IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 UitM |2.5 
 
 It Ui 12.0 
 
 12.2 
 
 m 
 
 1 
 
 1-25 1.4 1 1.6 
 
 
 < 
 
 6" 
 
 ► 
 
 Photographic 
 
 Sdaices 
 
 Corporation 
 
 33 WIST MAIN STRilT 
 
 WnSTM.N.Y. 14SS0 
 
 (7IA) •73-4903 
 
 ^.V 
 
.^. 
 
 CIHM/ICMH 
 
 Microfiche 
 
 Series. 
 
 CIHM/ICMH 
 Collection de 
 microfiches. 
 
 Canadian Institute for Historical Microreproductions / Institut Canadian da microraproductions historlquos 
 
Technical and Bibliographic Notes/Notes techniques et bibliographlques 
 
 The Institute has attempted to obtain the best 
 original copy available for filming. Features of this 
 copy which may be bibliographically unique, 
 which may alter any of the images in the 
 reproduction, or which may significantly change 
 the usual method of filming, are checked below. 
 
 D 
 
 n 
 
 D 
 D 
 D 
 D 
 
 n 
 
 D 
 
 Coloured covers/ 
 Couverture de cou<aur 
 
 I I Covers damaged/ 
 
 Couverture endommagte 
 
 Covers restored and/or laminated/ 
 Couverture restaurAe et/ou pelliculAe 
 
 r~~| Cover title missing/ 
 
 Le titre de couverture manque 
 
 □ Coloured maps/ 
 Cartes giographiques en couleur 
 
 Coloured inic (i.e. other than blue or black)/ 
 Encre de couleur (i.e. autre que bleue ou noire) 
 
 Coloured plates and/or illustrations/ 
 Planches et/ou illustrations en couleur 
 
 Bound with other material/ 
 ReliA avec d'autres documents 
 
 Tight binding may cause shadows or distortion 
 along interior margin/ 
 
 La reliure serr^e peut causer de I'ombre ou de la 
 distortion le long de la marge intArieure 
 
 Blank leaves added during restoration may 
 appear wUhin the text. Whenever possible, these 
 have been omitted from filming/ 
 II se peut que certaines pages blanches ajoutAes 
 lore d'une restauration apparaissent dans le texte, 
 mais. lorsque cela Atait possible, ces pages n'ont 
 pas 4tA filmAes. 
 
 Additional comments:/ 
 Commentaires supplimentaires: 
 
 L'Institut a microfilm^ le meilleur exemplaire 
 qu'il iui a At* possible de se procurer. Les details 
 de cet exemplaire qui sont peut-Atre uniques du 
 point de vue bibliographique, qui peuvent modifier 
 une image reproduite, ou qui peuvent exiger une 
 modification dans la mAthode normale de filmage 
 sont indiquAs ci-dessous. 
 
 □ Coloured pages/ 
 Pages de couleur 
 
 >. — I Pages damaged/ 
 J Pages endommagtes 
 
 I I Pages restored and/or laminated/ 
 
 Pages restauries et/ou pelliculies 
 
 Pages discoloured, stained or foxed/ 
 Pages dAcolories, tacheties ou piqudes 
 
 □ Pages detached/ 
 Pages ditach^es 
 
 □ Showthrough/ 
 I'rsnsparence 
 
 I j Quality of print varies/ 
 
 Quality inigale de I'impression 
 
 Includes supplementary material/ 
 Comprend du materiel supplimentaire 
 
 D 
 D 
 
 Only edition available/ 
 Seule Edition disponible 
 
 Pages wholly or partially obscured by errata 
 slips, tissues, etc.. have been refilmed to 
 ensure the best possible image/ 
 Les pages totalement ou partiellement 
 obscurcies par un feuillet d'errata, une pelure. 
 etc., ont Atift filmAes A nouveau de fafon A 
 obtenir la meilleure image possible. 
 
 This item is filmed at the reduction ratio checked below/ 
 
 Ce document est filmA au taux de reduction indiqu* ci-des<sous 
 
 10X 14X 18X 22X 
 
 
 
 
 26X 
 
 
 
 
 30X 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 y 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 12X 
 
 16X 
 
 aox 
 
 2«X 
 
 2SX 
 
 32X 
 
ils 
 du 
 
 diffier 
 ine 
 lage 
 
 The copy filmed here has been reproduced thanks 
 to the generosity of: 
 
 York Unlvtnity 
 Law Librsry 
 
 The images appeering here are the best quaiity 
 possible considering the condition and legibility 
 of the original copy and in keeping with the 
 filming contract specifications. 
 
 L'exemplaire filmt fut reproduit grice A la 
 gAnArositA de: 
 
 York Unlvtnity 
 Law Library 
 
 Les images suivantes ont 6x6 reproduites avec le 
 plus grand soin, compte tenu de la condition et 
 de la nettetA de l'exemplaire f ilm6. et en 
 conformity avec les conditions du contrat de 
 filmage. 
 
 Original copies in printed paper covers are filmed 
 beginning with the front cover and ending on 
 the last page with a printed or illustrated impres- 
 sion, or the back cover when appropriate. All 
 other original copies are filmed beginning on the 
 first page with a printed or illustrated impres- 
 sion, and ending on the last page with a printed 
 or illustrated impression. 
 
 Les exemplaires originaux dont la couverture en 
 papier est imprimie sont filmte en commenpant 
 par le premier plat et en terminant soit par la 
 dernlAre page qui comporte un^^ empreinte 
 d'impression ou d'illustration, soit par le second 
 plat, salon le cas. Tous les autres exemplaires 
 originaux sont film6s en commenpant par la 
 premiere page qui comporte une empreinte 
 d'impression ou d'illustration et en terminant par 
 la derniire page qui comporte une telle 
 empreinte. 
 
 The last recorded frame on each microfiche 
 shall contain the symbol ^^> (meaning "CON- 
 TINUED"), or the symbol V (meaning "END"), 
 whichever applies. 
 
 Un des symboles suivants apparaitra sur la 
 dernidre image de chaque microfiche, selon le 
 cas: le symbole -*> signifie "A SUIVRE". le 
 symbols V signifie "FIN". 
 
 Maps, plates, charts, etc., may be filmed at 
 different reduction ratios. Those too large to be 
 entirely included in one exposure are filmed 
 beginning in the upper left hand corner, left to 
 right and top to bottom, as many frames as 
 required. The following diagrams illustrate the 
 method: 
 
 Les cartes, planches, tableaux, etc., peuvent Atre 
 fiim^s A des taux de r6duction diffArents. 
 Lorsque le document est trop grand pour Atre 
 reproduit en un seui clich6, II est filmd A partir 
 de Tangle sup6rieur gauche, de gauche A droite. 
 et de haut en bas, en prenant le nombre 
 d'images n^cessaire. Les diagrammes suivants 
 illustrent la mithode. 
 
 rrata 
 o 
 
 lelure. 
 1 A 
 
 
 J 
 
 32X 
 
 1 
 
 2 
 
 3 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
THE 
 
 ^ i -■ 
 
 
 MECHANICS' LIEN ACTS 
 
 OF 
 
 ONTARIO, 
 
 (K. S. O. (1897); Cap. 153) 
 
 MANITOBA 
 
 (60 VicToiUA, Man., Cap. 29) 
 
 AND 
 
 BRITISH COLUMBIA, 
 
 (R. S., Cap. 13?) 
 
 WITH ANNOTA'I'IONS, AND ADDITIONAI- FORMS 
 OF PROCEEDINGS THEREUNDER. 
 
 MY 
 
 GEORGE SMITH HOLMESTED 
 
 (0/ Osgoodc Hally Barrister at- La7t\ and Senior Rci^strar 
 of the Jlii^'/i Court of Justice for Ontario.) 
 
 
 TORONTO 
 1899 
 
 "if 
 
I\^- 
 
 ^^\ 
 
 ^^:/^ 
 
 Rntered acconlinx to Act of the Parliament of Canada, in the year one thou- 
 sand eight hundred and ninety-nine, by (iKOROK SMITH Holmestkd, at the 
 Department of Agriculture. 
 
 TORONTO ; 
 
 PHINTKD HY DUDLEY & BURNS, 
 
 COLBORNE ST. 
 
 1 H 
 
COMPARATIVE TABLE 
 
 OF THE 
 
 Mechanics' Lien Acts of Ontario, Manitoba, and British 
 
 Columbia, 
 
 Showing the correspondin)? sectiona in each Act. 
 
 
 < 
 
 6 
 
 » 
 
 
 o 
 
 2 
 
 H 
 
 .f 
 
 t^ 
 
 ti 
 
 K 
 
 •A 
 
 o 
 
 < 
 ^ 
 
 Sections, Sections. 
 
 1 
 
 2 
 
 .. (1) 
 
 M Ci) 
 
 „ (3) 
 
 „(4) 
 
 „ (5) 
 
 "(6) 
 
 ..(7) 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7(1) 
 
 - m 
 
 .. (.•«) 
 
 8 
 
 e 
 
 10 
 
 11(1) 
 
 - (2) 
 
 •' (3) 
 
 1 
 
 2 
 
 (I) 
 (2) 
 (3) 
 
 12 
 
 " (4) 
 
 " (r>) 
 
 12(6) 
 2(7) j 
 
 3 
 
 5(1) 
 
 .- (2) 
 .. (3) 
 
 a 
 
 I 
 8 
 
 !•(!) 
 
 " (2) 
 
 n (;i) 
 
 10 
 
 n 
 
 n 
 
 Sections, 
 
 I 
 
 (1) 
 (2) 
 (3) 
 (4) 
 (6) 
 
 ;{ 
 
 cf. 
 cf. 
 
 .if. 
 
 cf. 
 cf. 
 cf. 
 
 4,.') 
 
 7 
 
 4 
 
 4 
 
 7 
 
 (i 
 
 cf. 
 cf. 
 
 ■1, T) 
 12 
 
 o 
 
 Sections. Sections. 
 
 13(1) 
 
 .- (2) 
 .- (3) 
 
 14(1) 
 „ (2) 
 .. (3) 
 .. (4) 
 '• (5) 
 
 15 
 
 10(1) 
 M (2) 
 .- (3) 
 
 17(1) 
 
 (2) 
 (3) 
 18 
 
 lfl(!) 
 •■ (2) 
 20(1) 
 „ (2) 
 " (3) 
 21 
 
 22 
 23 
 
 II (1) 
 M (2) 
 .. (3) 
 
 12(1) 
 .- (2) 
 .- (3) 
 .. (4) 
 .. (5) 
 
 13(1) 
 -- (2) 
 cf. ., (3) 
 14 
 
 -. (2) 
 
 Hi 
 
 17(1) 
 .. (2) 
 1S(1) 
 M (2) 
 
 19 
 
 20 
 21 
 
 a 
 
 o 
 
 Sections, 
 
 cf. 12 
 
 cf. 22 
 cf. 22 (2) 
 
 cf. 12 
 
 11 
 cf 16 
 
 8 
 
 8 
 
 cf. 8 
 
 cf. 8 
 
 21 
 
 cf. 8 
 
 \ . 
 
 4, 
 
 'f: 
 
 il 
 
 !t 
 
Comparative Table. 
 
 § 
 
 s 
 
 o 
 
 g 
 
 :3 
 
 S<-rlionit, Scrfions. 
 
 24(1) 
 „ (2) 
 
 26 
 
 27(1) 
 
 .. (2) 
 
 -. (••<) 
 
 „ (4) 
 
 28 
 
 2» 
 
 30 
 
 31 (1) 
 
 .. (2) 
 
 n (3) 
 
 „ (4) 
 
 32 
 38 
 34 
 
 :« (1) 
 
 .. (2) 
 -• (3) 
 
 22 
 
 f. 22 
 23 
 
 
 24 (1) 
 
 M (2) 
 „ (3) 
 
 II 
 
 (4) 
 
 25 
 
 2(1 
 
 27 
 
 (1) 
 
 
 II 
 
 (2) 
 
 o 
 
 SectionH. 
 
 28 
 29 
 30 
 
 31(1) 
 .- (2) 
 -. (3) 
 
 ef. 24 
 
 of. 24 
 10 
 
 2(5 
 
 27 
 cf. 2.') 
 cf. 17, 18, 
 cf. 17, 18 
 cf. 2") 
 
 m 
 
 28 
 cf. 9 
 
 29 
 cf. 9 
 
 .TO 
 cf. 1.3, 10 
 cf. 16 
 
 cf. 
 
 13 
 
 3 
 
 
 cf. 
 
 13 
 
 cf 
 
 16 
 
 cf. 16 
 cf. 16 
 of. 16 
 
 •A 
 
 Sectionn. 
 
 35 (4) 
 .. (5) 
 .. (6) 
 
 36 
 
 37 
 
 38 
 
 .'«»(!) 
 .. (2) 
 ■I (3) 
 
 40 
 
 41 
 
 42 
 
 43 
 
 44 
 
 4r) 
 
 46(1) 
 I. (2) 
 
 47 
 
 48 
 
 49 
 
 50 
 
 51(1) 
 .. (2) 
 
 .V2 
 
 < 
 so 
 o 
 
 H 
 
 < 
 
 c/ionii. 
 
 .-n (4) 
 II (6) 
 .- (5) 
 
 .32 
 
 33 
 
 34 
 
 35 
 
 36 
 
 37 
 
 38 
 
 39 
 
 40(2) 
 
 40(1) 
 
 41 
 
 42 
 
 43 
 
 44 
 
 45 
 
 46 
 
 48 
 
 a 
 
 Serlionit. 
 
 cf. 13 
 cf. 22 
 cf. 13 
 cf. 16 
 cf. 14, 15 
 cf. 16 
 cf. 16 
 
 II II 
 
 II II 
 
 II II 
 cf. 20 
 
 cf. 16 
 cf. 16 
 
 23 
 2.') 
 
 k 
 
 J 
 
t 
 
 TABLE OF CASES QTED. 
 
 A 
 
 I'ACiK 
 
 Allen V. Carman, I E. I). Sn.itli (N. Y.) ttSG (O. ) 20 
 
 Angus V. McLachian, --'S Chy. 1). .TiO ; 4« L. T. mii (O.) IS4 
 
 Anly V. Holy Trinity Church, '2 Man. -.MS (M. ) 20(5, 208 
 
 Anly V. Holy Trinity Church, 3 Man. 193 (M.) 212 
 
 Applchy V. Myers, L. R. 2 C. V. 051 (O.) BO 
 
 Aniidcn v. Henjaini>i, 120 Mass. 270 (O. ) 13 
 
 Armour v. Carruthers, 4 U. C. L. J. 210 (O.) 53 
 
 Arnbery v. Thornton, V. R. 1!K) (O.) 147 
 
 Arnoldi v. (iouin, 22 (Jr. 314 (O.) 21 
 
 Att'y-< General of Oni. v. Atfy-tieneral of Cana.lc. (1804) A. C. 180 . . (().) 47 
 Austin V. Wohler, T) 111. App. m) (O.) 30 
 
 B 
 
 liaker v. Ambrose ( 18!KJ) 2 Q. H. 372 (O. ) 102 
 
 Bank of Montreal v. Condon, 1 1 Man. .3(iO (M.) 205 
 
 Bank of Montreal v. Hatfuer, 20 Cr. 310 (O.) 14, 55, 120 
 
 Bank of Montreal v. Hatfner, 3 O. K. 183.... (O.) 53 
 
 Bank of Montreal v. Haliuer, 10 App. R. 502 .(().) 14, 55, 120, 122, 143, 102 
 Bank of Montreal v. Ilaffner, Cass. Dig. 2S0 . (O.) 14, 55, 120, 122, 143, 102 
 Bank of Montreal v. VVorswick, Cass. Dig. 280. .(O.) 14, 55, 120, 122, 143, 102 
 
 Bellamy v. Davey (1801) 3 Ciiy. 540 (O.) 183 
 
 Bence v. Sherman (1808) 2 Chy. 582 (O.) 135 
 
 beunoson v. Thayer, 23 HI. .374 (O. ) 1 15, 125, 134 
 
 Bennett v. Shackford, 03 Mass. 444 . . . (0. ) 28, 2{) 
 
 Bickerton v. Dakin, 20 U. R. 102, 005 (O.) 142 
 
 Blight V. Ray, 23 O.R. 415 (O ) 8, 12, 44, 50, 75 
 
 Board of Education v, Neidenberger, 78 HI. 58 (O. ) 30 
 
 Hoult V. Wellington Hotel Co. (not reported) (O. ) 100 
 
 Boutou V. McDonough County, 84 HI. 384 (O. ) 30 
 
 (V.) 
 
 
 

 vi. 'I'Ar.i.K ()!■ Cas»-.. 
 
 I'AC.E 
 
 Hreeze v. MiiUttinl Ky. ( '». ,•-'()( Jr. -J-i'* i^) •"•0 
 
 IJriggs V. Lee, 27 dr. 464 (O.) 'iO, 37, 'kS, (i.S. «."», (W, (»7, S'n 8«, SS, S«» 
 
 IJrooks V. Lester, 30 iM«l. 05 (^O J<i 
 
 IJroughtou V. Sniallpioce, 25 ( ir. 200 (t)- ) •>'i. •''■♦ 
 
 Uroughtoii V. Sinallpiece, 7 I'. K. 270 (O. ) 53 
 
 Bruce v. Everson, 1 Cul.. & Kllis, 18 (^>) '«5 
 
 Drydon v. Lutes, Man. 463 (<).) 22, (NL) 2(W, 21 1 
 
 Bunting v. Bell, 23 dr. . -.84 (0. ) 6, 27, 1 10, 123 
 
 Burnham v. VVaadell, 28 0. 1'. 263 ; 3 A. 11. 288 (().) 185 
 
 Burritt v. Renihan, 25 Gr. 183 (O ) 07, 1 10, 120, 126. 147 
 
 ' c ^ 
 
 (Canada Perm'l L. & S. ('o. v. Tudd, 22 A. R. r)l5 (O ) 102 
 
 Canada .Southern Hy. v. .laukaon, 17 S. C. R. 316 (O.) 48 
 
 OanisiuB V. Merrill, 65 111. 67 (0)20 
 
 (Jhadwick v. Hunter, 1 Man. .30 (O.) 1 15, (M.) 224 
 
 Chadwick v. Hunter, 1 Man. :{63 ( M. ) 207 
 
 Charles v. Jones, .35 Chy. D. 544 ; 56 L. T. 848 (O. ) 186 
 
 Childs V. Anderson, 128 Mass. 108 (O. ) 48 
 
 Clayton v. McConnell, 14 (). R. 608 (O.) 22 
 
 Clement V. Newton, 78 111. 427 (<>.) 115,125, 134 
 
 Coatsworth v. City of Toronto, 7 C. I'. 400 ; S C. P. 364 (O.) 25 
 
 Coddington v. Dry Dock Co., 31 N. d. L. 477 (O.) .35 
 
 Cole V. Hall, 12 P. R. 584 (U.) 55, 120, 122 
 
 Cole V. Hall, 13 P. R. 100 (O.) 14, 55, 120, 122, 1.15, 162 
 
 Collins V. Martin, 41 U. C. Q. B. 602 (O. ) 
 
 Cook V. Belshaw, 23 0. R. 545 ((). ) 52 
 
 Copley V. O'Neil, ~u Barl)., 200 (O.) 
 
 Cornell v. IJarnee, 33 Sup. C. N. Y. IIuu. 1,34 (O.) 8 
 
 fJornish, He, 6 O. R. 250 (0.) 63, 86 
 
 Cote V. Watson, 2 Cart. 343 (O.) 46 
 
 Crawshay v. Homfray, 4 B. & Aid. 50 (().) 184 
 
 Craig, i^e, 3 C. L. T. 501 (().) 13, .W, 121 
 
 (Jroskey v. Corey, 48 111. 442 (0. ) 1 15, 125, 134 
 
 Currier v. Friedrick, 22 (!r. 243 (O.) 48, 102, 128 
 
 Cushing V. Dupuy, 5 App. Cas. 400 (0.) 40 
 
 \ 
 
\ 
 
 Table of Cases. 
 
 vii. 
 
 I'Aofc: 
 
 l)iivi<l8on V, Cainpboll, A Man '2M (C».) llM, (M.) -J.-JO, 2H\ 
 
 Deiiipsuy V. Carson, 1 1 C. I'. 4«'2 (O.) 184 
 
 iJeiniott V. Jones, "2 Wall, I (O.) 23 
 
 Dick V. Stevenion, 70 L. T. 424 (O.) m 
 
 Dixon V. Lafarge, 1 K. D. Smith, 722 (O.) Qli 
 
 Dobschuotz V. Holliday, 82 111. lill (O.) 44 
 
 Donaldson v. Holmef, 23 111. sri (O.) 12, 44 
 
 Douglas V. Chamberlain, 25 Gr. 288 (0.) 13, 55, 112 
 
 Drew V. Mason, 81 III. 498 (O.) 29 
 
 Dufton V. Horning, 26 O. U. 252 ... (O.) 145 
 
 Dumble v. Larush, 25 Gr. 552 ; 27 fir, B7 (O.) 121 
 
 Edmonds v. Tiernan, 21 S. C. U. 40() (0.) 65, 115, (B.C.) 285 
 
 Kkins V. Bruce, 30 U. C. (i. li. 48 (O. ) 25 
 
 Ellett V Tyler, 41 111. 44i» ((). ) 36 
 
 Ellis V. Handen, 3 Taunt. 52 . . .(O.) 22 
 
 Em])iru Brewing & Malting Co., />'«, S Man. 424 (O.) 3(», (M.) 208 
 
 Erie & Niagara Uy. (Jo. v. The (ireat Western Uy. Co., 11) Gr. 43. . .. (O.) 32 
 
 Esslinger v. Huebner, 22 Wis. (HI2 (0. ) 10, 27 
 
 Ettridge v. Basset, 136 Mass. 314 (O ) 13, 44 
 
 Evans v. lludon, 2 Cart. 34(i (O. ) 46 
 
 Eyster v. Parrott, S3 111. 517 (0.) 23 
 
 *f ^ 
 
 Ferguson v. Hurk, 4 E. D. Smith (N. Y.) 760 (O.) 20 
 
 Ferguson v. Gait, 23 C. P. 66 (O.) 25 
 
 Fisher v. Smith, 4 H. L. 1 ; 39 L. T. 430 (().) 183 
 
 FlacU V. Jeffrey, 10 iMau. 514 (O.) 11, 12,50, 101, (M.) 210 
 
 Flagstaff Silver Mining Co. of Utah v. Gullins, 104 U. S. 176 (O.) 3 
 
 Forhan v. Lalonde, 27 <Jr. 600 . .(O.) 20, 65 
 
 Franklin Fire Insurance Co. v. Coates, 14 Md. 285 (O.) 36 
 
 Franklin v. Hosier, 4 IJ. & Aid. 341 (O.) 181 
 
 Fraser v. Locie, 10 Gr. 207 (O.) 63 
 
 Freeman v. ('arson, 27 Minn. 516 (O. ) 35 
 
VIII. 
 
 Taiill oi- Cases. 
 
 G 
 
 I'AC.K 
 
 Oalo V. nialkio, \'2i\ Muns. '274 (O.) \'i 
 
 Gardner V. Wataon, 18 111. App. 386 (O.) 14 
 
 (Jariiig V. Hunt, liT O. R. )4J» (0.) 11, 20 
 
 Gaskill V. Trainer, 3 Cal. :m (O.) 43 
 
 (Jaule V. IJilyeau, 2a I'enu. .St, .'521 (O ) 43 
 
 Gearing v. Nordheiiner, 4m U. C. g. H. 21 (O.) 23 
 
 Geary V. Hennessy, !» III. App. 17 {<).)10 
 
 Gilbault V. MuGreevy, 18 8. C. K. (K)» (().) 25 
 
 (Soildard v. CouUon.lO App. R. 1 (O.) «3, 04, 83, 85, 86, 87 
 
 Gore V. Gather, 23 111. 634 (O.) 8 
 
 Graham v. Williams, 8 O. R. 478 (<).) II, 50, 56 
 
 Graham v. Williams, » O. R. 458 (O. ) 7, 8, 1 1, 5(», 1 12 
 
 (Jraingor v. Grainger, 1 Chy. Cli. 241 (O ) 161 
 
 Gratt V. Duiui, 3 (). R 376 (O. ) !I8, 102, 105 
 
 (Sreat Western Planing Mill Co. v. Bormans, 10 MisH. App. 671... ■ (<> ) 35 
 Guy V. Carriere, 5 Cal. 511 (0.) 44 
 
 H 
 
 Hadley v. Hadley (1898), 2 Ch. 680 (O.) 135 
 
 Haggerty v. Grant, 2 H. C. R. 173 (0.) 3, 07, 126, (H.G.) 264, 283 
 
 Hall, Ex i>arte, 10 Ghy. D. 615 (0.) 120 
 
 Hall V. Hogg, 14 P. R. 45 (O.) 122, 143, 140, 150, 162 
 
 Hall V. Hogg, 20 (). R. 13 (O.) 125 
 
 Hall V. Pilz, 11 P. R. 440 (().) 143, 162 
 
 Harrington v. Saunders, 23 C. L. .J. 48 ; 7 C. L. T., Occ. I^. 88 (0.) 64, 85, 87 
 
 Hartley v. Hitchcock, 1 Starkie, 408 (().) 182 
 
 Hartop V. Hoare, 3 Atk. 43 (O. ) 184 
 
 Havighorst v. Lindberg, 67 HI. 463 (O. ) 23 
 
 Hayes v. Fessenden, 106 Mass. 228 (0. ) 44 
 
 Hazard Powder Co. v. Byrnes, 12 Ab. Pr. 460; 21 How. P. (N.Y.) 180 (O.) 03 
 
 Henry v. Bowes, 3 C. L. T. 606 (O. ) 161 
 
 Higgins V. Ferguson, 14 111. 260 (O.) 12 
 
 Hill V. Lacrosse & Mil. R. R. Co., 11 Wis. 214 (O ) 30 
 
 Hill V. Newman, 38 Penn. 151 (0 ) 28 
 
 Hilton V. Merrill, 106 Mass. 528 (O. ) 13 
 
 Holzhour V. Meer, 50 Mo. 4;M (O.) 28 
 
 ]k 
 
Taule of Cases. m 
 
 VMIK 
 
 IT . kor V. McOlone, 42 Conn. »6 (^>- ) ^3 
 
 Hooper v. Sells, .'iS Ga. I-J7 (O. ) 128 
 
 Hovendun V. Ellison, 24 Or. 448 (0.) Il» 
 
 Huhlmnl v. Hrown, JM) Masa. RW) (O. ) 2» 
 
 Hunter v. lihmclmrd, 18 III. 318 (O.) 27 
 
 Hydraulic I'ress Brick Co. v. Bornians, 19 Miss. A pp. ()«4 (O. ) lii 
 
 Hynes V. Smith, 8 P. R. 73 (<>•) I«i' 
 
 HynoB V. Smith, 27 l!r. 1.W (O.) l.'l, 14, 15, 100, 10», 114, 121 
 
 I 
 
 laege v. Bossieux, 15 Gratt. 8.3 (O.) IH 
 
 Irwin V. Boynon, 4 Man. 10 (O. ) 1 17, 1 18, 128 (M. ) 225, 231 
 
 J 
 
 Jackson v. Cummins, 5 M. & W. .142 (O.) 181 
 
 Jennings v. Willis, 22 (). R. 430 (0. ) CO, 80 
 
 Jones V. The Queen, 7 S. C. R. 570 (O.) 25 
 
 Jones V. Sluiwhan, 4 Watts & Serg. 262 (O. ) 105 
 
 K 
 
 Kelly V. Border City Mills, 120 Mass. 148 ((). ) 20 
 
 Kelly V. McKenzic, 1 Man. 100 (O.) 117, 127 (ft?) 224, 225 
 
 Kennedy v. Haddon, 19 O. R. 240 ....(<).) 54 
 
 Keystone v. Gallagher, 5 Col. 23 (() ) 27, 93 
 
 Kicvell V. Murray, 2 Man. 209 (M. ) 208, 224 
 
 King V. Alford, 9 O. R. 643 (O.) ;«), 31, .32 
 
 Kim,' V. England, 4 B. & S. 782 (O.) 185 
 
 Kinzey V. Thomas, 28 111. 502 .. .(O.) 115, 125, 134 
 
 Lakin v. Nuttall, 3 S. C. R. 685 (O. ) 25 
 
 Lamb v. Campbell, 19 111. App. 272 (O ) 14 
 
 Lang V. Gibson, 21 C. L. J. 74 (O. ) 99 
 
 Larsen v. Nelson & Fort S. Ry., 4 B. C. R. 151 (O.) 45, (B.C.) 264 
 
 Latch V. Bright, 16 Gr. 653 . . ...(O.) 112 
 
 Lawrie v. Rathbun, 38 U. C. Q. B. 255 (O.) 107, 123 
 
 ■ l*^' 
 
X. 
 
 Table of Cases. 
 
 PAGE 
 
 Loprohon v. Ottawa, 1 Cart. 5!)2 (O.) 4(i 
 
 Lewis V. Hoare, 44 L. T. (i(i ((). ) 'its 
 
 Lindop V. Martin, .S C. L. T. 31^. (O.) 115, 1 Hi, 117, 134 
 
 Linn v. O'Hara, 2 E. D. Smith, N. Y. 560 (O. ) 20 
 
 Little V. Vredenburgh, 16 111. App. LSU (O.) 10 
 
 Locke V. Locke, :V2 C. L. J. 332 (O.) 59, 
 
 Lucas V. Goodwin, 3 Bing. , N. C. 737 (O. ) 24 
 
 M 
 
 Makinsv. Robinson,60. R. l...(0.) 13, 14, 100, 105, 114, 115, 117,127, KU, 1S7 
 
 Manchester v. Searle, 121 MasB. 418 (O. ) 13 
 
 Martin v. Russell, 2 Man. OS (B.C.) 270 
 
 Martsolf V. Barnwell, 15 Kan. 612 (O.) 16 
 
 Milhurn v. Mill>urn, 4 U. C. Q. B. 17i» (O ) 182 
 
 Monkhouse V. (Jrand Trunk Ky., S A li. 637; 3 Ctirt. 280 '<».) 46 
 
 Moore v. Bradley, 5 Man. 40 (() ) 30, 100 (M. ) 20S, 22.';., 231 
 
 Moorehouse & Leak, AV, 13 O. R. 200 (O. ) 116, 125 
 
 Morris v. Tiiarle, 24 O. R. 150 (0. ) 1 16 
 
 Moroney's Appeal, 24 Penn. 372 ((). ; 16 
 
 Munro v. Butt. S E. & B. 738 ((). ) 22 
 
 Mc 
 
 McArthur, v. Dewar, 3 Man. 72 (M. ) 208, 21 1 
 
 McBean v. Kinnear, 23 (). 11. 313 ((). ) 66, 87, 80 
 
 McCarthy v. Carter, 40 111. 53 (O. ) 
 
 McCuUy V. Rose, 22 C. L. J. 63 (O. ) 00 
 
 McDonald v. Wright, 14 (4r. 284 ((). ) 55, 120 
 
 McGraw v. Bayard, 06 111. 146 (O. ) 14 
 
 McGraw v. Godfrey, 16 Abh. Pr. N. S. (N. V. ) 358 (().) 43 
 
 McGuinness v. Boyle, 123 Mass. 570 (O. ) 48 
 
 McLaughlin V, (Jreen, 48 Miss. 175 ((). );i5, 43 
 
 McLennan v. Winnipeg, 3 Man. 474 (M.) 208, 211, 224 
 
 McNamara v. Kirkland, IS App R. 270 (O.) 13, 15, 98, 126 
 
 McNeil V. Keleher, 15 C. P. 470 (().) 183 
 
 McPherson f. Gedge, 4 O. R. 246 (().) 110. 123, 146, 164 
 
 McVean v. Tiffin, 13 App. R. 1 . (O.) 13, 14, 15, 100, 100, 110, 111, 114, 121 
 
 
Table of Cases. 
 
 XI. 
 
 N 
 
 PAGE 
 
 Neill V. Carioll, 28 (Jr. :i4, :«9 (O.) !)7, 117, il!>. 127 
 
 Ncwoomb V. Andrews, 41 Mich. 518 (<>.) 10 
 
 O 
 
 O'lJrien v. The (iueen, 14 S. C. R. 52!) (O. ) 25 
 
 OUlershaw v. (Jainer, 38 U. 0. Q. B. 57 (0.) 23 
 
 Oldfield V. Barbour, 12 P. U. 554 (O. ) 48 
 
 Orr V. Davie, 22 O. R. 430 (O. ) 145 
 
 P 
 
 Patrick v. Walbourne, 27 O. R. 221 (O. ) 55, 57, HW 
 
 Patten v. Laidlaw, 2(5 O. R. 189 (O. ) 150 
 
 Patterson v. .Scott, 4 (Jr. 145 ((). ) 164 
 
 Pattinson v. Luckley, L. R. 10 Ex. 330 (O. ) 22 
 
 Perkins v. Davis, 120 Mass. 408 (().) 44 
 
 Peterkin v. Rose, 13 S C R. 077 (0.) Ill 
 
 Peters v. (Jiiebec Harbour Commissioners, 19 S. C. R. 6f'5 (O. ) 25 
 
 Peto V. The VVelland Ry. Co., 9 (Jr. 455 (O. ) 32 
 
 Petrie v. Hunter, 2 (). R. 233 ; 10 App. R. 127 (O. ) 20, 35 
 
 Pierce v. Canada Permanent L. & S. Co., 24 O. R. 430. (O.) 10 
 
 Pierce v. Canada Permanent L & S. Co., 25 O. R. (571 (O ) 52 
 
 Pilkington v. Brown, (unreported) (O.) 154 
 
 Pratt V. Duncan, 32 N. W. R. 709 (0. ) 28 
 
 Presbyterian Church v. Stettler, 26 Penn. 240 (O. ) 35 
 
 Proctor V. Tows, 115 III. i;i8 (0)8 
 
 Rand v. Leeds, 2 Phila. 100 (0. ) 24 
 
 Raeder v. Bensberg, Miss. App. 445 (O. ) 21 
 
 Rathbun v. Hayford, «T A'ass. 400 (O. ) 48 
 
 Rathbun v. Ikirgess, 17 C. L, J. 1 1 1 115, 120, 290, 301 
 
 Reggin v. Manes, 22 O. R. 443 (0. ) 12, 13, 14, 63, 86 
 
 Reg. V. (/rinon, 23 S. C. R. (>2 (O. ) 25 
 
 Reiuhart v. Shutt, 15 O. R. 325 (O.) 13, 99, 100, 111, 121 
 
 Reilly v. Mellnmrray, 29 O. R. 1(:7 (O. ) 183 
 
xu. 
 
 Table of Cases. 
 
 PAGE 
 
 Richards v. Cl»aml)erlain, '25 (Jr. 40:i (0.) 16, 55, 112 
 
 Ritchie v. (Jiindy, 7 Man. 532 (O.) 119 
 
 Robb V. Woodstock School Board (not reported) (O.) 30, 05, (M.) 230 
 
 Rol)erts v. Bank of Toronto, 21 O. R. ()29 (O.) 183 
 
 Roberts v. McDonald, 15 O. U. SO (U. ) 102. 299 
 
 Robinson v. Owen Sound, 16 O. R. 121 (0.) 25 
 
 Robinson v. Williams, 22 N. Y. 380 (O.) 16 
 
 Rollin V. Cross, 45 N. Y. 766 (0.) 43 
 
 Rose V. Peterkin, 13 S. r. R. 677 (0.) 15, 98, 11 1 
 
 Russell V. French, 28 0. R. 215 (O.) 58, 65, 66, 83, 86 
 
 Russell V. Russell, 28 Gr. 419 (O.) 108 
 
 S 
 
 Scott V. Burgess, 19 U. C. Q. B. 2S (0.) 30 
 
 .Scottish American Investment Co. v. Sexton, 26 O R. 77 {().) 29 
 
 Schultz V. Hay, 62 III. 1.57 (O.) (»3 
 
 Sear v. Woods, A'c, 2,i ( ). R. 474 (O. )63, 64, 66, 83, 85, 86, 87, 89, 126, 147, 164 
 
 Shaeffer v. Weed, 8 111. 513 (O. ) 8 
 
 Sharpe v. San Paulo Ky. Co., L. R. 8 Chy. 597 {().) 25 
 
 Shaw V. Cunningham, 12 (Jr. 101 (0)55,120 
 
 Shaw V. Thompson, 105 Mass. 345 (O. ) 48 
 
 Sherlock v. Powell (not reported) (O.) 60, 86 
 
 Sherlock v. Powell, 18 P. H. 312 (0.) 166 
 
 Shultz V. Reddick, 43 U. C. K. 155 (O ) 185 
 
 Smith V. Doyle, 4 App. R. 477 (O. ) 146 
 
 Smith V. Gordon, .'10 C. P. 553 (O. ) 26 
 
 Smith V. Norris, 120 Mass. 58 .(O.) 13 
 
 Steigleman v. McBride, 17 111. 3tK) (O ) 35 
 
 Stephens v. Holmes, 64 111 ."^.Sti (O. ) 28 
 
 Stevens v. Lincoln, 1 14 Mass. 476 (O.) 48 
 
 Stewart v. Gesner, 2!» Gr. 329 (O. ) 44, 129 
 
 Summers V. Beard, 24 O. R. 641 (O.) 117, (M.) 224 
 
 Sumpter v. Hedges (1898) 1 Q. B. 673 ; 78 L. T. 378 (O.) 22 
 
 T 
 
 Taylor v. (lilsdorH", 74 111. 354 (O.) 10 
 
 Tennaiit v. Union Bank (1H94) A. C. 31 ; 69 L. T. 774 (O.) 45 
 
Table of Cases. 
 
 xin. 
 
 PAGE 
 
 Tharsis Sulphur & C. Co. v. McElroy, 3 App. Cas. 1040 (O.) 25 
 
 Thaxter V. Williams, 31 Mass. 49 (().) 44 
 
 Thorn v. Mayor of London, L. R. 9 Ex. 163 ; 10 Ex. 112 (0.) 23 
 
 Tliomas v. Industrial University, 71 111. 310 (().) 30 
 
 Thomas v. Urbana School Dis., 71 111. 283 (0.) 30 
 
 Thompson V. Yates, 28 How Pr. (N.V.) 142 (O.) 24 
 
 Tizzard v. Hughes, 3 Phila. 261 (O.) 28 
 
 Tompkins v. Dudley, 25 N. Y. 272 (().) 35 
 
 Trask V. Searle, 121 Mass. 229 (O.) .3, 28, 48 
 
 Tullis V. .Jacson, 67 L. T. 340 (0. ) 25 
 
 Truax v. Dixon, 17 O. R 366 (O. ) 63, 04, 85, 86, 102 
 
 Turner v, VVentworth, 119 Mass. 4.19 (O. ) "" 
 
 Turney v. Saunders, 5 111. 527 (O.) 44 
 
 u 
 
 Underhill v. Corwin, 15 111. 556 (O.) .36, 49 
 
 V 
 VanCourt v. Bushnell, 21 111. 624 (O. ) 1 15, 125 
 
 Wagner V. Jefferson, 37 U. C. Q. B. 551 (0.) 10 
 
 VVallis V. Skain, 21 O. R. 5.32 (O. ) 179, 188 
 
 Wallis & Yokes, /?«, 18 O. R. ■• (0.) 100, 105, 132 
 
 Wanty v. Robins, 15 0. R. 474 (0. ) 15^ 1 10, 1 14 
 
 Waters V, VVolf, 162 I'enn. 153 (0.) 40 
 
 Weatherdon v. Robinson (not reported) . . (O.) 177 
 
 Webber v. Cogswell, 2 S. C. R. 15 (0.) 183 
 
 Webster v. Real Est. Imp. Co., 140 Mass. 526 (O.) 28 
 
 Wendt V. Martin, 89 111. 1.39 (0.) 10 
 
 West V. Elkins, 14 C. L. T. 50 (0.) 12 
 
 West V. Sinclair, 28 C. L. J. 119 (O.) 15 
 
 Williams v. Grey, 23 C. P. 561 (0.) 185 
 
 Willoughby, Ex parte, 16Chy. D. 604 ; 44 L. T. Ill (0.) 181, 183 
 
 VYilson V. Sleeper, 131 Mass 177 (0.) 26 
 
 Wook V. Stringer, 20 0. R. 148 (O. ) 23, 25, 60, 121, 122 
 
 Woodruff Iron Works v, Adams, .37 Conn. 233 • • (0. ) 10 
 
 Worrell v. Lee, (not reported) (0. ) 88 
 
 Wright V. Hood, 5 N. W. R. 488 (0. ) 10 
 
ABBREVIATIONS USED IN THIS WORK. 
 
 A. R Ontario Appeal Reports. 
 
 Abb. Pr Abbott's rraetico Reports, New York. 
 
 Abb. Pr. N. S. N. Y. . Abbott's Practice Reports, New York, New Series. 
 
 App. Cas English Law Reports, Appeal Cases. 
 
 App. R Ontario Appeal Reports. 
 
 Atk Atkyns' Reports. 
 
 B. & Aid Rarnewall & Alderson's Reports. 
 
 B. & iS Best & Smith's Reports. 
 
 Barb Barbour's Reports, N. Y. 
 
 Bing. N. (J Bingham's New Cases. 
 
 Cart Cartwright's cases on British North America Act. 
 
 C. L. J (>ana(la Law Journal. 
 
 C. L. T Canada Law Times. 
 
 C. P Upper Canada (now Ontario) Common Pleas 
 
 Reports. 
 
 Con. Rules Consolidated Rules of Supreme Court of Judicature 
 
 for Ontf rio, of 189". 
 
 Cab. & Ellis .... Cababe & Ellis' Reports. 
 
 Cttl California Reports. 
 
 Cameron's Opinions . . Opinions of the late John Hillyard Cameron, Q.C. 
 
 Cass. Dig Cassel's Digest of the Reports of the Supreme 
 
 (/ourt of (.'anada. 
 
 Chy. Ch. R Chancery Chambers Reports (Ontario). 
 
 Chy. 1) English Law Reports, Chancery Division. 
 
 Col (/olorado Reports. 
 
 Conn Connecticut Reports. 
 
 D. B Decree Book, Court of Chancery, Ontario. 
 
 D. (i, & 8m DeGex & Smale's Reports. 
 
 (xiv.) 
 
 
I 
 
 iV 
 1 
 
 List of Abbreviations. 
 
 XV. 
 
 
 E. & B Ellis & Blackburn's Reports. 
 
 K. I). Smith (N. Y.) . E. 1). Smith's New York Report.s. 
 
 Ex. Exchequer Roports (English). 
 
 fir Grant's Chancery Reports, Ontario. 
 
 (iratt (irattan's Reports. 
 
 Holmested & Langton . Jiiflicature Act of Ont. and Con. Rules of Practice. 
 
 (H. & L's. Ed. 189S). 
 
 H. I^ House of Lords l/ases. 
 
 How. IV Howard's Practice Reports (N. Y.). 
 
 Ill niinois Reports. 
 
 III. App Illinois Appeal Reports. 
 
 Kan Kansas Reports. 
 
 L. R. Chy Law Reports Ciiancery Appeals, (English). 
 
 L. U. C. 1*. I). ... Law Reports, Common Pleas Division, (Knglish). 
 
 L. R. Ex Law Reports, E.^chequer, (English). 
 
 L. R. Chy Law Reports, Chancery, (English). 
 
 L. T. .To Law Times, Journal, (English). 
 
 L. T. Law Times Reports, New Series, (English). 
 
 M. & W Meeson & Welsby's Reports. 
 
 Man Manitoba Reports. 
 
 Mass Massachusetts Reports. 
 
 Md Maryland Reports. 
 
 Mich Michigan Reports. 
 
 Minn Minnesota Reports. 
 
 Miss Mississippi Reports. 
 
 Miss. App Mississippi Appeal Reports. 
 
 Mo Missouri Reports. 
 
 N. .L L New .Jersey Law Reports. 
 
 N. VV. R North- Western Reporter (N. S.). 
 
 N. Y New York Reports. 
 
 O. R Ontario Reports. 
 
 Ont " 4. 
 
 r 
 
 III 
 
''(TT- 
 
 i , 
 
 xvi. List of AnnREviATiONS. 
 
 p. R Practice Reports, Ontario. 
 
 Penn. ..-,... Pennsylvania Reports. 
 
 Penn. St Pennsylvania State Reports. 
 
 I»hila Philadelphia Reports. 
 
 Fhill'ps Phillips on Mechanics' Liens. 
 
 Q B. D Law Reports, Queen's Bench Division (English). 
 
 Rep. Ch Reports in Chancery (English). 
 
 R. S, Revised Statutes of Ontario, 1897. 
 
 S. C Same case. 
 
 S. 0. R Reports of Supreme Court of Canada. 
 
 Sup. C. N. Y. Hun . . Supreme Court of New Vork Reports, Hun. 
 
 Taunt Taunton's Reports. 
 
 U. C. L. J Upper Canada Law Journal, Old Series. 
 
 U. C. Q. B Upper Canada Queen's Bench Reports. 
 
 U. S United States Reports. 
 
 Wall. ...... Wallace's Reports, Supreme Court, United States 
 
 Watts & Serg .... Watts & Sergeant's Reports, Supreme Court, 
 
 Pennsylvania. 
 
 Wis Wisconsin Reports. 
 
 
 Addenda et G>rrig:enda* 
 
 p. )0. 17th line from top of page, for " 39 Id," read " .37 Conn." 
 p. 22. 4th line from bottom of page, for " Brydon v. Lutz, 9 Man. O.S," road 
 " Brydon v. Lutes, Man, 463." 
 
 p 25. at the end of 2nd paragraph, add " but see Oood r. Toronto fl. .(■ li. 
 %,35C. L. J.278." 
 
 p. 141. 12th line from top of page, after " may be," add " see In re. Rihhk v. 
 AUhodl, .34 C L J. 123." 
 
 
 I 
 
Revised Statutes of Ontario (1897). 
 
 CHAPTER 153. 
 
 An Act respectinc; Liens of Mechanics, Wage- 
 Earners AND Others. 
 
 Short Title, s. 1. 
 
 Interpretation, s. 2. 
 
 Contracts waivinc rights under Act void, s. H. 
 
 Who entitled to Lien, s. 4. 
 
 Husband to he deemed wikf.V auent, s. 5. 
 
 Contracts not to deprive a third party of lien, s. «i. 
 
 Property on which lien attaches, s. 7. 
 
 Insurance money, a. 8. 
 
 Limit of owner's liability, ss. 9, 10. 
 
 Percentaoe to be retained by owner, 8. 11. 
 
 Owner may pay lienholders, s. 1*2. 
 
 Over what, liens shall have priority, s. 13. 
 
 Lien fob waces, s. 14. 
 
 Payment to defeat lien void, s. ir>. 
 
 Materials not to be removed to prejudice of lien, s. 16. 
 
 Registration of claim, ss. 17 22. 
 
 When lien shall cease, ss. 23-25. 
 
 Death of Lienholdlr, s. 26. 
 
 Discharge of Lien, s. 27. 
 
 Taking Security not to Prk.iudice, s. 28. 
 
 Lienholders entitled to information from owners, ss. 29, 30. 
 
 Enforcing liens by action, ss. 31-38. 
 
 New trial and appeals, s. 39. 
 
 Costs, ss. 40-45. 
 
 Payment out, of moneys in court, s. 46. 
 
 Per-sgnal judgment, 8S. 47, 48. 
 
 Forms authorizicd, s. 49. 
 
 Act not to apply to liens arising before 7th April, 1896. s. 50. 
 
 Persons entitled to lien on chattels may sell same, s. 51. 
 
 How far Act appliks to railways, a. 52. 
 
 :1 
 
The Mechanics' Lien Act of ONTARIO. 
 
 w 
 
 Section i. 
 
 Short title. 
 
 Previous legis 
 lation 
 
 HER MAJESTY, by and with the advice 
 and consent of the Legislative Assem- 
 bly of the Province of Ontario, enacts as 
 follows : 
 
 1. This Act may be cited as " T/ie 
 Mechanics and Wage- Earners Lien Act'.' 
 59 V. c. 35, s. t. 
 
 The first Mechanics' Lien Act passed in Ontario 
 was 36 Vict. c. 27 (1873). It restricted the right of lien 
 on the land, to those who had contracted directly with 
 the owner of the land ; but it gave to subcontractors 
 the right of serving notice of their claims upon the 
 owner, and upon such notice being served, authorized 
 the owner to pay their claims, out of any money due by 
 him to the contractor primarily liable therefor. This 
 Act was subsequently amended in 1874, by 38 Vict. c. 
 20, which gave sub-contractors also a right of lien on 
 the land. These Acts were subsequently consolidated 
 by the R. S. O. (1877), c. 120. After this consolidation 
 the Consolidated Act was further amended by 45 Vict, 
 c. 1 5, which gave certain extraordinary rights of lien to 
 wage earners, in respect of thirty days' wages : and addi- 
 tional amendments were made by 47 Vict. c. 18, and 50 
 Vict. c. 20. 
 
 The principal changes effected by these latter Acts 
 were the avoiding of all agreements to prevent the at- 
 
 \ 
 
 ' 
 
The Mechanics' Liex Act of ONTARIO. 
 
 V 
 
 taching of mechanics' liens, except as between the actual ^ecmm i. 
 parties to such agreements ; and providing that liens for 
 thirty days' wages or less should have the same priority 
 after, as they had before registration ; and as to the pro- 
 cedure for enforcing, and discharging liens. 
 
 These Acts and amending Acts were subsequently 
 consolidated in R. S. O. (1887), c. 126. Subsequently 
 further amendments were made by 53 Vic. c. 38, which 
 made a change in the per centage required to be re- 
 tained by an owner ; and by 53 Vict. c. 37 and 56 Vict. c. 
 24, which introduced a special form of procedure for the 
 enforcement of mechanics' liens. All of these Statutes 
 were repealed by 59 Vict. c. 35, and the present Act is a 
 consolidation of the Act of 1896 (59 Vict. c. 35) as 
 amended by 60 Vict. c. 24. 
 
 As to the extent to which former Acts were repealed ; 
 see 59 Vict. c. 35, s. 52. 
 
 The lien of mechanics on lands or buildings, for 
 labour or materials expended thereon, is a purely stat- 
 utory right ; no such lien existed at Common Law. 
 
 It has been held that when a lien attaches, the statute, orAc*/"*^''"" 
 being remedial, is to be liberally construed ; but on the 
 question whether thi2 lien attaches a diflTerent rule should 
 obtain, because, liens being in derogation of the Com- 
 mon Law, the Court should not extend the statute be- 
 yond the cases specially provided for : Trask v. Searle, 
 121, Mass. 229, and see Flagstaff Silver Mining Co. of 
 Utah V. Cullins, 104 U. S. 176; and fer Begbie, C.J. 
 Haggerty v. Grants 2 B. C. R. 176. 
 
 Iv^ 
 
 ii I 
 
The Mechanics' Lien Act oi' ONTARIO. 
 
 Section 2. 
 
 2. Where the following words occur in 
 
 Interpretation jj^lg JS^^^^ ^j. jj^ ^j^g SchcduIcS hcrCtO, thcv 
 
 shall be construed in the manner hereinafter 
 mentioned, unless a contrary intention ap- 
 pears : — 
 
 " Contractor. 
 
 "Sub-con- 
 tractor." 
 
 "Owner." 
 
 tl'i 
 
 1. "Contractor" (a) shall mean a person 
 contracting with or employed directly by the 
 owner or his agent for the doing of work or 
 placing or furnishing materials for any of the 
 purposes mentioned in this Act ; 
 
 2. " Sub-contractor " (d) shall mean a per- 
 son not contracting with or employed directly 
 by the owner or his agent for the purposes 
 aforesaid, but contrac'ing with or employed 
 by a contractor, or under him by another 
 sub-contractor ; 
 
 3 " Owner " (c) shall extend to and in- 
 clude any person, [firm, association, body cor- 
 porate or politic, including a municipal cor- 
 poration and railway company] {{/) having 
 any estate or interest in the lands upon or in 
 respect of which the work or service (e) is 
 done, or materials are placed or furnished, at 
 whose request and upon whose credit or on 
 whose behalf or with whose privity or con- 
 
I 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 sent {/) or for whose direct benefit any such s^*^^^^ 
 work or service is performed or materials are 
 placed or furnished, and all persons cl.-.iming 
 under him [g) or them whose rights are ac- 
 quired after the work or service in respect of 
 which the lien is claimed is commenced or 
 the materials furnished have been com- 
 menced to be furnished ; 
 
 4 "Person" (/^) shall extend to and in- "Person.' 
 elude a body corporate or politic, a firm, part- 
 nership or association ; 
 
 5. "Material" or "materials" shall in- " ^'ateriai.' 
 elude every kind of movable property. 59 
 
 V. c. 35, s. 2 (1-5). 
 
 6. "Wages" shall mean money earned by " wages.- 
 a mechanic or labourer for work done, whe- 
 ther by the day or as piece work ; 59 V. c. 
 
 35. s. 13 (6). 
 
 7. " Registry office " shall include land 
 titles office. 59 V. c. 35. s. 2 (6). 
 
 i' 
 
 
 k 
 
 " Registry 
 office." 
 
 [a) **G)ntractor/* The primary meaning of " con- ^^^^^I^T^^'^/;" 
 tractor" is any one who contracts. In this Act how- 
 ever, and in the annotations upon it, the term is restrict- 
 ed to those persons only, who contract directly with the 
 " owner." Every person contracting directly with the 
 
 I 
 
 i 
 
HUl l 
 
 TiiK MivuANhs' 1,11 N A» I oi ONTARIO. 
 
 s.vtixii ' " i)\viu'i " is a " ooiitiiutor " uiuliT llu* Art, W'lu'ic, 
 ihorcfmo, iho " owner " rontiarls with scvoial tliftrrrnl 
 persons to fonstiuft ditVercnt parts of a Imildnig, earh 
 person si> eontraeteil witli is a " eontraetor," anil eacli 
 " eontraetor " w»)iiKI appear t*) In- a lien lu)liler of the 
 same elass, (see /»'////////(.• v. /<'f//, j\ dr. 5S.J) ; ami nl- 
 thougl\ in this Aet the ilistiiu titMi between ililVerent 
 classes of lien hoUlers is »itn p<>inie»lly maintained, as in 
 the Ibrnier Meehanies' I.ien Aets of Ontario, yet in prnc- 
 tiee, it wouKI secni neeessary to hear it in luinil. 
 
 A mere wage earner if employed hy an owner woidd 
 be a "eontraetor " within ti..' meaning of the Aet. 
 
 tor"''>h't"ni'"' ^^'^ "Sotxontractor.** My the ilefinition here given of 
 t'i>" '" a " sub eontraetor " it would seem to inelude all sub- 
 
 contractors, in however remote a ilegree they may stand 
 from the original "eontraetor." l''or example, if A eon- 
 tracts with the " owner " to build a house, and then H 
 contracts with A to do the [»aintnig and papering, H is 1 
 " sub-contraelor,'' and as this section in effect declares 
 that ai\y person employed by a " subcontractor " is 
 himself a " sub-contractor," it follows that if (I contract 
 with H to do part of the painting, and I> contract with 
 H to do the papering, and V. contract with (' to furnish 
 the paint and V contract with I), to furnish the paper, 
 H, C, I ), IC, and V are all sub contractors under the Act, 
 and as such entitled to liens. 
 
 The Act in some places appears to treat j)ersons work- 
 ing for wages as a class distinct from contractors, or sub- 
 contractors ; but it is clear that such persons must, 
 according as their contract i" made either with an owner, 
 or a contractor, or sub; v .itractor, come under one or 
 
( .■ 
 
 'I'liK Mi( hanks' I.ikn At I <M ONTARIO. 
 
 r 
 
 olIuT «)r lIu'siM'lasscs, ^||<)ll^l^ I »y reason ol llu* picfc! '"^".V"" ••• 
 I'lU'f nivcn l») wam* miners they (onstitiile lo some 
 exii'nl, when sul» eonlrarlors, a prelerenlial elass. 
 
 (<•) "Owner.** It is iniporlant to hear in nnnd ll»«t ,i',Hi'.',V:.i '' 
 the lien niven hy tins /\<M to '* rontraelors " and " siil> 
 conlraelors " is to attaeli upon tlie I'slate and interest, 
 legal and e(Hiital)l<', ol the "owner" in the hnildinn, 
 erection, or nnne, upon, or \\\ i«-speet ol wliirli, the work 
 is done, or the materials or machinery placed or fur 
 nished, (see .uyfti>/i 7). This siufit>n provi«les, that the 
 word "owner" is to i'xUmhI to, and include persons 
 firms nnd hodies corporate having "any estate or inter 
 est in the lands upon or in respect of which the work 's 
 done, or materials or machinery are placi'd or (urnished, 
 at whose requfst and iif^oii ivhosc credit or on whose heholj 
 or with whose privity or consent or for whose direct benefit 
 any such work or service is perjonned or materials are 
 placed" et<;. Tlu' word "owner," therefore, includes all 
 persons, firms and liodies corporate however small their 
 interest in the land m.iy he, at whose re(|uesl and upon 
 whose credit, or on whose hehall", or with whose privity 
 or consent, or for whose direct l)enefit, any work is done, 
 ete. Hut persons or corporations contracting for work i>,.,H<>imi'..ii 
 or materials, can only bind their own estates and inter !,ni'y li'inVt'iVcir 
 ests, and cannot bind the estates and interests of otiier "iJ^tJ,,.']",','^')'"'"'* 
 persons then interested in the land. Thus, a landlord's 
 interest is not bound by contracts made with his tenant 
 to which the landlord is no party, even though the latter 
 have knowledge that the work is being done, or material 
 being furnished, on the land, and though in certain con- 
 tingencies he may, and in fact does, become entitled to 
 the benefit thereof: Graham v. IFiUiams, 9 O. R. 458; 
 
 
 H 
 
 m 
 
 '! : 
 
 : , -J. 
 
 ': 'm-X' 
 
••VMIVmMMWIBMai 
 
 8 
 
 The Mechanus' I.ien Act of ONTARIO. 
 
 l! 
 
 hill 
 
 Sections. Cornell \. Barney, 33 Sup. C N. V., Hun. 134. And a 
 Tenant at suf- tenant at sufferance is not agent for, nor can he bind the 
 
 ferancf, is not 1 1 • 7-> ^ <ti who 
 
 .iRcnt of own- owner, by his contracts : J'roctor \. jo'd's, 115 111. 138. 
 Where it is sought to charge the landlord's estate with 
 liens for work or materials contracted for by his tenant, 
 the consent in writing of the landlord must be obtained : 
 see section 7 (2); Graham v. Williams, 9 O. R. 458. 
 
 Dowress not Neither is the dower of a wife bound by a contract made 
 
 Iract ot''i-u.r"with her husband : Sluufer v. U\"d, 8 111. 513 ; Gore v. 
 
 husbatui, Catlier, 23 111. 634 ; Phillips, s. 195. Hut where the 
 husband ac(|uires the land after the lien has attached, 
 the lien will have priority over the dower : //'. 
 
 Contract with Where a verbal contract for the sale of lands was 
 
 puroliasor, 
 
 ven.i.M sinter- made on the understandmg that the purchaser should 
 bound proceed and trect buildings thereon ; and the purchaser 
 
 accordingly erected buildings thereon, it was held that 
 there had been such an act of part j^erformance as to 
 make the purchaser in e(]uity the owner of the land, and 
 that a mechanics' lien in respect of such buildings at- 
 tached on his interest, and the vendor could after that only 
 hold the land subject to such lien ; Blight v. Ray, 23 
 O. R. 415 : and the vendor in that case having urged 
 the mechanic to go on and finish the work, it was held, 
 even though he did not expressly guarantee the payment 
 therefor, that the work must be taken to have been done 
 with his privity and consent and that his interest as ven- 
 dor was also bound by the lien : //;. 
 
 In order that a lien may attach under this Act it is 
 necessary that the original contract, by virtue of which it 
 is claimed to arise, be one that is binding on the "owner " 
 wliose interest is sought to be charged. It is not neces- 
 
 Contract 
 under which 
 lieu arises 
 must be 
 binding on 
 " owner." 
 
The Mechanics' l.iv.ti Act oi ONTARIO. 
 
 sary that the contract of the lien-hclucr himself should ^'''^^'"" '■ 
 be made directly with the "owner," otherwise all sub- 
 contractors would be excluded from the benefit of a 
 lien, but, generally speaking, it is necessary that the person 
 legally liable to the contractor under whom a sub con- 
 tractor directly or indirectly claims, shall have some 
 estate or interest in the land on which the lien is 
 claimed. 
 
 Work done or materials furnished at the request of a cnntriutiwitij 
 
 , . . ■ I 1 t 'II r !■ ix't'Him ImviiiK 
 
 person havmg no nUerest in the land, will confer no lien „.. i-ueiest in 
 upon the land. Thus where in fulfilment of a policy, 
 a house is rebuilt by an insurance company upon the 
 I.nnd of the insured, no lien for the work or materials 
 will under such circumstances attach upon the land : 
 Phillips, s. 82. 
 
 Where the contract, by virtue of which the lien is c.ntnut with 
 claimed, is made with an "owner" who is a minor, or iulJatk!" 
 lunatic, no lien could be enforced under the Act by the 
 contractor or any sub-contractor, because minors and 
 lunatics are incapable of binding either themselves, or 
 their lands, by contracts for the erection of buildings, or 
 improvements on their property. And it would seem 
 that a contract made with a guardian of a minor.jwithout 
 the sanction of some competent court, for the erection 
 of a building on the minor's land, would not give any 
 right to a lien under this Act : McCarthy v. Carter^ 49 
 111. S3 ; Copley v. O'Neil, 57 Harb. 299 ; and see Collins 
 V. Martin^ 41 U. C. Q. B. 602 ; Phillips ss. 108-111. 
 
 Formerly where the owner of the land was a married Contract with 
 
 ' Inisbund, to 
 
 woman, as a general rule, she must have been bound by ^" work on 
 
 ° ' wife 8 land, 
 
 any contract, express or implied, under which any efTtct of. 
 
 
 I, 
 
 iJ 
 
 ;'r 
 
 f 
 
I'ffT 
 
 lO 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 2. 
 
 Contract with 
 trustee. 
 
 buildings or improvements were erected, or made upon 
 her land, otherwise no lien would attach upon her 
 interest in the land for the price. Formerly a wife's in- 
 terest in the land was not bound because the work had 
 been done, or the materials had been furnished, at her 
 husband's request, unless it could be expressly estab- 
 lished that the husband acted as the wife's agent ; the 
 relationship of husband and wife did not, of itself, raise 
 any presumption that the husband acted as his wife's 
 agent ; and where a husband, on his own responsibility, 
 procured a building to be erected on his wife's land, 
 without her consent or concurrence, it was held that she 
 was not liable for the price : JFagner v. Jefferson, 37 U. 
 C. Q. B 551 ; Esslinger v. Ifuebner, 22 Wis. 602 ; New- 
 combe V. Andrews^ 41 Mich. 518 ; Woodruff Iron Works 
 V. Adams, 39 Id. 233 ; IVright v. Ifood, 5 N. W. R. 
 488 ; Wendt v. Martin, 89 111. 139 ; Geary v. Hennessy, 
 9 111. App. 17 ; Little v. Vredenburgh, 16 111. App. 189. 
 
 The law, however, has now been very materially 
 changed on this point by the present Act, and by sec. 5 
 post, a husband who procures work to be dor.j, or materi- 
 als to be furnished, in respect of his wife's land is to be 
 conclusively presumed to have acted as her agent, unless 
 the person doing such work or furnishing such materials 
 has before doing the work or furnishing the materials 
 express notice to the contrary. 
 
 A contract made with a trustee having power to build 
 will bind the trust estate : see Taylor- v. Gilsdorff, 74 
 111. 354. 
 
 (</) ** firm, association^ body corporate^ &c.'* The 
 
 words within brackets are new, and are intended to extend 
 
The Mechanics' Lien Act of ONTARIO. 
 
 II 
 
 the definition of ' owner ' to other persons and bodies cor- Section 2. 
 porate whose estates or interests in land could not 
 formerly be bound by mechanics' liens : see notes to 
 sec. ^, post. Under the former Act the word "person" 
 by force of The Interpretation Act, s. 8, s.-s. 1 2, included 
 any body corporate or politic. 
 
 (e) ** Of service." These words are new ,; whether 
 they really add anything to the force of the section 
 remains to be seen. They seem to be intended to cover 
 something other than manual labour, and may include 
 engineering calculations or services of that kind rendered 
 in respect of contemplated buildings, or improvements 
 on land as distinguished from work and labour done 
 actually upon the land itself. A nominal distinction is 
 made between " work " and " services " by section 22 (3), 
 (4), post, as regards the time for registering liens 
 therefor. 
 
 (/) ** with whose privity or consent." Mere know- Privity or 
 
 1 J - , . - , consent of 
 
 ledge of the existence of the contract, or of the performance "owner." 
 
 of the work, or supplying of materials, is not sufficient : 
 
 see Graham V. Williams, 8 O. R. 478 ; 9 O. R. 458 ; 
 
 Flack V. Jeffrey, 10 M. R. 514. Nor will the fact that 
 
 repairs are made by a lessee pursuant to a covenant in 
 
 his lease, which provides that the cost of them may be 
 
 deducted from the rent, make the estate of the lessor . 
 
 liable to a lien so acquired : Goring \. Hunt, 27 O. R. 
 
 149. But an owner standing by, and inducing credit to Estoppel of 
 
 be given to another, upon the representation that such""'^"*'"" 
 
 other person is the owner, may be estopped in equity 
 
 from afterwards setting up his title adversely to the claim 
 
 of a lienholder, whose lien has been acquired under such 
 
 'I 
 
 f 
 
 .r 
 
 P 
 
12 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 2. 
 
 !i 
 
 1^ i! 
 
 I 11 
 
 circumstances : Higgins v. Ferguson, 14 111. 269 ; Don- 
 aldson V. Holmes, 23 111. 85 ; West v Elkins, 14 C. L. 
 T. 50 : and where a person has entered into a verbal 
 contract for the sale of land knowing that the purchaser 
 intends to erect buildings, which he accordingly does, 
 the vendor cannot thereafter claim the land to the 
 prejudice of liens created, by virtue of the erection of 
 such buildings, on the interest of the purchaser ; and 
 where the vendor under such circumstances encouraged 
 the contractors with the purchaser to go on with the work 
 and assured them that they need not be afraid of not get- 
 ting paid, it was held that the vendor's interest was also 
 bound, by liens for work thus done, as the work was 
 done " with his privity and consent " within the meaning 
 of this section : Blight v. Jiay, 23 O. R. 415 ; but see 
 Flack V.Jeffrey, 10 M. R, 514. And where builders 
 contracted with one H. to erect buildings on land then 
 owned by them which they then agreed to, and subse- 
 quently did, convey to H. it was held that the interest 
 of H. was liable as that of the " owner " within the Act, 
 and bound by the liens of a sub-contractor under the 
 builders in respect of the buildings so erected : Reggin 
 v. Manes, 22 O. R. 443. 
 
 fng unTr '''"" (^) '' ^nd all pcrsons claiming under him.^ These 
 far^ound by^ words, when taken in connection with section 7, would 
 liens. seem to indicate that the intention of the Act was to 
 
 prevent the claim of a lien holder from being defeated 
 either by the death of the " owner " with whom the lien- 
 holder, directly or indirectly, contracts ; or by his trans- 
 ferring his interest in the property to another after the 
 lien has attached; and this view was adopted by the 
 
 If 
 
Thk Mj:ch..nics' Lien Act oi- ONTARIO. 
 
 13 
 
 i 
 
 court in Mnkiiis v. Robinson, 6 (). K. 1 ; and see Rek:^gin i^teti^n =. 
 
 V. iVfanes, 22 (). R. 443 ; Hilton v. Merrill, 106 Mas«. 
 
 528 ; Smith v. Norris, 120 Mass. 58 ; Gale v. lHaikie, 
 
 126 Mass 274 ; Amidon v. Benjamin, lb. 276 ; Ett ridge 
 
 V. Bassett, 136 Mass. 314; but where the 'Owner" with 
 
 whom the lien-liolder directly or ijidirectly contracts, 
 
 has, sub.scquenllyto the hen attaching,a mere momentary 
 
 seizin, as where the property is conveyed to him, and he 
 
 contemporaneously mortgages it b^ck to his grantor, the instantaneous 
 
 ,. , 1 • 1 1 r 1 seizin. 
 
 hen would not, it seems, attach upon the estate of the 
 mortgagee, (see />ost, section 7(1), note /') : but subject to 
 this exception, the intention of the Act seems to have 
 been that all persons claiming under the 'owner" with 
 whom the contract is directly or indirectly made, whose 
 rights accrue after the work or materials, in respect of 
 which the lien is claimed, have been commenced to be 
 done, or furnished, should take subject to the lien, pro- 
 vided it be duly enforced as provided by the Act (see 
 sections 2t„ 24, 25). But it has been held in the United 
 States, that in order that a lien may prevail as against a 
 subsequent mortgagee without notice, it is necessary 
 that the contract be precise and definite, and not sub- 
 ject to be affected, modified, or changed at the will of 
 one of the parties : Manchester v. Searle. \2\ Mass. 418, 
 
 But in the present state of the authorities in Ontario Effect of prior 
 
 1 J . L .. 1 ^ ^ . I- registration 
 
 It would seem that a subsequent grantee or mortgagee ot 
 the '' owner " may acquire priority over the lien holder, 
 by prior registration ; Douglas v. Chamberlain, 25 Gr. 
 289, 290; Hynes v Smith, 27 Gr. 150; McVean \. 
 Tiffin, 13 App. R. 1 ; Re Craig, 3 C- L T. 501 ; Rein- 
 hart v. Shutt, 15 O. R. 325; McNamara v. Kirhland^ 
 
 'A 
 
 it 
 
 t 
 
 .1. 
 
 \ 
 
 If- 
 
14 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 2. ,3 App. R. 270. These cases proceed on the assump- 
 tion that The Registry Act applies to mechanics' liens, 
 although section 19 of the former Act, (R S. O. (i887) 
 c. 126), expressly declared, as does section 21 of this 
 Act, that it is not to apply to ihem, except as by the Act 
 is provided, (see poit, sections 17-25). It has been 
 argued, therefore, that these cases do not correctly inter- 
 pret the statute: see 22 C. L J 355, 356. 
 
 Makinn v. 
 Jliibinxiii, how 
 far reconcil- 
 able with 
 McVean v. 
 rigin. 
 
 ■X !i 
 
 11! ii 
 
 Assuming the reasons upon which these cases are 
 founded to be correct, it has been suggested : see Rein- 
 hart V. Shutt, 15 O. R. 325, that they in effect overrule 
 the decision of Ferguson, J , in Makitis v. Rol>inson, 
 supra. It may, however, be well to observe that the 
 facts in the latter case were essentially different from 
 those in Hynes\. Smith and McVean \. Tiffin. In those 
 cases, what was sought to be done, was to add a subse- 
 quent mortgagee as a party in the Master's office, after 
 the time limited by the Act for bringing a suit to en- 
 force the lien had expired ; and inasmuch as the suit is 
 not commenced as against parties added in the Master's 
 office until such parties are actually added (see Bank oj' 
 Montreal v. Haffner, 29 Gr. 319 ; 10 App. R 592 ; S.C. 
 snl>. notn. Bank of Montreal v. Worswick, ("ass. Dig. 
 289 ; McGraiv v. Bayardy 96 111. 146 ; Gardner \. Wat- 
 son, 18 111. App. 386 ; Lani/> Canip/>e//, 19 111. App. 
 272), the plaintiff's right as against such subsequent 
 mortgagee had in fact expired : ste/>ost, sections 23, 24, 
 {sed vide Cole v. Hall 13 P. R. 100) ; whereas in Makins 
 V. Robinson the subsequent transferee was an original 
 party defendant and the action was comnnnced against 
 him in due time. While, therefore, the actual decisions 
 
The Mechanics' Lien Act of ONTARIO. 
 
 15 
 
 arrived at in Hynes v. Smith and McVean v. Tiffin ap- Section 
 pear to have been quite correct on the facts presented 
 in those cases, it is possible that the reasons assigned 
 therefor may hereafter be found to need reconsideration. 
 Certainly they seem somewhat difficult to reconcile with 
 section 2, s.s. 3, which declares that the term "owner" 
 is to include all persons claiming under the person with 
 whom the contract is made, '^7e>/iose rig/its are acquired 
 after the work or service in respect of which the lien is 
 claimed is commenced, i>v.," and section 7 (i) which 
 declares that the lien "shall attach upon the estate and 
 interest of the oivner as defitied by this Act," and section 
 21, which declares "that except as herein otherwise pro- 
 vided The Registry Act shall not apply to any lien arising 
 under this Act." 
 
 
 
 Assuming that The Registry Act does apply to ^^^^^1 notice 
 mechanics' liens, as held by the court in McVean v. ^|,.^^'"i^g- 
 Tiffin, supra, it would seem that prior registration will ^^^'^^ "^■ 
 not give priority over mechanics' liens of which the per- 
 son claiming under the prior registered instrument had 
 actual notice, before registration of the instrument under 
 which he claims : see Rose v. Peterkin, 13 S. C. R. 677; 
 Wanty V. Robins, 15 O. R. 474; McNamara v. Kirk- 
 land, 18 App. R. 271 ; West v. Sinclair, 28 C. L. J 
 119. 
 
 Where a mortgage is given to securo advances to be Mortgage to 
 applied in the erection of a building upon land, and all advances!"*^^ 
 the money is advanced before any of the work is done 
 by persons who subsequently register liens, the interest 
 of the mortgagee is not bound by such liens, except 
 
 I 
 
 ■'i 
 I 
 
I 
 
 i6 
 
 Section 2. 
 
 Advances 
 after lien 
 attaches, 
 effect of. 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 as provided by section 7 (3), post : see Cameron's Opin 
 ions, p. 184; and see R. S. O. c. 136, s. 99. 
 
 It was held under the former Mechanics' Lien Act 
 that when a mortgage was given to secure future 
 advances, and was duly registered ; and advances were 
 made after a right of lien had been acquired under the 
 Act, but before registration of the lien, and without any 
 actual knowledge of the lien by the mortgagee, that the 
 lien-holder was not entitled to priority over the claim of 
 the mortgagee in respect of such subsequent advances : 
 Richards v. Chamberlain, 25 Gr. 402 ; and see R. S. O. 
 c. 136, s. 99 ; Brooks v. Lester, 36 Md. 65 ; Robinson 
 V. Williams, 22 N. Y. 380 ; Moronefs Appeal, 24 Penn 
 372; Martsolf v. Barmvell, 15 Kan. 612; laege v. 
 Bossieux, 1 5 Gratt. 83 ; and where such advances were 
 made after registration of the lien, but without actual 
 notice thereof it was held that the lien was not entitled 
 to priority as regards such subsequent advances : Pierce 
 v. Canada Permanent Loan 6^ Savings. Co,, 24 O. R. 
 436 ; but unde/ the present Statute a material change 
 has been made in this respect, and advances made by a 
 mortgagee either after actual notice of a lien or after 
 legistration of the lien, vill, possibly, not be entitled to 
 priority to the lien, even though made on the security 
 of a prior registered mortgage : see post, section 13 (i), 
 The conflict between that section and E.. S. O. 
 c. 136, s. 99, is referred to, in the notes to lection 13 
 post. 
 
 {h) **Pctsoti*** The definition here given extends the 
 meaning of the word beyond that given in The Interpre- 
 tation Act (R. S. O. c. I,) s. 8, s.s. 13, to "a firm, part- 
 
waiving ap- 
 ■■ ition of 
 to be void. 
 
 The Mechanics' Lien Act of ONTARIO. 17 
 
 nership or association," under The Interpretation Act flection 2. 
 " person " includes " any body corporate or politic, or 
 party, and the heirs, executors, administrators or other 
 legal representatives of such person, to whom the con- 
 text can apply according to law." 
 
 3. — (i) Every agreement or bargain, ver sections. 
 bal or written, express or implied, which has ^^y^*[»^*» 
 heretofore been made or entered into, orAct**"^""^ 
 which may hereafter be made or entered into, 
 on the part of any workman, servant, labour- 
 er, mechanic, or other person employed in 
 any kind of manual labour intended to be 
 dealt with in this Act, by which it is agreed 
 that this Act shall not apply, or that the 
 remedies provided by it shall not be available 
 for the benefit of any person entering into 
 such agreement, is and shall be null and void 
 and of no effect as against any such workman, 
 servant, labourer, mechanic, or other person 
 (a), 59 V. c. 38, s. 3. 
 
 (2) This section shall not apply to any 
 foreman, manager, officer or other person 
 whose wages are more than $3 a day. 59 
 V. c. 2i^, s. 12. 
 
 {a) "workman, servant, labourer, mechanic, or 
 other person." This section is a legislative prohibition 
 
 :? 
 
 
 •4 
 
i8 
 
 Section's. 
 
 The Mechanics' Ljen Act of ONTARIO. 
 
 against workmen contiacting themselves out of the 
 benefit of this Act. A provision is to be found in The 
 IVorkinen's Compensation for Injuries Act ( R. S. O. c. 
 1 60) s. 10, of a somewhat similar character. 
 
 The section is not intended to avoid all contracts 
 waiving the benefits of the Act, but only those made by 
 contractors, or sub-contractors, who come within the 
 definition of " workman, servant, labourer, mechanic, or 
 other person doing manual labour " : probably the doing 
 of manual labour is one of the tests to be applied in 
 determining who come within the operation of the 
 section. Sub-section (2) further limits the application of 
 the section to those earning less than $3 a day. 
 
 ■Section 4- 4. Unless hc signs an express agreement 
 Nature of lien, (a) to the Contrary, and in that case subject 
 to the provisions of section 3, any person [h) 
 who performs any work or service (c) upon or 
 in respect of, or places or furnishes any 
 materials [d) to be u.sed {e) in the making, con- 
 structing(/), erecting, fitting, altering, improv- 
 ing or repairing of any erection, building, 
 railway, land, wharf, pier, bulkhead, bridge, 
 trestlework, vault, mine, well, excavation, or 
 fence, sidewalk, paving, fountain, fishpond, 
 drain, sewer, aqueduct, roadbed, way, fruit 
 and ornamental trees, or the appurtenances to 
 any ©f them, for any owner, contractor or 
 
 1 
 
The Mechanics' Lien Act ok ONTARIO. 
 
 •9 
 
 ■i 
 1 1 
 
 sub-contractor, shall by virtue thereof have a '^'"-;^*^< 
 lien {g) for the price of such work, service or ^'"^^"'^^"^"*"'" 
 materials upon the erection, building, rail- 
 way, land, wharf, pier, bulkhead, bridge, 
 trestlework, vault, mine, well, excavation, 
 fence, sidewalk, paving, fountain, fishpond, 
 drain, sewer, aqueduct, roadbed, way, fruit 
 and ornamental trees, and appurtances 
 thereto, and the lands occupied thereby or 
 enjoyed therewith (//), or upon or in respect 
 of which the said work or service is per- 
 formed, or upon which such materials are 
 placed, or furnished to be used, limited, how- 
 ever, in amount (i) to the sum justly due to 
 the person entitled to the lien and to the sum 
 justly owing (except as herein provided) (_;') 
 by the owner. 59 V. c. 35, s. 5 ; 60 V. c. 24, 
 s. I. 
 
 (a) ** Unless he signs an express agreement.'' It is ^^[^^"^i^gl^Vro 
 obvious, from these words, that a parol agreement to |j*^" ntine''^ 
 waive the right of lien, is ineffectual. The agreement ''"'^ ^'^p'"'"'^'*' 
 must be express, and not to be gathered by implication, 
 and must be signed by the party who would, but for the 
 agreement, be entitled to the lien. An agreement binds 
 only the party who signs it, and probably his representa- 
 tives, (see section 6, note {b) ), but not any sub-contractor. 
 Prior to the 47 Vict. c. 18, s. i, a "contractor" might, 
 
 
 ■ y - 
 
 i 
 
 
: pi 
 
 20 
 
 The Mpxhanics' Lien Act ok ONTARIO. 
 
 Sectio.. 4. 
 
 by his agreement, deprive alt subcontractors under him 
 of the right of lien : Forhan v. Lahmde, 2 7 Gr. 600. 
 
 Rights of sub- Persons entering into contracts as sub-contractors in 
 
 contractors to b " 
 
 'ffected^'*"^ the expectation of acquiring a lien under the Act, befoie 
 agreements engaging in the work, or furnishing materials; should 
 
 Dc I Inr cell 
 
 "owner '• and nevertheless inquire of the " owner " at whose instance 
 
 contrat'tor. . ' 
 
 the work is being done, or materials furnished, whether 
 there be any agreement between him and the " con- 
 tractor " debarring the latter, or his sub contractor, from 
 claiming a lien. For although the right of sub-con- 
 tractors to liens can only be barred by an express agree- 
 ment between themselves and the " owner," yet their 
 liens may perhaps be rendered fruitless by the " owner " 
 stipulating with the "contractor," not only that the 
 latter shall not be entitled to any lien, but also that in 
 the event of any lien being claimed or registered by any 
 sub-contractor under him, the money payable under the 
 contract shall be forfeited ; because the lien of a " sub- 
 contractor" is, hy sections 9 and 10, limited to what is 
 due by the " owner " to the " contractor," and if nothing 
 be due, the " sub-contractor " can get no benefit from 
 his lien : Brings v. Lee, 27 Gr. 464 ; Ferguson v. Burk, 
 4 E. D. Smith (N. Y.) 760 : Allen v. Cumian, i E. D. 
 Smith (N. Y.) 692 ; Linn v. O'Hara, 2 E. D. Smith (N. 
 Y.) 560 : see, however, section 11, and notes. 
 
 {b) ** any person." See the definition of the word 
 
 Minor may 
 acquire right 
 of lien. 
 
 any person. 
 
 " person" s. 2, s.-s. 4, ante, P 5 A minor, though unable to 
 bind himself by contract, may nevertheless if he actually 
 do work, or furnish materials, be entitled to a lien 
 therefor : Phillips, s. 38. " Sub-contractors " as well as 
 " contractors " are included. The extension of the right 
 
^ 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 21 
 
 \i 
 
 to register liens, to sub-contractors indefinitely, has been •'''" ^^'"" ♦ 
 considered to be open to grave objections on the score 
 of policy, both as regards the "owner '" and the mechanic : 
 see Phillips, s. 60. 
 
 An architect is entitled to a lien, for drawing plans and when entftted 
 specifications, and superintending the erection of a*°'"^" 
 building: Arnoldi v. Gouiii, 22 Gr. 314. But a dis- 
 tinction has been made in the United States where an 
 architect merely draws plans and specifications, and does 
 not superintend the erection ; in such a case he has been 
 held not to be entitled to a lien : Raeder v. Befis/>erg, 6 
 Miss. App. 445 ; Phillips, s. 158 ; but perhaps the word 
 " service " in this section may be held to include services 
 of that kind so as to confer a right of lien under this 
 Act. 
 
 A contractor is entitled to a lien upon the interest of Extent of Ucm 
 
 •^ _ of contractor. 
 
 the " owner " in the land, not only for his own personal 
 labour, but also for the labour of all employed by him, 
 and also for all the materials he has furnished, or pro 
 cured to be furnished, for which he is liable. The fact 
 that a lien is also given to the journeymen, or other 
 labourers employed by the "contractor" is not incon- 
 sistent with f'le latter's right of lien; the effect of the 
 " sub contractors " enforcing their liens against the land, 
 is merely to diminish pro tanto the lien of the contractor : 
 see Phillips, s. 40. A corporation doing work, or fur- ent*itie<i to*** 
 nishing material, would be entitled to a lien : see section ''«"• 
 2, s.-s. 4 ; iifite p. 5 ; R. S. O. c. i, s. 8, s.-s. 13. 
 
 An " owner " cannot have a lien under this Act against " Owner" can 
 
 . . ° notolaim Hen- 
 
 his own buildmg for work done thereon, which he can ?« his own 
 
 ° land. 
 
 . f 
 
 t 
 
 I 
 
1 
 
 
 * 
 
 ' 
 
 
 
 22 
 
 
 The Mechanics' Lien A 
 
 9H 
 
 If t- : 
 
 Section 4. 
 
 Performance 
 of work 
 requisite to 
 right of lien. 
 
 Variation 
 from contract. 
 
 Impel lect 
 performance 
 of contract. 
 
 enforce in conipetit'on with liens of third parties : 
 PhiHips^ s. 39. 
 
 {c) ** performs any work or service." As a general rule 
 in order to entitle a mechanic, or material-man, to enforce 
 a lien for his work or mateiials, the work must be done, 
 and the materials must be furnished, substantially ac- 
 cording 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 
 substantial variation^from the contract, then there must 
 be actual acceptance of the work and materials by the 
 "owner," sufficient to create a new contract to pay for 
 them, or he must have assented to the variation, or must 
 himself have prevented the performance of the contract, 
 or assented to its abandonment : see Clayton v. 
 McConnell, 14 O. R. 608. 
 
 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 perform- 
 ance of the contract for the erection, alteration or repair 
 thereof, so as to entitle the contractor tc recover, either on 
 the special contract or under the common counts a 
 (juantum meruit : see Brydoti v. Lutz, 9 Man. 63 ; 
 Munro V. Butt, 8 E. tSi B. 738 ; Sunipter v. Hedges, 
 (1898) I Q. B. 673; 78 L. T. 378; E/iis V. Ham/en, 3 
 Taunt. 52; PattinsoH v. Luckley, L. R. lo Ex. 330; 
 
m 
 
 i 
 
 The Mechanics' Lien Act of ONTARIO. 23 
 
 Oldershiuvv. Garner, 38 U. C. Q. B. 37 ; Gearing v. Section 4. 
 Nordheimer, 40 U. C. Q. B. 2 1 ; and Wood v. Stringer, 
 20 O. R. 148, where the user of pews in a church build- 
 ing was held to be no waiver of the right to object that 
 they were not made according to contract. 
 
 There is no implied warranty, on the part of the No implied 
 
 "^ ■' ^ warranty that 
 
 " owner," that work can be done according to the plans work can be 
 
 ° '^ performed 
 
 and specifications furnished. The contractor who according to 
 
 . specifications. 
 
 undertakes to perform work according to certain plans 
 and specifications, in the absence of any stipulation to 
 the contrary, does so at his own risk, and if the work 
 cannot be completed in the manner specified, he cannot, 
 nor does it seem possible that any sub contractor under 
 him can, recover against the " owner " for the work 
 actually performed : T/ior>i \. Mayor 0/ London, 'L. 'K. g 
 Ex. 163 ; S. C, L R. 10 Ex. 112 ; except it be a wage- 
 earner claiming under .yft/w;/ 14, /<?j/. And where a con- 
 tract was made to build and finish a house ready for 
 occupation, and to deliver it so finished to the " owner," 
 the delivery was not excused by the fact that, owing to a 
 latent defect in the soil, the walls sunk and cracked, and 
 the house became uninhabitable and dangerous, and had 
 to be rebuilt: Dermott\. /ones, 2 Wall, i. But the express Express ac- 
 
 - , , / , ceptance of 
 
 acceptance of the work by the owner waives non-compli- work waives 
 
 . , , •i' • TT ■ J defect in 
 
 ance with the specifications : Havighorst v. Lindberg, 67 performance. 
 111. 463. And a forfeiture for not completing the contract 
 in time, is waived by payments made after the default, 
 and urging the contractor to go on with the work : 
 Eysterv. Parroit, 83 111. 517. 
 
 But when the deviation from a contract arises in DeviationB as 
 
 . f ^. .u /• /-..., to matters not 
 
 respect of some matter, the performance of which does conditions pre- 
 not constitute a condition precedent to the right to to recover!*^ 
 
 
34 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 4. 
 
 recover, as, for instance, the completion of the work by 
 a certain day, the value of the work may be recovered, 
 and a lien therefor might in such case be enforced : 
 Lucas V. Goodivin, 3 Bing, N. C. 737 ; and see Thompson 
 V. Yates, 28 How. Pr. (N. Y.) 142. 
 
 Under a statute which provided that "every building 
 shall be subject to a lien for the payment of all debts 
 
 How fat- 
 performance 
 of contract 
 between , /. • , . r 
 
 "owner "and contracted for work done, or materials furnished for or 
 
 " contractor " . - , „ . 
 
 is essential to al)out the erection or construction of the same, it was 
 
 right of a sub- , , , , . „• • • i i 
 
 contractor to 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, notwithstanding that as between the 
 " owner " and the "contractor" there was no perform- 
 ance of the contract : Rand \. LeedSy 2 Phila. 160. It 
 seems, however, unlikely that such a conclusion could 
 be arrived at under this Act in the face of section 10, 
 which limits the lien of a sub-contractor, to the amount 
 payable to the contractor, or sub-contractor, through 
 whom he claims. 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 claim for a lien by any " sub-con- 
 trac or "under him. See, however, j^(r//W«j n, 12, 13, 14, 
 which to some extent modify the rights of the owner 
 so far as the percentage required to be retained by him 
 is concerned ; and see the notes to those sections. 
 
 Although the general rule is, that sub-contractors 
 cannot recover where there has been an imperfect 
 fulfilment of his contract by the contractor through 
 
 : ii 1! 
 
 m 
 
 'I 
 
The Mechanics' Lien Act of ONTARIO. 
 
 «5 
 
 whom they claim, an exception is mside hy secfio?i 14, 
 (2), (3), />osf, in favour of " wage-earners." 
 
 When the procuring of an engineer's or architect's 
 certificate, is, by the terms of the contract with a 
 *' contractor," made a condition precedent to payment, 
 the contractor, as a general rule, cannot recover the value 
 of his work, either on the common counts, or under the 
 contract, without first producing the certificate : Sharpe 
 V. San Paulo Ry. Co., L. R. 8 Chy. 097 ; Tharsis Sulphur 
 cr* C. Co, V. McElroy, 3 App. Cas. 1040 ; Lakin v. 
 Nttttall, 3 S. C. R. 685 ; Jones v. The Queen, 7 S. C. R. 
 570; O'Brien v. The Queen, 14 S. C. R. 529; Coats- 
 jvorth V. City of Toronto, 7 C. P. 490 ; 8 C. P. 364 ; 
 Ekins V. Bruce, 30 U. C. Q. B, 48 ; Ferguson v. Gait, 
 23 C. P. 66 ; Reg. v. Crinon, 23 S. C. R. 62 ; Robinson 
 v. Oiven Sound, 16 O. R. 121 ; Gilbaults. McGreevy, 18 
 S. C. R. 609. 
 
 Where the contract provided that no extras were to be 
 allowed without the written authority of the owner, or 
 his architect, it was held that the price of extras could 
 not be recovered, unless the written authority of the 
 owner, or his architect therefor, was proved : IVood v. 
 Stringer, 20 O. R. 148. 
 
 A stipulation that an architect's certificate shall be 
 final and conclusive, and shall not be set aside for any 
 pretence, suggestion, charge or insinuation of fraud, 
 coUusicn or confederacy, is not void as contrary to 
 public policy: Tullis \. Jacson, 67 L. T. 340; and see 
 Peters v. Quebec Harbour Commissioners, 19 S. C. R. 685. 
 
 But, although the production of the certificate may be 
 essential as a condition precedent to the recovery by the 
 
 Section 4. 
 
 Production o£ 
 engineer's or 
 architect's cer- 
 tificate, when 
 a condition 
 precedent 
 to right to 
 enforce lien. 
 
 r 
 
 % 
 
26 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 !• 
 
 II 
 
 !li' 
 i'l;i 
 
 Non-produc- 
 tion of certifi- 
 cate, when 
 excused. 
 
 Section 4. contractor, it is not necessarily so, where, the original 
 contractor having failed in his contract, the owner 
 agrees with a third party to go on and complete the 
 work according to the original contract. In such a case, 
 the completion of the work by such third party, so as 
 morally to entitle him to a certificate, is all that need be 
 shown: Petriev. Hunter, 2 O. R. 233; 10 App. R- 
 127 ; Lewis v. Hoare, 44 L. T. 66. 
 
 So also, when a contractor is prevented from obtain- 
 ing the certificate by the wrongful act of the " owner," 
 he may recover on the common counts without the 
 certificate : Smith v. Gordon. 30 C. P. 553. 
 
 Where a contractor is not entitled to recover, not by 
 reason of an imperfect fulfilment of the contract, but by 
 reason of hii being unable to comply with a stipulation 
 requiring a written authority for the performance of the 
 work, or the supplying of the materials, it would seem 
 that even under section 14, (2), (3), /^^^Z, a sub-con- 
 tractor under him, even though a wage-earner, would 
 not be able to recover either : ste post, sections 9, 10. 
 Work need not It is immaterial whether all the labour for which a 
 
 be actually 
 
 doneon land, \{qx\ is claimed is actually performed on the land, or in 
 
 if It finally go ■' ^^ 
 
 into the work the workshop, or elsewhere, if it finally go into the work 
 
 contracted for '^' ' •' ° 
 
 contracted for ; see Wilson v. Steeper, 1 3 1 Mass. 177; 
 Dick v. Stevenson, 70 L. T. 424 ; Phillips, s. 40. But 
 the work or services must be immediately connected with 
 the erection, or the land on which the lien is claimed : 
 Jb. s. 155. 
 
 (</) '* any materials*" " Materials " includes every 
 kind of moveable property : see ante, section 2, s.-s. 5. 
 Powder, shell and candles, furnished for working a 
 
 f 
 
The Mechanics' Lien Act of ONTARIO. 
 
 27 
 
 f 
 
 i i 
 
 mine, would be materials within this section', see AVv- •'section 4. 
 stone V. Gallagher, 5 Col. 23. 
 
 {e) ^ to be used." The question has frequently J^^^/f^'j ^^^^ 
 
 arisen in the United States whether it is essential, to "^^ iP?"'?"^^ 
 
 ' ated in build- 
 entitle a material-man to a lien, that the material in '"g. to entitle 
 
 material-man 
 
 respect of which the lien is claimed should have been to Hen. 
 actually incorporated in the building erected on the land 
 upon which the lien is claimed: see Phillips, ss. 148- 
 
 It has been held under a former Act that as between 
 lien-holders intet- se and for materials furnished to a 
 "contractor," (and a /yr//V;;7 to a sub-contractor), that 
 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 on 
 the building, though not used, and others procured 
 elsewhere. All that a claimant in the latter case is 
 required to show, is the fact that the materials were 
 furnished for the purpose of being used in con- 
 structing, or repairing, the building : see Bunting\. Bell, 
 23 Gr. 588. Questions may arise between different 
 material-men, where both have sold on the credit of the 
 building, the material of one having been used in its 
 erection, and the other's not, but such questions would 
 have to be adjusted on the principles of equity : see 
 Esslingerv. Huebner, 22 Wis. 602. I'here is no lien for 
 unsuitable materials furnished, but not used : Htinter v. 
 Blanchard, 18 111. 318. 
 
 (/) ''making:, constructing, &c" The specific por what 
 enumeration of the various kind of work, etc., for which be°daimed"*^ 
 
 :|. 
 
 ■ ' ti 
 
 P ; 
 
sssssm 
 
 28 
 
 Mechanics' Lien Act ok ONTARIO. 
 
 ,' I 
 
 Section 4. a lien may now be claimed, sets at rest many questions 
 whic n irose under statutes having a less extensive and 
 specilic dfc-cripiicii — biU it cannot, even now, be said to 
 preclude all such questions. It would still seem that no 
 lien can be maintained for planing and sawing timber, 
 without any agreement as to the use to be made thereof, 
 although it is afterwards put into a building : Bennett v. 
 Shackford, 93 Mass. 444. It has been held in Massa- 
 chusettes that no lien can arise for merely hauling 
 lumber and sand for a building : Webster v. Real Est. 
 Imp. Co., 140 Mass. 526, though if the sand or lumber 
 
 Hauling. ^^ haulcd by the person furnishing it, a lien could no 
 doubt be claimed for the hauling as well as the price of 
 the material: Phillips, s. 155 ; and in Pennsylvania it 
 has been held that a lien may attach in favour of a 
 teamster for hauling lumber for a building : Hill v. 
 Neivman, 38 Penn. 151, as also for labour done with 
 
 Hoisting. derricks in hoisting materials : Tizzard v. Hughes, 3 
 Phila. 261 ; and such work if done upon or in respect of 
 any erection or land would seem clearly to be within 
 this section. 
 
 Grading. Filling in and grading the earth about buildings 
 
 already erected, although not work for which a lien could 
 be maintained under some I.ien Acts : see Pratt v. Dun- 
 can, 32 N. W. R. 709; Adamson v. Rogers, 22 App. R. 
 415 ; 23 S. C. R. 159, seems now to be work for which a 
 lien could be m.aintained under this section. It has been 
 held under some Lien Acts that a lien does not attach 
 
 -Tearing down, for labour in tearing down : Holzhour v. Merr, eg Mo. 
 
 and removing ° . 1 o^ 
 
 buildings. 434^ or removing a building : Trask v. Searle, 121 Mass. 
 229; Stephens v. Holmes, 64 111. 336; but under this 
 
The Mechanics' Lien Act of ONTARIO. 
 
 29 
 
 st'itioH it would seem that a lien might be claimed for !^ei;^«<>|> 4- 
 such work, as work done upon or in respect of land. 
 
 It has also been doubted whether any lien would I'enccs. 
 attach under some statutes in the United States for 
 work upon, and material for, fences : see HiiNmrd v. 
 Brown, 90 Mass. 590 ; Cn>iisii/s- v. Mernll, 65 111. 67. 
 But a fence is now expressly within this •section. A 
 drain-pipe has been hold to be part of a house for which ^'""'"• 
 a lien may be claimed : Huhhanl v. Brown, 90 Mass. 
 590 : and it is also clearly a work for which a lien may 
 be claimed under this section. 
 
 When a lien is claimed for putting in a furnace and '"'"'"Rces. 
 ranges, the question whether the transaction was the 
 mere purchase and sale of a chattel, or the furnishing 
 materials for the building, is said to be a mixed ques- 
 tion of law and fact: Turner v. Wentworth, 119 Mass. 
 459 ; and see The Scottish American Investment Co. v. 
 Sexton^ 26 O. R. 77. As to a boiler, see Kelly v. Border toiler. 
 City Mills, 1 26 Mass. 1 48. The erection of a lightning rod L'ghtning rod 
 was held not to come under the head of building, altering, 
 repairing or ornamenting a building : see Dre^v v. Mason, 
 81 111. 498 ; and see Bennett v. Shackford, 93 Mass, 444 ; 
 and a scene painter for a theatre cannot for painting 
 scenes acquire a lien on the leasehold interest of a lessee 
 of the theatre, by whom he is employed : see Garinc; 
 V. Hunt^ 27 O. R. 149. 
 
 {g) "shall by virtue thereof have a lien." 
 withstanding a similar generality of the words in the 
 former Mechanics^ Lien Act, (R. S. O. (1887) c. 126), 
 it was held that the right of lien did not arise 
 where the work had been done, or materials supplied 
 upon property not liable to be sold in execution. Thus 
 
 'I 
 
 Mnt- Lands liable to 
 ^^"'- lien. 
 
 % 
 
I 
 
 ih ■! 
 
 3° 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 4. 
 
 injfs. 
 
 Railw.'iy 
 lands. 
 
 ill 
 
 it was held that there was no lien for work done on 
 School build- public school buildings ; Jiol>/f v. Woodstock School 
 Board, per Proudfoot, J., at Woodstock, April, 1880, 
 because such buildings are not liable to sale in execu- 
 tion : Scott V. Burgess, 19 U. C Q. B. 28; and see 
 Phillips, ss. 179, 1790; Thomas v. Urbana School Dis., 
 71 111. 283; Board of Education v. Neidenberger, 78 111. 
 t^'i ; sed vide contra Moore v. Bradley, 5 Man. 49. Nor 
 could the lands of a railway company be made subject 
 to such liens : Phillips, s. 180; Breeze v. Midland Ry. 
 Co., 26 Gr. 225 ; Kings. Alford, 9 O. R. 643. In the 
 latter case, however, Proudfoot, J., dissented ; and see 
 Hillv. Lacrosse e^' Mil. R. R. Co., 1 1 Wis. 214 ; Phillips, 
 s. 182. And it has also been held in the United States 
 Court;house. that a court house : Bouton v. McDonough County, 84 
 111. 384 ; and buildings belonging to the State : Thomas 
 V. Itidustrial University, 71 111. 310, are not liable to 
 mechanic's liens. 
 
 Owing to the different wording of the present Act, 
 however, it is possible that for work and materials of the 
 kind mentioned in this section, done or supplied for 
 municipal corporations, or for railway companies within 
 Ontario, a lien may now be enforced. The principal 
 differences between this Act and the former Act in this 
 respect are to be found in section 2, s.-s, 3, which ex- 
 pressly includes municipal corporations, and railway 
 companies, within the definition of " owner," this section 
 4, now under consideration, which expressly includes 
 work or service upon or in respect of any railway, or 
 materials furnished to be used in making or constructing 
 any railway, as subjects for which a lien may be ci.iimed, 
 and section 17 (3), which makes a special provision as 
 
 Buildings \ 
 belonging"to 
 the State. 
 
 ii'! 
 
I 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 31 
 
 to the description of the lands where a lien is claimed section 4. 
 against a railway company. 
 
 It is, however, not perfectly clear that even under the 
 present Act, a lien on municipal buildings in actual use, or 
 the lands actually required for the use of any railway can 
 be effectively enforced. It must be borne in mind that 
 the reason of the decisions above referred to, was not 
 that railways and municipal corporations were in terms 
 excluded from the operation of the former Act (see per 
 Proudfoot, J., 9 O. R., 647), but on the ground that the 
 lands vested in those classes of corporations could not 
 be sold in execution, as being contrary to public policy ; 
 and in the absence of any positive legislative reversal of 
 that policy, it is just as effective now as it was when the 
 decisions above referred to were pronounced. A learned 
 writer on this subject says : " Property which is exempt 
 from seizure and sale under an execution upon grounds 
 of public necessity, must, for the same reason, be equally 
 exempt from the operation of the mechanics' lien law, 
 unless it appears by the law itself, that property of this 
 description was meant to be included ; and to ivarrant 
 that inference, something more must appear than the ordin- 
 ary provisions that the claim is to he a lien against a par- 
 ticular class of property enforceable as Judgments rendered 
 in other civil actions: Phillips s. 179, quoted with ap- 
 proval by Boyd, C, King v. Alford () O. R., at p. 647. 
 The observations of Boyd, C, which follow also deserve 
 attention. " Now railways generally, are in these days 
 essential to public use and convenience, and they are, 
 therefore restricted, on grounds of public policy, from 
 being cut in pieces and destroyed by sales under legal 
 
 i\ 
 
 'i.jt I 
 
•j iHii iMirwill 
 
 3a 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 4. 
 
 i 
 
 li i 
 
 process." These observations have the same force now 
 as when they were made, and it is manifest that the 
 argument based thereon against a right of iien in such 
 cases seems still open even under the present Act. It 
 might prove a very serious injury to the public, if a rail- 
 way could be sold off in sections to satisfy liens for 
 building station houses, or for making, or repairing the 
 road bed, or laying rails, etc, or if public municipal 
 buildings, in actual use, such, for instance, as registry 
 offices, fire stations, etc., could be sold to satisfy me- 
 chanics' liens. Executions against municipal corpora- 
 tions for the recovery of ordinary debts have to be 
 enforced in a certain specific manner prescribed by the 
 Legislature: see The Municipal Act {K S. O. c. 223, s. 
 471) ; the only mode of enforcing the payment of a 
 claim for a lien under this Act is by the sale of the pro- 
 perty subject thereto : see section 35 (2), post, and if 
 we regard the process for enforcing a lien as in the 
 nature of an execution as it appears to be, (see per Fer- 
 guson, J., Ki7ig V. Alford, 7 O. R., at pp. 653-4), we have 
 a conflict of Statutes. In the same way, ordinary debts 
 against a railway company cannot be enforced by sale, 
 under execution, of the company's roadway or stations, 
 but only by the appointment of a receiver : see King v. 
 Alford, supra ; Peto v. The Wetland R. IV. Co., 9 Gr. 
 455 ; The Erie 6" Niagara Ji. W. Co. v. The Great 
 Western R. W. Co., 19 Gr. 43. The question for judi- 
 cial decision will therefore be, does the present Act so 
 explicitly provide for the sale of lands of municipal and 
 railway corporations to satisfy mechanics' liens, as to 
 override the express statutory provisions for the enforce- 
 ment of executions against municipalities, or the well 
 
 
The Mechanics' Lien Act of ONTARIO. 
 
 33 
 
 settled practice of the Courts as regards the enforcing of 
 debts due by railway companies. The further question 
 may also arise, whether or not this Act must not be 
 limited, in any case, to such part of the land of a railway 
 company, or municipality, which is not actually required 
 for the uses of the railway, or municipality, and the sale of 
 which under execution will not interfere with the con- 
 venience and rights of the public. 
 
 This cecfion, it will be noticed, provides that any per- 
 son who does work or furnishes material for the purposes 
 enumerated " for any owner," shall have a lien therefor, 
 and, as we have seen, section 2, s.-s. 3, expressly declares 
 that municipal corporations, and railway companies, are 
 included in the term "owner"; but it must also be 
 remembered, as has already been pointed out, that under 
 the former Act, (R. S. O. (1887) c. 126), the word 
 " owner " included any " person," and under T//e Inter- 
 pretation Act, (R. S. O. (1887) c. i), s. 8, s.-s. 13, the word 
 " person " also included corporations ; so that municipal 
 corporations and railway companies were within the 
 definition of " owner " under the former Act, but still it 
 was held not to enable liens to be enforced against 
 them. Whether the explicit inclusion of them within the 
 term " owner " will make any difference in the con- 
 struction of the Act remains to be seen. This Act, in 
 any case, can hardly be said to come up to the require- 
 ments which Mr. Phillips lays down in the passage 
 above quoted as necessary, in order to override the 
 ordinary law governing the recovery of debts against 
 municipal, and railway, corporations. 
 
 With regard to railways under the control of the 
 
 Section 4. 
 
 !!.♦ 
 
 %\ 
 
 l» 
 

 34 
 
 Section 4. 
 
 The Mechanics' Lien A( t of ONTARIO. 
 
 Dominion of Canada, a further question may arise as to 
 how far the Legislature of Ontario has power to subject 
 their property to mechanics' liens : see post^ section 7, 
 (i), note ((•). 
 
 Lien-holder In order to entitle a person to a lien under the Act, 
 
 must hf 
 
 c.niiioytii by it is absolutcW necessary that he should have been em- 
 
 >'.i.inf one hiiv- , , ■ \ r • i /• 
 
 inK an interest ployed to do the work, or furnish the materials, for 
 
 in thelanil. ,:.,,. ,. / l ■ J 
 
 which he claims a lien, by some person having either an 
 interest in the land on which the lien is claimed, or an 
 interest direct, or indirect, in a contract made with a 
 person 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 of lien under the Act : 
 see strfioii 2, note (c), a/i/i; p. 7. 
 
 A question may arise whether the lien attaches from 
 the date of the employment, or from the date of the 
 actual commencement of some part of the work, or fur- 
 nishing some part of the materials. ]iut it would seem 
 clear that a lien does not arise merely by contract to do 
 the work, and that, on the contrary, there can be no 
 lien until the work is actually commenced, or the materials 
 are begun to b- furnished. The commencement of the 
 lien would, therefore, appear to be coincident with the 
 commencement of the work, or the furnishing of the 
 materials, in respect of which it is claimed. The 
 amount of the lien depends, it is true, on the amount 
 due from the " owner " to the " contractor " in respect 
 of the work and materials actually done and furnished ; 
 but though this may vary from day to day as the per- 
 formance of the contract progresses, yet, on the com- 
 
 From what 
 date lien 
 jittaches. 
 
 C'omnience- 
 meiit of w<>rl< 
 how far 
 essential 
 
The Mechanics' Likn Act oi ONTARIO. 
 
 .?5 
 
 pletion of the contract, the lien-holder would appear to ^''i^t'on^' 
 be entitled to treat his lien as one claim dating from the i.ien itiattH 
 
 e I I p \ < liai'k to coi;!- 
 
 commencement of the perlormance of the ontract, and imn.itTunt )f 
 
 not as a series of cumulative liens arising from day to day ^'"" 
 
 as the contract was proceeded with : see Hydraulic 
 
 Press Brick Co. v. liormans^ 19 Miss. App. 664 ; Great 
 
 Western Planing::; Mill Co. v. Bortnans, Ih. 671. But see 
 
 MiLau}:^hlin \. Green, 48 Miss. 175, where it was held 
 
 that the lien commences from the date of the contract. 
 
 Where a contractor is dismissed and the owner makes Dismissal of 
 
 "contractor," 
 
 an arrangement with a sub-contractor of the original ' 'K'lt of " sub- 
 
 ,,-.,, , , , contractor" 
 
 " contractor to finish the work ; as to all work done employed to 
 
 , , .... finish work. 
 
 after such arrangement the sub-contractor is entitled to 
 a lien as a " contractor " ; J\'trie v. Hunter, 2 O. R. 
 233; 10 App. R. 127. Such a contract is not a con- 
 tract to assume the debt, default or miscarriage of 
 anothei", and need not be in writing : /l>. 
 
 (li) "upon the erection? &c, and the lands occu- i<emovai or 
 
 . destruction of 
 
 pied thereby, or enjoyed therewith- It is held in building, mh 
 
 , ,T • , .V , , , ., ,. • , , effect oif, on 
 
 the United States that where a building is destroyed, Hen. 
 removed, or in any manner severed from the land, the 
 lien ceases to bind either the lard, or the building : 
 Coddini^ton v. Z)ry Oock Co., 31 N. J. L. 477 ; Presby- 
 terian Church V. Stettler, 26 Fenn. 246; Phillips, s. 12. 
 So, where, before completion, the building was destroyed 
 by fire, the builder has been held to have no lien : see 
 Tompkins v. Dudley, 25 N. Y. 272 ; but see contra, Free- 
 man V. Carson, 27 Minn. 516; McLaughlin v. Green, 
 48 Miss. 175 ; and see post, section 8 ; but a wrongful 
 severance of the building from the land, has been held 
 not to defeat the lien on the land : Steigleman v. 
 
 
 ill 
 
Ik- v— f 
 
 36 
 
 Section 4. 
 
 Transfer of 
 building to 
 another lot, 
 effect of. 
 
 Sale under 
 execution. 
 
 Lien is an 
 insurable 
 interest. 
 
 Amount for 
 which lien 
 may be 
 claimed. 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 McBridc, 17 111. 300. It is not probable, however, that 
 under this Act the destruction, or removal, of the build- 
 ing would, in any case, be held to defeat the mechanic's 
 lien on the land ; because by this Art the lien is not 
 given merely on the building, and on the land by infer- 
 ence, as a necessary adjunct, hut it is expressly given, 
 both on the land itself, as well as on the building : see 
 section 7(1), and section ^, /'ost, and notes 
 
 Where a building which is subject to a lien is subse- 
 quently transferred to another lot, the lien will not 
 attach upon such other lot : Undcrliill s. Comu'n, 15 111. 
 556 ; but where the building was sold by a person claim- 
 ing under the " owner " with notice of the lien, it was held 
 that the purchase money was subject to the lien : Ellctt 
 V. TjAv, 41 111. 449 ; Austin v. ]Vo/i/cr, 5 111. App. 300. 
 
 Where the land is sold under execution, or otherwise, 
 the lien is transferred to the proceeds : Pliillips, ss. 
 196-8. 
 
 The lien of the mechanic is held to be an insurable 
 interest : Fi-anklin Fire Ins. Co. v. Coates, 14 Md. 2S5 ; 
 and money received by reason of any insurance now 
 takes the place of the property destroyed, and is subject 
 to any liens it was subject to : post, s. 8. 
 
 The lien is also "a preferential claim" under T/ic 
 IVindin}:; Up Act (R. S. C c. 129), s. 62 ; AV Empire 
 Breiving e^* Maltin^^ Co , 8 Man. 424. 
 
 (/) "limited, however, in amount" The lien is 
 limited in amount to such sum as is justly due to the 
 person entitled to such lien, that is to say, the lien- 
 holder cannot recover more than that sum; and the 
 
The Mixhanics' Likn Act of ONTARIO. 
 
 37 
 
 concluding words of the stxfioH also limit the amount section ^. 
 recoverable by what is due and owing by the " owner," 
 except as subsequently provided by the Act. 'I'his 
 clause must therefore be read in connection] with sa- 
 tions 9 and lo : and from those sections it will appear, 
 that although the lien-holder cannot recover more, he 
 may not in all cases be entitled to recover against the 
 owner, or his land, as much as is justly due to him from 
 his primary debtor. Where the lien-holder is a " sub- 
 contractor," the amount for whicp he is entitled to 
 enforce his lien against the land, can — except in the case 
 of a lien for wages, and except in the case of payments 
 by tht; "owner" contrary to the provision of section { 1 1 ) — 
 never exceed the amount due by the " owner " to the 
 " contractor," no matter how much more may be due to 
 the lien-holder by the " contractor " or " sub-contractor,'' 
 through whom he claims: Bn[i;xs v. Aee, 27 Or. 464; 
 and where there are several " sub-contractors " of the 
 same "contractor " or " sub-contractor," each is entitled 
 to a />ro rata share of the amount which the "con. 
 tractor" or "sub-contractor" through whom they claim 
 is entitled lo receive from the "owner," (see section 13 
 (3) ; but see s. 14 (i), as to wages). For any excess due 
 to the lien-holders, over and above what they can 
 recover from the land, they are entitled, where suit is 
 brought, to judgment against their primary debtors : 
 section 47. 
 
 !j.' 
 
 '"£ 
 
 Ifl 
 
 
 I 
 
 the 
 
 (y) "except as herem pix)vi(led" The exceptions 
 referred to seem to be those made by sections 11, 14, 15. 
 
BOIH 
 
 hi ' 
 
 38 
 
 I 
 
 Section 5 
 
 Work done 
 or materials 
 furnished 
 on lands of 
 married 
 women. 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 5. Where work or service is done or ma- 
 terials are furnished upon or in respect of the 
 lands of any married woman {a) with the 
 privity and consent of her husband he shall 
 be conclusively presumed (b) to be acting as 
 well for himself and so as to bind his own 
 interest, and also as the agent of such mar- 
 ried woman for the purposes of this Act, 
 unless the person doing such work or service 
 or furnishing such materials shall have had 
 actual notice to the contrary before doing 
 such work or furnishing such materials. 59 
 V. c. 35. s. 3. 
 
 («) " lands of any married woman*" This strtw/r 
 is apparently introduced to overcome the danger which 
 mechanics and others formerly incurred in doing work, 
 and furnishing materials, for buildings on the lands of 
 married women, at the request of their husbands. As 
 already pointed out (a fife, p. 10) it had previously been 
 held that unless the husband was expressly authorized 
 to act as his wife's agent her interest might not be bound 
 by any lien under the Act. By this sec/ion the legal 
 presumption now in such a case is, that a husband pro- 
 curing work to be done, or materials furnished, in respect 
 of his wife's land, is acting as her agent, and her interest, 
 as well as his own, is bound, unless she is able to 
 establish actual notice to the person doing the work or 
 furnishing the material before the doing or furnishing 
 
m 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 thereof, that her husband was not authorized to act for 
 her. 
 
 Lands in which a married woman has merely an 
 inchoate right of dower, would not appear to be the 
 lands of the married woman, within this section : see 
 supra, p. 8, 
 
 (J>) " conclusively presumed*" The effect of these 
 words is to preclude a married woman from showing 
 that her husband was not her agent, unless she can also 
 prove that the person claiming the lien, by virtue of her 
 husband's order, had also actual notice, before doing 
 the work or furnishing the materials for which the lien 
 is claimed, that he was not her agent. 
 
 39 
 
 Section 5. 
 
 K 
 
 M 
 
 ion 6. 
 
 Hpn t-"ontracts not 
 "^'' to deprive 
 
 ot hen 
 
 6. No agreement (a) shall be held to ^^""^ 
 deprive anyone otherwise entitled to a 
 under this Act, and not a party to the agree- *^"- ^*"^ 
 ment (b), of the benefit of the lien, but the 
 lien shall attach, notwithstanding such agree- 
 ment. 59 V. c, 
 
 5, s. 4. 
 
 (<») " No afff eement«" The object of this secfio/i isARreement 
 
 ' ' ™ •' waive Iieii, 
 
 to prevent contractors, or sub-coiitractors, from entering effect of. 
 into agreements which shall deprive their sub-contractors 
 of the right of lien. Under this sectio?i, although a 
 contractor might contract wi^h the owner not to register, 
 or claim, any mechanic's lien, yet, notwithstanding such 
 an agreement, any person who might enter into a sub- 
 contract, with such contractor to perform any part of the 
 
 to 
 
 ' !; 
 
 
 ll 
 
40 
 
 Ihe Mechanics' Lien Act of ONTARIO. 
 
 Section 6. contract, would be entitled to claim a lien.* Although 
 no agreement can deprive any but the party to it of the 
 right to a lien, yet it is possible that an agreement might 
 be made putting an end to the contract, or forfeiting the 
 price payable thereunder, if any mechanic's lien should 
 be registered by the contractor, or any sub-contractor 
 under him, and inasmuch as the amount for which a 
 subcontractor is entitled to a lien cannot ordinarily 
 exceed what is due by the owner to the contractor under 
 whom such sub contractor directly or indirectly claims, 
 {see/>os/, sections 9, 10), it is possible that the lien of the 
 latter might be defeated notwithstanding this section, un- 
 less the agreement should be voidable under 5. 14 (s)/>ost. 
 
 By section 3, su/>ra p. 17, certain contractors, or sub- 
 contractors whose wages are less than $3 a day, are 
 absolutely debarrred from making any agreement to 
 deprive themselves of the benefit of the Act. 
 
 Agreement to (^) « ^q^ j^ party to thc agfcemcnt." It would seem 
 does not bind probable that all persons actually repiesenting the estate 
 
 persons not ^ "^ ^ r o 
 
 parties. of a pcrson who has contracted to waive a right to a 
 
 mechanic's lien, are bound by such an agreement though 
 not actual parties to it ; e.^., the personal representative 
 of a deceased contractor, or sub-contractor, who has 
 , made such an agreement, or his assignee would probably 
 
 be held to be bound by the agreement, because such 
 persons only take such right of lien, if any, as the 
 deceased person, or assignor, as the case may be, had 
 at the time of his death, or assignment. At the same 
 
 • A similar provision in a statute of the State of Pennsylvania was 
 held to be unconstitutional as being an interference with the riglits 
 of contract: Watergy. Wo(^, 162 Penn. 153, but no restrictions of tliat 
 kind affect the legislative power of the Legislature of Ontario 
 in such matters. 
 
 I 
 
The Mechanics' Lien Act of ONTARIO. 
 
 4«- 
 
 Section 6. 
 
 Section 7. 
 
 i 
 
 Property upon 
 which lien 
 shall attach. 
 
 time it may be argued that but for the agreement they 
 would have been entitled to a lien, and are, therefore, 
 literally within the terms of this section. But for the 
 purposes of the construction of this section, the personal 
 representatives, or assignee, would probably be deemed 
 in law to be parties to the agreement, by reason of their 
 privity of title. 
 
 7. — (i) The lien {a) shall attach upon the 
 estate or interest (&)of the owner as defined by 
 this Act in the erection, building, railway (c), 
 land, wharf, pier, bulkhead, bridge, trestle- 
 work, vault, mine, well, excavation, fence^ 
 sidewalk, paving, fountain, fishpond, drain^ 
 sewer, aqueduct, roadbed, way, fruit and or- 
 namental trees and the appurtances thereto, 
 upon or in respect of which the work or ser- 
 vice is performed {d), or the materials placed 
 or furnished to be used, and the lands occu- 
 pied thereby or enjoyed therewith (e). 
 
 (2) In cases where the estate or interest ^.h^'"«^''.**t« 
 
 V / charged is 
 
 charged by the lien is leasehold the fee '"^""^''''*- 
 simple (/ ) may also, with the consent of the 
 owner thereof, be subject to the said lien, 
 provided such consent is testified by the sig- 
 nature of such owner {g) upon the claim of 
 lien at the time of the registering thereof 
 and duly verified. 
 
 IN 
 
 H 
 
 '"'ft 
 
 "I 
 
 t 
 
 f \ 
 
42 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 7. 
 
 ; 
 
 (3) In case the land upon or in respect of 
 Prior which any work, or service is performed, or 
 
 inortgiige. ■' 1 
 
 upon or in respect of which materials are 
 placed (h) or furnished to be used, is incum- 
 bered by a prior mortgage {i) or other charge, 
 and the selling value of the land is increased 
 by the work or service, or by the furnishing 
 or placing of the materials, the lien under 
 this Act shall be entitled to rank upon such 
 increased value (j) in priority to the mortgage 
 or other charge. 59 V. c. 35, s. 6 (1-3). 
 
 Sub-contrac- («) ** Thc Ucn." This includcs not Only the licns of 
 to'ileifonfandihose who Contract directly with the " owner," but also 
 liens of subcontractors, between whom and the "owner " 
 there is no privity of contract. The effect of the Act 
 appears to be, to make each sub-contractor an assignee 
 />ro tanto of the original contractor through whom he 
 claims. 
 
 Estate and (''') ** «pon thc estatc Of intcfcst." The lien attaches 
 
 b"yh>n* ''*'""'' not absolutely against the land itself, but only against 
 such estate and interest as the "owner," — that is, the 
 person for whom, directly or indirectly, the work is done 
 or materials furnished, or any person claiming under him 
 whose rights are acquired after the lien has attached, — 
 has in the land : see section 2, notes {c\ {^) ; Phillips^ s. 72 ; 
 and it has been held in the United States that it is only 
 such estate or interest as the " owner " has at the time 
 the lien attaches, which is bound by the lien ; and that 
 
The Mechanics' Lien Act of ONTARIO. 
 
 4.1 
 
 where a person having only a limited estate, such as a s^eetion 7. 
 lessee, enters into a contract whereby liens attach on his Estate 01 
 
 , . , ... r y r Mi interest sub- 
 
 interest, his subsequent acquisition of the fee will not sequentiv ac- 
 
 .... , 1 ,. 1 quired, how 
 
 subject the latter estate also to the hens so created : see far bomui i>y 
 Phillips^ s. 74 ; but see Gaule v. Bilyeau, 25 Penn. St. 
 521. In such a case there is said to be no estoppel to 
 prevent an " owner " from setting up the after acquired 
 estate, in opposition to liens created by him as lessee ; 
 this, of course, is assuming that the landlord's interest 
 has not been expressly bound : see above section 7, (2). 
 It seems probable, however, that under this Act it 
 would be held that the lien binds not only the estate or 
 interest the •' owner " may have at the time the lien 
 attaches, but also any other substantial estate or interest 
 which he may acquire in the land so long as the lien 
 remains in force : see Gaskill v. Trainer, 3 Cal. 334. 
 Where the estate of an equitable owner of the fee was 
 subject to liens, and he subsequently got in the legal 
 estate, both estates were held to be bound : Rollin v. 
 Cross, 45 N. Y. 766; McGraiv v. Godfrey, 16 Abb. Pr. 
 N. S. (N. Y.) ^"jS. And an owner who becomes the ^'urchase of 
 
 . . land at tax 
 
 purchaser of his own estate, which is subject to liens, at sale by 
 a sale for taxes, has been held to buy for the benefit ofetTectof! 
 all parties interested, and has not been permitted to set 
 up the tax title in opposition to the liens ; McLaxt^hlin 
 v. Green, 48 Miss. 175; and he cannot defeat a lien by 
 procuring the legal title to be conveyed to his wife : 
 Hooker v. McGlone, 42 Conn. 95. 
 
 Where the seizin of the owner is a mere instantaneous instantaneous 
 seizin, it has been held that the lien does not attach *'*''■ 
 as against the estate of his grantee. Thus, where a con- 
 
 
 
 \ 
 
p 
 
 iii 
 
 is I !! . I 
 
 111 ^ 
 
 II |i 
 
 44 
 
 Sc'tion 7. 
 
 Right of pre- 
 emption. 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 tract was made with one not the owner of the land at 
 the time, but who subsequently procured a deed of it, 
 and simultaneously gave back a mortgage for the 
 purchase money, the work being then in progress, it was 
 held that the lien did not bind the interest of the mort- 
 gagee, for work done either before, or after, the deed : 
 Perkins V. Davis, 120 Mass. 408; Ettrid^e v. Bassett, 
 136 Mass. 314; see also Thaxter\. JFii/iams, 31 Mass. 
 49 ; Hayes V. Fessenden, 106 Mass. 228 ; Guy v. Carriere, 
 5 Cal. 511 ; Phillips, s. 246 ; but sqq post, section 13 (2). 
 
 A right of preemption may be bound by a lien : 
 
 Turney v. Saunders, 5 111. 527; Blight v. Pay, 23 O. R. 
 
 by surrender*' 4^5- ^ lessec whose interest is subject to a lien, can- 
 
 lierf'^"'''^^^'^''^"^^ defeat the lien by a voluntary surrender of the term, 
 
 and, if the lessor do not discharge the lien, the lessee's 
 
 interest may be sold under a judgment to enforce the 
 
 lien, and the lessor has been held to be bound to accept 
 
 another tenant : Dobschuetz v. Holliday, 82 111. 371. 
 
 Only interest ^ jg only the estate or interest actually affected by the 
 
 bound by hen ■' ' ' 
 
 is saleable. lien, which Can be sold for the satisfaction of the lien : 
 Graham v. Williams, 9 O. R, 458 ; Phillips, s. 186, et 
 seq. ; Puggles v. Blank, 15 111. App. 436. 
 
 True owner fhe tfyg owner of the estate may be bound by 
 
 when estopped ^ ' 
 
 from denying estoppcl, when he Stands by, and allows another to 
 
 title in third rr > ii 
 
 party. assumc to deal as the owner of the land : see Phillips, 
 
 s. 75 ; Higgins v. Ferguson, 14 111. 269 ; Donaldson v. 
 Holmes, 23 111. 85 ; and see Blight v. Ray, 23 O. R. 
 
 415- 
 fffnlns^ub^'ect '^^^ ^'^" '^ ^" interest in land, and a bequest to pay 
 to Mortmain oflf a mechanic's lien on a church is therefore subject to 
 
 the Statute of Mortmain : Stewart v. Gesner, 29 Gr. 
 
 329- 
 
The Mechanics' Lien Act of ONTARIO. 
 
 45 
 
 (c) " Railway." The solution of the very difificult Section 7. 
 question which must inevitably arise, whether the Onta- How far Act 
 
 T • t 1 II II binding on 
 
 no Legislature has any power at all to pass such a law Railways. 
 as the present one so as to bind the property of railways 
 which are not within its legislative control, must rest 
 with the Courts of Law. It has been held that the B. 
 C. Mechanics' Lien Act does not apply to such railways : 
 Larsen v. Nelson *>■ Fort S. Ry. 4 B. C. R., 151. The 
 B. N. A. Act, s. 92, s.-s. 10, a, and r, expressly negative 
 the power of the Provincial Legislature to make laws 
 " in relation io,^' inter alia, railways connecting adjoining 
 Provinces, or extending beyond the limits of the Prov- 
 ince, — or such works as although wholly situate within 
 the Province, are before or after execution declared by 
 the Parliament of Canada to be for the general advan- 
 tage of Canada, or for the advantage of two or more of 
 the Provinces. By B. N. A. Act, s. 92, sub-sect. 13, the 
 Provincial Legislature, however, has power to make laws 
 in relation to property and civil rights in the Province- 
 This statute may be said to be an Act "in relation to' 
 railways, and also an Act in regard to property and civi 
 rights; while the sub-sect. 13, above referred to, ap- 
 pears to authorize the Legislature to pass the Act, sub- 
 sect. 10, a, c, appears to forbid it, in so far as it is in re 
 lation to railways under Dominion control. How then 
 is this apparent conflict to be reconciled ? A somewhat 
 similar question arose in Tennantv. Union Ban/: {iSg4.) 
 A. C. 31 ; 69 L. T. 774, and it was there held by the 
 Privy Council, that where the Dominion has an exclu- 
 sive right of legislation as to a particular subject-matter 
 (in that case " Banking "), the right of a Province to 
 legislate as regards property and civil rights does not 
 
 ii 
 
 "1 
 
■.-^^^ 
 
 46 
 
 section 7. 
 
 I !?? 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 enable it to legislate so as to affect, override, or supple- 
 ment, the provisions of the Dominion Act respecting 
 that particular subject-matter, or to affect the civil rights 
 of property therein involved; and see also Cussing 
 V. Diipuy, 5 App. Cas., 409 ; Cote v. U'ti/son, 2 
 Cart. 343 ; Leprohon v Ottatva, i Cart. 592 ; Evans 
 v. Hudon, 2 Cart. 346. These decisions of the Privy 
 Council seem rather to lead to the conclusion that the 
 Provincial power of legislation regarding property and 
 civil rights within the Province will not enable a Prov- 
 ince to legislate so as to bind even property and civil 
 rights in respect of any subject-matter which is expressly 
 excluded from its legislative control, (see concluding 
 clause of s. 91, B. N. A. Act), and therefore tliat the 
 present Act cannot affect railways under Dominion con- 
 trol. It must be confessed it is difficult to draw any 
 certain conclusion from the decided cases bearing on 
 the subject. The Ontario Statute 44 Vict. c. 22 (O.) 
 providing for the packing of railway frogs, though by 
 section 2 professing to "apply to every railway and Railway 
 Company in respect of which the Legislature of Ontario 
 has authority to enact such provision respectively," was 
 held, nevertheless, to apply only to railways under the 
 control of the Legislature of Ontario : Monkhouse v. 
 Grand Trunk Ry., 8 A. R. 637 ; 3 Cart. 289. 
 
 On the other hand there is the decision of the Supreme 
 Court in Canada Southern v. Jackson, 17 S. C. R. 316, 
 that the Ontario Statute " The Workmen's Compensation 
 for Injuries Act,'' does apply to Dominion Railways. 
 
 In the course of the argument of the case of the 
 -Attorney-General of Ontario v. Attorney-General of Can- 
 
The Mechanics' Lien Act of ONTARIO. 
 
 47 
 
 (Ida (1894) A. C. 189, Lord Watson remarked: "The Section 7. 
 view I have rather taken of it is this, that within the 
 area given to the Dominion Parhament by section 91, 
 there is a legislative area part of which is their own 
 exclusively, but that area may include in addition cer- 
 tain ancillary provisions which touch and trench upon 
 the Provincial law, and as long as there are enactments 
 in that part of the area it would exclude the right of the 
 Province to legislate to the effect of destroying — dero- 
 gating from — their enactments. It would take away 
 their power as effectually as though it belonged to the 
 primary area. If there had been no legislation then my 
 impression was that, within what I call the secondary 
 area, the Provincial Parliaments are free to legislate." 
 
 If this is to be the test for determining the question, 
 then it may be said that in the absence of any Dom- 
 inion Statute dealing with the question of the recovery 
 of debts due by railway companies under the Dominion 
 control, this enactment is valid and binding on such 
 railways ; but liable at any time to be superseded by 
 any Dominion legislation affecting the question. 
 
 The question whether in any case liens can be en- 
 forced as against railways in active operation, so as to 
 interfere with the use of their land actually required for 
 the working of the railway, is discussed in note to section 
 4, ante, p. 30. 
 
 {d) " upon or in respect of which the work or br^ds7aifd on 
 service is performed." The lien will not extend to anj ^^^l^ ^'^"' 
 land or building except that upon, or in respect of 
 which, the work is done or materials furnished. It has 
 
 hi 
 
 i' 
 
 V; 
 
 
48 
 
 Tmk Mixiianh^' I.iin Acr ci ONTARIO. 
 
 fi 
 
 .sr.tion - hccn hold that thciv «aii ho no lirn on n[\\v\ Iniul or 
 huilding. Un the work ,in<l liil>oiir, oi inalfiials, cxpondrd 
 in HMUoving a htiiUling : /'r,r\{' v. \ri?/,V. i.?i Mass. ^.?i), 
 
 roiuvii.i to Whrn a nun-lianir contracts with one prison lot the 
 
 n\iiiil Mcp.'ii all' ' 
 
 iiuii.iinnson oioclion ol" two si'paiatr hiiilihnt's undti two distinct 
 
 ilistiTU't pur "^ 
 
 cols, iiuvt ot contracts, each parted ol land is only liahlc tor tlu> hnild 
 inu cr<.( ted thereon, and the mechanic is not enlilhd to 
 register a »Iaiin against hiMh parcels lor one gioss sum 
 in respect o\' the two ; if he include hoth parcels in one 
 claim he must at least show how nuich is claimed against 
 each parcel seinirately : {'lorur v. /•/vv,/;/, /<•, a (\\. i\>,\ 
 and see .S'//(?.v v. Th.^mf'soti, 105 Mass. ,VJ5 ; (.f/iifidii \. 
 linri'i'ur, \ : V. K. 35.1. 
 
 c.Miiiiut to In the I'niteil States it has heiMi held, that where 
 
 lutilil (ov one 
 
 piioi' .-„ i.uui lalmur is performed, and materials are lurnished, on the 
 
 of ^lilYovoiil , , . , ^v , . , 
 
 owtiots land ol dmerenl iiwncrs, imder an enlne contract, wi'h 
 
 out stating separate prices, there can he no lien <"' 
 part of the land for any part of the price R,it/. ♦, 
 //,ji /.';•</, S; Mass. .jof) ; and see C/ii/<h v. .///., •'?, 
 
 WorUiioiio 12S Mass. 108. So .dso It has heen held that iheri is 
 
 jiiUtlv oil latul ■• , 
 
 boioiiRiiiif to no hen where the labour in respect of which it was 
 
 " owitof ,' aiul ... , 1 1 1 • 1 1 
 
 ixintiv on hitui claimed was perlornied partly on land which the em- 
 
 to wliich ho 1 • 1 1 1 1 
 
 has no title, ployor owuod, aiul partly upon land to which he hati no 
 title : Stevens v. Lineoln^ 1 14 Mass. 476 ; MeGuinness v. 
 Boyle, \2T, Mass. 570; and the wording of this Act 
 would appear to justify a similar construction, Inas- 
 much as the lien is to be a charge on the interest of the 
 " owner " in the building, erection or mine upon or in 
 respect of ivhich the 7Vork is done or the materials or 
 machinery placed or furnished and the land occupied 
 thereby or enjoyed therewith : upon any other construc- 
 
 f 
 
Wf 
 
 Viw. Mi.( HANK •.' I UN Aci <ii ONTARIO. 49 
 
 tmii, lilt lien Im tlif tvnrk iloiic on lite liiiul ihr i in s.hu.i. ;. 
 ployct (lid nol own, woultl lie thrown on the liitui wht'h 
 he (lid own. Itut npon whi< h Ihr woik hud mil linn 
 donr, which iippcars lo lir iin\v;ur;nil('(i Ity llic tiims 
 ol ihis \i, //,>>/. 
 
 {<•) "y,'.\d the lands occupied thereby 01 enjoyed i'^;,';;"!,'/!,!:;;'*' 
 therewith ' This imludcs Ihni cnIciiI ol f^roiind, ;ind 
 no nion', which, under all Ihc cirniinslanccs, is mmsoii- 
 nhly piopri and luccssaiy lor the cnjoyinnil ol Ihc 
 parlitnlar hinlding. It is said that in cilics thr IniiidiiH', 
 lot atta< hcd to the house is initpiestionaMy intended, 
 and that in eonnlry villages, though lots are generally 
 larger, yet they are eipially noeossary for the enjoyiuenl 
 ol the various slfuetures erected upon iheni. and that an 
 acre in such villages is nol uiueasonahle : see /'///////*, 
 s. ioo. And where two adjacent town lots arc used 
 togelhcr, without an actual division lietwcen them, as a 
 mill lot, a part of the huildings and machinery lieiii)/ 
 upon one, and a part upon the other, the lien extends to 
 holh lots ; //'. Where the huilding in res|)ect of which 
 > lien exists is removed to another lot, the lit^i will not 
 ■ittaeh upon such other lot; Vndirhilt v. Convin, 15 
 III. 556. 
 
 (/) "the fee simple" The provisions of this wv7/W//<'t'HrKtnn 
 must be strictly complied with, wherever it is sought to 't"«'*"' 
 charge the fee with a lien arising upon a contract made 
 with a lessee. The mere fact that the lessee may have 
 a right of purchasing the fee, and that the landlord 
 knows that work is being done, or materials furnished, 
 upon the demised premises, at the reijuest of the lessee, 
 
 hi 
 
 1^ 
 
 I* 
 
 ^-ii 
 
50 
 
 TnK Mix HAMt s" l,n.>; .\i i 
 
 ONTARIO. 
 
 Section 
 
 Signatmc ot 
 lessor, to 
 f'a'ri for lien 
 
 Re^istiatii II 
 of heti. 
 
 Coiriivif nce- 
 nient of lun 
 agair.st 
 lessor's 
 lTittrt".t. 
 
 Incorporation 
 of work or 
 tiiaierials, 
 essential to 
 vivt rii»ht as 
 aicainst prior 
 tr.o; tgagee 
 
 does not make the l;uidlord's estate liiilit(> id lie charged 
 even though in certain nrntingftici'^'-- the latter may 
 possibly become entitled to the he.ietit of erections of 
 improvements so made . see (jrahom v. ll'iV/ififrrs, R 
 O. R. 478; <; O, R 45R ; FAy/^ v, yefrey, 10 Man. 
 
 U'^ "signature ot such owner" The signatnre of 
 the landlord upon the claim of lien registered, is essen- 
 tial to a 1 Imrge npon liis estate, foi ;niy liahilily upon a 
 contract made with his lessee. It will he seen hy strfion 
 ?;^ that it is not necessary in e\ery case to register a lien. 
 \\"here a suit is lirtnight within the period presi rihed hy 
 that s<rfi<^!!, and a certificate of lis pouietis is reg* ttred, 
 the previous registration ot tln^ lien is dispensed with 
 altOj.ethci ; Init whenever a landlord's estate is sought 
 to hi' charged under this section^ it is essential that the lien 
 should be registered Ijefore suit. Vhe statnic is not 
 very clear, whether tlv^ lien against the landlord's estate 
 is to rank as from the date when the lien attached 
 against the lessee's interest, or whether it dates only 
 from the time of the registration of the claim. As 
 between the lien holder, and a purchaser or mortgagee 
 for value from the landlord without notice of lh(> lien, 
 e(]uity would seem to require that the lien shoiiUI only 
 date from the time of registration of the claim, bearing 
 the landhird's signature as re(]uired bv this srcfioti. 
 
 {h) "materials are placed Although, as we liave 
 seen, a lien may in some cases exist for materials 
 furnished "to be used '' in the construction or repair of 
 a buildine, although such materials may not be actually 
 incorporated : see <int<\ ]v 27, note (e), yet under this 
 
 ii 
 
Thk Mf.(MAni<'=' Kikn A( r n\ ONTARIO. 
 
 51 
 
 i 
 
 ^ectioti^ it is clear tlmt thftc iiitist lie nti nrtiial iiicci '^'■'i'"" 7 
 
 poration <i| t!u> material, in order to give :i lien linldei 
 
 any prior A\\\w\ a-^ against a [)rior mortgagee, hecanso it 
 
 is of the very essence of this provision in favonr of the 
 
 lien holder, that the value of the land is increased hy the 
 
 work done, and materials furnished, in respect of which 
 
 the lien is rlamied. 
 
 (/) prior mortgage In R. S. (), (i'^77) c 120, 
 
 I'liol llHIlt- 
 
 s. 7, fiom which this ^uhsecliou was originally derived, "f 
 the words were "encimdiered by a mortgage or other 
 < harge existing, or < reated. before the commencement 
 of the work or the placing ol tlu^ materials or machinery 
 upon tlie laml " ; the wfirds "prior mortgage" are no 
 doiiht intended to he e(|iiivalent for the words used in 
 the Revised Statutes, 1S77. The expression "prior 
 mortgage,' seems, however, to open the door to a con- 
 flict of opinion, as to what ate \u he regarded as prior 
 mortgages. A i|ues|ioii mav arise whether ;i mortgage 
 made after a contract has been entered into, but before 
 there has been any part performance of if, is, or is fiot, a 
 " prior mortgage "" : a question which could not have 
 arisen under the wording of the origical section : see 
 section 3, s. s. y ami note {^) nnic p. 12. After the con 
 tract, and before commencement of its perff)rmance, the 
 contr.''.cior has sueh an inchoate right of lien that he is 
 a\itiiori7ed to register a claim Ihetefor : see urfinti 7?, 
 which on the subse(]uent performance of the work will 
 be cotnplete. 
 
 As against a registered lien, a mortgage or other 
 charge, in order to have priority over the lien, must 
 have been registered previously to the lien, or the lien- 
 
 |ji.| I 
 
 ||;, 
 
52 
 
 The Mfxhanics' Lien Act ok ONTARIO. 
 
 Section 7 holder must have had actual notice of such mortgage 
 before acquiring his lien,* otherwise the registered lien- 
 holder would be entitled to priority, to the full amount 
 of his lien ; see The Registry Act, s. 87, and see post, 
 section 21. When a mortgage is given to secure further 
 advances, and the mortgagee makes further advances 
 subsequently to the acquisition of a right of lien under 
 this Act, but before such lien has been registered, and 
 before the mortgagee has actual notice of the lien, the 
 mortgagee is entitled to priority over the lien-holder in 
 respect to such further advances : Richards v. Chamber- 
 lain, 25 Gr. 402 ; Re Craig, 3 C. L. T. 401 ; Cooh v. 
 Belshaw, 23 O. R. 545 ; Pierce v. Canada Pertnanent 
 Loan c^■ Saving Co., 25 O. R. 671 ; and see R. S. O.,. 
 c. 136, s. 99. 
 
 When a mortgage subsequent to a lien in point of 
 date acquires priority over the lien by virtue of prior 
 registration, that is not " a prior mortgage " within the 
 meaning of this section : Cook v. Belshaiv, supra : and 
 see 26 C. L. J. 578, where the point is discussed. 
 
 Where a mortgagee claiming under a mortgage which 
 is subsequent to a lien applies part of the advance for 
 which the mortgage is given, in paying off a mortgage 
 which was prior to the lien, he is entitled to 
 stand in the position of the prior mortgagee for the 
 money so paid to him : see Loche v. Locke, 32 C. L. J, 332. 
 
 •It may be a question whether actual notice at any time before 
 registering the lien would not be sufficient to postpone the lien- 
 holder: see R. S. O. c 136, s. 87 ; lioso v. I'eterkin, 13 S. C. R. 710, per 
 Strong, J.; it was held that it would in We«i v. Sinclair, 28 C. L. J. 
 119. 
 
'r i^ 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 53 
 
 U ) " upon such increased value." It will be observed ^ecUon 7. 
 that the lien-holder is not entitled to priority for the full Extent of Hen 
 
 1 r 1 • /. 1 1 • *" asainst 
 
 value of the improvements effected by him, or by means prior mort. 
 of his labour or materials, bnt merely in respect of the 
 amount, if any, by which the selling value of the property 
 has been increased by such improvements. This must 
 be largely a question of opinion, and the onus will lie 
 upon the lien-holder claiming priority to a prior mort- 
 gagee, to establish by what amount the selling value has 
 been increased by the improvements in respect of which 
 he claims a lien. Where improvements have been made 
 
 "^ . Lien-holders 
 
 by several parties each is entitled to share pro rata m to share pro 
 
 rata, as 
 
 the increased selling value, in the proportion which the regards prior 
 
 value of the work done, or materials furnished by him, 
 
 bears to the value of the whole improvements : Brough- 
 
 ton V. Smallpiece, 25 Gr. 290 ; S. C before the Master, 7 
 
 P. R. 270 ; and see Bank of Montreal v. Haffner, 3 
 
 O. R. 183. In Broughton v. Smallpiece it was held that 
 
 where the properly is insufficient for the payment of the 
 
 mortgage debt, the lien-holder is bound to credit as 
 
 against the sum in respect of which he is entitled to 
 
 priority, all payments made on account of his claim ; 
 
 and that all payments made by the " owner " in reduc- Payments by 
 
 ■ c ■ /• 1 1 • /■!■ L ij 11 L "owner," how 
 
 tion, or satisfaction, of the claims of lien-holders, will be to be credited 
 deemed to be made in ease of the mortgagee. Under mortgagee 
 the ordinary rule, in regard to the application of pay- holders, 
 ments, the creditor, in the absence of an express appro- 
 priation by the debtor to the contrary, would be entitled 
 to apply money received from the debtor, in discharge 
 of that claim for which he holds the least security : see 
 Artnour v. CarrutherSy 4 U. C. L. J. 7io ; Fraser v. 
 Locie, 10 (Ir. 207 ; and it might, with some reason, be 
 
 tSfJ 
 
 
54 
 
 ill 
 
 Section 7. 
 
 i.il 
 
 fi;! 
 
 I i' ii 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 urged that a lien-holder, receiving payments from his 
 debtor generally on account, is entitled to apply them 
 first in discharge of that part of his claim which is 
 practically unsecured ; and when such appropriation by 
 the lien-holder has been actually made, it is possible the 
 rule laid down in Broughton v. Smallpiece would not 
 apply. 
 
 Unless the work done or materials furnished have 
 actually increased the selling value, there can be no lien 
 as against a prior mortgage under this section. Where, 
 therefore, a scheme for the improvement of mortgaged 
 property is commenced, but is not fully carried out ; 
 unless the work actually done and materials provided 
 have actually increased the selling value of the property, 
 the lien cannot take priority over the mortgage, notwith- 
 standing that, without default on the lien-holder's part, 
 the whole scheme, which would have increased the sell- 
 ing value if completed, has not been carried out : 
 Kennedy v. Haddon, 19 O. R. 240. 
 
 It would seem that although the increased "selling 
 value " may be approximately ascertained without a sale 
 by consent of the parties, yet until a sale has actually 
 taken place, it cannot really be definitely fixed. In a 
 case which arose under the former Act in force in 1895, 
 the selling valiie was fixed by "the Master, and then, after 
 it had been so fixed, and pending the proceedings in the 
 Master's Office, the premises were destroyed by fire, and 
 the Court held that any lien which the lien-holder might 
 have had in respect of such increased selling value was 
 at an end, and under that Act the lien-holder had no 
 claim against any insurance money received by the mort- 
 
 
^R«! 
 
 ;n 
 
 g 
 
 o 
 
 The Mechanics' Lien Act of ONTARIO. 55 
 
 gagee in respect of the building so destroyed : Patrick ^'■"'-'"" ?■ 
 V. Wallwurtie, 27 O. R. 221 ; but under the present Act 
 the insurance money is to stand in the place of a 
 building so destroyed : see post, section 8. 
 
 Where relief is claimed against a mortgagee under this to'^em^rice Heii 
 section, the mortgagee is a necessary party to the action, prio?",\"nt- 
 and the statement of claim should distinctly allege that s^see. 
 the mortgage is prior to the lien. Where a bill of com- 
 plaint under the former practice in Chancery stated the 
 date of the mortgage as " on or about," etc , it was held 
 insufificient to found a decree against the mortgagees, 
 notwithstanding that they had sufTered the bill to be 
 taken pro confesso against them : Douglas v. Chamber- 
 lain, 25 Clr. 288, and see Richards v. Chamberlain, lb. 
 402. The action against the mortgagee must be com- Time limited 
 
 ^ ^ ° ° for bring;ing 
 
 menced within the period limited by sections ix, 24, 2^. action ugiunst 
 Thus, where a lien-holder had within the proper time R;iKee. 
 commenced proceedings against the " owner " and had 
 obtained a decree against him to enforce the lien, it was 
 held he could not afterwards file another bill, to obtain 
 relief as against a prior mortgagee under this section, 
 after the time limited by sections 23-25 for bringing a 
 suit had expired : Bank of Montreal v. Haffner, 29 fir. 
 319; 10 A. R. 592; S. C. sub nom. Bank of Montreal 
 V. Worswick, Cass. Dig. 289 ; and neither, it would 
 appear, could mortgagees be made parties by amend- 
 ment after the time has elapsed for commencing a suit 
 under sections 23-25, even though the action might 
 originally have been commenced in time : see Shaiv v. 
 Cunningham, 12 Gr. 101 ; McDonald \\ J Fright, 14 Or. 
 284; but see Cole v. Ifa//, 12 P. R. 584 ; 13 P. R. 100. 
 
 i 
 
 
' 
 
 
 56 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 7. \ landlord, who has leased with a right to the tenant 
 
 Landlord to becomc the purchaser, cannot be treated as a mort- 
 has°rtgh"of gagee under this section : Graham v. V/li'mms, 9 O. R. 
 aTJ??gagee.* 458; but see Blight V. Ray, 23 O. R. 415. Where 
 there is an actual agreement for the purchase, but no 
 conveyance has been made by the vendor, for the pur- 
 pose of this Act the purchaser is to be deemed a mort- 
 gagee and the purchaser a mortgagor : see post, section 
 13 s.-s. 2 and notes. 
 
 Under 56 Vict. c. 24, s. 9, a mortgagee might have 
 been restrained from proceeding to sell or foreclose, 
 pending a suit to enforce a mechanic's lien against the 
 mortgaged property, on being served with notice, but 
 that Act has been repealed : see 59 Vict c. 35 s. 52, 
 and that particular provision of it has not been embodied 
 in this Act. 
 
 Section 8. g^ Whcrc any of the property upon which 
 onnsu"an?e ^ ''^" '^ given by this Act is vvholly or partly 
 destroyed by fire [a), any money received by 
 reason of any insurance thereon by an owner 
 or prior mortgagee or chargee shall take the 
 place of the property so destroyed, and shall 
 be subject to the claims of all persons for 
 liens to the same extent (5) as if such moneys 
 were realized by a sale of such property in an 
 action to enforce a lien. 59 V. c. 35, s. 7. 
 
 ((/) "destroyed by fire" The only loss here con- 
 templated is one arising from fire. Insurance money 
 
 msu 
 
 when lien 
 
 attaches. 
 
IM 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 57 
 
 received by reason of the destruction of the property ^ecUon i 
 by any other cause does not seem to be within 
 this section. 
 
 This section is new, and extends the right of lien to fire 
 insurance moneys, no matter, it would seem, by whom the 
 insurance may have been effected. Where the insurance 
 money has been received by a mortgagee, if his mortgage 
 is subsequent to the lien, the lien-holder would seem to be 
 entitled to a prior lien against the money. If, on the other 
 hand, it be received by a mortgagee who is prior within 
 the meaning of section 7, s.-s. 3, the right of the lien- 
 holder would then seem to depend on whether he can 
 establish in evidence that at the time of the fire the sell- 
 ing value of the property had been increased by the 
 improvements effected by the lien-holder for which the 
 lien is claimed ; and the lien-holder would appear to be 
 intended to have a prior claim to the mortgagee on 
 so much of the insurance money as should be equal to 
 such increased value, if any. 
 
 Prior to this section, in the event of the destruction 
 by fire of the buildings in respect of which a lien on 
 the increased selling value existed, the lien-holder 
 had no right to resort to the insurance money, and his 
 lien on the land was also defeated : Patrick v. IVal- 
 bourne, 27 O. R. 22. 
 
 {b) " to the same extent." The scope of the section 
 is to put the insurance money realized upon a destruc- 
 tion of the property by fire in the same position as pur- 
 chase money realized by a sale of the property. It must be 
 remembered, however, that in addition to the insurance 
 
 
 I. 'J; M 
 
 it \ 
 
58 
 
 The Mfxhanics' Lien Act of ONTARIO. 
 
 Section S. 
 
 money, the land itself will remain to be realized, and it 
 is probably not intended that the insurance money is to 
 stand as the whole value of the property subject to the 
 lien, but merely for that part of it which has been 
 destroyed, and a lien holder will not be precluded by 
 this section from enforcing his lien against the land as 
 well as the insurance money. 
 
 Section 9. 
 
 9. Save as herein provided [a] the lien 
 amounfof ^^^^^ "^t attach SO as to make the owner 
 ^'^" liable for a greater sum than the sum payable 
 
 by the owner to the contractor {h). 59 V. 
 
 c. 35, s. 8. 
 
 («) "Save as herein provided" See sections 11, 12, 
 ^r\d section 14, s.-ss. (2), (3), (4), post, and notes. 
 
 sub-contrac (<^) " oavablc bv the owner to the contractor" No 
 
 tors' hens can- r i i • 
 
 not exceed matter what may be the aggregate amount of the clamis 
 
 what is due by . ,, n , i . ,, i « i 
 
 "owner." to of a " Contractor and his " sub-contractors, they can- 
 
 *' contractor '' 
 
 not, in any event, (except in the case of liens for wages un- 
 der section 14(1); and except, perhaps, as regards the per- 
 centage required to be retained by the owner under section 
 (o (i) : see Russell \. French, 28 O. R., 215), be enforced 
 against the land, for any sum beyond what is due from 
 the "owner" to the "contractor," unless the "owner" 
 has made payments to the contractor in order to defeat 
 or impair the claim of the lien holders (see section 15), or 
 within the prescribed time has made payments exceed- 
 ing the prescribed percentage of the contract price (see 
 section 11), and even then only to the extent of the 
 sum improperly paid : Briggs v. Lee, 2 7 Gr. 464. 
 
f 
 
 1 
 
 The MixHANics' Lien Aci of ONTARIO. 
 
 Where the contractor's right to recover from the 
 owner is dependent on some condition which he is 
 unable to perform, the right of himself and his sub-con- 
 tractors to enforce liens mav be thereby defeated : see 
 ante, section 4, note [c\ p. 22. 
 
 59 
 
 Section r). 
 
 Si-vi'.on 10. 
 
 10. Save as herein provided («) where the 
 lien is claimed by any other person than the ^hen ciLim"ci 
 
 by some other 
 
 contractor, the amount which may be claimed t'lumcon 
 in respect thereof shall he limited to the '' "' 
 amount {b) owing to the contractor or sub- 
 contractor or other person for whom the work 
 or service has been done or the materials 
 have been placed or furnished. 59 \'. c. 35, 
 s. 9. 
 
 \a) "Save as herein provided" 
 II, 12, and 14. 
 
 See post, sections 
 
 (/') " limited to the amount" No matter what sum oiduiaiiiy the 
 
 claims ot sub- 
 may be the aggregate of the clamis of "contractor" and contractors 
 
 ,, , ,1 , 1. , against the 
 
 sub-contractors, they cannot ordinarily be enforced 'and. cannot 
 
 t'xcccci 
 
 against the land, for any sum beyond what is due from amount due by 
 
 the " owner " to the " contractor," — unless the " owner " "c<^uractor." 
 
 has made payments to the " contractor," in order to 
 
 defeat or impair the claim of other lien-holders : see 
 
 section 15), or within thirty days after the completion of 
 
 the work, in respect of which a lien exists, has made R-^'-eption to 
 
 rule. 
 
 payments exceeding the 80 or 85 per cent, of the price 
 of the work or material actually done or furnished 
 (see section i t ), and even then only to the extent of such 
 
 I ill. 
 
 i 
 
 '-'i 
 
6o 
 
 Thk Mechanrs I.ien Act ok ONTARIO. 
 
 I Irl 
 
 ill 
 
 stction lo. excess: Briggs v. Lee, 27 Or. 464. If no payment isi 
 under the contract, to be made to the contractor till the 
 work is completed by him, and it never is completed by 
 him, nothing will be due to him : Appleby v. Myers, L. 
 R. 2 C. P. 65 1 ; S/ur/<Hk v. /'<nve//, (Q, B. I )iv. Court, 30th 
 December, 1898), and consequently it would seem that in 
 such a case nothing could be recovered by any sub- 
 contractor under him, except those entitled to wages, 
 who notwithstanding the non-completion of the contract, 
 appear to be entitled to a lien for wages under section 14 
 (4). It has also been held that as regards the percentage 
 required to be retained by the owner, sub-contractors 
 generally, are entitled to enforce their liens notwith- 
 standing the contractor fails to complete his contract 
 and to earn the percentage retained: Russell v. French, 
 28 O. R. 215. 
 
 As to the effect of payments made under the contract 
 upon the right of lien : see section \ i . 
 
 The account cannot be taken of what is due to a 
 contractor for the purpose of enforcing the liens of sub- 
 contractors under him, unless the parties liable on the 
 contract are before the court : Wood v. Stringer, 20 O. 
 R. 148. 
 .Section, I. u^ — ^jj ifj ^\\ cases the person primarily 
 brdeducfed'** liable upon any contract (a) under or by vir- 
 byownerTo'^r tuc of whicH a Hen may arise under the pro- 
 visions of this Act shall, as the work is done 
 or materials are furnished under the contract, 
 deduct from any payments to be made by 
 him in respect of the contract, and retain for 
 
 1 t 
 
Thk Mk( hanks' \a\:n Ai r en ONTARIO. 
 
 f)i 
 
 a period of thirty days after the completion ^'^ 11'!!'. "' 
 or abandonment of the contract twenty per 
 cent, of the value of the work, service and 
 materials actually done, placed or furnished 
 {d) as mentioned in section 4 of this Act, and 
 such values shall be calculated on the basis 
 of the price to be paid for the whole contract ; 
 Provided that where a contract exceeds '''"'''"* 
 $15,000 the amount to be retained shall be 
 fifteen per cent, instead of twenty per cent, 
 and the liens created by this Act shall be a 
 charge (r) upon the amounts directed to be 
 retained by this section in favour of sub-con- 
 tractors whose liens are derived under per- 
 sons to whom such moneys so required to be 
 retained are respectively payable. 60 \'. c. 
 24, s. 2 (i). 
 
 (2) All payments up to eighty per cent, (al) ma^iTInKood 
 
 /'in 11 faith without 
 
 (or eighty-live per cent, where the contract notice of uen. 
 price exceeds $15,000) of such value (e) 
 made in good faith (/) by an owner to a con- 
 tractor, or by a contractor to a sub contractor, 
 or by one sub-contractor to another sub-con- 
 tractor before notice in writing (g-) of such 
 lien given by the person claiming the lien to 
 the owner, contractor or the sub-contractor, 
 
 m 
 
 ■'"i 
 
63 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 Section 
 
 ]!i ! 
 
 
 I f 
 
 
 
 i 1 
 
 
 
 ; ; 
 
 
 
 • 1 
 
 
 
 i : 
 
 
 
 •i 
 
 
 r 
 
 i 
 
 ii, 
 
 
 "• as the case may be, shall operate as a dis- 
 charge pro tanto of the lien created by this 
 Act {h). 59 V. c. 35. s. 10(2). 
 
 (3) Payment of the percentage required to 
 be retained under sub-section i may be val- 
 idly made so as to discharge all liens or 
 charges under this Act in respect thereof 
 after the (expiration of the said period of 
 thirty days mentioned in sub-section 1 unless 
 in the meantime proceedings shall have been 
 commenced {i) under this Act to enforce any 
 lien or charge against such percentage as 
 provided by sections 23 and 24 of this Act. 
 60 V. c. 24, s. 2 (2). 
 
 (a) "In all cases the person primarily liable upon 
 any contract*" This provision is introduced for 
 the benefit of sub contractors. • It applies not only to 
 the owner, but to contractors and all others entering 
 into sub contracts under which liens may arise under the 
 Act. The clause is imperative and any person neglect- 
 ing to observe its provisions may make himself liable to 
 pay over again to subcontractors moneys paid in viola- 
 tion thereof How far this statutory obligation to make 
 the deduction of the percentage here mentioned, could 
 be set up as a bar to an action on an express contract to 
 pay at an earlier date, is doubtful. It would be prudent 
 for persons entering into building contracts under which 
 a lien under the Act may arise, so to stipulate in regard 
 
Thi: Mechanics' I.ikn Act of ONTARIO. 
 
 63 
 
 , ! 
 
 to the payments to be made thereunder, that no conflict ^ec-Uo^" 
 shall arise between the terms of the contract, and this 
 statutory obligation to retain the percentage required to 
 be retained by them under this section. 
 
 {h " actually done, placed or furnjshed." This 
 section as now worded differs materially from the similar 
 provisions in the former Mechanics* Lien Arts. Under 
 the former Acts (see R. S O. (1887), c. 126, s 7 ; 53 
 Vict. c. 38, s. i) the percentage was to be retained on 
 " the price to be paid to the contractor." 
 
 As the law formerly stood it was not necessary for the 
 owner to reserve a percentage of the price of the work 
 done from day to day, so as always to have in hand a 
 percentage of the contract price of the work actually 
 done. He was protected if his payments to the con- 
 tractor did not exceed the stated percentage of the whole 
 contract price ; and if the contractor, by his default, 
 never earned the percentage retained, there was no 
 charge upon it in favour of any of his sub-contractors : 
 Briggs V. Lee^ 27 Gr. 464; Goddard w Coulson, 10 App. 
 R. I ; Schultz V. Hhy, 62 111. 157 ; Truax v. Dixon, 17 
 O. R. 366; Reggin v. Manes, 22 O. R, 443; He Sear 
 e>" Woods, 23 O. R. 474 ; see, however, Re Cornish, 6 
 O. R. 259. 
 
 This section, on the other hand, requires every owner, 
 contractor, and sub-contractor, under whom a lien 
 may arise under the Act, to retain the percentage 
 mentioned of the value of the work and materials 
 actually done or furnished ; they can not, therefore, 
 safely pay their contractors m full for work or materials 
 
 ,ii.«i 
 
 i:i*i. 
 
 t' I 
 
 iiniK 
 
04 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 *r 
 
 Sub-contrac- 
 tors entitled 
 to charge on 
 percentage 
 required to 
 be retained. 
 
 secuonii. actually done or furnished up to eighty or eighty five 
 per cent., as the case may be, of the total contract 
 price ; but they must from time to time as the work 
 progresses, retain the fifteen or twenty per cent, (as 
 the case may be) of the price of the work or mater'ah 
 from time to time actually done or furnished, so as 
 always to have on hand for the required period, for the 
 benefit of sub-contractors, at least fifteen or twenty per 
 cent, of the price which has been actually earned. 
 
 (f) " shall be a charge." The charge created by 
 this sectiofi is in favour of " o.'b-contractors " only, 
 and enables them to intercept h"<oney due from 
 the "owner" to the "contractor," or fiom a contractor, 
 or sub -contractor, to any sub contractc" under whom 
 they claim. Where there are several subcontractors, 
 each, according to his class, would be entitled to a pro 
 rata share of the percentage required to be retained on 
 which a charge is here given ; except those entitled to 
 for^v^agey'^"*^ Hcns for wages for thirty days or less. This latter class 
 of lien-holders are entitled to priority over all other lien- 
 holders in respect of the percentage required 
 to be retained wixdAx section ii : see section 14 (i). 
 Formerly, however, where a contractor made 
 default, and never earned the percentage retained, 
 a sub-contractor under him had no lien against the 
 " owner " in respect of such percentage : Goddard v. 
 Couison, \o A. R. i ; Harrington v. Saunders, 23 C. 
 L. J. 48 ; 7 C. L. T. Occ. N. 88 ; Truax v. Dixo7i, 1 7 
 O. R. 366; Re Sear i> Woods, 23 O. R. 474 ; but this 
 is no longer the law in the case of a lien for wages ; see 
 
 Preferential 
 
 irge of 1 
 
 wages 
 
The Mechanics' Lien Act of ONTARIO. 
 
 65 
 
 ; If 
 
 bcftion 1 1. 
 
 section 14 (2); nor in the case of other liens, it being 
 held to be the intention of the Act that the percentage 
 required to be retained is to be liable for the claims of 
 sub-contractors, even though the contractor, by his de- 
 fault, fails to earn it: Russell \. Fr^nctu 28 O. R. 215. 
 
 It is only where a lien exists under the Act, that any ^" '^''''*'"*'"^ "". 
 
 ' ■' iu /; or 15 of 
 
 charge upon the percentage of the price can be claimed : [here'b^"'- 
 Edmonds v. Ticrnan, 21 S. C. R. 406. Thus, where it '''"'^"• 
 was held that the mechanic doing work on a public school 
 building was not entitled to any lien on the land, it was 
 also held that he had no lien ov charge upon the con- 
 tract price : Robh v. School Board of Woodstock, per 
 Proudfoot, V. C., at Woodstock, April, 1880; and see 
 Bri}ii:^s v. Lee, 27 Ck. 464 ; Forh.an v. Lalonde, 27 Gr. 
 600 ; Edmonds v. Tiernan, si/pfd : and see ante p. 29, note 
 
 Ce). 
 
 The charge must be enforced by the commencement 
 of proceedings within in the time limited by sections 23. 
 2^ post, or it will be lost; see sui>-sect. 3, supra, p. 62. 
 
 {d) "all payments op to eighty per cent.. &c." ''''>'»e"ts by 
 
 ,1,, . , . 1-1 a , r J owner,'\vhen 
 
 Ihis sui>-sectto>i validates payments up to eighty, (or^aiid. 
 eighty-five per cent, where the contract price exceeds 
 $15,000) ; subsection (3) makes provision respecting 
 the payment of the fifteen or twenty per cent, directed 
 to be retained under the preceding sub section (i). 
 
 Payments by the owner exceeding the eighty or 
 eighty-five per cent, (as the case may be) before the 
 lapse of the 30 days, even if made pursuant to the con- 
 tract, are not protected as against the charge of sub-con- 
 tractors. Where the contract is not completed by the origi- 
 
 Ml 
 
 M ^' 
 
 $A 
 
 i 
 
66 
 
 The Mechanics' Lien Aci oi' ONTARIO. 
 
 Section n 
 
 : = i|i 
 
 nal contractor, and he is not entitled to be paid the per- 
 centage required to be retained, though it was formerly 
 held that a subcontractor claiming under him had no 
 charge upon such percentage as against the owner: Bn'ggs 
 V. Zee, 27 Gr. 464 ; AV Sear o^ Woods, 2^ O. R. 474 ; 
 Schultz V. Hay, 62 111. 157 ; yet it has now been held 
 that he has under this Act : Russell \. French, 28 O. R. 
 215. As to claims for wages sec posl, sect. 14, note (d). 
 
 This section not only protects payments made to the 
 contractor himself, but also payments made by the 
 owner at the contractor's request to others, and would 
 include the giving of a promissory note to a third person 
 at the contractor's request : Jennings v. Willis, 22 O. R. 
 439 ; also payments made by an owner for goods sup- 
 plied on his own personal credit, which the contractor 
 was bound to finish but had neglected to do : McBean v. 
 Kinnear, 23 O. R. 313 ; but payments to an assignee of 
 a contractor stand on the same footing as payments to 
 the contractor himself : //'. 
 
 Payments made by an owner after notice of a lien are 
 only invalid, where, if not made, they would have been 
 liable for the satisfaction of the lien-holder giving the 
 notice : //'. 
 
 (<*) " of such value " The value here referred to is 
 the value of the work and materials actually done or fur- 
 nished. 
 
 (/) " made in good faith" The registration of a 
 
 Payments by 
 "owner" 
 
 before notice lien of a sub-contractor will not invalidate payments 
 
 of hen of sub- " ' 
 
 contractor, subsequently made I'oua fide by an owner, on whom no 
 written notice of lien has been served, provided such 
 
The Mechanics' Lien Act of ONTARIO. 
 
 67 
 
 payments do not in the aggregate exceed the 80 or 85 per Section n. 
 
 cent, to be retained under section 11 : see Phillips, s. 63: 
 
 and formerly not 'ven though such payments exceeded 
 
 the full amount due to a contractor, who subsequently 
 
 abandoned his contract : Briggs v. Lee, 27 Gr. 464 ; but 
 
 that case probably cannot arise under this Act : see supra 
 
 notes {a) and (/'), to this seJio)i. 
 
 {g) ''notice in writing " The notice must be given 
 by the sub-contractor claiming a lien. The object of 
 thij sectio?i is primarily, to define under '-hat circum- 
 stances payments by an "owner" to his "contractor" 
 may be validly made, so as to be good against the sub- 
 contractors claiming under such contrpctor, or any of his 
 sub-contractors. For forms of notice see Appendix. 
 
 The reasonableness of this provision is apparent, for 
 if registration of the lien intercepted the right to make 
 payments, it would be incumbent on every " owner," 
 "contractor " or 'sub-contractor," not only to search in 
 the registry office for liens every time he might wish to 
 make a payment on his contract, but all such payments 
 would have to be made in the registry office, for fear 
 that, between the search and che payment, a lien might 
 be registered. Only payments made in good ^■xWa 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 : see section 15, post. In the absence of any 
 decision on the subject, it would seem probable that 
 payments to a contractor made in advance, or before 
 they were due under the contract, or payment to one 
 sub-contractor in full and to another nothing as the 
 
 if ': 
 
 ! 
 
 m 
 
68 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section ii. partiality of the payer might determine, would be held 
 not to be bona fide as against other lien-holders : see 
 Phillips^ ss. 62^, 62^, tih. 
 
 The percentage required to be retained under sub- 
 section I, stipra, must be retained, whether notice be 
 served or not by any sub-contractor. 
 
 {h) " lien created by this Act" That is, the lien on 
 the estate or interest of the " owner '' in the land upon 
 which the work or materials have been expended, and 
 this includes not only the lien of the "contractor," but 
 also the liens of all sub-contractors claiming under such 
 " contractor." 
 
 (/) " unless in the meantime proceedings shall have 
 been commenced" The meaning of this provision would 
 seem to be that theprimarydebtor is precluded, except with 
 the consent of all parties interested, from paying the 
 percentage over to any person within the 30 days referred 
 to in sub-section i ; and in the absence of such consent 
 proceedings to enforce the charge on the percentage 
 must be commenced within the times limited by sections 
 23 and 24, post. It is jjrobable that proceedings by one 
 lien-holder claiming a charge on the fund, in which 
 others claiming on the same fund could enforce their 
 claims, would be a sufficient compliance with this sub- 
 section, and that it would not be necessary for every 
 sub-contractor claiming a charge to commence sejjarate 
 proceedings in his own name. 
 
 The scheme of this section seems to be that the owner 
 shall retain \n his hands the reciuired percentage on each 
 contract be irakes with a contractor, and that each con- 
 
The Mechanics' Lien Act of ONTARIO. 
 
 tractor and every sub-contractor, making any sub-contract 
 for the performance of any of the work, must each, as 
 regards his own contract, also retain the required per 
 centage. Thus, assume that A the owner enters into a 
 contract with B to build a house for $5,000, and B sub- 
 lets part of the work to C for $1,000, and another part 
 to D. for $500, and D again sub-lets part of his work to 
 E for $100 ; then, under this section^ A must retain 
 $1,000 under his contract, B must retain under his con- 
 tract with C $200, and under his contract with I) $100 ; 
 and D must retain under his contract with E $20 ; and the 
 amounts thus retained are subject to the charges in 
 favour of the various sub-contractors claiming under B, 
 C, and D, respectively. 
 
 E.^. the $1,000 required to be retained by the owner 
 is subject to a charge in favour of C for $200, of D for 
 $80, and of E for $20. If D had not sub-let part of 
 his contract, he would have been entitled to a charge on 
 the percentage in the hands of the owner for $100, ir- 
 stead of $80. 
 
 It may be here observed that the percentage is re- 
 quired to be retained not in each case for thirty days 
 after the completion of the entire work to be done for 
 the owner, but only for thirty days after the completion 
 or abandonment of the particular contract under which 
 the money is payable, for it does not appear to be the 
 intention of this section that every sub-contract shall be 
 kept open until the entire work is completed. E.;^. to 
 return to the above illustration, the percentage to 
 be retained by B need not be retained longer than 
 thirty days after the contract to be performed by C and 
 
 69 
 
 Section II. 
 
 i'liii 
 
 W\fi \ 
 
 \.: 
 
 H 
 
 fr 
 
 M, I 
 
 
 * i 
 
 
 ti 
 
 
 
 
 iJ 
 
 ' 
 
 1 
 
 l| 
 
 
 
 I. 
 
 i 
 
 % 
 
 ■ 
 
 
 m 
 
1'! 
 
 7© 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 4 
 
 ScctioTi II. J) respectively shall have been completed or abandoned. 
 As regards the owner, of course the required percentage 
 to be retained by him on each contract with each con- 
 tractor with whom he primarily contracts must be re- 
 tained for the thirty days after each of such contracts 
 shall have been respectively completed or abandoned ; 
 but he is not required to retain any percentage due con- 
 tractor B, to await the completion or abandonment of a 
 contract with contractor Z. The sub-contractors under 
 contractor B have no claim on the percentage retained 
 out of the contract price payable to contractor Z, nor 
 7'2ce versa. Each sub-contractor's rights in the percent- 
 age are confined to the percentage pn^able on the 
 owner's contract with the particular contractor under 
 whom the sub-contractor's lieij or charge is derived. 
 
 Seciion 12. 
 
 Payn* ■■ 
 inadt' direct 
 by owner to 
 persons en- 
 titled to lien. 
 
 12. In case an owner or contractor chooses 
 to make payments to any persons referred to 
 in section 4 of this Act for or on account of 
 any debts justly due to them for work or ser- 
 vice done or for materials placed or furnished 
 to be used as therein mentioned, and shall 
 within three days afterwards give, by letter 
 or otherwise, written notice of such payment 
 to the contnictor or his agent, or to the sub- 
 contractor or his agent, as the case may be, 
 such payments shall, as between the owner 
 cmd the contractor, or as between the con 
 tractor and the sub-contr,ictor. as the case 
 
 
The Mechanics' Lien Act of ONTARIO. 
 
 7' 
 
 may be, be deemed to be i)ayments to the ^*='"^" '^• 
 contractor or sub-contractor, as the case may 
 be, on his contract generally, but not so as to 
 affect the percentage to be retained by the 
 owner, as provided by section j i of this 
 Act {a). 59 V. c. 35, s. 1 1. 
 
 (a) This section was an altogether new pro- 
 vision in the Act of 1896. Its exact import is 
 somewhat difficult to be understood. It is probably 
 intended to validate payments made by an owner to 
 sub-contractors, or by contractors or other sub-con- 
 tractors, to persons to whom they are not directly liable. 
 This wouid appear to be so from the fact that a notice 
 in writing is required to be given to the " contractor o^ 
 his agent," or to the ''sub-contractor or his agent," 
 which, of course, would be unnecessary if the pay "nents 
 referred to were those made to the person to whom the 
 payer was directly liable. For instance, where pay- 
 ments are made by an owner to his contractor, notice of 
 such payments cannot be required to be given to the 
 contractor to whom the payment is made, in order to 
 validate them : it can only be where the owner makes 
 payment to sub-contractors that the notice thereof is 
 required under this section to be given to the contractor ; 
 and in the same way, where a contractor pays his imme- 
 diate subcontractor notice is unnecessary, but where he 
 pays a sub-contractor under such sub-contractor, or any 
 person to whom he is not directly liable, it is then that 
 the notice is required in order to make the payment a 
 valid f)aynient as between himself and the person to 
 
 
 !M 
 
72 
 
 ME Mechanics' Lien Act of ONTARIO. 
 
 Sectifni I.' 
 
 I 
 
 whom he is directly liable, as a pro (tvifo discharge of 
 that liability. The concluding words of the section show 
 that even payments to sub-contractors cannot be made 
 by an owner so as to affect his retention of the percent- 
 age required to be retained by him under the preceding 
 section. 
 
 In order to validate the payment as against the pri- 
 mary creditor the amount paid must be "justly due'' 
 to the payee. Persons making payments to sub-con- 
 tractors under this section assume the resposibility of 
 proving, if it be disputed, that the amount so paid was 
 'justly due.' 
 
 Section .3. 13._( [ ) The lien created by this Act shall 
 Priority of have prlont)' [a) over all judgments, execu- 
 tions, assignments, attachments, garnishments 
 and receiving orders recovered, issued or made 
 after such lien arises, and over all payments 
 or advances made on account of any convey 
 ance or mortgage {b) after notice in writing 
 of such lien to the person making such pay- 
 ments or after registration of such lien as 
 hereinafter provided. 
 
 t^^purchast- (2) In case of an agreement {c) for the [)ur- 
 rnirch^ase mo- chasc of Uincl, and the purchase money or part 
 
 ney unpaid. , ^ • • 1 i 1 
 
 thereoi is uni)aid, and no conveyance made 
 to the purchaser, the purchaser shall, for the 
 purposes of this Act and within the meaning 
 
The Mechanics' Ijen Act of ONTARIO. 
 
 73 
 
 hoU'.era. 
 
 thereof, be deemed a mortgagor and the seller "^'^^^ 's- 
 a mortgagee (d). 
 
 (3) Excepting where it is otherwise de- l''*;,'Sie 
 clared (e) by this Act, no person entitled to 
 a lien on any property, or to a charge on any 
 moneys under this Act shall be entitled to 
 any priority or preference over another per- 
 son of the same class entitled to a lien or 
 charge on such property or moneys under 
 this Act, and each class of lien holders, ex- 
 cept where it is otherwise declared by this 
 Act, shall rank part passu (/*) for their seve- 
 ral amounts, and the proceeds of any sale 
 shall, subject as aforesaid, be distributed 
 among them pro rata according to their sev- 
 eral classes and rights. 59 V. c. 35, s. 12. 
 
 (rt) "shall have priority." The priority conferred 
 by this sectiott is probably intended to apply not only lo 
 judgments, executions, assignments, attachments, gar- 
 nishments and receiving orders issued or made against 
 the " owner," but also as against any contractor, or sub- 
 contractor, through whom the lien-holder derives his 
 lien : and the existence of a lien affecting the rights of 
 any owner, contractor, or sub-contractor, should be set 
 up by such owner, contractor, or sub-contractor, as 
 against any attaching creditor seeking to garnish a debt 
 affected by such lien, otherwise such owner, contractor, 
 or sub-contractor may have to pay it twice over. 
 
 Mi 
 
 tm 
 
 II 
 
74 
 
 The Mechanics' Likn Act of ONTARIO. 
 
 Si'Otion I : 
 
 (/') "advances made on account of any convey- 
 ance or mortgage- ' This must refer to advances made 
 under mortgages registered prior to the lien, as regards 
 mortgages made after the registration of a Hen, they are 
 of course subsecjuent in priority to the lien. Formerly 
 advances made on the security of a prior registered 
 mortgage, without any actual notice of a lien, had pri- 
 ority to the lien (see anh'^). 16), but now if the lien is reg- 
 istered, the mortgagee, as to all advances subsequently 
 made, will be postponed to the lien 
 
 R. S. O. c. 136, s. 99 (i) may be thought to conflict 
 with this sub-section, but it is submitted that it does not, as 
 it only applies to instruments "'' executed l>y the mortgagor or 
 his heirs, executors, or administrators,'' and does not 
 therefore, include instruments such as claims to mechan- 
 ics' liens, which are not so executed. 
 
 It seems, therefore, reasonably clear that a mortgagee 
 cannot safely make advances on the security of a 
 previously registered mortgage, without making a 
 search for mechanics' liens on each occasion of making 
 such advances. 
 
 ((■) "In case of an agreement. ' This probably means 
 an agreement which could be specifically enforced, and 
 would not include a merely parol agreement unaccom- 
 panied by any acts which would entitle a purchaser to 
 its specific performance. 
 
 {d) "seller a mortgagee " Notwithstanding this sub- 
 section the interest of the seller would not be bound by 
 a lien, where he was in no way party or privy to the con- 
 tract under which the lien arises. The e^iuitable interest 
 

 The Mechanics' Lien Act ok ONTARIO. 75 
 
 of the purchaser making such a contract, however, would ^'^^^^"^ '3. 
 be bound for what it is worth, and probably a purchaser 
 thereof under a judgment to enforce the lien would be 
 entitled by virtue of this provision, to enforce the speci- 
 fic performance of the contract between the vendor and 
 purchaser ; and any lien holder would seem also to have 
 an equity to call for a conveyance on payment of the 
 purchase money. And any lien-holder paying the pur- 
 chase money would be entitled to a prior charge 
 therefor, as against other lien-holders whose liens were 
 subject to that of the seller. 
 
 In some cases as we have seen, afi/e p. 8, although the 
 contract may be made by a purchaser, yet the interest of 
 his vendor may, by the acts of the latter, also be bound 
 by a lien arising under such a contract : B/ig/it v. /<!ay, 
 
 23O. R. 415- 
 
 (e) "Excepting where it is otherwise declared." 
 
 The exception here referred to is that contained in sec- 
 tion 14(1) post, in favor of liens for wages for thirty days 
 or under, as regards the percentage required to be 
 retained by an owner under section 11. As regards all 
 other liens, it is the apparent intention of the Act that 
 there should be no preference or priority. But it is 
 necessary, nevertheless, to remember that notwithstanding 
 this provison, all liens do not stand on exactly the same 
 footing, and it may happen that some liens may be paid 
 in full, and others may remain wholly unsatisfied. 
 
 The liens of sub-contractors have in all cases to be 
 satisfied out of the moneys payable to the contractor, 
 or sub contractor, through whom such liens are derived, 
 and while there may be money enough due to one con- 
 
 III 
 
 !ir 
 

 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 y 
 
 
 
 r^- 
 
 
 ^ 
 
 ^ 
 
 ^ 
 
 , 
 
 1.0 IfKiBS 
 
 itt liii 12.2 
 
 1.1 f.-^na 
 
 
 
 ^ HJ£ 
 
 
 ll^iJ4lii6 
 
 
 ^ o 
 
 ► 
 
 Hiotographic 
 
 Sciences 
 
 Corporation 
 
 33 WIST MAIN STRUT 
 
 WIBSTfR.N.Y. 145M 
 
 (716)«7a-4503 
 
 <€^ '^' 
 

 ^ 
 
 %^ 
 
m 
 
 76 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 Section 15. 
 
 «■' 
 
 I '? 
 
 r 
 
 tractor fj satisfy all sub-contractors under him, in the 
 case 01' mother contractor, there may not be sufficient. 
 
 (/) **'■'■ -^ -I'.nk: pari passu/' As already men- 
 tioned, it . . )t the intention of the Act that all liens 
 shall be satisf.ed pari passu irrespective of the question 
 of what is due to the contractor, or sub-contractor, 
 through whom the same are derived ; but only that all 
 liens of the same class shall be so satisfied. The man- 
 ner ;;; which the claims of lienholders must be classified, 
 and the mode in which their claims must be satisfied, 
 may be gathered from the following table. 
 
 The letters S. C. are used to designate sub-contractors, 
 and the italics indicate those who are of the same class, 
 and the various sums represent the amount of their re- 
 spectivecontracts 
 
 OWNER. 
 
 Contractor a 
 12,000 
 
 
 Contractor 
 11.000 
 
 S.C 16. 
 $.jOO 
 
 S.-C. 2/). 
 1700 
 
 S.C. 3rf. 
 •100 
 
 S -C. 4r/. 
 flOO 
 
 S.-C.5rf. 
 
 |r>o 
 
 S.-C. 6c. 
 $850 
 
 I 
 
 I 
 
 S.-C. 7e. 
 $80. 
 
 .S.-C. »/. 
 K>0 
 
 S.-C. fl/. 
 $40 
 
 mm 
 
The Mechanics' Lien Act of ONTARIO. 77 
 
 As a general rule each sub-contractor can have no ^p^t'"" •»• 
 
 greater claim on the interest of the " owner " in the land 
 
 than the person by whom he was employed ; and when 
 
 a " contractor ' or " subcontractor " has employed a 
 
 "sub-contractor,' the claim of such "subcontractor"' 
 
 must be deducted from that of the person by whom he 
 
 was employed. For example, the claims of S.C. i/' and i^) 
 
 and 2/' in the above table must be deducted from the *'i 
 
 claim of the "contractor." under whom they claim; jji 
 
 which would leave him only entitled to $800. So also 
 
 the claims of S.-C. 3(/, 4(/, and 5^/ must be deducted 
 
 from the claim of S.-C. 1/', by whom they were employed, H' 
 
 which would leave the latter only entitled to •^2i;o, and so 
 
 ^ *i ■ 
 on with regard to the other "sub-contractors."' Jl-i 
 
 That this is the real meaning of the Act sufficiently ap- 
 pears from the concluding words of this sec/ion, which 
 expressly declares that the proceeds of any sale are to be 
 distributed among the lienholders "according to their 
 several classes and rights."' The only exception to the 
 rule is, as already pointed out, in the case of liens 
 for wages for thirty days or less ; see secfion 14 i/i/ra. 
 
 14. — ( I ) Every mechanic or labourer whose section m. 
 lien is for wock done for wages shall, to the Priority ..f 
 
 ^ , . , , , . lien for wages. 
 
 extent of thirty driys wages, have j)riority [a) 
 over all other liens derived through the same 
 contractor or sub-contractor to the extent of 
 and on the twenty per cent, or fifteen per 
 cent., as the case may be, of the contract 
 price directed to be retained by section 1 1 of 
 
 >!■ 
 
w 
 
 7« 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 ii 
 
 Section .4 thijj Act, to which the contractor or sub 
 contractor through whom such lien is derived 
 (d) is entitled, and all such mechanics and 
 labourers shall rank thereon />a7't passu {c). 
 59 V. c. 35, s. 13(1); 60 V. c. 24, s. 3. 
 
 fn'Scascs" (2) Every wage earner (d) shall be en- 
 titled to enforce a lien in respect of the 
 contract not completely fulfilled (f). 
 
 c'akuiatinf,' ( -i) \n case of the contract not having: been 
 mu'^lVifXr' completely fulfilled when the lien is claimed 
 by wage-earners, the percentage aforesaid 
 {/) shall be calculated on the work done or 
 materials furnished by the contractor or sub 
 contractor by whom such wage earners are 
 employed. 
 
 (4) Where the contractor or sub-contractnr 
 makes default in completing his contract the 
 percentage aforesaid shall not, as against a 
 wage-earner claiming a lien under this Act, 
 be api)lied (^) to the completion of the con- 
 tract or for any other purpose by the owner 
 {/i) or contractor, nor to the payment of 
 damages for the non- completion of the con- 
 tract by the contractor or sub-contractor, nor 
 in payment or satisfaction of any claim of 
 
 Percentage 
 not to be 
 otherwise 
 applied. 
 
 mmmm 
 
m^^g^l^ 
 
 The Mechanics' Lien Act ok ONTARIO. ft 
 
 any kind against the contractor or sub-con- '^^''^'°" '*• 
 tractor. 
 
 (5) E:very device by any owner, contract(>r Devicf«;i<;^i^y 
 or sub-contractor adopted to defeat the prior- elrntrr 
 ity given to wage-earners for their wages by 
 this Act shall, as respects such wage ear ers, 
 be null and void. 59 \'ic. c. 35. s. 13 < 2-5). j« 
 
 ; I 
 
 ••I* 
 
 m 
 
 (d) "Have priority." The priority given by this 
 sec/ion to liens for wages is confined to the percentage 
 
 required to be retained by an owner under sir/io/i 11 j || 
 
 as regards all other moneys due by the owner for the I ^ ' 
 
 satisfaction of liens, the wage earner must rank equally 
 with other lien holders of the same class as himself : see 
 supra, section 13, note (/), and it must be borne in mind 
 that the effect of this provision is not to give the lien for 
 wages a paramount claim on the whole percentage, 
 required to be retained under section 11, but merely a 
 priority over all other liens derived through the same 
 contractor or sub contractor, as to that [)art of the per- 
 centage applicable to the payment of the contractor or 
 subcontractor, through whom the lien for wages is 
 derived : see note (/') infra. 
 
 (b) •' through whom such lien is derived " These 
 words restrict the priority previously given, to that por- 
 tion of the percentage required to be retained under 
 section 11, which is payable to the contractor or sub- 
 contractor by whom the mechanic or labourer en.ifled to 
 the lien for wages was employed ; and see supra, sub- 
 section (3). 
 
"ili 
 
 80 
 
 The Mechank s' Lien Act of ONTARIO. 
 
 Srctiim 14. 
 
 (c) " shall rank thereon pari passu ' These words, 
 though apparently making the claims of all mechanics 
 or labourers to the extent of thirty days' wages, rank 
 pari passu, or the twenty per cent, or fifteen per cent, 
 required to be reserved, must, it is conceived, br limited 
 in the same way as the previous part of the s ion, and 
 cannot be read as giving such lien-holders any right to 
 share in any part of the percentage except that to which 
 their respective employers are properly entitled ; other- 
 wise it would lead to the obvious injustice of appropriat- 
 ing one mar: s money to pay another man's debt. 
 
 {d) " Every wagfe earner-" This section is not con- 
 fined to wage earners in the position of subcontractors, 
 but seems to include all wage earners, even those who 
 are in the position of contractors {i.e., who contract 
 directly with an owner) ; and seems to entitle them to a 
 lien for their wages, even though the work they have 
 been hired to do, has been improperly performed, and 
 is wholly useless to their employer ; but such a con- 
 struction of this section is one that the (.'ourts will 
 probably be slow to adopt, if any other feasible meaning 
 can be given to it ; and it will probably be found that 
 this section must be taken to be subject to an implied 
 proviso to the effect that the non-fulfilment of the con- 
 tract is not due to the act or omission of the person 
 claiming the lien : ste subsections {3), and (4), of this 
 section, which are in pari materia, and are framed on the 
 assumption that the wage earners referred to are in the 
 position of sub contractors ; and it may, therefore, not 
 unfairly, be inferred that the present sub-section is only 
 intended to apply in favour of wage earners who are in 
 
 m! 
 
The Mechanics' Lien Act of ONTARIO. 
 
 «i 
 
 the position of sub-contractors, and not themselves in ''^'' -'^'"" '*■ 
 default as regards the fulfilment of their own individual 
 contracts. 
 
 (e) " contract not completely fulfilled " The right 
 given by this sec/ion to wage earners is apparently un- 
 limited as to amount, and, at first blush, it would seem 
 that liens for wages for any amount are intended to be 
 enforceable against an owner notwithstanding that the 
 contractor by, or under whom, the wage earner was 
 employed, has never completed his contract with the 
 owner, and it might be thought to be the intention of 
 the Act, that notwithstanding that the person through 
 whom the lien is claimed, is not entitled to receive any- 
 thing from the "owner," by reason of the non-fulfilment 
 of his cont*-uct, that, nevertheless, the claims of his 
 sub-contractors for wages may be enforced against the 
 owner. 
 
 We have already seen, that the ordinary rule is that 
 the rights of sub-contractors as against an owner are not 
 direct, but are derived either directly or indirectly 
 through the person contracting directly with the owner, 
 who is called the " contractor," and if the contractor is 
 not in a position, by reason of his default, to recover 
 anything from the owner, then, generally speaking, 
 neither can any sub-contractor under him do so. 
 
 The present section appears to be intended to create 
 an exception to this general rule in favour of liens for 
 wages, but inasmuch as so to construe it might have the 
 effect of making an owner liable to pay for work which 
 is absolutely and entirely useless to him, and for the 
 payment of which he is under no legal liability, it is 
 6 
 
 it k 
 
 i ill 
 d »i 
 
 I ' 
 
 t '' 
 
wr 
 
 8.' 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 , 
 
 Section 14 probable that any sections purporting to confer such 
 extraordinary and unprecedented rights, will receive 
 very careful judicial scrutiny before it is held that the 
 words have really so extensive a meaning. 
 
 It may be remarked that the words of this sui>-section 
 are rather crude — *' Every wage earner shall be entitled 
 to enforce a lien." If we refer to he 4th section to 
 ascertain how a lien under the Act may arise, and the 
 extent of it, we find that it may arise, inter alia, for work 
 done for any owner, contractor, or sub-contractor, but 
 " limited in amount to the sum justly due to the person 
 entitled to the lien, and to the sum justly owing (except 
 as herein provided) by the invner^'—^v\A if we refer to 
 section y, we find that, "■ save as herein />rovided" ih^ 
 lien is not to attach so as to make the owner liable for a 
 greater sum than the sum payable by the owner to the 
 contractor through whom any sub-contractor claims. 
 
 It may be said that the words -'except as herein pro- 
 vided," and " save as herein provided,'' in these sections 
 evidently show that in some cases the Act is intended 
 to make an owner liable beyond his contract, and such 
 is plainly so under the provisions of section 11 ( i ), 
 which have the effect of making an owner liable to 
 sub-contractors, for more than is actually due by him 
 to the contractor, through whom they claim, where he 
 has, in violation of its provisions, made payments to the 
 contractor in excess of the eighty, or eighty-five, per cent, 
 referred to in that section. 
 
 But it appears open to argument whether the present 
 section so plainly has that eflfect. 
 
 If the lien created by the Act, and which is the only 
 
 w 
 
 
I'HE Mechanics' Lien Act of ONTARIO. 
 
 «.; 
 
 iM 
 
 kind of lien given thereby, is the Hen referred to in this ^*^'^''*"_ '<• 
 subsection as it appears to be, then it is limited to what 
 is justly due to the contractor, or subcontractor, 
 through whom it is claimed, and the question naturally 
 arises, how far can it be enforced, if, by reason of the 
 default of a contractor, or sub-contractor, under whom 
 such lien is claimed, nothing is legally due and owing by 
 the owner ? To allow it to be enforced against an 
 owner who owes nothing, and is in no default, is a 
 manifest departure from the previous express provisions 
 of the Act, and it may not unreasonably be said that the 
 Courts should require a more plain and explicit mani- 
 festation of the intention of the legislature, to impose such 
 a liability on an owner, before giving that effect to the 
 subsection now under consideration. 
 
 Since the foregoing Remarks were written, it has been 
 decided by a Divisional Court that an owner is liable 
 under section ii, to all sub-contractors, including, of 
 course, wage earners, to the extent of the percentage 
 required to be retained, notwithstanding it has not been 
 actually earned : Russell v. French, 28 O. R 215 ; and 
 it is held that Goddard v. Coulsott, 10 A. R. i ; Re 
 Cornish, 6 O, R. 259, and Re Sear e> Woods, 23 O. R. 
 474, are not applicable under this Act. 
 
 It may, however, be observed that it would be possible 
 to read this sub-section (2) as enabling liens for wages 
 to be enforced against an owner only in those 
 cases where, notwithstanding the non-fulfilment of the 
 contract, the owner was liable to pay for the work 
 actually done, or materials supplied : or it might be 
 construed as referring to liens for wages for 30 days or 
 
 P. 
 
 « •! 
 
 I 
 
i( 
 
 84 
 
 Thk Mechanics' Lien Act oi- ONTARIO. 
 
 
 ^ \ 
 
 Section 14 less, and enabling such liens to be enforced, but only as 
 against the percentage required to be retained by the 
 owner under aection 1 1 : and some ground for this view 
 may be found in subsections (3) and (4) of this section ; 
 and in that view "a lien" in the present subsection 
 might be read " such lien " i.e , the lien for thirty days' 
 wages as to which priority is given on the percentage 
 by subsection i of this section. At all events it must be 
 admitted that the Act is not very explicit as to the 
 extent to which wage earners may enforce liens for their 
 wages, when the contract of the contractor, or sub-con- 
 tractor, through whom they claim, is not fulfilled. 
 
 (/) "the percentage aforesaid" The percentage 
 here referred to is the fifteen or twenty per cent of the 
 value of the work done or materials provided required to 
 be retained under section 1 1, and previously referred to 
 in sub section i of this section ; this sub section provides 
 that where the contract is not completely fulfilled, it is 
 to be calculated on the work done or materials furnished 
 by the contractor, or sub contractor, by whom the wage 
 earner is employed. The object of this provision would 
 appear to be to limit the amount of the percentage in 
 respect of which the wage earner is to have priority, 
 under sub-section i of this section, so as to confine his 
 right to that proportion of the percentage retained by 
 the owner, properly applicable to the payment of the 
 contractor, or sub- con tractor, through whom the wage 
 earner claims. 
 
 (,g) " shall not as against a wagfe earner claiming; 
 a lien under this Act be applied" The object of this 
 provision is apparently to get over the difficulty experi- 
 
 
 t 
 
 , 
 
Thi; Mechanics' Lien Act of ONTARIO. 
 
 «5 
 
 cnced under the former Acts, under which it was held 
 that, if the percentage required thereby to be retained 
 , by an owner was not in fact earned by, or payable to, 
 the contractor, it could not be made available for the 
 satisfaction of the liens of any sub-contractors claiming 
 . directly or indirc;ctly under him : Goddard v. Coulson, 
 ID A. R. I ; Re Sear c^ Woods, 23 O. R. 474 ; Truax 
 V. Dixon, 17 O. R. 366 : Harritigton v. Saunders, 23 C. 
 L. J. 48 ; 7 C. L. T. bcc. N. 88; Briggsv. Lee, 27 Gr. 464. 
 It seems to be still open to argument, under the present 
 Act, that if the percentage retained is never actually earned 
 or payable, it is not even now liable for the satisfaction 
 of the liens of persons claiming under the defaulting 
 contractor, or sub-contractor. This sub section provides 
 as to a particular class of lien-holders, viz., wage-earners, 
 that the percentage is not to be applied in certain ways to 
 his prejudice, but does it cover the case of its not being 
 earned at all ? This diflficulty is probably thought to be 
 met by section 11, which requires a percentage to be 
 retained, by the person primarily liable in any contract, 
 of the value of the work from time to time actually done. 
 And the intention of the Act appears to be that under 
 that provision there shall always be in the hands of the 
 owner, or contractor, or sub-contractor, through whom a 
 lien is derived, the required percentage of all work 
 actually done, and materials furnished, by whomsoever 
 they may have been done or furnished ; but, although 
 sub-section (4) prohibits the application of the percentage 
 to the completion of the contract, or for any other 
 purpose by the owner, or contractor, or to the payment 
 of damages for the non-completion of the contract, it 
 nevertheless, seems to fall short of making the percentage 
 
 Section 14. 
 
 \ 
 
 « i 
 
 * . 
 I - 
 
 H 
 
86 
 
 Section i«. 
 
 Claim by 
 " owner " 
 against 
 ilefaultinK 
 "contractor," 
 how far sub- 
 ject to charare 
 in favour ot 
 lien-holders. 
 
 The Mkihanus' I.ien A( i ok ONTARIO. 
 
 liable to satisfy claims of sub-contMCtors, where it in 
 fact never becomes payable : as, for instance, when it is 
 expressly stipulated that no part of the price shall be 
 due or payable until the whole work shall be fully com 
 pleted to the satisfaction of a specified architect, and it 
 is never so completed : see Sher/(Hk v. Poivcll (before 
 Q. B. Divisional Court 30 December, 1898). But if 
 Russell V. French, 28 O. R. 21 5, be a correct exposition 
 of the Act, then the percentage required tobe retained is 
 liable to satisfy theclaims of sub-contractors, although it 
 may never havebecome payable to the contractor, or 
 sub-contractor, through whom the lien is claimed. 
 
 {h) " or for any other purpose by the owner^ etc" 
 But for this section, it is clear that the right of any 
 sub-contractor to recover against the owner must 
 depend upon whether, as a matter of law, there is any- 
 thing due by the *' owner " to the *' contractor " under 
 whom the sub-contractor claims. If the contractor make 
 default in performance of his contract, he may be, and 
 often is, unable to recover from the " owner, ' even for 
 the work he has actually performed, and consequently 
 would not, in such a case, be entitled to recover against 
 the " owner " the percentage of the price required to be 
 retained by him under j^^/w« ii ; Briggs v. Lee, 27 Gr. 
 464 J Goddard v. Coulson, 10 A. R. i ; ^^ Sear \y 
 Woods, 23 O. R. 474 ; Trvax v. Dixon, 1 7 O. R. 366 ; see 
 however Re Cornish^ 6 O. R. 259; Reggin v. Manes, 22 
 O. R. 443 
 
 It is possible that the Legislature may have intended 
 in such a case to give the lien-holder for wages a right 
 to enforce his lien against an owner, notwithstanding the 
 contractor or sub-contractor through whom he claims is 
 
 I 
 
rHK Mk(hanus' Kikn An ok ONTARIO. 
 
 «? 
 
 in default, and even though the money reci ired to be 
 retained by the owner may not have been earned by the 
 contractor, but it is doubtful whether the words a( > ally 
 used are sutlkient for that purpose : see /cr I'atlerson, 
 J. A., Coddard v. Coiilson lo A. K , at p. 9, and see 
 /if Sear »> Woods, 23 (). R. 474 ; where •> was held, 
 under a somewhat similar provision in the former Act, 
 that a mechanic's lien for wages was not a charge upon 
 any part of the price which had not been actually earned 
 by the contractor or sub-contractor through whom his 
 lien was derived ; and see /^irrington v. Saunders, 7 (J. 
 1.. T. Occ N. 88. I'he right of an "owner" to 
 resist payment of any part of the price on the 
 ground of non-performance of the contract is not a 
 claim against the "contractor," it is merely a defence to 
 a claim by the "contractor": see McJifanw Kinnear, 
 23 O. R. 313. but the "owner" may have a claim 
 •' against the contractor for, or in consequence of, the 
 failure of the latter to complete his contract" in the 
 nature of a claim for damages for breach of the contract, 
 which, under the present practice, might no doubt be 
 counter claimed in any action brought by the "con- 
 tractor " against the " owner " for the price, either upon 
 the contract, or where he was entitled to recover ijuantutn 
 meruit . or the contract may provide that, on the default 
 of the " contractor," the " owner " may proceed and 
 complete the work himself, and deduct the cost of so 
 doing from the contract price ; and upon a proper con- 
 struction of this section it would appear that it is only 
 over such claims of the " owner " that the lien for thirty 
 days' wages is given priority. If that be the proper con- 
 struction of this clause, then the lien of a sub contractor 
 
 Srolioil 14. 
 
 i I! 
 
 
88 
 
 The Mechanics' Lien Act ot ONTARIO. 
 
 9 
 
 I 
 
 Section 14. for wagcs may in some cases be liable to be defeated in 
 the same manner as other liens by the default of the 
 "contractor": J?e Sear &• Woods, 23 O. K. 474; see 
 however Russell \. French, 28 O. R. 215. 
 
 section,,. ^g Nothing ill this Act contained shall 
 mletT^for" put -apply to make legal any payment made for 
 
 pose of deftsat- \^ ^ r y r ■ - • • i • 
 
 ing claim for the ))urpose 01 defeating or mipairmg aclami 
 for a lien arising or existing under this Act, 
 and all such payments shall be taken to be 
 null and void {a). 59 \ . c. 35, s. 14. 
 
 {a) " shall be taken to be null and void*'' The 
 
 effect of this section is to make void payments made by 
 a debtor to his creditor, if made for the purpose of de- 
 feating or impairing a claim for lien under the Act. 
 Thus an " owner " paying moneys due by him to his 
 contractor in order to defeat the liens of the sub-con- 
 tractor of such contractor would be invalidated ; as also 
 payments made by a contractor to any of his sub-con- 
 tractors in order to defeat the claim of any sub-contractor 
 claiming through him to whom the payment is made. 
 Payments made by an owner to a contractor after regis- 
 tration of the lien of a sub-contractor, but without actual 
 notice thereof, or without any actual intention to defeat 
 or impair it were held, under the former Mechanics' Lien 
 Act, not to be invalidated : Brig^s v. Lee, 27 Gr. 464 ; 
 and see Worrell v. Lee, before Blake, \ . C, 19 May, 
 1879. The present section seems to contemplate an in- 
 tent or purpose on the part of the person making the 
 payment to defeat or impair the lien of some other per- 
 
The Mechanics Lien Act ok ONTARIO. 
 
 89 
 
 son, and unless such purpose or intent can be established Seotioii 15 
 a payment could not be invalidated merely on the ground 
 that it might have the effect of defeating or impairing the 
 lien of some other person. 
 
 Under the former Mecluinics' Lien Act it was held that 
 where the contract was not completed and the owner 
 bona fide paid the contractor for the full amount of work 
 actually done by him, the payment was valid as against 
 a sub-contractor claiming under such contractor : Brings 
 v. Lee, 27 Gr. 464 ; Re Sear 6^ IVoods 23 O. R. 474 ; and 
 f)ona fide payments made by the owner at the co"»trac- 
 tor's request to others, and the giving of a promissory note 
 by the owner at the contractor's request to a third party, 
 were upheld : Jennings v. U'i/lis, 22 O. R. 439 ; also pay- 
 ments made by an owner for goods supplied on his own 
 personal credit which the contractor was bound, but 
 had neglected, to furnish : McBeixn v. Kin/icar, before 
 Holmested Referee, September, 1892, and subsequently 
 affirmed on appeal by Ferguson, J , 23 O. R. 313 : but 
 payments made by an owner to an assignee of the con- 
 tractor were, in that case, held to stand on the same foot- 
 ing as payments made to the contractor himself, and it 
 the pajment could net be properly made to the con- 
 tractor himself, his assignee could acquire no better right. 
 And in that case it was also held that payments made by 
 an owner to a contractor after notice of a lien are only 
 invalid where, if not made, the money would have been 
 available for the sati:ifai,tion of the claim of the lien 
 holder giving the notice. 
 
 It would seem probable that payments made to a con- 
 tractor or subcontractor in advance, or before they were 
 
 » 4 
 
 i I 
 i > 
 
 « 1 
 
 > it 
 
 \ 
 
I I 
 
 ill 
 
 90 
 
 Section 15. 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 due under the contract, or payment to one sub-con- 
 tractor in full and to another nothing, as the partiality 
 of the payer might determine, would be held not to be 
 bona fide as against lien holders prejudiced thereby : see 
 Phillips, ss. 62 c, 62 .^., 62 //. 
 
 Section 16. Jg — (j) During the continuance of a lien(a) 
 ^ttempt^tS*^ no portion of the materials affected there 
 rf "afflctTd by by shall be removed to the prejudice of the 
 lien, and any attempt at such removal may 
 be restrained on application to the High 
 Court, or to a Judge or officer {/)) having 
 power to try an action to realize a lien under 
 this Ac:. 
 
 lien 
 
 Costs. 
 
 (2) The Court, Judge or officer to whom 
 any such application is made, may make such 
 order as to the costs {c) of and incidental to 
 the application and order as he deems just. 
 
 nishedfor""^' ^^^ When any material (d) is actually 
 mJi^to^'Kub- brought upon any land to be used in connec- 
 tion. *** "**^"tion with such land for any of the purposes 
 enumerated in section 4 of this Act, the same 
 shall not be subject to execution {e) or other 
 process to enforce any debt (other than for 
 the purchase thereof) due by the person fur- 
 nishing the same (/). 59 V. c. 35, s. 15. 
 
 ;„.uiini.iy.i.Lyjiii.iL.-^ 
 
The Mechanics' Lien Act of ONTARIO. 
 
 (rt) "During: the continuance of a lien." A lien if s*^^" «« 
 unregistered before ihe expiration of thirty days from the Time within 
 completion of the work or the delivery of the materials, continues. 
 will cease, unless within that time proceedings have been 
 instituted by the lien-holder, or some other lien-holder 
 in which the lien may be realized, and a certificate of 
 such proceedings have been registered in the proper re- 
 gistry office, : see section 23. A registered lien ceases at 
 the expiration of ninety days from the completion of the 
 work, or delivery of the materials, or the expiry of the 
 period of credit, unless proceedings are in the meantime 
 commenced and a certificate thereof registered : see sec- 
 tion 24 (i). 
 
 And the registration of a lien ceases to have any effect 
 at the expiration of six months from the registration 
 thereof unless it be reregistered within the said period, or 
 proceedings be instituted and a certificate thereof regis- 
 tered : see/tf5/, section 24 (2). 
 
 {b) "or to a jtidgfe or officer/' The Master in Ordi- 
 nary, Local Masters, Official Referees, or Judges of the 
 County, or District Court, in any county where the 
 lands in question are situate, have power to try actions 
 to enforce liens, in addition to any Judge of the High 
 Court : see section 33. By this section the above-men- 
 tioned officers are empowered to grant injunctions. 
 
 Where an injunction is applied for without notice to |"/i'^':^l°''*' 
 the opposite party, it is usually granted only for a short *» grant. 
 period, and if the party obtaining it desires to continue 
 it further, he is required to give notice of the motion to 
 the opposite party. Interim injunctions, /. e.^ injunc- 
 
 \ tj 
 
 111 
 
 n 
 
 w 
 
 II 
 
5^ 
 
 9-' 
 
 The Mkchanics' Lien Act of ONTARIO. 
 
 fi. 
 
 i 
 
 Section lo. tions granted before judgment in an action, are only 
 Injunction, granted, as a general rule, upon the applicant undertak- 
 
 unilertakinR " , i , r j i ■ i 
 
 astodamaRes. ing to DC answerable for any damages resulimg to the 
 opposite party, by reason of the granting of the injunc- 
 tion. This undertaking is usually embodied in the 
 injunction order, in the following terms, viz. : "and the 
 plaintiff by his counsel undertaking to abide by any 
 order which this Court may make as to damages in case 
 the Court shall hereafter be of opinion that the defend- 
 ant shall have sustained any by reason of this order 
 which the plaintiff ought to pay. This Court doth 
 order, etc. ; " and where an injunction is granted ^.v parte 
 under this section, it would seem to be requisite that an 
 undertaking of this kind should l)e given, and recited in 
 the order. 
 
 Costs. 
 
 ttl 
 
 {c) " may make such order as to costs" It is un- 
 usual to order the costs of an interim injunction to be 
 paid forthwith : they are usually either reserved to be 
 disposed of at the trial of the action, or are made costs 
 in the action. But in cases where the costs of the action 
 are payable out of a fund, as is usually the case in ac- 
 tions to enforce liens, and the costs are incurred by rea- 
 son of the necessity of applying for an injunction to 
 restrain the wrongful act of a defendant, such defendant 
 may be, and generally is, ordered personally to pay the 
 costs so occasioned ; otherwise the costs would, in effect, 
 be thrown upon the plaintiff and other lien-holders wher- 
 ever the fund is insufficient to pay the claims in full, or 
 else upon the person entitled to the surplus after pay- 
 ment of the liens, who might not be the defendant who 
 had occasioned the injunction proceedings. 
 
 ¥ 
 
 BWwP««!S.W«B!ai...iM...,in.i.ii»iaii,»M 
 
Thk Mechanks' Likn Act ok ONTARIO. 
 
 n 
 
 {d) "material" This word would seem to include section if.. 
 not only materials actually incorporated or intended to Materials 
 
 •' ' "^ exempted. 
 
 be incorporated into the structure, but such materials as 
 may be required in the construction, alteration or repair 
 of any building, etc., though not incorporated, nor in- 
 tended to be incorporated, therein ; as, for example, a 
 hoisting apparatus : Dixon v. LaFarge, i E. 1). Smith, 
 722 ; or scaffolding, or machinery used in connection 
 therewith ; or gunpowder, candles, or steel furnished for 
 working a mine : Keystone v. Gallagher, 5 Col. 23. So 
 where it is necessary to blast and remove rock from land 
 preparatory to building, the powder and fuses necessary 
 for that purpose would appear to be " materials" within 
 the meaning of this section . Hazard Powder Co. v. 
 Byrnes, 12 Abb. Pr. 469 ; S. C. 21, How. Pr. W.Y.) 189. 
 
 {e) "shall not be subject to execution. 
 
 This .yfr- Exemption 
 from ezecu- 
 
 tion is not intended to exonerate the materials from all tion, how far 
 
 tt extends. 
 
 execution! but only from executions to enforce any 
 del)t') due In' the person by whom the materials are fur- 
 nished or procured, t\ce^\.\ng 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" in sub-section 3, should be qualified by 
 the words "due by the person furnishing the same," for 
 if the latter words were to be held to qualify only 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, are absolutely and indefinitely 
 exempted from all liability to execution, whether against 
 the " owner " or any other person, a rosult which it seems 
 needless to say could never have been intended. Al 
 
 I I 
 . I 
 
 ' j 
 
 .itJ 
 
94 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 |:,:.. 
 
 Section if>. though the Act does not protect the materials from exe- 
 cution to enforce a debt incurred for the purchase 
 thereof, it does not follow that the materials will be in 
 all cases saleable even under such an execution ; that 
 will depend on whether the materials had, or had not, 
 ceased to be the property of the debtor at the time of 
 the seizure thereof by the sheriff. After materials have 
 become incorporated in a building, they would cease to 
 be liable to execution against the "contractor" or "sub- 
 contractor" furnishing them, and there is nothing in this 
 sec/ion to exonerate them from liability to executions 
 against the "owner." But such executions might be 
 subject to the right of lien, if any, acquired by the " con- 
 tractor" or "sub-contractor" under this Act : see section 1 3. 
 
 II ,' 
 
 Execution, 
 against 
 
 (/) "Due by the person furnishingf the same" 
 
 owner" will Thesc words are to be read in connection with the pre- 
 
 bind materials _ . ^ 
 
 incorporated vious part of this secft'ou, from which it will be seen that 
 
 in land. ^ 
 
 they refer only to persons furnishing or procuring mate- 
 rials for the specific purpose mentioned "/<?/• any owner, 
 contractor, or sub-contractor'''' : see section 4. In other 
 words, this section exempts materials from liability for 
 certain debts due by the person by 'whom they are fur- 
 nished or procured, but does not exempt them from lia- 
 bility to execution for any debts due by the person to, or 
 for, whom they have been furnished or procured. For 
 example, materials furnished by a " contractor " for an 
 " owner " would be free from liability for the debts of the 
 "contractor," except such as may have been incurred 
 for the purchase of such materials, even before the in- 
 corporation thereof in the building, etc. ; but they would 
 not be exempt from liability to execution for any debts 
 
1 
 
 The Mechanics' Lien Act of ONTARIO. 95 
 
 of the "owner" so soon as the materials should, by in- Section 16. 
 
 corporation into his building, or otherwise, have become | 
 
 his property ; see, however, section \ 3. 1 
 
 17.— (i) A claim for lien api licable to •"•^'^t^' ■^ 
 the case may be registered {a) in the registry of claim for 
 office of the registry division or where theRevstat. \ 
 
 land is registered under The hand Titlefi Act""'^^ 
 in the land titles office of the locality in which 
 the land is situated (/>) and shall set out(6'): — 
 
 (a) The name and residence of the person Contents of^ 
 claiming the lien and of the owner of the 
 property to be charged (d) (or of the person 
 whom the person claiming the lien, or his 
 agent, believes to be the ©wner of the property 
 to be charged) and of the person for whom 
 and upon whose credit the work (or service) 
 was or is to be done (/), or materials fur- 
 nished or placed, and the time {g) or period 
 within which the same was, or was to be, 
 done or furnished or placed ; 
 
 (b) a short description of the work (or 
 service) done or materials furnished or placed 
 or to be furnished or placed ; 
 
 (c) The sum claimed as due or to become 
 due ; 59 V. c. 35, s. 16 (i a-c) ; 
 
 9mA 
 
I 
 
 96 
 
 S«rction 17. 
 
 Rev. Stat. 
 c. 138 
 
 ■:J 
 
 Form of claim 
 
 Thk Mechanus' Likn At i ok ONTARIO. 
 
 (d) a description of the land to be charged 
 (h) sufficient for the purpose of registration, 
 and where the land is registered under The 
 Land Titles Act such claim shall also con- 
 tain a reference to the number of the parcel 
 of the land and to the register in which such 
 land is registered in the Land Titles Office. 
 
 (e) The date of expiry of the period of 
 credit (if any) agreed by the lien-holder for 
 payment for his work (or service) or materials 
 where credit has been given. 
 
 (2) The claim may be in one of the forms 
 given in the Schedule to this Act and shall 
 be verified by the affidavit {i) of the person 
 claiming the lien or of his agent (j) or 
 assignee (A) having a personal knowledge of 
 the matters required to be verified and the 
 affidavit of the agent or assignee shall state 
 that he has such knowledge. R. S. O. 1887, 
 c. 116, s. 55 ; 59 V. c. 35. s. 16. 
 
 
 ■M 
 
 Description of (3) When it is desired to register a claim 
 
 lands where -- ,. . 1 1 1 r -i 
 
 lien registered for hen agamst the lands ot a railway com- 
 
 ngainst rail- ^ " _ _ •' 
 
 pany, it shall be a sufficient description of 
 such lands to describe them as the lands of 
 such railway company and every such claim 
 
 igai 
 way 
 
I 
 
 U7 
 
 >n 17. 
 
 The Me(Hanic.s' Ijkn Act ok ONTARIO. 
 
 for lien shall hv registered in the general ^'"'lil 
 registry in the registry office for the registra- 
 tion district where such lien is claimed to have 
 arisen. 60 V. c. 24, s. 4. 
 
 (n) " may be registered." Although the registration Kn'"^'*'" 
 of the claim is not necessary to create a lien, it is essen 
 tial to its continuance after the expiration of thirty days 
 after the work has been completed, or the materials fur- 
 nished : see section 22, unless in the meantime a suit has 
 been commenced to enforce it by the lien-holder, or some 
 other lien holder, and a certificate of /is pendens regis- 
 tered : see section 23. If the period of credit 
 between the "owner" and the "contractor," or any 
 other lien-holder and his debtor, extend beyond the time 
 limited by sections 22, 23, and 24, for registering a lien, or a 
 lis pendens^ and the lien or lis pendens be not registered, 
 the non-registration will have the effect of defeating the 
 lien : formerly where the period of credit had not expired, 
 within the time limited for bringing an action, no suit 
 could be brought to enforce the lien, and consequently 
 no lis pendens could be registered as required by sections where regis- 
 23,24: see Burritt v. Renilmn, 25 Gr. 183 ; A''^/// v. action is 
 Carroll, 28 (ir. 34 ; 339 ; Haggerty v. Grant, 2 B. C. R. "**"^*'***''y- 
 173; but under the present Act if the period of credit 
 extend beyond the time limited by sections 23, 24, for 
 bringing an action, the action may, nevertheless, be now 
 commenced, and registered as a lis pendens within the 
 period mentioned in those sections, but further proceed- 
 ings in the action are to be stayed until the period of 
 credit has expired : see section 28. Registration of the 
 
 7 .,-.,;. 
 
 M 
 
 I 
 
The Mechanics' Lien Act of ONTARIO. 
 
 I 
 
 1 
 
 I-ty whom 
 liens may be 
 registered. 
 
 Section 17. Hen is essential where the interest of a lessor is sought 
 to be charged under section 7 (2) : see ante^ pp. 49, 50, 
 notes (/), {g). 
 
 Registration of a lien ceases to have any effect at the 
 expiration of six months from the registration, unless 
 within that period the lien be re-registered, or proceed- 
 ings be instituted to realize it, and a lis pendens regis- 
 tered : see section 24 (2). 
 
 A claim may be registered not only by the person 
 doing the work, or furnishing the material, but also by 
 his assignee, where the assignment is in writing ; and in 
 such a case the assignee is to make the affidavit verifying 
 the claim : see sections 26, and 1 7 s.-s. 2 : Grant v. Dunn, 
 3O.R. 376. 
 
 Application of The intention of the Act appears to have been that the 
 
 Jieaistrp Act ' ' 
 
 to Hens. conflicting claims of unregistered lien-holders, and per- 
 
 sons claiming under registered instruments, should be 
 determined without regard to T/ie /Registry Act ; but the 
 course of judicial decision has run counter to this idea : 
 see ante, p. 13, et seq. ; and though this Act says The Reg- 
 istry Act is not to apply to liens, the courts have virtually 
 said that The Registry Act does apply to them, and, in the 
 present state of the authorities, unless a lien is registered, 
 there is danger that it will lose priority over subsequent 
 grantees, or mortgagees, for value without notice, whose 
 conveyances or mortgages are first registered : see Wanty 
 V. Robins, 15 O. R. 474; Rose v. Peterkin, 13 S. C. R. 677 ; 
 McNamara v. Kirkland, 18 A. R. 271. If there- 
 fore a lien-holder desire to preserve his priority 
 over subsequent grantees or mortgagees, it seems, in the 
 
The Mechanics' Lien Act of ONTARIO. 
 
 99 
 
 present state of the authorities, advisable in all cases to 
 register his lien promptly. Actual notice, however, 
 seems sufficient to preserve priority as against subsequent 
 transferees ; McNamara v. Kirkland, supra. 
 
 Section 17. 
 
 Where priority is claimed by the lien-holder against a ^^^,i;^^?^ 
 
 rior 
 [■gistered 
 
 an- 
 ire 
 over 
 
 der. 
 
 prior registered mortgagee or grantee, he should be wjn'tr pr 
 made an original defendant, and the grounds upon which diods. how 
 
 " > D r made parties 
 
 the plaintiff claims priority should be alleged : see 
 Remharts. Shutf, 15 O. R 325. 
 
 A difference of opinion formerly prevailed as to ^'^/Jd^t.Vr"^^ 
 whether an execution creditor could, by procuring an ""jp'^j^t''" 
 attaching order against the " owner," as a garnishee, 
 obtain priority over mechanics who had previously 
 acquired liens, where such liens had not been 
 registered at the time the garnishee order was obtained, 
 but where the time allowed for registering such liens 
 had not expired : Langv. Gibson, 21 C L. J. 74 ; McCully 
 V. Ross, 22 C. L. J. 63, and see remarks on these two 
 cases, 22 C. L. J. p. 75 ; but all doubts on this point 
 seem now to be set at rest by section 13 (i). 
 
 (/') " the land is situated " Where the land affected Registration 
 
 ^ ' • J "'" 'iP''< where 
 
 by the lien is partly in one registration division, and partly lands situate 
 
 lUL j-L Mn different 
 
 in another, the registration should be made m both divisions. 
 divisions. 
 
 ic) "shall set out" The word "shall" is impera- 
 tive : see R. S. O. c. i, s. 8, s.-s. 2. 
 
 ( // ) " owner of the property to be charged." The ;;^^^Xbe' 
 owner here spoken of is the person against whose interest ^^'^fj^'^^g'^^'" 
 in the land the lien is to be enforced, not necessarily Hen. 
 the owner of the fee : see ante, p. 7, note c. Where the 
 
 r 
 I 
 
 !, 
 
il 
 
 100 
 
 The Mkchanics' Likn Act ok ONTARIO. 
 
 Section 17 "owners" were a corporation aggregate, the misnomer 
 of the corporation in the registered claim was held to in- 
 validate the registration, as against a subsequent mort- 
 gagee : /ioi<// V. nW/t/i^/ofi Hotel Co., before Hlake, \.C., 
 at Guelph, ist Oct., 1878: and see Afoore v. /^rati/tii, 
 5 Man. 49 and cases there cited ; but, in Patrick v. 
 U'a//>onn/e, (before I'alconbridge, j., 30 September, 
 1895) it w.ns held that a misnomer, in a claim of lien, of 
 a corporation as against whom a lien on the increased 
 selling value was claimed, was not fatal to the hen. This 
 case afterwards went to appeal on another point, (see 27 
 O. R. 221) but the decision of Falconbridge, J., on the 
 question of misnomer does not appear to have been 
 questioned. It has been held to be a sufficient com- 
 pliance with this section if the name and address is stated 
 of the person who was the " owner " of the property at 
 the date the lien first arose, and that a subsequent 
 assignee is bound, even though he acquires title under 
 a conveyance registered before the lien, and his name 
 does not appear in the registered lien : Afakins v. 
 Robinson, 6 O. R. \ \ Rk Wallis v. Vokes, 18 O. R. 
 8; see post, section 19 and notes: see however 
 McVean v. Tiffin, 13 A. R. 1 ; Hynes v. Smith, 27 Gr. 
 150 ; Reinhort v. Shutt, 15 O.R. 325. 
 
 ^e) "or of the person whom the person ciaiming: 
 the lien, or his ag:ent believes to be the owner of the 
 property-'" These words are new, and are introduced 
 no doubt to prevent a lien from being defeated by any 
 mistake on the part of any subcontractor as to the name 
 of the " owner," and permit a certain amount of latitude 
 in the claim in this respect ; an'j it would seem that a 
 
 , 
 
Thk Mkiiianics' Ijkn A( t oi ONTARIO. 
 
 tot 
 
 
 lien might be enforced against the true " owner ' liabl':, ^^ ''^'"" '/• 
 notwithstanding any mista.;e which might be made as to 
 his name in the registered lien. After these words a 
 semi colon should probably be inserted. 
 
 (/) "of the person for whom and upon whose credit 
 the work or service was or is to be done," etc- I'he 
 omission of the name and residence of the person for 
 whom, and upon whose credit, the work is done, from the 
 claim as registered, was, under the former Act, held to be 
 fatal, and a defect which might be relied on by a con- 
 tractor through whom the lien holder claimed, notwith- 
 standing that the '* owner " made no objection : Wallis 
 V. Skaine, 21 O. R. 532 ; but it is possible that under 
 the present Act such an omission would not defeat the 
 lien, unless it could be shown that someone had been 
 prejudiced thereby : see post, section 19. 
 
 {^) " and the time." A statement that the work was 
 done between a named day and " on or before " another 
 day named, was held to be sufficiently specific : J'hck v. 
 Jeffrey, 10 Man. 514. 
 
 (h) "the description of the land to be charged." ['f'^^;^^^;^,^^"" 
 Care must be taken to describe the land correctly, fj^^/^'"'^'^*'' 
 Where it forms part of a sub-division according to 
 a registered plan, it must be described according to • 
 
 that plan, (leneral descriptions such as " part of lot 
 A," without specifying distinctly the part intended, 
 should be avoided ; as to Railways a special provision is 
 made by s.-s. (3). 
 
 it) "verified by the affidavit-" For form of Amdavitveri- 
 
 ^ ' fying Hen, 
 
 affidavit, see the Schedule to this Act. Where the how and by 
 
 whom to be 
 
 affidavit referred to the claim as "the paper annexed sworn. 
 
 I 
 
 i % 
 
 \ 
 
' 
 
 102 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 li 
 
 Section 1 7. marked A," and the paper annexed had no such mark 
 on it, but was proved to be the paper prepared for 
 registration, and in that condition annexed to the affida- 
 vit, it was held thi'.t the omission to mark it " A " did 
 not invalidate the registration : Curriers. Friedrick, 22 
 Gr. 243. The affidavit may be sworn before any com- 
 missioner for taking affidavits in the county where the 
 affidavit is sworn: R. S. O. c. 74, s. 12; Trucix v. 
 Dixon ^ 25 C. L. J. 249 ; whether a notary public is 
 authorized to take such affidavits : see R. S. O. c. 175, 
 ss. 3, 4 ; and see also Roberts v. McDonald^ 1 5 
 O. R. 80, where the point was taken, but not adjudi- 
 cated. It is probable that an affidavit would not be 
 invalid though sworn before the solicitor of the claimant 
 or his partner or clerk, notwithstanding Con. Rule 522 ; 
 See Canada Permanent Loan 6^ Savings Co., v. Todd., 22 
 O. R. 515, but it would be safer to avoid such a ques- 
 tion, as the point has been differently decided in Eng- 
 land : see Baker v. Ambrose, (1896) 2 Q. B. 372. 
 
 (y) "or of his agent-" Formerly the affidavit of an 
 agent was insufficient : Grant v. Dunn, 3 O. R. 376. 
 
 (k) "or assigfnee" It would seem that it is only 
 when the assignee claims under a written assignment 
 that he is competent to claim a lien : see section 26. 
 
 Section 18. 18. A claim for lien {a) may include 
 
 wiatma^iu claims against any number of properties {h), 
 
 claim, ^j^rjtj j^^ny nimiber of persons claiming liens 
 
 upon the same property may unite therein, 
 
 i 
 
, 
 
 I 
 
 The Mkchanics' Likn Act of ONTARIO. 103 
 
 but where more than one Hen 's Included in •«^^' 
 one chiim each Hen shaH be verified by 
 affidavit as provided in section 1 7 of this Act. 
 59 V. c. 35, s. 17. 
 
 (a) " A claim for lien." The " claim for lien " 
 is that referred to in section 17, viz., the claim of lien for 
 registration. 
 
 {/') " any number of properties." A lien, of course, 
 can only be properly claimed against property upon, 
 or in respect of which, work has been done or materials 
 furnished. This provision is probably intended to 
 apply to liens for "'rk or materials done or furnished | ■■ 
 
 on different properties of the same owner. It can ^ ™ 
 
 hardly be intended to apply to the case of liens claimed 
 by a person on different lots owned by different owners. 
 " Any number of properties " may, therefore, be taken 
 to mean " any number of properties of the same owner 
 upon or in respect of which work or materials have been 
 done or furnished." 
 
 Section 19. 
 
 to 
 alidated 
 for informal- 
 
 19.— (i) A substantial compliance {a) with ^^li^]:iZl 
 sections 17 and 18 of this Act shall only beuy. 
 required, and no lien shall be invalidated by 
 reason of failure to comply with any of the 
 requisites (b) of the said sections unless in 
 the opinion of the court, judge or officer who 
 has power to try an action under this Act, 
 the owner, contractor or sub-contractor, 
 
 
 »*i 
 
104 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 Section 19. niortgcigce or other person, as the case may 
 be, is prejudiced thereby, and then only to 
 the extent to which he is thereby prejudiced. 
 
 (2) Nothing in this section contained shall 
 be construed as dispensing with registration 
 (c) of the lien required by this Act. 59 V. 
 c. 35. s. 18. 
 
 This is a new provision, and is intended to prevent 
 liens from being defeated on merely technical grounds. 
 
 {a) " A substantial compliance " These words 
 would seem to negative the idea that a total non- 
 compliance with the provisions oi sections 17 and 18 can 
 be condoned. There must be, therefore, a compliance 
 to some extent with the provisions of those sections. 
 
 By R. S. O. (1887) c. 126, s. 17, it was provided 
 that an afifidavit verifying a claim of lien "sub- 
 stantially in accordance " with the form prescribed by 
 that Act should be sufficient, and under that Act an 
 objection was taken to a claim, on the ground that the 
 name of the person who was the *• owner " at the time 
 the claim was registered, was not mentioned in it. The 
 lien-holder in that case was employed by Robinson & 
 Elliott, who, after the lien had attached, had sold their 
 interest to Poussette. The names of Robinson & 
 Elliott alone appeared in the registered claim as 
 *' owners." On this point Ferguson, J., said, " It was 
 urged for the defence that the registration of the lien 
 was not good, because the name of Poussette, who was 
 the ' owner ' at the time, was not mentioned in it. On 
 
 Omission 
 of name of 
 " owner," 
 effect of. 
 
 y' 
 
The Mechanics' Lien Act of ONTARIO. 
 
 105 
 
 If 
 
 y* 
 
 this subject I have looked at some of the American Sectioniig. 
 cases. In the case of /ones v. Shawhan, 4 Watts & 
 Serg, at p. 262, (libson, C. J., says : ' But as the claim 
 is against the building instead of the person, and as the 
 name is only a circumstance of description to specify 
 the property and give notice to purchasers, entire 
 accuracy in regard to the ownership may not be indis- 
 pensable ; the more so as the statute expressly requires 
 no more than the name of the reputed owner, and it 
 might be sufficient to file it against the past, or present 
 one. It is certain, however, that the name of the owner 
 when the building was commenced satisfies the require- 
 ments of the law.' " And, after referring to the language 
 of R. S. O. (1887) c. 126, section 2, s.-s. 2, and If>. section 
 16, Ferguson, J., proceeds, "Yet I am of the opinion 
 that the reasoning in the case to which I have referred 
 applies, especially when I look at the date of the con- 
 veyance to Poussette, and the allegation of the plaintiff, 
 that he did not know anything of it, and I am of 
 opinion that this alleged defect is not fatal, although it 
 has been said that the statute relative to mechanics' 
 liens, being in derogation of the common law, should be 
 strictly complied with " : Makins v. Robinson^ 6 O. R. 
 I ; and see Re Wallis ^ Vokes, 18 O. R. 8. 
 
 The making of the affidavit vei ifying the claim by a (mauthoriled 
 person not authorized by the statute to make it has been i"^'^'*""- 
 held a fatal defect under the former Mechanics' Lien Act : 
 Grant v. Dunn, 3 O. R. 376 ; but possibly under the 
 provisions of the present Act such a defect would not be 
 fatal. 
 
 {f>) " by reason of failure to comply with any of 
 the requisites-" The previous part of this section pre- 
 
 5 \ 
 
 
 f 
 
io6 
 
 The Mkcmanks' Likn Act oi ONTARIO. 
 
 Section iq. cludes the idea that " any of the reciuisites of serf ions l^ 
 and iS,'" could he held to mean "all of the requisites" 
 of those sections. This section appears to require that 
 there shall be some substantial compliance with sediotis 
 17 and 18. but that the omission of some particulars 
 may not be fatal, provided the omission be not preju- 
 dicial to the party as against whom the lien is claimed, 
 or any other person, and then only to the extent to 
 which he is prejudiced. 
 
 (<■) " dispensing: with regfistration-' See .v((//V;//j 17, 
 and 22. Registration of the lien is not absolutely 
 necessary in all cases. If the action to enforce the lien 
 is brought, and a certificate of /is /pendens is regis- 
 tered, within the period prescribed by section 23, that is 
 sufficient without any other registration of the lien ; 
 except where the lien is claimed against the owner of 
 the fee, under section 7(2), si//>r<i, p. 41. 
 
 Section 20. 20. — (i) Thc registrar upon payment of 
 his fee, shall register the claim, so that the 
 
 Lien to be 
 registercil 
 an im-uin 
 liranoe. 
 
 Fee for 
 
 reRistrafion. 
 
 Manner of 
 registration. 
 
 same may appear as an incumbrance against 
 the land therein described (a). 
 
 (2) The fee for registration shall be twenty 
 five cents. If several oersons join in one claim, 
 the registrar shall be entitled to a further fee 
 of ten cents for every person after the first. 
 
 (3) The registrar shall not be bound to 
 copy in any registry book any claim or affi- 
 
TiiK Mechanics' I.ikn Aci ov ONTARIO. 
 
 davit, hut he shall numhcr each claim, and 
 shall insert in the alphabetical and abstract 
 indexes {d) the iiKe jjarticiilars as in oth(?r 
 cases ; he may describe the nature of the in- 
 strument as " Mechanics' Lien." 59 V. c. 
 
 35- ^- '9. 
 
 (a) "the land therein described'^ 'Ihis suh sation 
 seems to render it absolutely incumbent on the lien- 
 holder to insert such a sufficient description of the land 
 intended to be charged as will enable the Registrar to 
 comply with this sectiov, and any substantial defect in 
 the claim of lien in this respect, might very probably be 
 considered fatal, notwithstanding scctioti i<;. 
 
 (/') " shall inse. ■ in the alphabetical and abstract 
 indexes." These words are imperative, but where the 
 claim of lien tendered for registration is in due form, 
 but the Registrar omits duly to insert it in the indexes, 
 the lien is not thereby defeated : see Uwrie v. Ralhbun, 
 38 U. C. Q. H. 255. 
 
 107 
 
 Section 10. 
 
 h 
 
 \ 
 
 Section ^r 
 
 I 
 
 21. Where a claim is so registered, the per- 
 son entitled to the lien shall be deemed a pur- l;l%emJV" 
 
 . , . . purchaser. 
 
 chaser pro tanto {a), and within the provisions 
 of The Registry Act, but except as herein 
 otherwise provided {b), The Registry Acn^:^'^- 
 shall not apply to any lien arising under this 
 Act. 59 V. c. 35, s, 20. 
 
 • 'f 
 
 <■ 
 
 i I 
 
 H 
 
io8 
 
 Thk Mechanics' Likn Act ok ONTARIO. 
 
 41: 
 
 Section ar. (,,) .. gjj-^u j^ dccmcd A pufchascr pro tanto" The 
 
 Lien-holder ii benefit of the provisions of The Rtiristrx Act is confined 
 to persons who are purchasers or mortgagees, for value, 
 without actual notice : see The Registry Act, ss. 87, 97. 
 In favour of such persons, by registration of the instru- 
 ments under which they claim, priority ij secured over 
 other instruments prior in date but not registered, and 
 of which they have no actual notice. 
 
 A person who registers a mechanic's lien is, under 
 this section, therefore, entitled to claim priority over an 
 unregistered mortgage or other conveyance made by the 
 owner, previous to the registration of such lien, and of 
 which the lien-holder had not actual notice. A lien- 
 holder is, therefore, pbced in a better position than an 
 execution creditor, who has no belter right than his 
 execution debtor: Russell \. Russell, 28 Gr. 419. 
 
 Claim of 
 lien-holder 
 superior to 
 that of execu- 
 tion creditor. 
 
 Kegistration 
 
 of 
 of. 
 
 len, effect 
 
 Prior to registration, a mechanic's lien is valid, and 
 binding on the land, and it would seem to be the inten- 
 tion of the Act that the registration of the lien, within 
 the time prescribed hy sees. 22, or 23, should not have the 
 effect of postponing the lien to the date of its registra- 
 tion, but rather of continuing the charge created by the 
 lien, as from the date at which it originally attached. If 
 this be the correct interpretation of the Act, then, in 
 order to postpone a registered lien-holder to a prior un- 
 registered instrument, it would be necessary to show 
 that the lien-holder had actual notice of the prior un- 
 registered instrument some time previous to his acquiring 
 his lien, and not merely previous to his registering it j 
 but see supra, p. 52. . 
 
Thk Mkchanics' l.iKN Act ov ONTARIO. 
 
 109 
 
 
 For instance, a mechanic may accjuire a lien l)y virtue ^cciion 21. 
 of commencing certain work ; see section 4, and after Notice to 
 
 1 <• 1 1 I ■ <■ I ■ lien-holder 
 
 the commencement of the work, and before he has regis- of prior umeK 
 tered his hen, he may ac(|uire actual notice of an unregis effect of. 
 tered mortgage, his subsequent registration of his lien 
 would not deprive him of the priority he had acquired 
 before he had notice of the lien. It is true that it has 
 been held, in Hynes v. SmUli, S 1'. R. 73 ; jy (Jr. 150, 
 that a mortgage created subse(iucntly to the acquisition 
 of a lien, but registered prior to the lien, was entitled to 
 priority over the latter. 'I'hat decision, however, is not 
 very satisfactory, as the two judges who arrived at that 
 conclusion seem to have overlooked the effect of sections 
 5, and 2, s.-s. 3, of the former Act (now embodied in 
 sections 7, and 2, s.-s. 3, of this Act), which provide that 
 the lien is to bind not only the interest of the " owner," 
 but also of all persons claiming under him whose inter- 
 ests are acquired subsecjuently to the lien ; and also this 
 section^ now under consideration, which declares The 
 Registry Act is not to apply to liens, excej)t as otherwise 
 provided. Proudfoot, }., who dissented from the other 
 two members of the Court, alone appears to have con- 
 sidered the effect of these sections. It is, therefore, open 
 to doubt whether the reasons given by the majority of 
 the Court for the decision in the case of Hynes v. Smith ihniex v. 
 were correct. In McVean v. Tiffin, 13 A. R. i, it was ii/'cr«nn v. 
 held that a mortgagee who had registered his mortgage '^ 
 prior to a mechanic's lien being acquired, but who did 
 not actually advance the money secured thereby until 
 after the acquisition of the lien, was, nevertheless, not a 
 subsequent incumbrancer to the lien-holder. In this 
 case, too, the effect of the sections above referred to, and 
 
 I 
 
 ■ k 
 
 H 
 Sr 
 
no 
 
 Section it. 
 
 .-J , 
 
 How far 
 Hegist t) Act 
 afiFeuiS lien- 
 holders 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 that now under consideration, does not appear to have 
 received the attention of the Court. It is possible, that 
 these cases may be upheld on other grounds than those 
 assigned in the judgment of the Court : see ante, p. 12, 
 note (g). 
 
 {b) "except as herein otherwise provided." The 
 
 exception referred to is that contained in sections 22, 23, 
 2^, post. Until the time prescribed by those sections has 
 expired, the lien is valid and binding without registration 
 as against the "owner" with, or under whom, the con- 
 tiact was made, in respect of which the lien arises ; and 
 if an action be commenced within that time to enforce 
 the lien, and a certificate thereof be registered, then no 
 further registration of the lien is necessary under the 
 Act. But as against assignees of the person who was 
 the "owner" at the time the contract was made in res- 
 pect of which a lien exists, registration appears to be 
 necessary in order to preserve the lien's priority, which 
 may, in the present state of the authorities, be defeated 
 by the prior registration of the instruments under which 
 such assignees claim without actual notice of the lien : 
 see McVean v. Tiffin, 13 A. R. i ; IVanty v. Robins, 15 
 O. R. 474- 
 
 Effect of cases {c) "The Registry Act shall not apply" The 
 
 as to applica- . e, i rr- i 
 
 tion of Hegistry effect of this provision appears to be, that so far as the 
 
 ^ct to liens. , . ,,..., , . . 
 
 claims of hen-holders are concerned, either in relation 
 to other liens, or registered instruments, they are to be 
 dealt with as if The Registry Act did not exist. It must 
 be admitted, however, that the current of legal decision 
 appears virtually to have abrogated this clause in the 
 
 -i^. 
 
 ' 
 
The Mechanics' Lien Act of ONTARIO. 
 
 Ill 
 
 - 
 
 Act: see McVean v. Tiffin, 13 A. R. i; Hynes v. Section 21. 
 Smith, 27 Gr. 150 ; Reinhart . Shutt, 15 O. R. 325. 
 
 The principle of The Registry Act is, that by registra- S h^/fr^^^f,./ 
 tion of an instrument, notice of it is given to all persons ^''^"'**'*'^- 
 dealing with the land affected thereby, and registered 
 instruments obtain priority according to the order of their 
 registration, and are entitled to priority over prior unreg- 
 istered claims, unless there be actual notice brought home 
 to the person claiming under the prior registered instru- 
 ment prior to its registration, of the existence of the prior 
 unregistered claim : R. S. O. c. 136, ss. 87, 97 ; Peter- 
 kin V. Rose, 13 S. C. R. 677. This principle, it would J^^tiX^^I^PlI;. 
 seem, was not intended to apply to mechanics' liens. 
 Under section 4 a mechanics' lien is created without 
 registration, and it binds the interest not only of the 
 "owner," but also of all persons claiming under him 
 whose rights are acquired after the work in respect of 
 which the lien is claimed is commenced, or the mate- 
 rials have been commenced to be furnished : sections 7, 
 and 2, s.-s. 3. And it does not appear to have been 
 intended that the lien thus created, should be defeated 
 by the prior registration of any transfer of interest, abso- 
 lutely, or by way of mortgage, executed by the "owner," 
 after the lien had once attached, provided the lien were 
 duly registered within the time prescribed by section 22, 
 or an action brought, and a certificate thereof registered, 
 as provided by section 23 : see ante, p, 12, note {g). 
 
 If The Registry Act does not apply to mechanics' if ^'*J/»*<''y^«« 
 
 ^ -^ ^*^ ■' , does not apply 
 
 liens under the circumstances above mentioned, it to liens, prin- 
 ciple on which 
 seems to involve the proposition that conflicting conflicting 
 
 . . , , rights should 
 
 claims between hen-holders, and other persons, must be dealt with. 
 
 t 
 
 
 8 r 
 
I 12 
 
 Section 21. 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 be adjudicated, and their rights adjusted, as though 
 The Registry Act had not been passed : see R. S. O , c. 
 136, s. 39 ; Latch v. Bri}^ht, 16 Gr. 653 ; and the Courts, 
 in dealing with conflicting claims of lien-holders, and 
 other persons, in the interval between the acquisition of 
 the lien, and the time limited for its registration, should 
 be governed, not by the rules laid down by The Registry 
 Act, but by those principles of equity which would be 
 applicable if no such Act as The Registry Act were in 
 existence, among which would be those relating to 
 notice, etc. Thus, if a mechanic had notice of the exist- 
 ence of a vendor's lien for unpaid purchase money before 
 commencing his work, his mechanic's lien would not be 
 entitled to priority over it : see Phillips, ss. 243, 244. 
 But notice that work is going on upon land is not 
 necessarily actual notice of any lien for such work : see 
 Douglas v. ChAmberlain, 25 Gr. 288; Richards v. Cham- 
 
 berlain, lb. 402 ; Graham v. Williams, 9 O. R. 458. 
 It has been, however, already pointed out, (see atite, 
 p. \2et seq.) that the trend of authority has been in favour 
 of the view that notwithstanding this section the conflict- 
 ing rights of lien-holders, and transferees of the " owner," 
 are governed by The Registry Act, even in the interval 
 between the acquisition of the lien and the time limited 
 by the Act for the registration of the lien, or a certificate 
 of lis pendens. 
 
 Section 22. 
 
 22. — (i) A claim for lien by a contractor 
 Hen8™wh°en to oi* sub coHtractor (o) may, in cases not other- 
 e registered, ^j^^ provided for, be registered {b) before or 
 
 during the performance of the contract or 
 
TiiK Mechanics' Ijkn Acr or ONTARIO. 
 
 within thirty davs after the completion thereijf. ^^^'^'J^ -" 
 
 (2) A claim for lien for materials {c) may 
 be registered before or during the furnishing 
 or placing thereof {c/) or within thirty days 
 after the furnishing or placing of the last ma- 
 terial so furnished nnd placed 
 
 (3) A claim for lien for services {e) may 
 be registered at any time during the perform- 
 ance of the service or within thirty days after 
 the completion of the service. 
 
 (4) A claim for lien for wages (/) may be 
 registered at any time during the perform- 
 ance of the work for which such wages are 
 claimed, or within thirty days after the last 
 day's work {£■) for which the lien is claimed. 
 59 V. c. 35, s. 21 ; 60 V. c. 24. s. 5. 
 
 ((0 "a contractor or sub-contractor" Kvery per 
 son claiming a lien under this Act must he in the 
 position either of a contractor, i. e., of one who con- 
 tracts directly with the owner, or a sub-contractor, i. e., 
 one who contracts with a contractor or some other sub- 
 contractor. This section, however, appears to draw a 
 distinction between contractors and sub-contractors 
 based upon the nature of the work they perform, or the 
 subject matter of the lien. And notwithstanding that 
 sub-section (i) in terms actually includes every class of 
 lien holder that there can be, the subsequent sub-sections 
 appear further to divide them into other classes, viz., 
 8 
 
 
14 
 
 Tm: MicHANics' Likn Act ok ONTARIO. 
 
 .sccih)ii .•-•. those who claim liens for " materials," and those who 
 claim for "services," and those who claim for "work ;" 
 and a difTerent rule is laid down for the claimants of the 
 two latter kind of liens to that which is prescribed for 
 all other claimants of liens. Hy suh-sectioH (i), it will be 
 observed, a lien may be registered before the perfor- 
 mance of the contract, but by suli-scctioiis 3, and 4, the 
 liens for services or work cannot be registered before the 
 performance of the service or work, but only during its 
 performance, or within thirty days after the completion 
 of the service or work. Notwithstanding, therefore, the 
 generality of tht- words of .v///i-.w//V>// (1) it is probable 
 that they will be judicially held to be limited to liens not 
 specifically provided for in the two following nih-sci-tioiis. 
 
 of^*fien?'neces. (<^) " may be registered." If the cases of Hyms 
 priorky.^^''"" V- ^"^itti, 27 Gr. 1 50, and McVean v. Tiffin, 13 A. R. 1, 
 are a correct exposition of the statute, it would seem 
 that in order to secure the lien-holder's priority, as 
 against persons dealing with the " owner " subsequently 
 to the commencement of the work, the lien must he re- 
 gistered before the instrument under which the owner's 
 subsequent vendee or mortgagee claims title, otherwise 
 the lien holder will be postponed thereto, unless the 
 prior registered transferee had actual notice of the lien 
 before the registration of his deed : Waniy v. Robins, 15 
 O. R. 474. The accuracy of the reasons given for those 
 decisions appears to be open to some doubt, (see Makins 
 V. Robinson, 6 O. R. i). But even if a subsequent 
 - grantee or mortgagee of the " owner " were not able 
 to acquire priority over a lien-holder, merely by prior 
 registration of the instrument under which he claims, yet 
 
Thk Mechanics' I.ikn Act ok ONTARIO. 
 
 "5 
 
 Scctioll 
 
 si'i'iin- 
 lar u 
 
 where he has aajuired a legal title, and has had no ac 
 tual knowledge of the lien, it is possible (apart altogether 
 from The Registry Act) that he could, under such cir- 
 cumstances, successfully claim priority over the lien. 
 
 A mechanic's taking a promissory note, which matures ^''"''•jjl^^^ 
 
 and is dishonoured before the expiration of the period ^''"'^■*^' ""'«'" 
 
 • • JUL- • r • "'" '''^"• 
 
 Imiited by this section for registering a lien, is no waiver 
 
 of his right to register a lien : Lindop v. Martifi, ^^ C. 1 ,. 
 'I'. 312; Makifis V. Robinson^ 6 C). R. i ; and see Van- 
 Court V. JSushnell, 21 111. 624. Hut the taking of a 
 security, inconsistent with the right of lien, is a waiver of 
 the lien : see Kinzey v. Thomas, 28 111. 502 ; Bciiitesoii 
 v. Thayer, 23 111. 374 ; and so is the taking of a negotiable 
 note for the debt, which has been negotiated and is 
 out of the power of the claimant of the lien when the 
 action is brought : Clement v. Newton, 78 III. 427 : Cros- 
 key V. Corey, 48 111. 442 ; and it has been held that if 
 the right to a lien is once waived it cannot be revived : 
 Edmonds v. Tiernan, 2 1 S. C R. 406 ; see, however, 
 section 28, post, which may be found to have, to some 
 extent, iiodified the effect of some of these cases. 
 
 (c) "materials" This word includes every kind of 
 moveable prop-'rty : see section 2 (5). 
 
 H: 
 
 {d) " furnishing or placingf thereof " 
 goods were furnished from time to time 
 
 Where 'i"i>'i-iy 'lavs, 
 
 now compiitea 
 as re- ^^'here goods 
 supplied from 
 
 <iuired, not under any contract, it was held each supply time to time. 
 was a separate and distinct transaction : Chadwick v. 
 Hunter, i Man. 3c;. But where the goods were ob- 
 tained from time to time as required for the purpose of 
 a building, in pursuance of a prior understanding that 
 
 \M 
 
f 
 
 116 
 
 Sfction 2j. 
 
 Kemeayin}' 
 defects, time 
 not extended 
 thereby. 
 
 The xMixHAMcs Lien Act ok ONTARIO. 
 
 all the goods required there/or should be got from the 
 person supplying the materials, it was held that '.he en- 
 tire transaction was linked together by this prior arrange- 
 ment, so that the lien for the whole of the goods might 
 be registered within thirty days from the last delivery : 
 Morris v. T/iar/c, 24 O. R. 159; Lindop w Mar/in, 3 
 C. L. 1". 3 [2. If, therefore, materials are delivered un- 
 der a single contract piecemeal, it would seem that the 
 thirty days in which the action must be brought, or the 
 lien registered, would not commence to run until there 
 had been a complete delivery of all the materials in- 
 cluded in the particular contract. But where a material- 
 man has a single contract for the supply of materials to 
 a contractor who has entered into separate and distinct 
 contract with several " owners," the time for filing a lien 
 by such material-man against any one of the "owners,'' 
 is not to be measured with reference to the duration of 
 ihe deliveries under the contract between the material- 
 man and the contractor, but by the completion of tiie 
 work by the contractor for the " owner " against whom 
 the lien is claimed : Re Moorehoiise d-^' Lvak^ '>? O. R. 
 290. But a sub contractor for materials must register 
 his lien within thirty days after the last delivery to the 
 contractor or sub-contractor with whom he contracts ; the 
 lime for registering his lien is not extended by any delay 
 on the part of the contractor or sub-contractor to whom 
 the materials are supplied in placing them on the prem- 
 ises : Hail\. Hogg, 20 O. R. 13. Where the work has 
 been done, or the materials have been furnished, and ac- 
 cepted by the " owner," the existence of some slight 
 defect, which is subsequently remedied by the contrac- 
 tor, will not be deemed to extend the time for registering 
 
 . 
 
 m 
 
Thk Mechanics' Ijen Act oi ONTARIO. 
 
 117 
 
 the lien until thirty days from the time the defect is '^™^1"" •' 
 remedied, even though the work or materials were ac- 
 cepted on the understanding that the defect was to be 
 remedied : Neill v. Carroll, 28 Gr. 30 ; (affirmed on re- 
 hearing, Blake, V.C , diss.), Ih. 339 * ; Ma kins v. Ro/>- 
 i/isa/i, 6 O. R. I ; AW/y v. McKenzie, 1 Man. 169. 
 But where the completion of the work was delayed, its 
 subsequent completion after a long delay was held to 
 e.xtend the time for registering the lien : //7r/>/v. .^(?>';/iy-'/, 
 
 4 Man. 10. 
 
 • Where a material-man supplied goods to a contractor J;,9^^^^j^f '.'.';„„. 
 on credit, and charged them in a running account, and ^.^f^'^V*;^' .[;," 
 the contractor received moneys from time to time from^"""*^'"^" /"'• 
 the " owner," which he paid over to the material-man, 
 and no appropriation of payments was made by either 
 the " owner " or the " contractor," and the material- 
 man credited his receipts generally in account with the 
 "contractor," and registered a lien for the balance, includ- 
 ing in such lien the latest items of his account, it was held 
 that he was entitled to the lien claimed : Lindop v. yl/r?/-- 
 //;/, 3C. I. T. 313. 
 
 (<') "services." See ^/w/f, p. 11, note (<■), as to the 
 probable meaning of this word. 
 
 (/) " wages," would appear to include money pay- 
 able to a mechanic cr labourer for every other kind of 
 work not included in the term " service." It includes the 
 wages of the day labourer as well as those of the 
 skilled artizan : see section 2 (6), ante, p. 5. 
 
 Mr 
 
 ^1: i 
 
 ' See Suniiiiers V. Beard, 24 O. R. 641, where it appears that the 
 effect of the judgment on renearing; in AViM v. Canoll is as liere 
 stated, and that the report in 28 Gr. is inaccurate. 
 
 
 
 
Se;;tion 22. 
 
 118 The Mechanics' Lien A( t of ONTARIO. 
 
 (.if) "last day's work." It would seem probable 
 that when a lien for work is claimed, there must be a 
 /will fide performance of the last day's work here referred 
 to, under the same contract as that under which the 
 other work for which a lien is claimed has been perform- 
 ed ; and that it will not be possible to revive a lien for 
 work which has expired by lapse of time, by doing sub- 
 sequently another day's work on the premises upon 
 which the lien is claimed under a new contract, or in 
 pretended performance of a contract which has been in 
 fact completed for more than thirty days. But where 
 the completion of the work has been delayed its subse- 
 quent completion, even after a long delay, will extend 
 the time for registering the lien, or bringing an action to 
 enrbrce it : Invin v. Beynon, 4 Man. 10 
 
 23. Ev^ery lien which is not duly regis- 
 iVproceedfngs tered {a) iindcr the provisions of this Act 
 wuhin time shcill absolutelv cease to exist on the expira- 
 
 fixed by Act. ^ , '' . _ _ "^ 
 
 tion of the time hereinbefore limited for the 
 registration thereof unless in the meantime [b) 
 an action is commenced to realize the 
 claim (r\ or in which the claim may be 
 realized under the provisions of this Act, and 
 a certificate thereof (fl^) according to Form 6 
 in the schedule hereto, signed by the proper 
 officer of the Court, is duly registered (^) in the 
 registry office of the registry division, or 
 Rev^st;.t, vv'here the land is registered under The Land 
 
 Section 23. 
 
 ,J- 
 
 
1 1" 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 iiy 
 
 Titles Act. in the land titles office of the ^--^^^^ 
 locality, wherein the lands in respect of which 
 the lien is claimed are situate. 59 V. c. 35, 
 s. 22 ; 60 V. c. 3, s. 3 ; c. 15, Sched, A, (76). 
 
 {a) " which is not duly registered." The time for the J,\^,?;«„\'f;i"^'^ 
 registration of liens is prescribed by the preceding section- to be n'lade. 
 Under the former Act, wherever the period of credit 
 agreed to by the mechanic extended beyond thirty days 
 after the completion of the work, or the furnishing of 
 the materials, the registration of the claim was absolutely 
 necessary in order to preserve the lien, because no action 
 could be brought to enforce the lien until the period 
 of credit had expired : Bitrritt v. Refdhan, 25 Gr. 183 ; 
 Neill V. Carroll, 28 (k. 30 ; //'. 339 ; and see Ritchie v. 
 Gundy, 7 Man. 532. Under the present Act, however, 
 an action may be commenced, and a lis pendens x^%\^- 
 tered before the period of credit has expired, but further 
 proceedings in the action by the plaintiff must be stayed 
 till the period of credit has expired : see post, section 28. 
 
 U>) "unless in the meantime." It is not essential Action^to^^ 
 to the preservation of the lien that the proceedings tnne^for^ 
 should have been instituted by the lien-holder himself ; 
 it will be sufficient if they have been instituted by some 
 other lien holder claiming a lien on the same property : 
 see section 32 : Bunting v. Bell, 23 dr. 584 ; Hot'enden 
 V. Ellison, 24 Gr. 448 ; McPherson v. Gedge, 4 O. R. 
 246. An action by another lien-holder would not have 
 the effect of reviving any lien which had expired under 
 this section before the action was commenced.. Although 
 an action to enforce a lien may be begun before the 
 
 
 I I 
 I 
 
 ! .•-■■ 
 
 f 
 
.-« BP>WBj"y ^ 
 
 mrnrnn 
 
 120 
 
 Thk Mfxhanics' l.iKN Act of ONTARIO. 
 
 Section .'i. 
 
 ,;.*>» 
 
 Actions 
 slioulcl be 
 cominencecl 
 against all 
 parties inter- 
 ested within 
 prescribed 
 time. 
 
 period of credit agreed to has expired : see section 28, still 
 in order to entitle a lien-holder to maintain the action 
 against the owner, the period of credit (if any) between 
 the "contractor" and "owner" must have expired: 
 Ihirritt v. Rciiihan, 25 Gr. 183 ; and it would seem that 
 where the action is brought by a " sub contractor," the 
 period of credit (if any) between him and the " contract- 
 or," or " sub-contractor,"' by whom he was employed, 
 must also have expired before the action can be properly 
 proceeded with by the plaintiff. 
 
 This section appnca to every claim to enforce a lien un- 
 der the Act. Where a lien-holder filed a bill and obtained 
 a decree to enforce his lien as against the "owner,'" it was 
 held he could not afterwards, and after the lapse of time 
 for bringing an action, file another bill against a prior 
 mortgagee to obtain relief under section 7 (3) : BanA' of 
 .]fontrea/ \\ Haffner, 29 Gr. 319: 10 A. R. 592 ; S C. 
 .v///' nom. Bank of Alontreal \. I J 'ors7it'icA\ Cass. Dig. 289. 
 The principle of Bank of Montreal v. Haffner seems 
 to require that actions to enforce mechanics' liens must 
 be commenced as against all parties against whom relief 
 is claimed within the time prescribed by sections 23, 24 j 
 but see Co/e v. J/a//, 12 P. R. 584 ; 13 P. R. 100. 
 
 {c) "an action is commenced to realize the claim." 
 
 The proceedings must be instituted against the proper 
 parties, within the prescribed time. Usually where parties 
 are added by amendment after the action is commenced, 
 the action as against such parties does not relate back to 
 the issue of the writ, but is only deemed to have been 
 commenced as against them at the time they are added : 
 see S//atv v. Cunningham, 12 Gr. \q\\ Mac Donald \, 
 
 V 
 
 \i^'> 
 
 •t 
 
The Mkchanics' Lien Act of ONTARIO. 121 
 
 Wn\^ht, 14 (;r. 285-6 ; Dumble\. Larus/i, 27 (;r. 1.S7, ^^'''^''^i ^3- 
 \, and where the action as originally constituted is defective, 
 
 -^ it cannot be made good by amendment, after the time for 
 
 commencing the action has expired : e. g. where a plain- : 
 
 tiff originally alleged his contract to have been made with 
 C, it was held that he could not after the time for bring- 
 ing his action had expired, amend his proceedings by n 
 alleging the contract to have been made with D : David- i 
 son V. Campbell^ 5 Man. 250; but see Coh'w Ha//, supra. ,5 
 
 Parties. — The " owner," /.<'., the person whose interest ''"':''^**y 
 
 ' ' r^ actions to 
 
 in the land in question is sought to be sold, must always «^"f"'"^'^ ''^"*'- 
 be made a defendant ; and also the person liable on the 
 contract under which the plaintiff claims : ll'o»d v. 
 .Stringer, 20 O. R. 14S. And where the owner with 
 whom the contract was made has, after the lien attached, 
 sold, or mortgaged, or otherwise transferred, or incum- 
 bered his interest, in the land in question, it would seem 
 proper to make the transferee also an original defendant. 
 Where such subsequent transferee has registered the in- 
 strument under which he claims, prior to the lien, it has 
 been held that he could not under the former practice 
 be added as a subsecjuent encumbrancer in the Master's 
 office: Hynesy. Sinitli, 27 (ir. 150 ; McVean v. Tiffin, 
 13 A. R. I ; iPe- Craig, 3 C. L. T. 501 ; Rein/iart v. 
 S/iutt, 15 O. R. 325 ; and see ante^ p. 12, section 2, note 
 {g). If, notwithstanding the prior registration of a subse- 
 quent transfer by the owner, the lien-holder claims that 
 his lien is a prior claim to that of the transferee, that 
 question can only be raised by making the trans- 
 feree an original defendant. 
 
 • Even under the former Act it was held that lien holders 
 
 n 
 
12: 
 
 TUK 
 
 MANKs' IjEN Act ok ONTARIO. 
 
 
 Prior iiiort 
 Sagee. 
 
 II;V! 
 
 Section 23. whosc St; . , ci .. plaintiff disputed need not be made 
 original defendants, but that it was competent for the 
 plaintiff lo di?' ute t'^ i status on their being added as 
 parties in the Master'3 office : Halls. Hoii^^, 14 P. R. 45; 
 and see Cole v Hall, 12 P. R., 584 ; 13 P. R. 100. 
 
 Where the action is brought by a sub-contractor, the 
 contractor, or sub-contractor, by whom the plaintiff was 
 employed, is a necessary defendant : Wood v. Stringer, 
 supra. 
 
 Where relief is claimed against a prior mortgagee, un- 
 der section 7, s.-s. 3, such mortgagee must also be made 
 an original defendant : Bank of Montreal v. Haffner, 29 
 (Ir. 319: 10 A. R. 592; S. C. sub nom. Bank of Mon- 
 treal V. Worswick, Cass. Dig. 289. See further as to 
 parties to actions to enforce liens, post, pp. 142, 143. 
 
 {(i) "a certificate thereof" This means a certifi- 
 cate that the proceedings have been commenced. The 
 certificate should show the names of the parties, plain- 
 tiff and defendant, to the action, and should also accur- 
 ately describe the land over which the lien is claimed as 
 it is described in the proceedings. 
 
 For Form of Certificate of lis pendens, see Appendix. 
 
 The certificate must be issued by the officer with whom 
 the proceedings are commenced. Where the seal of a 
 Court of Record is affixed to the certificate, it proves 
 itself, and can be registered without affidavit : see R. S. 
 O. c. 136, s. 51. An affidavit would however seem 
 necessary where the certificate is not under seal. 
 
 (<) " duly registered." I'he proceedings must not 
 only have been commenced within the thirty days, but 
 the certificate must have been registered within that 
 
 Certificate /('•'• 
 lieiidi'iin. 
 
 How issued. 
 
TiiK Mkchanks' r.iKN Ad oi ONTARIO. 1*3 
 
 period, or the lien will cease. Where the land in (lues- ^^'^^'^^ ■'J- 
 tion is situate partly in two registration divisions, a cer- 
 tificate of the commencement of the proceedings must 
 be registered in both divisions. 
 
 A mistake of the registrar in indexing or omitting to 
 index the certificate will not invalidate its registration : 
 /jmrie v. Rathbun, 38 U. C Q. 15. 255. ^j 
 
 It would appear to be a sufficient registration of a Us ; 
 
 pefidi'iis within the meaning of this section, if any action J 
 
 be registered within the prescribed time in which the 
 lien-holder is entitled to recover his claim : see Buritiusr 
 v. Bell, 23 (ir. 584; and per Osier, J., AfcPherson v. 
 Gedge, 4 O. R. 246; and see seel wn 32. 
 
 24.— (i) Every lien which has been duly •sect^.n .4. 
 registered («) under the provisions of this^^h,*^»i'/^,yi«., 
 
 itiiii • A. / / \ Ci. tered and not 
 
 Act shall absolutely cease to exist {0) alter proceeded 
 the expiration of ninety days after the work 
 or service has been completed or materials 
 have been furnished or placed, or the expiry 
 of the period of credit, [c) where such period 
 is mentioned in the claim of lien registered, 
 unless in the meantime an action is commen- 
 ced to realize the claim under the provisions of 
 this Act, or an action is commenced in 
 which the claim may be realized {cl) under the 
 provisions of this Act, and a certificate regis 
 tered as required by the next preceding 
 
 upon. 
 
 t 
 
24 
 
 The Mixhanics' Lien Act or ONTARIO. 
 
 5'..'' 
 
 t'! 
 
 section24. section, 59 V. c. 35, s. 23 (i); 60 W c. 15, 
 Sched. A (76). 
 
 itend^ofsfx'*" (2) The registration of a lien shall cease 
 I'enewed""'^'''' to liave any effect at the expiration of six 
 months from the registration thereof, unless 
 the lien shall be again registered (^)within the 
 said period, except, in the meantime, proceed- 
 ings have been instituted to realize the claim 
 and a certificate thereof has been duly regis- 
 tered in the j)r()per registry or land titles 
 office. 59 V. c. y^, s. 23 (2). 
 
 Action to 
 enforce reg- 
 istered lien, 
 time for. 
 
 (<?) " which has been duly registered." The pre- 
 ceding section, having ))rescribed the time within which 
 an action must be brought to enforce unregistered liens, 
 the present section prescribes the time within which an 
 action must be brought to enforce a registered lien. By 
 registering the claim within the thirty days after the com- 
 pletion of the work, or furnishing of the materials, an 
 additional period of sixty days is gained for commencing 
 an action to enforce the claim. 
 
 Where a contractor, working for several "owners," has 
 but a single contract for the supply of materials with the 
 material-man, the time for the latter's registering a lien or 
 commencing an action against any one of the "owners" 
 is not to be measured with reference to the duration of 
 deliveries under the contract between the material man 
 and the "contractor," but by the completion of the work 
 
The Mechanics' Kiln Act ok ONTARIO. 
 
 125 
 
 by the contractor for the " owner " against whom the lien ^c ^'^'"" -!4- 
 is claimed : Re Moorehoiise e^ I.eab, 13 O. R. 2i;o ; but 
 a sub-contractor for materials must register his lien, 
 or commence the action to enforce it within thirty 
 days after the last delivery to the contractor or sub- 
 contractor with whom he contracts, as the time for 
 registering his lien, or bringing an action to enforce it, 
 is not extended by any delay on the part of the contrac- 
 tor or sub-contractor to whom the materials are supplied 
 in actually placing them on the premises : Hall \. //o^X' 
 20 (). K. 13. 
 
 (l>) ''shall absolutely cease to exist" Alien may Lien t<> Lease 
 be put an end to, not only by failure to bring a suit to cuted oHr 
 enforce it and registering a certificate of l/s /'e'//rt'<v/j cons[lten" 
 within the time limited by this seaio/i, but also by the uen Ve*^''* "^ 
 lien-holder accepting security for his debt inconsistent '*'^'^^"- 
 with his right of lien : see Ki)izey v. Thomas^ 28 111. 
 502 ; Croskcy v. Carey, 48 111. 442 ; Bennesoii v. Thayer, 
 23 111. 374 ; Clement v. A^e7vfon, 78 111. 427. But the 
 taking of a promissory note, which is not negotiated and 
 is dishonored at maturity, is no waiver of the lien : I'an- 
 Coiirt V. Bushiie/l, 21 111. 624 ; and see also section 28. 
 
 ('•) "or the expiry of the period of credit" 'i'he ji'^!»^.f;'^ ^^_ 
 period of credit between the "owner" and "contractor" ton where 
 
 ' credit K'ven. 
 
 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 (so far 
 as an action by the sub-contractor is concerned) 
 is the latter period, as until that has elapsed, the sub- 
 contractor is not in a position to carry on an action 
 
 '^ »i 
 
 * 
 
 '^t 
 
 I 
 
m 
 
 126 
 
 TiiK Mkchanus' Ijkn A( t 01 ONTARIO. 
 
 Section .4. to enforce his litn against the owner : Burritt v. 
 Ri'i-'haii, 25 dr. lS^ ; Haj^i^crfy \. Grant, 2 B. C K. 
 173. The existence of an agreement to give credit will 
 not, however, prolong the time for commencing an ac- 
 tion, unless it be stated in the registered claim when the 
 period of credit agreed to will expire: see section 25. 
 Section 28 seems to provide for the case of a further 
 extension of time for payment beyond that named in 
 the registered claim. 
 
 ^:ff 
 
 :P 
 
 
 othei litn (^/) "an action IS Commenced in which the claim 
 
 bolders ot < < , • i 
 
 same class, mav be rcaiuzcd-' An action by any one lienholder 
 
 when entitled ' ... 
 
 to benefit of will keep alive the hens of all other hen-holders on the 
 
 action. . ,..„,. 
 
 same property : section 32 ; but where the plamtiff brmg- 
 ing the action turns out to have no cause of action, other 
 lien-holders who have, cannot get the benefit of the plain- 
 tiff's action : A'^ Sear cr' Woods, 23 O. R. 474. 
 
 A defence filed in an action to set aside the lien is 
 not a proceeding to realize the claim, though a counter- 
 claim if properly framed and a certificate thereof duly 
 registered, might be so: McNamara v. Kirkland, 18 
 A. R. 271. 
 
 {e) "unless the lien shall be again registered." 
 Where the period of credit extends beyond six months 
 from the first registration, under this sub-section the lien 
 must be kept re-registered every six months, until the 
 action is commenced and the lis pendens registered : see 
 section 28, which enables the action to be commenced 
 even though the period of credit has not expired, by 
 proceeding under that section the necessity for re- regis- 
 tration would be avoided. , 
 
 fe^ I 
 
'I'liii Mechanics' Liin Act of ONTARIO. 
 
 127 
 
 25. If there is no i)e-i(Hl of credit (a), or ^^^^^'^ ="• 
 if the date of the expiry of the period of ere- ceuse'if'there 
 
 , I'll- • 1 in no period 
 
 dit IS not stated in the claim so registered, "f^reciit. 
 the lien shall cease to exist upon the expira- 
 tion of ninety days after the work or service 
 has been completed or materials furnished (d) 
 or placed, unless in the meantime an action 
 shall have been commenced and a certificate 
 registered as required by section 23 of this 
 Act. 59 \'. c. 35, s. 24. 
 
 ('0 If there is no period of credit," The object 
 of recjuiring the period of credit to be stated in the 
 registered claim of lien, is to enable persons dealing with 
 the |)roperty affected thereby to see when the lien will 
 expire by effluxion of time : see, however, the provisions 
 o{ section 28, and note (/'), post, p. 135. 
 
 {/>) "work or service has been completed or mate- Acceptance of 
 rials furnished " Where the work has been done, or to remedying 
 
 a defect, 
 
 the materials have been furnished and accepted by the effect of. 
 owner, the existence of some slight defect, which is sub- 
 sequently remedied by the contractor, will not be deemed 
 to extend the time for taking proceedings to enforce the 
 lien by action, until the defect is remedied, even though 
 the work or materials were accepted only on the under- 
 taking that the defect was to be remedied ; Neitl v. Car- 
 roll, 28 Gr. 30 ; affirmed on re-hearing, 3. 339, Blake, 
 \. C, dissenting ;* A/akin s v. Robinson, 6 O R. i ; 
 Kelly V. McKenzie, i Man. 169. But where the com- 
 
 * See note, o?i((' p. 117. 
 
 I! 
 
 > %. 
 
 I 
 
w 
 
 I2.S 
 
 Thk Mkc hanks' I,ikn Ac r oi ONTARIO. 
 
 Sccti<Mi -s pletion of the work lias hocii delayed, its sul)SC(|Uunt 
 completion, even after a long delay, will extend the lime 
 for bringing an notion to enforce the lien : Irivin v Bey- 
 lion, 4 Man. lo. 
 
 Section j(>. 
 
 DiMth (ii 
 lifn-holdcr. 
 
 AssinniiKMil 
 of lion. 
 
 KijClits of 
 assignee. 
 
 26. In thtj: cvfiu of the dt-ath of a lien- 
 holck-r his ri^hi of lien shall pass to his per- 
 sonal representatives ; and the right of a 
 lien holder may be assigned by any instru- 
 ment in writing (i?)- 59 V. c. 35, s. 25. 
 
 'n) "may be assig:ned by any instrument in 
 writing- ' Usually no particular form of words is 
 necessary to create an assignment of the lien ; it is 
 sufficient if the intent is shown. Where a mechanic 
 assigned his interest in a hen, and subsequently took a 
 re-assignment of it in trust for his assignor, it was held, 
 before this section was passed, that he was entitled to 
 enforce the hen : Currier v. Friedricky 22 (Ir. 243. 
 
 'I'he assignee can take no greater right under the 
 assignment than the assignor himself had. Where a lien 
 has expired in consequence of the lien-holder omitting 
 to register it, a subsequent assignment of the debt, 
 " with all rights and liens," passes no right of lien to the 
 assignee : Hooper v. Seiis, 58 Ga. 127 ; and an assign- 
 ment would no doubt be held to be subject to all such 
 e(|uities, in respect of the whole, or any part, of the 
 claim assigned, as e..'.sted at the time of the assignment, 
 or before notice thereof to the. debtor, or other person 
 sought to be made liable, in the same manner, and to 
 
 
Thk Mechanics' 1,ikn A( t oi ONTARIO. 
 
 I2i) 
 
 the same extent, as if there had been no assignment: ^*-'^^'"" ■'^- 
 see jud. Act (R. S. O., c. 51)5. 58 (5). 
 
 liven, apart from this sectiju. so far as the lien on the '^"^'K"'".*""* 
 
 ' '^ inuat bo in 
 
 land is concerned, it would seem that there could be no writing. 
 valid assignment of it, except by writing ; because the 
 lien, being an interest in land: Stewart v. Gesner, 29 (Ir. 
 329, under the Statute of Frauds, a parol assignment 
 would be invalid: see Ex parte ffi/i, 10 Chy. 1). 615. 
 
 27.— (i) A litn maybe dischargt^d by a ««^^tkm^7. 
 recei[)t (a) signed by the claimant, or hisj/J^'^^''''"^*^'"' 
 agent duly authorized in writing (b), acknow- 
 ledging payment, and verified by affidavit 
 and registered ; such receipt shall be num- 
 bered and entered by the Registrar like 
 other instruments but need not be copied in 
 any book, but the registrar shall enter against 
 the entry of the lien to which the discharge 
 relates the word " discharged," and state the 
 registration number of such discharge; the 
 fees shall be the same as for registering a 
 claim of lien. 
 
 (2) Upon application the court or judge^™^^ ';;;,„ 
 or other officer (r) having power to try an yacltingi 
 action to realize a lien, may receive security 
 or payment into court [d) in lien of the 
 amount of the claim and may thereupcjn 
 vacate the registration of the lien. 
 9 
 
 thereon. 
 
 t* 
 
 <Si 
 
^?o 
 
 The Mechanics' Ijen Acr of ONTARIO. 
 
 I'' I 
 
 < 
 
 . i 
 
 i^ 
 
 ^"""^i!^^ ''■ (3) The court or such judge or other officer 
 ilSioif Jn*^' "1'iy vacate the said registration upon any 
 
 other grounds. 1 1 / \ 
 
 Other ground [e). 
 When notice (1) Where the certificate required by sec- 
 
 of application \ '' i ' 
 
 req^'uTsttl.''"^ tion 23 or section 24 of this Act has not been 
 registered within the time Hniited, and an 
 appHcation is made to vacate the registration 
 of a lien after the time for registration of the 
 certificate re([uired by sections 23, 24 an<' 25 
 of this Act, the applicant shall not be re- 
 (juired to give notice of the application to the 
 person claiming the lien, and the order vacat- 
 ing the lien may be made ex parte {/) upon 
 [)roduction of the certificate of the proper 
 registrar certifying the facts entitling the 
 applicant to such order, 59 \'. c. 35, s. 26 
 
 (14)- 
 
 Receipt in fiis- (,,) " ^ reccipt" No form of receipt is prescribed ; 
 
 form of. but either the receipt or the affidavit verifying it ought 
 
 to be so worded as to clearly identify the lien in respect 
 of which it is given. A mere receipt for so much 
 money, without any specific reference to the lien, or to 
 the land affected by the lien, could not be properly 
 registered, unless the affidavit supplied the deficiency. 
 It is preferable that the receipt itself should show on its 
 face to what particular lien it relates, so as to avoid, as 
 far as possible, the possibility of controversy on the 
 point. 
 
The Mechanics' Lien Act of ONTARIO. 
 
 131 
 
 This subsection refers to voluntary discharges of h'ens Section 27. 
 by hen-holders. Where the lien-holder wrongfully J^'ej^-hoidei- 
 refuses to give a discharge of his lien, an application ^efusniR to ^^^ 
 may be made, under subsection 3, supra, for the discharge 
 of the lien ; or the " owner " may apply, under section 
 25 (2), to vacate the lien on giving security for the ^'r'*^,^^i5',| "''" 
 amount claimed by the lien-holder security. 
 
 For a F'orm of Receipt and Affidavit verifying same, 
 see Appendix, p. 293. 
 
 (b) "or his ag:ent duly avithorized in writing;" 
 
 Where a lien is discharged by an agent, it seems advis- 
 able that the document giving him authority to act 
 should also be registered. 
 
 (c) court or judg:e or other officer " The various 
 ofificers who have power to try actions to enfotce liens 
 under this Act are enumerated in section 34, post. In 
 addition to ordering a lien to be vacated, they have 
 power to award costs of vacating the registration : see 
 post, section 44. 
 
 (d) ' payment into court " Where payment into 
 court is directed, the order should direct the amount 
 required to be paid into court, to be paid into the credit of 
 the action subject to further order; and the money must 
 be paid into court in the manner prescribed by the Con 
 Rules, 405-410. The words " in lien " which follow are 
 obviously a misprint for " in lieu," and the mistake was 
 corrected by 62 Vict. St. i, c. 2, Sched (3.) 
 
 ('•) ''upon any other g^round." Where the land 
 had been sold under a power of sale contained in a 
 pwor mortgage, the lien was ordered to be vacated on 
 
 I la 
 
 
[32 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 L*' 
 
 J. 
 
 •4 ' 
 
 
 I- 
 
 Sec tion 27. \]^q surplus realized from the sale being paid into court : 
 Finn v. Miller^ 26 C. L. J. 55. 
 
 (f) "may be made ex parte." A careful perusal of 
 this section will show that it is only in those cases where 
 it appears on the face of the registered instrument that 
 it has not been registered in time, that the application 
 to vacate it can be made without notice ; wherever it is 
 necessary to produce any other evidence than the 
 Registrar's certificate to show that a claim of lien ought 
 to be vacated, it would appear to be necessary to give 
 notice of the application to the claimant of the lien 
 sought to be vacated. This seems to be reasonably 
 clear from the concluding words of the sub-section, which 
 show that the evidence on which the order may be 
 made ex parte is the Registrar's certificate. Even on 
 notice, the court will not, on a summary application, 
 decide against the lien, except in a clear case, but will 
 leave the matter to be fought out by suit : Re IVallis &' 
 Vokes, 18 O. R. 8. 
 
 Section 28. 28. The taking of any security {a) for, or 
 not to preju- the acceptancc of any promissory note for, or 
 enforcf lien" the taking of any other acknowledgment of 
 the claim, or the giving of time (b) for the 
 payment of the claim, or the taking of any 
 proceedings for the recovery of the claim or 
 the recovery of any personal judgment for 
 the claim, shall not merge, waive, pay, satis- 
 fy, prejudice or destroy any lien created by^ 
 
 t, 
 
 :■ 1 
 
, \ 
 
 ft 
 
 The Mechanics' Lien Act ov ONTARIO. 13 
 
 this Act, unless tht! lien-holder agrees in writ- -"^^''tion 28. 
 ing that it shall have that effect ; j)roviclecl, 
 however, that a person who has extended the 
 time for payment of any claim for which he 
 has a lien under this Act to obtain the benefit 
 of this sub-section shall commence an action 
 to enforce such lien within the time limited 
 by this Act, and register a certificate as re- 
 quired by sections 23, 24 or 25 of this Act, 
 but no further proceedings shall be taken in 
 the action until the expiration of such exten- 
 sion of time ; provided further, that notwith- 
 standing such extension of time (r), such per- 
 son may, where an action is commenced by 
 any other person to enforce a lien against the 
 same property, prove and obtain payment of 
 his claim in such action, as if no such exten- 
 sion had been given. 59 V. c. 35, s 26 (5). 
 
 (tt) ''Thctakingof any security" The provisions 
 of this subsection are entirely new. They must be read in 
 connection with the provisions of sections 23, 24 and 
 25. Where the taking of the security involves the ex- 
 tension of the time for payment beyond the period lim- 
 ited by those sections for the bringing of the action to 
 enforce the lien, the action to enforce the lien must nev- 
 ertheless be commenced within the period limited by 
 those sections or it will cease to exist. All, therefore, 
 
 ! a 
 
 'S' 
 
wr 
 
 134 
 
 Section 28. 
 
 The Mechanics' Likn Act of ONTARIO. 
 
 that this sub-section seems to mean, is that the taking of 
 security, or the acceptance of a note or the taking of 
 any other acknowledgment of the claim, or the giving 
 of time for the payment of the claim shall not per se 
 avoid the lien : but if in addition to the taking of the 
 security, note or a'^knowledgment, or the giving of time, 
 the lien-holder alsi neglects to comply with the other 
 provisions of the Act limiting the time within which an 
 action is to be brought to enforce his claim, then the 
 lien will be incapable of being enforced notwithstanding 
 this section. Even under the former Acts, which con- 
 tained no such provision as that now under considera- 
 tion, it was held that the taking of a promissory note 
 which matured and was dishonoured before the expira- 
 tion of the period limited for bringing an action to en- 
 force the lien, was no waiver of the right of lien : Liudop 
 V. Martin^ 3 C. L. T. 212 ; Alakins v. Robinson^ 6 O. R. 
 I. But it has been held that the taking of a security 
 inconsistent with the right of lien, amounted tc a waiver 
 of the lien : see Kinzey v. Thomas, 28 111. 502 ; Henne- 
 son v. l^hayer, 23 111. 374; and the taking of a negotia- 
 ble note for the debt, and negotiating it, so that at the 
 time the lien was sought to be enforced the note was not 
 in the power of the claimant of the lien, was held to be 
 a bar to the enforcement of the lien : dement v. New- 
 ton 78 111. 427 ; Croskey v. Corey, 48 111. 442 ; and it is 
 difficult to understand how any other conclusion could 
 be arrived at consistently with equity even under the 
 provisions of this Act. While it may be reasonably as- 
 sumed that the Legislature intended to afford mechanics 
 and others entitled to the benefit of the Act every facility 
 for the recovery of their claims, it cannot be assumed 
 
 \ 
 
1 :\ 
 
 
 The Mechanics' I.ien Act of ONTARIO. 
 
 ite 
 
 that it intended to subject their debtors to a double lia- i^e^tion 2«. 
 
 bih'ty in respect of the same debt, which would be the 
 
 case if a claimant of a lien could enforce his lien, and at 
 
 the same time a third person, to whom he had transferred 
 
 a note received in respect of his claim, could also sue 
 
 the maker and recover thereon. 
 
 We must therefore conclude that the preliminary part 
 of this iuu-seciion is based on the assumption (i), that 
 notn-ithstanding the taking of the security, proceedings 
 to enforce the lien are commenced within the time lim- 
 ited by sections 23, 24, and 25 ; and (2), that at the time 
 the lien-holder seeks to enforce the lien he is in a posi- 
 tion to restore the security received by him. 
 
 As to the effect of giving a negotiable instrument in 
 payment of a debt, see Bence v. Shear ma ti, (1898) 2 Ch. 
 582 ; Had/ey v. Hadiey, lb. 680. 
 
 (/;) " grivingf of time " " The giving of time for the 
 payment of the claim " seems to stand on a somewhat 
 different footing to the acceptance of security. The 
 giving of time is in effect an extension of the period of 
 credit. 
 
 The case of an extension of the period of credit 
 beyond thirty days from the delivery of the materials, 
 or the completion of the work for which a lien is 
 claimed, is provided for by sections 24, and 25. It will 
 be seen by reference to those sections that where the 
 extension of time of payment is a part of the original 
 contract it must be stated in the registered claim, and 
 if it is not stated, the lien might be defeated, as the 
 lien-holder could not, but for this section, bring his action 
 
 > . 
 
j;/^ 
 
 The Mkchanics' Likn .\( t of ONTARIO. 
 
 I'll 
 
 11 
 
 Section 28. within the time prescribed : but it is possible that under 
 this sub section where such an omission has been made 
 in the registered claim, the lien-holder will now be enti- 
 tled to commence an action as if no period of credit 
 had been given, but that further proceedings in it will 
 * * be stayed until the period of credit has expired. This 
 
 introduces a somewhat novel principle into the bringing 
 of an action to enforce liens. In ordinary cases a plain- 
 tiff's rights must be determined as of the date when his 
 writ issues, and if he brings his action prematurely, it 
 must be dismissed, notwithstanding that at the time of 
 the trial his right of action may have matured. This 
 section seems to authorize the commencement of the 
 action, before the plaintiff could, in an ordinary case, 
 be in a position to sue. 
 
 The provisions of this subsection seem also to cover 
 the case of an extension of time being given beyond that 
 stated in the registered claim. In such a case the action 
 must be commenced as if the extension had not been 
 given, but further proceedings in it will be stayed until 
 the extended period of credit has expired. 
 
 {c) " notwithstanding such extension of time" 
 This concluding clause will enable a lien-holder to take 
 the benefit of any action of any other lien-holder, not- 
 withstanding he himself may have agreed to an exten- 
 sion of time for the payment of his own claim. Although 
 as far as his remedy in rem is concerned, the lien-holder 
 is absolved by this sub-section from the extension of time 
 for payment to which he has agreed, it would appear 
 to be still binding on him so far as any personal remedy 
 against his debtor is concerned. 
 
 \ 
 
 
. .t ♦ 
 
 The Mechanics' Lien Act oi ONTARIO. 
 
 '37 
 
 i 
 
 
 29. Any lien-holder (/O may at any time •^^•^;^^-"> 
 demand of the owner or his agent, the terms {X't-ntuied 
 
 . , , to information 
 
 of the contract or asfreement with the con- nom owner as 
 
 <-' to terms ot 
 
 tractor for and in respect of which the work, ^■""^'•"'^i- 
 services or materials is or are performed or 
 furnished or placed, and if such owner or his 
 said ay:ent shall not, at the time of such de- 
 mand or within a reasonable time thereafter, 
 inform the person making such demand, of 
 the terms of such contract or agreement, and 
 the amount due and unpaid (6) ui)on such 
 contract or agreement, or shall intentionally 
 or knowingly (c) falsely state the terms of said 
 contract or agreement, or the amount due or 
 unpaid thereon, and if the person claiming 
 the lien shall sustain loss by reason of such 
 refusal or neglect or false statement, the said 
 owner shall be liable in an action therefor {(il) 
 to the amount of such loss. 59 \'. c. 35, s. 
 27 ; 60 V. c. 24, s. 6. 
 
 ((/) "Any lien-hoIdcr." This is a new provision. 
 It is more particularly intended for the benefit of sub- 
 contractors, and to enable them to obtain information as 
 to the exact state of the contract between the owner and 
 the contractor under whom, directly or indirectly, they 
 may have entered into any sub-contract. It is to be 
 noticed that until a person is in the position of a lien- 
 
'38 
 
 Thi: Mkchanrs" Lien Act oi ONTARIO. 
 
 !-;^ 
 
 Section 70. holder, he is not entitled to take the benefit of this 
 section. An owner is entitled to a reasonable time 
 within which to comply with the demand. The demand 
 is not required to be in writing, and may therefore be 
 made verbally. In order to prevent disputes as to what 
 were the terms of the demand, it would be prudent to 
 make it in writing. The owner is not required to answer 
 the demand in writing, usually the exhibition of the ori- 
 ginal contract with the contractor in (juestion, would be 
 a sufficient compliance with a demand as to the terms 
 of the contract : as regards the owner's answer as to the 
 amount remaining due and uni)aid, it would be prudent 
 that that should be made in writing, though it is not 
 absolutely necessary that it should be so. No form is 
 given in the Act, but a form of demand may be found 
 in the Appendix. 
 
 (/') "the amount due and unpaid." The owner in 
 stating the amount due and unpaid must be careful to 
 be accurate. It may be open to doubt what is intended 
 by these words. Is the amount due and unpaid, the 
 balance of the contract price at the time of the demand 
 unpaid, or is it the amount which has then been actually 
 earned and remains unpaid ' The latter would seem to 
 be the proper construction, as the price is not due until 
 it has been earned. In any case, it would be prudent 
 for an owner in complying with the demand, to distin- 
 guish between what has been earned, and what has not. 
 
 {c) " shall intentionally or knowingly." It is not 
 every mis statement which will render an owner liable to 
 the penalty imposed by this section, there must be an 
 
I 
 
 Thf, Mechanics' 1,ikn A( t ok ONTARIO. 
 
 '39 
 
 intention to mislead, or an actual knowledge that the s-;^!..^"^ 
 statement was false when made. 
 
 (./) " an action therefor." These words would seem 
 to indicate that a lien holder seeking to make an 
 "owner" liable under this section must do so by action 
 brought in the ordinary way, it being, in effect, an action 
 of deceit, to which the summary mode of proceeding 
 provided by section 31 may not be considered applicable ; 
 on the other hand, section 31 (2) in terms applies to "an 
 action under the Act." 
 
 30, Tlu; Court or Judge, or other officer ««^^^ '" 
 
 •' ^ . y Order for 
 
 {a) having power to try an action to realize mspecuon of 
 a hen. may on a summary apphcation {b) at '^eUoWr. 
 ,uiy time before or after any action is com- 
 menced for the enforcement of such lien, 
 make an order for the owner or his agent to 
 produce and allow any lien-holder to inspect 
 any such contract, and may make such an 
 order as to the costs of such application and 
 order as may be just. 59 V. c. 35, s. 28. 
 
 {a) "The G)urt or Judge, or other officer." See 
 
 post, section 3 1 , as to the tribunals before which actions to 
 enforce liens may be prosecuted. 
 
 {/>) "on a summary application." The meaning of 
 this would appear to be that the application may be 
 made without first commencing an action, by the issue 
 of a writ, or in any other manner. Or if an action has 
 
 I 
 

 140 
 
 St'i'lton {t 
 
 SfCtiiill ;i 
 
 Till., Mkiiwks' I, UN At T oi ONTARIO. 
 
 l)con oominonaHl, tlu-n llial iIk" pailiciiLir iclirf irfcrrrd 
 to in tliis u-</i(>// may he ()l)taino(l on motion without 
 waiting for thi; trial of tlir action. Notice of the apph- 
 cation must ahvays he given to tlii' owner or his agent, 
 and two clear days' notici' would apjH'ar to he sullicienl. 
 
 31. (1) rii»' liciis crcalcd hy lliis Act 
 
 r.'aii'/i'nKii.ns. Hiav !)(' nMli/cil l)\ ailioiis in ilic I Ii'ljIi Court 
 
 ((f) aiH'onliiio lo tlu- onliiiarv |)r<i(<'clnr(' (//) 
 
 olllial coiirl. cNCcpliii^ where the same is 
 
 \ar'"cl l)y this Act. 
 
 (2) VVitlioiil issuing; a writ or siiinnions, 
 an ai"tit>n under this Act shall he coinineiieeil 
 hy filing in tlie proper oHice a statement of 
 claim, veriliecl hy altulavit {() ( Korm 5). 
 
 (^0 The statement of claim shall he strrved 
 within oiu' month after it is filed {(il), but a 
 Judge or other officer having power to try 
 the action may extend the time for service 
 thereof, and the time for delivering a state- 
 ment of defence {c) (Forms 7 atul 8) shall he 
 the same as for (Mitering an appearanc(^ in an 
 action in the High Court. 
 
 (4) It shall not be necessary to make any 
 lien-holders parties defendant ( /) to the 
 action, but all lien holders served with the 
 notice of trial shall for all pur[)oses be treated 
 
 
 :ii 
 

 TiiK Mix hanks' I.ikn \< i ci ONTARIO. 
 
 141 
 
 as if llu-y were parlies to the action. 59 V. ^••'^';;^' " 
 
 C. 35. S. 2i). 
 
 {") " may be realized by actions in the High 
 Court" lilt' Act makes a considcrahk; cliatii^t- in llic 
 proctalurc to LMilbrco mechanics' liens. It abolislics the 
 summary procedure prescribed l)y the Act of (S(;o (5 ^ 
 V'icl. c. 37) ; and il takes away the jurischction of l)oth 
 County and Division (Courts to enforce ineclianics' 
 hens, and re(|uires all such claims to be enforced by 
 proceedings in the Hif^h ('ourt, no matter what the 
 amount claimed luay be. This cliange was probably 
 suggested by the fad that neither the ('ounty or Division 
 (^jurts are adaptetl for working out such claims satis- 
 factorily. 
 
 (/') "according to the ordinary procedure" Reference 
 to the sul)se(|uent su/i sir'io/is, and to sec/ion 33, show 
 that the ordinary procedure in an action is to Ix; departed 
 from by dispensing with the writ of summons, and in 
 other particulars, and also in the mode of trial. Il is 
 presumed that what is intended is that the ordinary pro- 
 cedure is to govern except in those particulars in which 
 an express variation is made by this Act. 'I'he state- 
 ment of claim would therefore appear to be intended \.u 
 be filed, not with a referee or other officer who is to try 
 the action, but, in the usual office of the High Court for 
 filing statements of claim in the locality where the pro- 
 ceedings are commenced. Where any of the defendants 
 are out of the jurisdiction it may be advisable to com 
 mence the action by writ of summons in the ordinary 
 way: see infra, p. 143, note ((/}. 
 
14-' 
 Section ji 
 
 i;; 
 
 5'| 
 
 The Mechanics' I-ikn Act oi ONTARIO. 
 
 (f) " a statement of claim verified by affidavit" 
 The statement of claim here referred to is a statement 
 of claim such as is required to be filed in an ordinary 
 action : see lUckerton v. Dakiii, 20 Ont. 192, 695. 
 It will be necessary for the plaintiff to determine there- 
 fore at the outset, and before filing his statement of 
 claim, the parties necessary to be named as plaintiffs, 
 and defendants. 
 
 Parties: — Plaintiffs. Formerly in actions to enforce 
 mechanics' liens the action was on behalf of all other 
 lien holders of the same class, and any number of lien- 
 holders of the same class could join as plaintiffs ; but 
 under the present Act an action to enforce a mechanic's 
 lien is to be taken to be brought for all lien-holders on 
 the same property, and the benefit of it is no longer con- 
 fined to lien-holders of the same class as the plaintiff. 
 So also any number of lien holders on the same prop- 
 erty, no matter whether of the same class or not, may 
 join as plaintiffs : see post section 32. It would seem 
 therefore unnecessary for a plaintiff to name any other 
 lien-holders as parties, either as plaintiffs or defendants. 
 It would, however, be a saving of expense for as many 
 lien-holders as possible to be named as plaintiffs, 
 because lien-holders not named as parties must never- 
 theless be served with notice of trial : see post section 36. 
 It is not stated expressly that the plaintiff is to state in 
 the style of the cause that the action is on behalf of 
 himself and all other lien-holders on the property in 
 question, but it is advisable to do so. 
 
 Defendants. As a general rule all persons as against 
 whom the plaintiff seeks any relief should be made 
 
 
TnK Mechanics' I-iln At r or ONTARIO. 
 
 <1 \ 
 
 defendants. 'I'he "owner " should always be made an Weiti„iiji. 
 original defendant, and in the term " owner " is included 
 not only the person who employed the contractor claim- 
 ing the lien, or underwhom any sub-contractor may claim, 
 but also any person to whom such owner may have subse- 
 quently conveyed his interest in the land. Where there 
 has been a transfer of interest by the original owner, 
 if any personal remedy is claimed against the original 
 owner, both he and the person in whom his interest in 
 the land has become vested at the time of the com- 
 mencement of the action should be made defendants. 
 
 Where the plaintiff claims relief as against a prior 
 mortgagee under section 7 (3), the mortgagee should be 
 made an original defendant : see Bank of Moiifnal v. 
 N affile r, 29 (jr. 319 
 Bank <f Montreal 
 
 If not made an original defendant, seinbk\ he could not 
 be subsequently added as a party under Con. Rule 659, 
 so as to obtain relief against him : see Diifton v. }lorniii}^, 
 26 O. K. 252. 
 
 But it would seem that it is unnecessary to make any 
 person claiming to be a lien-holder a defendant, even 
 though his right to rank as such is disputed by the 
 plaintiff: J fall v. /V/s, 11 1'. R. 449; Halls. Hogg, 14 
 P. R. 45 ; and see supra., sub-section 4. 
 
 {(i) "shall be served within one month after it is 
 filed " The statement of claim must be served in the 
 same way as a writ of summons ; service on a solicitor 
 who accepts service, and undertakes to appear would be 
 sufificient : Con. Rule 145. Where personal service, or 
 service on a solicitor, cannot be effected, however, an 
 
 ro A. R. 592, S. C. sul> nom. 
 V. ll'orswick, (!ass. Dig. 2H9. 
 
 i 
 
 •i 
 
 \ 
 •J 
 
 J* 
 
 4 
 
144 
 
 Thk Mixhanics' Lii;n Act of ONTARIO. 
 
 Section ,ii. order may possibly be obtained permitting some other 
 mode of service : see Con. Rule, 1 46 ; J/n'itiested e^ 
 Laiii^ton, p. 267. It may be observed, nowever, that 
 Con. Rule, 146, only refers to writs of summons, and 
 does not expressly include other documents by which a 
 cause or proceeding may be commenced, as does Con. 
 Rule, 145. 
 
 Where a defendant is out of the jurisdiction of the 
 Court, it seems doubtful whether there is any jurisdic- 
 tion to give leave to serve the statement of claim out of 
 the jurisdiction : llolinested >^ Langton,"^. 2-,^. Where- 
 ever any of the defendants are out of the jurisdiction, it 
 would seem advisable to commence the action by writ 
 of summons, and obtain leave to serve it on me 
 defendants out of the jurisdiction under Co)i. Rule, 162 : 
 see Jlolmested c^ Lani^ton, pp. 279, 280, at all events, until 
 it is judicially determined that leave can be given to 
 serve a statem'"it of claim only. 
 
 The month within which the service must be effected 
 is a calendar month : The Interpretation Act (R. S. O., 
 c. i), s. 8, s.s. 15. 
 
 Con. Rule 350 provides that " JMeadings shall not be 
 amended or delivered in the Long Vacation except by 
 consent, or unless directed by the Court or a Judge/ 
 It is probable that the Rule would be held to be not 
 applicable to a statement of claim delivered under this 
 section, but until the point is so decided, it may be 
 desirable, for the sake of caution, to obtain leave to file 
 the statement of claim, where it is necessary to file it in 
 the Long \acation. 
 
The Mkchanics' Lien Act ok ONTARIO. 
 
 145 
 
 As to amendment of the pleadings : see Orr v. DulH, scoion 31, 
 22 Ont. 430. 
 
 {e) " the time for delivering; a statement of defence " 
 The proceedings to enforce a lien, as we have seen, are to 
 be commenced by filing a statement of claim ; and it would 
 seem from this sub section that the intention of the Act 
 is to dispense with the necessity of entering any appear- 
 ance, and that the defendant may without doing so, at 
 once file his statement of defence, in which respect the 
 procedure resembles the procedure by bill and answer in 
 equity before The Judicature Act, but there seems 
 nothing to prevent a defendant from entering an appear- 
 ance, without putting in a de "ence in cases where he 
 does not dispute the plaintiff's claim, and at the same 
 time wishes to be notified of the future proceedings in 
 the action. 
 
 (/) " It shall not be necessary to make any lien- 
 holders parties defendant " The question of parties 
 has already been discussed in the notes mite, pp. 121, 
 142 : and see further section 32 and notes, post. 
 
 32. Any number of litin-holders, claiming st'^^on3^ 
 liens on the same proi)erty (i?) may join in anj;;;';;],!^^^'!^',^'' 
 action, and any action brought by a lien- 
 holder shall be taken to be brought on l)e- 
 half of all other lien-holders {b) on the pro- 
 perty in (juestion. 59 V. c. i^, s. 30. 
 
 {a) "claiming liens on the same property' For- 
 merly an action to enforce a mechanic's lien was for the 
 10 
 
 action, 
 
 J 
 
 i 
 
 if 
 
 
>4^> 
 
 Section 
 
 viKlll (il 1 
 
 iun-liolde 
 nlcrvonr 
 lotioii. 
 
 'I'hk Mechanics' Lien Act ok ONTARIO. 
 
 ■■■ benefit only of all the lien-holders of the same c/iss, and 
 only those of the same class could join as plaintiffs : but 
 under the present Act the action may be brought, and is 
 to be taken to be, for the benefit of all having liens on 
 the same property. It may be a question whether the 
 words " same property " ought not to be construed to 
 mean not necessarily the same pitoe of land, but rather 
 the same estate or interest in the same land. For ex- 
 ample : If certain lien holders have a lien against the 
 estate or interest of A, a tenant in possession, and others 
 have a lien against the estate or interest of B, the land- 
 loid of A in the same land, it might be questionable 
 whether these liens, though against the same property, 
 could properly be enforced in the same action. I'or 
 while A would be properly a defendant to the action to 
 enforce the lien against his interest, he would not be a 
 proper party to an action to enforce a lien against B's 
 interest, and 7'/ie 7r/\uf. 
 
 rs'to (''') " taken to be brought on behalf of all other 
 '" lien-holders" Other lien-holders on the same pro- 
 perty, not parlies to the action, who are entitled under 
 this seai/)// to the benefit of the action, are bound to see 
 that it is prosecuted to judgment, or it may be dismissed 
 for want of prosecution, or compromised : sec S///i7/i v. 
 /We, 4 A. R. 47 7 ; but, where the plaintiff has con 
 sented to a dismissal of the action, it may nevertheless 
 be restored on the application of any other lien-holder, 
 entitled under this seclioii, except as to the claim of the 
 original plaintiff, even though the dismissal may have 
 taken place before judgment obtained : McPherson v. 
 Gcdii^e, 4 O. R. 246. A licn-holdcr thus intervening 
 
The Mechanics' Lien Act of ONTARIO. 
 
 '47 
 
 must indemnify the original plaintiff against all costs, "^^'^ 
 past and future, and if he carry on the action in the 
 name of the original plaintiff, he must also give the de- 
 fendant security for his costs : Ih. But when the origi- 
 nal plaintiff in the action has no right of action at all, 
 other persons cannot intervene as lien-holders and get 
 the benefit of the action : In re Sear v>- Woods, 23 (). 
 R. 474. 
 
 After judgment, no action on behalf of a class can a^^iJ'. 
 
 J o ■> _ be di 
 
 properly be dismissed, even by consent of the plaintiff; "ftt' 
 the proper order in such a case is merely to stay the 
 proceedings, but without prejudice to the rights of any 
 other of the class entitled to the benefit of the action, to 
 intervene and assume the conduct of the action; see 
 Ariil'ery v. Thornton, 6 P. R. 190, and it would seem 
 that such is the proper order to make on any application 
 to dismiss, by consent of plaintiff, an action brought to 
 enforce a mechanic's lien, whether the application be 
 made before, or after judgment. It was formerly doubt- 
 ful whether any lien-holder, whose claim was not actu- 
 ally payable at the time the action was commenced, could 
 intervene and apply to carry on the action ; see Burritt 
 v. Reniluxn, 25 (ir. i<S3 ; but see now section 28, and note 
 ((•) ante, p. 136. 
 
 Although the action is to be taken to be brought for 
 the benefit of all other lien-holders on the same proper- 
 ty, still there will be a saving of expense in naming as 
 many of the lien-holders as are willing to join, as plain 
 tiffs in the action, as those who are not so named must 
 be served with notice of trial : see section 36, post . and 
 see ante, section 31 (4). 
 
 Hull 
 
 )I1 liol tl) 
 
 sinissc'd 
 jiidK- 
 
 
148 
 
 ThK MIXHANICS' I.IKN Ac I OK ONTARIO. 
 
 
 Sfcuoii^!.. 32^ ^j^ action to enforce a lien may he 
 acUon"lf "^ tried by the Master in Ordinary, a Local 
 enforce Hen. jyiaster of the High Court, an Official Refe- 
 ree, or a Judge of the County Court, in any 
 county or judicial district in which the lands 
 are situate («) ; or by a judge of the High 
 Court of justice at any sittings of that court 
 for the trial of actions. 59 Y. c. 35. s. 31. 
 
 (n) "in which the lands are situate"' It is not 
 very clear whether these words are intended to limit the 
 jurisdiction of all the officers previously enumerated in 
 this section. It would seem probable that they are, and 
 that the jurisdiction of the Master in Ordinary, Official 
 Referees, and Local Masters, is intended to be confined 
 to cases affecting lands situate within the (bounty in 
 which they respectively hold their offices, \\hile these 
 officers would thus appear to have a merely local juris- 
 diction, the Judges of the HighCourt of Justice, of course, 
 have a jurisdiction in all cases co-extensive with the 
 Province. 
 
 Section '4. 
 
 Powers of cer 
 til in olVu-crs. 
 
 34. The Master in Ordinary, the Local 
 Masters, Official Referees, and the County 
 judges, shall have, in addition to their ordi- 
 nary jDowers, all the jurisdiction {a), powers 
 and authority, of the High Court or a judge 
 thereof and of the said Master in Ordinary, 
 to try, and otherwise completely dispose ot, 
 
'I'HK Mechanics' I.irn Act of ONTARIO. 
 
 i4<; 
 
 an action to realize a lien, and all questions ^"-'''^J^y^^- 
 arising in such action, including the giving 
 or refusing of the costs (/>) hereinafter pro- 
 vided. 59 \^ c. 35, s. 32 ; 60 V. c. 24, s. 7. 
 
 (a) "all the jurisdiction" The object of this 
 section is to enable judicial officers trying actions to 
 enforce mechanics' liens, to take and make all necessary 
 accounts and inquiries and proceedings for completely 
 working out the relief to which the parties are entitled, 
 without the necessity of directing a reference to any 
 other officer ; and it would seem that in the exercise of 
 this jurisdiction they have power to grant an injunc- 
 tion, appoint a receiver, or grant any other ancillary 
 relief, which may be necessary in order to dispose of 
 any (luestion arising in the action, at all events, so far as 
 the enforcement of mechanics' liens is concerned. 
 
 {!>) " including: the giving or refusing of the costs.' 
 
 '{'he jurisdiction here conferred as to costs is a judicial 
 discretion, and must be exercised in accordance with 
 the settled principles of the Court. Usually where an 
 " owner " is in no default, and has been guilty of no 
 misconduct in the action or otherwise, and has not 
 unnecessarily increased the costs, he is entitled to be 
 paid his costs out of any moneys in his hands applicable 
 to the payment of liens: Hall v. Hoi:;gy 14 P. R. 45. 
 r.ut where an owner paid the amount found due by him 
 into Court pursuant to the order of the Court, it was 
 held that he had no longer any right to be recouped 
 thereout the costs of an unsuccessful appeal by a con- 
 tractor which he was unable to recover from the latter : 
 
 
I tO 
 
 'I MR Mechanics' Lien Act of ONTARIO. 
 
 Section !4 Patkn V. Laidlaw, 26 O. R. i8q ; but if the owner had 
 any equitable right to be recouped out of the money if 
 he had retained it in his hands, qmcre, whether the fact 
 that he had, in obedience to the order of the Court, 
 paid it into Court, ought to deprive him of that right so 
 long as the (^ourt had possession of the fund, for ixdus 
 cur ice no/i nocet. 
 
 The costs of the plaintiff of the action ought ordi- 
 narily to be first paid out of any moneys recovered in 
 the action, and also the costs of other lien-holders of 
 proving their claims : Hall v. Ho}::;ir^ 14 P. R. 45. The 
 costs of lien-holders are to be allowed according to the 
 scale applicable to the amount found due to them 
 respectively : fb. 
 
 Where the plaintiff makes an unsuccessful claim to 
 relief, ordinarily, he will be directed to pay personally 
 the costs so occasioned, and will not be permitted to 
 charge them against any fund recovered in the action as 
 against other parties interested. 
 
 A mortgagee in no default, as against whom relief is 
 granted under section 7 (3), is usually entitled to his 
 costs from the owner if in default, and if the owner is 
 not in default then to have them added to his claim. 
 He is not entitled to costs against the plaintiff, except 
 in so far as the latter fails to establish his claim to relief 
 as against him. 
 
 The amount of costs which may be awarded in the 
 action, is subject to the limitation prescribed by sections 
 41, 42, and 43, post. 
 
 secHon „. 35^ _( , ) After the delivery of the state- 
 darfo'rVrlai. "lent of clefcnce {a) where the plaintiff's 
 
Thk Mkchanks' Likn Act of ONTARIO. 
 
 I ;i 
 
 claim is clisi)Lited, or after the time for de- 
 livery of defence in all other cases where it is 
 desired to try the action other than at the 
 ordinary sittings of the High Court, (Mther 
 party may apply to a Judge or other officer 
 {b) who has the power to try the action, to 
 fix a day for the trial thereof, and the said 
 Jud<(e, or other officer, shall give an appoint- 
 ment fixing the day and place of trial, and on 
 the day fixed, or on su^:h other day to which 
 the trial may be adjourned, shall proceed to 
 try the action (<), and all cjuestions which T.iai 
 arise therein, or which are necessary to be 
 tried, to completely disi)Ose of the action and 
 to adjust the rights and liabilities of the 
 persons ai)pearing before him or upon whom 
 the notice of trial has been served, and at the 
 trial he shall take all accounts, make all 
 in(iuiries, and give all directions, and do all 
 other things necessary to try and otherwise 
 finally dispose of the action and of all matters, 
 cjuestions and accounts arising in the action 
 or at the trial, antl to adjust the rights and 
 liabilities of, and give all necessary relief to, 
 all parties to the action or who have been 
 served with the notice of trial, and shall 
 
 Section 
 
 

 •\\\ 
 
 152 
 
 TuK Mechanics' Lif.n Act of ONTARIO. 
 
 sold. 
 
 Sale of 
 iiiateiials 
 
 sectio.,,,. embody all the results in the judgment 
 ( Form 1 3 ), 
 
 action may order that the estate or interest 
 charged with the lien may be sold, and when, 
 by the judgment, a sale is directed of the 
 estate or interest charged with the lien, the 
 Judge or officer who tries the action may 
 direct the sale to take place at any time {{/) 
 after judgment, allowing, however, a reason- 
 able time for advertising such sale. 
 
 (3) ^he Judge or officer who tries the 
 action may also direct the sale of anv 
 materials (e) and authorize the removal 
 thereof. 
 
 (4) Any lien-holder, who has not proved 
 SlelfSer his claim at the trial of an action to enforce a 
 
 J'en, on application to the Judge, or officer 
 
 who tried the action, on such terms as to 
 costs and otherwise as may be just, may be 
 let in to prove his claim at any time before 
 the amount realized in the action for the 
 satisfaction of liens has been distributed (/), 
 and where such a claim is proved and allowed 
 the Judge or officer shall amend the judg- 
 ment so as to include such claim therein. 
 
 Lettinj? in 
 lien-hoklers 
 
 1 
 
 claims at trial. 
 
 ■^^T'^ ^- -r:"T:'^iP-.-atcr?: 
 
The Mechanics' T-if.n Act ok ONTARIO. 
 
 'S3 
 
 (5) Anv lien-holder for an amount not ^^^"^^^^ ^'■ 
 
 ,. .. 1- U IJ . RiRhtoflien- 
 
 c'xceeclmc: $100, or any hen nolder not a holders to 
 
 ' r> ~ ^ attend at 
 
 party to the action, may attend in person (^)»"''' 
 at the trial of an action to enforce a lien, and 
 on any ])roceedings in such action, or may be 
 represented thereat or thereon by a solicitor 
 or by an a^ent who is not a solicitor. 
 
 (6) When a sale is had the Judge or officer '^eponwhere 
 with whose approbation the lands are sold 
 
 shall make a report on the sale (/i) and 
 therein direct to whom the moneys in court 
 shall be i)aid, and may add to tht; ( laim of 
 the person conducting the sale his actual 
 disbursements incurred in connection there- 
 with, and where; sufficient to satisfy the judg- 
 ment and costs is not realized from the sale, 
 he shall certify the amount of the deficiency 
 and the names of the persons, with their 
 amounts, who are entitled to recover the 
 same, and the persons by the judgment ad- 
 judged to pay the same, and such persons 
 shall be entitled to enforce the same by 
 execution or otherwise as a judgment ot the 
 court. 59 \^ c. T,s, s. 33. 
 
 {(i) 'After the delivery of the statement of defence ' 
 As before remarked, it appears to be intended that no 
 
 
 
I 
 
 ii 
 
 m\ 
 
 '54 
 
 The iMKcHANics* Lien Act oi ONTARIO. 
 
 y > 
 
 I: 
 
 ■i:. 
 
 
 
 '' 
 
 
 1 
 
 ■mi 
 
 '■ 1 
 
 
 
 1 1 
 
 
 "t 
 
 1 
 
 
 i, - 
 
 i 
 
 
 '1 
 
 
 
 secUon is. formal appearance need be entered but that the 
 defendant may, without any prehminary, file a itatement 
 of defence ; or may content himself with entering on 
 appearance, without filing any defence. 
 
 {/>) " may apply to a judge or other officer" Tt was 
 
 held byStreet, J., in P//h-'//x/t>// v. Ih-oivii, 28th March, 1 Sy.S, 
 that the application must be made on notice to the [)arties 
 named as defendants ; and that where the application 
 is made to the Master in Ordinary, his Chief C'lerk has 
 no power to act in his place; and that the otificers 
 empowered to try actions to enforce liens, have no power 
 to delegate their authority. 
 
 As to the otificers empowered to try actions to enforce 
 mechanics' liens : see supra, section ,^,^. 
 
 0) "shall proceed to try the action." Two modes of 
 trying lien actions are indicated by this section, — (1) 
 either the plaintiff may carry the action down for trial at 
 the ordinary sittings, for trial in the usual way, or,- -(2) 
 either party may apply to a judge, or any of the officers 
 mentioned in section 33, for an appointment to try the 
 case at some special time to be fixed for the purpose. 
 It is, however, improbable that any judge of the High 
 Court will consent to try such actions otherwise than at 
 the usual sittings for trial. Where the first course is pur- 
 sued notice of trial will have to be given, and the case 
 entered for trial, as in other cases in the High ("ourt. 
 Where this mode of trial is adopted it does not appear 
 ])robable that a judge of the High Court will try the 
 action in the manner indicated in the subsequent part of 
 this section, and a reference will probably be directed as 
 
Thk Mkchanics' Ijkn Act ok ONTARIO. 
 
 formerly to a Master to take the accounts and make the ^'•'i"" •'-■ 
 necessary inquiries, and sell the property for the purpose 
 of realizing the liens, and if that course is adopted, sub- 
 secpient incumbrancers should not be inidc original 
 defendants, but the Master would add them as parties in 
 his office according to the usual practice : see Co//. Rule 
 746 ; Cole V. Hall, 13 P- H-, 100. 
 
 Where the second course is adopted, it appears to be 
 the intention of the Act that the trial shall be a sort of 
 combined trial and reference rolled into one. It does 
 not appear to be intended that the officer shall merely 
 determine the preliminary question whether the plaintiff 
 has a lien as alleged, and then direct a reference to him- 
 self, or some other functionary, to take accounts, etc., 
 but he is apparently intended himself to determine 
 whether the plaintiff has or has not alien, and if he finds 
 he has, then he is to proceed to try all the [)reliminary 
 questions, and to ascertain whether there are any other 
 liens or incumbrances on the property in ciuestioii, and 
 to take accounts of what is due to the plaintiff and other 
 lien-holders and incumbrancers. As regards mechanic 
 lien-holders, they are to be served with notice of trial, and 
 presumably are to be prepared to prove their claims at 
 the trial. As regards other inci .nbrancers, who, according 
 to the practice in ordinary actions are not original parties, 
 but are added after judgment as parties in the Master's 
 Office, no express provisioi- is made for adding them as 
 parties before, or after, the trial, but they are reciuired to 
 be notified of the trial, it would, therefore, seem to be 
 necessary that they should be made original parties, and 
 served with notice of trial before the accounts can 
 properly be taken ; and if they are not made parties 
 
 
'5^> 
 
 St'Ction j5. 
 
 !-■ 
 
 ■• !■ 1 
 
 Sale of land. 
 
 Sale of 
 nialerials. 
 
 t! 
 
 Tm; Mechanks' Likn Act ok ONTARIO. 
 
 before the trial, it would appear to be necessary that the 
 trial should be adjourned to enable them to be added as 
 parties and served with notice of trial. 
 
 Where the action is tried pursuant to a special 
 
 appointment, the result of the trial and of the various 
 
 accounts and inquiries are all to be embodied in the 
 judgment. See I-orm No 13. 
 
 In such cases it would seem necessary for a plaintifif at 
 the trial to be prepared to produce the registrar's and 
 sheriff's certificates for the purpose of showing who arc 
 the incumbrancers on the property in ([uestion, and who 
 are entitled to notice of the proceedings. 
 
 id ) "may direct the sale to take place at any time'' 
 A month was formerly allowed for payment of the 
 amounts found due, before the sale : and the same time 
 will still be usually allowed, unless the owner consents 
 to a sale at an earlier period ; or some special reason is 
 shown for giving a shorter time for payment. 
 
 {e) "may also direct the sale of any materials ' In 
 
 the R. .S. O. (1S87) c. 126, s. 30, the word "machinery" 
 was used instead of " materials." The latter word is, of 
 course, a wider and more general one, and would include 
 not only "machinery," but all kinds of moveable property. 
 See (intt, section 2 (5). Materials which have been 
 afifixed to the freehold cease to be moveable property. 
 
 Notwithstanding the generality of the words " any 
 materials," mciterials which are not subject to the claim 
 of the lien-holder, could not l)e ordered to be sold, or 
 
lie Mkchanks' Likn Act oi ONTARIO. 
 
 '57 
 
 removed under this section Neither is it probable that 
 the jurisdiction hereby conferred would be exercised, 
 except in cases where it would be for the general benefit 
 of all parties interested that the materials should be 
 sold apart from the land. 
 
 (/) " has been distributed. " These words probably 
 mean an actual distribution and payment of the money 
 to the parties, or to some of those entitled, and not mere- 
 ly the making of a report fixing the amount to be dis- 
 tributed. The concluding words providing for the 
 amendment of the report show that the section contem- 
 plates the making of the application to be let in, after a 
 report fixing the distribution has been made .\ difti 
 culty might arise where part of the money has been paid, 
 and part still remains in the custody or control of the 
 Court ; for there is no provision for compelling any lien- 
 holder who has been paid his distributive share to refund 
 any part of it in order to satisfy a new claimant, and if 
 the Court were to undertake a redistribution some lien- 
 holders would be paid more in proportion to their claims 
 than others. Should a claimant be let in under such 
 circumstances, it would seem oiily equitable that, in any 
 case, the redistribution of the balance should not preju 
 dice the other parties to any greater extent than would 
 have been the case had the claimant proved his claim 
 before the making of the original report. .\nd more- 
 over, this subsection does not seem to contemplate that a 
 claimant coming in after the proper time should be 
 allowed to disturb a ly distribution of any part of the 
 proceeds which has actually been carried into effect prior 
 to the making of his application. The form of notice of 
 
 Section 
 
 
 I' 
 
 % 
 
 1% 
 
&*: S 
 
 J s 
 
 f :••• I t 
 
 \^i i 
 
 '5^ 
 
 SlH-lidll ;=,. 
 
 I'liK Mk' hanks' Likn Act oi ONTARIO. 
 
 trial (\(). lo) stales that if the person on whom it is 
 served does not appear rnd prove his claim or defence 
 he may he deprived of ail beiieht of the proceedings. 
 There is no str/io// of the statute expressly stating that 
 this is to be the effect of non-appearance, or of non-proof 
 of claim, or defence, but, in the ordinary course of the 
 Court, that would appear to he the necessary result, 
 otherwise there would be no iinality to the proceedings. 
 'I'he form of judgment (No. i;,) given in the Schedule 
 contains a clause (par. 7) barring non-appearing parties. 
 
 (,;) '' may attend in person' I'^very suitor has the 
 right to appear in any (,"ourt in person, and it is not at 
 all [)ri)bable that this <:u(i-sectioii is intended in anyway 
 to restrict that right to lien holders for $100 or less ; the 
 really important part of the siih section appears to be llie 
 concluding clause entitling such lien holders to l)e re 
 pres'Miled by agents who are not solicitors, this is merely 
 exteiiding to the High Court a right which suitors in 1)1- 
 visior) Courts are entitled to exercise: K S. ()., c. 60, 
 s. ! 26. 
 
 (/') " report on the sale" The report on sale here re 
 ierred to is to be in ilie form of similar reports in other 
 actions, and must be duly confirmed, before it can be 
 acted o\\ : see Co//. Rule 7 09. 
 
 And before the purchase money can be paid out of 
 Coiut it is necessary to produce to the Accountant evi- 
 dei5ce that the purchaser consents to the [)ayment out, 
 or that he has accepted a conveyance or vesting order : 
 Con. Riih' 74 ^. 
 
 I 1 addition to the ordinary matter contained in a re- 
 port oil sale, it seems to be contemplated that the report 
 
Thk MIXIIANICS' LiKN ACI OK ONTARIO. 
 
 «5'; 
 
 shall also state the result of the officer's findings on the ^^''^ *■''"■ ;^ 
 other matters mentioned in this sii/> section : vi/ , the sub- 
 sequent account of the various claims, the costs of the 
 sale, and the amount of the deficiency, if any, on each 
 claim after deducting the proportion of purchase money 
 payable to each claimant. The Master's certificate of 
 the amount of the deficiency is by this sub-section made 
 equivalent to a judgment of the Court for the amount 
 thereof, and it may be enforced in like manner as a judg- 
 ment. 
 
 ' i^ 
 
 Xotifc uf 
 service ol. 
 
 36. Tlu' i)arty ol)taini.ig an appcjintintintiii;) 
 fixiivj;- the day and j)hco ot" trial shall, at least uhlua 
 t'ight clear days [d) before the day h.xed for 
 the trial, serxc a notice of trial which may be 
 in Form lo in the schedule to this Act, upon 
 the solicitors for the defendants who a])pear 
 bv solicitors, and on all lien-holders who have 
 registered their liens {c) as recjuired by this 
 Act, or who are known to him, and on all 
 other j)ers()ns haxin^' any charge or inciim 
 brance {d), or claim on the said lands, wh(j 
 are not parties, or who. l)eing parties, apjjear 
 personally in the said action, and such service 
 shall be personal unless otherwise directed by 
 the Judge or officer who is to try the case, 
 who may. in lieu of personal service, direct in 
 
 Section I'l. 
 
 W 
 
 hat mamier the notice ot trial may bt; ser 
 
 vecl 
 
 i9 V 
 
 • 
 
 '. ill 
 
 '5 
 
 JD- 
 
 ;4- 
 

 If 
 
 I 
 
 
 I I 
 
 I 60 
 
 Sfclioii '.Ci. 
 
 < nlicr lien 
 Imlilcrs, etc 
 liiiw iisecr- 
 taiiK'il. 
 
 Thk Mechanics' LiiiN Act or ONTARIO. 
 
 (0 " The party obtaining an appointment " These 
 words seem to indicate that this section is only intended 
 to apply to cases intended to be tried under section 35, 
 otherwise than at the ordinary sittings for trial of the 
 High Court. 
 
 (/') " at least eight clear days."' lioth the day of 
 service and the day of trial are to be excluded from 
 the eight days, 'i'he ordinary practice recjuires 10 days : 
 see Con. Rule 531s. 
 
 ((■) " who have registered liens '' The plaintiff, or his 
 solicitor, must be careful to ascertain the names and 
 addresses of all persons who have registered liens on 
 the property in ([uestion. I'ormerly, under the Act 
 of 18S7, in an action to enforce a mechanic's lien, only 
 lien-holders of the same cla.ss as the plaintiff were enti- 
 tled to the benefit of it, unless expressly named in the 
 writ ; but under the present Act, all lien holders on the 
 same property, whether of the same class as the plaintiff 
 or not, arc to be brought in. Unless all persons enti- 
 tled to notice of trial are duly served the trial may have 
 to be postponed and delay and expense thereby in- 
 curred, and any extra costs thus occasioned would pro- 
 bably have to be borne by the plaintiff personally, and 
 would not be recoverable against the property subject 
 to his lien. 
 
 In order to ascertain who are the other lienholders 
 who should Ije served with the notice of trial, a search 
 must be made in the proper Registry Office, or i.and 
 Titles Office, for all liens registered up to the com 
 mcncement of the action and not then expired by 
 effluxion of time ; it is not, however, necessary to 
 
TiiK Mkcmanks' J.iicN Act of ONTARIO. 
 
 i6i 
 
 
 search whether any other actions ha\ e been commenced, •""-'^'^""' ''^^• 
 as such other actions could only have the effect of 
 keeping alive liens in those particular actions : see 
 Grainger v. Grainger, i Chy, Ch. R. 241 ; but see 
 Hiiittiiigw Hell, 21 dr. 584, 
 
 Formerly where a lien-holder, after the institution ;-;^>';Ls^<;^f"^ii-'" 
 of a suit in which he could have proved his claim, Hen-hoider. 
 unnecessarily commenced another action to enforce 
 his lien, he could not recover the costs of such second 
 action in that first commenced : Henry v /hnces, ,^ 
 
 c:. L. 'r. 606. 
 
 {(/) " having any charge or incumbrance'" Not 
 only persons having mechanics' liens on the property, 
 but all persons having any charge or incumbrance 
 thereon, are to be notified of the trial : but this 
 must mean only such chargees or incumbrancers 
 whose claims are subsequent to that of the plaintiff. 
 Whether subsequent incumbrancers are intended to be 
 made parties, or merely to be served with notice of trial, 
 and thereby bound by the proceedings, is not very clear ; 
 until it is otherwise decided, it would seem safer to make 
 them original defendants wherever the action is to be 
 tried in the second manner provided for by seefioii 35. 
 I'rior chargees or incumbrancers can only be brought 
 in to the proceedings for the purpose of redeeming 
 them, or for obtaining relief under section 7 (3). Where 
 [)rior mortgagees or chargees are improi)erly brought 
 before the Court, the plaintiff may probably be ordered 
 to pay the costs of their appearance. 
 
 In any case it would seem necessary that all persons, 
 whether they be incumbrancers or other lien-holders. 
 1 1 
 
 •3 
 
in 
 
 i i 
 
 5^ ' 1 1 
 
 .J< 
 
 ;.* >t 
 
 162 The Mkchanics' Lien Act ok ONTARIO. 
 
 Section jo. a^i^iiifisf whom any relief is claimed, should be named 
 as original defendants and served with the statement of 
 claim, or writ, when the action is commenced by writ : 
 see Biifik of Montreal v. Haff/ier, 10 A. R. 592 ; 
 S. C. sul> no/ii. Bank of Montreal v. Worswick, 
 Cass. Dig. 289 ; but it was held under the former 
 Act (1887) that it was not necessary to make 
 other lienholders original defendants merely for the 
 purpose of enabling the plaintiff to dispute their status 
 as lien-holders : Hall v. Hogg, 14 P. R. 45 ; Hall v. 
 Pilz, II P. R. 449 ; see Cole v. Hall, 13 P. R. 100 ; but 
 there was no provision in that Act, similar to that in 
 section 35, for the final disposition of the whole case at 
 the trial ; and those cases could not, therefore, be 
 relied on, where this method of trial is followed. 
 
 Section ^7 37. When iiKjre than one action is brought 
 Consolidation to rccilize Hcns in respect of the same pro 
 
 of actions ^ ■■ 
 
 perty, a Judge or other officer having power 
 to try such actions, may, on the application 
 of any party to any one of such actions, or 
 on the application of any other person inter- 
 ested, consolidate all such actions into one 
 action [a), and may give the conduct ot the 
 consolidated action to any |)laintiff he sees 
 
 fit. 59 V. c. 35. 
 
 00 ■ 
 
 '«) " consolidate all such actions into one action" 
 Where an order is made under this section for the con- 
 solidation of several actions, all the future proceedings 
 
 
The MiiCHANics' Lien Act oi ONTARIO. 
 
 163 
 
 should be entitled in the several actions thus consoli- ^<^^]^ i?. 
 dated. 
 
 What are called " Orders for consolidation of suits " 
 are made in different ways. Sometimes all the pro- 
 ceedings in the several actions, except one, are stayed, 
 and the parties in the actions ivhich are stayed are 
 ordered to be made parties in the action which is to 
 proceed ; sometimes the order simply directs all future 
 proceedings in the several actions to be carried on con- 
 currently : and sometimes it directs that the result of 
 one action shall determine the result in the other ac- 
 tions. 
 
 The -' consolidation '" referred to in this sediofi is 
 the reduction of the several actions to one, to which 
 all the parties to the several actions become parties : 
 see further as to the consolidation of actions. Con. 
 Rule, 435, and notes in Holmested vi- Ltina^to/i, p. 602 
 et se(/. 
 
 38. Any lien-hokler entitled to the benefit «<^^io"38, 
 of the action (a) may apply for the carriage ;|^',''4^^^/^Jf"« 
 
 ,. 11 II nroceediners. 
 
 ot the proceechngs, and the Judge, or any 
 other officer having power to try the action, 
 may thereupon make an order giving such 
 lien-holder the carriage of the i)roceedings, 
 and such lien-holde shall for all purposes 
 thereafter be tht, plaintiff" in the action. 59 
 
 V. 
 
 1| 
 
 c. :-^5^ s. 36. 
 
ijifiil 
 
 K.., 
 
 
 ^ . 
 
 ■i 
 
 I i!i 
 
 Section ,^8. 
 
 'rm. mechanics' I,ikn Act oi ONTARIO. 
 
 (ti) " Any lien-holder entitled to the benefit of the 
 action" Ordinarily in a class suit the plaintiff is do/'/i- 
 111/ s litis until judgment, and the action may, by his con- 
 sent or default, be compromised, or dismissed: seeSmii// 
 V. Doyli\ 4 A. R. 477 ; but in actions to enforce me- 
 chanics' liens a different rule prevails, and it has been 
 held that even after an action has been dismissed before 
 judgment, on the original plaintiff's consent, it may 
 nevertheless be reinstated on the application of some 
 other lien-holder : McPJierson v. Gcdgc, 4 (). R. 246 ; 
 bu^ where the original plaintiff had no locus standi at all 
 to bring the action, it has been held that other persons 
 claiming liens cannot intervene to get the benefit of it : 
 /;/ re Sear <>' Woods, 23 O. R. 474. 
 
 The other lien-holders entitled to the benefit of an 
 action are all those having mechanics' liens on the pro- 
 perty in (juestion : zee sectiofi 2,2, a?ite, and it is no longer 
 necessary that they should be of the same class as the 
 ■plaintiff, as was the case under former Acts. 
 
 Where another lien-holder applies for, and obtains the 
 carriage of the proceedings, ii wo.ild seem [)roper to re- 
 (juire him to indemnify the original plaintiff against any 
 future costs : see Patterson v. Scott^ 4 (Ir. 145 ; McPlier 
 son v. Ge(li:;e, supra. 
 
 r 
 
 Scaio.,3u. gg^ ^ij ji^ .^,1 ,^^.^i^„^^ \\\\(^K^ llu- total 
 mln[of"omi amoLiut of tile claims of the plaiiitifl and othcr 
 
 of first in- , . . , . • r^ i l 
 
 stance to be persoiis claimiiig hens is $)ioo or less (a), the 
 judgment shall be final (/>). binding, and with- 
 out appeal, except, that the judge or officer 
 who tried the same ma\, upon apjilicatioii 
 
The Mechanics' Lien Act of ONTARIO. 
 
 Section 39. 
 
 within fourteen days after juclgment is pro 
 nounced, grant a new trial. 59 V. c. 35 s. 
 38 ; 60 V. c. 24, s. 9. 
 
 (2) In all actions where the total amount uVuhViS'' 
 of the claims of the plaintiff and other [)er- 
 
 sons claiming liens is more than $100 (f) and 
 not more than $200, any person affected 
 thereby may appeal therefrom to a Divisional 
 Court {d), whose judgment shall be final and 
 binding on tlie appellant, but the respondent 
 may appeal therefrom to the Court of Ap- 
 peal, whose judgment shall be fi al and bind- 
 ing on all parties. 60 V. c. 15, Sched. A 
 (77); c. 24, s. 10, (1). 
 
 (3) In all other cases an appeal may be ouu™'es. 
 had in like manner and to the same extcMid as 
 
 from the decision of a Judge trying an action 
 
 in tile High Court without a jury (^). 60 V. 
 c. 24, s. 10(2). 
 
 {(i) " where the total amount of the claims of the 
 plaintiff and other persons claiming Kens is $J00 " 
 A jiulgnitjnt lo enforce a mechanic's lien is of a com- 
 posite character and may be regarded as several judg- 
 ments com'oined ; inasmuch as the adjudication in 
 [^\m\ qf each claim hied constitutes a judgment in 
 \"^\'# 9\ \\\ti VV\\\TO\' V^)'^ ^'^'^''^'^ '""5t he read, how 
 
 
1 66 
 
 TiiK Mechanics' Lirn Act of ONTARIO. 
 
 'i 
 
 K 
 
 
 : I 
 
 \ 
 
 k i 
 
 > • ; 
 
 Section 39- ever, in reference to the judgment as a whole, and it only 
 applies where the aggregate amount of claims is $100 or 
 less, and has no application where the aggregate amount 
 of claims is more than $100 even though the several 
 claims included in the judgment may be each of them 
 less than $100. 
 
 (/') "shall be final"' These words make the decision 
 of the Judge or Officer who pronounces the judgment in 
 the cases to which the section applies unappealable, and 
 also irreversible, except perhaps, upon application to him- 
 self for a new trial. 
 
 {c) "is more than $J00 " See note {a) supra. Un- 
 der this sub-section, if the aggregate amounts of the 
 claims exceed $100 then it wouU seem that an appeal 
 to a Divisional Court might be had as to any of the 
 claims included therein, even though individually less 
 than $100. It must be noted that in this section the 
 right of appeal is regulated by the aggregate amount of 
 claims, and not by the aggregate amount of the judg- 
 ment, so that where the aggregate amount of the claims 
 exceeds $100 it would be possible for an appeal to be 
 had to the Divisional Court in respect of any claim under 
 $100 allowed or disallowed, and as to which no appeal 
 would lie if it were the only claim in question in the 
 action. If a respondent who fails before a Divisional 
 Court appeals, he must give security for the costs of such 
 appeal, unless otherwise ordered : Con. Rule 826 ; Slwr- 
 lock\. Powell, 18 P. R. 312. 
 
 The word "extend" in this sub-section is obviously a 
 misprint for "extent." 
 
 {d) ' a Divisional Court-" The Court here referred 
 to is a Divisional Court of the High Court of Justice. 
 Except during vacation and holidays the Court meets on 
 
The Mkchanks' Likn Act or ONTARIO. 
 
 .67 
 
 the first Monday of every month, and continues its sil- ^^-'^ 3y- 
 tings from day to day for 2 weeks, or longer, (Saturdays 
 and holidays excepted) as the business before it may 
 require: Cof/. Rule 116. 
 
 No time limit is laid down by the Act for regulating 
 appeals under this section : but it would seem probable 
 that they are intended to be governed by Con. 
 Rule 787. 
 
 Cases should be set down for the first Monday in the 
 month, and they will then be entered on the cause list 
 for that month, and will be placed on the peremptory 
 list for hearing in due course. 
 
 (( ) " as from the decision of a Judge trying an 
 action in the High Court without a jury." The 
 
 right of appeal in such cases is regulated by The Jiidica- 
 fiitr Act, s. 75 (i); and Con. Rule 787. 
 
 The appeal lies to either the Divisional Court of the 
 High Court, or to the Court of Appeal, at the election of 
 the appellant, but if unsuccessful no further appeal lies. 
 If the appeal be taken to the Divisional Court and is 
 successful, the respondent may appeal to the Court of 
 Appeal, and if the appeal be taken in the first instance 
 to the Court of Appeal, and is successful the respondent 
 is entitled to an appeal therefrom to the Supreme Court, 
 provided the amount involved is sufficiently large ; see 
 The Supreme and Excheijuer Court Act, (R. S C c, 135,) 
 and amendments thereto, (see ss. 24, 28) : Cass. Pr. 14-17. 
 
 40. No fees in stamps or money [a] shall 
 be navable to any udge or other omcer in in money or 
 
 I < y .' o stamps, 
 
 I 
 
 
 Section 4u. 
 
 Limit of fees 
 one 
 ps, 
 
C/ 
 
 
 ,; ■ i 
 
 n 
 
 
 
 ii^ 
 
 i68 
 
 Section 4. 
 
 •|HK MkCHANICs' I.IKN All .>|. ONTARIO. 
 
 ;in\ action hroiight to rcali/c a lien under 
 this Act, nor on any iilinjjj, orckM-, record or 
 judonienl, or other j)roceeding- in such action, 
 excejning- that evcM'v person other than a 
 \\age-earne;r shall, (<n til i no- his statement of 
 claim where he is a j)laintiff, or on tiling his 
 claim when; he is not a plaintit^", pay in 
 stam))s one dollar on every one hundred dol- 
 lars, or fraction of one hundred dollars, of the 
 amount of his claim up to one thousand ilol- 
 
 iars. 
 
 5C) \' 
 
 c. 
 
 35. 
 
 s. 
 
 ,S/ 
 
 60 V, c, 24. s. 8. 
 
 {(1) "No fees in stamps or money" I his section 
 virtually abrogates thie provisions of Cor. Rule iiytj, as 
 regards actions to enforce meclianics' liens, and intro- 
 duces an entirely different method of payment of the 
 fees of Court in such actions, vi/., a percentage on the 
 amount claimed, whether by the plaintiff, or any lien- 
 holder, incumbrancer, or chargee, brought into the pro- 
 ceedings, whether as an original party, or otherwise. 
 
 A defendant not having any claim is virtually ex- 
 empted from the payment of any fees of C'ourt for any 
 proceeding in the action. The highest amount any 
 plaintiff or claimant can be called on to pay is $10. 
 The fees payable by a plaintiff are to be paid on filing 
 his statement of claim ; and by other claimants on filing 
 their claims. The fees payable by a plaintiff, or defend- 
 ant appear to be regulated by the amount claimed, 
 and not by the amount allowed. 
 
 See a further provision as to fees, section 46 (2), post^ 
 
*1 
 
 The Mechanics' I.ien Act nv ONTARIO. 
 
 .61) 
 
 41. The costs of the; action (a) uncler this ^''^'^'"" "■ 
 Act awarded by the Judge or officer trying t^o'piaintiff"'" 
 the action, to the plaintiffs and successful 
 lien-holders (/;) shall not exceed in theagcrre- 
 gate an amount equal to twenty-five percent, 
 of the amount of the Judgment [c] besid(;s ac- 
 tual dishursemcMits, uul shall he in addition 
 to the amount of tlie judgment, and shall he 
 apportioned and borne (r/) in such proportion 
 as the Judge or other officer who tries the 
 action may direct. 59 V. c. ^tS^ ^- 4^. 
 
 {(i) "The costs of the action." The costs here re- 
 ferred to are simply the compensation to the soHcitors, 
 and do not include the fees of Court, or other disburse- 
 ments. The amount of the fees of Court are regulated 
 by sectio/i 40, nn/e. In addition to the costs of the 
 action a sum may also be allowed for drawing and regis- 
 tering the lien, or vacating the registration of the lien, of 
 each lien-holder : %qq post,secfio/i ^^. 
 
 {/>) "to the plaintiffs and successful lien-holders." 
 
 This sca/o// deals only with the costs to be awarded to 
 successful lien-holders. It is silent as to the costs of 
 persons who are neither plaintiffs, nor successful lien- 
 holders,— d",^., incumbrancers, or owners not in default. 
 These latter would, when awarded costs, apparently, in 
 the absence of any provision to the contrary, be entitled 
 to have their costs taxed as in ordinary actions, except so 
 far as the matter is provided for by the next section. 
 
 \ 
 
^. 
 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 {./ 
 
 ^ .^^ 
 
 srAig 
 
 
 1^ 
 
 
 1.0 llr«fiss 
 
 
 1 
 
 1^1 i^ |jj& 
 
 
 
 6" 
 
 ► 
 
 '^ %^ / 
 
 7 
 
 
 V 
 
 /^ 
 
 PhotDgraphic 
 
 Sciences 
 
 Coiporation 
 
 
 13 WIST MAIN STMIT 
 
 WMSTM.N.Y. 14510 
 
 (716)I73-4S03 
 

 4^ 
 
 k 
 

 f 
 
 3'; 
 
 l^'-\\ 
 
 
 •4 -J 
 
 I I 
 
 '7c 
 
 in plni;.' 
 
 The Mechanmcs' I.irn A( t ok ONTARIO. 
 
 (t ) " the amount of the judgfment." These words 
 are somewhat ambiguous ; they may refer to the aggre- 
 gate amount of the claims allowed to the plaintiff, and 
 all other claimants, or the amount of the plaintiff's claim 
 only, or the amount to be recovered out of the property 
 in question for the benefit of the plaintiff and other lien- 
 holders, as distinguished from that part of their claims, 
 if any, which is recoverable against their respective prim- 
 ary debtors personally. 
 
 It is impossible to say what may be determined to be 
 the true construction. So far as the costs are to be paid 
 by the owner, it would seem that the amount which he 
 is found by the judgment to be liable to pay, ought to 
 be deemed '' t/ie a/notml of the judgnuiit " for the pur- 
 pose of fixing the costs ; on the other hand, many cases 
 will arise in which the amount which the owner is liable 
 to pay, will be quite insutificient to pay the claims of the 
 plaintiff and other lien holders, and for which they will 
 be entitled to judgment as against their primary debtors 
 (see section 47), and as against whoin the larger sum will 
 be "the amount of the judgment." How these con- 
 flicting rights may be reconciled it is hard to conjecture, 
 and all that can be done, therefore, is to point out the 
 difificulty , see next note. 
 
 {d) " shall be apportioned and borne " These words 
 seem to be sufficiently wide to enable the Judge or Ofifi- 
 cer trying the action to exercise an ecjuitable discretion 
 in fixing the costs, and to admit of his treating " the 
 amount of the judgment " for the purpose of fixing the 
 costs as against the owner, and the primary debtors of 
 the lien holders, in different ways. Thus he would seem 
 
 
 I'f 
 

 
 
 Thk Mechanics' Lien A(T of ONTARIO. 171 
 
 to have power to fix the costs as against the owner by ^fit'on 41 
 reference to the amount he is found hable for ; and, in 
 case of there being a deficiency, he might, as against 
 the primary debtors, award a further sum for costs to 
 be regulated by the amount of such deficiency. 
 
 In apportioning the costs, regard will no doubt be had 
 to the amount of work in the conduct of the litiga- 
 tion which has been performed by the various parties 
 claiming costs. 
 
 A somewhat similar plan of awarding costs has pre- 
 vailed in administration, and partition actions : see Con. 
 Rules 1 1 46. 
 
 42. Where the costs are awarded against •'^^'^^'"" ^■'- 
 the plaintiff or other persons («) claiming the {;j'|5;\f4^Xd 
 lien, such costs shall not exceed an amount inXi'ntfffs. 
 the aggregate equal to twenty-five jier cent, 
 of the claim of the plaintiff and other claim- 
 ants (/>), besides actual disbursements, and 
 shall be apportioned and borne (c) as the 
 Judge or said other officer may direct. 59 
 V. c. 35. s. 42. 
 
 (rt) " iigainst the plaintiff or other persons " The 
 previous section deals with the costs to be allowed to 
 successful parties, and the present section deals with 
 costs to be awarded against unsuccessful parties, whe- 
 ther they be plaintiffs, or other persons claiming liens. 
 
 (p) "the claim of the plaintiff and other claim- 
 ants" It is possible that thv^se words are intended 
 
 « 
 
'; / 
 
 ! 
 f 
 
 i 
 
 \i ^ 
 
 'li^^ 
 
 
 <■ 
 
 I 
 
 m 
 
 Section 4-'. 
 
 Thk Mkchanics' 1,1. \ An oi ONTARIO. 
 
 to be read collectively or distributively according to 
 the circumstances of each case. If the claims of the 
 plaintiffs and all persons claiming liens fail, and all 
 are found liable to pay costs, then the words are to be 
 read collectively and the costs are to be estimated on 
 the aggregate amount of the claims ; but in awarding 
 by whom they are to be paid, probably the apportion- 
 ment will be made on the basis of each peisons claim 
 as to which he failed : on the other hand, if some 
 only fail to make out a claim, and costs are or- 
 dered to be paid by the persons thus failing, then it 
 would seem that it will only be the aggregate amount 
 of the claims as to which the failure arises, which can 
 be used as the basis for estimating the amount of costs 
 payable by them. In other words, where a lien-holder 
 for a claim of $io fails to make out his claim, he is not 
 to be visited with costs on the basis of the claims actu- 
 ally proved, but only on the basis of his own claim as 
 to which he has failed. Where there are other lien- 
 holders, besides the |)laintifir, on the property in question, 
 entitled to the benefit of the action, but who do 
 not make any claim, they cannot be ordered to pay 
 any costs, because the plaintiff fails to make 
 good his claim. Where a lien is ordered to be 
 vacated, in addition to the costs allowed by this section, 
 a further sum may be aUowed for the vacating the regis- 
 tration of the lien : see section 44, />ost. In the absence 
 of judicial decisions interpreting these sections, it must, 
 of necessity, be, more or less, a matter of conjecture what 
 their true meaning may be. 
 
 (<•) " shall be apportioned and borne ' It has been 
 already intimated, that where costs arc awarded against 
 
 ■V ¥ 
 
 
'I'liK Mechanics' Liln Ait oi ONTARIO. 
 
 »73 
 
 the plaintifT or other persons claiming liens, such costs i^ection 42. 
 will probably be ordered to be botne by the plaintiff 
 and others according to the amounts of their respective 
 claims. 
 
 43. Ill cast^ the least t:\|>tiisivi' course is •"^•^^ti"" 4v 
 not taken by a plaintirt" under this Act. theiias't'™' 
 costs allowed to the s(ilicitor shall in no case taken 
 exceed what would have been incurred if the 
 least e.\|)ensive course hatl been taken. 59 
 \'. c. .:;5, s. 4;,. 
 
 .See Con. Rnhi 1 175 ; HohiusUu ^jr^ /.(Uigfon, p 1 3(jo. 
 
 per 
 course iidt 
 
 44. Where a lien is dischargetl (jr vacated Section 44. 
 under section 2- ofthis Act or where in an ac .^"g^^JVeRis-" 
 tion. judgment is given iii favour ()r()r against ISnT^ 
 a claim for a lien, in addition to the costs of an uen"""'*""" "" 
 action (((), the Jiulge or other officer mav 
 
 11 ^ 
 
 allow a reas<jnable amount (h) for costs of 
 drawing and registering the lien or tor vacat- 
 ing the registration of the lien. 60 V, c. 24, 
 s. u (2). 
 
 {(i) " the costs of an action" Ihe costs of an action 
 are provided for by sectio/is 41, and 42, ante. The 
 costs provided for by this section, it is expressly stated, 
 are to be allowed in addition to the costs provided for 
 under those sections. 
 
 C 
 1 
 
i' 
 
 I 
 
 ■ i - % 
 
 |i - 
 
 II 
 
 74 The Mechanics' Lien Act ok ONTARIO. 
 
 Section 44. (/;) "a reasonable amount." These words seem to 
 indicate that the costs are not necessarily to be allowed 
 according to the tariff of fees prescribed by the Supreme 
 Court of Judicature, but are to be regulated in amount 
 by the discretion of the officer and where the amount 
 of the lien is insignificant, th. 4:osts awarded for its dis- 
 charge will probably be allowed at a correspondingly 
 small sum ; whereas in cases where the amount claimed 
 is large, probably the ordinary taxable charges may be 
 allowed. 
 
 .Section 4s. 45. The costs of aiitl incidental to all ap- 
 costsnot plications and orders made under this Act 
 
 otherwise ' 
 
 providecuor. jj,^(j j^q^ othcrwlsc provIdcd for shall be in 
 the discretion of the judge or officer to whom 
 the application or order is made. 60 V, c. 
 2 . s. 11(1). 
 See sections 41, 42, 44, 46 (2). 
 
 Section 46. 
 
 Payments out 
 of court. 
 
 46. — (i.) Excepting in actions tried by a 
 Judge (a) of the High Court the Judge or 
 other officer who tries the action -shall, where 
 money has been paid into court and the time 
 for payment out arrives, forward a requisition 
 for cheques {h) with a certified copy of his 
 judgment, and (when one is made) of the re- 
 port on sale, to the Accountant of the Su- 
 preme Court of Judicature who shall, upon 
 receiving the said requisition and copy of the 
 judgment and report (if any) make out and 
 
 
The Mechanics' Lien Act of ONTARIO. 
 
 /5 
 
 return to the said Judge or officer cheques ^^ct'^*''- 
 for the amounts payable to the persons speci- 
 fied in the requisition, and the said Judge or 
 officer on receipt oi said cheques shall distri- 
 bute them to the persons entitled. 59 V. c. 
 35. s. 45 ; 60 V. c. 24. s. I 2. 
 
 (2^ No fees or stamps {c) shall be payable ,';e*^,Vya'bie..n 
 
 hi- ^ payments out 
 
 eques or proceedings to pay money of loun. 
 
 into court or obtain money out of court, in 
 respect of a claim of lien, but sufficient post- 
 age stamps to |)repay a return registered let- 
 ter shall be enclosed with every requisition 
 Tor cheques. 59 \'. c. 35, s. 46 : 60 V. c. 
 24, s. I 3. 
 
 (a) " Excepting in actions tried by a Judge" I'his 
 exception removes from its operation, all mechanics' 
 lien actions whic'ii are tried before a Judge of the High 
 Court, and only actions tried before any Judge of 
 a County Court, or any of the officers mentioned in 
 section i^^y ante, are within its provisions In cases not 
 included in this section the cheques will have to be issued 
 on application to the Accountant as in ordinary cases. 
 
 (b) " forward a requisition for cheques" The officer 
 forwarding the requisition is also to send the necessary 
 postage stamps for the pre-payment of the postage and 
 registration of the letter enclosing the cheques : see 
 snf> section 2, supra. No fees of court are payable on 
 the cheques : f/>. 
 
 I 
 
( i 
 
 " 
 
 1 . 
 
 1 
 
 
 Section 40. 
 
 Section 47. 
 
 l*"orni of 
 judgment in 
 fa%'our of 
 
 176 TiiK Mkc hanks' \aks An ok ONTARIO. 
 
 (c) "No fees or stamps." By sec/ion 40, n/Ue, the 
 fees in stamps or money payable in actions to enforce 
 liens are limited to a lump sum, and in view of that 
 provision, this sub-sertion so far as it dispenses with the 
 payment of fees or stamps on cheques, etc., seems 
 superfluous. 
 
 47. All Judgint'iits in favour of lien- 
 holders shall adjudge that the person 
 i?cn°iu)Uiers. or pcrsons personally liable for the amount 
 of the judgment (a), shall pay any deficiency 
 {b) which may remain after sale of the 
 j)roperty adjudged to he sold, and whenever 
 on a sale of any property to realize a lien 
 under this Act sufficient to satisfy the judg- 
 ment and costs is not realized therefrom, the 
 deficiency may be recovered by execution 
 against the i)roperty of such person or per- 
 sons. 59 V. c 35. s. 47. 
 
 {a) " persons personally liable for the amount of the 
 judgement" This means the persons with whom the con- 
 tracts of the respective lien holders were made under 
 which the liens are claimed. 
 
 {!>) "shall pay any deficiency-" This section diO^^ 
 not give the lien-holders a right to judgment and execu- 
 tion against their respective debtors in the first instance, 
 but only a right to a judgment for the payment of the 
 deficiency which may remain due to them after the 
 
i 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 •77 
 
 application of whatever may be realized from the lien. '^" ^*'"" *''■ 
 
 Their rights of lien must therefore be first exhausted by 
 
 the realization of the property subject to the lien, before 
 
 the lien-holders are in a position to issue execution 
 
 under the provisions of this set:/ion against their primary 
 
 debtors : see />ef Rose, J., IVeat/ienion v. Robiiisoti, 
 
 Q B.D., 23 Mar., 1888. Hut this in no way impairs 
 
 the right of any lien-holder to abandon his claim to a 
 
 lien and sue for and recover, if he can, his claim by 
 
 judgment and execution in the ordinary way. 
 
 48. Whenever in an action brought under «<:'-ti^iws. 
 the provisions of this Act any claimant shall |,',enTwhen'**''" 
 fail {a) for any reason to establish a valid lien fnti"' "^ '^" 
 he may nevertheless recover therein a per 
 sonal judgment {b) against any party or 
 parties to the action {c) for such sum or sums 
 as may appear to be due to him and which 
 he might recover in an action on contract 
 against such party or parties. 59 V c. 35, s. 48. 
 
 {a) " shall fail " Ihis section only authorizes a per- 
 sonal judgment where the claimant of a lien fails to 
 establish his lien. The only other provision for obtain- 
 ing a personal judgment against the debtor is to be 
 found in the preceding section which only provides for a 
 judgment being awarded for the deficiency, which may 
 remain after the realization of the lien. 
 
 {l>) "recover therein a personal judgfment-" This 
 section contemplates the possibility of the claimant of a 
 12 
 
 
i7« 
 
 The Mechanics* Lien Act of ONTARIO. 
 
 I- 
 
 
 .section 4K. 
 
 |i 
 
 ; ;■• Hi: 
 
 
 Section 49. 
 Forms 
 
 lien failing to establish any right tu a lien, and that 
 though he may fail as to the lien he may nevertheless be 
 entitled tu recover a judgment against his debtor for the 
 debt ; of course, such a judgment cannot be awarded 
 unless the debtor is a party to the proceedings. Cases 
 may arise where an action is brought to enforce a lien, 
 and sub-contractors may come in claiming liens, whereas 
 those through whom they claim may not have regis- 
 tered any lien, and, consequently, may not be served with 
 notice of trial by the plaintiff under sec/ion 36 ; and the 
 Act is silent as to the mode of bringing such parties 
 before the Court ; but it clearly will not be possible for 
 the Court to pronounce a judgment in favor of a claim- 
 ant under this section unless the debtor is in some way 
 or other made a party to the proceedings. Where the 
 Act provides no special procedure for adding parties, 
 it may perhaps be, not unreasonably, presumed, that the 
 ordinary procedure for adding parties prescribed by the 
 Cott. Rules will have to be resorted to by any claimant 
 seeking to recover a judgment under this section. The 
 procedure prescribed by the Act is anomalous and it will 
 require the aid of judicial exposition to develop it. 
 
 {c) "ag:amst any party or parties' to the action" 
 
 These words make clear what has been stated in the 
 preceding note as to the necessity of the debtor against 
 whom the personal judgmen* is claimed being a party to 
 the action. 
 
 49. The forms in the Schedule hereto, or 
 forms similar thereto or to the like effect {a), 
 may be adopted in all proceedings under this 
 Act. 59 V, c. 35, s. 49. 
 
The Mechanics' Lien Act ok ONTARIO. 
 
 179 
 
 {(t) "ot to the like effect" These words permit a section 4'^ 
 certain degree of latitude in the use of the forms, and 
 while those prescribed should as far as possible be fol 
 lowed, yet in cases not provided for thereby, or in which 
 some deviation therefrom becomes necessary in order to 
 effectuate the rights of parties, then such alterations in 
 the forms as may be necessary, may be made without in 
 any way invalidating the proceedings ; but in case of any 
 such deviation it will be necessary, particularly in a re- 
 gistered claim of lien, to insert nevertheless in the form 
 all those particulars which the prescribed form contains, 
 otherwise it may invalidate the proceeding : see Wallis 
 V. Skain, 21 O. R. 532 ; before a claim can be invali- 
 dated by reason of non-compliance with the prescribed 
 form, however, it will now be necessary for the Judge or 
 Officer who tries the case to be satisfied that " the own- 
 er, contractor, or subcontractor, mortgagee, or other 
 person, as the case may be," is prejudiced thereby : see 
 section 19, ««/<? p. 103. 
 
 50. This Act shall not apply to Hens aris- section 50. 
 ing before the 7th day of April, 1896, except- L^ens^a^j,«'nK 
 ing that where no action has been com- fo"!* '"'" 
 menced or proceeding instituted to realize a 
 lien arising before the said day the procedure 
 herein directed shall be adopted to realize the 
 same. 59 V. c. 35, s. 50. 
 
 51. — (i) Every mechanic or other person sect 
 
 ion 51. 
 
 who has bestowed money or skill and mate- Mechanics 
 
 •' entitled to 
 
 
^ 
 
 |i 
 
 
 
 ' i 
 
 8 
 
 11:! 
 Ilil 
 
 <l. 
 
 ,i> hit 
 
 Hto The Mechanics' Lien Act )f ONTARIO. 
 
 Section M ^j^ig upon any chattel or thing in the altera 
 teiVa"y*en"' tioH and improvement in its properties or for 
 
 the chattels if ^i r • ^- i IV" 1 i 
 
 (after thr.e the puroose ot imparting an additional value 
 
 months) pay- . ' ' • i i u / \ 
 
 mentis not (q it SO as thereby to be entitled to a lien (a) 
 
 made. ^ » ' 
 
 upon such chattel or thing for the amount or 
 value of the money or skill and materials be 
 stowed, shall, while such lien exists (6), but 
 not afterwards, in case the amount to which 
 he 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 by 
 auction 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 doiie, or in case there is no news- 
 paper published in such municipality, then in 
 a newspaper published nearest thereto, stat- 
 ing the name of the person indebted, the 
 amount of the debt, a description of the chat- 
 tel or thing to be sold, the time and place of 
 sale, and the name of the auctioneer, and 
 leaving a like notice in writing at the last 
 known place of residence (if any) of the own- 
 er, if he be a resident of such municipality. 
 
The Mechanics' I.ien Act of ONTARIO. 
 
 i8i 
 
 (2) Such mechanic or other person shall ^«=_^"5' 
 apply the proceeds of thr .ale in pavr^ont of 31:;':,r!':',}' "' 
 the amount du<j to him {j^} and tin: costs ol 
 advertising and sale, and sbili .ipon applica 
 tion pay over any surplus (//) to the person 
 entitled thereto. 59 V. c. 35^- 5'- 
 
 (rt) "so as thereby to be entitled to a lien" ^ ,^e"ns on cLt 
 common law there are two kinds of liens on chattels, j^Jf^''/^^^'™- 
 viz. : general liens, and particular liens. A (general lien General lien 
 is a right to retain a chattel not merely for work or 
 money expended on the specific chattel retained, but 
 also for the general balance of account due by the owner 
 to the lien-holder. A particular lien is the right to re- l^en"''"''*'^ 
 tain a chattel for the work or money expended on it. 
 At common law, the lien of a mechanic on chattels, in 
 dependent of any contract express or implied, is par- 
 ticular, and not general : Phillips, ss. 470, 471. 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 goods of another : see Cross on Lien, 24 ; Phillips, 
 s. 474; Jacksov V. Ctimt)duSy 5 M. .S: W. t^a,?.. 
 
 A shipwright is entitled to a lien on a ship for re- 
 pairs : Franklin v. Hosier, 4 B. iV' Aid 341 . and so is 
 an enjjineer, for engines and boiler furnished by him 
 to a vessel : Ex p. Willoughl'v, 16 Ch. D. 604; 44 L. 
 T. hi; and a trainer on a horse for training it : Reilfy 
 V. Mcllmnrrny, 29 O. R. 167. 
 
 \ 
 
iSa 
 
 Section 51. 
 
 Act confined 
 to particular 
 liens. 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 The Act is confined to the case of particular liens, 
 and only authorizes a sale for the satisfaction of claims 
 for money, work, or materials bestowed in the alteration 
 and improvement of the particular chattel sold. It does 
 not authorize the sale of chattels to enforce a general 
 lien existing thereon. 
 
 Duration of 
 lien. 
 
 
 V •ill 
 
 {/A " while such lien exists." The lien exists only 
 so long as the lien holder retains possession of the chat- 
 tel, and his claim for work and materials bestowed 
 Parting with thcreon is unpaid. The parting with possession is a 
 puts'an'end to Surrender of the right of lien, even though the claim 
 *"■ remain unpaid ; and so also is the release of the debt, 
 
 even though the possession of the chattel be retained. 
 The possession must be continuous. Thus, where a 
 mechanic had repaired a carriage and allowed it to re- 
 main 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 afterwards retain it for the amount 
 of the repairs : Hartley v. Hi/chcock, i Starkie, .|o8. 
 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 H. had not absolutely lost 
 his lien by sending the waggon to the blacksmith, and 
 that it revived on his again obtaining possession ; and 
 that allowing A. to move the box to the highway was 
 no waiver of his lien : Milhurn v. Milbnrn, 4 U. C. Q. 
 
The Mechanics' Lien Act of ONTARIO. 
 
 '83 
 
 B. 179; and see Webber v. Cogswell^ 2 S. C. R. 15 ; Section 51- 
 but, see McNeil v. Keleher, 15 C. P. 470; Reilly v. 
 Mcl/murrav, 29 O. R. 167. 
 
 And where an engineer had furnished an engine and 
 boiler for a barge, and part of the contract price was 
 not payable until after a trial trip ; and after the barge 
 was ready to make the trip, but before it had been made, 
 the owner failed, and a receiver having been appointed 
 took possession of the barge, which was at that time 
 lying in the docks in the name of the engineer, it was, 
 nevertheless, held, that the right of lien was not lost : 
 Ex p. Wil/oughby, 16 Ch. D 604 ; 44 L T. iii. 
 
 And where a person contracts to build or construct 
 chattels on the property of the purchaser, e.g., oil tanks, 
 he is entitled to a lien on such chattels so long as they 
 have not been formally delivered up to, and accepted by, 
 the purchaser: Bellamy \. Davey, (1891) 3 Ch. 540; 
 Roberts v. Bank of Toronto, 21 A. R. 629 
 
 A lien cannot be claimed so as to intercept the per- Lien cannot 
 
 be claimed so 
 
 formance of the actual contract between the parties, as to intercept 
 
 . performance 
 
 whether the contract is expressed, or is to be inferred of contract. 
 from a certain course of dealing: per Lord Selborne, L. 
 
 C, Fisher v. Smith, 4 H. L. i ; 39 L. T. 430. 
 
 When the work is done on credit, and the period of ]|;ffected by 
 credit has not expired before the goods are to be^^^^jj ^c\\\^ 
 delivered, i > Ken exists: Cross, 43. But it is said if 
 the bailee retain possession, and the owner become 
 bankrupt before the period of the credit has expired, the 
 lien would attach as against the assignee ; Phillips, s. 
 499. But such lien, if any, could not prevail against a 
 
 S 
 
S^E 
 
 msm 
 
 184 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 , 1 , 
 
 ' ii 
 
 
 . ■ i 
 
 till 
 
 2!*' 
 
 Section 51. 
 
 Taking secur- 
 ity, effect of 
 on lien. 
 
 Possession 
 must be 
 lawful. 
 
 Lien only 
 arises under 
 a contract. 
 
 Sale of chattel 
 to realize lien. 
 
 person to whom the chattel may in the meantime have 
 been sold by the owner : Craivshay v. Homfray, 4 B. & 
 Aid. 50. 
 
 The taking of a security payable at a future day, 
 in the absence of an agreement to the contrary, 
 puts an end to the lien : Dempsey v. Carson^ 11 C.P. 462 ; 
 but the mere taking of security for the debt does not put 
 an end to the lien, unless there be something in the 
 facts of the case, or in the nature of the security taken, 
 which would be inconsistent with the retention of the 
 lien : Angus v. McLachlan, 23 Ch.D. 330 ; 48 L. T. 863. 
 
 The possession must be lawful, or there will be no 
 lien. Where one wrongfully obtains possession of chat- 
 tels, and delivers them to a third party, who bestows 
 moneys, skill or materials thereon, the latter would have 
 no lien therefor, as against the rightful owner : /far/op 
 V. Hoare. 3 Atk. 43. 
 
 The lien can only arise by virtue of a contract, express 
 or implied, with the owner or his agent : Phillips^ ss. 
 494, 497. A sub-contractor has no right of lien which 
 could be enforced against the owner under this sectioii -. 
 Phillips, s. 496. 
 
 {c) " three months," /. <*. calendar months : sec The 
 Interprctatiov y^r/, (R. S. O. c. i), s. S, s.s. 15. 
 
 {d) " after the same oug^ht to have been paid ' 
 Where credit is given, and the right of lien is preserved 
 by express agreement, the three months will not com- 
 mence to run until the expiration of the period of credit. 
 
 (e) " to sell the chattel" Prior to this Act a person 
 acquiring a lien on a chattel for work done, had only a 
 
The Mechanics' Lien Act of ONTARIO. 
 
 tSs 
 
 right to retain it in his possession until his claim was Section 5» 
 paid by the owner ; the present Act enables him to 
 realize the amount due by a sale of the chattel. 
 
 It would seem that the lien-holder cannot himself be Men iioUei 
 
 cannot be 
 
 the purchaser at the sale : see A7//^ v. England^ 4 B. iV punimsei. 
 S. 782; Williams v. Grey., 23 C. P. 561 ; Burnham v. 
 IVaddell, 28 C. P. 263 ; 3 A. R. 288. 
 
 (/) " on giving: on* week's notice" A week should ^fot^ce of saie, 
 elapse from the date of the first publication of the no- 
 tice, before the sale. The notice should strictly follow 
 the Act, any material omission might invalidate the sale, 
 and subject the vendor to an action of damages : see 
 S/iitHz V. Heddick, 43 U. C. R. 155. 
 
 I'or Form of Notice of Sale, see Appendix. 
 
 (c) " amount due to him" A workman detaining a i-ien-uouiei 
 
 ' "^ i-annot claim 
 
 chattel in respect of a lien for work done thereon, has warehouse 
 no claim for warehouse charges during such detention : 
 Bruce V. Eversoii, 1 Cab iS: Ellis, 18. 
 
 {h) " shall, upon application, pay over any surplus " surplus, how 
 
 ,,„ . , 1 1- 1 , . . 1 -to be disposed 
 
 I he Act does not cast upon the lienholder the duty of <>f 
 finding out the owner and tendering him the surplus, 
 but merely requires him to pay it over on the application 
 of the owner. 
 
 The lien-holder would not be justified in mixin-^ the 
 surplus with his own moneys, or using it for his own 
 purposes. He should either pay it over to the party 
 entitled, or, if there be any difficulty in doing that, he 
 may, under the Trustee Relief Act, pay the money into 
 the High Court of Justice : see Taylor C^ Ewart, pp. 
 
 S 
 \ 
 I 
 

 yi^gijj^jjg^gjjj^^gjj^gaa 
 
 :-| 
 
 
 I 
 
 
 i^ 
 
 186 
 
 Section ;■>«■ 
 
 Section ^j. 
 
 How far Act 
 applies to 
 railways. 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 136-143, where it will bear interest at the rate allowed 
 by the Court ; or, he must otherwise set it apart that 
 it may be fruitful for the party entitled. If he neglect 
 to do either of these things, he may be chargeable with 
 interest on the surplus while it remains in his hands : 
 see Charles v. Jones, 35 Ch. D. 544; 56 L. T. 848. 
 
 52. The provisions of this Act so far as 
 they affect railways under the control of the 
 Dominion of Canada are only intended to 
 apply so far as the Legislature of this Prov- 
 ince has authority or jurisdiction in regard 
 thereto. 59 V. c. 35, s. 6 (4). 
 
 lit 
 
 See supra, pp. 30-34, 45-47- 
 
 m?! 
 
 
 i ii 
 
The Mechanics' Lien Act ok ONTARIO. 
 
 187 
 
 schkdum:. 
 
 l*"ORM I. 
 
 ( Sect id /I 17.) 
 Claim of Lien fur A'ei^istratioH. 
 
 A. B (name of claimant) of (here state residence of claimant,) (if 
 so, as assignee of, stating name and residence of assignor) under The 
 Mechanics' and Wage- Earners' Lien Act claims a lien upon the estate 
 of (here state the name and residence of owner of the land upon which 
 the lien is claimed) (a), in the undermentioned land in respect of the 
 following work [service or materials] that is to say (here give a short 
 description of the nature of the work don^ or materials furnished and 
 for which the lien is claimed,) which work \or service] was \or is to 
 be] done \or materials were furnished] for (here state the name and 
 residence of the person upon whose credit the work is done or materials 
 furnished,) (l>) on or before the 
 day of 
 
 (a) For the purpose of avoiding the difficulty which arose in 
 Makins v. Robinson, 6 O. R. i, it might be well to insert here, 
 " and all persons claiming under him subsequently to the (date 
 when lien attached )'" : see ante, p. 104. 
 
 (b) The omission of the particulars referred to in this parenthesis 
 by a subcontractor was held to be fatal to the validity of the claim ; 
 and it was held that the omission might be relied on by the con- 
 tractor through whom the sub-contractor claimed, so as to relieve 
 him (the contractor) from liability to costs ; though not raised by 
 
 
 ^ ! 
 1 > . 
 
i' i 
 (' 
 
 i88 The Mechanics' Lien Act of ONTARIO. 
 
 The amount claimed as due \or to become due] is the sum of 
 $ 
 
 The following is the description of the land to be charged (/leir 
 set out a concise desctiptiott of the land to he charged su rcient for the 
 purpose of registration) (c). 
 
 When credit has been given, insert : The sjid work was done [or 
 materials were furnished] on credit, and the period of credit agreed 
 to expired [or will expire] on the day of 
 
 , i8 
 
 Dated at this day of , A.D. iS 
 
 (Signature of c/ainiant.) 
 
 t , 
 
 fltHI 
 
 r" 
 
 ij,; 
 
 tti;;; 
 
 I'OKM 2. 
 
 (Section /y ) 
 Claim of Lien for Wages, for Re,<iistratii>>!. 
 
 A. B. (name of claimant ) of (here state residence of claimant,) (if 
 so, as assignee of, stating name and residence of assignor) under The 
 Mechanics^ and Wage-Earners^ Lien Act claims a lien upon the estate 
 of (here state the name and residence of the mvner of land upon which 
 
 the owner : Wallis v. Skain, 21 O. R. 532 ; but it is possible this 
 case would not be followed under this Act : sqq section 19, ante, p. 103. 
 
 (c) Where the lien is claimed against the lands of a Railway 
 Company : see section 1 7 (3), ante, p. 96. 
 
 , 
 
J J 
 
 The Mechanics' Lien Act or ONTARIO. 
 
 189 
 
 fAe lien is claimed), (a) in the undermentioned land in respect of 
 days' work performed thereon while in the employment 
 of (here state the name and residence of the person upon whose credit 
 the ivork was done) on or before the day of 
 
 The amount claimed as due is the sum of $ 
 
 The following is the description of land to be charged, (here set 
 out a concise description of the land to be charged sufficient for the pur- 
 pose of registration.) 
 
 Dated at this day of 
 
 (Signature if claimant.) 
 
 Form 3. 
 
 {Section 18.) 
 Claim of Lien fo*- Wages by Several Claimants. 
 
 The following persons under The Mechanics^ and Wage-Earner.^'' 
 Lien Act claim a lien upon ihe estate of (here state the name and 
 residence of the 07i>ner of land upon ivhich the lien is clai?ned) (a) in 
 the undermentioned land in respect of wages for labor performed 
 thereon while in the employment of (here state name and residence, or 
 names and residences, of employers of the several persons claiming the 
 lien). 
 
 A. B. of {residence) $ for days' wages. 
 
 C. D. " $ for days' wages. 
 
 E. F. " $ for days' wages. 
 
 The following is the description of the land to be charged {here set 
 out a concise description of the land to be. charged sufficient for the 
 purpose of registration). 
 
 Dated at this of 
 
 {Signature of the several claimants.) 
 
 (a) 3ee note (a) to Form i . 
 
 , 
 
I90 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 
 I 
 
 ':V>\ 
 
 ■J'.; ■ 
 
 .:}li; 
 
 : mjl!: 
 
 I»llf 
 
 \'' 
 
 Form 4. 
 {Section //■) 
 Ijfidiwit Verifying CUiim for Registnition. 
 
 I, A. B., named in the above {or annexed) claim, do make oath 
 that the said claim is true. 
 
 Or, We, J. B. and C. D., named in the above {or annexed) 
 claim, do make oath, and each for himself says that the said claim, 
 so far as relates to him, is true. 
 
 [ Where affidavit wade by agent or assignee a clause must be added to 
 the following effect : — I have full knowledge of the facts set forth in 
 the above {or annexed) claim.] 
 
 Sworn before me {a) at 
 county of , this 
 
 day of , A. D., 18 
 
 , in the 
 
 Or, The said A. B. and C. D, were sever- 
 ally sworn before me at , in the county 
 of , this day of , 
 A.D., 18 . 
 
 Or, The said A. B. was sworn before me 
 at , in the county of 
 
 this day of , A.D., 18 . 
 
 (a) As to the persons before whom the affidavit may be sworn 
 see ante^ section 17, note (/), p. roi. 
 
The Mechanics' Lien Act of ONTARIO. igi 
 
 FflRM 5. 
 
 (Seciion jr.) 
 Affidavit Ven/yini^ Claim in Com/mncin^ an Action. 
 
 {Siy/e of Court and Cause. )(a) 
 
 I, , make oath and say, that I have read, or heard 
 
 read, the foregoing statement of claim (if) and I say that the facts 
 therein set forth are, to the best of my knowledge and belief, true, 
 and the a iiount claimed to be due to me in respect of my lien is the 
 just and true amount due and owing to me after giving credit for all 
 the sums of money or goods or merchandise to which {naming the 
 debtor) is entitled to credit as against me. 
 
 59 V. c. 35, Sched. Forms 1-5. 
 
 Form 6. 
 
 {.Sections 2J and 24.) 
 
 Certificate for Registration. 
 
 (Style of Court and Cause ) 
 
 (Date .) 
 
 I certify that the above named plaintiff has commenced an action 
 in the above Court to enforce against the following land {describing 
 it) a claim of Mechanics' Lien for $ 
 
 60 V. c. IS, Sched. A (76). 
 
 {a) All actions to enforce mechanics' liens are to be brought in 
 the High Court, no matter what the amount of the plaintiffs claim 
 may be : see section 31 (i), ante, p. 140, 
 
 {b) No form of a statement of claim is given in the Act, a form, 
 however, will be found, post, in the Appendix. 
 
 « 
 % ■ 
 
 I 
 
 I 
 
ia 
 
 '•'!! 
 
 19a 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 1 
 
 
 ^ t '■ 
 
 
 % ' 
 
 
 : ■ . ' fc 
 
 
 ;• ♦ 
 
 
 •1^ 
 
 jif'll 
 
 Form 7. 
 
 (Si'c/ion jr.) 
 
 /)e/ef/C(', 
 
 {Style (if Court and Cause.) 
 
 A. /i., disputes that the plaintiff is now entitled 
 
 to a mechanic's lien on the following grounds : {Settiug forth t/w 
 grounds shortly. ) 
 
 (rj!( The lien has not been prosecuted in due time as reciuired by 
 statute. 
 
 {/)) That there is nothing due to the plaintiff. 
 
 (f) That the plaintiffs lien has been vacated and discharged. 
 
 {d) That there is nothing due by {the owver) for the 
 
 satisfaction of the plaintiff's claim. 
 
 r)elivered on the day of by A. B. in person, 
 
 whose address for service is {stating address within two miles of the 
 court house), or 
 
 Delivered on the day of by )'. Z, solicitors 
 
 for the said A. B. 
 
 Note — If the owner does not dispute the lien entirely and only 
 wishes to have the accounts taken he may use Form 8. 
 
The Mechanics' Lien Act of ONTARIO. 
 
 '93 
 
 Form 8. 
 
 (Section 31.) 
 
 Defence where there are no matters disj'uted, or 7vhere the matters in 
 dispute are matters of account. 
 
 (Style of Court and Cause.) 
 
 A. B. admits that the plaintiff is entitled to a 
 
 lien and claims that the following is a just and true statement of the 
 account in question : — 
 
 Amount of contract price for work contracted to be per- 
 formed by E. F. as plumber on the lands in (juestion 
 herein $5°° 00 
 
 Amounts paid on Account. 
 
 June ist, 1889, paid E. F. . . $200 co 
 
 July ist, 1889, paid G. H. and /. A'., sub-con- 
 tractors o{ E. F. 1 00 00 
 
 $300 00 
 
 Balance admitted to be due $200 00 
 
 For satisfaction of lien of plaintiff and other lien-holders (as the 
 case may be) A. B., before action tendered to the 
 
 plaintiff $ in payment of his claim and now brings into Court 
 
 $ and submits that that amount is sufficient to pay the plain- 
 
 tifTs claim, and asks that this action be dismissed as against him 
 with costs. 
 
 Delivered, etc. 
 
 13 . • ■ 
 
 I 
 
 % 
 I 
 
%-^ 
 
 '94 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 I 
 
 'M 
 
 ^ ■ 
 
 Form 9. 
 
 (Section pg.) 
 
 Ajf'uiavit of Ownei- Verifying Account. 
 
 ill: 
 
 »*"i 
 
 \\ 
 
 {Style of Court and Cause.) 
 
 I, A. B.^ of , being the owner of the lands in ques- 
 
 tion in this action, make oath and say : That the .iccount set forth 
 in the foregoing defence is a just and true account of the amount of 
 the contract price agreed to be paid by me to E. F. for the work 
 contracted to be done by him on the lands in question. 
 
 The said account also justly and truly sets forth the payments 
 made by me on account thereof, and the person or persons to whom 
 the same were made ; and the balance of [.^'^oo] appearing by such 
 account to be still due and payable is the just and true sum now 
 due and owing by me in respect of my contract with the said E. B. 
 
 Sworn, etc. 
 
The Mechanics' Likn Act of ONTARIO. 
 
 '95 
 
 Form io. 
 
 (Section j6.) 
 
 Aotice of Trial. 
 
 {Style of Court and Cause.) 
 
 Take notice that this action will be tried at the Court House, in 
 the Town of , in the County of , on the 
 
 day of by and at such time and place the 
 
 will proceed to try the action and all questions which arise in or 
 which are necessary to be tried to completely dispose of the action 
 and to adjust the rights and liability of the persons appearing before 
 him, or upon whom this notice of trial has been served, and at such 
 trial he will take all accounts, make all inquiries and give all 
 directions and do all things necessary to try and otherwise finally 
 dispose of this action, and of all matters, questions, and accounts 
 arising in said action, and will give all necessary relief to all parties. 
 
 And further take notice that if you do not appear at the trial and 
 prove your claim, if any, or prove your defence, if any, to the action, 
 the proceedings will be taken in your absence and you may be 
 deprived of all benefit of the proceedings and your rights disposed 
 of in your absence. 
 
 This is a Mechanic's Lien action brought by the above named 
 plaintiff against the above named defendants to enforce a Mechanic's 
 Lien against the (ollowing lands : — {set out description of lands.) 
 
 This notice is served by, etc. 
 
j'< Z.'-'«iiii'iiilK 
 
 gg^summamm 
 
 m 
 
 196 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 ' •! : 
 I* ' 
 
 i * 
 
 
 "4"' 111 
 
 H' ■•*iH, 
 
 i SI 
 
 I- !: 
 
 Form ii. 
 
 {Section 49.) 
 
 Statement of Account by Lien-holders, not parties to the action. 
 
 {Style of Court and Cause.) 
 
 E. F. Dr. to G. H. 
 
 1889. 
 
 Jan. I, To 12 doz. brackets $12 00 
 
 Feb. 3. " 50 lbs. of nails 5 °^ 
 
 Oct. 3, " 60 sheets of glass 40 00 
 
 $57 00 
 
 Cr. 
 
 1889. ■ 
 
 Feb. 4, By cash * 4 0° 
 
 June 5, " goods ^° °° 
 
 $24 00 
 
 $33 00 
 
■:. !"■ 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 197 
 
 Form 12. 
 
 {Section ^p.) 
 
 Affidavit of Lien-holder Verifying Claim. 
 
 {Style of Court and Cause.) 
 
 I, G. H., of {address and occupation), make oath and say : — I have 
 in the foregoing account {or in the account now shown to me marked 
 A) set forth a just and true account of the amount due and owing 
 to me by E. H. {the owner) [or by E. F., who is a contractor with 
 the defendant, L. G. {the owner), ] of the lands in question, and 
 I have in the said account given credit for all sums in cash or mer- 
 chandise or otherwise to which the said E. F. is justly entitled to 
 credit in respect of the said account and the sum of $33 appearing 
 by such account to be due to me as the amount {or balance) of such 
 account is now justly due and owing to me. 
 
 Sworn, etc 
 
 59 V. c. 35, Sched., Forms 6- 11. 
 
198 
 
 Ihe Mechanics' Lien Act of ONTARIO. 
 
 
 ^ 
 
 ..»;i< 
 
 ■•4...; 
 1' ■*.*, 
 
 Form 13. 
 
 {Section jj.) 
 
 Judgment. 
 
 In the High Court of Justice. 
 
 Name of Judge or officer. 
 
 Monday the ioth Jul\\ i8g6. 
 
 William Spencer, Plaintiff, 
 
 and 
 Thomas Burns, Defendant. 
 
 This action coming on for trial before 
 in at 
 
 upon opening of the matter and it appearing that the following 
 persons have been duly served with notice of trial herein, {set out 
 names of all persons served ivith notice of trial) 2iX\A all such persons 
 {or as the case may be) appearing at the trial \if so and the following 
 persons not having appeared set out names of non-appearing persons^ 
 and upon hearing the evidence adduced and what was alleged by 
 counsel for the plaintiff and for C. D. and E. F. and the defendaiit 
 [//^(? and by ^. ^. appearing in person. 
 
 I. This Court doth declare that the plaintiff and the several 
 persons mentioned in the first schedule hereto are respectively 
 entitled to a lien under The Mechanics^ and Wage Earners' Lien 
 Act, upon the lands described in the second schedule hereto, for 
 the amounts set opposite their respective names in the 2nd, 3rd and 
 4th columns of the said ist schedule, and the persons prima 'y 
 
The Mfxhanics' Lien Act of ONTARIO. 
 
 199 
 
 liable for the said claims respectively are set fc;th in the 5th column 
 of the said schedule. 
 
 2. [And this Court doth further declare that the several persons 
 mentioned in schedule 3 hereto are also entitled to some lien, 
 charge or incumbrance upon the said lands for the amounts set 
 opposite their respective names in the 4th column of the said 
 schedule 3, according to the fact. ^ 
 
 3. And this Court doth further order and adjudge that upon the 
 defendant {A. B. the owner) paying into court to the credit of this 
 action the sum of {gross amount of liens in schedules 
 I and 3 for ivhich owner is liable) on or before the day 
 of next, that the said liens in the said ist schedule mentioned 
 be and the same are hereby discharged, [and the several persons in 
 the said 3rd schedule are to release and discharge their said claims 
 and assign and convey the said premises to the defendant {otvner) 
 and deliver up all documents on oath to the said defendant {o7vner) 
 or to whom he may appoint] and the said moneys so paid into court 
 are to be paid out in payment of the claims of the said lien-holders 
 (if so, and incumbrancers). 
 
 4. But in case the said defendant {owner) shall make default in 
 payment of the said moneys into court as aforesaid, this Court doth 
 order and adjudge that the said lands be sold with the approbation 
 of the Master of this Court at {a) and that the purchase 
 money be paid into court to the credit of this action, and that all 
 proper parties do join in the conveyances as the said Master shall 
 direct. 
 
 5. And this Court doth order and adjudge that the said purchase 
 money be applied in or towards payment of the several claims in 
 
 (a) When the action is tried by a Local Judge, or any of the 
 officers mentioned in Section 33, the reference here directed should 
 be to the Local Judge or officer pronouncing the judgment : see 
 Section 35 (i). 
 
1'..'- 
 
 200 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 
 the said ist [and 3rd] schedule[s] mentioned as the said Master 
 shall direct, with subsequent interest and subsequent costs to be 
 computed and taxed by the said Master. 
 
 6 And this Court doth further order and adjudge that in case the 
 said purchase money shall be insufHctent to pay in full the claims of 
 the several persons mentioned in the said ist schedule, the persons 
 primarily liable for such claims as shewn in the said ist schedule do 
 pay to the persons to whom they are respectively primarily liable 
 the amount remaining due to such persons forthwith after the same 
 shall have been ascertained by the said Master. 
 
 7. [And this Court doth declare that have not 
 
 proved any lien under T/ie Mechanics' and Wage Earners' Lien Act, 
 and that they are not entitled to any such lien, and this Court doth 
 order and adjudge that the claims of liens respectively registered by 
 them against the lands mentioned in the said 2nd schedule be and the 
 same are hereby discharged, according to the fact. \ 
 
 
 ! ■ : 
 
 ] ii 
 
 » 
 
 h 
 
 
 SCHEDULE I. 
 
 
 
 Names of lien-holders 
 
 entitled to 
 
 mechanics' Hens. 
 
 Amount of 
 
 debt 
 
 and interest 
 
 (if any). 
 
 Costs. 
 
 Total. 
 
 Names of 
 primary debtors. 
 
 • / 
 
 
 
 
 
 (Signature of officer issuing judgment.) 
 
iSil. 
 
 The Mechanics' Lien Act ok ONTARIO. 
 
 201 
 
 SCHEDULE 2. 
 
 The lanH-, in question in this matter are 
 
 {Set out by a description sufficient for registration purposes.) 
 (Signature of officer issuing Judgment.) 
 
 SCHEDULE 3. 
 
 Names of persons entitled 
 
 to incumbrances 
 
 pother than mechanics' liens. 
 
 Amount of debt 
 
 and interest 
 
 (if any). 
 
 Costs. 
 
 Total. 
 
 (Signature of officer issuing judgment.) 
 60 V. c. 24, Form 12' 
 
202 
 
 The Mechanics' Lien Act of ONTARIO. 
 
 i' : 
 
 
 Form 14. 
 
 {Section 2y.) 
 
 Certificate Vacating Lien. 
 
 (Sty/e of Court and Cause.) 
 
 Date. 
 
 I certify that the defendant^. B. {the owner) has paid into court 
 to the credit of this cause all money due and payable by him for the 
 satisfaction of the liens of the plaintiff and E. E, G. H., J. /., and 
 K. L,, and their liens are hereby vacated and discharged so far as 
 the same affect the following lands {describe lands). 
 
 {Signature of Master or Referee.) 
 
 
 
 
 4 ( f 
 
 Form 15. 
 
 {Section 2/.) 
 
 Certificate Vacating Lien. 
 
 {Sty/e of Court and Cause.) 
 
 Date. 
 
 I certify that I have inquired and find that the plaintiff is not 
 entitled to a mechanic's lien upon the lands of the defendant A. B. 
 {the owner) and his claim of lien is hereby vacated and discharged 
 so far as the same affects the following lands {describe lands). 
 
 {Signature of Master or Referee.) 
 59 V. c. 35, Schedule, Forms 13, 14. 
 
 
The Mechanics and W age - Earners' 
 Lien Act of Manitoba. 
 
 (6 1 Victoria, Cap. 29.) 
 
 urt 
 he 
 nd 
 as 
 
 not 
 
 B. 
 
 ged 
 
 [^Assented to 2'jth April, i8<)8. 
 
 HER MAJESTY, by and with the advice 
 and consent of the Legislative Assem- 
 bly of the Province of Manitoba, enacts as 
 follows : — 
 
 1. This Act may be cited as 
 
 The. ^^'^*^'*'" '• 
 Mechanics and Wage-Earners Lien Act, " ° 
 
 2. Where the following words occur in Section 2. 
 this Act, or in the schedules hereto, they '"^-^P'-^t^t'"" 
 shall be construed in the manner hereinafter 
 mentioned unless a contrary intention ap- 
 pears : — 
 
 (i) "Contractor" shall mean a person 
 contracting with or employed directly by the 
 
 owner or his agent for the doing of work or 
 
 ( 203 ) 
 
 "Contractor." 
 
'fr 
 
 '■!! 1 : ! 
 
 iliin 
 
 m 
 
 ■'1 , . 
 
 r 11 
 
 * 1 .11 
 
 r 
 
 >t 
 
 
 ^f 
 
 ii'Jtit 
 
 
 H*».MIt 
 
 
 ■« ,^,. 
 
 
 •« ■ i.. 
 
 
 • '..II 
 
 
 
 » ■ 
 
 "M^ll 
 
 !(• 
 
 •*|.»ll 
 
 
 i hi : ' 
 
 204 
 
 " Sub can 
 tractor." 
 
 ' Owner." 
 
 'Person. 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 sect^ 2. placing or furnishing materials for any of the 
 purposes mentioned in this Act. 
 
 (2) " Sub-contractor " shall mean a person 
 not contracting with or employed directly 
 by the owner or his agent for the purposes 
 aforesaid, but contracting with or employed 
 by a contractor, or under him by another 
 sub-contractor. 
 
 (3) "Owner" shall extend to and include 
 any person, firm, association, body corporate 
 or politic, including a municipal corporation 
 (a) having any estate or interest in the lands 
 upon or in respect of which the work or ser- 
 vice is done, or materials are placed or fur- 
 nished, at whose request and upon whose 
 credit or on whose behalf or with whose 
 privity or consent or for whose direct benefit 
 any such work or service is performed or 
 materials are placed or furnished, and all 
 persons claiming under him or them whose 
 rights are acquired after the work or service 
 in respect of which the lien is claimed is 
 commenced or the materials furnished have 
 been commenced to be furnished. 
 
 (4) " Person " shall extend to and include 
 
 -J 
 
The Mechanics' L>ien Act of MANITOBA. 
 
 205 
 
 a body corporate or politic, a firm, partner- ^<"'^ '■ 
 ship or association. 
 
 (5) " Material" shall include every kind of" Material." j 
 moveable property. 
 
 (6) "Registry office" shall include land X^fif^'-^ 
 titles office. 
 
 (7) "Registrar" shall include "District' •<-g'«trar." 
 
 Registrar." 
 
 See Out. Act, s. 2, supra^ p. 4. 
 
 The Ont. Act includes a "railway company" under 
 the definition of "owner," but that is omitted from this 
 Act. In other respects this section agrees with the Ont. 
 Act. 
 
 A foreign unlicensed corporation would seem to be 
 entitled to acquire a lien under this Act, notwithstanding 
 R. S. M., c. 24, s. 13 : see Bank of Montreal \. Condon, 
 1 1 Man., 366. 
 
 The corresponding section of the Ont. Act includes a 
 definition of "wages " which is found in this Act, s. 12 
 (6) infra, p. 218. 
 
 {a) The Ont. Act has here the words " and railway 
 company." 
 
 3. No agreement shall be held to deprive section 3. 
 anyone otherwise entitled to a lien under this^„"S^^'*rivl"°* 
 Act, and not a party to the agreement, of the Hen. p'''"^^° 
 benefit of the lien, but the lien shall attach, 
 notwithstanding such agreement. 
 
 See Ont. Act, s. 6, supra, p. 39. 
 
 The agreement to waive a lien must be in writing : see 
 
I > tllll> <>- i. w m ' 'l^** t^ 
 
 I I IIOI 
 
 
 ■.!:* 
 
 206 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 - ! 
 
 Section 3. if/fra, s. 4. A contractor cannot bind any sub-contractor 
 by any such agreement : Afi/y v. Ho/y Trinity Churchy 
 2 Man. 248. 
 
 This Act gives, as does the Ont. Act, a lien for both 
 work and materials. But a lien for materials only arises 
 where the goods are supplied for the purpose of being 
 used in the particular building on which the lien is 
 claimed: Sprague v. Besant, 3 Man. 519. 
 
 Section 4. 4. (i) Unless he signs an express agree- 
 Natureofiien. p^gj^j. jq j-j^^ Contrary, any person who 
 
 performs any work or service upon or in 
 respect of, or places or furnishes any ma- 
 terials to be used in the making, con- 
 structing, erecting, fitting, altering, improv- 
 ing or repairing of any erection, building, 
 {a) land, wharf, pier, bulkhead, bridge, 
 trestlework, vault, mine, well, excavation, 
 [b) sidewalk, paving, fountain, fishpond, 
 drain, sewer, aqueduct, roadbed, way, [c) 
 or the appurtances to any of them, for any 
 owner, contractor or sub contractor, shall by 
 virtue thereof have a lien for the price of 
 such work, service or materials upon the 
 erection, building {a), land, wharf, pier, bulk- 
 head, bridge, trestlework. vault, mine, well, ex- 
 cavation {(5), sidewalk, paving, fountain, fish- 
 
The Mechanics' Lien Act ok MANITOBA. 
 
 pond, drain, sewer, aqueduct, roadbed, way, (a) ^^"^ *■ 
 and appurtances thereto, and the lands occu- 
 pied thereby or enjoyed therewith, or upon or 
 in respect of which the said work or service 
 is performed, or upon which such materials 
 are placed, or furnished to be used, limited 
 however in amount to the sum justly due 
 to the person entitled to the lien and to the 
 sum justly owing (excepting as herein provid- 
 ed) by the owner. Provided that no such lien s^„mumur$... 
 shall exist under this Act for anv claim 
 under the sum of twenty dollars. 
 
 (2) Such lien, upon registration as herein- '^'"■"""^"v'^' 
 
 ^ ' _ I " iiiciit ot hen. 
 
 after provided, shall arise and take effect 
 from the date of the commencement of such 
 work or service or from the placing of such 
 materials as against purchasers, chargees or 
 mortgagees under instruments, registered or 
 unregistered (ci^). 
 
 See Ont. Act s. 4, supra, p. 18. 
 
 The Court has no jurisdiction to enforce a lien on 
 land out of its territorial jurisdiction : Chadwick v. 
 Hunter, i Man. 363. 
 
 The limitation of I'ens to claims for $20 and upwards 
 is peculiar to this Act. 
 
 Under the former Mechanics' Lien Act for Manitoba, 
 it was held that where a contractor had not completed 
 
 
2o8 
 
 The Mfxhanics' Kien Act of MANITOBA. 
 
 w 
 
 ■ . *■ 
 
 ht'. ■ ; I 
 
 secuon4. his contract, he could not enforce a lien for anymore 
 than what, if anything, was actually due according to the 
 contract: Brydon v. Lutes, 9 Man. 463; and see Mc- 
 Arthurs, Dewar, 3 Man. 72; this is probably still the 
 law as regards contractors and sub-contractors except 
 wage earners ; but as to wage earners entitled to a lien 
 see infra, section 12 {^), post p. 217. 
 
 A sub-contractor is entitled to a lien even though the 
 contractor under whom he claims has agreed with the 
 owner that no workman shall be entitled to a lien : Anly 
 V. Holy Trinity Church, 2 Man. 248. 
 
 Municipal buildings have in Manitoba been held to be 
 subject to mechanics' liens : McArthur v. JJewar, 3 
 Man. 72, and see McLennan v. Winnipeg, 3 Man. 474 ; 
 so also a public school : Moore v. Bradley, 5 Man. 49. 
 As to their liability to such liens in Ontario, see supra, 
 p. 29, note {g). 
 
 The claim of a lien-holder under this Act, is a prefer- 
 ential claim under The Dominion IVinding-Up Act, (R. 
 S. C. c. 129) : Re Empire B &■■ M Co., 8 Man. 424. 
 
 {a) The Ont. Act has here the word " railway." 
 
 {b) The Ont. Act has here the word " fence," 
 
 {c) The Ont. Act has here the woi-ds " fruit and orna- 
 mental trees." 
 
 Sub-section 2 of this section explicitly states what is 
 probably implicitly contained in the Ont. Act. Under 
 the former Act it was held that a lien had no existence 
 until it was registered : Kievell v. Murray, 2 Man. 209. 
 
 (d) Sub-section 2 and the proviso at the end of sub-sec- 
 tion I, are not in the Ont. Act. 
 
The Mechanics' Lien Act of MANITOBA. 
 
 ao9 
 
 
 5 — (i) The lien shall attach upon the 
 
 Section •,. 
 
 estate or interest of the owner as defined by whi?h"f^n''°" 
 this Act in the erection, building («), land/* 
 wharf, pier, bulkhead, bridge, trestle-work, 
 vault, mine, well, excavation (d), sidewalk, 
 paving, fountain, fishpond, drain, sewer, aque- 
 duct, roadbed, way (c), and the appurtances 
 thereto, upon or in respect of which the 
 w(jrk or service is performed, or the materials 
 placed or furnished to be used, and the 
 lands occupied thereby or enjoyed therewith. 
 
 (2) In cases where the estate or interest ^^^^^^JYs""' 
 charged by the lien is leasehold the (^q^'^''^^'^- 
 simple may also, wirh the consent of the 
 
 owner thereof, be subject to said lien, 
 provided such consent is testified by the sig- 
 nature of such owner upon the claim of lien 
 at the time of the registering thereof, and 
 duly verifir;d. 
 
 (3) In case the land upon or in respect offljnd^^'*^'^'' 
 which the work is done or materials or 
 machinery are placed, be incumbered by a 
 mortgage or other charge existing or created 
 before the commencement of the work or of 
 
 the placing of the materials or machinery 
 upon the land, such mortgage or other charge 
 14 
 
210 
 
 Thi: Mechanics' Lien Act of MANITOBA. 
 
 fV nl 
 
 
 A» 
 
 Section 5- shall hciVc priority over a lien under this Act 
 to the extent of the actual value of such 
 land at the time the improvements were 
 commenced. 
 
 See Ont. Act, s. 7 (i), supra, p. 41, tc the same effect 
 as this sec/ion, with the exception of sufi section 3, which 
 is somewhat different. 
 
 (rt) The Ont. Act has here the word "railway." 
 {h) The Ont. Act has here the word " fence" 
 {c) The Ont. Act has here the words " fruit and 
 ornamental trees " 
 
 Where at the time the work was commenced the 
 "owner's" interest in the land is simply that of a pur- 
 chaser whose purchase money is unpaid, the lien-holder 
 can only acquire a lien on that interest, and it is subject 
 to the lien of the unpaid vendor for his purchase money : 
 Flack ^'Jeffrey, 10 Man. 514 j but the purchaser cannot 
 defeat the lien on the purchaser's interest by taking a 
 release thereof : lb. 
 
 n 
 
 Section 6. 
 
 1' ■♦'tw.r 
 
 Application 
 of insurance 
 when lien 
 attaches. 
 
 6. Where any of the property upon which 
 a lien is given by this Act is wholly or partly 
 destroyed by fire, any money received by 
 reason of any insiirance thereon by an owner 
 or prior mortgagee or chargee shall take the 
 place of the property so destroyed, and shall, 
 after satisfying any prior mortgage or charge 
 in the manner and to the extent set out in 
 sub section (3) of section 5 of this Act. be 
 
The Mechanics' Lien Act ok MANITOBA. 
 
 211 
 
 amount of 
 ien. 
 
 subject to the claims of all persons for liens •'Section <^^ 
 to the same extent as if such moneys were 
 realized by a sale of such property in an 
 action to enforce a lien. 
 
 See Ont. Act, s. 8, supra, p. 56, which is to the same 
 effect. The present section being a little more specific 
 as to the right of the mortgagee to prior payment out of 
 insurance money. 
 
 7, Save as herein provided, the lien shall , ^e<=t'"" 7 
 not attach so as to make the owner liable for J'""'*°^ 
 a greater sum than the sum payable by the 
 owner to the contractor. 
 
 See Ont. Act, s. 9, supra, p. 58, to the same effect. 
 
 Although a sub-contractor's lien depends upon there 
 being something due by the " owner " to the contractor 
 under whom the sub-contractor claims, still it was for- 
 merly not necessary to give evidence on this point at 
 the hearing of the action as that was a matter of account 
 for the Master's office : McLennan v. Winnipeg, 3 Man. 
 474 ; but probably, under the new procedure, this case 
 would not now be followed. A sub-contractor has no 
 lien on money which would be payable on the contract 
 if the wo.k were properly performed, but which the 
 contractor has failed to earn : McArthur v. Deivar, 3 
 Man. 72 ; and see Brydon v. Lutes, 9 Man. 463 ; unless 
 he be a wage-earner to whom section 12 (4), infra, 
 applies. 
 
 But the contractor cannot, by release or assignment of 
 
HMHrni 
 
 ' ' 
 
 
 
 
 i 
 f 
 
 1^ 
 
 ' -'1 
 J 
 
 
 J 
 
 
 ■9 
 
 
 ■ ^ 
 
 
 ' *! 
 
 : 
 
 ./,*. 
 
 
 »■.«» 
 
 
 "» 
 
 
 n .,^. 
 
 
 »•.«. 
 
 
 - :.a:'' 
 
 
 \< ■■♦■«.,► 
 
 
 ii^ 
 
 212 
 
 Section 71 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 his rights under his contract with the owner, defeat the 
 registered lien of a sub-contractor claiming under him. 
 Under the former Act a release or assignment by the 
 contractor of his lien made before the registration of his 
 sub-contractor's lien, would take priority over it : Anly 
 V. Holy Trinity Church, 3 Man. 193 ; but under the 
 present Act the registration of a lien would seem to 
 have a retrospective operation : see section 4 (2), supra, 
 p. 207. 
 
 Section 8 
 Limit of lien 
 
 8. Save as herein provided, wher^i the hen 
 wh^ncfaimed is daimcd by any other person than the con- 
 other tractor, the amount which may be claimed in 
 
 contractor. ^ ^ ^ 
 
 respect thereof shall be limited to the amount 
 owing to the contractor or sub contractor or 
 other person for whom the work or service 
 has been done or the materials have been 
 placed or furnished. 
 
 See Ont. Act, s. 10, supra, p. 59, to the same effect. 
 See note to the preceding section. 
 
 Section 9. g^ ^(^ In all cases the person primarily 
 bede*duct^ed*''li^t>le upott any contract under or by virtue 
 by^owntr"'^'^ of which a Hcn may arise under the provisions 
 of this Act shall, as the work is done or ma- 
 terials are furnished under any contract, de- 
 duct from any payments to be made by him 
 in respect of such contract, and retain for a 
 
 I 
 
 f * 
 
The Mechanics' Lien Act of MANITOBA. 
 
 213 
 
 I 
 
 period of thirty days after the completion or 
 abandonment of the contract twenty per cent, 
 of the value of the work, service and mate- 
 rials actually done, placed or furnished, as 
 defined by Section 4 of this Act, and such 
 value shall be calculated on the basis of the 
 price to be paid for the whole contract ; Pro- 
 vided that when any contract exceeds $15,000, 
 the amount to be retained shall be fifteen per 
 cent, instead of twenty per cent. ; and the liens 
 created by this Act shall be a charge upon 
 the amounts directed to be retained by this 
 section in favour of sub-contractors whose 
 liens are derived under persons to whom such 
 moneys so required to be retained are re- 
 spectively payable. 
 
 (2) All payments up to eighty per cent, 
 (or eighty-five per cent, where the contract 
 price exceeds $15,000) of such value made in 
 good faith by an owner to a contractor, or by 
 a contractor to a sub-contractor, or by one 
 sub-contractor to another sub-contractor be- 
 fore notice in writing of such lien given by 
 the person claiming the lien to the owner, 
 contractor or the sub-contractor, as the case 
 may be, shall operate as a discharge pro 
 tanto of the lien created by this Act. 
 
 Section . 
 
tm 
 
 214 
 
 The Mlchanics' Lien Act of MANITOBA. 
 
 fe 
 
 li 
 
 
 m" 
 
 sectong. ^^^ Payment of the percentage required to 
 be retained under Sub-section i of this Sec- 
 tion may be validly made so as to discharge 
 all liens or charges under this Act in respect 
 thereof after the expiration of the said period 
 of thirty days mentioned in said Sub-section i, 
 unless in the meantime proceedings have 
 commenced under this Act to enforce any 
 lien or charge against such percentage as 
 provided by Sections 21 and 22 of this Act. 
 See Ont. Act, s. 1 1, supra, p. 60, to the same effect. 
 
 Section IP. iQ^ I n case an owner or contractor chooses 
 inl^Tingood to make payments to any persons referred to 
 
 faith without . ^ . r \ • \ r r 
 
 notice of lien, m Section 4 oi this Act tor or on account ot 
 any debts justly due to them for work or ser- 
 ^Mce done or for materials placed or furnished 
 to be used as therein mentioned, and shall 
 within three days afterwards give, by letter 
 or otherwise, written notice of such payment 
 to the contractor or his agent, or to the sub- 
 contractor or his agent, as the case may be, 
 such payments shall, as between the owner 
 and the contractor or as between the con- 
 tractor and the sub-contractor, as the case 
 may be, be deemed to be payments to the 
 contractor or sub-contractor, as the case may 
 
The Mechanics' Lien Act ok MANITOBA. 
 
 at 5 
 
 Section lo. 
 
 be, on his contract generally, but not so as to 
 affect the percentage to be retained by the 
 owner, as provided by Section 9 of this Act. 
 
 See Ont. Act, s. 12, supra, p. 70, to the same effect. 
 
 11. (i) The lien created by this Act shall ^^^^}^ " 
 have priority over all judgments, executions, i,-eiT'^^ "^ 
 assignments, attachments, garnishments and 
 receiving orders recovered, issued or made 
 after such lien arises, and over all payments 
 or advances made on account of any convey- 
 ance or mortgage after notice in writing of 
 such lien to the person making such pay- 
 ments or after registration of such lien as 
 hereinaftei provided. ' 
 
 (2) In case of an agreeme'it for the pur- ^f^puj^^asl, 
 chase of land, and the purchase money or pSrch'ase nn- 
 
 -11 ney unpaid. 
 
 part thereor is unpaid, and no conveyance 
 made to the purchaser, the purchaser shall, 
 for the purposes of this Act and within the 
 meaning thereof, be deemed a mortgagor and 
 the seller a mortgagee. 
 
 (3) Excepting where it is otherwise de-amoSien- 
 clared by this Act, no person entitled to 
 
 a lien on any property or to a charge on any 
 moneys under this Act shall be entitled to 
 
■■ 
 
 
 ^ 
 
 i 
 
 1 ; 
 
 ■J 
 
 1 
 
 : i 
 ^1 
 
 f 
 
 r 1 r"s; 
 
 
 ' i) 
 
 
 >< 
 
 ' 
 
 ■* 
 
 
 1 ■» 
 
 
 *' 
 
 : 
 
 M-X> 
 
 ■ ■<•• 
 
 <• .... 
 
 
 r 1 j'l 
 
 • 1 1^ 
 
 : it 
 
 ai6 The Mechanics' Lien Act of MANITOBA. 
 
 '^'^ ' ny priority or preference over another per- 
 
 son of the same class entitled to a lien or 
 chi'^ ^ ^ on such property or moneys under 
 this Act, and each class of lienholders, ex- 
 cept where it is otherwise declared by this 
 Act, shall rank />art passu for their several 
 amounts, and the proceeds of any sale shall, 
 subject, as aforesaid, be distributed among 
 the lienholders pro rata, according to their 
 several classes and rights. 
 
 See Ont. Act, s. 13, supra, p. 72, to the same effect. 
 
 Section i^. J2. (i) Evcry mechanic or laborer whose 
 Hln°forwageB. ^i^" is for work done for wages shall, to the 
 extent of thirty days' wages, have priority 
 over all other liens derived through the same 
 contractor or sub-contractor to the extent of 
 and on the twenty per cent, or fifteen per 
 cent., as the case may be, of the contract 
 price directed to be retained by Section 9 of 
 this Act, to which the contractor or sub-con- 
 tractor through whom such lien is derived 
 is entitled, and all such mechanics and labour- 
 ers shall rank paH passu on said twenty per 
 cent, or fifteen per cent., as the case may 
 be. 
 
 -1 
 
 ■■:«i 
 
The Mechanics' Lien Act of MANITOBA. 
 
 217 
 
 (2) Every wage-earner shall be entitled to 
 
 .Section i,-. 
 
 enforce a lien in respect of the contract not (''^"^^^^"c^sl" 
 completely fulfilled. 
 
 (3) In case of the contract not having been percei^aS* 
 completely fulfilled when the lien is claimed ^ot^fumnld!''^ 
 by wage-earner , the percentage aforesaid 
 
 shall be calculated on the work done or ma- 
 terials furnished by the contractor or sub- 
 contractor by whom such wage-earners are 
 employed. 
 
 (4) Where the contractor or sub contractor not to^bt^"^ 
 makes default in completing his contract the apphvTi!^* 
 percentage aforesaid shall not, as against a 
 wage-earner claiming a lien under this Act. 
 
 be applied to the completion of the contract 
 or for any other purpose by the owner or 
 contractor, nor to the payment of damages 
 for the non-completion of the contract by the 
 contractor or sub-contractor, nor in payment 
 or satisfaction of any claim of any kind 
 against the contractor or sub-contractor. 
 
 (s) Every device by an owner, contractor V^/'<ie« t" . 
 
 V^/ J J ' defeat priority 
 
 or sub-contractor adopted to defeat the prior- eai^efs.' 
 ity given to wage-earners for their wages by 
 this Act shall, as respects such wage-earners, 
 be null and void. 
 

 'i 
 
 
 4 
 
 i 
 
 ' 
 
 ^ 1 »l 
 
 M 
 
 ,' 
 
 J 
 
 
 •* 
 
 ; ■ , ' 
 
 ■M 
 
 Xt 
 
 .J£» 
 
 *>-*, 
 
 Section 12. 
 
 "WaRCB," 
 meaning of. 
 
 Section 13. 
 
 218 Thr iMechanics' LiKN \cT OF MANITOBA. 
 
 (6) "Wages" shall mean montiy earned 
 
 by a mechanic or laborer for work done. 
 
 whether by the day or as piece work. 
 
 See Out. Act, s. 14, supra, p. 77, to the same effect, 
 except sub section (6), as to which, see Out. Act, s. 2 (6), 
 supra, p. 5. 
 
 13. (i) During the continuance of a lien 
 rVmovrmate- ^o portion of the materials affected thereby 
 byiien^'^"' shall be removed to the prejudice of the lien, 
 and any attempt at such removal may be re- 
 strained on application to the Court of 
 Queen's Bench, or to a Judge, or Local Judge 
 thereof , having power to try an action to real- 
 ize a lien under this Act. 
 
 (2) The Court, Judge, or Local Judge, to 
 whom any such application is made, may 
 make such order as to the costs of and inci- 
 dental to the application and order as he 
 deems just. 
 
 (3) When any material is actually brought 
 s^'be^sur upon any land to be used in connection with 
 
 such land for any of the purposes enumerated 
 in Section 4 of this Act, the same shall be 
 subject to a lien in favour of the person sup- 
 plying the same until put in the building, 
 erection or work. 
 
 Costs. 
 
 (ioods fur- 
 nished for cer- 
 tain 
 not to 
 
 ject ti) execn 
 tif>n 
 
 if 
 
The Mechanics' Lien Act of MANITOBA. 
 
 3 19 
 
 See Ont. Act, s. 16, supra, p. 90, to the same effect as •'Section 13. 
 regards j«/Me^//'<?«^ ( 1 ) and (2). Sub-section (3) differs 
 materially from the Ont. Act, and does not bear out the 
 statement in the side note. It would seem to limit 
 rather than enlarge the lien of a material man, for 'Jt- 
 word " until " seems to put an end to his right of lien, 
 but this would be at variance with section 5. 
 
 14. A claim for lien may be registered in 
 
 Section 14. 
 
 I • .1 [-f . 1 • 1 • Office of 
 
 land titles ornce m wnicn instruments or registration. 
 dealings affecting the lands affected or pro- 
 posed to be affected thereby are to be regis- 
 tered, if such lands have been brought, or if 
 application has been made to bring them, 
 under the operation of " The Real Property 
 Act," or if the lands have not been so brought, 
 or application made therefor, then such state- 
 ment shall be registered in the registry 
 office or land titles office for the registra- 
 tion district or land titles district, in which 
 such lands are situate. If the lands be part- 
 ly under the operation of the said Act, and 
 partly not, each portion shall be affected only 
 by registration in the proper office. 
 
 .See Ont. Act, s. 17 (i), supra, p. 95, to the like effect. 
 
 15. A claim for lien shall state section .5. 
 
 Registration 
 
 (a) The name and residence of the person 5*;^^'"''" ^'"" 
 
 
- 
 
 I 
 
 i iii!! 1 
 
 
 ¥^ 
 
 n i' 
 
 
 ll 
 
 
 11 
 
 220 
 
 The Mechanics' Lien Act ok MANITOBA. 
 
 Section .5. claiming the lien and of the owner of the 
 proj3erty to be charged (or of the person 
 whom the person claiming the lien, or his 
 agent, believes to be the owner of the 
 property to be charged) and of the person 
 for whom and upon whose credit the work 
 (or service) is done, or materials furnished or 
 placed, and the time or period within which 
 the same was, or was to be, done or 
 furnished or placed ; 
 
 (b) A short description of the work (or 
 service) done or materials furnished or placed 
 or to be furnished or placed ; 
 
 (c) The sum claimed as due or to become 
 due ; 
 
 (d) The description of the land to be 
 charged sufficient for the purpose of registra- 
 tion ; 
 
 (e) The date of expiry of the period of 
 credit (if any) agreed by the lienholder for 
 payment for his work (or service) or materials 
 where credit has been given. 
 
 Form of claim. (2) The claim may be in one of the forms 
 given in the schedule to this Act and shall 
 be verified by the affidavit of the person 
 
li 
 
 Section 15 
 
 The Mechanics' Lien Act of MANITOBA. ill 
 
 claiming the lien or of his agent or 
 assignee having a personal knowledge of 
 the matters required to be verified, and the 
 affidavit of the agent or assignee shall state 
 that he has such knowledge. 
 
 See Ont. Act, s. 1 7 (a), supra, p. 95, to the like effect. 
 
 The Ont. Act includes a clause (3), providing for 
 the registration of liens against railway companies, which 
 is not to be found in this Act, which is probably not 
 intended to authorize the registration of liens against 
 railway companies at all. 
 
 It would seem to be unnecessary that the claim 
 registered should specify in detail the work and materials 
 for which the lien is claimed : see the Form i, in the 
 Schedule ; and see Invin v. Beytion, 4 Man. 10. 
 
 As to the statement of the time when the work was 
 done or materials supplied ; see Kelly v. Me ^'enzie, i 
 Man. 169; Flack V. Jeffrey t 10 Man. 514. 
 
 16. A claim for lien may include claims 
 
 \ r '1 What inav be 
 
 against any number ot properties, md any included 
 number of persons claiming liens upon the 
 same property may unite therein, but where 
 more than one lien is included in one claim 
 each lien shall be verified by affidavit 
 as provided in Section 15 of this Act. 
 
 See Ont. Act, s. 18, supra, p. 102, to the same effect. 
 
 Section i6. 
 
Section 17. 
 
 1) 
 
 The Mkchamcs' Likn Act ok MANITOBA. 
 
 17. (i) A sLiljstantial compHatice only 
 bi'^inTarwate'i with Sectioiis 15 aiul 16 of this Act shall be 
 lity." """"" reciuircd, and no Vw.n shall be invalidated by 
 reason of failure to comj)ly with any of the 
 re(|uisites of Sections i 5 and 16 of this V' 
 unless in the opinion of the Court, Judg» 
 Local Judge, who has power to try an action 
 under this Act, the owner, contractor or 
 sub-contractor, mortgagee or other person, 
 as the case may be, is prejudiced thereby, 
 and then only to the extent to which he is 
 thereby prejudiced. 
 
 (2) Nothing in this section contained shall 
 be construed as dispensing with registration 
 of the lien required by this Act. 
 
 See Ont. Act, s. 19, supra, p. 103, to the same effect. 
 
 Liens must be 
 registered. 
 
 
 Lien to be 
 registered as 
 an incum- 
 brance. 
 
 Fee for regis- 
 tration. 
 
 18. (i) The registrar upon payment of 
 his fee, .shall register the claim, so that the 
 sam : may appear as an incumbrance against 
 the land therein described. 
 
 (2) The fee for registration of a claim of 
 lien for wages shall be twenty-five cents 
 
 See Ont. Act, s 20, supra, p. 106, containing similar 
 provisions. 
 
 II 
 
Thk Mechanics' Likn Act oi MANITOBA. 
 
 223 
 
 Siclioll ly. 
 
 19. Where a claim for lien is so registered, 
 the person entitled to the said lien shall be rSerin^ .. 
 
 , , , , 1 1 • L' purchasfi 
 
 deemed a jjurchaser, pro tanto^ and within /"<./a/.^,. 
 the provisions of "The Registry Act," but 
 except as herein otherwise provided, 'The 
 Registry Act" shall not apply to any lien 
 arising under this Act. 
 
 See Ont. Act, s. 21, supra, p. 107, to the same effect. 
 
 Section ao. 
 
 20. (0 ^ claim for lien by a contractor 
 
 , . ^ ^U Claims for 
 
 or sub-contractor may, m cases not other- nens when to 
 
 ^ I 1 r ^^ registered, 
 
 wise provided for, be registered before or 
 during the performance of the contract or 
 within thirty days after the completion thereof. 
 
 (2) A claim for lien for materials may 
 be registered before or during the furnishing 
 or placing thereof or within thirty days 
 after the furnishing or placing of the last ma- 
 terial so furnished or placed 
 
 (3) A claim for lien for services may 
 be ref^istered at any time during the i)erform- 
 ance of the service or within thirty days after 
 the completion of the service. 
 
 (4) A claim for lien for^wages may be 
 registered at any time during the perform- 
 ance of the work for which such wages are 
 
ja ; a? 
 
 224 
 
 Section 
 
 I' iill'^i' 
 
 ur 1 
 
 It 
 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 claimed, or within thirty days after the last 
 day's work for which the Hen is claimed. 
 
 See Ont. Act, s. 22, supra, p. 112, to the same effect. 
 
 Under the former Act the lien had no existence until 
 registered : Kievell\. Murray, 2 Man. 209 ; but under 
 the present Act, it is not necessary to register the lien 
 before action, if the certificate of lis pettdens is registered 
 in an action to enforce it, within the time limited by s. 
 21, infra. 
 
 Where materials are supplied from time to time as a 
 building progresses, not under a contract covering the 
 whole supply, but as they are from time to time required, 
 and ordered, each sale is a separate transaction, and 
 the subject of a separate registration : Chadwick v. 
 Hunter, i Man. 39. 
 
 The question of the time of the completion of the 
 work becomes material in determining whether or not a 
 lien has been duly registered. What is meant by com- 
 pletion is the substantial completion of the work, and 
 the subsequent supplying of trifling defects will not have 
 the effect of prolonging the time for the registration of 
 the lien under this section, or for bringing the action to 
 enforce the lien under section 22 infra : Kelly v. Mc- 
 Kenzie, i Man. 169 ; and see Mclennan v. Winnipeg, 
 3 Man. 474; Summers \. Beard, 24 O. R. 641 ; but 
 where the performance of a substantial part of the con- 
 tract was delayed owing to the plaintiff being unable to 
 pay for materials in consequence of the defendant's re- 
 fusal to pay him what was due, it was held that the date 
 of its subsequent completion of what remained to be 
 done was the completion of the work, and the date from 
 
The Mechanics' Lien Act of MANITOBA. 
 
 235 
 
 ' 
 
 which the time for registration of the claim must be Section 20. 
 computed : Irwin v. Beynon, 4 Man. 10. 
 
 The misnomer of the " owner," a corporation aggre- 
 gate, in the style of the action was held to be immaterial 
 and amendable where the registered claim was in proper 
 form : Moore v. Bradley, 5 Man. 49 j but see supra, 
 p. 100. 
 
 Under the former Act an assignee of a person entitled 
 to claim a lien, niight register the claim verified by his 
 own affidavit: Kelly v. McKenzie, i Man. 169 ; nnd see 
 infra, s. 23. 
 
 21. Every lien which is not duly regis- •'^*"=*_!^ " 
 
 , , , . . r 1 • A Liens to cease 
 
 tereci under the provisions ot this Act 't action not 
 
 ^ commenced 
 
 shall absolutely cease to exist on the expira- ^';|*'^'" ^''"^ 
 tion of the time hereinbefore limited for the 
 regi.stration thereof, unless in the meantime 
 an action is commenced to realize the 
 claim, or in which the claim may be realized 
 under the provisions of this Act, and a certifi- 
 cate of lis pendens thereof be registered in the 
 registry office, or land titles office. 
 
 See Ont. Act, s. 23, supra, p. 118, to the like eflTect. 
 
 commenced 
 •ithin time 
 xed by Act. 
 
 Section 22. 
 
 22. Every lien which has been duly 
 
 I < I . . r 1 • When lien to 
 
 registered under the provisions ot this cease if regis- 
 
 o *■ ^ tered and 
 
 Act shall absolutely cease to exist after p^o'^f'^''^^ 
 the expiration of ninety days after the work 
 or service has been completed or materials 
 
] p 1 
 
 226 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 It 
 
 
 Section 22. hj^ve bceti furnished or placed, or the expiry 
 of the period of credit, where such period 
 is mentioned in the claim of lien registered, 
 unless in the meantime an action is commen- 
 ced to realize the claim under the provisions of 
 this Act or an action is commenced in 
 which the claim may be realized under the 
 provisions of this Act, and a certificate of /is 
 pendens thereof according to Form 6 in the 
 schedule hereto be registered in the proper 
 registry office, or land titles offices. 
 
 See Ont. Act, s. 24 (i), supra, p. 123, to the like ef- 
 fect. '^. 24 of the Ont. Act also contains a provision 
 not in this Act, providing that liens shall cease in six 
 months unless registration renewed, or proceedings in- 
 stituted. 
 
 Section 23. 
 
 Death of lien- 
 holder. 
 
 Section ^4. 
 
 DischarRe of 
 
 lien. 
 
 23. In the event of the death of a lien- 
 holder his right of lien shall pass to his per 
 sonal representatives ; and the right of a 
 lienholder may be assigned by any instru- 
 ment in writing. 
 
 See Ont. Act, s. 26 supra, p 128, to the same effect. 
 
 24. (i) A lien maybe discharged by a 
 receipt signed by the claimant, or his agent, 
 duly authorized in writing, acknowledging 
 payment, and verified by affidavit and 
 
The Mechanics' Lien Act of MANITOBA. 22 
 
 registered ; the fees shall be the same as for •'^t-^'^ ^4. 
 registering a claim of lien. 
 
 (2) Upon application the Court, or Judge, ''^f^^.^;,;;'^^ 9'^ 
 or Local Judge, having power to try an caunVuen''' 
 action to realize a lien, may receive security 
 
 or payment into Court in lieu of the amount of 
 the claim, and may thereupon vacate the 
 registration of the lien. 
 
 (3) The Court, or such Tudsfe, or Local '^'''^.''!'"^. 
 
 ^^ ' Jo' "■ registration 
 
 Judge, may vacate the said registration upon |^"ounds. 
 any other ground. 
 
 (4) The taking of any security for, or l,"^;^^;;',/^^^',^ 
 the acceptance of any promissory note for, or omoixe'iien.' 
 the taking of any other acknowledgment of 
 
 the claim, or the giving of time for the 
 payment of the claim, or the taking of any 
 proceedings for the recovery of the claim or 
 the recovery of any personal judgment for 
 the claim, shall not merge, waive, pay, satis- 
 fy, prejudice, or destroy nny lien created by 
 this Act, unless the lienholder agrees in writ- 
 ing that it shall have that effect; Provided, 
 however, that a person who has extended the 
 time for payment of any claim for which he 
 has a lien under this Act to obtain the benefit 
 
 to 
 a- 
 
228 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 
 
 Section 24. Qf j}^js sub-scction shall commence an action 
 to enforce such lien within the time limited 
 by this Act, and register a certificate, as re- 
 quired by this Act, but no further proceedings 
 shall be taken in the action until -the expira- 
 tion of such extension of time ; Provided 
 further, that notwithstanding such extension 
 of time, such person may, where an action is 
 commenced by any other person to enforce a 
 lien against the same property, prove and 
 obtain payment of his claim in such action, as 
 if no such extension had been given. 
 
 See Ont. Act, s. 27, supra, p. 129. Sul'-section (i) in 
 the Ont. Act is somewhat more full in its provisions. Sul>- 
 sections (2) (3) are to the same effect. As to sub-section 
 (4) of this si'ctio?i, see Ont. Act, s. 28, which is to the 
 like effect. 
 
 Section 25. 25. Any lienholder or. person entitled 
 
 tobl'entitied ^^ ^ ^^^" "^^Y ^^ ^"Y ^'"^^ demand of 
 as the owner, or his agent, the terms of 
 
 the contract or agreement with the con- 
 tractor for and in respect of which the work, 
 services or materials is or are performed or 
 furnished or placed, and if such owner or his 
 said agent shall not at the time of such <le- 
 mand or within a reasonable time thereafter. 
 
 to information 
 from owner 
 to terms of 
 contract. 
 
 .f^', 
 
The Mechanics' Lien Act of MANITOBA. 22c 
 
 inform the person making such demand, of ^^^tjf;^"? 
 the terms of such contract or agreement, 
 and the amount due and unpaid upon such 
 contract or agreement, or shall intentionally 
 or knowingly falsely state the terms of said 
 contract or agreement, or the amount due or 
 unpaid thereon, and if the person claiming 
 the lien shall sustain loss by reason of such 
 refusal or neglect or false statement, the said 
 owner shall be liable to him in an action 
 therefor to the amount of such loss. 
 
 See Ont. Act, s. 29, supra, p. 137, to the same effect. 
 26. The Court, or Judge, Local Judge =^^'=^1°?^^ 
 
 h^ ^ • ^ !• Order £01- 
 
 avmg power to try an action to realize inspection ot 
 
 , . ... contract by 
 
 a lien, may, on a summary application at i'«^n-hoider. 
 any time before or after any action is com- 
 menced for the enforcement of such lien, 
 make an order for the owner or his agent to 
 produce and allow any lienholder to inspect 
 any such contract, and may make such an 
 order as to the costs of such application and 
 order as may be just. 
 
 See Ont. Act, s. 30, supra, p. 139, to the Uke effect. 
 
 ion J7. 
 
 27. (i) The liens created by this Act ^^"^ 
 may be realized by actions in the Court of j^^^'^i^e'^J,'^'*""- 
 
iMI 
 
 230 
 
 The Mechanics' Lien Act 01 MANITOBA. 
 
 t 
 
 \ 
 
 
 ;'.a 
 
 ll 
 
 
 I' ♦. 
 
 Section 27. Queens Bench, according to the ordinary 
 procedure of that Court, excepting where the 
 same is varied by this Act. 
 
 (2) It shall not be necessary to make any 
 lienholders parties defendant to the action, 
 but all lienholders served with the notice of 
 trial shall for all purposes be treated as if they 
 were parties to the action. 
 
 See Ont. Act. s. 31 (i),(4), supra, p. 140, to the same 
 effect. Section 31 of the Ont. Act also contains provisions 
 for commencing the proceedings by filing a statement of 
 claim without any writ of summons. 
 
 The action may be brought not only to enforce the 
 lien against the land, but also for a personal order for 
 payment by the debtor primarily liable to the lien-holder: 
 see infra, s. 43, and see Davidson v. Campbell, 5 Man. 
 250. 
 
 Where under the contract with the person claiming 
 the lien the payment of the price is postponed to a date 
 later than that on which the action to enforce the lien 
 must be commenced under this section, that was for- 
 merly tantamount to an agreement that no lien should 
 exist ; but if by the contract a promissory note or other 
 security for the price was to be given within the time 
 allowed for commencing an action, the implied agree- 
 ment to waive the lien was conditional on the note or 
 other security being given : Ritchie v. Grundy, 7 Man. 
 532; under the present Act express provision is made as 
 to the efifect of taking security, and also for commencing 
 
 » 
 
 \Wi 
 
The Mechanics' Lien Act of MANITOBA. 
 
 9$S 
 
 t 
 
 an action before the period of credit expires, where it Section 27. 
 extends beyond the time hmited for bringing an action 
 to enforce the lien : see supra, p. 227, sec/ion 24 (4), 
 
 Formerly where any material amendment of a bill was 
 made, the amended bill had to be registered as a /is 
 pendens within the time prescribed for registration, or 
 the lien would cease. Thus where the original bill 
 alleged a contract between the plaintiffs and the owner, 
 and, by amendment, the plaintiffs alleged their contract 
 was with B, who had contracted with the owner, it was 
 held that the plaintiffs could not rely on the registration 
 of the original bill as a lis pendens, and the amendment 
 having been made after the time allowed for registering 
 a certificate of lis pendens, the lien had ceased: Dav- 
 idson V. Campbell, 5 xMan. 250 ; but an amendment of 
 the bill which did not substantially vary the plaintiff's 
 claim, did not necessitate re registration of a certificate 
 of lis pendens : Invin v. Beynon, 4 Man. 10 ; a misno- 
 mer of the defendants, a corporation aggregate, was held 
 to be of this character : Moore v. Bradley, 5 Man. 49. 
 
 28. Any number of lienholders, claiming 
 
 Section 28. 
 
 liens on the same property, may join in an f^'inlng in^" 
 action, and any action brought by a lien-'""'""' 
 holder shall be taken to be brought on be- 
 half of all other lienholders on the property 
 in question. 
 
 See Ont. Act. s. 32, supra, p 145, to the same effect. 
 
 29. An action to enforce a lien may be section^ 29. 
 tried by a Judge of the Court of Queen's SnToVue'n. 
 
IL.: 
 
 ■p 'v r j i ji i r riy|||rw;|)<)m 
 
 !■ vJi 
 
 i'. 
 
 t ''Mj 
 
 1 ■ 
 
 i If 
 
 1' ■ 
 
 h^l 
 
 1 - 
 
 
 
 .;=» 
 
 <'■*«■ 
 
 232 
 
 Section 29. 
 
 Section 30 
 
 Powers of 
 Local Judpe 
 trying action 
 for lien. 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 Bench at any regular sittings thereof 
 for the trial of actions, or when the aggre- 
 gate amount of the liens involved does not 
 exceed the sum of $i,ooo by a Local Judge 
 of the said Court within whose judicial 
 district the cause of action has arisen. 
 
 See Ont. Act, ss. 33, 34, supra, p. 148. 
 
 30. A Local Judge of said Court trying 
 such action shall have the powers of a 
 Local Master under " The Queen's Bench 
 Act, 1895," '^^^ ^^1 the powers and authority 
 conferred by this Act and otherwise upon a 
 Judge of the Court of Queen's Bench to 
 try, determine and finally dispose of such 
 action. 
 
 Should it appear at any time during the 
 progress of such action to such Local Judge 
 that the aggregate amount involved exceeds 
 $1,000 he shall not be thereby divested of his 
 jurisdiction, but may with the consent of the 
 parties proceed to try, determine and dispose 
 of the same as aforesaid, or, in his discretion, 
 and in any event, may refer the action to a 
 Judge of the Court of Queen's Bench at 
 Winnipeg to be there tried and determined, 
 
I 
 
 f1' 
 
 The Mechanics' Lien Act oi MANITOBA. 
 
 233 
 
 and make all orders for the transmission of ^""^^'o" 3° 
 papers to the proper officers of the Court at 
 Winnipeg and otherwise necessary for the 
 proper trial and determination of the action. 
 
 This section is peculiar to this Act, and has no coun- 
 terpart in the Ont. Act. 
 
 31. — (i) After the delivery of the state- «'^ction3' 
 ment of defence where the plaintiff's claim is ;|jJjPf"Jr ^',."^1. 
 disputed, or after the time for delivery of 
 defence in all other cases where it is desired to 
 try the action other than at the ordinary sit- 
 tings of the Court of Queen's Beach, either 
 party may apply to a Judge or Local Judge 
 who has the power to try the action, to 
 fix a day for the trial thereof, and the said 
 Judge or Local Judge shall give an appoint- 
 ment fixing the day and place of trial, and on 
 the day fixed, or on such other day to which 
 the trial may be adjourned, shall proceed 
 to try the action, and all questions which 
 arise therein, or which are necessary to be 
 tried, to completely dispose of the action and 
 to adjust the rights and liabilities of the 
 persons appearing before him or upon whom 
 the notice of trial has been served, and at the 
 trial shall take all accounts, make all in- 
 
 ly. '•' 
 
,,_«iiii««?»**«:««Bai««w?s»«*.?W'«-«»'* 
 
 234 
 
 TiiK Mki hanks' I.ii'N /\( i mi MANITOBA. 
 
 
 ^^^^" '• (Hiirics jind ^ivc all tliicctioiis. and do all 
 thiiijj;.s lUH'cssary to trv and (»tlnrwisc (inal- 
 ly dispose of tin; artion and ol all niatM is. 
 (|iU'stions and aitounts arising in (he a( tion 
 or al tlic trial, and to adjust ihr ri|d»ts and 
 liahilitit's of and ^W'v all iKucssary nli* I to 
 all parties to the action or who have Ihcii 
 served with the notice ol trial, and sliall 
 <Mnl)ody all the results in the judgment, 
 
 l;nr"fV;;""^^^^ (2) The Judg»;or hociil Jud^c who tries the 
 action may order that the estate or interest 
 charged with the li(Mi may he sold, and when. 
 by the judgment, ;< sale is directed (»f the 
 estate or interest charged with the lien, the 
 Judge or Local |udg(; who tries tin* action 
 may direct thv. sale to tak(! place at any time 
 after judgment, allowing, howev(;r. a reason- 
 able time lor advertising sucli sale. 
 
 "■ maUMfa^''" {?>) '^^^^^' J i"-lg<' f»' ^-ocal J udgc who tfies th(! 
 action may also direct the sale of any 
 materials and authorize the removal therc^of. 
 
 iVeiVJiofdcrs (4) A"y lienholder, who has not proved 
 
 who have not !• i* ..1 . • i r ' a. f 
 
 proved their HIS ckum at the trial of any action to enforce a 
 
 olaiins at trial. ,. i> ■ 111 i 1 
 
 lien, on application to the Judge or Local 
 Judge who tried the action on such terms as to 
 
 V-h. 
 
^?5 
 
 s«otlfm jr. 
 
 
 Thr Mfchank.-;' f jkv Arr m^ MANITOBA. 
 
 costs arifl othf;r»vis^: as may be just, may be 
 let in to provf; his claim at any time U:fore 
 the amount realized in the action for the 
 satisfaction of liens has been distributed, and 
 where such a claim is proved and allowed, the 
 ju(]^f' or I.ocal Jiid^e shall amend the judg- 
 ment so as to include such claim therfiin. 
 
 (5; When a sale is had the Judge or f.ocal ^^^^ 
 jn(\^f with whose approbation the lands 
 are sold shall make a report on sale and 
 therf:in dire( t to whom the moneys in Court 
 shall bf; paid, anfl may add to the claim of 
 the pernor) conrlucting the sale his actual 
 disbursements incurred in connection there- 
 with, and where sufficient to satisfy the judg- 
 ment and costs is not realized frr>m the sale, 
 he shall c rtify the amount of the d^rficiency 
 and the names of the [)ersons, with their 
 amounts, who are entitled to recover the 
 same, and the persons by the judgment ad- 
 judged to pay the same, and such persons 
 shall be entitled to enforce the same by 
 execution or otherwise as a judgment of the 
 Court. 
 
 / - , . 1- 1 1 1 r ^ Attendance in 
 
 (6) Any lienholder tor an amount not person at tri*i 
 
 ' bv certain 
 
 exceeding $100, or any lienholder nc>t a '•'*"-'^'^'''«^*- 
 
I 
 
 236 The Mkchanics' I.ien Act ok MANITOBA. 
 
 Section ,.. pjirty to the action, may attend in person 
 at the trial of an action to enforce a Hen, and 
 on any proceedings in such action, or may be 
 represented thereat or thereon by a solicitor 
 or by an a^ent who is not a solicitor. 
 
 See Ont. Act, s. 35, supra, p. 150, to the same effect. 
 
 Section ja. 32, The party obtaining an appointment 
 ^>n-iTeoV"''^''^'"K the day and place of trial shall, at least 
 eight clear days before the day fixed for the 
 trial, serve a notice of trial, which may be 
 in the form in the schedule to this Act, upon 
 the solicitors for the defendants who appear 
 by solicitors, and on all lienholders known to 
 him, who have registered their liens a^ re- 
 quired by this Act, and on all oth' , ^ons 
 having any registered charge orii lOrance, 
 or claim on the said lands, wh^ ;ire .lot 
 parties, or who. being parties, appear [per- 
 sonally in the said action, and such service 
 shall be personal unless otherwise directed by 
 the Judge or Local Judge who is to try the 
 case, who may, in lieu of personal service, 
 direct in what manner the notice of trial 
 may be served. 
 
 See Ont. Act, s. 36, supra, p. 159, to the same effect. 
 
 
 
Thk Mkchanics' Ijkn Act ok ONTARIO. 
 
 nr 
 
 33. Where more than one action is brought '^'"L''""/" 
 to realize liens in respect of the samct pro- ';/'"!'t"JJn*^'''" 
 perty, a Judge or Local Judge having power 
 
 to try such actions, may, on the application 
 of any party to any one of such actions, or 
 on the application jf any other person inter- 
 ested, consolidate all such actions into one 
 action, and may give the conduct of the 
 consolidated action to any plaintiff in his 
 discretion. 
 
 See Ont. Act, s. 37, supra, p. 162, to the same effect. 
 
 34. Any lienholder entitled to the benefit ^^'■^}^ ^^ 
 of the action may apply for the carriage cnrHage""*^ 
 
 . . 1111 II proceedings 
 
 ot the proceedmgs, and the Judge or Local 
 Judge having power to try the action, 
 may thereupon make an order giving such 
 lienholder the carriage of the proceedings, 
 and such lienholder shall for all purposes 
 thereafter be the plaintiff in the action. 
 See Ont. Act, s. 38, supra, p. 162, to the same effect. 
 
 35. In all actions where the total amount ^^^"^s. 
 of the claims of the plaintiff and other persons mi'nTor^o^urt 
 claimmg hens is $100 or less, the said.judg- jn^stancetobe 
 ment shall be final, binding, and without 
 appeal, except, that upon application within 
 
.;^K,-; ■ ,,y ^^'t i^'IISSi* 
 
 i^^ 
 
 Tin' MHM\Nim' i.iiM A< I Ml MANITOBA. 
 
 Jii 
 
 
 ■'^■'^•*'"" " Innilrni (lavs alin pi.If^imni is |inii)«)iin( r»l. 
 !•» llir hnl^V" '"' I <" -'• i'ld^r wli(» llifd tlir 
 same. Iir ma\ ^ranl n invv liial. 
 
 See ( )nl Atl, s, ;m(i), u/f<>,i,\t ifi ',, lo llir smiiic ' f 
 feci. 
 
 s.Hii.Mi ,.. 30^ I,, ;,|| ;,( ti(tiis wImtj' the total aiiHiiml 
 
 \\iu-tui|M->ii ,,| (luM laims (tl llic plaint ill ami of lire pfmoiis 
 I lainiin|j; lir?fs is morr than $i()n, any parly 
 all(Mt(Ml thcK'hv may a|»|»«al th«r' IroMi Ifi 
 ihr ( (nirl ol (JiM'cirs lirni h in Tciin. wlntsc 
 iiid^inciil shall he linal aii(' Itiiidin^^, and no 
 appral shall li" ihcrclroni. I hr proi crhirf 
 in<on appeal from the jnd^mcnt ol a Lo(al 
 Indm' shall lie the same as upon appral Irotn 
 a i'id^nient ol a |ndjj;e. 
 
 Sec ()iit. Act, s. \if (2), uz/oti, p. 16:;, wltif li fontjiirm 
 somewhat siiniliir provisions. 
 
 s,vii..,i ,7. 37. I he costs ol the ,i( tiot) awarded in 
 
 Limit oiroMU ,ii)y action nnder this Aet. hy the Indire or 
 
 to pliiiiiliM - J J 1^ 
 
 Local jndj^e tryinjr the aetirm, to the jthiin 
 tilts and sncccssfnl lienholders shall fiot 
 exceed in the a^j^^rej^ate an amonnt equal 
 to twenty-Hve per ' cnt of the amonnt of thr 
 judgment l)esides actual dishnrscrnents. and 
 shall be in atldilion to the. amount of the 
 
Tmp: M>y^/A<fr/^^ iMff Ae.r or MAMITOBA 
 
 m 
 
 
 )ii<\^ntf'in, ami 'shall 1/^; Hppf>rW.'^,t^] ami f/f/rn^ -^'^"^ ^^- 
 in ';f(rh proporti^mas thf^ J(k}j/^: or l//x.al ju<lg^ 
 who trifH thf; attioff rn-ny 'lirf-tt. 
 See Ont. Act, s. 4/, fv/"/, f, f<,r,, f/ thrC mmt ttfttl. 
 
 38. Wherf: th^- <(y%i^ >m- awar^k'<'l a^amst ^^^J« 
 \\>^■ f;K»irififf or ofh'r p'Ts/m** <Jaimm^ the f;i'^%'^aC'^ 
 hen, !4uch rosts shall n'^t exceed an anrjount in jriarntif*. 
 th^: a^^rc'^ate equal t''> tweftty-hv*"- j/er tent. 
 of »}i' 'lairn of th': phtintiff and other claim- 
 ants, l/e.si<les actual rhshifrsements. and shail 
 hf: apportioned and l>orne as th<" judge or 
 (.oral |udj^<" may (Wrect, 
 
 See Ont. Art, s. i?., s,tf>rii, p. \-]\,\ti the -iarne effect. 
 
 39. In fas/' th': If'ast f-xpertsive rourse is ^^^^J* 
 r)ot taken hy a plaintiff \\m\e.r this Act the |;'^f ^J.^« 
 costs allowed to the solicitor shall in no casen^iV«kf^ 
 exceed whfit would have heen incurr'd if the 
 
 least expensive course; had \)*'.ew taken. 
 
 See (;nt Act, ^. 4-^, iupnt. p. r 73, to the «ime ^effect 
 
 40. ff) The costs of and incidental to al! "^^-^^ 
 applications anrl orders made imricr this Act'"*^ 
 and nf>t otherwise provided for shall ^>e in 
 
 the discretion of the Jndg'' or I.<^K:al jud^e to 
 whom thf application »>r by whom the order 
 is made. 
 
«40 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 Section 40. 
 
 
 Section 41 
 
 .1) 
 
 . ••• 
 
 (2) Where a lien is discharged or vacated 
 
 under section 24 of this Act or when in an 
 
 action judgment is given in favour of or 
 
 against a claim for a lien, in addition to the 
 
 costs of an action the Judge or Local Judge 
 
 may allow a reasonable amount for costs of 
 
 drawing and registering the lien or for 
 
 vacating the registration thereof 
 
 See Ont. Act, ss. 44 and 45, supra, p. 173, 174, which 
 embody the provisions contained in this section in inverse 
 order. 
 
 41. In actions tried by a Local Judge, the 
 rfc!"uTt*'' '"' Local Judge who tries the action shall, where 
 money has been jDaid into Court and the time 
 for payment out arrives, forward a requisition 
 for cheques with a certified copy of his judg- 
 ment, and (when one is made) of the report 
 on sale, to the accountant of the Court 
 of Queen's Bench, who shall, upon receiving 
 the said requisition and copy of the judgment 
 and report (if any) make out and return to 
 the said Local Judge cheques for the amounts 
 payable to the persons specified in the 
 requisition, and the said Local Judge on 
 receipt y^i said cheques shall distribute them 
 to the persons entitled. 
 
 See Ont. Act, s. 46 (i ), supra, p. 174, to the Hke effect. 
 
The Mechanics' Lien Act of MANITOBA. 
 42. No fees or stamps shall be payable 
 
 241 
 
 Section 42. 
 
 on any cheques or proceedings to pay money i;"„^;^,^,"^ot to 
 into Court or obtain money out of Court in paymeftlfou" 
 
 r 1 • /- 1 • 1 /-,- • <>f Court. 
 
 respect of a claim of lien, but sufficient post- 
 age stamps to [)repay a return registered let- 
 ter shall be enclosed with every requisition 
 for cheques. 
 
 See Out. Act, s. 46 (2), supra, p, 175, to the like ef- 
 fect. 
 
 43. All judgments in favour of lien- ^^i^tio" 43. 
 holders shall adjudge that the person or per- 1'"/'" "f . 
 
 J c3 I 1 ^ ludgment in 
 
 sons i)ersonally liable for the amount of the [fe'ii'Z.Mers. 
 judgment, shall pay any deficiency which may 
 remain after sale of the property adjudged to 
 be sold, and whenever on a sale of any 
 property to realize a lien under this Act 
 sufficient to satisfy the judgment and costs is 
 not realized therefrom, the deficiency may be 
 recovered against the property of such 
 person or persons by the usual process of the 
 Court. 
 
 See Ont. Act, s. 47, supra, p. 176, to the like effect. 
 
 Section 44. 
 
 44. Whenever in an action brought under Personal 
 
 ».I • • c \ ' \ 1 • 111 judgment 
 
 the provisions ot this Act any claimant shall when claim 
 
 . ^ for Hen fails 
 
 tail for any reason to establish a valid lien JfoeeL"'"*' 
 
^^^^*i*^ww5«!!55 
 
 
 
 \ ^ 
 
 m 
 
 if'** 
 
 I "J* 
 
 Si'Ctltitl H 
 
 SecUoti (■;. 
 
 t'oCillS. 
 
 Spi'tli'ii |i' 
 
 I, lens i\rl«iii>; 
 ln>f<<ic Art 
 ooimw Itlii' 
 
 fnfl'O. 
 
 SiM'tinn 17. 
 Keiu'Hl. 
 
 'riiK Mm hanks' I.hn A( i oi MANITOBA. 
 
 hr lUiiN' ncvci (Ik'Icss |(((»\»i llui'in ,i per- 
 soiial jddj^incnt a^;iiiist (lir parts or parties 
 (n ili(> a( lion (or sim h sum (tr sums as tnay 
 appear lo l»c due to liini Iroin liim or llitrn 
 and wliich he iniidil r((»>\rr in an action 
 in (ontiact against sik li party or parties. 
 
 St>(' ( >iil. Act, s. 4.S, si//'/it, |i. ryy, to the s.-iiric (.'fft'Ct. 
 
 45. I Ik' lornis in the s( lirdulr hereto, or 
 rorn)s similar (licrrlo or to the like (Iff* t may 
 Itc adoptetl in all pro( crdin^'s imdrr this A( f. 
 
 Sec ()ii1. Act, s. ,\i), fit/^fd, |). ryK, to the sarnr cfffct. 
 
 46. I liis \v[ shall not apply to liens ,iris- 
 ini; ln-jore the ( oinin^ into (orcc of this Act, 
 e\ee[»lmg that where no a* fion has heet) (om- 
 mrnced or proicedin^ instituted to reali/e a 
 lien arising before the (omin^' into force of 
 this Act the procedure herein directed shall 
 be ailoj)ted to n'alize the same. 
 
 See Ont. Act, s 50, .u//>n/, p. 17'^ to the like effect. 
 
 47. I'^xcej)! in so far as is necessary to 
 preserve the li(;ns and rights, causes of action 
 and defences thereto arising or existing 
 thereunder before the coming into force of 
 this Act, the following Acts shall not a[)ply 
 
'ffff.: .Vff/ ffA.vff'^' r.rFv A'-T ^? WANITOBA. 
 
 ^45 
 
 
 after thf' r-omifig into Prfff-. of tfiis Ar,f, and '^^'^ 
 
 are bfr'hy repf:a)ed ; — 
 
 Chapter 97 (,^ th^: Revic^d .StatiJte=; of 
 Manitol/a ; Chapter 28 of 5^ and ^<> Victoria, 
 and r,.haf/ter ^4 of 5<; Victoria. 
 
 48. f his Act shall come into force on the ^"'z^'^- 
 first '\<\y of June, ;^C;^. 
 
 j-nenr of Act, 
 
244 
 
 .is 
 
 I. 
 
 
 
 i i'lill 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 SCHF'rjLK. 
 
 P'ORM I. 
 
 Claim of Lien 
 
 A. B. {name of claimant) oi(here state residence of claimant,) (if so, 
 as assignee of, stating name and residence of assignor), under The Me- 
 chanics'and Wage-Earners' Lien Act, 1898, claims a lien upon the es- 
 tate of {here state the name and residence of 07vner of the land upon 
 ivhich the lien is claimed), (a) in the undermentioned land in respect of 
 the following work (service or materials), that is to say (here give a short 
 description of the nature of the ivork done or materials furnished, and 
 for which the lien is claimed), which work {or service) was {or is to 
 be) done ^or materials were furnished) for (here state the name and 
 residence of the person upon ivhose credit the ivork is done or materials 
 furnished), (b) on or before the 
 day of 
 
 The amount claimed as due {or to become due) is the sum of 
 $ 
 
 The following is a description of the land to be charged (here 
 set out a concise description of the land to he charged sufficient for the 
 purpose of registration ) 
 
 When credit has been given, insert : The said work was done {or 
 materials were furnished) on credit, and the period of credit agreed 
 to expired {or will expire) on the day of 
 
 ,18 
 
 Dated at this day of , A.I)., 18 . 
 
 (Signature of claimant.) 
 
 (a) See note (a), supra, p. 187. 
 
 (b) See note (b), supra, p. 187. 
 
The Mechanics' Lien Act of MANITOBA. 
 
 -M5 
 
 Form 2. 
 
 Claim of Lien fo-*' \\'ai;;e.\. 
 
 A. B (name of claimant) of (here state residence of claimant), (if 
 so, as assignee of, stating name and residence of assignor ), under The 
 Mechanics' and Wage-Earners' Lien Act, 1898, claims a lien upon the 
 estate of (/lere state the name and residence of the owner of land upon 
 which the lien /'• claimed) (a) in the undermentioned land in respect 
 of days' work performed thereon while in the employment 
 
 of (here state the name and residence of the person upon whose credit 
 the work 7vas done) on or before the day of 
 
 The amount claimed as due is the sum of $ 
 
 The following is the description of land to be charged (here set 
 out a concise description of the land to be charged sufficient for the pur- 
 pose of registration ). 
 
 Dated at this day of 
 
 { Signature of claimant.) 
 
 (a) See note ((f) supra, p. 187. 
 

 34^^ 
 
 TlIK MllllANKs' l,IKN A( T (M' MANITOBA. 
 
 Li*' 
 
 4 
 
 
 Hi 
 
 fillj 
 
 Siti 
 
 Ml 
 
 I'nKM _'^. 
 i'/iu'in of I if II lor ll'di^rs hy Snwitil ('liiiiiiiuil\. 
 
 The (dllowing persons, iinder The Mrrhanics* and Wage I'iarncrs' 
 Lien Act, iSg.S, claim a lien upon tlie estate- of (/r/r stntr tlir iiatiir ntid 
 trsiiicmr of the im'ucr of lixiid iif^oii which the lien is ihtiiiinl) (a) in 
 the undernienlioncd land in res|)ect of waj^es for lahor p(;rfortned 
 thereon while in the employment uS{hvir sttUc name and trsidcncr or 
 names and reside nres of e/n/>/oyers of the several />ersons e/aiminj^ (he 
 
 .7. /»'., of {residence) $ for days' wages. 
 
 C. /ly " $ for days' wages. 
 
 TT. J'., " $ for days' wages. 
 
 The following is the description of the land to he charged (here set 
 out a concise descri/>tion of the /and to l>e charji^ed su(/ictent/or the 
 purpose of rei:;istration). 
 
 Dated at this day of 
 
 {Signature of the several c/nimants.) 
 
 (a) See note {a) supra, p. 187. 
 
Tmk Mf/jhamkjs' l.iKii Ac. ''f MANITOBA. 
 
 n; 
 
 Alfidxvil yerifyin^ Claim. 
 
 I, // //., named in the aV/>ve ^/-/r annexed; claim, do make ^>a4h 
 that the said claim is true. 
 
 Or, We, /I. /!■ ar.'l C. //., named in the a^x^ve /o;- annet^ed, 
 claim', do make oa'h, and eacr. for himvjlf sa/.h that the said claiir., 
 HO far as relates to him, is true. 
 
 ^ IV/iere nffulnvil h tmd'. hy a^ent or mu^^m^, a dnusf mu;t bt add.'i 
 to (/>r/"/l^^"ini: ^ff'C ^ ^'3^« ^"^" knowledge of the facts set forth 
 in the above (or annexed; claim;. 
 
 Sworn before me at > '" 
 
 of ,'his 
 
 day of , A. !>., iH 
 
 Or, The said A. //. and C. D. were sever 
 ally sworn before me at , in the 
 
 of , this day of 
 
 A.I)., (8 . 
 
 Or, The said A. B. was sworn tjefore me 
 at , in the of 
 
 this day of , A.I)., i8 
 
 •1 
 
 I 
 I 
 
II 
 
 \.H 
 
 248 
 
 The Mechanics' Lien Act ok MANITOBA. 
 
 Form 5. 
 Affidavit Verifying Claim in Commencing an Action. 
 
 {Style of Court {a) and Cause.) 
 
 I, , make oath and say, that I have read, or heard 
 
 read, the foregoing claim of lien (/'), and I say that tha facts 
 therein set forth are, to the best of my knowledge and belief, true, 
 and the amount claimed to be due to me in respect of my lien is the 
 just and true amount due and owing to me after giving credit for all 
 the sums of money or goods or merchandise to which {naming the 
 Jebtor) is entitled to credit as against me. 
 
 Sworn, etc. 
 
 m 
 
 i> 
 
 \ha» 
 
 Form 6. 
 Certificate of Lis Pendens. 
 
 {Style of Court and Cause.) 
 
 I certify that the above named plaintiff has commenced an action 
 in the above Court to enforce against the following land {describing 
 it) a claim of Mechanics' Lien for $ 
 
 Dated this day of , A. D, 18 . 
 
 Prothonotary. 
 
 {a) All actions to enforce mechanics' liens are to be brought in 
 the Queen's Bench, no matter what the amount of the plaintiff's claim 
 may be : see section 27 (i), ante, p. 229. 
 
 {b) No form of a statement of claim is given in the Act, a form, 
 however, will be found, post, in the Appendix. 
 
 \ 
 
The Mechanics' Lien Act oi MANITOBA. 
 
 249 
 
 Form 7. 
 Defence. 
 
 {Style of Court and Cause.) 
 
 A. B., disputes that the plaintiff is now entitled 
 
 to a mechanic's lien on the following grounds ; {setting forth the 
 grounds shortly). 
 
 (a) I hat the lien has not been prosecuted in due time, as required 
 by statute. 
 
 (b) That there is nothing due to the plaintiff. 
 
 (c) That the plaintiff's lien has been vacated and discharged. 
 
 (d) That there is nothing due by {the owner) for the 
 satisfaciion of the plaintiff's clainn.. 
 
 Delivered on the day of by A. B. in person, 
 
 whose address for service is {stating address ivithin two miles of the 
 court house), or 
 
 Delivered on the day of by Y. Z, solicitors 
 
 for the said A. B. 
 
 Note — If the oivner does not dispute the lien entirely, and only 
 wishes to have the accounts taken, he may use the following form : — 
 
■u 
 
 i 
 
 f i 
 
 250 
 
 The Mechanics' Lien Act of MANITOBA. 
 
 t Hiif 
 
 !^*: • 
 
 li 
 
 '>." 
 
 
 Form 8. 
 
 Defence where there ate no Matters Disputed or ivhere the Matters 
 in Dis/yute are Matters of Account. 
 
 (Style of Court and Cause.) 
 
 A. B. admits that the plaintiff is entitled to a 
 
 lien and claims that the following is a just and true statement of the 
 account in question : — 
 
 Amount of contract price for work contracted to be per- 
 formed by E. F. as plumber, on the lands in question 
 herein $5°° • 00 
 
 Amounts paid on Account. 
 
 June ist, 1898, paid E. F. $200 . 00 
 
 July I St, 1898, paid G. H. and /. K., sub-con- 
 tractors q{ E. F. 1 00. 00 
 
 $300 . 00 
 
 Balance admitted to be due $200 . 00 
 
 For satisfaction of lien of plaintiff and other lien-holders (as the 
 case may be) A. B , before action tendered to the 
 
 plaintiff $ in payment of his claim, and now brings into Court 
 
 $ and submits that that amount is sufificient to pay the plain- 
 
 tiffs claim, and asks that this action be dismissed as against him 
 with costs. 
 
 Delivered, etc. 
 
The Mechanics' Lien Act of MANITOBA. 
 
 251 
 
 rs 
 
 a 
 he 
 
 00 
 
 00 
 00 
 
 the 
 the 
 urt 
 .in- 
 im 
 
 I 
 
 Form 9. 
 Affidavit 0/ Owner Verifying Account. 
 
 {Style of Com t and Cause.) 
 
 I, A. B., of being the owner of the lands in ques- 
 
 tion in this action, make oath and say : That the account set forth 
 in the foregoing defence is a just and true account of the amount of 
 the contract price agreed to be paid by me to E. F. for the work 
 contracted to be done by him on the lands in question. 
 
 The said account also justly and truly sets forth the payments 
 made by me on account thereof, and the person or persons to whom 
 the sama were made ; and the balance of [$20o\ appearing by such 
 account to be still due and payable is the just and true sum now 
 due and owing by me in respect of my contract with the said E. F. 
 
 Sworn, etc. 
 
' * « ^ I j t rJKf "' 
 
 ^vll.i^llllllJlll^ll^^w■B^y^p,uwr.l!jj^llH^l^l^ 
 
 252 
 
 IiiK Mkc hanks' I.ikn A( I 01 MANITOBA. 
 
 I'dkm 10 
 
 .Vi'/ii(' of 'I'rinl 
 
 
 ■.ji 
 
 
 {S/v/( <>l ( Htlft illhl ( '(IIISC.) 
 
 Take notice that this action will be tried at the (-oiiit hoiisi-. in 
 the of , on the 
 
 day of by and at such time and place the 
 
 will proceed to try the action and all (juestions which arise in or 
 which are necessary to be tried to completely dispose of the action 
 and to adjust the rights and liabilities of the persons appearing before 
 him, or upon whom this notice of trial has been served, and at sucli 
 trial he will take all accounts, make all incjuiries and g'vc all 
 directions and do all things necessary to try and otherwise fmally 
 diopose of this action, and of all matters, (juestions, and accounts 
 arising in said action, and will give all necessary relief to all parties. 
 
 And further take notice, that if you do not appear at the trial and 
 prove your claim, if any, or prove your defence, if any, to the action, 
 the proceedings will tie taken in your absence and you may be 
 deprived of all benefit of the proceedings and your rights disposed 
 of in your absence. 
 
 This is a mechanics' lien action brought by the above named 
 plaintiff against the above named defendants to enforce a mechanics' 
 lien against the following lands : [set out description of lands). 
 
 This notice is served by, etc. 
 
The Mkcha.vicV \aks Act o;- MANITOBA. 253 
 
 Form r r. 
 SMemen/ of Account hy Lienkolders, not parties to the action. 
 
 I 
 
 {Style of Court and Came. ) 
 /:_ f.\ Dr. to r;. //. 
 
 1898- . 
 
 Jan. f, To 12 do/., brackets i)t2.oo 
 
 Feb. 3. To 50 lbs. of nails 5 ■ °'^ 
 
 Oct. 3. To 40 sheets of glass "^^"^ 
 
 .$57.00 
 Cr. 
 189X. 
 
 Feb. 4, By cash ' • $ -^ '^^ 
 
 J-e 5 By goods !!_!!_ $34.00 
 
 Form 12. 
 
 Affidavit of Lienholder ^'erifyhv^ Claim. 
 {Style of Court and Cause. > 
 
 I, G H , of (address and occupation), make oath and say ; 
 
 I'have in' the foregoing account (or in the account now shown to me, 
 marked A), set forth a just and true account of the amount due and 
 owing to me by E. H. (the owner) [or by E. F. who is a contractor 
 with the defendant, L. G., (the owner)], oix^t lands m question, and 
 I have in the said account given credit for all sums in cash or mer- 
 chandise or otherwise to which the said E. F. is justly entitled to 
 credit in respect of the said account, and the sum of %y:, appearing 
 by such account to be due to me as the amount K'>r balance) of such 
 account is now justly due and owing to me. 
 
 Sworn, etc. 
 
^mmmmmmmmmmmmmmm 
 
 
 
 111 llw ( MiMl ,,( ' lili /'m'': II' !1' Ii 
 
 /Vitff/r i)f ///,/};> (('.* f I'ni,' /infill-.] 
 
 ;ui'l 
 
 tf''r/i/,i\- ihi ii)1h Inly. /\'{}S. 
 f "'f'TKLTrit 
 
 I hin fl'lii'll 'nliMnf.', .''ti fni tliil lirffirr 
 
 in n f 
 
 ilpnil f)|ir(iitl(; of (lie (ii;il)f'( '.\Ui\ it .i()()^,'>fifi(r ^^,^^ thf> folUiWing 
 prisons liiivc lici'ii (Inly tictvd wiih notKf of trini hf-rcin ^.v/"/ "nf 
 unmr^ of (if/ f'ctni'fts ^ffiirif irifh uolinof tri'if) rrrr'l nil %\\r-\y p^^'^(^r\<^ 
 (f^' rff /'A^' fV'ff »tity f") fiii(U'r(nrii; nf tfir frjnl, ///(•/', ;.rid thf following;; 
 prt'sdli': ii"t h;uiti(; ;i|)(i'rif 'd, Urfiiif/ llir ii.iinr^ ,ij iim) ,if<f'i <n i no /ti 
 
 (("Ml, Mild MpMii lic'iiinj; (lif fvidfrrcf nddtifpfl nnd what was :illogfd 
 liv iMnn>;('l l"i thf plniiitiff nnd Tnr (' /' nnd A" A" nnd ^Hf- d'-f^ndnnt 
 (// f(', nnd liy ,/. // npp''nfin(/ in [irr-^nn; 
 
 I I hi'; ' Mini dntl. <\i'i\:\v fhnt fh" pininfifr nnd th(^ "^^Vf^'/al 
 pcf^nii'! iiinnlinMcd in th'- fir=;l ■;< hfdulf h^rfto nrf rpspf^fivply 
 midllr-d III :i linn iniflfr Ihr- iVff'harTfr«;' nnd Waj(^ Karn^rs' f,ifn Art, 
 |S()S, np'in Ihf Innd'; d''^' rihi'd in fhf' serf (fid srhf-dulf* hfr^TC,, f'lr 
 till' niM'inni'! ';(i Mpprmite thnir r'";pM five names in fhf^ '"irsf-, seeonrl, 
 and Ihiid « nliirnns nf the said first s< h'-dui'-, and the persons primarily 
 liiililn Ini lh(> ^aid ( laitns rrspf rivf'ly nro set fcrrth in th^* f'nirth 
 I (itiinm of the ^aid ^f h'fluh' 
 
 '. (//w».) (And this ( f';.'f d'»th fnrth'r df-elare that the rs<^y^ral 
 pt (snns iiintitiniifd nt S( hefliilf ; hereffi are also entitled to some 
 lien, ilmrge or iri» iiuihrarice ufiori the said lands Un the amouni- 
 
 
'tnf Vfpr fTAi^fr-' f,tF>? Ar-f 
 
 ') ■ 
 
 MAmffiViA. 
 
 >."> 
 
 f Arrt? t'hi<! ''/niT'r rloth further or'rli^)' i)nd i^^'lyj'-ljre 'hat ijp^.n :he 
 
 a/:f i/if) rh** <K\rfn Hi (^/^v;? ^ir(Mti^( /// //>;>'!• />r .V'A'ii'/Af 
 
 / ""// I* /'// »'l'hji frtrii'-f h /P</>/a) on Of r'><»roi'e th"* day 
 
 (^ rtexf, that the <!aid iii*n<? in the ^aid fii'^t ^'ihedule tnentioned 
 
 l'?<^ »nd thf <!3fYi'^ ;»T'»^ b^i-phy di«!'"h3T'afM, ''and 'h** \e.vt>;r^\ p<=frs«^n<f :n 
 fh^ ^flid third <?'"h<^diil<^ ar*" ro rplfa'?<* and dischaf?^ '■h'^^r ?r<«id '^laini'? 
 3r»d assign and f^onvpy the said f:n'e«i<?es to the defendant (//a^i^^t^ 
 and delivey np all do<:nTnent<? or. Aath to -he ^aid defendant ((i^n^ry 
 cft to i«^hOT¥i he lYiay appoint- > and the said moneys <;<> paid infrv/loort 
 ar-e to Yif. paid onr in payment of rhe elairy.s of th*^ ^aid iienh'^'ders 
 ''// .v. and in<^ambT'an''efs>. 
 
 4 ^lU^ in f-^f^ rhe ^ai<i det'>ndanr. (MrTf*¥''\ «!ha?l make default in 
 fiaytYi'^n^ of rh*^ =?aid money? into ^;oiiri- a<? aforesaid. !hi«? Conr doth 
 <rtf\('.x ^ttfi ad}«idge that the said land? he >P?d .eith rhe approbation 
 c»f the Vfaster of this Cnmt ('at / x(\^ that the porehase 
 
 tArfft^y i*>e paid into Cnntt to the eredit of this aenon, and that all 
 pr^'jpei' partie"? do join in the ''6nveya"iee<? as rhe ^aid Vfaster -halV 
 dir^rr 
 
 V And rhi<? ^onrt dotn order \i\A ad)tjda;e 'nar rh<» said purehase 
 money f*>e applied m or towards payment of the several '*!aims in 
 the said first ^and third'; sehednle/s/ mentioned a<? the said Nfaster 
 shail direet, ';(rith suhse^juent interest and suhseouent to<?ts 'o o« 
 ^ompnted and rayed by the said Master 
 
 ^ And this Corirt doth (Virther order and adjudge that n r^ase 
 the said purchase mo«*iey shall b<^ insni^eient t*v pay in AiH the 
 elaims of the several per^'-ms mentioned m the said f^rst sehedu'e. 
 the per'sr'»n«! primarily iiao'.e for sneh (Claims as showT\ in the ^aid 
 fiKst s«^'nedi>le do pay to the per3<'>ns rA *hom they are respectively 
 
Ill 
 
 uuww WJUuMiiuKJiu mmmm^mmmmmmKmimimmiimm 
 
 n 
 
 2^(^ 
 
 I'hk Mechanics' I.ikn A( r oh MANITOBA. 
 
 primarily liable the aiiioiint remaining due to such [jcrsons forth 
 will) after the same shall liavc been ascertained by the said Master. 
 
 ;. {//'so, And this Court doth declare thai 
 have not proved any lien under 'I'he Mec:hanics' and Wage 
 Earners' Lien Act, 189S, and that they are not enlilled to any such 
 lien, and this ('ourt doth order and adjudge that the claims of lien 
 respectively registered by them against the lands mentioned in the 
 said second schedule be and the same are hereby discharged.) 
 
 SCHEDUI.K I. 
 
 
 h 
 
 
 Names of licn-liolders 
 
 entitled to 
 
 Meclianies' lyicns. 
 
 Ainouiil of 
 
 debt 
 
 and iiil-rest 
 
 (if any) 
 
 Costs. 
 
 Total. 
 
 N'Hine.s 01 
 I'l'itnaiy Dehtf>rs. 
 
 (Signature r)f o(/ker iss?iinir /udgment). 
 
 S( MEUULK 2. 
 
 The lands in question in this matter are {Set out /?y a description 
 <uf/iiient for reifistrati()i purposes). 
 
 ( Siji^nature 0/ oj/icer issuing judgment). 
 
The Mechan(cs' Likn Aci oi MANITOBA. 
 
 ■:)i 
 
 th 
 er. 
 
 •KG 
 ch 
 on 
 he 
 
 SCHEDUr.E 1. 
 
 Mnmes of pPTHons entitled 
 
 Ui fnc'imbrances 
 
 other than Mechanics' I/iens; 
 
 Amfnint of r]pY,t 
 
 and interest 
 
 (if any). 
 
 Costs. 
 
 Total. 
 
 (Signature of officer issuing judgment. ) 
 
 Form 14. 
 Certificate I'acating I.ien. 
 
 Ill 
 
 {Style of Court and Cause.) 
 
 Date. 
 
 I certify that the defendant ./. />'. Uht owner) has [)aid into Court 
 to the credit of this cause all money due and payable by him for the 
 satisfaction of the liens of the plaintiff and E. F., G. //., I. /.. and 
 K. L.. a'.d their liens are hereby vacated and discharged so far as 
 the 'ame affect the following lands {describe lands). 
 
 ( Signature of Master or Referee). 
 
M^ 
 
 
 I 
 
 i'4| 
 
 j » 
 
 i 
 
 hh 
 
 ( / I llthiUr I iliilflllr I ii II 
 
 (sn/i' tif f tinit tiiiil t ;///(•/'./ 
 
 liiih 
 
 I ((•ilKy (li.'il I li-ivc i(i'(M((f'l ind firi'l 'If.'if \\\t- fibififtff »^, ri/rf 
 l'((lltl*<l Im fitiv mcrliftdi^'q' li^M {[\\UU ff(^ l;irr/|«) of the /f^^^frfbrif // // 
 {<^c ,<iv'h I I ;iii>( (li'il 1)1-; (\:\'\U\ t,t lifii k h'tt^hy •M'nf'-^ ,tri/| ^lis 
 rllUfH^d "^(1 (fit n^ llir ';,'i((i<' ;iltt-t f-\ ffic follovvlrig Irtfrfh; (ilr<;i t Ihr lilliiNi 
 
 iSivJIilfiiir iif iSlii'shi III l^i-lni'-f 
 
 % 
 

 I li 
 
 A^ N^t ffiP Hit ^ftnU^tf ^^ yl?/ff.iifr^y^. Aytf/' 
 
 
 I. \H% N^i ttTfiy y-. f^'Uf-A A9. Ehf- 
 
 
 !iv m% A(-^ ■ 
 
'•''^''^^''vmmmmmmmmmnim 
 
 f': 
 
 ■-■(>■ 
 1» 
 
 ii 
 
 
 'it 
 
 : Iff • ' 
 
 •• PI 
 
 ilt' 
 
 260 
 
 The Mechanics' Lien Act ok BRITISH COLUMBIA. 
 
 " Sub-con 
 tractor." 
 
 "Owner." 
 
 section2. 1 2.) "Sub-contractor" shall mean a person 
 not contracting with or employed directly by 
 the owner for the i)urpose aforesaid, but con- 
 tracting with or employed by the contractor, 
 or under him by another sub-contractor, to 
 do the whole or a certain portion of the work, 
 but a person doing manual or mental labour 
 for wages shall not be deemed a sub-con- 
 tractor : 
 
 (3.) "Owner" shall extend to and include 
 a person having any estate or interest, legal 
 or equitable, in the lands upon or in respect 
 of which the work is done, at whose request 
 and upon whose credit, or on whose behalf, 
 or with whose privity or consent, or for 
 whose direct benefit any such work is done, 
 and all persons claiming under him whose 
 rights are acquired after the work in respect 
 of which the lien is claimed is commenced : 
 
 (4.) '* Works or Improvements " shall in- 
 clude every act or undertaking for which a 
 lien may be claimed under this Act : 
 
 (5.) "Labourer" shall mean, extend to, 
 and include every mechanic, artisan, builder, 
 or other person doing labour for wages. 
 
 " Works or 
 improve- 
 ments," 
 
 " Labourer. 
 
 189 
 
 I, c. 23, S. 
 
The Mkchanics' I,ien Act ok BRITISH COLUMBIA. 
 
 261 
 
 See Ont. Act, s. 2, supra, p. 4. The definitions of 
 contractor and sub-contractor are practically the same 
 as in the Ontario Act, down to the word " sub-contractor" 
 in the fifth line of s -s. (2), but this Act excludes from the 
 definition of " sub contractor " two classes who would 
 come within the definition in the Ontario Act, viz., (i), 
 persons doing manual labour for wages, and (2), persons 
 doing mental labour for wages, 'i'he effect of this varia- 
 tion, when taken in connection with section 4, infra, would 
 appear to be, to exclude from any right of lien, all persons 
 working for wages whether mentally or manually, unless 
 they are employed directly by the owner ; but see post sec- 
 tion 22 (2), infra, p. 281. Sti z\^osection 12, infra, p. 274. 
 
 The definition of ' owner ' is more elaborate 
 in the Ontario Act than in this Act even with the 
 help of R S. B. C, c. i, s. 3. The Ontario Act in- 
 cludes, firms, associations, municipal corporations, and 
 railway companies, to none of which doe« '.ne definition 
 in this Act expressly extend. It may however be re- 
 marked that the definition here given does not pretend 
 to be exhaustive, but the Act merely says that the word 
 ' owner ' '' shall extend to and include a person, etc." 
 but non constat it does not also extend to, and include 
 firms, and associations, companies and corporations, 
 specifically enumerated in the Ont. Act. 
 
 Section i. 
 
 Application. 
 
 3. This Act shall apply to any contract Section 3. 
 made or work btjgun previous t(^ the passage ^pp''*=''*'°'^ 
 hereof, but only so far as regards any moneys 
 

 
 'Ji 
 
 
 li 
 
 1 
 
 262 
 
 ■|iii.; Mkchamcs' Ijkn Act 01 BRITISH COLUMBIA 
 
 Section 3. remaining unpaid and as respects any such 
 iinj)aid moneys. i<^9i, c. 23, s. 3. 
 
 There is no similar provision to this in the Ont or 
 Manitoba Acts. 
 
 Nature of Liens. 
 
 sectioiM. 4^ Unless there is an agreement in writ- 
 
 iiiTd others to ing to the contrary, signed by the i)erson 
 
 have liens for ", , _ .''ft / I 
 
 w<.ri< .lone, claiming the hen, every contractor, sub-con- 
 tractor, and labourer doing or causing work 
 to be done uj)on the construction, erection, 
 alteration, or repair, either in whole or in part 
 of, or addition t<j, any building, erection, 
 wharf, bridge, or other work, or doing or 
 causing work to be done upon or in con- 
 nection with the cleaning, excavating, filling, 
 grading, draining, or irrigating any land in 
 resp(;ct of a railway, mine, s(;wer, drain, ditch, 
 llumc, or oth(;r work, or improving any 
 sinut, road, or sidewalk adjacent thereto, at 
 the recjuest of the owner of such land, shall, 
 by virtue of such work, have a lien or charge 
 for the price of such work, upon such building, 
 erection, wharf, machinery, fixtures, or other 
 W(jrks, and all materials furnished or procured 
 for us( in constructing or making such works 
 or improvements, so long as the same are 
 
Thk Mkchanks' Tjkn A< t oi. BRITISH COLUMBIA. 
 
 263 
 
 about to l)t! in j^ood faith worked into or •^•^'^i <• 
 niadf; part of tht; said works or improvements, 
 and the land and premises occupied thereby, 
 or enjoyed therewith, but limited in amount 
 as hereinafter mentioned : Provided, such 
 lien shall affect only such interest in the said 
 land as is vested in the owner at the time the 
 contract is made, or any greater interest 
 which the owner may ac(|uire during the 
 progress of the works or improvements. 
 1891, c. 23, s. 4. 
 
 See Ont. Act, s. 4, mpra, p. 18 ; see also s. 7, supra, 
 p. 41. The enumeration of the species of work in res- 
 pect of which a hen may be claimed is more specific in 
 the Ont. Act. But for the Act, no lien exists, and it is 
 only su far as the Act specifically creates a lien, that it 
 can have any existence. For any kind of work, fairly 
 coming within any of the classes specified, a lien may be 
 claimed, but for work not coming within any of such 
 classes, no lien can arise. The lien can only be claimed 
 under this Act (a) in respect of work done or caused to 
 be done " upon the construction, alteration or repair in 
 whole or in part of, or addition to, any building, erec- 
 tion, wharf, bridge or other work " (presumably similar 
 to those enumerated) ; or (/') for " doing or causing work 
 to be done upon or in connection with the clearing, exca- 
 vating, filling, grading, draining, or irrigating any land 
 /// respect of a railway, mine, sewer, drain, ditch, flume 
 or other work" (presumably similar to those enumer- 
 

 .o^\^^ 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 / 
 
 O 
 
 
 <.: . "^0 
 
 
 1.0 
 
 I.I 
 
 1.25 
 
 If ^ m 
 
 •^ in 1 2.2 
 
 U 111.6 
 
 V] 
 
 <? 
 
 /i 
 
 y;-^^ 
 
 Vy " »•^" 
 
 
 
 /A 
 
 o 
 
 / 
 
 -'h 
 
 Photographic 
 
 Sdences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. MS80 
 
 (716) 872-4503 
 
'<r 
 
 
 
 
 f. 
 
 9 
 
 
 #> 
 
 O^ 
 
 
364 
 
 I HK Mkchanics' LiKN AcT oi' BRITISH COLUMBIA. 
 
 Secti' 
 
 ated); or(^) for "improvinp any street, road or sidewalk ad- 
 jacent thereto at the request of the owner of such land." 
 The words "at the request of the owner of such land " 
 probably intended to apply also to the classes of work 
 v' ; and (/') supra, as well as to class (r). At the same 
 time there is a difificulty in so applying them, as the Act 
 obviously intends to give subcontractors (not bp'ng 
 labourers working for wages) a lien, and yet the contract 
 of a sub-contractor is not made with the owner, and he 
 does not perform his work at the owner's request. In 
 order to entitle a sub-contractor to a lien, it would prob- 
 ably be held to suffice that his work was done in pursu- 
 ance of a request from the owner to the contractor 
 through whom such sub-contractor claims : ste section 7, 
 infra. The effect of excluding labourers working for 
 wages from the definition of " sub-contractor " (see section 
 2 (2)) is practically to exclude such labourers from any 
 right to a lien under this section unless they are em- 
 ployed by the owner ; but see section 22 (2), infra, p 2<Si. 
 
 Clearing land for the purpose of cultivation does not 
 appear to give rise to any lien, nor would the excava- 
 tion of land, unless it be for some of the purposes enu- 
 merated. 
 
 It has been held that no lien can be claimed under 
 the Act against a railway under th»; control of the Do- 
 minion (iovernment ; I.arsen v. Nelson and Fort S. Ry., 
 4 B. C. R. 151. 
 
 It was pointed out by Begbie, C. J., in Hag^erty v. 
 Grant, 2 B. C. K. 173, that this Act in express terms 
 only confers a lien for work and labour, and not for ma- 
 terials ; the words " and all materials furnished ' in this 
 
 xi 
 
The Mechanics' Lien Act oi BRITISH COLUMBIA. 
 
 ^^•5 
 
 Section show that though the material man has no hen, 
 yet that the hen for work will attach on materials fur- 
 nished, and that such lien is not confined to materials 
 actually incorporated in the buildings or erections on 
 the land, but includes those " about to be in good faith 
 worked into or made part of the works or improve- 
 ments " ; under section ii, if the lien once attaches on 
 materials thpy cannot be removed, even though pay- 
 ment therefor be refused ; material men have therefore 
 need to be cautious about supplying materials without 
 first receiving payment. Whether a lien-holder is enti- 
 tled to a lien on materials supplied by some third party 
 and "about to be in good faith" incorporated, but not 
 actually incorporated, in the building in respect of which 
 the lien exists, may be a question of some difficulty. 
 There seems to be some ground in natural justice, why the 
 lien on materials not incorporated should be restricted 
 to those furnished by the person claiming the lien. The 
 lien would appear in any case onl) to attach on the 
 interest of the person who is ' owner ' as defined by 
 section 2, i.e., a person on whose behalf or with whose 
 privity the work has been done ; and in the case of ma- 
 terials not paid for, his interest would be subject to 
 any claim or lien his vendor might have thereon. 
 
 No distinction is made, as in the Ontario and Mani- 
 toba Acts, respecting claims against lessors and lessees, 
 but, it is assumed, that under this Act, as under the Ont. 
 Act, where the lien-holder is only employed by a lessee, 
 he can only charge the lessee's interest, and not that of 
 the reversioner, unless the latter is also a [)arty to the 
 contract, or agrees that his estate shall be subject to the 
 
 Seclioii (. 
 
i Saiil i i i fl i WIM I imw iil BM 
 
 266 
 
 riii: Mkchanics' Likn Act 01 BRITISH COLUMBIA. 
 
 .all 
 
 Seioi^)!! .(. ]jep gee Q^t. Act, s. 7 (2), sii/>nt, p. 41 ; see however 
 i/i/m, s. 7, p. 267. 
 
 Section 5. 
 
 Amount to 
 which lien 
 is lirnitfil. 
 
 Sec 'ion ('. 
 
 Liens on 
 
 niort^uK*"'! 
 pieinisfs. 
 
 
 5. Such lien shall In; limited in amount to 
 the sum actually owing to the person entitled 
 to th(; lien, and distribution of any moneys 
 derived from the; realization of thtt liens shall 
 he made in accordance with the; tw-vMitv-second 
 S(!ction of this Act. 1S91, c. 23, s 5, 
 
 See Ont. Act, s. 4, supni, p. iS. 
 
 Although the lien-holder cannot, of course, lecover 
 more than is due to him, he may not be able to recover 
 as much, for though the Act does not say so in terms, 
 yet it seems manifest that the amount recoverable must 
 be limited not only by what is due to the lien-holder, 
 but also by what is due from the owner. i'his limita- 
 tion is actually expressed in the Ont. Act, s. 4, and, it is 
 submitted, it is implicitly a limitation of the lien-hoUler's 
 right under this Act. See secfion 14, infra, p. 277. 
 
 As tf) sub contractors, see note to section 2, supra, 
 p. 261. 
 
 6- Where; works or improvements are put 
 upon mortgaged premises, th(! liens, by virtue 
 of this Act, shall be prior to such mortgage, 
 as against the increa.se in value, of the mort- 
 gaged premises by reason of such works or 
 improvements, but not further, unU^ss the 
 same is done at the re(|uest of the mortgagee, 
 
 \\ 
 
n.K Mi:( nANics' Likn Ad ok BRITISH COLUMBIA. 
 
 in writing ; and the amount of such nicrcasc 
 shall be asceri.iincd upon the. basis of thi; 
 selling value upon taking of the account, or 
 by the trial of an issue as provided in the 
 sixteenth section hereof, and thereupon the 
 Judge may, if he shall consider the works or 
 improvements of sufficient value to justUy 
 the pr »ceedings, order the mortgaged prem- 
 ises to be sold at an upset price ecjual to the 
 selling value of the premises immediately 
 prior to the commencement of such works or 
 improvements (to be ascertained as aloresaid ), 
 and any sum realized in excess of such ui)set 
 price shall be subject to the liens provided 
 for by this Act. The moneys (-(lual to the 
 upset price as aforesaid shall be api)li<'d 
 towards the said mortgag(; or mortgages, ac- 
 
 core 
 
 ling to their priority. Nothing, how 
 
 in this section shall prevent tlu; lie 
 attaching uj)on the ecjuity of redempt 
 
 other in 
 
 to such mortgage or chari 
 
 .67 
 
 Section I., 
 
 i^ver, 
 from 
 
 ion or 
 
 t(;rest of the owner of the land subject 
 
 iH() 
 
 • J- 
 
 m< 
 
 6. 
 
 See Ont. Act. s. 7 (3), sii/>ra, p. 4-'- 
 
 7. Iwery building or other improvement 
 ■ntioned m the lourth section 01 tnis ^vci, i^„j jeemed 
 
 St'clioii 7. 
 
 t 1 
 
268 The Mkchanics' Lien Act of BRITISH COLUMBIA. 
 
 ^1 1?! i 
 
 4» 
 
 Section 7. 
 
 to have au- 
 thorized the 
 erection of 
 buildings 
 thereon. 
 
 constructed upon any lands with the know- 
 ledge of the owner or his authorized agent, 
 or the person having or claiming any interest 
 therein, shall be held to have been con- 
 structed at the instance f such owner, or 
 })ers()n having or claiming any interest 
 therein, unless such owner or person having 
 or claiming an interest therein shall, within 
 three days after he shall have obtained 
 knowledge of the construction, alteration, or 
 repair, give notice that he will not be respon- 
 sible for the same by posting a notice in 
 writing to that effect in some conspicuous 
 place upon said land, or upon the building or 
 other improvement thereon. 1891, c. 23, 
 s. 7. 
 
 How far this section would affect a landlord whose 
 tenant was erecting or improving any building on the 
 demised land, is a question of some difificutly. As a 
 matter of precaution it would seem safer to assume, in 
 the absence of any adjudication to the contrary, that 
 the interest of the landlord would be bound unless he 
 complied with this section. Nothing but actual know- 
 ledge would seem to bind any third person whose inter- 
 est is sought to be affected : and the onus would appear 
 to be on the lien-holder claiming against such third per- 
 son to show that he had actual knowledge of the work. 
 See Ont. Act, s. 5, supra, p. 38. 
 
Thk Mechanics' Lien Act ok BRITISH COLUMBIA. 
 
 i(n) 
 
 Registration and Transmission. 
 
 Section R. 
 
 8,, |. L 1_ MJ" Lien expires 
 
 , Every lien ui)on any such buiidnm, in jrdays 
 
 '. ' ; " after com- 
 
 erection, mine, works or improvements, oi" P'^^r^'unfe^,. 
 land shall absolutely cease to exist after the ''^'^'''*^'''^' 
 expiration of thirty-one days after the work 
 shall have been completed, or after the 
 claimant has ceased to work thereon from 
 any cause (provided, however, that any 
 labourer shall not be held to have ceased 
 work upon any building, erection, mine, works 
 (>r improvements, until the completion of the 
 Sr»nie, if he has in the meantime been em- 
 j)loyed upon any other work by the same 
 contractor), unless in the meantime the ptir-^^,^^,p^f 
 son claiming the lien shall file in the office of^^^'""^"''"" 
 the Government /^gent in the city, town, or 
 district wherein the land is situate, and in case 
 there shall be no Government Agent in such 
 city, town, or district, then in the office of the 
 Registrar-General of Titles, or in the office of 
 the nearest District Registrar of Titles, an 
 affidavit, sworn before any person authorized 
 to take oaths, stating, in substance : — 
 
 {a) The name and residence of t! » claim- 
 ant, and of the owner of the property 
 or interest lo be charged : 
 
270 Tm Mkciianils' Iji.n Act ok BRITISH COLUMBIA. 
 
 Scot ion 8. 
 
 I 
 
 H 
 
 ^» ■:'l 
 
 '49 
 
 (/^) The j)articulars of the kind of work 
 
 (lone : 
 (/) The time when the work was fmished 
 
 or cHscontiniied : 
 
 (rt!') 'I'he sum claimed to be owing, and 
 when clue : 
 
 [c) The description of the j)ropert) to be 
 charged : 
 
 VVhich affidavit shall be receivetl and filed as 
 a lien against such property, interest or 
 estate. The Registrar-General. District 
 Rt;gistrar, and every Government .Agent 
 shall be supplied with i)rinted forms of such 
 alfidavits. in blank, which may be in the form 
 or to the effect of Schedule A to this Act, 
 antl which shall be supplied to every person 
 re(|uesting the same, and desiring to file a lien. 
 Every Government Agent, the Registrar- 
 General and District Registrar of Titles, 
 shall keep an alphabetical index of all claim- 
 ants of liens and the j)ersons against whom 
 such liens are claimed, which index shall be 
 open for inspection during office hours, and 
 it shall be the duty of such Government 
 Agent. Registrar-General of Titles 'or Dis- 
 trict Registrar to decide whether his is or not 
 

 Thk Michanics' Likn Act oi BRITISH COLUMBIA. 
 
 271 
 
 the proper office f)r the filing ot such affidavit, 
 rind to direct the applicant accordingly ; and 
 no affidavit shall be adjudged insufficient on 
 the ground that it was not filed in the pro[)er 
 office. 
 
 In order to make the proviso in the first part of this 
 sectiDii consistent with sections 2 and 4, supra, the word 
 " contractor "' should read " owner " ; because the effect 
 of sections 2 and 4, as already pointed out, appears to be, 
 to exclude labourers employed by anyone but '.he owner 
 from any right to a lien under the Act. 
 
 See Ont. Act, ss. 17 24, supra, pp 95 123. Under 
 that Act, s. 19, supra, p. 103, a substantial compliance 
 with its requirements is sufficient. Under this Act how 
 ever it is said thai " in order to accjuire a right of this 
 very unusual nature the statute must be strictly fol- 
 lowed": per Begbie, ('. J., Ha^^gerty v. Grant, 2 15 (]. 
 R. 176, and see Weller v. Shupe, 6 B. C. R. 5S. Non- 
 compliance with the provisions of this section may there- 
 fore invalidate a claim of lien : see Larsen v. Nelson and 
 Fort S. Ry., 4 B C R. at p. 152 ; Smit/i v. Mcintosh, 
 3 B. C. R. 26, (a decision under the Act of 1888). 
 
 See further provisions as to the affidavit in section 9, 
 infra, p. 272. 
 
 Owing to this Act giving no lien for mate.ials, it is 
 important, and absolutely necessary, to distinguish in the 
 affidavit between what is claimed for materials, and 
 work, respectively, and the omission to do .so has in two 
 cases been held fatal to the right of lien : Knott v. Cline, 
 5 Man. I 20 ; Weller v Shiipe, 6 B. C. R. 58. 
 
 Registration of the lien under this section is necessary 
 in all cases before action. 
 
 Si.'clion &. 
 
/ - 
 
 Hii Mkchanics' Ijkn Act ok BRITISH COLUMBIA. 
 
 5> 
 
 ^} 
 
 Soctmn 8. 'j'}^^. tjp,g f(,^ bringing an action to enforce the lien is 
 regulated by section 24, infra, p. 284. 
 
 ScL'liiin 11. 
 
 In woi ks of 
 
 9. When any works, buildings, or im- 
 ,.vor*5<».K.n. prcncmcnts upcjn any lands, mine or prem- 
 Hie statement ises are about to l^e done, erected or made, 
 
 showinjf work 
 
 to he (lone, aiid the contract price or estmiated cost 
 thereof shall exceed five hundred dollars, the 
 owner or contractor (if any) shall file or cause 
 to be filed in the office of the Government 
 Agent in the city, town, or county wherein 
 the land is situated, and in case there shall 
 be no Government Agent in such city, town, 
 or county then in the Land Registry office of 
 the Land Registry District within the limits of 
 which such lands, mine or premises are situate, 
 a statement setting forth the particulars of 
 the works or improvements to be done, 
 erected or made, the name and address of 
 the owner, the nature of his interest in the 
 land, the name and residence of the con- 
 tractor (if any), and the estimated cost or 
 contract price of the works or improvements, 
 which statement shall be signed by the said 
 owner and contractor (if any), or by some 
 person duly authorized to sign the same by 
 him or them. Such statement may be in the 
 
 :Jt 
 
Thk Mixhanics' LiKN Act ok BRITISH COLUMBIA. 273 
 
 
 form of Schedule B annexed to this Act. ^^:!!!1" '> 
 Any affidavit made under section eight of 
 this Act, which shall be in accordance with 
 such statement so filed as ab(we [)rovided, 
 shall be deemed sufficient to sustain any 
 lien, even though the facts of the case should 
 vary therefrom ; and where no such certifi- 
 cate is filed no affidavit shall be adjudged to 
 be insufficient, if it describes the owner, con- 
 tractor (if any), and works or improvements, 
 so as to leave no doubt upon the mind of the 
 Court or Judge as to who and what are 
 intended to be described. 1891, c. 23, s. 9. 
 
 No section corresponding to this, is to be found in the 
 Ont. Act. See, however, section 29, supra, p. 137. 
 
 10. In *he event of the death of the lien- 
 holder his lien shall pass to his personal death to leRai 
 
 11-1 r r U 1 1 representa- 
 
 representatives, and the right of a henholdertives.^p^rmay 
 may be assigned by any instrument in writ- 
 ing, subject to the limitation contained in the 
 twelfth section hereof. 1891. c. 23, s. to. 
 See Ont. Act, s. 26, supra, p. 12S. 
 Security. 
 
 •^ Section II. 
 
 11 Durinpf the continuance of any lien no During con- 
 
 ** o ' tinuance of 
 
 portion of the property affected thereby shall He^^j^oj'^e^ty 
 
 rsmoved. 
 18 
 
 Section lo. 
 
 Liens pass on 
 death to lej 
 representa- 
 
 t il 
 
 i1 
 
274 
 
 The Mechanics' Lien Act oi BRITISH COLUMBIA. 
 
 
 : 
 
 Section II. jj^ removed to the prejudice of such lien, and 
 
 any attempt at such removal may be 
 
 restrained on application to the Judge of the 
 
 County Court nearest to which the land is 
 
 situate. 1891, c. 23, s. i i. 
 
 •See Ont. Act, s. 16, si/pni, p. (jo. 
 
 Section 12. 12. No contractor, or sub-contractor, shall 
 
 Keceipted be entitled to demand or receive any payment 
 
 pay-rolls to he J i j 
 
 works."" '" resi)ect of any contract, where the contract 
 price exceeds five hundred dollars, until he, 
 or some person in charge of the works or 
 improvements, shall post upon the works or 
 improvements a copy of the receipted pay- 
 roll, from the hour of 12 m. to the hour of i 
 p.m., on the first legal day after pay day, and 
 shall have delivered to the owner, or other 
 person acting on his behalf, the original pay- 
 roll containing the names of all labourers who 
 have done work for him upon such works or 
 improvements, with a receipt in full from 
 each of the said labourer-, with the amounts 
 which were due and had been paid to each of 
 them set opposite their respective names, 
 which pay-roll may be in the form ot Schedule 
 C hereto, and no payment made by the 
 owner without the delivery of such pay-roll 
 
Tmc Mkchanics' I-ikn A( t "i BRITISH COLUMBIA. 275 
 
 shall be valid for th(; - .rposc of (lr;leating or "-^Jl- 
 diminishing any lien Lii)or such property, 
 estate or interest in favour of any sjch 
 labourer. No assignment hy the contractor, 
 or any sub contraJt(jr, of any moneys; due in 
 respect to the contract shall be valid as 
 against any lien given by this Act. As to 
 all liens, except that of the contractor, the 
 whole contract i)rice shall be payable in 
 money, and shall not be diminished by any 
 prior or subsequent indebtedness, offset or 
 counter-claim in favour of the owner against 
 the cc nractor. 1891, c. 23, s. 12. 
 
 There is no similar provision to this in the Ont. Act. 
 See, however, section 13 (i)of that Act, supra p. 72. 
 
 This section is apparently intended to be for the benefit 
 of the "labourer." This class of workmen, unless em- 
 ployed by the owner himself, does not appear to be 
 entitled to a lien on the land on which the work is 
 performed, it seems open to doubt, therefore, whether a 
 payment by an owner contrary to the provisions of this 
 section could be successfully attacked by any labourer 
 doing manual or mental la..our for wages, employed by 
 any contractor or sub-contractor : see notes to sections 2 
 and 4, stipra, pp. 261, 263. 
 
 Enforce^nent. 
 13. Any number of lienholders may be sectio^.a- 
 joined in one suit, and all suits or proceed- li^^JI"'''^^'^'^ 
 
 It 
 
fjG 
 
 rnK Mechanics' Likn Act oi BRITISH COLUMBIA. 
 
 Section 
 
 
 tion^.3. i,ig^ IjroLight by a licnholder shall be taken to 
 be brought on behalf of all lienholders who 
 may be made parties to such suits or pro- 
 ceedings within the time mentioned in the 
 twenty-fourth section hereof: Provided that 
 the moneys realized in such suit shall be 
 distributed amongst the lienholders, parties 
 to such suit or proceedings, in the order and 
 manner provided in the twenty-second section 
 of this Act. Any lienholder not originally 
 joined may be made .i pcirty to such suit or 
 proceedings by order of a Judge, U[)on v.\ 
 parte application su[)ported by an affidavit 
 stating the [)articulars of the claim, and any 
 lienholder so joined in any such suit or pro- 
 ceedings shall be deemed to have complied 
 with the twentN'-fourtfi section of this Act as 
 fully as if he had instituted a suit in his own 
 behalf. 1891, c. 23, s. 13. 
 
 Under this Act the action to enforce a Hen must be 
 commenced in the ordinary way. Under the Ont. Act 
 a special mode of procedure is also provided : see Ont. 
 Act, s. 31, s/f/>ni, p. 140. 
 
 The Ont. Act, «. t^2, supra, p. 145, contains somewhat 
 similar provisions to this as to parties, except that this Act 
 limits the time for persons not originally named as par- 
 ties to be brought in. 
 
 ! 
 
r.ii.. Mechanics' I.irn Act of BRITISH COLUMBIA. 277 
 
 ,,A Section 14- 
 
 14. If more than one suit is commenced — 
 
 1 „ Owner may 
 
 in resnect of the same contract, the owner or apply to have 
 
 III I v..j|^v-i-.. suits consoli- 
 
 contractor shall apply to have the causes oated. 
 consolidated, and failing to do so he shall pay 
 the cost of such additional suit or suits. The 
 owner ccmjilying with the provisions of this 
 Act shall not be liable for any greater sum 
 than he has agr('ed to pay by contract. 1891, 
 c. 23, s. 14. 
 
 See Ont. Act, s 37, s///^ni, p. 162, and see srcfio^/ 15, 
 i///ra. 
 
 This st'c/um casts on the owner or contractor the duty 
 of applying to consolidate actions, and imposes a pen- 
 alty if they do not. Under the Ont. Act any party may 
 ai)ply, but no duty to apply ^s imposed. ICxtra costs 
 occasioned by not consolidatmg would probably not be 
 recoverable under that Act : see Ont. Act, s. 43, su/ra, 
 
 P- 173- 
 
 15. If two or more actions are brought in section r 5 
 respJct of th(t same contract or work, the Ju^ge^^^^ 
 Court or Judge" shall, by order, on the appli- Xcu.'.t''"" 
 cation of any person inter(;sted, consolidate 
 all th(; actions, and may make such order as 
 to cos: a., he shall think fit. 1891, c. 23, 
 
 s. 15- 
 
 See Ont. Act, s. 37, si//'m, p. 162. 
 
I 
 
 41 
 
 278 The Mechanics' T.ien An of BRITISH COLUMBIA. 
 
 Section .6. |g_ Whatever lHc amoLint of lien or liens, 
 
 broughVi'n proceedings may be taken before a Judge of 
 
 ounty oil. .^j^^ County Court of the county in which the 
 
 land charged is situate, who is hereby 
 authorized and empowered to proceed in a 
 summary manner by summons and order, and 
 he may take accounts and make requisite 
 inquiries, try issues, and in default of payment 
 may direct the sale of the estate or interest 
 charged, and such further proceedings may 
 be taken for the j Purpose aforesaid as the 
 Judge may think proper in his discretion, and 
 any conveyance under his seal shall be 
 effectual to pass the estate or interest sold, 
 and the fees and costs in all proceedings 
 taken imder this section shall be such as are 
 payable according to the ordinary procedure 
 of the said Court. And, when not otherwise 
 provided, the; proceedings shall be, as nearly 
 as j)ossible, according* to the practice and 
 procedure in force in the County Court ; and, 
 when these are no guide, the practice and 
 procedure; used in the Su[)reme Court shall 
 be followed, provided an appeal shall lie from 
 any judgment or order of the said Court in 
 like manner as in ordinary cases. 1891, c. 
 23, s. 16. 
 
 ^t 
 
-SB 
 
 270 
 
 THE MECHANICS' L.FN AcT OP BRITISH COLUMBIA. 
 
 The jurisdiction to enforce all mechanics' liens is by ^-^■'^ 
 this section conferred on the County ( "ourts, irrespective 
 of the amount sought to be recovered. The Supreme 
 Court has no original jurisdiction, therefore, m such 
 actions : Martin v. Russell, 2 Man. 98, As to time for 
 commencing action : see section 24, infra, p. 284. 
 
 17. Any i)erson against whose property a section ,7. 
 lien has been reyjistered under the provisions sjimmons^^^^^ 
 
 11v.11 iici.j o I 1 r 4.U.O why hen 
 
 of this Act, may apply to a Judge ot the should n^^^ 
 County Court, on an affidavit setting forth 
 the registry of the same, and that hardship 
 or inconvenience is experienced, or is likely 
 to be experienced thereby, with the reasons , 
 for such statement, for a summons calling 
 upon the opposite party to show cause why 
 such lien should not be cancelled upon suffi- 
 cient security being given. Such summons, 
 together with a copy of the affidavit on which 
 the same is granted, shall be served on the 
 oi)i)Osite party and made returnable in three 
 days after the issuing thereof, or in such 
 greater or U^ss time as the Judge may direct. 
 1891, c. 23. s. 17. 
 See Ont. Act, s. 27, supra, p. i2cj. 
 
 18. On che return of such summons, the «e-tion.8. 
 judge may order the cancellation of «uch Jj^.r^K 
 iien, either in whole or in part, upon the ' 
 
:::i 
 
 280 
 
 The Mechanics' Likn Act of BRITISH COLUMBIA. 
 
 Section .8. giving- of sccLirity by the party against whose 
 property the said hen is registered to the 
 opposite j)arty, in an amount satisfactory to 
 the said Judge, and upon such other terms, if 
 any, as the Judge may see tit to impose. 
 1891, c. 23, s. 18. 
 See Ont. Act, s. 27, supra, p. 129. 
 
 Section 19. 
 
 On Judge's 
 t)rder lien to 
 be cancelled. 
 
 Section 20. 
 
 In certain 
 cases owner 
 or contractor 
 to pay costs. 
 
 19. The Registrar-General, District Reg- 
 istrar, or Government Agent in whose office 
 the said Hen is registered shall, on the pro- 
 duction of such order, file the same and cause 
 the said lien to he cancelled as to the 
 property affected by the order. 1891, c. 23, 
 s. 19. 
 
 See Ont. Act, s. 27, supra, p. 129. 
 
 20. Wh(m it shall apj)ear to the Court or 
 Judge in any [)roceedings to enforce alien or 
 liens under this Act that such proceedings 
 have arisen from the failure of any owner or 
 contractor to fulfil th(^ terms of his contract 
 or engagement for th(; work in respect of 
 which the liens are sought to be enforced, or 
 to comply with the provisions of this Act, 
 such Court or Judge may order the said 
 owner or contractor or either of them, to pay 
 
 I'TllfSn r-r:.^-. ■*'~v 
 
The Mechanics' L.en Act of BRITISH COLUMBIA. ^-^^ 
 
 ,. • 1 !•,.;_,,, Section 20. 
 
 all the costs of such proceedings, in addition — 
 to the ai.-ioLint of the contract or sub con- 
 tract, or wages due by him or them to any 
 contractor, sub-contractor, or labourer, and 
 may order a final judgment against such con- 
 tractor or owner, or either of them, in 
 default for such costs, with execution as pro- 
 vided in section 16 of this Act. 1891, c. 23, 
 
 s. 20. 
 
 See Ont. Act, s. 45, supra, p i74- 
 
 21 If the property sold in any proceed- section ... 
 ings under this Act shall be a leasehold p,.,.pe.ty. 
 interest, the purchaser at any such sale shall 
 be deemed to be the assignee of such lease. 
 
 1 89 1, c. 23, s. 21. 
 
 There is no corresponding secfio/i in the Ont. Act, but 
 it would seem that this provision is merely declaratory 
 of what the law would be in its absence. Where the 
 interest of a lessee is sold under legal proceedmgs the 
 purchaser becomes his assign by operation of law, and 
 bound by all covenants running with the land : see I'oa's 
 Landlord and Tenant, p. 347' 
 
 22. Allmon(>ys realized by procec^dings Section,. 
 
 '•'" -' 1., ir..M»l Distribution 
 
 under this Act shall be applied and distributed of p-eeds^of 
 in the following order : — 
 
 (1.) The cost, of all the lienholders of and 
 
282 
 
 The Mf.chanics' Tjrn Act of BRITISH COLUMBIA. 
 
 s 
 
 Section 22. 
 
 I?' 
 
 Ii 
 
 ^::i 
 
 incidental to the proceedings, aiid of 
 registering and proving the liens: 
 
 (2.) The balance shall then be d"vided by 
 first paying six weeks' wages (if due) 
 to all labourers employed by the 
 owner, contractor, and sub-contractors 
 (provided such balance shall be suffi- 
 cient to pay six weeks' wages as 
 aforesaid, but if not, then amount 
 shall be divided pro rata among the 
 said labourers), and the balance re- 
 maining, after paying six weeks' 
 wages as aforesaid, shall be divided 
 pro rata among the sub-contrartors 
 and other persons employed 'ne 
 
 owner and contractor, after nj] [.: oar- 
 ers, sub-contractors, and other p^ . .^ons 
 enijjloyed by the owner and contractor, 
 have been paid their liens and costs, 
 the balance shall be j)aid to the con- 
 tractor. 189 1, c. 23, s. 22. 
 
 The Ont. Act does not definitely direct how the pro- 
 ceeds of a sale are to be distributed, but leaves that to 
 be determined by the Court, according to the circum- 
 stances of each case. 
 
 In applying this sec/ion, the provision of section 6 would 
 
[A. 
 
 I of 
 
 )rs 
 
 
 The Mechanics' T.ien Act of BRITISH COLUMBIA. 
 
 have to be regarded, and, where there is a prior mort- ^^^^^ 
 gage, so much of the purchase money as e(iualled the 
 upset price must be apphed, notwithstanding this sec- 
 tion, in accordance with the provisions of section 6. 
 
 This section seems to fail to take into account, the 
 case of there being different classes of sub-contractors, 
 some of whom may not be entitled to an etjual share 
 with others. In the distribution of the proceeds of a 
 sale, however, even under this section^ it is presumed that 
 it would be so made as to preserve the obvious equities 
 of the lien-holders, and so that the money right'ully due 
 to A shall not be applied to satisfy the creditors of J]. 
 
 Subsection 2 provides for the payment of labourers 
 employed by contractors and subcontractors as well as 
 those employed by the owner, though none but the 
 latter wonld appear to be entitled to liens under the 
 Act : see sections 2 and 4 and notes, supra, pp. 261, 263 ; 
 see also section 12 and notes, supra, p. 275. 
 
 -^8.? 
 
 on i2. 
 
 23. Every mechanic or other person who 
 
 Section -ij. 
 
 has bestowed money or skill and materials iYe^n on""^^'' 
 uj)on any chattel in the alteration and im- 
 provement of its properties, or increasing its 
 value, so as thereby to become entitled to a 
 lien upon such chattel or thing for the amount 
 or value of the money, skill, or materials 
 bestowed, shall, while such lien e.xists, but 
 not afterwards, in case the amoimt to which 
 he is entitled remains unpaid for three 
 months after the same ought to have been 
 

 1^ 
 
 
 284 Thk Mkchanics' Lien Act of BRITISH COLUMBIA. 
 
 Section jy. p.i,\|^ have power to sell the chattel in resi)ect 
 of which the lien exists, on giving two weeks' 
 notice by advertisement in a newspaper pub- 
 lished in the city, town, or county in which 
 the work was done, or in case there is no 
 newspaper published in such city, town, or 
 county, then in a newspaper published 
 nearest thereto, stating the name of the per- 
 son indebted, the amount of his indebtedness, 
 a description of the chattel to be sold, ihe 
 time and place of sale ; and after such sale, 
 such mechanic or other i)erson shall apply the 
 proceeds of such sale in payment of the 
 amount due to him, and the costs of adver- 
 tising and sale, and shall pay over the surplus 
 (if any) to the person entitled thereto on 
 application being myde to him therefor, and 
 ri notice in writing of the result of the sale 
 shall be left at or [)Osted to the address of the 
 owner at his last known place of abode or 
 business. 1891, c. 23, s. 2^. 
 
 See Out. Act, s. 51, and notes, supra, pp. 179 186. 
 
 Expiration, Canceliaiion, and Discharge. 
 
 Section 24. 24. Every lien shall absolutely cease to 
 ^laiuxpire. ^xist after the expiration of thirty days after 
 
Thk Mixhanics' Lii^n Act oi. BRITISH COLUMBIA. 
 
 285 
 
 no 
 
 the tiling o'" the affidavit mentioned in section ^'^^ -"•• 
 8 of this Act, unless the claimant in the 
 meantime shall have instituted [)roceedings 
 to realize his lien under the provisions of this 
 Act. and a certificate of the Judge or Regis- 
 trar o( the Court wherein the proceedings 
 are commenced, certifying that such action 
 has been commenced, is duly filed in the 
 office of the Government Agent in the city, 
 town, or district wherein the land is situate, and 
 in case there shall be no Government Agent 
 in such city, town, or district, then in the Land 
 Registry office of the Land Registry Dis- 
 trict within the limits of which the lands, 
 mine, or premises affected by such lien are 
 situate. 1891, c. 23, s. 24. 
 
 See Ont. Act, s. 24, supra, p. 123. This section prob- 
 ably applies only to liens on land, and not to liens on 
 chattels under section 23. 
 
 Where a sub-contractor gives credit to V,:. primary 
 debtor extending beyond the time limited by this Act 
 for bringing his action, it is thereby barred : Burritt v. 
 Renihan, 25 Gr. 183 ; Haggertv v. Grant, 2 B. C. R. 
 1 73 So also the tak'ng of a promissory note and nego- 
 tiating it discharges the lien ; and it does not revive on 
 non-payment of the note : Edmonds v. . lernan, 2 1 S. 
 (] R. 406 As to the effect of taking security under 
 the Ont. Act : see Ont. Act, s. 28, and notes, supra, n. 
 132 e/ seq. 
 
2X6 
 
 TnK Mkcmanks' I.ikn Act oi BRITISH COLUMBIA. 
 
 :4> 
 
 stction.s. 25. TIk; Government Agent. Registrar- 
 tinri lien shall General, or District Registrar of I itles shall. 
 
 be fancellfd. . , . , , t r 
 
 on receiving a certiticaLe under the seal oi 
 the Registrar of the Court wlierciin such 
 action is jjending, stating the names of the 
 lienh(jlclers parties to such action, and that the 
 amount due by the owner in respect of such 
 liens has been ascertained and [)aid into 
 Court in pursuance of an order of such 
 Court or Judge, or that the i)roperty has l)een 
 sold to realize; such liens, or that such lien 
 has been improperly filed, or that such lien 
 has otherwise ceased to exist or on receiving 
 a statement in writing signed by the claim- 
 ant or his airent that the lien has been 
 satisfied, cancel all liens registered by such 
 parties. 1891, c. 23. s. 25. 
 See Ont. Act, s. 27, si/pra, p. 129. 
 
 Section 2f^ 26. Every person making or entering 
 
 Receipted pay • . . . 
 
 rolls of wood- into any contract, engagement, or agreement 
 
 man's wages r i r r 
 
 must be with any other person tor the purpose ot tur- 
 
 produced. ^ ' ' ' 
 
 nishing, supplying, or obtaining timber or 
 logs by which it is requisite and necessary 
 to engage and employ workmen and 
 labourers in the obtaining, supplying, and 
 furnishing such logs or timber as aforesaid 
 
 m 
 
BIA. 
 
 .rar- 
 
 lall. 
 
 al of 
 
 uch 
 
 the: 
 
 the: 
 
 such 
 
 into 
 
 such 
 
 l)ccn 
 
 lien 
 
 hen 
 
 Till Mechanics' Lien Act oi BRITISH COLUMBIA. 
 
 2iS7 
 
 shall, before making any payment for, or on ^^''*'"" '^• 
 behalf of, or under such contract, ent^^age 
 ment, or agreement of any sum of money, or 
 by kind, r(;(jnire such person to whom i)ay- 
 ment is to be made, to produce and furnish a 
 pay-roll or sheet of the wages and annuint 
 due and owing, and of the j)ayment thereol, 
 which pay-roll or sheet may be in the form 
 of Schedule C annexed to this Act, or if not 
 paid, the amount of wages or pay due and 
 owing to all the workmen or labourers em- 
 ployed or engaged on or under such contract, 
 engagement, or agreement at the time when 
 the said logs or timber is delivered or takcMi 
 in charge for, or by, or on behalf of, the per- 
 son so making such payment and receiving 
 the timber or logs, 1891, c 23, s. 26. 
 
 There is no similar provision to this in the Ont. Act. 
 See, however, " TJie Woodman s Lien for Wa^es Act" 
 (R. S. O. c. 154). 
 
 27. Any person making any payment section 27. 
 und(^.r such contract, engagement, or ^igrt^t;- ,P^'"^'j?!r„"^°* 
 ment without requiring the production of the receipted pay 
 
 H, ... . roll shall be 
 
 , ^ or sheet as mentioned in section 26 Habie at suit 
 
 ' _ ^ _ of workman. 
 
 of '.his Act, shall be liable, at the suit of any 
 workman or labourer so engaged under said 
 
288 
 
 Section 37. 
 
 Section 28. 
 
 Sums men- 
 tioned in pay 
 roll as untJiiid 
 to be retained. 
 
 Section 29. 
 
 Government 
 Agent to 
 transmit 
 copies of lien 
 records to 
 Land Registry 
 office. 
 
 The Mechanics' Lien Act oi BRITISH COLUMBIA. 
 
 contract, cn^agtMiicnt, or agrecjiient, for the 
 amount of pay so (liic and owinu; to said 
 workman or labourer und{;r said contract, 
 engagement, or agreement. 1891, c. 23, 
 s. 27. 
 
 There is no similar provision to this in the Ont. Act. 
 See, however, " The Woodman'' s Lien for IV(rt;-es Ac/," 
 (R S O. c. 154). 
 
 28. The person to whom such pay-roll 
 or sheet is given shall retain, for the 
 use of the labourers or workmen whose 
 names are set out in such pay-roll or sheet, 
 the sums set opposite their respective names 
 which have not been i)aid, and the receipt 
 or receipts of such labourers or workmen 
 shall be a sufficient discharge therefor. 1891, 
 c. 23, s. 28. 
 
 There is no similar provision to this in the Ont. Act. 
 See, however, " T//e JVoodnian's Lien for Wages Act,'^ 
 (R. S. O. c. 154) 
 
 29. Every Government Agent in whose 
 office any affidavit or document shall be filed 
 under the provisions of this Act shall forth- 
 with after such filing transmit to the Land 
 Registry office of the Land Registry Di.s- 
 trict within the limits of which the lands. 
 
 i 
 
'I'liK MicMANics' I iKN .\( 1 <M BRITISH COLUMBIA. 
 
 .-s.) 
 
 mine, or premises atfcctcd by siicli .iffidavil "^"''^"^ ''"' 
 or clocumcin arc situate, a true copy, certitied 
 under his hand, of such affidavit or document, 
 and the copy so certified shall be filed in the 
 Land R(tgistry office, in the manner pre- 
 scribed l)y this Act lor the filing of original 
 documents therein under this Act. 
 
 There is no similar provision to this in the Onl. Act. 
 
 30. The Judges of the County Court, or '^^'^ '"■ 
 anv two of them, may make general rules .i'';;K^--'f.^^,,.^ 
 
 ', , . . • ^ -.I ^L,;., to make Rules 
 
 and reo'ulations, not inconsistent witn tniSot c<.nrt. 
 Act. for e.\pc:diting and facilitating th(; busi- 
 ness before such Court under this Act, and 
 for the advancement of the; interests of suitors 
 therein. 1891, c. 23, s. 29. 
 
 There is no similar provision to this in the Ont. Act. 
 
 No Rules have as yet been made. 
 
 31. The "Mechanics' Lien Act, 1888" ■^-^3.. 
 (being Chap. 74 of the Consolidated Acts, K^' a,is 
 
 1888), the "Mechanics' Lien Amendment 
 Act, 1889," and the "Mechanics' Lien 
 Amendment Act. 1890." are hereby repealed. 
 
 1 89 1, c. 23, s. ^o. 
 
 19 
 
290 Thi: Mpxhamcs I,ii:n Act m BRITISH COLUMBIA. 
 
 SCIIl':i)Ul,K A. 
 
 .::} 
 
 li! 
 
 In the matter of the "Mechanics' Lien Act," and in ihe mallei 
 of a lien claimed by 
 
 I, of 
 
 British Columbia, make oath and say : — 
 
 1. That of claim 
 a mechanic's lien against the property or interest hereinafter men- 
 tioned, whereof is owner. 
 
 2. That the particulars of the work done are as follows : — (a) 
 
 3. That the work was finished or discontinued on or about the 
 
 day of 
 
 4. That the said [/'//.sr/'/ //r/wc ry /"('/-.w// r/aii/n'iii:; the //(■// 1 was in 
 
 the employment of , contractor for the work 
 
 in respect of which the lien is claimed, for days 
 after the above mentioned date. 
 
 5. That the sum of dollars is owinj^ to 
 
 in res[)ect of the same, and was due 
 on the day of 
 
 6. That the descrii)tion of the property to he charged is as 
 follows : — 
 
 Sworn at I!. ( "., this day 
 
 of A. I ). , before inc. 
 
 1891, c. 23, Sch. A. 
 
 (a) Sec note to s. 8, nupra, p. 271. 
 
The MixHANics' Lien Act ol BRITISH COLUMBIA. 291 
 
 SCHEDULE B. 
 
 of 
 
 " Mechanics' Lien Act." 
 
 Particulars of work to be done for 
 
 , owner, by 
 Qf , contractor. 
 
 [Here insert nature and loaitioH of work, and nature of interest of 
 
 owner in the land.\ 
 
 Amount of contract, 
 
 Dated the day of 
 
 (Signed) 
 Owner. 
 
 dollars. 
 
 , iS . 
 
 Contractor. 
 
 SCHEDULE C. 
 Pay-Roll. 
 
 Niinic. 
 
 Fiom 5th January, ISUl, to 
 lOtli January, 1891, (inclusive) 
 
 I )es(;np 
 tion. 
 
 R. Hoe 
 
 Number 
 
 of (lays 
 
 employed 
 
 Six days. $3 oO. 
 
 ivate 
 per day 
 
 Amount | Date of 
 paid, i payment. 
 
 a 
 S 
 
 > o 
 
 $'21.00 $'21. 00 l'2th Jan., 
 1891. 
 
 R.Roe 
 
 T hereby certify that the above statement is correct to the best of 
 my knowledge and belief, and is made by mc in compliance and m 
 accordance with section 12 of the "Mechanics' Lien Act, 1891, on 
 account of (my contract to, or employment by as the case may Ih') 
 [here insert l>rief description of the work] for {owners name) up to 
 the day of 18 . 
 
 (Signed) 
 
 ^ ^ Contractor. 
 
 I )ated day of , 1 S . 
 
 1S91, c. 23, Sch. C. 
 
 I 
 
•i ' 
 
 ■:.i» 
 
 M 
 
 k 
 
Appendix. 
 
 293 
 
 APPENDIX. 
 
 ADDITIONAL FORMS. 
 
 1 I'OKM 01 RfXEII'T in DiSCHARdK OK LiKN, UNDER 
 
 Oniario Act, Section 27. Appemiix. 
 
 1 {name of I ten- holder) acknowledge to have received r^ceipHn dis- 
 from {^namv ,f owner'' or other person ///r?/(v'«^Ay"''^"0 registered lien 
 $ in full discharge of my mechanics' lien as a ""'i^'' ^- ^'>- 
 
 [contractor or sub-contractor, as the case may be] upon 
 lot (give short description of land sufficient for registration 
 purposes, e.g., the westerly 40 feet of lot 36, on thu north 
 side of Street, according to plan No. , regis- ' 
 
 tered in the City of ). 
 
 Dated this , day of , 18 . 
 
 {Signature of lien-holder.) 
 
 WiiNESS : 
 
 [Signature of ivitness.) 
 
 2. AlTTDAVlT VkRIKVINC. ReCEII'T IN DISCHARGE OK 
 
 Lien, Under Oniakio Act, Section 27. 
 
 County ok 
 
 To wit : 
 In the matter of the Mechanics' and Wage-Earners^ 
 
 Lien .\ct. 
 T , of {state residence and occupation) ^.■^^^.^^■.^^^■^.^^^ 
 
 ' ' receipt. 
 
 make oath and say : 
 
2Q4 Apprndix. 
 
 Appendix. , J yvas personally present, and did see {/lame o/ /ie/t- 
 liolder givin^:; receipt) duly sign the above [or annexed or 
 within, as the case may he\ written receipt. 
 
 2. That I well know the said {tiaiiie of lien-ltoldir, and 
 the said receipt was signed by him at the {state place 
 -ivhere receipt sii^ned. ) 
 
 {Sii^nature of deponent. ) 
 
 Sworn before me, at 1 
 
 , this ■- 
 
 day of . I 
 
 {Signature of eoinniissioner.) {a) 
 
 A Commissioner, etc. 
 
 3. Dkmanu 01' Tkrms oi ('oNTRAc r UndkrOn't. Act, 
 
 Skciion 29. 
 
 To Mr. {name of owner). 
 
 Take notice that I claim to be a lien-holder under The 
 Mechanics' and Wage-Earners Lien Act upoji {descril>e 
 shortly the premises in question) under a contract made 
 by me with ('. I), {name of contractor) and I do hereby 
 require you to furnish nie with the terms of the contract 
 or agreement existing between you and the said (J. 1). in 
 reference to (the building c^/- the carpenter work of the 
 building now being erected upon the said premises, or 
 
 (a) T)ie atlidavit may be sworn before a oominissioner for 
 taking attitlavits : see It. S. O. c. 74, s. 12 ; aiitl possibly before 
 a notary Public ; see J{. S. O. e. 175, sa. 3, 4, 
 
Al'I'F.NDIX. 
 
 -'95 
 
 ,n »,av l>,'\ and tlie anioiint over due and unpaid upon 
 such contra<:t pursuant lo sedlo, 2.) of the Meclmmcs' 
 and WageEiuiu-n' I.un Act. 
 
 {Si^^iuttiin' cj lien- holder.) 
 I );Ucd, flc. 
 
 Appendix. 
 
 4 SiAii \ii-.Ni r.i r:i,\iM IN AN Action to Enforck 
 
 \ll( hanks" LlKN 01 CoNIRACTOKS. 
 
 ( Tille of Court and cause). 
 
 'l"hc nlainliff. 1. IC, is a builder, carrying on business J;°™'°f claim' 
 in the ("ity ori'oronto, \n the ( ounty of Vork, ana tne ^,„„^,.j^^,t„r. 
 plaintiff, W. P.., is a bricklayer, also carrying on business 
 in the said ("ity of Toronto. 
 
 , . ( ) the 1 1 th day of November, 18 , the defendant 
 was, and she has ever since remained, and now is, the 
 I owner in fee simple of the lands and or lessee of certain 
 leasehold 1 premises in the City of Toronto, in the 
 (nniuy of York, more particularly described in the claim 
 or lien liereinafti r set forth, (a) 
 
 2. On or aoout the said i ilh day of November, the 
 plaintiffs, who are mechanics, were employed by the said 
 defendant to perform certain work and to furnish certam 
 tnaterials for the erection of a brick hotel upon the said 
 land for the said defendant, and there was no agreement 
 
 (,<) If tlu- ii.'ii luiH not been reKiatered before action, this 
 paru.i^rai.h sh.n.l.l set f.-itl, tl.e lands upon wl.ich the lien i.s 
 cliiinie.l. antl sliouhl l)e ni<).litie,<l aocordingly. 
 
296 
 
 Al'I'KNItlX. 
 
 Aiipt'tnlix, 
 
 Stateiin.Mil 
 of I'liiim. 
 
 l)etwetn the said defendant and the plaintiffs that the 
 plaintiffs should not be entitled to a lien upon the said 
 lands and buildings for the price of the said work and 
 materials (/')• 
 
 3. In pursuance of tlie said employment, the plain- 
 tiffs did do a large amount of work upon and did 
 furnish large ([uantities of materials, which were used 
 in and about the erection of the said brick hotel upon 
 the said lands, to the value of $18,000, and completed 
 the same on the 4th day of September, i<S , whereby 
 
 ■the defendant became indebted to the plaintiffs for 
 the said work and materials in the said sum of $iH,ooo. 
 
 4. The sum of $15,000 has been paid on account 
 of the said simi of $iS,oco, leaving a balance of $3,000 
 still due and payable to the plaintiffs. 
 
 5. Hy reason of being so employed, and doing the 
 said work, and furnishing the said materials, as afore- 
 said, the plaintiffs became and are entitled to a lien 
 on the estate and interest of the defendant to the 
 said lands for the sum of $3,000, under the provisions 
 of " Tlw MfciinniiS and ll'agf-Eonicrs^ Lien Act." 
 
 ( If tJic livii }ias Ih'cii riy^istcred In'/orc action., proceed m 
 f(dl(m<s : ) 
 
 [6. On the 2 I St day of September, t<S , the plaintiffs, 
 in pursuance of the said Act, caused to be registered in 
 the Registry Office, in and for the [City of Toronto, (^vy 
 a^ may he\-x claim of lien, which claim is in the words 
 and figures following, that is to say : ( c) 
 
 {l)\ /{iifhltiini V BurnenH, IT C. L. J. III. There is no lien 
 for materials in British (Joliunbia ; see supra, p. •J(i4. 
 
 (rj Where a lien i.s registered Ijcfore action, it is necessary 
 that the action should lie coninieiucd within ninety days from 
 
APPKNIiIX. ~'^' 
 
 " I. 1-:, of the City of Toronto, in the County of M'l-"•l>^ 
 York, builder, and W. B., of the same place, bricklayer, 
 unde^ ' The Mechanics' and Wa^e-Earners Lien Act, 
 claim a lien upon the estate of M. A. T., of the said 
 ( "ity of Toronto, in the undermentioned land, in respect 
 of the following work [and materials, (./)] that is to say : 
 
 To amount of contract $17,000 
 
 Bill of Extras. 
 
 To extra stone in foundation 5°° 
 
 " Brick pointing ^°° 
 
 " Second flats of extra i4:-bricks in 
 
 thickness 3°° 
 
 $18,000 
 
 Dec. I. -By cash $2,000 
 
 ii 22. - " • 1,000 
 
 1874. 
 
 Ian. 5-- " 5,000 
 
 July 6.- " 7,000 
 
 $15,000 
 
 Balance $3,ooo 
 
 which work was done [and materials {d)] were furnished 
 for the said M. A. T. between the ist day of May, A.D. 
 
 the'day on which the work was completed, or materials or n,a- 
 ..hinery furnishea, or the period of credit n.entioued in the reg- 
 istered claim expired : see Ont. Act, .s.c^/or^. 24. 25, .npra, pp. 
 
 ^%) No lien can be claimed for materials in I'.ritish Columbia : 
 gee su}wa, p. '264. 
 
2.,M 
 
 .\l'IT,N|)|\. 
 
 ;0 
 
 Appen-iix, ix , and the i4lh day of Septcimhcr, A. I ). .S , the 
 amount claimed as due is the sum of $3,000 ; the fol- 
 lowing is the descri|)tion of the land to be charged :— 
 All and singular that certain parcel of land known as 
 lot 3, on the west side of John Street, as shown on the 
 |)]an of /. .v. Dtiifiis, PAS., registered in the Registry 
 ( )li(irc of the said (,"ity of Toronto, and numhercd j) 
 
 "Dated at the f'ity of I'oronto, in the County of 
 Vork, this 21st day of Se[)teml)er, A.I). iS 
 
 " Witness, ) .Syj,v/<v/ |. i;. 
 
 '' Sixf/ed, }. I'.ARNKs, j" .S>V>-/(v/, W. 15. 
 
 — which statement was verified hy an attidavit of the 
 {)lainti(Ts, sworn before a eommissioner for taking afli 
 davits in the said (bounty of \'ork, as refjuired l)y tlu^ 
 said statute."] (r) 
 
 [/////e lien has iii)t hefii rti:;is/e/r(I /h'/'o/y aitioii. priH'ccd 
 (IS folloivs, omitting the ahoTc paragraph U : | 
 
 in resi)ect of the following work and materials, that is 
 to say, (sc/ out particulars of claim in i/ia/nifr shu-n'ii 
 ahnie in paragraph 6, and proceed ). 
 
 ( (' ) A lien for service.s or wag(is imist be registered hofore or 
 • luring tiie performance of tlie wcjik or aervii'es, or within lliirly 
 flays aftei' its eon))>I(;tion, or the last (liiy"s work : see sniiini ij'j 
 (.'{), (4), an<! a lieu for any otiier work or fur nialtM'ials or ma- 
 chinery must be registered within thirty days from the furnish- 
 ing, or before or <luring the performance of the contract, or the 
 furnishing oi' placing the materials : see strliun "i'i (1), ('!), uidess 
 the action l)e commenced, and a certificate of Ih pevifins be 
 registered within thirty ilays from the completion of the work 
 or delivery of the materials or machinery, in whicli case regis- 
 
AlM'KNlilS. 
 
 2Qt, 
 
 
 6 The work mentioned in the above particulars was ^i"""' '" 
 completed on (stating the true date of tlir completion, 
 ivhich diould he within thirty days prior to the issue of the 
 writ): see section 23, \or, the said machinery mentioned 
 in the above particulars was sui)plied \or placed | ui)()n 
 the said lands in the first paragraph hereof mentioned 
 
 phted, which should he a day within thirty days prior to the 
 issuin;^ of the writ\ 
 
 (ui. A certificate of lis pendens has been issued in 
 this action, and duly registered in the registry ottice 
 for , on the day of (nannnx a 
 
 day within thirty days from the completion of the work, 
 or the delivery or placin}^ of the machinery in respect 0/ 
 7vhich the lien is claimed.) (f) 
 
 7. 'I'he lands referred to in the first paragraph hereof, 
 land particularly described in the said claim of lien here 
 inbefore set forth,] U) are the lands occupied by and 
 usually enjoyed with the said hotel. 
 
 tration ..f the <;laim heforo a.^tion is unnecessary : see sfr^.o,, 
 ■23 Wli.-re a statement of claim shows tl.at tl.e registere.l 
 claim was not in proper form, or not registen-.l within the time 
 limite.l hy the Act, the staten.ent of claim was formerly .lemur 
 
 rable : lUUel^ v. MrDonnhl , 1") O. li. S(l. 
 
 (/) Wh.'U the action is c.n.mence.l hy tiiinK a statement <.f 
 
 .•laim un.ler Ont. Act, s. Wl Ci), this alleKation woul.l have to he 
 
 umitte.1, though it appears to he one that woul.l have to he 
 
 proved at the trial. 
 
 (,,) The vvor.ls in l.ra<.ket8 shoul.l he .."nilte.l wh... the lien 
 
 has Hot V),H'n registered hefore action. 
 
 \\ 
 
 i- I 
 
300 
 
 Al'PF.NDIX. 
 
 AppeiKlix. 
 
 
 The plaintiffs claim : — 
 
 1. That the defendant may be ordered to pay to 
 
 the plaintiff's forthwith the said suiii of $,^,000, 
 together with the interest thereon and the 
 costs of this action. 
 
 2. And that in default of such payment, all the 
 
 estate and interest of the defendant in the 
 said lands and buildings, or a competent 
 part thereof, may be sold, and the proceeds 
 thereof applied in or towards payment of 
 the plaintiffs' debt and the costs of this 
 action, pursuant to the said " The Afer/uniics' 
 and IVagf Earners' Lien Ac/." 
 
 T, That for the purposes aforesaid all proper 
 directions may be given and accounts taken. 
 
 4. Such further relief as the nature of the case 
 may require. 
 
 The plaintifTs propose that this action should be tried 
 at Toronto. 
 
 Delivered the day of 
 
 of , plaintiffs' solicitor. 
 
 1 8 , by .\. V. /.., 
 
 5. Statemp:nt of Clai.m in Action to Knforck a 
 
 MkCHANIC's LlFN HV A Sui! CONTRAt TOR. 
 
 (Style of Court and Cause.) 
 Im>i 111 of state- i. On the nth day of November, i8 , the defend- 
 
 inent of claim ,, . ,„ i , i • • i , 
 
 in action by ant, M. A. 1 ., was and she has ever since remained and 
 tractor, now is the [owner in fee simple of the lands and, or 
 
 
Appendix. 
 
 301 
 
 >ay to 
 
 ,000, 
 the 
 
 lessee of certain leasehold] premises in the (!ily of -^I'l"^!" 
 Toronto, in the County of York, (if the plaintiff'' s lien 
 /ids /ur/i n\i:;istered, conclude as in preceding form y if not, 
 say) known and described as follows, that is to say : (set 
 out description of land orer which lien is claimed. ) 
 
 2. On or about the said 1 ith day of November, the 
 said defendant. M. A. T., employed the defendant, C 
 I)., to perform certain work and to furnish certain mate, 
 rials 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. 
 
 3. The defendant, ('. I)., accepted the said employ- 
 ment, and agreed with the said M. A. T., to perform the 
 said work and to furnish the said materials, and after- 
 wards employed the defendant, E. T., to do part of the 
 said work and furnish pait of the materials recjuired for 
 the erection of the said house, for the sum of $1,000, 
 which employment the defendant, VI. T., accepted, and 
 he agreed with the said C. 1). to do the work and fur- 
 nish the materials last referred to for the said price or 
 sum of Si, 000. 
 
 4. On the I Ith day of December, 18 , the defend- 
 ant, E. T., employed the plaintiflTto 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 defend- 
 ant, C. 1) , to do and furnish as aforesaid, and agreed to 
 pay the plaintiff therefor the price or sum of $500 ; and 
 there was no agreement {a) between the plaintiff and the 
 said M. A. T., that the plaintiff should not be entitled 
 to a lien for the work done and materials furnished by 
 him, as hereinafter mentioned. 
 
 i I 
 
 (a) Rathburn v. BurgesH, 17 C. L. J. 111. 
 
?OJ 
 
 Al'I'KNDIX. 
 
 .\|i|H'Mill.\ 
 
 mi 
 
 ■4 1 
 
 
 5. 'I'lic plaintiff accepted the said employment, and 
 in pursuance thereof tlie plamtiff did do a large amount 
 of work upon, and did furnish large ([uantities of mate- 
 ,ial in and al)out the erection of, the said house 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, K. '\\, 
 l)ecame 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 agreement between the said de- 
 fendants, M. A. T. and ('. I)., and there is now due a 
 huge sum of money by the said M. A. T., under her 
 contract with the said C. I)., which the plaintiff claims 
 ciiuals or exceeds $ 
 
 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. 
 
 S. 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 es- 
 tate and interest of the defendant, M. A. T., in the said 
 lands for the said sum of $400, under the provisions of 
 the said " T/w Mechanics' and \Va[:;e Earners' I.ien Act.'" 
 
 If the lien has not />een registered (>efore action, proceed 
 as follows : — 
 
 9. A certificate of lis pendens has been issued in this 
 action and registered in the Registry Office for 
 
Arri'-.Ninx. 
 
 „„ ii.e day c,f ('>nm., tlw day. winch should Ah-Hx. 
 
 /v ,v////.v/ thir/v days fruin the dak maitwiwd in para- 
 ,^raph 5 as the date of the eompletio,, of the work, etc.) (/'). 
 
 ,;. [// the lien has been iri^istcred before action proceed 
 as in paragraph A of preceding Form. \ 
 
 lo. 'I'lie lands referred to in the first paragraph of this 
 statement of claim [// so, and particularly described in 
 the said claim or lien hereinbefore set forth] are the 
 lands occupied by and usually enjoyed with the said 
 house. 
 
 , ,. The defendants, C D. and E. T., have also done 
 work and furnished materials in and about the erection 
 „f the said house and are entitled to liens in respect 
 thereof upon ^he said lands under the said •" The Me- 
 chanics and II axe Earners' Lien Act." 
 
 The plaintiff claims : — 
 
 I. That the defendant, l-:. '1'-, inay be ordered to 
 pay to the plaintiff forthwith the said sum of 
 $400, together with interest and the costs of 
 this '.ction. 
 
 _>. And th.-t the defendant, M. A. T., may also 
 be ordered to pay the same or such part 
 thereof as the plaintiff, by virtue of his said 
 lien and charge as aforesaid, is entitled to 
 receive from the said M. A. F. 
 
 ;o.i 
 
 (/.) Where the action is commenced by filing a statement of 
 claim under Ont. Act, a. 31 {2), this allegation would have to be 
 on.itted, though it appears to be one that would have to be 
 proved at the trial. 
 
.>o4 
 
 Al'I'KNDlX. 
 
 App'-'ii'lix 
 
 3. Ami that in default of such [)ayment by tlie 
 
 said M. A. T. and the said E. T. that all the 
 estate and interest of the defendant, M. A. 
 'i'., in the said lands and buildings, or a 
 competent part thereof, may be sold, and 
 the proceeds applied in or towards payment 
 of the plaintiff's debt and the costs of this 
 action, pursuant to the said " The Mechan- 
 ics' and lVa}:;e Earners' Lien Act." 
 
 4. 'Jhat for the purposes aforesaid all proper di- 
 
 rections may be given and accounts taken. 
 
 5. And that the plaintiff may have such further 
 
 relief as the nature of the case may re(]uire. 
 
 Tiio plaintiff proposes that this action should be tried 
 in I'l'oronto.] 
 
 Delivered the day of 
 
 , plaintiff's solicitor. 
 
 18 , by X. v., of 
 
 '4i 
 
 I" or 111 of claim 
 i)t' charjfe 011 
 IS Of .11 per 
 cent, of price 
 in respect of 
 wiiffes lien. 
 
 6. — Cl.mm ok Char(;e on Fiftekn or Twp:ntv pkr 
 Cent in Respfct ok Thirtv Days' Wages, {a) 
 
 The plair.tifT is also entitled to a charge upon twenty 
 per centum of the value of the work done and materials 
 
 (n) This and the following form are not intended as complete 
 forms, hut merely as additional clauses to a statement of claim, 
 claiming a lien. Where the plaintifTs sole claim is the relief 
 referred to in either of Forms 6 and 7, the preliminary part of 
 the statement of claim can be readily adapted from the 
 preceding Forms 4 and 5 : Se« section 14 (1), nupra, p. 77. 
 
d 
 
 ;k 
 
 Is 
 
 ite 
 n, 
 ief 
 of 
 he 
 
 Appendix. 
 
 furnished by the said {co/i/nic/or) fur the defendant 
 {o7v/icr) fur wages fur thirty days {or any /fss period) in 
 l)riority to all other liens, and in priority to any claims 
 by the defendant {owner) against the defendant {con- 
 tractor) for, or in conseciuence of, the failure of the lat- 
 ter to complete his contract with the defendant {oivner). 
 
 305 
 
 Appt'iidix. 
 
 nil of cliiim 
 
 7.— Claim Against Pkior Mortgagee. (/') 
 That prior to the commencement of the said work l/-"-^ ^j^/.'^HIst inim' 
 the delivery of the materials or machinery aforesaid] by •••o'tKaKcc. 
 indenture bearing date the day of 
 
 the defendant {o7vncr, or other morti^ai^or) did grant and 
 mortgage the lands and premises aforesaid u :.o the de- 
 fendant {mortgagee) to secure the payment of the sum of 
 $ , and interest at the rate and at the days and 
 
 times therein mentioned. 
 
 By reason of the construction, alteration or rei)air of 
 the building [or the erection or placing of the materials 
 or machinery] upon the lands aforesaid the selling value 
 of the said lands has been increased by the sum of 
 $ , and under the provisions of The Mechanics'' 
 
 and Wage Earners' Lieu Act the plaintiff and other lien- 
 holders are entitled to a lien upon the said lands for the 
 amount due to them to the extent by which the selling 
 value thereof has been so increased in priority to the said 
 mortgage. 
 
 The Phintiif claims : 
 
 I. That the amount by which the selling value 
 of the said lands has been increased by the 
 
 (/.) See note (.0 to Fonii (i, .'^»/)m. Sec Out. Act s. 7 (3), ■•<«/'>•«. 
 p. 42. 
 
 20 
 
3o6 
 
 ApI'ENUIX. 
 
 Apiiendix. 
 
 work done and materials furnished by the 
 plainlifand other hen holders (if any)entitled 
 to the benefit of this action may be ascer- 
 tained under the order and direction of this 
 Honourable Court. 
 
 That the defendant {inortgagee) may be order- 
 ed to pay into Court, to the credit of this 
 action, the amount which shall be found due 
 to the plaintiff and other lien holders entitled 
 to the benefit of this action in respect of 
 their liens, or so much thereof as shall not 
 exceed the amount by which the selling 
 value of the said lands has been increased 
 by the construction [alteration or repair j of 
 the building [or the erection or placiig of 
 the materials or machinery] ui)on the said 
 lands as aforesaid, and that the same when 
 paid into Court may be paid out to the 
 plaintiff and such other lien-holders as are 
 entitled to share therein, subject to the pay- 
 ment of the plaintiff's costs 
 
 Thut in default of the defendant y/z/or/^dgt't') 
 making such payment, the said land may be 
 sold freed from the said mortgage, and that 
 the increased price which may be realized 
 from such sale by reason of the work done 
 and materials furnished as aforesaid may be 
 ascertained, and that the same may be 
 ordered to be ai)plied in ])ayment of the 
 liens of the plaintiff and other lien-holders 
 entitled to the beneiit of this action, sub- 
 ject to the payment of the plaintiff's costs. 
 
Appkndix. 
 
 307 
 
 8 Form ok Inteki.ocutouy Injunction Rksirainin(. '^ — 
 'xnii Removal oi' Buh.uings ok Machinery, Etc., 
 UNDER Ontario Act, Section 16. 
 
 {Formal part of order as usua/.) 
 
 And ihe plaintiff [in person or by his counsel] under- };--;,;.•; '"^*^^' 
 taking to abide by any order this Court may make as to JXaininK 
 damages in case this Court shall hereafter be of opinion [-'-^^'f ^, 
 that the defendant [or defendants, or any or either of 
 them] shall have sustained any by reason of this order 
 which the plaintiff ought to pay. 
 
 This Court doth order that the defendant, his [or the 
 defendants, their] servants, workmen and agents be and 
 they are hereby restrained until* the day of 
 
 next, and until any motion which may on that 
 day be made to continue this injunction shall have been 
 disi)osed of,* from moving from the premises known as 
 and being {</escn7>e lands suhjed to lien) any of the build- 
 ings, erections, material or machinery now standing, 
 lying or being thereon, {a) 
 
 tc. 
 
 9 Form oe Injunction Restraining Removal ok 
 Buildings or Machinery, Etc. {/>) 
 
 {Formal parts of judgment, as usual.) 
 
 The Court doth order and adjudge that the defend- |;;-;,',"etion 
 
 ■^ _ niatitfd at 
 
 "Tar^N^.e^'tluTini^ii^i^'is «»»'«e'l"ently continuc.l to the tnal,^ resu-ain- 
 trial the onlor may he in a Hunilar fonn to the above, subslitut- bu,ldinK«. etc. 
 i„g for the wor.ls between the * * the words " the trial or other 
 linal disposition of this aetion." 
 
 (/,) This form is only Builable to be inserted in a ,]ud...mcnl. 
 For form of an interlocutory injunction granted pendu.g the 
 ftotiou see Form No. 8. 
 
3o8 
 
 Appkndix. 
 
 Ml 
 
 Appendix, ^^j^ }^jy |,;^ dcfciKlaiits, thcir| servants, workmen and 
 agents, he, and they are hereby, restrained from remov- 
 ing from off the premises known as and being {(kscri/ie 
 lands subject to lien) any of the buildings, erections, 
 material or machinery now standing, lying or being 
 thereon until the liens of the plaintiff and other lien- 
 holders entitled to the Ijenefit of this action ui)on the 
 said lands shall have been satisfied, or this Court shall 
 n)ake other order to the contrary. 
 
 ■ 
 
 
 1m)I111 uI iililff 
 
 vacating lien. 
 
 10. lUJKM (W OkDKK V.\c\riN(; i,li;N. 
 {Title (if cause or matter.) 
 
 Upon the application of {(nvner) in |)resence of the 
 solicitor for {lien holder), and upon hearing read {affida- 
 7'its and other papers upon ivhich application founded), 
 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, vi/, ; (description of lands as in rei^istered 
 claim), in respect of the following work [or materials], 
 that is to say, {descrihe it as in the registered claim) done 
 \or furnished] lor {)uime of person for whom work done 
 or materials furnished as in rci^^istercd claim) on or before 
 the day of , and in resiiect of which the 
 
 sum of $ was claimed by the said {lien-holder) as 
 
 due \i>r to become duct] and which said claim was regis- 
 tered in the Registry Office of on the 
 day of at o'clock as No. , be and 
 the same is hereby vacated and discharged. 
 
t 
 
 Ari'i'.Niiix. 
 
 It. Form or Notick ok Sai.k ov Chatikls lo 
 
 l>Ur.USHEU, ANl. SkRVKI. ON OWNKR. 
 
 Auction Sale. 
 
 309 
 
 .£ Appendix. 
 
 I'onn i.fnoiiee 
 
 Whereas im>ne of person indehtcd) is indebted to ^^^^^ ^^^ 
 .nder.igned in the sun. of $ (br \-^^^-^: 
 
 materials supplied in the alteration or miprovemcnt 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 .s hereby 
 given that on next, the day of • ^^ (/A.r 
 
 of uik e.g. the auction rooms of C ')., No. 6 kmg 
 Street West, in the City of Toronto), the said {desc^l>e 
 chattel) will be sold by {name of auctioneer), by public 
 auction. 
 
 {If the sale is to he sul'ject to a resef-oed hid, or other 
 special conditions it should f>e so stated.) 
 
 1 )ate, etc. 
 
 {Sii^mti/re of lien-holder.) 
 
 (.) See Ont. Act. s 51 , .«y*ra ,,. 17^ : an.l B. C. Ant, s. 2:?, 
 
 ^npra p. 
 
 •28:{. 
 
;3> 
 
 m 
 
 — 
 
INDEX. 
 
 ■ . w, ,• . ,0. (M) and (B.C.) indicate that the paRcs followinK refer to 
 "" ''""o:?a;i;' Manitoba, or I'.riti.h CoUunbia Act. respectwely. 
 
 the 
 
 how' taken, on nummary itulgment, (O.) ^ (B.C.) -Mi. 
 parties entitled 1 notice of taking (O.) 1;>.». 
 ACTION TO ENFOllCK LIEN.-.S-." L.kn-Sa,.e. 
 
 adding lienboldcr as a party, d^-^;) 'fj);- 
 
 amendn.ent of i.iU in, olVect of, (M. ) 23 . 
 
 appeal in, when it lies, (O.) ''''■^'^^^^':^' ^''''"^ 
 
 carriage of proceedings in, (O.) 1 W. m ^- ~'^- ,„.^ 
 
 certiiicate of Ih peudn.. to he registered, (0.) 1 18, U-, IM- ) 
 W8 (13.0 '2S5. 
 
 charge o," pcrcentago, (() ) (11, 62, (58-70, (M.) -21 2. 214 ^ 
 
 ,,.,L,re.nis.^n..How^l^™^^^^ 
 
 eonnnencen.ntof.(U.) m,J2..(^^J^^ percentage, (O.) «2, OS-TO. 
 
 consolidation of. Court .na^oni^! (O ) 162, (M.) 237, (lU.) 277. . 
 
 costs of, (O.) 1... .72 (^M ^^S^ . '^ ) -^' ^ ,„,. (B.C.)278. 
 
 o<.urt in whi.^h to he brought, (O. "1 '- ' ' ^y ' ' ' 
 
 defence in, tin.e for delivering, (O. 40, 14... 
 
 dofon<lant out of juris.Uction, (O.) 44. 
 
 dehciency, judgment to he awardeu for, (O.) 1/0, (M.) -41. 
 
 execution, -^«e KxKoiTioN. ,_^ ^^ .,,,,,, pp,-^ 
 feesofcourtin,(0.)U..6J.. -5 M.^,a^^^^^ 
 
 for.ns of proceedings m ^;) \^' ^'^^^,,,„, (,,,;, o,s..71.. 
 l.ow to he hroughl, (O) 140-1 K>, U^'- > - 
 incun.hrancers, suhse^uent, how as.-ertauied, (O.) 160. 
 iuiunctionin,-.se«lN.'t'NOTioN- 
 j«dg,nentin, when appealable (O. 1 «.(M.2JH. 
 ■' tinal, (O.) 164, (M.) 2.3., 2.W. 
 
 formof,(0.)17(i. 177,(M.)241,24'J. 
 
 See Forms. , 
 
 (311) 
 
312 
 
 Indf.x. 
 
 ACTION TO ENFORCE UKN-Coiit!ni«-<t. 
 
 keeps alive other lions on same property, {(). ) 14.'>, 1 H>. 
 lienhoUlers on saiiio property aeeil not l)e made parties, (O. ) Wt. 14") 
 (M.)-'30. 
 may be let in to prove claims (0.) l.VJ, I")7, (M.) 2'M, •Ilirt 
 
 attend trial (().) l.").'}, I.IS. 
 when entitled to henefit of, (O.) 14"), (M.) 231, (IJ.CJ.) •_*7'», 
 27(i. 
 lis pendens, when to l)e registered, (() ) US, 122, (M.) 22."), 22(i, (ll.C.) 
 
 2S.-). 
 local jiitlge, jurisdiction of, in, (O.) 14.S, (M.) 2;n, 2.S2, 2;{;{. 
 materials, sale of, may he ordered in, (() ) ir)2, (M.) '2'M. 
 moneys reali/.ed in, how applied, (]>.('.) 27(», 2!Sl-2iS;i. 
 mortgagee, prior, against, (0.) 122. 
 
 parties to, (O. ) 143. 
 time for bringing, (O.) 120, 122, I4;{. 
 parties to, (O.) 121, 122, 142-145, (M.) 2.SM, 2,S1, (15.C.) 275, 270. 
 adding, (B.C.) 27(5. 
 
 joinder of, (0.) 14."), (M.) 2.S(», 231, (15. (\) 27.'>, 27(). 
 payments out of court, iiow to he made in, ((). ) 174, 17."), (.\1.) 240. 
 procedure in, (O.) 140-147, (M ) 2;{2-2;W, (1}.C.) 27S. 
 registered lien, time for, (O.) 123-12';, (M.) 22"), 226, (B.C.) 2S4, 2S,'). 
 sale may bo ordered in, (0.) 1">2, (M.) 2;{4, (B.C.) 278. 
 statement of claim in, filing in, (0 ) 140. 
 
 service of, (O.) 140, 143, 144. 
 to be verified by athdavit, (O.) 140, 142. 
 time for bringing, (0.) 118, 110, 123, 120, (M.) 225, (B.C.) 2S4, 2S5. 
 trial of, judges and otficers who may hold, (().) 148, (M.)23l, 232, 
 
 (15.C.) 
 
 rs. 
 
 appointment of day for, (O.) 151, (M.) 233. 
 
 notice of, on whom to be served, (O.) l.">0, KiO. 
 
 procedure at, (O ) 151, l.W, 1.53, (M.) 2.3;i, (B.C.) 27.S, 
 unregistered lien, time for bringing, (O.) lis, 11(», (M.) 225. 
 vacation, whether statement of claim may l)e delivered in, (O. ) 144. 
 writ of summons, dispensed witli in, (().) 140. 
 
 AFFIDAVIT.— .SVe Forms. 
 
 assignee's, verifying claim for registration, (0.) 00, 102, (M.) 221. 
 commissioner may take, (0.) 102. 
 
In DFX. 
 
 3'3 
 
 i") 
 
 .) 
 
 AVVWW IT -Continued. ,,w. .oro 
 
 verifying statement of .:liiini, (0.) UO, 14-2. 
 
 discharge of lien by, «M l'i*>. '^1. (^'•) -i'-'^^ H'-^-) •-'«"'• 
 
 A(illl<:KMKNT TO WAIVE LIKN, 
 
 elVect of, (().). •i",(M-)'-i"'"''('^-^-)-''''^- , „,,.,„ 
 i„,,niry shouM be ma.le as to existence ot, (( ) -0. 
 invalid i>s against persons not p:irties, (().) .{.», W- 
 1st bo in Writing. (O.) IS. U».(M) -206, (IU:.)2(i2. 
 
 ALTKUATION OF I'.UILDINO, 
 
 lienfor, (0.)lS,(M.)2(>»i, (B.C.)2<1'2. 
 
 ^'''''''''' action to enforce liens, in, wl.en it lies, (0.) UU, KiT, (M ) "-W, 238, 
 (M.C.)27S. 
 
 ARCHITHCT, 
 
 when entitled to lien for services, (O. ) 21. 
 
 ASSKINEK, 
 
 of licnhol.ler, rights of, (().,12S,(M.) 225 
 
 alhdavit of. for registration, (O.) "•»>, '"2, (M.) 2-U, ^-l. 
 rights of, (O.) 128, (M.)22H. 
 when bound by a,greeinent to waive lien, (O.) 40. 
 ..owner " when bound by lien. (O.) 12-10, OS, 00, (VI.) 204, 2.)0, 
 
 (l'..C.) 2(52, 203. 
 
 ASSKINMENT, 
 
 of lien must be in writing, (0.) I2S, P20, (M.)220. 
 debt by ('ontratitor, when invalid, (B.C.) 2;.). 
 
 ATTACHMENT OK DEBT, 
 
 eilectof, on lien, (O.) 72,00, (M.) 215. 
 
314 
 
 Indkx. 
 
 ';3 
 
 BUILKR, 
 
 when lien may be claimed for furnishing, (0.) 29. 
 
 ]iUILl)IN(;S.-5'^e LiKN. 
 
 destruction of, etFect of on lien, (O. ) .'lo. 
 
 erection of, lien for, (O ) IS, 19, (M.) '20G, 207, (H C.) 2(i2, 2«.'{. 
 
 municipal, (0.) 30, (M.) 208. 
 
 public, (().);«), (M.) 208. 
 
 removing, no lien for, (O. ) .'{.">, 
 
 tearing down, no lien for, (().). So. 
 
 transfer of to another lot, efTect of, ((). ) 'A^t, '.U>. 
 
 when not subject to lien, (0.) 30. 
 
 CKRTIFICATR— ,S>c Lis Pkni.kns. 
 
 architects', or engineers', production of, when condition precedent, 
 
 (O.) 2r>. 
 
 non production of, when excused, ((►.) 
 25, 2(5. 
 CIIAROK ON PKRCENTACE, 
 
 subcontractor, when entitled to, (().) 60-70, (M.) 212, 21.S, 
 
 duration of, (() ) (il, (18-70, (M.) 214. 
 extent of, (O.) Gd 01, 04, «">, (i8-70. 
 when not entitled to, ((). ) 0.'). 
 suit to enforce, time for bringing, (O. ) (52. 08, 09, 70. 
 wage-earners' priority on, (().) 77-88, (M.) 210-218. 
 CHATTELS.— .SVfi Forms. 
 
 lien on, for work, (O.) 180, (KC.) 2Ki, 284. 
 
 duration of, (O.) 182. 
 possession of, essential to lien, (O. ) 182. 
 
 must be lawful, (O.) 184. 
 sale of, to satisfy lien, authorized, (O.) 180, 184, 18."), (R.C.) 284. 
 
 notice of, to be served and published, (O.) 180, 184, (H.C.) 
 
 284. 
 proceeds, how to be applied, ((>.) 181, IS.'), 180, (H.C.) 284. 
 
 CLAIM OF LIEN.— .SVe Forms- Likn— Rkoistration. 
 
 contents of, (O.) m, 90, (M.) 219, 220, (H.C.) 209, 270. 
 
 when to be registered, (O.) 112, !1.'{, (M.) 22.'}, 224, (B.C.) 209. 
 
 misnon-er of owner, in, effect of, (0.) 100, (M. ) 225. 
 
 [ 
 
Indf.x. 
 
 .^15 
 
 CLASS, 
 
 lien holders of Bunie, who are (O.) Tti. 
 
 how entitled, (().)"•». '»• 
 
 It, 
 
 :•) 
 
 CONSOLIDATION OF ACTIONS, ^, „.,,,,.„ ^ „„ 
 
 Court may order. (O.) irr2. 163. (M.) 2:^MaC.) 277. 
 
 CONTHACT.— Sfift CoNTBACTon. 
 
 acoeptanec of i.nperfeot performance of. (O.) 23. 
 
 certiHcate of architect, or ent^meer. (O ) 2... r ,.. . ok 
 
 ''*"^*'' n<m-pioduction of, (O.) ^»' 
 
 aeviationfrom,e«ectof,(^^^.^24.^^^^^^^^^^^ 
 
 ,n,shand. when l>e may hind -He's ostate. (O.) !., 10. .3S. 
 
 imperfect performance of, (O.) 23, --^. '«' " ' 
 imposaihle of performance, ctlect of, (O.) -.*. 
 
 lunatic, not ahle to make, (O.) ".». 
 
 n,imn-. not able to make, (0.);.>. 
 
 ,nn«t he binding on " owner, (( • «, ••. 1 • 
 
 order for inspection of, hy hcnholder, (O ) ... 
 
 _r.,lienholdermayden^l..^^^^ , 
 
 owner falsely statin, term, of, li;'>^nty for (O.) i:j7..3H^ (M.) 229. 
 statement an to, when L. be filed by contractor, (U.C.) -2. 
 time for performance, waiver of (O.) '-3. 
 trustee, making, binds trust estate, (O.) 10. 
 
 wife when bound by husband's, (0.) 0, 10, .18. 
 :av;nIlien,etlectof,(O.)17.l8.2.,.30,A0,(M.)'m 
 
 work under, not done on land, (0.) 20. 
 CONTRACTOR.-^- Contkact-L.kn- Shb-Contbactok 
 
 assignee of, how far bound by agreen^ent to waive hen, (O. ) 40. 
 
 assignment by, when invalid, (B C. ) 2/... 
 definitionof,(0.)4,;-5,(UM.)2<'3. aU.)2.'-,l). 
 
 dismissal of, (0.) 3.). /r» \ 'if, 
 
 sub-contractor fimshmg work on, (0.).i.>. 
 
 goods supplied to, on running account, lien for, (O.) 1 15, 1 lb. 
 
 lien, right of, to, (O.) 18, 19. 
 
316 
 
 Index 
 
 lit 
 
 
 CONTRAV/Vini-^ContmiwI. 
 
 amount for which it may he olainieil, (O. ) "kS. 
 
 costs of (liscliarginj^, liahility for, (O.) 173, (M.) 240. 
 materials furnisluul by, exempt from execution, (0.) !M), 03, id, 
 particulars of contract, when to l)c filed l)y, (l>.(^.) *27-. 
 payments l)y, to sub-coMtractors, elFect of, (O.) 01, 0"», 70 7-, (M.) 
 
 212-215. 
 payments to, by owner, (]5.C.)27>. 
 pay roll receipted, when to be posted, (M.CJ.) 274. 
 personal representative of, how far bound by agreement to waive 
 lien, (O.) 40. 
 
 CORPORATION, 
 
 foreign unlicensed, right of, to lien, (M.) 20.'). 
 may claim lien, (().) 5, 20. 
 
 COSTS, 
 
 api)ortionmeut of, (O ) Hi!), 170, 171, 172, (M.) 2:W, 2.Si). 
 fees payable on proceedings in, ((). ) 1(17, l<»S, Kii), 170, 171. 
 limit of, in lien action, (0 ) Hil)172, (M.) 23.S, 2:i!», (U C.) 27S, 280. 
 of action to enforce lien, (0.) 140, I.IO, 100, 174, (.M.) 2.38-241, (R.C.) 
 278. 
 motion to restrain removal of materials (() ) 00, (\l ) 2IS. 
 registering discharge of lien, (O.) 100, 17.3, (M.)240. 
 
 lien, recoverable in action, (O. ) 173, (M.) 240. 
 owner, when liable to pay, (B.C.) 280. 
 
 COUNTY COURT, 
 
 jurisdiction of, in lien actions, (B.C.) 278. 
 
 taken away, (0.) 140, 141. 
 Judges of, may make flules, (B.C.) 2.S0. 
 
 try lien actions, (O.) 14S. 
 
 vacate liens (().) 120, 1.30, (M.) 127. 
 
 COUNTY JUDCK.— S.'c Local Judce. 
 
 CREDIT, 
 
 effect of, on time for bringing action to enforce lien, (O.) 123, 125, 
 127. 
 
 
Index. 
 
 3' 7 
 
 
 C\iV.\nT.-ConHmu<l. 
 
 perioa of, to ho .Utea in rc.«..U.re. . p^ 
 oftcotof not Htat.nj^U, (().)-.. 
 time for bringing action, v a.n gncn, (U.) 1-^ 
 
 DKATIi, 
 
 •„,,i„,.l„...l.r,U.n„...c...o„cr.o,„a ,.,.-»«■- I"" '■''■ '*'■' 
 
 r)lS(;HAR(JK OF LIKN.-Sc. Fohms. 
 
 application for, (O.) LW. -i-. (•^'•) ^ , .^^^ 
 
 4 - f .-...riHterinu. how home, (O.) Ut'.t, U-S V-"-) 
 costs of •-« «*^;" >-, ,^ .,.,.,, ,27. (H.C.) '2S(1. 
 how ctloetca, (U.) I-.'. V'"-' ' 
 
 n.otion for, (o.)l■^•■^':^M^ •;-;,; ,,, 
 
 ,egistration o' receipt. ^"•; •'•^•- .^, ' 'j^ " .,,7, (li.C.) •27'.). 'iSO. 
 80C«rity,n,ayherc..,mrcuon,(0.)«^-'.^ 
 
 DIVISION COUHT, ,<» n un 141 
 
 3ur.saiction of, to enforce Uen. taken away (O.) HO. Ul. 
 
 DOWER, 
 
 when homul y)y lien, (O.) 8. 
 
 DRAINS, 
 
 lien for constructing, (O.) lb. 
 ENFORCING LIEN.-.SVC AOT.ON TO KNKOKO. L.KN. 
 
 ESlOPi 15L, 
 
 .. owner," when bouml hy, (0.) 1-, l-^- 
 
 '"•^'^T-tucr. wL he n,.y e„fo„o d.i„. l-y. (0.) HO, 177, (M., --M., 
 
 when suspended, (0.) 177. 
 ,*riaU. when oxe,n„t fro,. W».0»,iH. 
 exempted from, (O.) .H. 
 
3t8 
 
 Indkx. 
 
 m 
 
 •19 
 
 FKES OF couirr, 
 
 in action to enforce liens, (O.) 107, HKS, 175, (M.) 241, (B.C.) l'7S. 
 
 FEE SIMPLE, 
 
 how bound, under contract witli lessee, ((.),) 11, 4!), .')0, (M.) 'JOil. 
 instantaneous seizin of, ed'ect of, (0 ) \'A. 
 
 FENCES, 
 
 lieu can be elaimed for, (0.) IS, 1!), -J!). 
 
 FORMS, 
 
 affidavit verifying claim for registration, (0.) 190, (M.) 247. 
 
 commencing actirtn, ((). ) l!)l, (M.) 24S. 
 account by, owner, ((). ) 1!)4, (M.j'J")!. 
 claim of lienlioldcr not a party, (').) 107 
 discharge of lien. (O.) •-!!).■). 
 authorized by Act (O.) 17S, (M.) 242, (IJ. (J.) 2!tU, 2!»l. 
 certiCicate of i'i>; pciidi'm, (O.) 1!)1, (M.) 24S. 
 vacating lieu, (O.) 202, (M.) 257. 
 chattels, notice of sale of, .■«07 
 claim of charge on jierccntagc, (() ) liM4. 
 
 claim of lien, for registration, (().) 1S7, ISH, (M.) 214, (1! (' ) 2!t(t. 
 for wages, for registration, ((). ) ISS, IS'.), (M ) 245. 
 
 by several, (O.) iNi), (M.) 24(1. 
 atlidavit verifying, (O.) 100, (M.) 247. 
 
 on conunencing action, (M.)24S. 
 defence, (O.) 102, VXi, (M ) 240, 250. 
 demand of terms of contract, (O. )204. 
 discharge of lien, receipt for, (().)2!);}. 
 
 aliidavit verifying, (().) 2i»;?. 
 certificate for, lO.) 202, (M^) 257. 
 injunction, interlocutory, ((>.) 805. 
 
 })erpetual, (O. ) ,S05. 
 judgment in lien action, (0.) lOS'Jdl, (M.) 254-257 
 lienholder's statement of account, ((). ) 100, (M.) 25.'{ 
 lis pendnim, certificate of, (O.) 101, (M.) 24S. 
 notice of sale of chattels, 807. 
 
 trial of lien action, (O.) 105, (M.) 252. 
 
Index. 
 
 319 
 
 KO RM S— OV«U*"'e(i 
 
 order,— see Injunction. 
 
 vacating lien, (O.) 'M). ,m , ,r, 
 
 owner, alli.lavit of, verifying aoc-.unt, (O.) 1!)4, (M.) -ol- 
 particulars of work to be filed, (l'..C.) '^'M. 
 pay-roll, (U.C. )-".•!. 
 rcceipl in discharge of lien, (O.^ •-.).,. 
 .eheclulc of, to Act, (O.) 1«7, ^02, (M.) f -•^' «' ''.h. -•'"' -"• 
 
 statement of clain. in action by -"^''^f "-'/^^ '""l"^. .,, 
 
 sub- contractor, (O.) 300-.iU4. 
 
 f jr charge on percentage, (O ) :^04. 
 
 relief against prior mortgagee, (O.) 303. 
 licnholder not a party, of, (O.) liMi, (M.) 2r)3. 
 
 atlidavit verifying (O.) 1U7, (M.) 253. 
 
 defence, (O.) V.)-2, H)3. 
 
 work to be done, to be liled by owner, or contractor, 
 
 (i;.C ) 'J'.tl. 
 
 FUTURK ADVANCES, 
 
 mortgage to secure, ell'ect of, (O.) 15, .)'2. 
 
 kurna(;k, 
 
 wlien lien may be claimed for, ((>.)•-!!'. 
 
 (iOVKRNMKNT AiiKNT, 
 
 rogi.trali..n of lien witb, (lU!.) ^So, -iSC. 
 transmission by. of liens to Land Registry, .H.C .) -S8. 
 
 (HIADINO, 
 
 lien for, (0.) 'it:. 
 
 IIAULINC, 
 
 lienfor, (().)-2S. 
 
 IllUll COUUT.-.S'" Action n. Knkorck Likn-Fokms. 
 enforcing lien in, (O.) HO, 141. 
 
 HOlSTlNti, 
 
 lien for, (0.) '2S. 
 
520 
 
 Indkx. 
 
 HUSIUNl) AND WIFK. -.Sfifi Dowkr. 
 
 wife's interest wiieii limiiid by contract witii husbuntl, (O.) !», 10. 
 
 INCUMBRANCKKS, 
 
 iiow made psirties to action to enforce lien, (() ) Mil. 
 notice of trial to l>e served on, (O.) I5!l, Mil. 
 prior, vvlien to he made parties, (O.) 101, l(i"2 
 
 INJUNCTION.— .Vet Kokms. 
 
 restraining the removal of buildings, etc., (O. ) ilO. (M.) "JIS. 
 
 by whom granted, {O.) !)•), 
 (M.)-JKS, (U.C.)'J73/274. 
 INSURANCK, 
 
 proceeds of, when sul)ject to lien, (O. ) 51), 57. 
 
 INSTANTANKOUS SKIZIN, 
 
 owner having, ellcct of on lien, (O ) I'.i. 
 
 INTEKPRKTATION or WORDS, 
 
 Rrilish Colund)ia Act. •_»:>!», "JOO. 
 Manitoba Act, •_'(!;{, -JO.'), lM.S. 
 Ontario Act, 4-17. 
 
 •lUlXjIK. — See Citi'NTY CouKT — L(m;ai. .Ii :im;i.. 
 
 •lUlXiMKNT -■SV. FoKMs. 
 
 LA15()URKR.-.S'((: \Va.;ks. 
 
 definition of, (RC. ) -iOO. 
 
 payment of, wiien to i)u [)rovcd by contractor, or sub-contractor, 
 
 (I5.C.)'274. 
 right of, to lien, (O.) IS, (M.) -JOli, (R t'.) 'Jlil, 'iCiJ Jti.S, '.'(il, -JSl. 
 
 LAND. — St'e Dowbh — Hu.siiani> and Wikk— -.kaskikm.i) — Likn— Salk. 
 bound by hen, (O.) IS H), '_")-:{(J, (.\1.) iiO(i •-'0!», {\',.C ) •2(\'>, 'JC.;! 
 railway, when bound by lien, (O.) IS-1!», .'{((-lU, (1>.(; ) '-'(iJ, 'Jli.'i. 
 when free from liability to lien, (O.) "_'!», 30, (!5.C.) •J<i4. 
 
 LANDLORD, 
 
 interest of, when not bound by lien, (O.) 7, X, 4!l, .lO, (M ) 2m, (15. C.) 
 2G5, 2«)7,'2(ib. 
 
Index. 
 
 321 
 
 74. 
 
 or, 
 
 1) 
 
 LEASKHOLD, 
 
 lien on, (O.) 41, 4!), (M.) 201), (B.C.) 'iOS, '2(i7, 2(J8. 
 purchaser of, to lie deemed assignee, (B.C.) 2H1. 
 
 LKSSOU, 
 
 interest of, how bound on contracl with lessee, (<).) 41, 4i>, jIO, (M.) 
 20}), (B.C.) 205, 207, 208 
 
 LIEN. — See Action to Enforce Likn— Exkci'tion- -Fohms— Lienholkkks. 
 action, to enforce, unregistered, time for, (0.) 11!), 119, (M.) 22;). 
 
 registered, time for, (0.) 123-120, (M )225, (B.C.) 
 
 2S4. 
 other lien-holders entitled to benefit of, ((). ) 140, 
 14.-)-147, (M.) 2.S0, 2,S1, (B.C.) 275, 270. 
 agreement to wai/e, etle(;t of, (O.) .S!), (M.) 205, (B.C.) 202. 
 
 must be in writing, (O.) IS, 10, (M.) 200, (B.C.) 
 
 202. 
 wlio bound by, (().) ;{'.), 40, (M.) 20."), (B.C.)262. 
 amount for which it may l)c claimed, (().) ll)-.'{(i, 'A~, 58, 5!), 00, (M.) 
 
 207, 20H, 211, 212, (B.C.) 20.S, 200. 
 architect, when entitled to, (().) 21. 
 ari.sing l)efore Ad, (t). ) 170. 
 
 assignment of, (O.) I2.S, 120, (M.) 220, (B.C.) 273. 
 binds land only, on wiiich worU done, (O.) 47. 
 building, on, (().) IS, 10, 35, 30. 
 
 removed or destroyed, etl'ect of on, (O. ) 35, 36. 
 when not liable to, (O. ) 30. 
 cancellation of, — sec infra, discharge of. 
 cesser of, (O.) 118, 12.3, 124, 125, 127, (M.) 225. 
 chattels, en, nature of, (O. ) bSl. 
 
 arises only under contract, ((). ) IS4. 
 contrary to contract, mine, (O.) 1S3. 
 credit, ed'ect of on, (O. ) 1.S3. 
 duration of, (O.) 1H2, |K3. 
 general, wliat is, (<). ) 1>S1. 
 
 mechanics entitled to, (().) 170, (B.C.) 2S3, 284. 
 particular, what is, (O. ) 181. 
 parting with possession, cll'cct of on, (O. ) 1H2. 
 possession essential to, (O. ) 182. 
 21 must lie lawful, (0.) 184. 
 
322 
 
 Index. 
 
 .^ 
 
 LIEN — Continued. 
 
 chattels on— Confmnttl. 
 
 sale, to satisfy, authorized, (0.) 180, 184, 185, (B.C.) •_'S4, 
 notice of, (O.) ISO, ISj, (!}.(;.) •_'S4. 
 how to be advertised, (().) ISO, 185, 
 
 (li.C.) 2S4. 
 proceeds, how to be appliud, ((),) I8i, 
 
 185, 18(i, (B.C.) •_'.S4. 
 vendor cannot purchase at, (0.) 185. 
 security, eflect of taking, on, (O.) 184. 
 claim of, for registration, (0.) !»7, !)(}, (M.) ■_'!!), '220, (B.C.) 2m, 210. 
 
 defects in, (O.) lO.'MO,"), (M.)>J22, (B,C.)-J71. 
 form of, — .see Forms. 
 
 verification of, (O.j 96, 101, 10l>, (M.) -J-JO, 
 •221, (B.C,)2()!>, 270, 27:{. 
 when to be registered, (O.) 112, I!:i, (M.)223, 224,(i!.(-.)2(i!». 
 classes of, (0.) 6, Hi, 77, — see ivj'ia, same class, 
 commencement of work, Iiow far essential to, (O. ) .'}4, 'A'), (M .) 207. 
 contract must be binding on '"owner," (O. ) H, !) 
 
 waiving lien, effect of, (O.) 17, IS, 30, (M.) '205, (B.C.) '2()2. 
 contractor's, extent of, (O.) 21, (M.) 20!), (li.C.) '2(52. 
 
 when contract witli diil'crent owners, (() ) 4S. 
 (orporation may jlaim, (O.) 21, (M.) 204, 205. 
 coat of registering, recoverable, (0.) 173, (M.) 24U. 
 
 discharge, how borne, (O ) 173, (M.) 240. 
 County Court,— sec County Coukt. 
 court house, on, (O.) 30, (M.) '208. 
 
 credit, giving, effect of on, (().), 1,32 1.36 (M.) '227, (B.C.) 285 
 date at wliich it commences, (0.) 34, 
 death of person entitled to, effect of, (().) 12S, (M.) 226. 
 discharge of, (O.) 1'2!), 1.30, (M ) '.'2t), '227, (B.C.) 270, 2S0, 2S(). 
 
 how effected, (O.) 120, (M.) 2'26, 227, (li.C.) 270, 2S0. 
 dowress, when bound by, (0.) S. 
 
 duration of, (O.) 118.1'27, (M.) '225, "i'JO, (B.C.) '2S4, 285. 
 employment, entitling to, (0) 34. 
 enforcing, — see Action to Knkokck Likn. 
 
 estate or interest, cliarged by, (O.) 41, 42, 43, 44, (M.) 20!l, 210, 
 (B.C.) 263. 
 
Indkx. 
 
 210, 
 
 LIKN — Conlinucd. 
 
 execution,— see KXECITION. ,,.,,, o<.o .x-o 
 
 extent of lan.l, subject to, (O ) 47, 4S. 4!». (M.)_^'0!), (1M:.) 202, 2<.3. 
 
 goods supplied on running account, for, (0.) 11/. 
 
 imperfect performance of contract, elFect of on, (O.) -'-', (M.) -1 / ■ 
 
 increased selling value, on, (t).) 42, ry.i, (M. ) ".iOU, ,IJ.('.) 2(17. 
 
 injunction,— see In.iusction. 
 
 instantaneous seizin, eflect of, on, (0.) \<i. 
 
 insurable, (0.) 36. \i n >ii 
 
 insurance money, when bound by, (0.) oG, 57, (M.) -10, -M. 
 interest, boumrby. (O.) 7, S, '.., 10, 41, 44, (M.) 200, 210. (H.C.) 20.i. 
 labourer, when entitled to, (li.C.) 2()1, 2(i2. 
 
 land, on, (O. ) IS, 10, 20, .S.l, :{.i, 47, (M. ) 200-210, (U.C. ) 2(i2-2(.6. 268. 
 sale of, in execution, etlect of, (0. ) 30. 
 when exempt from, (0. ) 20, IV), { B.C. ) 2(34. 
 leasehold, liability to, (0)41, (M.) 200. 
 
 lessor's interest, when bound by, (O. ) 41, 40, 50, (M. ) 20!», ( 1..C.) 205. 
 lien-holder, -se,' I.ikn-Hoi.deks. 
 lunatic, none against land of, (O.) 0. 
 married women, on lands of, (0.) .3S. 
 
 n.aterials, may be claimed for, (().) IS, 10, 20, 27, (M.) 200, 207. 
 not be claimed, for, (li.C.) 204, 2(i5. 
 incorporation of, in building, when ucces.sary, (O. 
 ;')<», 51. 
 minor, none against land of, (O. ) 0. 
 
 may atMiuire, (O ) 20. 
 mortgaged land, on, (0.)42, 51, 52, .53, (M.)2..0, (15.0 206,207. 
 mortmain, — see Mortmain Act. 
 motion to vacate, 07, OS. 
 
 municipal buildings, how far liable to, (O.) 30, (M.) 2(IS. 
 nature of, (O. ) IS, ( M. I 200-200, ( B.C. ) 202. ^ 
 
 " owner's " interest in land only bound by, (O.) /, 0, 41, (M.) -U.», 
 
 (BC.)20;{. 
 assignees of, how far bound by, (O.) 12-Ui. 
 payments under contract, how far discharge of, (0.) 61-72, (M. 
 215. 
 wrongful, by " owner," eilect of, (0.) 65. 
 persons entitled to, (O. ) 20, (M.) 20(5, (B.C.) 262, 263, 264. 
 
 27, 
 
 21-2 
 
3*4 
 
 Index. 
 
 .1*1 
 
 LI EN — CoiU inutd. 
 
 pre-emption, right of, may be bound by, (O. ) 44. 
 
 preferential claim, is, (O. ) h^, 
 
 prior mortgagee, interest of, how far bound by, (O. ) 42, 51, C2, (M.) 
 209, 210, (B.C.) 267. 
 
 priority of, — nee Pkiohit\. 
 
 proceedings to enforce, (O.) 140. 
 
 time for, where lien not registered, (0.) 11 S, 
 11!), 12;j, (M.)225 
 
 registered, (O.) 12;i, 126, (iM.) 225, 22(), 
 (B.C.)284, 2S5. 
 
 — sec Action to Enkokck Lien. 
 
 promissory note, taking, effect of, on, (0.) 1:^2, 13.'1, (M.) 227. 
 
 property affected by, (().) 41, (M.) 206, 207, (B.C.) 262. 
 
 not to be removed, (O.) !)0, !)1, (M.) 218, 
 (B.C.) 27;^, 274. 
 
 public buildings, on, (O.) »), HI, .T2, ;W, (M.) 208. 
 purchaser, interest of, when bound by lien, (O.) 8, 72, 75, (M.) 210. 
 railway lands, on, (O.) IS, ]<>, SO-.'U, 45, 46, 186, (M. ) 221, (B.C.) 264. 
 realization of, (0.) 140, (M.) 220, 230, (B.C.) 276, 270. 
 registered, time for bringing action to enforce, (O.) 123, 126, (M.) 
 225, 226, (B.C.) 284, 285. 
 cancellation of, (().) 120, 130, (M.) 226, 227, (B.C.) 286. 
 when it ceases, (0.) 123-127, (M.)225, 22(i, (B.C.) 284, 285. 
 registration of, (0.) 0."), 112-118, (.\1.) 210 221, (B.C.) 260-271. 
 
 annulling, (0.) 129, 130, 132, (M.) 227, (B.C.) 279. 
 mode of, (().) 95, 96, (M.) 219, 221, (B.C.) 269, 270. 
 necessary to secure priority,— .set Kiicii.sTKATioN. 
 
 particulars for, (0.) 95-102, (M.) 219-221, (B.C.) 269, 
 270. 
 
 time for, (O.) 112-116, (M.)223, (15. C.) 269. 
 ReniHtry Act, how it affects, (0.) 107, HI, (M.) 223. 
 relates back to commencement of work, (().) 35. 
 remedying defects in work, effect of in, (O.) 116, 117. 
 removal of property affected by, — .set In,i unction. 
 sale of property subject to, under execution, (O. ) 36. 
 same class, of, iiow entitled, (O. ) 76, 77. 
 pchools, public, on. (() ) ,30, (M.) 208. 
 security for, on vacating, (O.) 129, (M.) 227, (B.C.) 270. 
 taking, effect of, on, (().) 115, 132- 135, (M.)227. 
 
Indkx 
 
 325 
 
 LIKN — Continued. 
 
 separate Imildinga, for, on distinct parcels, (0.) 4S. 
 
 several, how to rank, ((). ) 7(», 77. 
 
 statutes, former, aflfecting, (() ) 2, 3, (Al.) '242, 243, (B.C) 28J». 
 
 statutory riglit, is a, (O. ) .'{, (IJ.C.) 271. 
 
 sub-contractor, entitled to, (().) (i, IS, 1!), (M.) 206, 207, (B.C.) 262. 
 
 delinition of, (0.) (>, (M.) 20.'^, (15.C.) 260. 
 
 right of, to register, considered objectionable, (0.)21. 
 
 where contractor he claims under, is in 
 
 default to owner, (M.) 211. 
 
 8ubse()uent incumbrancer, gaining priority to, by registration, (O.) 
 
 Hi, 14, 08, 00. 
 
 unregistered, when it ceases, (O.) 118, 110, (M.) 225. 
 
 time for enforcing, (().) 118, 110, (M.) 225. 
 
 vacating, (0.) 120, 130, (M.) 227. 
 
 on giving security, (O. ) 12J), (M.) 227. 
 
 payment into Court, (0.) 120, 130, (M.) 227. 
 
 wages, for, devices to defeat, void, (U. ) 70. 
 
 registration of, (O.) 113, 117, (M.) 223, 224, (B.C.) 269. 
 
 several may be combined, (0.) 102, 103, (M.) 221. 
 
 waiver of, by taking security, (O. ) 115. 
 
 " agreement, (O.) 17, IS, (M.) 205, (B.C.) 262. 
 
 effect of, (O.) 17-20, 30, 40, (M.) 205, (B.C.) 
 262. 
 
 must be in writing, (O ) 18, 10, (M.) 206, 
 (H.C.)2(i2. 
 work, for wiiich it may be claimed, (O.) IS, 10, 22-20, (M.) 206-208, 
 (H.C;.PJtJ2, 263, 264. 
 done partly on land of "owner" and partly on land to which 
 
 lie has no title, (0.) 4S, 
 need not be done on land, (O. ) 26. 
 performance of, resjuisite to right of lien, (O.) 22. 
 registration of lien for, (().) U'A, 118, (M.) 219-221, (B.C.) 269- 
 271. 
 
 LIKN HOLUERS.— Se« Action to Knforck Lien— Contractok— Lien — 
 
 Sr 1!-C()NTKA(!T0R. 
 
 action by, to be for benefit of othern, (O.) 145, (M.) 231, (B.C.) 275, 
 276. 
 several may join, (O.) 145, (M.) 231, (B.C.) 275. 
 
326 
 
 Index. 
 
 
 LIEN- HOLDERS— Con/mw«/. 
 
 ugrecinent by, to waive lien, effect of, (O.) 17, 39, (M.) 205, (B.C.) 
 
 •J6-2. 
 must be in writing, (O ) IS, 1!(, (M. ) 
 
 •200, (B.C )2G-2. 
 assignment by, (O.) 128, (M.) 220. 
 
 must he in writing, (O.) 12.S, (M.) 220. 
 attachii.^ creditor, right of, as against, (O. ) 72, 99,) AI.) 215. 
 attendance of, at trial, (O.) 153, (M.) 2;^, 230. 
 charge on price, — me Ciiaroe on I'krckntahk. 
 classes of, how ascertained, (O.) 70, 77. 
 
 contract, owner's, right of, to inspect, (0.) 737, (M.) 228, 229. 
 death of, rights of personal rei)resentatives, (O. ) 128, (M.) 220, 
 
 (B.C.) 273. 
 employment of, entitling to lien, (0.) 34. 
 
 notice of trial to be served on, (O.) 140, 159, 100, (M.) 2.30, 230. 
 notice to, of prior unregistered claims, effect of, (O. ) 111. 
 owner may be required to give information as to contract, etc., 
 
 to, (0.) 137, (M.) 228, 229. 
 priority of, — see Priokity. 
 
 registered, rights of, (O. ) 107-109, (M.) 223. — wc RKmsTRATiON. 
 sale by, of chattels, subject to lien, (().) 179, 180, 184. 185, (B.C.) 
 
 284. 
 » cannot purchase at, (0.) 185. 
 
 proceeds, how to be applied, (O.) 181, 185, 180, 
 (B.C.) 284. 
 unregistered, rights of, \<).) 118 12.3, (M.) 22.5. 
 wages, for, rights of, (O. ) 17, 77-88, (M. ) 210-218, (B.C.) 2(11,204, 282. 
 
 priority of, (O.) 77-88, (M.) 210-218, (B.C.) 282. 
 waiver, by, (().) 17. 
 work, for, commencement of, (O. ) 34, .35. 
 
 LICHTNINO ROD, 
 
 whether lien can be claimed for, (O ) 29. 
 
 LIS PENDMNS.—See Form.s. 
 
 certifioate of, when to be registered, (().) 02, 118, 122, 123, 124, 
 127, (M.) 214, 225, 220, (B.C.) 285. 
 
lNr)KX. 
 
 327 
 
 <i, 
 
 Hi, 
 
 S2. 
 
 24, 
 
 L/.S' PENDENS- ConUniml. 
 
 certiticute of, how issued, (<).) 12*2. 
 
 signed and verified for registralioii, (<). ) 122. 
 registration of, (O.) 12;^, (M.) 214, 225, 226, (B.C.) 
 
 28.5, 
 form of, — we Forms. 
 
 LOCAL -JUIMiK, 
 
 jurisdiction of, to try actions to enforce liens, (M.) 2.S2, 2H."}. 
 rc({iii8ition for clieques, may be made by, (M.) 240. 
 
 LUNATIC, 
 
 unable to contract, ((). ) \). 
 
 MrVEAN v. TIFFIN, 
 
 difliculty in reconciling with .Statute, (O. ) 15. 
 
 how rnconcileal)ln witii Mak'ms v. Ilohinxoii, (O. ) 14. 
 
 MANITOBA ACT, 
 
 liens arising before, ( M. ) 242. 
 
 repeal of former Statutes by, ( M. ) 242, 24.'{. 
 
 time of taking etl'eot, (iM.) 24.3. 
 
 MAUillKl) WOMAN. 
 
 interest of, when bound by contract of iiusband, (O. ) 9, 10. 
 
 M AT K RIAL MKN, 
 
 rights of, JH/(;>- w, (O.) 27. 
 
 MATERIALS.— 5fie In.jun(;tion— Li KN. 
 definition of, (O.) 5, (M.) 20."). 
 execution, exempted from, when, (O ) 90, 9."?, 94. 
 inenrporation of, in building, how far necessary, (0.) 27, 50, 51. 
 lien may be claimed for, (O.) 18, 19, 26, 27, (M.) 206, 207, 218. 
 
 not be claimed for, (U.C. ) 2W, 271. 
 registration of lien for, (O ) 11.3, 115-117, (M.) 223. 
 removal of, to prejudice of lien, forbidden, (O.) 90, 91, (M.) 218. 
 unsuitable, famished, but not used, no lien for, (0. ) 27. 
 
 MK(^HANIC. — Sff. CiiATTKr^s— LiKN— LiknHdldkrs. 
 
 right of, to lien, (O.) IS, 19, (M.) 206, 207, {B.C.) 262, 26a. 
 
328 
 
 Index. 
 
 MINOR. 
 
 may claim lien, (O. ) 20 
 
 unable to contract so as to binil liia own estate, (O, ) i). 
 
 MORTOAGE — -Sr.'fi MoRTOA(iKK. ^ , - 
 
 future advances, to secure, effect of, (O. ) 15, l(i. 
 prior, how affe.itod by lien, (O.) 42, 51, r)2, (M.) 2()9, 210, (B.C.)2(;G, 
 267. 
 
 MORT(JA(JEK.— S^re MoRTOAfiK. 
 prior, meaning of, (().)i)l. 
 
 actual notice to, of lien, eH'cct of, (O. ) ri2. 
 
 landlord leasing with right to purchase, not to be treated as, 
 
 (0.)5(J. 
 parties to action to enforce lien against, (O.) 55. 
 payments by owner, how trj bo credited against, (O. ) .W. 
 priorities of lien-holders, as a gainst, (O.) 42, ')li-r)6, (M.) 209, 
 
 210, (B.C.)2(i(i, 267. 
 rights of lien-holders, as against, (0.) 42, .51-56, (M ) 20!», 210, 
 
 (B.C.) 266, 207. 
 time for bringing action against, (0.) .').'). 
 subsequent, right of lien-holder as against, (O. ) 12-16. 
 
 MORTMAIN ACT, 
 
 devise to pay mechanic's lien, is subject to, (O. ) 44. 
 
 N()TICE.-5re<' Forms. 
 
 of lien, actual, effect of, on prior registration, (0.) 15. 
 
 subcontractor, to give, (0.) 61, 62, 67, (M.) 213, 214. 
 prior claim, to lien-holder, effect of, on lien, (0.) 62. 
 sale of chattels, — see Korms, 
 
 OWNER.— 5ft'' Contract— Lien. 
 accepting work, (O.) 2.S. 
 
 subject to remedying defect, (O. ) 116, 117. 
 assignees of, right of lien-holder against. (0.) 12-16, 100, (M.) 204, 
 209, 219, 220. 
 how far bound by lien, (O.) 12, 1.3. 
 prior registration of claim of, (O.) 13, 14, 109, 114. 
 
 ^ 
 
r 
 
 Index. 
 
 329 
 
 IVM, 
 
 as, 
 
 20», 
 210, 
 
 204, 
 
 OWNER— Continue*/. 
 
 coiiaentof, when necessary, (O. ) 4, ft, 11, (M.) 204, (B.('. ) 260. 
 
 presumed, (K.C.)26S. 
 contract, right to proper performance of, ((). ) 22, 23, 24. 
 
 default in performance of, effect on liability of, (O. ) 22, 2.S, 
 
 24. 
 disclosure of to lien holder, {().) I.'JTISO. (M.) 228, 22!». 
 order to produce to lien-holder, (<).) ISO, (M.) 220. 
 costs, when he may be ordered to pay, (B.C.) 280, 281. 
 counter-claim, when he may not set up, (H.C ) 275. 
 deKnition of term, (O. ) 4, 7, 10, 1 1 , ( M. ) 204, ( B.(J. ) 200. 
 does not warrant that work can be done according to plans, (0.) 23. 
 estoppel of, (O.) 11. 12, 44, (B.C.) 207, 2(iS. 
 includes persons claiming under him, ((). ) 5, 7, 12-10, (.VI.) 'HU, 200, 
 
 (B.C.) 260. 
 interest of, alone bound, (O. ) 7, 41, (M.) 200, ( B.C.) 26.S. 
 instantaneous seixin, of, ((). ) 13. 
 
 liability of, extent of, (0.) 5.S. r>0, (M. ) 21 1, (B.C. ) 266. 
 lien cannot be claimed by, in competition with lien-holders, ((). ) 21. 
 notice to, of lien of sub-contractor, (O. ) 61, 62, 67, ( M. ) 213, 214. 
 
 work being done, effect of, (B.C.) 267, 268. 
 payments by, to contract<jr, eflfect of, (0.) 61, (»2, 65-70, (M.)213,2I4. 
 sub-contractor, effect of, (O.) 61, (i2, 65-70, (.M ) 
 21.3, 214. 
 when authorized, (O.) 61, 62, 65-72, 
 (M.) 21.3, 214. 
 percentage of price, to be retained, (O.) 60, (il, (M.) 212, 213. 
 
 retention, how far compulsory, (O. ) 62. 
 possession by, effect of, where contract imperfectly executed, (O.) 
 
 22, 23. 
 price to be paid by, charge on, in favour of aub-contractor, (O.) 60, 
 
 61,64,65. 
 privity of, to contract, necessary, (O.) 4, 11, (M.) 204, (B.C.) 260. 
 setoff, when he may not set up, (B.C.) 275. 
 
 sub-contractor's claim against, limited, (().) .50, (VI.) 212, (B.C.) 263, 
 
 266. 
 payment of, by, (O.) 70-72, (M.) 214, 215. 
 waiving conditions as to time, (O. ) 23. 
 
33° 
 
 Indrx. 
 
 
 ^91 
 
 I 
 
 ■• 
 
 r*. 
 
 Ml 
 
 I 
 
 PARTIK8 TO ACTIONS TO KNFOKCK LIKNS.— ^<ffie Action to Knfokck 
 Lien. 
 
 adding, (B.C.) 270. 
 
 defendants, original, who should Itc made, (O.) 140, 142, 14:{, (M.) 
 
 plainiills, (O.) 142, 14r., 14(5, (M.) 231. 
 
 I'AYMKNT, 
 
 hy owner, validity of, (O.) (50, (51, (12, 65, (ifi, 70, SS, (M.) 21.'}, 214. 
 into vJourt, etFect of, (O.) Hit, inO. 
 contractor, validity of, (().) (50, (51, (12, ().'>, 60, 70, HS, (M.) 214, 
 (H.C.)274. 
 under timher, or log contract, (H.C. ) 28(5, 287. 
 eub contractor, validity of, (O. )(><), (51, (52, (ir>, (i(i, 88, (M.) 214, 
 (B.C.)274. 
 
 PAY-ROLL, 
 
 loceipted, to be posted on works, {1{.C. ) 274. 
 
 woodnians' wages, for, (15C.) 28(i, 287. 
 
 perc;knta(}K, 
 
 to be retained, (O.) GO, (51, (M.) 212, 21.3. 
 
 sub-contractors' riglits in, (0.) (iO, 01, , (54, 05, 
 
 77, 78, (M.) 213, 217. 
 
 PERSON, 
 
 definition of, (0.) 5, 16, (M.) 204-20.'). 
 
 POSSESSION.— .SV CiiATTKLs- Owner. 
 
 PERSONAL REPRESENTATIVE, 
 
 agreement to waive lien, when bonn;! by, (0.) 40. 
 
 of deceased lien-holder, entitled to lien, (O.) 128, (M.) 220, (U.C.) 273. 
 
 PREEMPTION. 
 
 right of, may be bound by lien, (0.) 44. 
 
 PRICE TO BE PAID BY "OWNER." 
 
 charge on, in favour of sub-contractor, (O. ) 01. (54, 6'), (M.) 213. 
 
 wages, (O.) 77-87, (M.) 21.'>, 217. 
 payments, how far valid, (O.) 61, (52, (5r>, 70, (M.) 213, 214. 
 retention of percentage, authorized, (O. ) 00, 01, (M.) 212, 213. 
 
Index. 
 
 33' 
 
 ! 
 
 ! 
 
 PRIMARY DKBTOU, 
 
 execution against, liability of, to, (O.) 17«, 177, {M.)24\, 2U. 
 right of lien holder to, when subpended, (O.) 17<. 
 
 I'UIOUITY, 
 
 of liens generally, (().) 72-77, (M.) 21 f), 21fi. 
 
 for wages, (().)7(i, (M.) 21(1, (H.C.) 281, 2H2. 
 how adected by notice. (O.) l'^'"*. '0!». 
 
 prior registration, (O.) I. 'M<), !'•*<• 
 
 l'R()CliKDIN(!S.— iSfic Action to Knforck Likn. 
 
 to enforce liens when registered, time for, (O.) 12;M2U, (M.) 22r,, 
 
 (li.C.) 284,2X5. 
 not registered, time for, (( ). ), 1 1 8- 1 23 ( M . ) 22r). 
 
 1»R0MISS0RY NOTK.— .SV'' Seoority. 
 
 ruRU(; BUiu)iN<;.s, 
 
 liability of, to lien, (O.) 30, :?f, .-{2. ;«, (M.) 208. 
 
 PURCHASER, 
 
 contract by, for building, eileot of, (0. ) 8, (M. ) 210, 215. 
 interest of, when bound by lien, (O.) 44, 72-75, (M.) 210, 215. 
 
 RAILWAYS, 
 
 Dominion, how far affected by, (O.) 18(5. 
 
 land of, when liable to liens, (O.) :W, 31, 32, 4.1, 46, 186. 
 
 not liable to liens, (M.) 221, (H.(J.) 2(i4. 
 Ontario Act, application of, to, (O. ) 186. 
 
 RKCKIPT IN DISCHARCJK OF LIKN -Spc. For:,is. 
 contents of, (O.) 130, 131, (M.) 22(i, 227. 
 registration of, ;0.) 120, (M. ) 226, 227. 
 
 REOISTRAR.— See Reoistratiok. 
 
 REGISTRATION, 
 
 of lien, (().) 95, 96, 106, 107. 112, 113, (M.) 219, 220, 221. (B.t .) 2(i9- 
 
 270. 
 
 costs of, recoverable, (O.) 173, (M.) 240. 
 
332 
 
 Index. 
 
 RKGISTRATIUN— Co?i/iM?i»?f/. 
 
 of lien — Gontinual. ■ 
 
 discharge of, order for, when inaue (O.) liiit, I'M), (M.) 226, 
 
 2r/',, (B.C.) 286, 
 form of,— see Forms. 
 duty of Registrar, on, (<).) 106, (M.) 222. 
 
 omission of, its effect, (().) 107. 
 etrectof, (().) 107, (M.) 223. 
 fee for, (O.) 106, (M.)222. 
 
 form of claim for, (().){)-), !t6, 102, 103, (M.) ■ .-.), 220, 221, 
 (R.(3.)26!)-270, 
 — see For .MS. 
 
 defect in, (O.) 103, (M.), 222. 
 verification of, (().) !)6, 101, 102, (M.) 220, 
 321, (H.C.) 260, 270. 
 how far neccssaiy, (O. ) 97, OS, !)9, (M.) 22,5, 226, (B.C. ) 269. 
 informalities in, net to invalidate, (().} 103, (M.) 222, 22.>. 
 Land Titles otiicc, when made in, (().) 96 M ) 21i>, (B.C.) 269. 
 office for, (().)!»."), (M.) 219. (M.C.) 269. 
 omission of, effect of, (O.) 13, 14, 1."), M, lOS, 10!», US, 119, 
 
 (M.)225, 226, (B.C.) 269. 
 time for, ((). ) 1 12, 113, 1 lo, (M ) 223, 224, (B.C. ) 269. 
 
 computation of, ((). ) IIT), 116. 
 vacating, (O.) 130, (M.) 226, 227, (B.C.) 2S(i. 
 
 on giving security, (().) 129, (M.) 226, 227, (B.C.) 
 
 279, 280. 
 order for, form of, — sr.i' Form.s. 
 wages, for, ((),) 113. (M.) 223, (B.C.) 269. 
 //.s^jfijif/f'jw, when necessary, (().) US, 123, 124, (M,) 22;", 226, 
 (B.C.)2S5. 
 land in different divisions, (().) 99, (M.) 219. 
 notice, effect of on prior, (O.) 1">, OS, 99. 
 prior, effect of as against lien, ((V ) 13, 14, IT), 109. 
 
 notice, effect of on, (O.) 9S, 99. 
 priority, how affected by, (O.) 13, 14, 1."), 97, 9S, 99. 
 registrar, duty of, on, (O.) 106, '07, (M.) 122. 
 J{e.(jutry Ad, application of, to liens, (O.) !»S, 107-112, (M.) 223. 
 time for, of liens for wages, (O.) 113, (M.) 223, (B.C.) 269. 
 other liens, (O.) 112, 1 13, (M.) 223, (B.C.) 269. 
 wages liens, of, (O.) 113, (M.) 223, (B.C.) 260. 
 
 
.) 226, 
 
 
 Ind?:x. 333 
 
 HEiUSTliY ACT.— Set Kegistkation. 
 
 REPAIRS, 
 
 lien for, (0.) 18, (M.) 206, (B.C.) 262. 
 
 SALE. 
 
 i of chattels, — .sec Chattkls. 
 
 land. Court may order, (O. ) 152, (M. ) 234, (H.C. ) 27!S. 
 
 proceeds of, how distriliutable, (li.C. ) 281, 282. 
 
 report on, (O.) 15.3, (M.) 235. 
 
 tini ' within which it may be ordered, (O. ) 152, I.IG, (M.) 234, 
 materials, may be ordered, (O.) 152, 156, (M ) 234. 
 
 SECURITV, 
 
 effect of taking, on lien on land, (0.) 132, 1.35, (M.) 227, 228. 
 
 chattels, (O.) 1S4. 
 promissory note, elFect of taking, (0.) 134, l.'{5, (M.) 227 
 vacating lien, oi, giving, tO.) 12!), (M.) 227, (1).*'.) 27!>, 280. 
 
 SKRVICE, 
 
 lien for, (O.) 11, (M.) 206. 
 niciining of, (O, ) 11. 
 
 SPECIFICATIONS, . 
 
 contnict njust be i)erformeil according to, (O. ) 22-2(). 
 owner docs not warrant tliey can be carried out, (O. ) 23. 
 
 STATEM1;NT of claim.- -SVt h\nms. 
 
 proceedings to enforce lien may be commenced by tiling, (O.) 140. 
 service of, to be eH'ected within a niontli fron\ tiling, (O.) 140, 143. 
 to be verified l)y iitlidavit, (O.) 140, 142. 
 vacation, whether it may be filed, in, (O. ) 144. 
 
 STATUTES, 
 
 former respecting mechanics' liens, (O.) 2, 3, (M.)242, 243, (B.C.) 289. 
 
 repeal of, (M.) 242, 243, (B.C.) 280. 
 interpretation of, (().) 3, 4. 5, (M.) 203-205, 218, (B.C.) 259, 260. 
 
 SUB-CONTRACTOR.- 6Vf. Likn. 
 
 assignment by, wlien invalid, (B.C.) 275. 
 
 charge on percentage of price to be retained, when entitled to, (O.) 
 60-70, 77, (Ai.) 212, 213, 216. 
 
3.34 
 
 Index. 
 
 SUB-CONTUACTOR— Co?U*««,'(/. 
 
 contractor in default, rights of, when, (().) '24, 35. 
 
 deHnition of, (O.) 4, ji, (M.) '204, (B.C.) 2G(». 
 
 Hnisliing work on dismissal of contractor, (().) 'i(i, .S5. 
 
 lion, right of, to, (().) LS, (M.) 206-208, (B.C.) 201. 
 
 limit of claimof, against "owner," (U ) fi!), (M.) 212, (li.C.) 206. 
 
 materials furnished l)y, lien for, (O.) 18, 10, (M.) 200, 207, 215. 
 
 exemption of, from execution, (O. ) 72 90, !>.'}, 5)4 
 notice of lien, to he given to " owner," (().) 61, 07, 68, (M.) 213. 
 neglect to give, effect of, (().) 61, 67, 08, (M.) 213. 
 time for giving, (().) 01, (M.) 213. 
 payment of, by "owner,'" (().) 01, 02, (M.) 214. 
 
 by, effect of, (O.) 01, 07 08, (M.) 213. 
 registering lien of, — >«(' Rk(;istkatios. 
 waiving lien, agreement for, effect of, (().) 17, 18,20, .3!l, (M.) 205, 
 
 (B.C.) 202. 
 work of, must be in accordance with contract with "owner," (().)24, 
 20. 
 
 SUMMARY ATFLICATION.— See Fok.ms. 
 
 proceedings on, (O ) l.-)0-153, (B.C.) 27S. 
 to enforce lien, (O. ) 140, (B.C. 278. 
 
 TKARINC DOWN BUILDINCS, 
 no lien for, (O. ) 28 
 
 m 
 
 TENANT AT .SlJKKKRAN(JK, 
 
 cannot bind interest of owner of fee, ((). ) 8. 
 
 TLM K, * 
 
 for action to enforce registered lien, {().) 123-120, (M.) 225, 220, 
 
 (B.C.) 284, 28.-). 
 registering lien, ((►.) 112, 113, (M.) 22.3, (B.C.) 200. 
 
 for wages, (<).)! 13, ( M . ) J23, ( B.C. ) 200-270. 
 
 Ik ptndens, (O.) 118, 123, 124, (M.) 225, 220, (M.C.) 
 285. 
 
 'rKUSTE^:, 
 
 contract witli, wlien it confers lien on trust estate, (0.) 10. 
 VACATING LIEN.— .SY'e Dischakcje of Lien. 
 
Index. 
 
 335 
 
 2, (l',.C.)-'H6. 
 II), -207, -215. 
 ,(0.)72 90,!>.*i,!)4 
 )8, (M.)213. 
 68, (M.) 213. 
 
 ), .S!», (M.) '205, 
 ' owner, "(O.) '24, 
 
 ), (M.)'2'25, '22G, 
 
 2(ii). 
 
 U.C.)'2(ii)-'270. 
 \2'25, '22{), (1{.C.) 
 
 VENDOR, 
 
 intorestof, when bound, (0.) «, 44. 
 
 VVAfJES, 
 
 definition of, {0.)r.,(M.) '218. 
 
 lien for, (0.) IS. 19, 77. (M.) -iOG, '207. '2K. • 
 
 contract not fulfiUed. in caae of, (O.) /8. (M.) -K. 
 devices to defeat, void. (O.) 79. (M.) 218. 
 i.riorityof, (0.)77. (M.)217. 
 imvileges of, (O.) 77, 78, 79, 84, (M) 'f «;.;.' ' 
 •cgistration of, (O.) U3, (M.) 223. ( ^-t.) 209 
 
 timefor. (<).)11H, (M-)22:i,(15.t.)209. 
 
 WAlVElt, 
 
 of contract, by "owner," (0.) L,i. 
 
 li,n, agreenient for, elVect of, (0.) 39 ( .^^ ' > "-^ ';'• < f " ;% , .,,, 
 must be in writing, (O.) IS, 19, (M.)-^^'>, 
 
 (U.C.)202. 
 by laldng security, (O.) 132, 1.35, 184, (M.) 227-228. 
 
 WIFE, 
 
 interest of, when bound by lien, (O.) :}8, 39. 
 
 ^^^^^'^^^^' . f ,,M 4 '-. (\n "03-205, 218, (li.C.) 259, -260. 
 
 iuterpretalion of, (0.) 4, ->, (M) -"-^ -"•^'' - > ^ 
 
 WORK -.SV. I.IKN -LlIiN-H0Ll)KHS-KK(a>^TKAT10N. ,nM.>7. 
 
 acceptance of defective, su.,,iect to defect being remedied, (0. ) 12. ! 
 completion ol, after .lelay, effect "*' (^/-^J^-, l-^;^. 
 lien for, (().) 18-'23.27-29, 34. 35, (MO 200 U^.) 20 03, 
 must be in accordance witli contract with "owner, (U.^ -, -4. 
 need not be done on land, (O.) 20. 
 "WORKS OK IMl'HOVEMWNTS," 
 delinitionof, U5.<-'-) -'•"• 
 
 (0.) 10. 
 
I