, up to ninety per centum of the price to be paid for the work, machinery, or materials, as defined by section three of this Act, made in good faith by the owner to the contractor, or by the con- tractor 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 7 f 80 THE MECHANICS LIEN ACT. ^1 ]["i%"' owner, contractor, or sub-contractor (as the case may " be), of the claim of such person, shall operate as a dis- charge pro tanto of the lien created by this Act, 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 Act. (*) Lien to ex- tent of 10 per cent, when a eharge. Charge in &Tonr of sulHson- tractonon 10 per cent, of price pay- able by owner to contractor. 2. The said lien shall, in addition to all other rights or remedies given by the said Act, also operate as a charge (a) to the extent of ten per centum of the price to be paid as aforesaid by such owner, (b) up to ten days after the completion of the work in respect of which such lien exists, or of the delivery of the materials, and no longer, unless notice in writing (c)be given as herein- before provided. (a) '* Operate as a'jcJiarge" It can hardly be supposed that the statute intended to create a charge in favour of contractorsjupon money which they are entitled to by contract. The charge therefore created by this section must have been intended for the benefit of " sub-con- tractors," and to enable them to intercept money due from the owner to the contractor. Where there are several sub-contractors, each, according to his class, would be entitled to a pro rata share of the ten per cent., upon which a charge is here given. (See ante p. 84. ) (h) " To be paid as aforesaid by such orcner." The charge hereby oreated is upon ten per centum of the price to be paid by the owner. There is no charge in terms created upon money due to a " sub-con- tractor" from a " contractor" or another " sub-contractor," but the right of any sub-contractor to participate in the ten per cent, of the (♦) See ante page 27. ■'-i..i/l. ,oui>;-.«iiiv> /i'i,'V< THE mechanics' LIEN ACT. u price to be pidd by the owner, would however appear to be subject to «iJ y* c. 17,. the charge of any sub-contractor to whom he might be indebted. And !l — where a "contractor" pays his immediate " sub- contractors" in ad- Bflectofover vance, and such payments exceed the ninety per centum of the price contractor or to be paid by the owner, any person who has been employed by the buIhsoii- 8ub-contractors who have been so overpaid, would seem to have an tractor. equity, to stand in the place of the contractor, aad to receive from the <* owner" so much of the ten per cent, as he has lost by reason of the contractor making such payment in advance. (c)" Unless notice in writing." The notice referred to is that mentioned Notice to be in the preceding section. If the notice be not given within ten days ^'^^ °' after the work has been done, or materials furnished, by the person ^^^^^ giving it, it must be given before the payment is made by the *' owner," otherwise the payment, if made in good faith, will be protected under the preceding section. 3- Every mechanic or other person who has bestowed money or skill and materials upon any chfl,ttel or thing in the alteration and improvement in its properties, or for the purpose of imparting an additional value to it, so as thereby to be entitled to a lien (a) upon such chattel or thing for the amount or value of the money or skill and materials (6) bestowed, shall, while such lien exists, but not afterwards, in case the amount to which be is entitled remains unpaid for three months (c) after the same ought to have been paid, (d) have the right, in addition to all other remedies provided by law, to sell the chattel (e) or thing in respect of which the lien exists, on giving one week's notice (/) by advertisement in a newspaper published in the municipality in which the work was done, or in case there is n>o newspaper pub- ^p^ 52 THE UECHAKICS' LIEN ACT. ^^■fc 8.^^' Wished in such municipality, then in a newspaper pub- lished nearest thereto, stating the name of the person indebted, the amount of his indebtedness, a description of the chattel or thing to be sold, the time and place of sale, and the name of the auctioneer ; and after such sale, such mechanic or other person shall apply the proceeds of such {g) 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 leaving a like notice (h) in writing at the last or known place of residence (if any) of the owner, if he be a resident of such municipality. ' ,.,,.,. ' ' » ' I ■-. liens on (a) " So as thereby to he entitled to a lien." At common law there are chat'.£l8,who j^jj kinds of liens on chattels, viz., general liens, and particular liens, entitled to. » » «» » *- A general lien is a right to retain chattels, not merely for work or General lien ^^^^7 expended on the specific chattels retained, but also for the general balance of account due by the owners to the lien-holder. A Particular particular lien is the right to retain a chattel for the work or money lien. expended on it. At common law the lien of a mechanic on chattels, independent of any contract, expressed or implied, is particular and not general. (See Phillips on Mechanics' Liens, ss. 470-1.) The right of particular lien exists, when there is no agreement to the contrary, in every case where a bailee for hire has by his labour and skill, or by the use of any instrument over which he has control imparted additional value to the good^ of another. (See Cross on Lietu 24 Phillips on Mechanics' Liens, a. 474 ; Jackson v. Cummins, 6 M. & W. 842.) Particular ^^e Act is confined to the case of particular liens, and only author- liens only, izes a sale for the satisfaction of claims for money, work, or materials within Aot. bestowed in the alteration and improvement of the particular chattel THE MECHANICS LIEN ACT. 53 It does not authorise the ^ale of chattels to enforce a general 41 v. c. 17, Bold. Ilea existing thereon. 'fv i (b) ** Shall while auch lien exists." The lien exists only so long as the Duration of lien-holder retains possession of the chattel, and bis claim for work ^'^''• and material bestowed thereon, is unpaid. The parting with posses- sion is a surrender of the right of lien, even though the claim remain Pogsession unpaid, and so also is the release of the debt, even though poasesHion esseatial. of the chattel be retained. The possession must bo continuous. Thus where a mechanic had repaired a carriage anJ allowed it to remain in his yard, but the owner had frequently taken it out of the yard, and returned it ; it was held that the mechanic could not after- wards retain it for the amount of the repairs. (Hartley v. Hitch- cock, 1 Starkie 408.) But where A. sent a waggon to B. to make certain wood work therefor, and B. having finished the wood work sent the waggon in A.'s name to another mechanic to do the iron work, and subsequently got back the waggon, and upon A.'s calling for the waggon, allowed him to remove the box to the highway, but on his returning for the running part refused to let it go until he was paid his bill ; it was held that B. had not absolutely lost bis lien by sending the waggon to the blacksmith, and that it had revived on his again obtaining possession, and that allowing A. to move the box to the highway was no waiver of his lien. {Milbum v. Milbum, 4 U. C. Q. B. 179. But see McNeil v. Kelelier, 15 C. P. 470.) , i I When the work is done on credit, and the period of credit has not when credit expired before the goods are to be delivered, no lien exists. (See Croaa given, on Lien, 48.) But it is said, if the bailee retain possession, and the owner become bankrupt before the period of credit is expired, the lien would attach as against t^e assignee. (See Phillipa on MecJianics' Liens, a. 499.) But such lien, if any, could not prevail against a person to whom the chattel may in the meantime have been sold by the owner. (Crawahay v. Homfray, 4 B. & Aid. 60. ) The taking of a security payable at a fut?re day in the absence of an agreement to the contrary, puts an end to the lien. (See Dempaey v. Caraon, 11 C. P. 462.) The possession must be lawful, or there will be no lien. Where one Posseadon wrongfully obtains possession of chattels and delivers them to a third must be lawftil. M THE MECHANICS LIEN ACT. 41 V. 0. 17| party who bestows money, skill or materials thereon, the latter would have no lien as against the rightfal owner. {See Hartop v. Hoare, 8 Atlc. 48. ) The lien can only arise by virtue of a contract express or implied with the owner or bis agent. {See PhiUipa on Mech. Liens, 88. 494, 497.) A sub-contractor has no right of lien which could be enforced under this section. {lb. «. 496.) (c)*' Three months," i.e., calendar months. {See " The Interpretation Act," R. S. 0. 0. 1,8. 8, ss. 16.) {(1) " After the same ought to have been paid.** Where credit is given, and the right of lien is preserved by express agreement, the three months will not commence to run until the expiration of the period of credit. Lien-bolden «ntiUed to aeU cUttel. Notice to be given. {e) " To sell the chattel.*^ Prior to the passing of this Act a person acquiring a lien on a chattel for work done, had only a right to retain it in his possession until his claim was paid by the owner, the present Act enables him to realize the amount due to him, by a sale of the chattel. It would seem that the lien-holder cannot himself be the purchaser at the sale. (^See King v. England, 4 B. & S. 782 ; WilUama y. Orey, 28 C. P. 661 ; Bumham t. Waddell, 28 C. P. 263.) ( /)" On giving one weeJi's notice.** A week should elapse from the date of the first publication of the notice before the sale. The notice should strictly follow the Act, any material omission might invalidate the sale and subject the vendor to an action for damages. {See ShuUz V. Eeddick, 48 U. C. R. 165.) Form of aotioe. FOU&I OF NOTICE OF SALE TO BE PUBLISHED AND SERVED ON OWNER. AUCTIOTT SAIE. Whereas [namt of person indebtedl is indebted to the undersigned in the sum of $ for [work done and materials supplied in the altera* tion or improvement of one spring waggon] and three months have elapsed since the said sum ought to have been paid, and default has been made in payment thereof, notice is herel^ given that on THE mechanics' LIEN ACT. next the day , at [place of sale, e.g., the auction rooms of C. D., No. 6 King Street West, in the City of Toronto.] the said describe chattel] will be sold by [narm qf auctioneer] by pubUo auction. {If the sale is to be subject to a reserve bidding or other special con- dition, it should be so stated.) 55 Dated, &o. {Signature of lien-holder.) To {name of otmer) and all whom it may concern. {g) «• The proceeds qf such." The word " sale" is here intended to be understood. (h) ''And leaving a like notice." The sentence commencing Notice to be ^ith these words has been accidentally misplaced. The evident -ejl^edon intention was, that it should follow the word auctioneer, as it is hardly possible to suppose that the Legislature intended the notice of sale to be given to the owner after the sale had taken place. Notwithstanding the transposition of the concluding sentence, the section would probably be construed as requiring a copy of the notice of sale to be left at the last known place of residence (if any) of the owner if he be a resident of the municipality where the work was done, a week before the sale. ',t ' ;: ; •:..i ;j's: Uii ■■rni\ 't if .HaZ^'-" n's-i' M;-i'ii 'r^/' R»'': V' IV !»T'' imyjru, ■■^'.i--,^ '^,•^^:,^.:■J,^;:• ri':i'':. 'K'v' -':4,>'':' .■14 ■ts; !. - '( \ /"••. • '• )l . ■• * ' Vt .* «i », ■^;» — -'■ '•■-- X i THE MECHANICS LIEN ACT. m APPENDIX. \ (1) FORM OF BIIL TO ENFORCE MECHANICS' LIEN BY CONTRACTORS. » In Chancery. Between— J. E. and W. B Plaintiffs, » and M. A. T Defendant. City of Toronto. • To the Honourable the Judges of the Court of Chancery. The bill of complaint of J. E., of the city of Toronto, in the county Bill by con- of York, builder, and W. B , of the same place, bricklayer, tractor. Sheweth : 1. On the 11th d«y of November, 18 , the defendant was, and she has ever since remained and now is the [owner in fee simple of the lands and or lessee of certain leasehold] premises in the city of Toronto, in the county of York, more particularly described in the claim or lien hereinafter set forth, (a) 2. On or about the said 11th day of November, the plaintiffs, who are mechonios, were employed by the said defendant to perform certain work and to furnish certain materials for the erection of a brick hotel upon the said land for the said defendant, and there was no agreement between the said defendant and the plaintiffs that the plaintiffs should not be entitled to a lien npon the said lands and buildings for the price of the said work and materials. ,. > 3. In pursuance to the said employment, the plaintiffs did do a large amount of work upon and did furnish largequantities of materials, which were used in and about the erection of the said brick hotel (a) If the lien has not been regiatiered, this paragraph ahouW set forth the lands npon which the lien is claimed, and should be modified accordingly. 8 n 58 THE mechanics' lien act. upon the said lands, to the value of $18,000, and completed tbe same on tbe 4th day of September, 18 , vhereby the defendant became indebted to the plaintiffs for the said work and materials in the said sum of $18,000. 4. The sum of $15,000 has been paid on account of the said sum of $18,000, leaving a balance of $3,000 still due and payable to the plaintiffs. 6. By reason of being so employed, and doing the said work, and furnishing the said materials, as aforesaid, tbo plaintiffs became and are entitled to a lien on the estate and interest of the defendant in the said lands for the said sum of $3,000, under the provisions of '* The Mechanka' Lien Act." 6. On the 2.1st day of September, 18 , the plaintiffs, in nursuance of the said Act, caused to be filed in the Registry Office in nr 1 for the city of Toronto a statement of their said claim, which statement is in the woi'ds and figures following, that is to say : '* J. E., of the city of Toronto, in tbe county of Tork, builder, and W. 6., of the same place, bricklayer, under ' The Mechanics' Litn Act,* claim a lien upon tbe estate or interest of M. A. T., of the said city of TorontOi in respect of the following work and materials, that is to say: '• To amount of ooDtraot $17,000 ' BiUofextrcu. Tof txtnt stone in fouadittoo. 500 "BriokpoiDtiog 200 " BowU flats of extra i-bncks ia thioknew. ....... 800 \. — — — ^^ j-i :ro:j ^1 to «s;Ti! 'iirM'ifi vf.fw; 'Li.i $18,000 J 1878. !; 9)Wi 1.— Byoash $2,000 " «• 22.— •♦ I,00» 1874. - - " Jan. 51- ■ ■«*• ■.::... :;.l.-^.,..:;....; t,mr •'''■'^■■- '^'- «^ 1 i» ir AAA '■''^7?^^' " - :.o.. ... ... .. :..■ ..w.: ;;,..., -.,.. •:. .. . ■ ■ — 9is,m '/'.if (I , .:i'>ori!if!f.;ij( 10 ?L'-''"»>j:jfl »•[' ';^ , ,___ '_ ^ ft «■» . THE MECHANICS^ LIEN ACT. which work was done and materials were provided for the said M. A. T. on or before the 4th day of September, A.D. 18 , the amount claimed to be due or to become due is the sum of $8,000 ; the descrip- tion of the land to be charged is as follows : — All and singular that certain parcel of land known as lot 8, on the west side of John Street, as shown on the plan of J. S. Dennis, F. L. S., registered in the Registry Office of the sud City of Toronto, and numbered D 68. Dated at the city of Toronto, in the county o^' ' ork, this 21st day of September, A. D. 18 . , ' : , ' Witness, '•■■' "" '*■ j.'^^ ■ ' Signed J. Babnes ) 5d Signed Signed J. E. W. B. •—which statement was verified by an affidavit of the plaintiffs, sworn before a commissioner for taking affidavits in the said county of York, as required by the said statute, (a) ' ''^ 7. The lands refekred to in the first pat«graph of thi« bill, and particularly described in the said claim or lien hereinbefore set fortb^ are the'lands occupied by and usually enjoyed with the said hotel. The plaintiffs therefore pray: ' • '= '^ '^•' '^^ '"^^ -« 'J'' » '' ' ■' fu),i V' !• liiai the defendant" may be ordeired to pay to the plaintiffs forthwitli the said siini of 98,000, togetlier With the interest tliereon atad , , , . , , the cdsti of this •difci.o*. wi aiioip »Mx^ .;T ow.>;j>^. 0n or daringi iti progrem, or wttUq thirtjr days tiitu ita bompletloii, and that a lien Ibr materials or ma^iin^ wat regfifetiu'irhhlnl tMrtydaya of thed«ltvei^'thfln6l', anliiSt^eiuli b« eomfiUMMd. aoH a ctKtIifeila of lUpetO^U raifateM wiihht tMHy day* ftoJK* the oQMtlittfcqJt of thi weirk or deIlV«ry of thir maieriUa ' or* maeUilA^i lii'Wlittli' «aia raglMratiea ttXtnk tohddi iMlbM MR ft naiMOMmy. 60 THE mechanics' LIEN ACT. . ■*■ . ' ■■■-,- V'. . ■! " ' f < i.tc :' 1 ^^bt BUI by sub- oontiuctor. (2) FORM OP BILL TO ENFORCE A MECHANICS' LIEN BY A SUB-CONTRACTOR. In Chancery. Between ' - J. E., Pkintiff: and M. A. T. (Ovmer,) C. D. {Contractor,) and E. T. (Sub-contractor hy whom plaintiff employed, ) — Defendants.) {Formal parts as in preceding form.) .w^ 1. On the nth day of November, 18 , the defendant, M. A. T., was and she hus ever binoe remained and now is the [owner in fee simple of the lands and, or lessee of certain leasehold] premises in the City of Toronto, in the County of York {if the plaintiff's lien has been registered, conclude as in preceding form, if not, say) known and des- cribed as follows, that is to' say : {set out description of land over which lien is claimed.) 2. On or about the said 11th day of November, the said defendant, M, A. T., employed the defendant, C. D., to perform certain work and to furnish certain materials for the erection of a house upon the said land for the said defendant, M. A. T., for the price or sum of $10,000, and there was no agreement between the said M. A. T. and the said 0. D., that the said C. D., or any sub-contractor under him, should not be entitled to a lien upon the said lands and buildings for the price of the said wor) id materials, or any part thereof, or between the plaintiff aqd the niaid M. A. T., that the plaintiff should not be entitled to such lien for the work done and materials furnished by him, as ' hereinafter mentioned. . f- THE MECHANICS* LIEN ACT. 8 The defendant, C. D., aooepted the said employment, and agreed with the said M. A. T. to perform the said work and to furnish the said materials, and afterwards employed the defendant, E. T.. to do part of the said work and furnish part of the materials required for the erection of the said house, for the sum of $1,000, which employ- ment the defendant E. T. accepted, and he agreed with the said C. D. to do the work and furnish the materials last referred to for the said price or sum of $1,000. ,.. .....^ 4. On the II th day of December, 18 , the defendant, E. T., employed the plaintiff to do part of the work and furnish part of the materials for the erection of the said house which he had so agreed with the said defendant, G. D., to do and furnish as aforesaid, and agreed to pay the plaintiff therefor the price or sum of $500. 5. The plaintiff accepted the said employment, and in pursuance thereof the plaintiff did do a large amount of work upon, and did fur- nish large quantities of material in and about the erection of, the said bouse upon the said lands to the value of $500, and completed the said work and the delivery of the said materials on the 5th day of January, 18 , whereby the defendant, E. T., became indebted to the plaintiffs for the said work and materials in the said sum of $500. 6. The said work was done, and the said materials were furnished by the plaintiff in accordance with the terms of the contract or agree- ment between the said defendants M. A. T. and CD. 7. The sum of $100 has been paid by the said E. T. on account of the said sum of $500, leaving a balance of $400 still due and payable by him to the plaintiff. 8. By reason of being so employed, and doing the said work and furnishing the said materials as aforesaid, the plaintiff became and is entitled to a lien on the estate and interest of the defendant M. A. T. in the said lands for the said sum of $400, and also to a charge there- for upon ten per centum of the price so to be paid by the said defen- dant M. A. T. to the defendant G. D. under the provisions of the 8ud " 77(6 Mechanics' Lien Act," and the Act amending the same. 9. [If the lien were registered proceed as in paragraph 6 of preceding Jorm.) 6$ 62 THE mechanics' LIEN ACT. 10. The lands referred to in the first paragraph of this bill [if so and particularly described in the said claim or lien hereinbefore set forth] are the lands ocoapied by and usually enjoyed with the said bouse. .;>",v" 11. The defendants C, D. and E. T. have also done work and fur- nished materials in and about the erection of the said house and are entitled to liens in respect thereof upon the said lands under the said ** The Mechanics' Lien Act." The plaintiff therefore prays : 1. That the defendant E. T. may be ordered to pay to the plaintiff forthwith the said sum of $400, together with interest and the costs of this suit. 2. And that the defendant M. A. T. may also be ordered to pay the same or sucnpart thereof as the plaintiff, by virtue of his said lien and charge as aforesaid, is entitled to receive from '>' the said M. A. T. i j.<#i<.i :-■■'» ,■.,-,, ,,..1 ' ...V. V .* -^ M' 1. ,Ji. * ' . « V * V ; j^.V-vj'-s.. i 'ii i.'rM:tii'*. . it i. '-'>0:ni- \l^ H 3. And that in default of such payment by the said M. A. T. and the said E. T. that all the estate and interest of the defendant M. A. T, in the "sa'd lands and buildings, or a competent part thereof, may be sold, and the projeeds applied in or towards payment of the plaintiff's debt and the costs of this suit, pursuant to the ■aid '• The Mechanics' Lien Act." 4. That for the purposes aforesaid all proper ' direotioDB may be given and accounts taken. -') ' 6. And that the plaintiff may have such ' further and other relief as to this Honourable Court shall seem meet. ■ i J < And the pluntiff will ev«r pray. v,i., johjv THE mechanics' LIEN ACT. 63 (3) FORM OP DECREE IN SUIT BY CONTRACTOR. ; In Chancery. V. C. Wednesday, the day of 18 . Between 0. F Plaintiff. and The W. H. Company (Limited), Defendants. This cause coming on to be heard this day in the presence of Decroe in counsel for the plaintiff, no one appearing for the defendants, although suit by con- duly notified as by admission of service appears, upon opening of the tractor. matter, and upon hearing read the plaintiff's bill of .'complaint, and upon hearing the defendants' answer thereto, and upon hearing what was alleged by the counsel aforesaid, 1. This Court doth declare that the plaintiff has a lien upon the estate and interest of the defendants in the lands and premises in the pleadings mentioned under " The Mechanics' Lien Act," for so much of the value of the materials provided, and work done, as set forth in the bill of complaint in this cause as remains justly due from the defendants to the said plaintiff, and doth order and decree the same accordingly. 2. And this Court doth further order and decree that it be referred to the Master of this Court at Quelph to enquire and state whether any person or persons, and who other than the plaintiff, except prior mortgagees (if any), has or have any lien, charge or incumbrance upon the estate and interest of the defendants in the said lands and premises, and in case the said Master shall find that any person or persons other than the said plaintiff (except prior mortgagees, if any) has or have any such lien, charge or incumbrance, then he is to cause such person or persons to be made party defendants to this suit in his office, and is to proceed to take an account of the amount due to the said plaintiff, and such other incumbrancer or incumbrancers (if any) for principal and interest, and to tax to them their costs of this suit, and also to settle their priorities. # 3. And upon the defendants, (t. e., the owners, ) paying the amounts which the said Master shall find to be due and payable by them to the 64 THE mechanics' LIEX ACT. plaintiff, and such other incumbrancer or incumbrancers (if any) into the Canadian Banlc of Commerce at its office, in the City of Toronto, to the Joint credit of the plaintiff, and such other incumbrancer or in- cumbrancers (if any) respectively, and the Referee in Chambers of this Court, as the said Master shall direct (at such time and place as the said Master shall appoint), within one month (a) after the said Master shall have made his report. This Court doth order and decree that the said plaintiff, and such other incumbrancer or incumbrancers (if any) do release and discharge their said liens, or convey and assign the said premises free and clear of all incumbrances done by them, and deliver up all f^coUb n.nd documents in their respective possession or power relating thereto upon oath to the said defendants, or to whom they shall appoint or enter up satisfaction upon the rolls of their judgments, as the case may require. 4. But in default of the said defendants making such payments by the time aforesaid, this Court doth order and decree that the estate and interest of the said defendants in the said premises be sold by public auction, tender or private contract, with the approbation of the said Master, and the purchasers are to pay their purchase money into Court to the credit of this cause, and the said Master is to settle the conveyances to the purchasers in case the parties differ about the same in which all proper parties are to join as the said Master shall direct. 5. And this Court doth fuither order and decree that the purchase money, when so paid in, shall be applied first in payment to the said plaintiff of his costs of this suit ; second, in payment to the plaintiff and such other incumbrancer or incumbrancers (if any) of the amount the said Master shall find due and payable to them by the said defen- dants (ovmers) for principal money and interest and costs (other thau the costs of the plaintiff, as aforesaid), according to their priorities, and the residue oi the purchase money, if any, is to be paid to the said defendants, v, .\ h. ■ •• f .'"' "• >' ' '"' 6. But in the event of each purchase money being insufficient to pay the claim of the plaintiff, this Court doth order and decree that the defendant {tiaming the primary debtor of tlie plaintiff') do pay to the (a) See section 12, notes d, e^ ante p>Z\. THE MECHANICS LIEN ACT. m plaintiff the nmuant remaining due to him forthwith after service upon him of this decree and the Master's certificate of such deficiency, (a) contractor. 4) FORM OF DECREE IJI SUIT BY SUBCONTRACTOR. (6) {Formal parts as ante, No. 3.) 1. This Court doth declare that the plaintiffs are entitled to a lien Decree in and charge upon the estate and interest of the defendant {the otoner) suit by sub- in the lands and premises in the plaintiffs' bill mentioned, and upon the buildings and erections upon the same, by virtue of "Tlie Mechanics' Lien Act," for so much of the price of the vork done upon, or materials furnished, or provided, by the plaintiffs, in and about the buildings erected upon the said lands as remains justly due to the said plaintiffs, to the extent of the whole or such part of the amount, if anything, due by the defendant {the owner) to the defendant (the contractor) upon his contract in said pleadings mentioned, as the plaintiff may be found entitled to, which amount is to be ascertained as hereinafter directed, and doth order and decree the same accordingly. 2. And this Court doth further order and decree that it be referred to the Master of this Court to take the following accounts: — 1st. An account of the amount due from the said defendant {the owner) to the defendant {tlie contractor) in the pleadings mentioned, in respect of all work done upon, and materials provided for the erection of the build- ings upon the lands in the pleadings mentioned ; and in the event of the said Master finding that there is any sum still due by the said defendant {the owner) to the said defendant {the crmtracior), or that there was any sum remaining due from the said defendant {the owner) to the said defendant {tlie c)SeeEovtidmy. BlUton,UQi,4a. ^-- " '■■ ■ .. 66 THE mechanics' lien act. 8. And in the like event this Coart doth further order and decree that the said Master do enquire and state whether any person or persqns, and who other than the said plain tiflFs, (other than prior mortgagees) has or have any lien, charge, or encumbrance upon the said lands and erections thereon, under «• The Mechanics' Lien Act,'' or otherwise ; and in case the said Master shall find that any such person or persons, has or have any such lien, charge, or encumbrance, he is to cause them to be made parties to this suit and served with process under the General Orders of this Court, and is to proceed to take an account of what is due to the said plaintiflFs upon and in respect of the said lien, and to such other encumbrancers (if any) and to settle their priorities. 4. And this Court doth reserve further directions and the question of costs until after the said Master shall have made his report. Decree on further (5) FORM OP DECREE ON FURTHER DIRECTIONS IN SUIT BY SUBCONTRACTOR. (Formal parts as in form I^o. 3.) 1. This Court doth order and decree thnt the defenflantp, A. B. & C. D., {"owiiers"), do forthwith pay into Court, to the credit of this directions in cause, the sum of .$396.40 less their costs of this suit, which have been suit by sub- taxed and certified at the sum of $84.80. contractor. : 2. And this Court doth further order and decree that the said moneys so to be paid into Court, be applied and paid out as follows:— 1. In payment to the plaintiff of his costs of this cause, which costs have been taxed and certified at the sum of $ .2, To the defendants, J. B. and G. F., (Ikn-holders), their costs of this cause, which costs have been taxed and certified at the sum of $ 8. And this Court doth further order and decree that out of the balance remaining in Court to the credit of this cause, after the pay- ment aforesaid, the sum of $ be paid out to the said plaintiff, the sum of >$ to the said defendants, J. B. and G. P., and the 8um of $ to the said defendants, J. P. & g, Q, 4. And this Court doth further order And decree that the lands and premises and the erections thereon of the said defendants, A. B. and ^•i** / T^ ■*j THE mechanics' LIEN ACT. €. Does before nol.ce of hen. 7. „„.t be oapaMe "'-^-"^rX lunaUo. sane.ion of Court to contract necessary, G. , . . «* !..,» married woman, not necessarily bound by act of hus- band, 6. payments by, how far protected, 27-29. .« " of claims of sub-contractors, 23, -J4. Bub-contractor may serve notice of claim on, 22, 23. transferee of, bound by liens, 5, 7. "^^Cwner, contractor, or sub-contractor, bo, far a aiecbarg, of U... 27.9. U. POSSESSION. . . o by owner of building, efifect on building contract, 9. essential to lien on chattel, 63. — WPP*"'— *^ 76 INDEX. • ! i ! ! I r I REGISTRATION. oflien, whentobe made, 12,13,14. efFeotof, 18, 16 41. discharge of, 16, 43, 44. may be vacated on motion, 44. form of order vacating, 44. SALE. of interest of owner, may be ordered, 29, 31. within what time, 29, 31. proceeds of, how distributable, 34, 30. * of chattels liable to lien, authorized, 52. notice of sale to be published, 51, 54. i< " served on owner, 51, 55. <« «' form of, 54. lien-holder cannot become the purchaser, 54. proceeds, how to be disposed of, 52. STATEMENT OF CLAIM. affidavit verifying, 14. form of, 47. registration of, 12-14. SUB-CONTRACTOR. . ,. « * «f « agreement between owner and contractor to waive hen, effect of, 8. definition of, 4, 5. ^ „^ oc dispute as .to claim of, how to be settled, 24, 36. entitled to register lien on land, 5. ent-tled to charge on 10 per cent, of price payable by owner, 12, 6U. materials furnished by, exempted from execution, 45, 46. may give notice of claim to «' owner," 22 23. not entitled to lien on chattel, 54. payment of claim of, by owner, how far valid, 23, 25, -6. payments by, to sub contractors how far valid. 25-26. ^^ work, &c., of, must be in accordance with contract with owrier, 9. SUIT TO ENFORCE LIEN. all licvholders of same class entitled to benefit of, 33. dismiasal of before decree, 33. after decree cannot be ordered, 34 will not lie, before credit expired, 13, 34, 40. i ! INDEX. 77 VACATING LIEN. application for, may be made on motion, 44. form of order for, 44. WORK. lien for,P,9. vhen to be registered, 12, 89-41 . must be in accordance with contract witli " owner," 9. need not be done on land, 10. TOKOHTO: Printed by Rowsill & HntcHisoN, 76, King Street East. BWPP