m •iliillliiiiiliiiii .'. m •«-','!?Tn5?> J>^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE MECHANICS' LIEN ACTS *^^ W J. NELSON, 0"M "P A "D T r^ d>^^lSTER AND SOLICITOR, IN 1 AKIU, KOSSLANO. 8. C (R. S. O. (1897); Cap. 153) MANITOBA (60 Victoria, Man., Cap. 29) AND BRITISH COLUMBIA, (R. S., Cap. 132) WITH ANNOTATIONS, AND ADDITIONAL FORMS OF PROCEEDINGS THEREUNDER, y.; J. NELSON, B^^RISTER AND SOLlClTOfti ROSSLANO, B. C* BY GEORGE SMITH HOLMESTED (Of Osgoode Hall, Barrister at- Lmv, and Senior Registrar of the High Court of Justice for Ontario.) TORONTO 1899 I Entered according to Act of the Parliament of Canada, in the year one thou- sand eight hundred and ninety-nine, by George Smith Holmested, at the Department of Agriculture. 3^4 12C TORONTO : PRINTED HY UUDLEV .t HURNS, COLBORNE ST. 7 COMPARATIVE TABLE OF THE Mechanics' Lien Acts of Ontario, Manitoba, and British Columbia, Showing the corresponding sections in each Act. o o o H ►-( Z Sections. \ Sections. 1 2 " (1) "(2) „ (3) (4) (5) (fi) (7) 1 (1) (2) (3) ,,(4) M (5) 12(6) 2(7) M a c Q pq Sections. J q (1) (2) (3) W (5) 4 4 cf. 4, 5 5 cf. 7 6 3 cf. 4 7(1) 5(1) cf. 4 „ (2) H (2) cf. 7 M (3) ..(3) cf. 6 8 6 7 8 9 10 cf. 4, 5 11 (1) 9(1) cf. 12 „ (2) „(2) If " - (3) M (3) 11 tt 12 10 • I tr < Z O Sections. 13(1) „ (2) - (3) 14(1) „ (2) " (3) n (4) •' (5) 15 16(1) .1 (2) „ (3) 17(1) (2) (3) 18 19(1) - (2) 20(1) M (2) M (3) 21 22 23 <; pq c EH Z Sections. 11 (1) „ (2) .. (3) 12(1) ,. (2) '• (3) M (4) .. (5) 13(1) „ (2) cf. „ (3) 14 15 „ (2) 16 17(1) .. (2) 18(1) „ (2) 19 20 21 o O Sections. cf. 12 cf. 22 cf. 22 (2) cf. 12 11 cf. 16 8 cf. 8 cf. 8 21 cf. 8 Comparative Table. (6 < O Sections, 24(1) .. (2) 25 26 27(1) M (2) .. (3) .. (4) 28 29 30 31 (1) ■■ (2) i. (3) ,. (4) 32 33 34 3r. (1) " (2) •• (3) < n o H Z < Sections. 22 cf. 22 23 24(1) ,. (2) M (3) .. (4) 25 2t} 27(1) „ (2) 28 29 30 31 0) - (2) .- (3) a S t= o O PQ Sections. cf. 24 cf. 24 10 26 27 cf. 25 cf. 17, 18, 19 cf. 17, 18 cf. 25 28 cf. 9 29 cf. 9 ;>o cf. 13, 16 cf. 16 M M cf. 13 31 cf. 13 cf 16 cf. 16 cf. 16 cf. 16 < EH o Sections. 35 (4) " (5) " (6) 36 37 38 39 (1) .. (2) „ (3) 40 41 42 43 44 45 46(1) M (2) 47 48 49 50 51(1) .. (2) 52 < o (-1 S5 Sections. 31 (4) - (6) .- (5) 32 33 34 35 36 37 38 39 40(2) 40(1) 41 42 43 44 45 46 47 48 < b o O Sections. cf. 13 cf. 22 cf. 13 cf. 16 cf. 14, 15 cf. 16 cf. 16 tl II It tl M tt cf. 20 cf. 16 cf. 16 23 23 TABLE OF CASES CITED. A PAGE Allen V. Carman, 1 E. D. Smith (N. Y.) 692 (0.) 20 Angus V. McLachlan, 23 Chy. D. 330 ; 48 L. T. 863 (0.) 184 Anly V. Holy Trinity Church, 2 Man. 248 (M.) 206, 208 Anly V. Holy Trinity Church, 3 Man. 193 (M. ) 212 Appleby v. Myers, L. R. 2 C. P. 651 (0.) 60 Amidon v. Benjamin, 126 Mass. 276 (O. ) 13 Armour v. Carruthers, 4 U. C, L. J. 210 (0.) 53 Arnbery v. Thornton, 6 P. R. 190 . . (0.) 147 Arnoldi v. Gouin, 22 Gr. 314 (0.) 21 Att'y-General of Out. v. Att'y-General of Canada (1894) A. C. 189 . . (0.) 47 Austin V. Wohler, 5 111. App. 300 (0. ) 36 B Baker v. Ambrose (1896) 2 Q. B. 372 (0.) 102 Bank of Montreal v. Condon, 1 1 Man. 366 (M. ) 205 Bank of Montreal v. Hafifner, 29 Gr. 319 (O.) 14, 55, 120 Bank of Montreal v. Haffner, 3 0. R. 183 (0. ) 53 Bank of Montreal v. Hafifner, 10 App. R. 592 .(0.) 14, 55, 120, 122, 143, 162 Bank of Montreal v. Hafifner, Cass. Dig. 289 . .(0.) 14, 55, 120, 122, 143, 162 Bank of Montreal v. Worswick, Cass. Dig. 289. .(0.) 14, .55, 120, 122, 143, 162 Bellamy V. Davey (1891) 3 Chy. 540 (O.) 183 Bence v. Sherman (1898) 2 Chy. 582 (O.) 135 Benneson v. Thayer, 23 111. 374 (O.) 115, 125, 134 Bennett v. Shackford, 93 Mass. 444 (0. ) 28, 29 Bickerton v. Dakin, 20 O. R. 192, 695 (O.) 142 Blight V. Ray, 23 O.R. 415 (O ) 8, 12, 44, 56, 75 Board of Education v. Neidenberger, 78 111. 58 (0. ) 30 Boult V. Wellington Hotel Co. (not reported) (0. ) 100 Bouton V. McDonough County, 84 111. 384 (0. ) 30 (V.) VI. Table of Cases. PAGE Breeze v. Midland Ry. Co., 26 Gr. 225 (0.) 30 Briggs V. Lee. 27 Gr. 464 (0.) 20, 37, 58, 63, 65, 66, 67, 85, 86, 88, 89 Brooks V. Lester, 36 Md. 65 (;*yj ledge of the existence of the contract, or of the performance "owner." of the work, or supplying of materials, is not sufficient : see Gra/iamv. Williams, 8 0. R. 478; 9 O. R. 458 5 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: Garingv. 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 • owner. 12 The Mechanics' Lien Act of ONTARIO. Section 2. 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. Ray, 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. Tng uTcfe'r "'*"" C?) " and all persons claiming under him/' These far'bound by^^ words, when taken in connection with section 7, would hens. 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 The Mechanics' Lien Act of ONTARIO. 13 court in Makins v. Rohi7ison, 6 O. R. i ; and see Reggiii Section 2. V. Manes, 22 O. R. 443 ; Hilton v. Alerrill, 106 Mass. 528 ; Smith v. Norris, 120 Mass. 58 ; Ga/e v. B/aikie, 126 Mass 274 ; Amidon v. Benjamin, lb. 276 ; Ettridge V. Bassett, 136 Mass. 314; but where the 'owner" with whom the Hen-liolder directly or indirectly contracts, has, subsequently to the lien attaching, a mere momentary seizin, as where the property is conveyed to him, and he contemporaneously mortgages it back to his grantor, the instantaneous seisin. lien would not, it seems, attach upon the estate of the mortgagee, (s&e post, section 7 (i), note i>) : 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 23, 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 : Majtchester v. Searle. 121 Mass. 4 1 8. But in the present state of the authorities in Ontario Effect of prior , , , , , registration It would seem that a subsequent grantee or mortgagee of the '' owner " may acquire priority over the lien holder, by prior registration ; Douglas v. Chamberlain, 25 Or. • 289, 290; Hynes v. Smith, 27 Gr. 150; McVean \. Tiffin, 13 App. R. I ; Re Craig, 3 C. L T. 501 ; Reifi- haj-t v. Shiitt, 15 O. R. 325; McNamara v. Kirldand, 14 The Mechanics' Lien Act of ONTARIO. Section 2. ^g 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 them, except as by the Act is provided, (see po^t, 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. Makinsv. Assuming the reasons upon which these cases are Jiobiiiaoii, now ' farreconcii- founded to be correct, it has been suggested : see Rein- able with °° MeVeanx. hart V. Shutt, 1 1; O. R. X2i,, that they in effect overrule Tiffin. ' -" . . the decision of Ferguson, J , in Makins v. Robinsoii, supra. It may, however, be well to observe that the facts in the latter case were essentially different from those in Hynesw. Smith and McVeanw Tiffin. In those cases, what was sought to be done, was to add a subse- quent mortgagee as a party in the Master's oflfice, 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 of Montreal V. Hafner, 2g Gr. 319 ; lo App. R 592 ; S.C sntf. nom. Bank of Montreal v. IVorstvick, Cass. Dig, 289 ; McGraw v. Bayard., 96 111. 146 ; Gardners. Wat- son, 18 111. App. 386; Lamb Campbell, 19 111. App. 272), the plaintiff's right as against such subsequent mortgagee had in fact expired : see post, sections 23, 24, {:ed vide Cole v. Hall 13 P. R. 100) ; whereas in Alakins v. Robinson the subsequent transferee was an original party defendant, and the action was comniLnced against him in due time. While, therefore, the actual decisions The Mechanics' Lien Act of ONTARIO. 15 arrived at in Hynes v. Smith and Mc Vean v. Tiffin ap- Section 2. 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, ^^ ivhose rights are acquired after the work or service in respect of which the lien is claimed is commenced, c-'c," and section 7 (i) which declares that the lien "shall attach upon the estate and interest of the owner as defined 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 Actual notice mechanics' liens, as held by the court in McVean v. °Jj.ed ufnt 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; Wantyv. 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 secure advances to be Mortgage to ° ^ ° 1 J J 11 secure future 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 i6 The Mechanics' Lien Act of ONTARIO. Section 2. Advances after lien attaches, effect of. 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. Barnwell, 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 : Fierce v. Canada Permanent Loan &^ Savings Co., 24 O. R. 436 ; but under 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 registration of the lien, will, 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 R. S. O. c. 136, s. 99, is referred to, in the notes to section 13 post. {h) "Person/* The definition here given extends the meaning of the word beyond that given in The Ltiterpre- tation Act (R. S. O. c. i,) s. 8, s.s. 13, to "a firm, part- The Mechanics' Lien Act of ONTARIO. 17 nership or association," under The Interpretation Act Section 1. "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^°?^[^^^| heretofore been made or entered into, or Act1:ob°evoid. 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. -x^Z, s. 12. {a) " workman, servant, labourer, mechanic, or other person." This section is a legislative prohibition i8 The Mechanics' Lien Act of ONTARIO. Section's. against workmen contracting themselves out of the benefit of this Act. A provision is to be found in The Workmen's Compewiation for Injuries Act (R. S. O. c. i6o) s. lo, 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. Uiilcss he sigiis an express agreement Nature of lien. (^) 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 used [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 The Mechanics' Lien Act of ONTARIO. 19 sub-contractor, shall by virtue thereof have a Section 4. Hen (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 jusdy due to the person entitled to the lien and to the sum justly owing (except as herein provided) [j) by the owner. 59 V. c. 35, s. 5 ; 60 W c. 24, s. I. (a) ** Unless he signs an express agreement." It is ^fjve dgM^ro obvious, from these words, that a parol agreement to ||f ^J.Htlni'^^ waive the right of Hen, is ineffectual. The agreement ^nd express, 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 seaion 6, note (d) ), but not any subcontractor. Prior to the 47 Vict. c. 18, s. i, a "contractor" might, 20 The Mechanics' Lien Act of ONTARIO. Section 4. by his agreement, deprive all sub-contractors under him of the right of lien : Forhan v. Lalonde, 27 Gr. 600. Rights of sub- Persons entering into contracts as sub-contractors in contractors to <=> lien, how far the expectation of acquiring a lien under the Act, before affected by ^ . . agreements engagine in the work, or furnishing materials: should between 6 5 & ' & "owner" and nevertheless inquire of the "owner ' at whose mstance contractor. • 1 r • 1 j 1 i_ 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, by 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 : Al/en v. Carman, i E. D. Smith (N. Y.) 692 ; Linn v. a /far a, 2 E. D. Smith (N. Y.) 560 : see, however, section 11, and notes. Minor may {/>) ** any person." See the definition of the word acquire right , ,1 a • , 1 1 1 of lien. 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 to register liens, to sub-contractors indefinitely, has been f'ection 4. 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 e^ntftied specifications, and superintending the erection of a^**^'®" building : Ariioldi v. Gouin, 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. Bensberg, 6 Miss App. 445 ; Phillips, s. 158 ; but perhaps the word " service " in this sectioti 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 ^j^t^"^ ^^ 'i^'i ^ 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 the 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- enti^^ej t'o" nishing material, would be entitled to a lien: see section •'®"- 2, s.-s. 4 ; ante p. 5 ; R. S. O. c. i, s. 8, s.-s. 13. An " owner " cannot have a lien under this Act against "Owner "can ° not claim hetr- his own building for work done thereon, which he can ,o» hi* own ° land. 2 2 The Mechanics' Lien Act of ONTARIO. Section 4. enforce in competition with liens of third parties : Phillips^ s. 39. Performance (^) "performs any work or service*" As a general rule requisite to in order to entitle a mechanic, or material-man, to enforce right of lien. . t_ j a lien for his work or matenals, 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 Variation substantial variationTfrom the contract, then there must from contract. •*• • i_ l 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. Imperfect Where buildings are erected on the land of another, or ofconn-act.^ 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 to recover, either on the special contract or under the common counts a ijuantum 7/ienat : see Brydon v. Lutz, 9 Man. 63 ; Munro v. Butt, 8 E. & B. 738 ; Sumpter v. Hedges, (1898) I Q. B. 673; 78 L. T. 378 ; E//is v. Hamlen, 3 Taunt. 52; Pattinson v. Luckley, L. R. 10 Ex. 330; The Mechanics' Lien Act of ONTARIO. 23 Oldershaw v. 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 : Thorn v. Mayor of London, L. R. 9 Ex. 163 ; S. C, L. R. 10 Ex. 112 ; except it be a wage- earner claiming under section 14, post. 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: Der??iott\. [ones, 2 Wall, i. But the express Express ac- •^ ' ' "^ ceptance of acceptance of the work by the owner waives non-compli- J"/\7n'^*"'^ ance with the specifications : Havighorstv. Litidberg, 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 : Eysters. Parrott, 83 111. 517. But when the deviation from a contract arises in Deviations as to matters not respect of some matter, the performance of which does conditions pre- ^ '^ . cedent to right , not constitute a condition precedent to the right to to recover. 24 The Mechanics' Lien Act of ONTARIO. Section 4 recovcr, 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 : Lticas V. Goodwill, 3 Bing, N. C. 737 ; and see Thompson V. Yates, 28 How. Pr. (N. Y.) 142. How far Under a statute which provided that " every building performance "^ ■' of contract shall be Subject to a lien for the payment of all debts between "owner "and contracted for work done, or materials furnished for or " contractor " . . is essential to ahout the crection or construction of the same, it was right of a sub- , , , . r~ ■ contractor to held that it was sumcient 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 : Rii/id V. Leeds, 2 Phila. 160. It seems, however, unlikely that such a conclusion could be arrived at under this Act in the face oi 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- tractor" under him. See, however, .s7r//^;/.f 11, 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. f^vo^iP/or '" Although the general rule is, that sub-contractors wage-earners, cannot recover where there has been an imperfect fulfilment of his contract by the contractor through \ The Mechanics' Lien Act of ONTARIO. 25 whom they claim, an exception is ma.de hy sec// 0// 14, Section 4. (2)) (3), /^-^A in favour of " wage-earners." ,,Ti 1 • r • ) u .. ^' Production of When the procurmg of an engmeer s or architect s engineer's or certificate, is, by the terms of the contract with a tificate, when " contractor," made a condition precedent to payment, pr'e'ceden't the contractor, as a general rule, cannot recover the value gn^ofce Hen. 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. 597 ; Tharsis Sulphur c^ C. Co, V. McElroy, 3 App. Cas. 1040 ; Laki/i v. Nuttall, 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- worth 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. Owen Sound, 16 O. R. 121 ; Gillmultv. 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 rrot be recovered, unless the written authority of the owner, or his architect therefor, was proved : Wood 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, collusion or confederacy, is not void as contrary to public policy: Tullis v. Jacson, 67 L. T. 340 ; and see Peters v. Quebec Harbour Commissio7iers, 19 S. C R. 685. But, although the production of the certificate may be essential as a condition precedent to the recovery by the 26 The Mechanics' Lien Act of ONTARIO. Section 4. Non-produc- tion of certifi- cate, when excused. 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. Hiinter, 2 O. R. 233; 10 A pp. R. 127 ; Lezvis 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 : Srnith 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 his 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), /(^y/, a sub-con- tractor under him, even though a wage-earner, would not be able to recover either : see post, sections 9, 10. ^oj^kneednot It jg immaterial whether all the labour for which a done on land. \^^^ jg claimed is actually performed on the land, or in II it nnally go -' ^ ' mto the work^ the workshop. Or elsewhere, if it finally go into the work contracted for: see IFi/son v. Steeper, 131 Mass. 177; Dic^ 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. {d) " any materials." " Materials " includes every kind of moveable property : see ante, section 2, s.-s. 5. Powder, shell and candles, furnished for working a The Mechanics' Lien Act of ONTARIO. 27 mine, would be materials within this section: see ^'- Section 4. stone V. Galla^i:;her^ 5 Col. 23. {e) " to be used*" The question has frequently ^^^ ^.^^ arisen in the United States whether it is essential, to tie incorpor- ' ated m build- entitle a material-man to a lien, that the material in ing- 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- 151- It has been held under a former Act that as between lien-holders inter se and for materials furnished to a "contractor," (and a fortiori to a sub-contractor), that there is no lien under the Act, until the materials have been afifixed 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 v. Be/l, 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 Esslinger v. Hiiebner, 22 Wis. 602. There is no lien for unsuitable materials furnished, but not used : Hunter v. Blanchard, 18 111. 318. (/) ** making, constructing:, &c' The specific por what enumeration of the various kind of work, etc., for which be°chiimed"^^ 28 The Mechanics' Lien Act of ONTARIO. Section 4- a lien may now be claimed, sets at rest many questions which arose under statutes having a less extensive and specific description — but 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. S/iackford, 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 be hauled 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: Hills. A^eivnian, 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. Hauling. 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 J^mft v. Du?i- 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 sectioji. It has been held under some Lien Acts that a lien does not attach Tearing down, for labour in tearing down : Holzhour \. Merr, cq Mo. and removing ° ' j =' buildings. ^^^^ or removing a building : Trask\. Searle, 121 Mass. 229 ; Stephens v. Holmes, 64 111. 336 ; but under this The Mechanics' Lien Act of ONTARIO. 29 section it would seem that a lien might be claimed for Section 4. such work, as work done upon or in respect of land. It has also been doubted whether any lien would Fences. attach under some statutes in the United States for work upon, and material for, fences : see Hubbard v. Brotvii, 90 Mass. 590 ; Canisiits v. Merrill, 65 111. 67. But a fence is now expressly within this section. A drain-pipe has been held to be part of a house for which Drain, a lien may be claimed : Hubbard v. Bro7v>i, 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 Furnaces, 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. Wentivorth, 119 Mass. 459 ; and see The Scottish American Investment Co. v. Sexton, 26 O. R. 77. As to a boiler, see Kelly v. B order '^°^^^^- City Mills, 1 26 Mass. 148. The erection of a lightning rod Lightning rod was held not to come under the head of building, altering, repairing or ornamenting a building : see Dreiv 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 Garing V. Hunt, 27 O. R. 149. ig) "shall by virtue thereof have a lien." Not- Lands liable to 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 3° The Mechanics' Lien Act of ONTARIO. Section 4. School build- ings. Railway lands. Court house. Buildings belonging to the State. it was held that there was no hen for work done on pubHc school buildings ; Robb 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, 179a ; Thomas v. Urbana School Dis., 71 111. 283; Board of Education v. Neidenberger, 78 111. ^% \ 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. Midlatid Ry. Co., 26 Gr. 225 ; King v. Alford, 9 O. R. 643. In the latter case, however, Proudfoot, J., dissented ; and see Hill\. Lacrosse e^ Mil. R. R. Co., 1 1 Wis. 214 ; Phillips, s. 182. And it has also been held in the United States that a court house : Bouton v. McDonough Comity, 84 111. 384 ; and buildings belonging to the State : Thomas V. ludustrial 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 claimed, and section 17 (3), which makes a special provision as The Mechanics' Lien Act of ONTARIO. 31 to the description of the lands where a Hen 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 {?,&& 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 warrant that inference, something more must appear than the ordin- ary provisions that the claim is to be a lien against a pa?-- 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 9 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 3S The Mechanics' Lien Act of ONTARIO. Section 4. proccss." 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 Hen 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 {^ 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., King V. A/ford, 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. Atford, supra ; Peto v. The Welland R. IV. Co., 9 Gr. 455 ; The Erie 6^ Niagara R. IV. Co. v. The Great Western R. IV. Co., 19 dr. 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 Section 4. 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 section, 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 The 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 3 34 The Mechanics' Lien Act of ONTARIO. Section 4- 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 {c). Lien-holder In order to entitle a person to a lien under the Act, employed by it is absolutely neccssary that he should have been em- ing an interest ployed to do the work, or furnish the materials, for in the land. ,.,,,. ,• 1 . • -^u 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 section 2, note (r), a?ite, p. 7. From what A question may arise whether the lien attaches from auaches. the date of the employment, or from the date of the Commence- actual Commencement of some part of the work, or fur- h(fw\ar ^^*" '^ nishing some part of the materials. But it would seem essential 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 be 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- The Mechanics' Lien Act of ONTARIO. 35 pletion of the contract, the Hen-holder would appear to Section 4. be entitled to treat his lien as one claim dating from the Lien relates ^ , - - , , back to eom- commencement of the performance of the contract, and n.encement of not as a series of cumulative liens arising from day to day as the contract was proceeded with : see Hydraulic Press Brick Co. v. Bormans, 19 Miss. App. 664 ; Great Western Planing Mill Co. v. Bormans, lb. 671. But see McLaughlin V. 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 "ght 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 " ; Petrie 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 another, and need not be in writing : lb. {h) "upon the erection, &c , and the lands occw- Rf nwvai m- ^^ pied thereby, or enjoyed therewith" It is held i" ^^^^^^^°f'^n 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 land, or the building : Coddington v. Dry Dock Co., 31 N. J. L. 477 ; Presby- terian Church V. Stettler, 26 Penn. 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. 'M 36 The Mechanics' Lien Act of ONTARIO. Section 4. Transfer of building to another lot, effect of. McBride, 17 III. 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 Act the lien is not given merely on the building, and on the land by infer- ence, as a necessary adjunct, but it is expressly given, both on the land itself, as well as on the building : see section 7 (i ), and section 8, post, and notes Where a building which is subject to a Hen is subse- quently transferred to another lot, the lien will not attach upon such other lot : Underhill v. Corwin, 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 m.oney was subject to the lien : Ellett V. Tyler, 41 111. 449 : Austin v. Wohler, 5 111. App. 300. Where the land is sold under execution, or otherwise, the lien is transferred to the proceeds : Phillips, ss. 196-8. The lien of the mechanic is held to be an insurable interest: Franklin Fire Ins. Co. v. Coates, 14 Md. 285; 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 The Winding Up Act (R. S. C. c. 129), s. 62 ; Pe Empire Brewing 6^ Malting Co , 8 Man. 424. Amount for (/) "limited, however, in amount" The lien is may be^'^" limited in amount to such sum as is justly due to the claimed. person entitled to such lien, that is to say, the lien- holder cannot recover more than that sum ; and the Sale under execution. Lien is an insurable interest. The Mechanics' Lien Act of ONTARIO. 37 concluding words of the section also limit the amount Section 4. recoverable by what is due and owing by the " owner," except as subsequently provided by the Act. This clause must therefore be read in connection with sec- tions 9 and 10 : 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 which 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 the "owner" contrary to the provision of section {11)^ 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: Briggs v. Lee, 27 Gr. 464; and where there are several " sub-contractors " of the same " contractor " or " sub-contractor," each is entitled to a pro rota share of the amount which the "con. tractor " or " sub-contractor " through whom they claim is entitled to receive from the "owner," {see. section 13 (3) ; but see s. 14(1), 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. ij) "except as herein provided " The exceptions referred to seem to be those made by sections 11, 14, 15. 38 The Mechanics' Lien x\ctof ONTARIO. Section 5 married women 5. Where work or service is done or ma- ormateriafs tenals Ere fumished upon or in respect of the on lands of ]ands of anv 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. (a) " lands of any married woman." This section 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 {ante^ 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 section 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 The Mechanics' Lien Act of ONTARIO. 39 thereof, that her husband was not authorized to act for Section 5. 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 pfesomed" 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. 6. No agreement {a) shall be held to section 6. deprive anyone otherwise entitled to a Hen^^l^^^^^^^^l""^ under this Act, and not a party to the agree- otueir' ^ ment (/>), of the benefit of the lien, but the lien shall attach, notwithstanding such agree- ment. 59 V. c. 35, s. 4. {a) "No agreement." The object of this section is Agj-^«|njentto to prevent contractors, or sub-contractors, from entering effect of. into agreements which shall deprive their sub-contractors of the right of lien. Under this section, although a contractor might contract with 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 4© Ihe Mechanics' Lien Act of ONTARIO. Section 6. coiTtract, vvould 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 sub-contractor 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 post, 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 j. 14 {5)/>ost. By section 3, supra p. 1 7, 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 (^) " j^q^ ^t, party to the agreement-" It would seem does not bind probable that all persons actually repiesenting the estate persons not ^ '^ y r o parties. of a person 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.g., 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 rights of contract: ^Vaternv. Wo?/, 162 Penn. 153, but no restrictions of that kind affect the legislative power of the Legislature of Ontario in such matters. The Mechanics' Lien Act of ONTARIO. 41 time it may be argued that but for the agreement they Section 6. 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 sectio?i, 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.— (1) The lien {a) shall attach upon the «^^"7- estate or interest (&)of the owner as defined by wwcf/uir''" 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 ^\,here estate ^ ' 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. 42 The Mechanics' Lien Act of ONTARIO. Section 7. (^2,) In case the land upon or in respect of Prior which any work or service is oerformed, or mortgage. -^ r 1 • 1 • 1 upon or HI 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 lien," This includes not only the liens of to Hen"on'fa^nd those who contract directly with the " owner," but also liens of sub-contractors, 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 vork done on the land the em- Section 7. ployer did not own, would be thrown on the land which he did own, but upon which the work had not been done, — which appears to be unwarranted by the terms of this section. (e) "and the lands occupied thereby or enjoyed j^^^fg"*^°[>'^'* therewith " This includes that extent of ground, and no more, which, under all the circumstances, is reason- ably proper and necessary for the enjoyment of the particular building. It is said that in cities the building lot attached to the house is unquestionably intended, and that in country villages, though lots are generally larger, yet they are equally necessary for the enjoyment of the various structures erected upon them, and that an acre in such villages is not unreasonable : see Phillips, s. 200. And where two adjacent town lots are used together, without an actual division between them, as a mill lot, a part of the buildings and machinery being upon one, and a part upon the other, the lien extends to both lots : lb. Where the building in respect of which a lien exists is removed to another lot, the lien will not attach upon such other lot: Underhill v. Corwin, 15 111. 556. (/) "the fee simple" The provisions of this j-e'r/'/V?;; charging ^■' '^ ^ _ interest of must be strictly complied with, wherever it is sought to lessor. 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 request of the lessee, 4 so The Mechanics' Lien Act of ONTARIO. Section 7. Signature of lessor, to claim for lien Registration of lien. Commence- ment of lien against lessor's interest. Incorporation of work or materials, essential to Ki"-'e rif^ht as against prior mortgagee. does not make the landlord's estate liable to be charged even though in certain contingencies the latter may possibly become entitled to the benefit of erections or improvements so made : see Graham v. Williams, 8 O. R. 478; 9 O. R 458; Flock v. Jeffrey, 10 Man. 514- {g) "signature of such ovirner" The signature of the landlord upon the claim of lien registered, is essen- tial to a charge upon his estate, for any liability upon a contract made with his lessee. It will be seen by section 23 that it is not necessary in every case to register a lien. Where a suit is brought within the period prescribed by that section, and a certificate of lis pendens is registered, the previous registration of the lien is dispensed with alto.ether ; but whenever a landlord's estate is sought to be charged under this section, it is essential that the lien should be registered before suit. The statute is not very clear, whether the 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 the lien, equity would seem to require that the lien should only date from the time of registration of the claim, bearing the landlord's signature as required by this section. {h) "materials are placed ' Although, as we have seen, a lien may in some cases exist for materials furnished "to be used " in the construction or repair of a building, although such materials may not be actually incorporated : see ante, p. 27, note {e), yet under this The Mechanics' Lien Act of ONTARIO. 51 section, it is clear that there must be an actual incor- Section 7. poration of the material, in order to give a lien-holder any prior claim as against a prior mortgagee, because it is of the very essence of this provision in favour of the lien-holder, that the value of the land is increased by the work done, and materials furnished, in respect of which the lien is claimed. (/) "prior mortgage." In R. S. O. (1877) c 120, J^or --^:„^, s. 7, from which this sub- sect ion was originally derived, o^- the words were " encumbered by a mortgage or other charge existing, or created, before the commencement of the work or the placing of the materials or machinery upon the land " ; the words " prior mortgage " are no doubt intended to be equivalent for the words used in the Revised Statutes, 1877. The expression "prior mortgage," seems, however, to open the door to a con- flict of opinion, as to what are to be regarded as prior mortgages. A question may arise whether a mortgage made after a contract has been entered into, but before there has been any part performance of it, is, or is not, a " prior mortgage " ; a question which could not have arisen under the wording of the original section : see section 2, s.-s. 3 and note {g) ante p. 12. After the con- tract, and before commencement of its performance, the contractor has such an inchoate right of lien that he is authorized to register a claim therefor: see section 22, which on the subsequent performance of the work will be complete. 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- 52 The Mechanics' Lien Act of 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, sectioft 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. Charnber- laifi, 25 Or. 402 ; Re Craig, 3 C. L. T. 401 ; Cook v. Be Is ham, 23 O. R. 545 ; Pierce v. Canada Permattent Loan 6-' 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 : Cooh 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 Locke v. Locke, 32 C. L. J, 332. •It may be a Question whether actual notice at any time before rejjisterinK the lien would not be sufficient to postpone the lien- holder: see R. S. O. c. 136. s. 87 ; Ruse v. Veterkin, 13 S. C. R. 710, per Strong, J. ; it was held that it would in H'es^ v. Sinclair, 28 C. L. J. 119. The Mechanics' Lien Act of ONTARIO. 53 U) " upon such increased value." It will be observed Section 7. that the lien-holder is not entitled to priority for the full Extent of lien I r u • /-r 1 > • ^^ against value 01 the improvements effected by him, or by means prior mort. of his labour or materials, but 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 , 1 • 1 . , . Lien-holders by several parties each is entitled to share pro rata in to share proj 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. Smalipiece, 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. Smalipiece it was held that where the property is insufficient for the payment of the mortgage debt, the lien-holder is bound to credit as against the sum in respect of which 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 • f • r 1 1 • r,- 1 11 -,11 "owner," how tion, or satisfaction, of the claims of hen-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 Armour v. Carruthers, 4 U. C. L. J. 210; Fraser v. Locie^ 10 Gr. 207 ; and it might, with some reason, be 54 The Mechanics' Lien Act of ONTARIO. Section 7. urged that a lien-holder, receiving payments fron:i 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 Broiighton 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. If addon, ig 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 value 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- The Mechanics' Lien Act of ONTARIO. 55 gagee in respect of the building so destroyed : Patrick Section 7. V. Walbourne^ 27 O. R. 221 ; but under the present Act the insurance money is to stand in the place of a building so destroyed : ste post, section 8. Where relief is claimed against a mortgagee under this fjfent^Mce Hen section, the mortgagee is a necessary party to the action, prjof n,ort- and the statement of claim should distinctly allege that sagee. 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 suffered the bill to be taken pro confesso against them : Douglas v. Chamber- lain, 25 Cir. 288, and see Richards v. Chamberlain , lb. 402. The action against the mortgagee must be com- Tim^^imiited menced within the period limited by sections 23, 24, 25. action against Thus, where a lien-holder had within the proper time gagee. 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 Or. 319; 10 A. R. 592 ; S. C. sub nam. Bank of Montreal V. Worszvick, Cass. Uig. 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. loi ; McDonald \. Wright, 14 Cr. 284; but see Cole v. Hall, 12 P. R. 584; 13 P. R. 100. 56 The Mechanics' Lien Act of ONTARIO. Section 7. A landlord, who has leased with a right to the tenant Landi^ to become the purchaser, cannot be treated as a mort- hil^rigMof" gagee under this section : Graham v. Williams, 9 O. R. Tmongagee' 458; but scc 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. Sections. g^ Where any of the property upon which oHn'iurance ^ ^^^^ '^ given by this Act is wholly or partly Tt^lches" 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 (/>)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. {a) "destroyed by fire." The only loss here con- templated is one arising from fire. Insurance money The Mechanics' Lien Act ok ONTARIO. 57 received by reason of the destruction of the property 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. Wal- 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 Section '• 58 The Mechanics' Lien Act of ONTARIO. Section 8. 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. Limit of amount of lien. 9. Save as herein provided [a) the Hen shall not 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; 8. ' contractor.' {(i) "Save as herein provided" See sections 11, 12, zndi section 14, s.-ss. (2), (3), {/^), post, and notes. sub-contrac- U)) " payable bv the owner to the contractof-" No tors' liens can- . , , . not exceed matter what may be the aggregate amount of the claims what is due by ^ << i. i i • , i i, , "owner." to Of a " Contractor and his " sub-contractors, they can- not, in any event, (except in the case of liens for wages un- der section 14 (i) ; and except, perhaps, as regards the per- centage required to be retained by the owner under section 10 (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, 27 Gr. 464. The Mechanics' Lien Act of ONTARIO. 59 Where the contractor's right to recover from the Section 9. 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 (<:), p. 22. 10. Save as herein provided (' some other contractor, the amount which may be claimed than con- • tractor. in respect thereof shall be 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 V. c. 35, s. 9. [a) "Save as herein provided" iytt post, sections II, 12, and 14. (b) " limited to the amount" No matter what sum ^^f^^^^^^^^^^.^ may be the aggregate of the claims of " contractor" and contractors ^ tot) b against the "sub-contractors," they cannot ordinarily be enforced land, cannot ' ■' exceed against the land, for any sum beyond what is due from amount due by ° ' / / >i owner," to the "owner" to the "contractor," — unless the " owner " "contractor." 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 E>^^ception to payments exceeding the 80 or 85 per cent, of the price of the work or material actually done or furnished (see section 11), and even then only to the extent of such 6o The Mechanics Lien Act of ONTARIO. Section lo. exccss : Brtggs V. Lee, 27 Gr. 464. If no payment ist 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. 651 ; Sherlock v. Pinvell, (Q. B. Div. Court, 36th 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 wndi^x 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 11. 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,. j|^ — ^j^ jp ^]] c^t^gg x\\^ pcrson primarily b€*'dlducfed^°^''it)le upon any contract {a) under or by vir- and retained . r L* L i* • i ..1- by owner for tuc ot which H iicn 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 The Mechanics' Lien Act of ONTARIO. 6i a period of thirty days after the completion section ir. 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 (c) upon the amounts directed to be retained by this section in favour of sub-con- tractors whose Hens 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, {ci) mad?in|ood (or eighty-five per cent, where the contract notice of ueu. 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 {£■) of such lien given by the person claiming the lien to the owner, contractor or the sub-contractor, 62 The Mechanics' Lien Act of ONTARIO. Section I.. ^5 j-^^ ^asc mav be. shall operate as a dis- charge pro tanto of the lien created by this Act (/2). 59 V. c. 35, s. lo (2). (3) Payment of the percentage required to be retained under sub-section 1 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 (z) 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 The Mechanics' Lien Act of ONTARIO. 63 to the payments to be made thereunder, that no conflict -Se ction n. shall arise between the terms of the contract, and this statutory obligation to retain the percentage required to be retained by them ifnder this section. {b) " actually done, placed or furnjshed." This section as now worded differs materially from the similar provisions in the former Mechanics' Lien Acts. 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 \. Coulson, 10 App. R. I ; Schultz V. Hay, 62 111. 157 ; Truax v. Dixon, 17 O. R. 366; Reggin v. Manes, 22 O. R. 443 ; Re Sear (5r= 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 64 The Mechanics' Lien Act of ONTARIO. Section ii. 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 materials 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. Sub-contrac- tors entitled to charge on percentage required to be retained. Preferential (c) " shall be a charge." The charge created by this section is in favour of " sub-contractors " only, and enables them to intercept money due from the "owner" to the "contractor," or from a contractor, or sub -contractor, to any sub contractor under whom they claim. Where there are several sub-contractors, each, according to his class, would be entitled to ^ pro rata share of the percentage required to be retained on which a charge is here given ; except those entitled to for^^ageV.'^"^ ^^^"^ ^*^'' 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 under section n : see sectioti 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. Coulson, 10 A. R. I ; Harrington v. Saunders, 23 C. L. J. 48 ; 7 C. L. T. Occ. N. 88; Truax v. Dixon, 17 O. R. 366; Re Sear a^ IVoods, 23 O. R. 474 ; but this is no longer the law in the case of a lien for wages ; see The Mechanics' Lien Act of ONTARIO. 65 section 14 (2); nor in the case of other liens, it being Section u. 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 v. French^ 28 O. R. 215. It is only where a lien exists under the Act, that any ^°,^Q^^^y*Jj^ charge upon the percentage of the price can be claimed : [he^-l'^e'^^^* Edmonds v. Tiernan, 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 or charge upon the con- tract price : Robb v. School Board of Woodstock, per Proudfoot, V. C., at Woodstock, April, 1880; and see Briggs V. Lee, 27 Gr. 464; Forhan v. Lalofide, 27 Gr. 600 ; Edmonds v. Tiernan, supra; and see ante p. 29, note 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 sub-sect. 3, supra, p. 62. {d) "all payments ttp to eighty per cent*, &c. " ^^^ '^^.^'^ts by This sub-section validates payments up to eighty, (or valid, 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- 5 66 The Mechanics' Lien Act of ONTARIO. Section II. 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: Briggs V. Lee, 27 Gr. 464; Re Sear e-' JJ'oods, 23 O. R. 474 ; Schuliz V. Bay, 62 111. 157; yet it has now been held that he has under this Act : Russell v. French, 28 O. R. 215. As to claims for wages see post, 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. Kimiear, 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 : lb. {e) " of such value " The value here referred to is the value of the work and materials actually done or fur- nished. -owne?'"''^ (/) "made in good faith-" The registration of a before notice Hen of a sub-contractor will not invalidate payments of hen of sub- contractor, subsequently made bona 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 even 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 : ste supra notes (a) and {b), to this section. (g) ''notice in writing " The notice must be given by the sub-contractor claiming a lien. The object of this section is primarily, to define under what 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 contractor, 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 the payment, a lien might be registered. Only payments made in good faith are protected. Payments made for the purpose of defeating or impairing a claim to a lien existing or arising under the Act, would be void as against the person entitled to such lien : 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 68 The Mechanics' Lien Act of ONTARIO. Section n. partiality of the payer might determine, would be held not to be bona fide as against other lien-holders : see Phillips, ss. 62(r, 62^, 62/2. The percentage required to be retained under sub- section I, supra, 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 the primary debtor 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 probable 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 separate proceedings in his own name. The scheme of this section seems to be that the owner shall retain in his hands the required percentage on each contract he makes with a contractor, and that each con- The Mechanics' Lien Act of ONTARIO. 69 tractor and every sub-contractor, making any sub-contract Section n, 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 sectio?i, A must retain $1,000 under his contract, B must retain under his con- tract with C $200, and under his contract with D $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.g. 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 sublet part of his contract, he would have been entitled to a charge on the percentage in the hands of the owner for $100, in- 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.g. 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 7° The Mechanics' Lien Act of ONTARIO. Section II. Y) 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 vice versa. Each sub-contractor's rights in the percent- age are confined to the percentage payable on the owner's contract with the particular contractor under whom the sub-contractor's lien or charge is derived. Section 12. Payments made 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 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 The Mechanics' Lien Act of ONTARIO. 71 may be, be deemed to be payments to the ^^^^ '2. 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 ] i of this Act {a). 59 V. c. 35, s. II. (a) This sectioti was an altogether new pro- vision in the Act of 1896. Its exact import is somewhat dirficult 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 would 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 payments 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 sectiofi to be given to the contractor; and in the same way, where a contractor pays his imme- diate sub-contractor 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 payment as between himself and the person to 72 Section 12. iHE Mechanics' Lien Act of ONTARIO. whom he is directly liable, as a/;-(? tatito 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 13. Priority of lien. 13. — ([) The lien created by this Act shall have priority [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. (2) In case of an agreement (r) for the pur- wiieie pare or 1 r 1 1 1 1 I purchase mo- chase oi land, and the purchase money or part ney unpaid. , r • • 1 1 1 thereot is unpaid, and no conveyance made to the purchaser, the purchaser shall, for the purposes of this Act and within the meaning Ajfreenients for purchase where part of len- holders. The Mechanics' Lien Act of ONTARIO. 73 thereof, be deemed a mortgagor and the seller ^^'^^^ '3- a mortgagee (rt^), (3) Excepting where it is otherwise de- among^ Glared (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 pari passu [f] 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. (a) "shall have priority." The priority conferred by this section is probably intended to apply not only to 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. 74 The Mechanics' Lien Act of ONTARIO. Section 13. (^) "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 lien, they are of course subsequent 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 ante p. 1 6), 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 by 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. {c) "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. (^qi^ to vvhich the contractor or sub contractor through whom such hen is derived (d) is entitled, and all such mechanics and labourers shall rank thereon />arz passu (c). 59 \'. c. 35, s. 13 (i) ; 60 V. c. 24, s. 3. i^"iuchcfses." (2) Every wage earner [d) shall be en- titled to enforce a lien in respect of the contract not completely fulfilled (e). Calculating ( -}) In case of the contract not having been percentage ^^^ o no^t^fumnld'.''' 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. rot'to"be^^ (4) Where the contractor or sub-contractor appS^^ makes default in completing his contract the percentage aforesaid shall not, as against a wage-earner claiming a lien under this Act, be applied (^ ) 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 The Mechanics' Lien Act of ONTARIO. 79 any kind against the contractor or sub-con- ^^"^^^ '*■ tractor. (5) Every device by any owner, contractor Devu;es^to^.^^ or sub-contractor adopted to defeat the prior- elrnefs." ity given to wage-earners for their wages by this Act shall, as respects such wage-earrers, be null and void. 59 Yic. c. ;^^, s. 13 (2-5). (a) "Have priority." The priority given by this section to Hens for wages is confined to the percentage required to be retained by an owner under section 1 1 • as regards all other moneys due by the owner for the satisfaction of liens, the wage earner must rank equally with other lien holders of the sam.e 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 part of the per- centage applicable to the payment of the contractor or sub-contractor, through whom the lien for wages is derived : see note {i>) infra. {b) " throug-h 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 entitled to the lien for wages was employed : and see supra, sub- section (3). 8o The Mechanics' Lien Act of ONTARIO. Section 14. (^) " gj^all 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, be limited in the same way as the previous part of the section, 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 man's money to pay another man's debt. {d) " Every wage earner." This section is not con- fined to wage earners in the position of sub-contractors, 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 Courts 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 : see sub sections (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 The Mechanics' Lien Act of ONTARIO. 8i the position of sub-contractors, and not themselves in Section m. default as regards the fulfilment of their own individual contracts. (e) " contract not completely fulfilled " The right given by this section 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 contract, 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 §2 The Mechanics' Lien Act of ONTARIO. Section 14. probable that any sectio7is 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 sub-section are rather crude — " Every wage earner shall be entitled to enforce a lien." If we refer to the 4th section to ascertain how a lien under the Act may arise, and the extent of it, we find that it may arise, intey- 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 owner^'—2iX\A if we refer to section 9, we find that, '' save as herein provided" ihe 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 effect. If the lien created by the Act, and which is the only The Mechanics' Lien Act of ONTARIO. 83 kind of lien given thereby, is the Hen referred to in this Section 14. sub-section as it appears to be, then it is Hmited to what is justly due to the contractor, or sub-contractor, 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 sub-section now under consideration. Since the foregoing remarks were written, it has been decided by a Divisional Court that an owner is liable under section 11, 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. Coulson, 10 A. R. i ; Re Cornish, 6 O. R. 259, and Re Sear a~' 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 84 The Mechanics' Lien Act of ONTARIO. Section m- less, and enabling such liens to be enforced, but only as against the percentage required to be retained by the owner under section 1 1 : and some ground for this view may be found in sub-sections (3) and (4) of this section ; and in that view " a lien " in the present sub section might be read " such lien " i.e , the lien for thirty days' wages as to which priority is given on the percentage by sub-section 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 j^f^//V>« 11, and previously referred to in subsection i of \.h\s section ; \h'\s sub section ^ro\'\dQS 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 ])roportion of the percentage retained by the owner, properly applicable to the payment of the contractor, or sub-contractor, through whom the wage earner claims. {g) " shall not as against a wage earner claiming a lien under this Act be applied-" I'he object of this provision is appartriilly to get over the difficulty experi- The Mechanics' Lien Act of ONTARIO. 85 enced under the former Acts, under which it was held Section r*. 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 indirectly under him : Goddard v. Coulson, 10 A. R. I ; Re Sear dr Woods, 23 O. R. 474 ; Truax V. Dixon, 17 O. R. 366 : Harrington v. Saunders, 23 C L. J. 48 ; 7 C. L. T. Occ. 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 difficulty 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 86 The Mechanics' Lien Act of ONTARIO. Section 14. liable to satisfy claims of sub-contractors, 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 Sherlock v. Poivell (before Q. B. Divisional Court 30 December, 1898). But if Russell V. Fre7ich, 28 O. R. 215, 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. Claim by * ag'kTnsY ^^^ " °^ ^°^ ^^y Other purpose by the owner, etc" ''!:^ontricfor " ^"'' ^°'' ^^'^ secttofi, it is clear that the right of any howfar sub^ sub-contractor to recover against the owner must ject to charge ^ ifen-hoiderf d^PS"^ "PO" 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 i-^f//V;« 11 : Brings v. Lee, 27 Gr, 464 ; Goddard v. Coulson, 10 A. R. i ; Re Sear &-• Woods, 23 O. R. 474 ; Truax v. Dixon, i 7 O. R. 366 ; see however Re Cornish, 6 O. R. 259; Reggin v. Manes, 22 (). 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 The Mechanics' Lien Act of ONTARIO. ^7 in default, and even though the money required to be Section i^. retained by the owner may not have been earned by the contractor, but it is doubtful whether the words actually used are sutificient for that purpose : set per Patterson, J. A., Goddard v. Coulson. lo A. R , at p. 9, and see Re Sear & Woods, 23 O. R. 474 ; where it 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 Harrington v. Saunders, 7 C L. T. Occ. N. 88. The 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 McBean v. 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 qua?itum 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 8S The Mechanics' Lien Act of ONTARIO. Section 14. for wages may in some cases be liable to be defeated in the same manner as other liens by the default of the "contractor": Re Sear 6- Woods, 23 O. R. 474; see however Russell v. French, 28 O. R. 215. Section 15. |g_ Nothing in this Act contained shall ma^rfor%m- apply to make legal any payment made for pose of de^at- , . , ^ . ... , . ing claim for the pufpose of defeatmg or impainng a claim 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 : Briggs v. Lee, 27 Gr. 464 ; and see Worrell v. Lee, before Blake, V. 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 of ONTARIO. 89 son, and unless such purpose or intent can be established Section 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 Mechanics 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 : Briggs V. Lee^ 27 Gr. 464 ; Re Sea?- c^ Woods 23 O. R. 474 ; and bona fide payments made by the owner at the contrac- 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. JJ'i//is, 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 : McBean v. Kinnear, 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 if the payment could not 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 satisfaction of the claim of the lien holder giving the notice. It would seem probable that payments made to a con- tractor or sub-contractor in advance, or before they were remo ria' lien gO The Mechanics' Lien Act of ONTARIO. Section 15. (j^g 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 ,i,^, 62 h. sectiome. Ig — (^i^ During the continuance of a lien(a.) Restraining no Dortion of the materials affected there attempt to ^ ?afflct?d 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 {b) having power to try an action to realize a lien under this xAct. t^osts. (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. Material fur- (^) When anv material {d\ is actually nished for cer ^ ' ^ ^ ' ■' n^Tto^be^sub'- brought upon any land to be used in connec- ject to "e«^" -^JQpj y^\\\\ 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 {)rocess to enforce any debt (other than for the purchase thereof) due by the person fur- nishing the same {f). 59 V. c. 35, s. 15. The Mechanics' Lien Act of ONTARIO. (a) "During the continuance of a lien.'' A lien if ^Section .6. unregistered before the 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 re-registered within the said period, or proceedings be instituted and a certificate thereof regis- tered : %ee post, section 24 (2). {b) "or to a judge 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 t,-^. By this section the above-men- tioned officers are empowered to grant injunctions. Where an iniunction is applied for without notice to injunctions. J '^^ jurisdiction the opposite party, it is usually granted only for a short to 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, /. f., injunc- 92 The Mfxhanics' Lien Act of ONTARIO. Section i6. tions granted before judgment in an action, are only Injunction, granted, as a general rule, upon the applicant undertak- undertaking . i i r i i • i as to damages, ing to DC answerabic for any damages resulting 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 ex parte under this section, it would seem to be requisite that an undertaking of this kind should be given, and recited in the order. ^osts- {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. 93 The Mechanics' Lien Act of ONTARIO. {d) "material" This word would seem to include Section i6. 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. D. Smith, 722 ; or scaffolding, or machinery used in connection therewith ; or gunpowder, candles, or steel furnished for working a mine : Keystone \. 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. (N.Y.) 189. {e) "shall not be subject to execution." This .y^^- ^-^^"p,^;^^. tion is not intended to exonerate the materials from alUio^- i^ow fat- it extends. executions, but only from executions to enforce any debts due by the person by ivhom the materials are fur- nished or procured, exc^Y^^mg 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 result which it seems needless to say could never have been intended. Al- 94 The Mechanics' Lien Act of ONTARIO. Section i6. 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 section 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: '^eesection 13. Execution, (y) " Duc by the person furnishing the same" "owner" will These words are to be read in connection with the pre- bind materials .... .n i i incorporated vious part of this Section, from which it will be seen that in land. .... they refer only to persons furnishing or procuring mate- rials for the specific purpose mentioned "for any ow?ier, contractor, or sub-contractor " : see section 4. In other words, this section exempts materials from liability for certain debts due by the person by ivho7n 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 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 13. 17,._(i) A claim for lien applicable to ^-^i°j! '^- , , . 1 / \ • 1 • Registration the case may be registered {a) in the registry of claim for office of the registry division or where the Rev. stat. land is registered under Tlie hand Titles Act in the land titles office of the locality in which the land is situated (I)) and shall set out (c) : — (a) The name and residence of the person ^i°?'„^oniei. claiming the lien and of the owner of the property to be charged {cl) (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(1 a-c) : 96 The Mechanics' Lien Act ok ONTARIO. Section ,7- (d) a description of the land to be charged Rev. Stat. (/^^ 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. 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 {i) of the person claiming the lien or of his agent (j) or assignee (li) 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. Description of (3) When it is desired to register a claim lands where ... . 111 r '\ lien registered for hen against the lands oi a railway com- against rail- '-' ^ ^ ■' ^ "^"y pany, it shall be a sufficient description of such lands to describe them as the lands of such railway company and every such claim The Mechanics' Lien Act of ONTARIO. 97 for lien shall be registered in the general section 17. registry in the registry office for the registra- tion district where such lien is claimed to have arisen. 60 V. c. 24, s. 4. (a) " may be registered." Although the registration ^f^i?^^^^.'^^"^" 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 seaion 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 Hmited for bringing an action, no suit could be brought to enforce the lien, and consequently no lis pende?is could be registered as required by ^^^//^//-f where regis- r. • n -7 r^ o T\T -11 trationbetore 23, 24: see Burritt v. Keni/ian, 25 dr. 103 ; ivv/// v. action is Carroll, 28 G^ 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 98 The Mechanics' Lien Act of ONTARIO. Section 17. ijen 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 sectio?i 24 (2). By whom liens may be registered. 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, 3 O. R. 376. Application of The intention of the Act appears to have been that the Registry Act . to liens. conflicting claims of unregistered lien-holders, and per- sons claiming under registered instruments, should be determined without regard to The 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, 1 5 O. R. 474 ; Rose v. Feterkin, 1 3 S. C. R. 677; McNamara v, Kirkiand, 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 Section 17. register his lien promptly. Actual notice, however, seems sufficient to preserve priority as against subsequent transferees : McNamara v. Kirklaiid, supra. Where priority is claimed by the lien-holder against aP|^sop^s prior registered mortgagee or grantee, he should be under^prior made an original defendant, and the grounds upon which deeds, how^^ the plaintiff claims priority should be alleged : see Reinhart v. Shutt, 15 O. R 325. A difference of opinion formerly prevailed as ^o ^:^ll9^^fl^^^_ whether an execution creditor could, by procuring an j5°^oritl"i" ,. attaching order against the " owner," as a garnishee. Hen-holder, 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 : Lang v. 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). {b) " the land is situated " Where the land affected ^^^^^^^^^^^^ by the lien is partly in one registration division, and partly lands sitimte in another, the registration should be made in both divisions, divisions. {c) " 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 ;; 0;'^"^er.^- owner here spoken of is the person against whose interest f^^^^^^i"^ in the land the lien is to be enforced, not necessarily lien, the owner of the fee : see ante, p. 7, note c. Where the lOO The Mechanics' Lien Act of 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 : Boult V, Wellifigton Hotel Co., before Blake, V.C, at Guelph, ist Oct., 1878 : and see Moore v. Bradley, 5 Man. 49 and cases there cited ; but, in Patrick v. Walbourne, (before Falconbridge, J-, 3° September, 1895) it was 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 lien. 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 sectiofi 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 : Makitis v. Robinson, 6 O. R. i ; ^r Wallis v. Yokes, 18 O. R. 8; see post, section 19 and notes: see however Mc Vean v. Tiffiii, 1 3 A. R. i ; Hynes v. Smith, 2 7 Gr. 150 ; Reinhart v. Shiitt, 15 O.R. 325. (c) "or of the person whom the person claimingf the lien, or his agent believes to be the owner of the property- ihese words are new, and are introduced no doubt to prevent a lien from being defeated by any mistake on the part of any sub-contractor as to the name of the " owner," and permit a certain amount of latitude in the claim in this respect ; and it would seem that a The Mechanics' Lien Act ok ONTARIO. loi lien might be enforced against the true " owner "' Hable, Section 17. notwithstanding any mistake which might be made as to his name in the registered hen. 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 The 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. {g) " 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 : Flack v. Jeffrey, 10 Man. 514. {h) "the description of the land to be charged." De^'^'-^tion Care must be taken to describe the land correctly, j^^^^^'^**'"^'^ Where it forms part of a sub-division according to a registered plan, it must be described according to that plan. General 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). (/) "verified by the affidavit-"' For form of Affidavit ven- ^ ' ' iving lien, 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. I02 The Mechanics' Lien Act of ONTARIO. Section 17. 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 that the omission to mark it " A " did not invalidate the registration : Currier \. 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; Truax 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, 15 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. (/) "or of his agent-" Formerly the affidavit of an agent was insufficient : Grant v. Dunn, 3 O. R. 376. {k) "or assignee" 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 t8. 18. A claim for lien (a) may include What may be claims against any number of properties ih), included ('n & ^ ^ r i • • 1- and any number o\ persons claiming liens upon the same property may unite therein, claim The Mechanics' Lien Act of ONTARIO. 103 but where more than one Hen is included in ^«<=^^2- one claim each lien shall be verified by affidavit as provided in section 17 of this Act. 59 V. c. 35, s. 17. {a) " A claim for lien." The " claim for lien " is that referred to in seaion 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 work 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. ig._(i) A substantial compliance (a) with c'^l^^fl^^^^'ed 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. 104 The Mechanics' Lien Act of ONTARIO. Section 19. Omission of name of " owner," effect of. 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 (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 affidavit 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 The Mechanics' Lien Act of ONTARIO. 105 this subject I have looked at some of the American Sectioniig. cases. In the case of Jones v. Shawhan, 4 Watts & Serg, at p. 262, Gibson, 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, 2ind. I/>. 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 verifying the claim by a unauthorized person not authorized by the statute to make it has been f^'"^""- held a fatal defect under the former Mechanics' Lien Act : Gratit V. Dunn, 3 O. R. 376 ; but possibly under the provisions of the present Act such a defect would not be fatal. {[)) " by reason of failure to comply with any of the requisites." The previous part of this section pre- io6 The Mechanics' Lien Act of ONTARIO. Section 19. cludes the idea that " any of the requisites of sections 17 and 18," could be held to mean "all of the requisites" of those sections. This section appears to require that there shall be some substantial compliance with sections 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. {c) "dispensing with regfistration" See sections 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 lis 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 sectioti 7 (2), supra., p. 41. Section 20. Lien to be registered an incum- brance. Fee for registration. Manner of registration. 20. — (i) The registrar upon payment of his fee, shall register the claim, so that the same may appear as an incumbrance against the land therein described {a). (2) The fee for registration shall be twenty five cents. If several persons 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 coj)y in any registry book any claim or afifi- The Mechanics' Lien Act of ONTARIO. 107 davit, but he shall number each claim, and s«<=^^ *°- shall insert in the alphabetical and abstract indexes (d) the like particulars as in other cases ; he may describe the nature of the in- strument as " Mechanics' Lien." 59 V. c. 35. s. 19, (a) "the land therein described" This subsection 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 section, and any substantial defect in the claim of lien in this respect, might very probably be considered fatal, notwithstanding section 19. (/') " shall insert 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 Latvrie v. Rathbun^ 38 U. C. Q. B. 255. 21. Where a claim is so registered, the per- section 21. son entitled to the lien shall be deemed a pur- bl^cfeem^d a'" chaser /r/i, 6 O. R. I ; Kelly v. McKenz/e, i Man. 169. But where the completion of the work was delayed, its subsequent completion after a long delay was held to extend the time for registering the lien : Invin v. Beynon, 4 Man. 10. - Where a material-man supplied goods to a contractor ^j?^!'^^^"?"^^^. on credit, and charged them in a running account, and ^'^^^^'^^59^^' ^°" the contractor received moneys from time to time from'^o""*''*^" f"'"- 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. Mar- tin, 3 C. L T. 312. ((') "services." See -riff v. Jienihan, 25 Gr. 183 ; Neiil v. Carroll, 28 Gr. 30 ; //'. 339 ; and see Ritdiie v. Gundy, 7 Man. 532. Under the present Act, however, an action may be commenced, and a lis pendens regis- 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. ib) 'unless in the meantime." It is not essential Act^«n^to^^ to the preservation of the lien that the proceedings t^^|»e 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 Gr. 584 ; Hovenden 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 I20 Thk Mechanics' Lien Act of ONTARIO. Section 23. 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 : Ihtrritt v. Re ni ha 11, 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 sectioji applies 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): Ban/; of Montreal \. Hafp/er, 29 Gr. 319: 10 A. R. 592 ; S. C. si/ti nam. Ba)ik of Montreal v. ]]'orsunck, Cass. Dig. 289. The principle of Ba?ik of Mo?iireal 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; but see Cole v. Hall, 12 P. R. 584 ; 13 P. R. 100. Actions (f) " an action is commenced to realize the claim." should be ^ ' commenced The proceedings must be instituted against the proper against all ... parties inter- parties, within the prescribed time. Usually where parties ested within . • prescribed are added by amendment after the action is commenced. time- i_ • • • 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 Shaw v. Ciinninghnni, 1 2 Gr. i o i ; MacDofiald v. The Mechanics' Lien Act of ONTARIO, 12 1 IVrio/it, 14 Gr.. 285-6 ; Dumhlev. Larus/i, 27 Gr. 1S7, secUon^s- 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 alleging the contract to have been made with D : David- son V. Campbell, 5 Man. 250 ; but see Cole v. Hall, supra. Parties.— The " owner," /. e., the person whose interest ^^Yions t" in the land in question is sought to be sold, must always enforce liens. be made a defendant ; and also the person liable on the contract under which the plaintiff claims : Wood v. Stringer, 20 O. R. 148. 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 subsequent encumbrancer in the Master's office: Hynesv. Smith, 27 Gr. 150 ; McVean v. Tiffin, 13 A. R. I ; Re Craig, 3 C. L. T. 501 ; Reinhart v. Shutt, 15 O. R. 325 ; and see ante.y^. 12, section 2, note (,§). 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 122 The Mechanics' Lien Act of ONTARIO. Section 25. whose status the plaintiff disputed need not be made original defendants, but that it was competent for the plaintiff to dispute their status on their being added as parties in the Masters office : Hall v. Ho,s^g, 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. Prior niort- \\'here 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. Hapier, 29 Or. 319: 10 A. R. 592; S. C. sub nom. Bank of Mon- treal V. IVorstvick, Cass. Dig. 289. See further as to parties to actions to enforce Wens, post, pp. 142, 143. Certificate i<.s u) "^ Certificate thereof-' This means a certifi- cate that the proceedings have been commenced. I he certificate should show the nam.es 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. How issued. Yhe 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. (e) " duly registered." The proceedings must not only have been commenced within the thirty days, but the certificate must have been registered within that The Mkchanics' Lien Act of ONTARIO. 123 period, or the lien will cease. Where the land in (lues- Section 23. 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 : Lawrie v. Rathbun, 38 U. C Q. B. 255. It would appear to be a sutScient registration of a Us pendens within the meaning of this section, if any action be registered within the prescribed time in which the lien-holder is entitled to recover his claim : see Bunting; V. Bell, 23 Gr. 584 ; and per Osier, J., McPhersnn v. Gedge, 4 O. R. 246 ; and see section 32. 24. — (i) Every lien which has been duly section 24. registered (^) under the provisions of this^^^'^^^j'/^^^^^. Act shall absolutely cease to exist {b) after procee'dld"'' 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 {d) under the provisions of this Act, and a certificate regis- tered as required by the next preceding upon. 124 The Mechanics' Lien Act of ONTARIO. Section 24. section. 59 V. c. 35, s. 23 (1) ; 60 V. c. 15, Sched. A (76). Lien to expire (2) Thc repflstration of a lien shall cease at end of six \ / o renewecL'"'^'' to have 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 proper registry or land titles office. 59 V. c. 35, s. 23 (2). tnunce'veg- ^'0 '" which has been duly registered." The pre- istered lien, ceding section, having prescribed the time within which time tor. o ' o 1 an action must be brought to enforce unregistered Hens, 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' Lien Act of ONTARIO. 125 by the contractor for the " owner " against whom the lien Section 24. is claimed : Re Moorehouse C^ Leak, 13 O. R. 290 ; 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 v. Hogg, 20 O. R. 13. (/') "shall absolutely cease to exist" Alien may Lien to cease be put an end to, not only by failure to bring a suit to cuted oi*if^' enforce it and registering a certificate of lis /"^^//^i?//^ consIstenT" within the time limited by this section, but also by the Hen Ve^'"" "' lien-holder accepting security for his debt inconsistent ''''^'^"• with his right of lien : see Kitizey v. Thomas, 28 111. 502 ; Croskey v. Carey, 48 111. 442 ; Beiiiiesoii v. Thayer, 23 111. 374 ; Clement v. Newton, 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 : Van- Court V. Biishiiell, 21 111. 624 ; and see also section 28. 0) "or the expiry of the period of credit ' The '''l^cfur ^ ' ^ bringing ac- period of credit between the "owner" and "contractor" t-"" where credit given. 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 action. ,26 Thi: MiiCHANics' Lien Act of ONTARIO. Section 24. to cnforce his lien against the owner : Biimtt v. Reniliaii, 25 dr. 183; Nas[gerty w Grant, 2 B. C R. 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. other lien [d) " an action is commenced in which the claim same cUss, may be realized" An action by any one lien-holder to benefit'of will keep alive the liens of all other lien-holders on the same property : section 32 ; but where the plaintiff bring- 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 : Re Sear 6^ 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 : McA^amara 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 subsection 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 strtion the necessity for re regis- tration would be avoided. The Mechanics' Lien Act of ONTARIO. 127 25. If there is no period of credit («), or ■'^ectkni 24. if the date of the expiry of the period of ere- ceasTif'there ... 1 • 1 ' 1 • • is no period dit IS not stated HI the claim so registered, "f credit. the hen 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 V. c. 35, s. 24. (ii) If there is no period of credit." The object of requiring the period of credit to be stated in the registered claim of lien, is to enable persons dealing with the property affected thereby to see when the lien will expire by tfifluxion of time : see, however, the provisions oi section 28, and note (/■>), /^os/, p. 135. (/') ''work or service has been completed or mate- -^^^■ep'^»"S'^' "' work, suDjecl rials furnished " Where the work has been done, or to remedy'inj^: 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 : JVei/l v. Car- roll, 28 Gr. 30 ; affirmed on re-hearing, IIk 339, Blake, V. C, dissenting ;* Makh/s v. Robinson, 6 R. i ; Kelly V. McKeftzie, i Man. 169. But where the com- * See note, anle p. 117. 128 Section 25. The Mechanics' Lien Act oi" ONTARIO. pletion of the work has been delayed, its subsequent completion, even after a long delay, will extend the lime for bringing an action to enforce the lien : Irivin v Bey- naii, 4 ]\lan. lo. Section 26. Death of lien-holder. Assij^nnient of lien. Rights of assignee. 26. In the event of the death of a Hen- holder his right of Hen shaH pass to his per- sonal representatives ; and the right ot a lien-holder may be assigned by any instru- ment in writing (<:7). 59 V. c. 35, s. 25. {(i) "may be assigned 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, ^^'here a mechanic assigned his interest in a lien, 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 lien : Currier v. Friedric/;, 22 (ir. 243. The 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 existed 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 The Mechanics' I.ien Act oi ONTARIO. 129 the same extent, as if there had been no assignment : Section 26. see Jud. Act (R. S. O., c. 51) s. 58 (5). Even, apart from this section, so far as the lien on the Assignment must be 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: Steivart v. Ges/ier, 29 (ir. 329, under the Statute 0/ Frauds, a parol assignment would be invalid : see ^.v parte Hall, 10 Chy. D. 615. 27. — (i) A lien maybe discharged by a section^ 27. receipt {a) signed by the claimant, or hisi^g^^*^^^^^"^ 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 p^;;,;;^^'?;;^,, or other officer (V) having power to try an vacLtingiitn .. .. . . thereon. action to realize a lien, mav receive securitv or payment into court (d) in lien of the amount of the claim and may thereupon vacate the registration of the lien. 9 130 The Mechanics' Lien Act of ONTARIO. Section 27. ^^j 'j^i^g court or such judge or other officer i\'fratio"if Jn^" "i^y vHcate the said registration upon any other grounds. 1 i / \ Other ground [e). When notice (^) Where the certificate required by sec- of application \'' i •' req'^uTsUe.""^ tiou 23 or section 24 of this Act has not been registered within the time hmited, and an appHcation is made to vacate the registration of a hen after the time for registration of the certificate required by sections 23, 24 and 25 of this Act, the appHcant shall not be re- quired 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 production of the certificate of the proper registrar certifying the facts entitling the applicant to such order, 59 V. c. 35, s. 26 (■4). ch^ar^^'e oMi'ln" ^'^^ " ^ receipt" 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 sub section refers to voluntary discharges of liens Section 27. by lien-holders Where the lien-holder wrongfully i-ien-hoider / o y wronKtully refuses to give a discharge of his lien, an application 'Infusing to ° '^ ' r-r discharge hen may be made, under subsection 3. supra, for the discharge of the lien ; or the " owner " may apply, under section 2=5 (2), to vacate the lien on giving security for the ^'^'^^^i^s: Hen J \ /' o o J or giving amount claimed by the lien-holder. security. For a Form of Receipt and Affidavit verifying same, see Appendix, p. 293. (b) "or his agent duly authorized 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 judge or other officer " The various officers who have power to try actions to enforce liens under this Act are enumerated in section 34, fost. 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.) {e) "upon any other ground." Where the land had been sold under a power of sale contained in a prior mortgage, the lien was ordered to be vacated on 132 The Mechanics' Lien Act of ONTARIO. Section 27. jj^g surplus realized from the sale being paid into court : Fhm 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 ary 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 6^ Vokes, 18 O. R. 8. Section 28. 28. The taking of any security [a) for, or no[to prtju- the acceptance of any promissory note for, or dice right to , , . ^ , 111 r enforce lien, the takuig oi any Other acknowledgment ol 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, |)rejudic(? or destroy any lien created by The Mechanics' Lien Act of ONTARIO. this Act, unless the Hen-holder 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 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 (c), 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). (ii) 'The taking of any security." The provisions of this sub-section 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, .Section 28. 134 The Mechanics' Lien Act of ONTARIO. section 28. j^at this stib-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 acknowledgment, or the giving of time, the lien-holder also 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 : Liiidop V. Marti?t, 3 C. L. T. 212 ; Mnkins v. Robinson, 6 O. R. I. But it has been held that the taking of a security inconsistent with the right of lien, amounted to a waiver of the lien : see Kinzey v. Thomas, 28 111. 502 ; Benne- son V. Thayer, 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 : Clement 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 ecjuity 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 The Mechanics' Lien Act ok ONTARIO. 135 that it intended to subject their debtors to a double lia- Section 2». bihty 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 th\s s///^-sedum is based on the assumption (i), that notwithstanding 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. Shearman, (1898) 2 Ch. 582 ; Hadley v. Had/ey, Ik 680. (/^) " giving of time" " 'I'he 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 136 The Mechanics' Lien Act of ONTARIO. Section 28. within the time prescribed : but it is possible that under this siih 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 sub-section 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 /// 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. The Mechanics' Lien Act oi ONTARIO. 137 29. Any lien -holder (a) may at any time ^^^^'^'°" "^- demand of the owner or his agent, the terms {oblendued r 1 , . • 1 1 to information 01 the contract or agreement with the con- from owner as . . to terms of tractor for and in respect of which the work, contract. 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 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 [d) upon 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 (d) to the amount of such loss. 59 V. c, 35, s. 2y ; 60 V. c. 24, s. 6. ('?) " Any lien-holder." 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 The Mechanics' Lien Act of ONTARIO. Section 29. 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 question, 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 unpaid, 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 doe 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. (0 " 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 The Mechanics' Lien Act of ONTARIO. 139 intention to mislead, or an actual knowledge that the -Se ction 29. 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. The Court or Judge, or other officer Section 30. {a) having power to try an action to realize inspection of ,. T • //\ contract by a hen, may on a summary application \o) atnen-hoider. any time before or after any action is com- menced for the enforcement of such hen, make an order for the owner or his agent to produce and allow any lien-holder to inspect any such contract, and may make suchan order as to the costs of such application and order as may be just. 59 \ . c. 35, s. 28. («) "The Court or Judge, or other officer." See post, section 31, 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 I40 The Mechanics' Lien Act of ONTARIO. Section 30. been commenced, then that the particular rehef referred to in this section may be obtained on motion without waiting for the trial of the action. Notice of the appH- cation must always be given to the owner or his agent, and two clear days' notice would appear to be sutficient. Sections:. 3^^ — (j) 7he liens creatf^d by this Act ?caH7.ingiiens. Hiciy bc realized by actions in the High Court [a] according to the ordinary procedure [li) of that court, excepting where the same is varied by this Act. (2) Without issuing a writ or summons, an action under this Act shall be commenced by filing in the proper office a statement of claim, verified by affidavit {c) (Form 5). (3) The statement of claim shall be served within one month after it is filed (^), 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 {e) (Forms 7 and 8) shall be the same as for entering an a[)pearance in an action in the High Court. (4) It shall not be necessary to make any lien-holders i)arties defendant (/) to the action, but all lien holders served with the notice of trial shall for all purposes be treated The Mechanics' Lien Act of ONTARIO. 141 as if they were parties to the action. 59 V. ^''''^'""^'- c. 35, s. 29. ('0 " may be realized by actions in the High Court-" The Act makes a considerable change in the procedure to enforce mechanics' liens. It abolishes the summary procedure prescribed by the Act of 1890 (53 Vict. c. 37) ; and it takes away the jurisdiction of both County and Division Courts to enforce mechanics' liens, and requires all such claims to be enforced by proceedings in the High Court, no matter what the amount claimed may be. This change was probably suggested by the fact that neither the County or Division Courts are adapted for working out such claims satis- factorily. {l>) "accordingto the ordinary procedure" Reference to the subsequent subsections, and to section 2,2)^ show that the ordinary procedure in an action is to be departed from by dispensing with the writ of summons, and in other particulars, and also in the mode of trial. It 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. The state- ment of claim would therefore appear to be intended to 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 bv writ of summons in the ordinary way: see infra, p. 143, note {d). 142 The Mechanics' Lien Act of ONTARIO, Section 31. (^) "^ 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 Bickerton v. Daki/i, 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. 'Pa.riit%.—P/ni/ififfs- 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 : sqq 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 wiiom the plaintiff seeks any relief should be made The Mechanics' Likn An oi ONTARIO. r.n defendants. The " owner " should always be made an SoiUonji. 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 [)rior mortgagee under section 7 (3), the mortgagee should be made an original defendant : see Ihiiik ost. action. 32» Any number of lien-holders, claiming secuon 32- liens on the same property («) may join in an j^'fj]„''g°'if^^'"^ action, and any action brought by a lien- holder shall be taken to be brought on be- half of all other lien-holders (Z*) on the pro- perty in (question. 59 V. c. ^^, s. 30. (a) "claiming liens on the same property.' For- merly an action to enforce a mechanics lien was for the 10 14''. Thk Mechanics' Ljen Act of ONTARIO. Section j2. benefit only of all the lien-holders of the same class, 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 piece 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- lord of ^\ in the same land, it might be questionable whether these liens, though against the same property, could properly be enforced in the same action. For 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 vice versa. n^^vilohUrsMo ^'') " taken to be brought on behalf of all other action''"*^ '" lien-holders ' Other lien-holders on the same pro- perty, not parties to the action, who are entitled under this section 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 : see Smith v. Doyle, 4 A. R. 477 ; 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 section, except as to the claim of the original plaintiff, even though the dismissal may have taken place before judgment obtained : McPherson v. Gedge, 4 O. R. 246. A lien-holder thus intervening The Mechamis' Lien Acr oi ONTARIO. H7 must indemnify the original plaintiff against all costs, flection 32. 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 : //'. 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 : /// re Sear or' Woods, 23 O. R. 474- After iudgment, no action on behalf of a class can -^^tj'.'" '!"t t" properly be dismissed, even by consent of the plaintiff ; ^fte'" ji»1k- 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 Arnhery v. Thornton, 6 P. R. lyo, 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. Retiihan, 25 Gr. 183 ; but see now sedio't 28, and note {c) 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). 148 The Mechanics' Lien Act of ONTARIO. Section 33- 33^ /\^,i action to enforce a lien may be actHon"to^' ^'^t^'i^'^l by the Master in Ordinary, a Local enforce lien, faster of the High Coui't, an Official Refe- ree, or a Judge of the County Court, in any county or judicial district in which the lands are situate {a) ; or by a J udge of the H igh Court of justice at any sittings of that court for the trial of actions. 59 V. c. 35, s. 31. {) hereinafter pro- vided. 59 V. 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 question arising in the action, at all events, so far as the enforcement of mechanics' liens is concerned. (/') " including the gfiving or refusing of the costs. ' The 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. Hogg, 14 P. R. 45. But 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^^o I HI-: Mechanics' Lien Act of ONTARIO. Section 34. Pailcii V. Laidlaw, 26 (). R. 189 ; but if the owner had any eciuitable right to be recouped out of the money if he liad retained it in his hands, (/mere, 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 Court had possession of the fund, for actus curice non 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. Hoi^j^\ 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 : /i>. 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 4r, 42, and 43, /^ost. Section 35. (r) After the delivery of the state- aaTfo"V"iai. nient of defence {a) where the phiintiff's The Mkchanics' Likn Act of ONTARIO. 15 claim is disputed, or after the time for de- ^<^"^35. 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, either 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 Judge, or other officer, 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 (r), and all questions which Trial, 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 he shall take all accounts, make all incjuiries, and give all directions, and do all other things necessary to try and otherwise finally dispose of the action and of all matters, questions and accounts arising in the action or at the trial, and to adjust the rights and liabilities of, and give all necessary relief to, all parties to the action or who have been serv(xl with the notice of trial, and shall 1-2 The Mechanics' Lien Act of ONTARIO. Section .5. embodv all the results in the judgmeiU ( Form 1 3 ). Estate may be / -> \ Thv I udsfc or officcr wlio tHes the sold. V - / - .' & 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 )udge 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. Sale of (->) The judofe or officer who tries the iiiateiials. ^ -^ ' .' & action may also direct the sale of any materials (e) and authorize the removal thereof. LettiiiKin (4) Anv Hcn-holder, who has not proved lien-holders ,.,.', • 1 r • r who have nut h,s claim at the trial ot an action to enforce a proved their claims at trial, I j^,i^^ OH 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. The Mechanics' I.if.n An oi ONTARIO. i53 Section 35. (5) Any lien-holder tor an amount not ,. K ,. ,11 Right of lien- exceednip- $ioo, or anv hen holder not a holders to o ^ ' _ attend at party to the action, may attend in person (^) *"'''• at the trial of an action to enforce a Hen, and on an\- proceedings 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 ^eport^where with whose approbation the lands are sold shall make a report on the sale (//) and therein direct to whom the moneys in court shall be paid, and may add to the claim of the person conducting the sale his actual disbursements incurred in connection there- with, and where sufficient to satisfy the judg- ment and costs is not realized irom the sale, he shall certify the amount of the deficiency and the names of the persons, with th(Mr amounts, who are entitled to recoyer 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. 59 Y. c. 35, s. 33. {(j) 'After the delivery of the statement of defence " As before remarked, it appears to be intended that no 154 The Mpxhanks' Lien Act of ONTARIO. Section 35. formal appearance need be entered but that the defendant may, without any preliminary, file a statement of defence ; or may content himself with entering an appearance, without filing any defence. (/') " may apply to a judge or other officer-" It was held byStreet, J.,in/'/7/^/V/',i,'Av;/ x.Jhynv/i, 28th March, 1898, that the application must be made on notice to the parties named as defendants ; and that where the application is made to the Master in Ordinary, his Chief Clerk has no power to act in his place ; and that the officers empowered to try actions to enforce liens, have no power to delegate their authority. As to the officers empowered to try actions to enforce mechanics' liens : see stipra, sfcfioii 33. {c) "shall proceed to try the action." Two modes of trying lien actions are indicated by this section, — (i) 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 sectio)i 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 (]ourt 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 Court. Where this mode of trial is adopted it does not appear probable that a judge of the High Court will try the action in the manner indicated in the subse(]uent part of this section, and a reference will probably be directed as The Mechanics' T.irn Act of ONTARIO. formerly to a Master to take the accounts and make the Section 35. necessary inquiries, and sell the property for the purpose of realizing the liens, and if that course is adopted, sub- sequent incumbrancers should not be made original defendants, but the Master would add them as parties in his office according to the usual practice : see Con. Rule 746 ; Cole V. Hall, 13 P. R., 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 a lien, and if he finds he has, then he is to proceed to try all the preliminary questions, and to ascertain whether there are any other liens or incumbrances on the property in question, 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 incumbrancers, 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 provision is made for adding them as parties before, or after, the trial, but they are required 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 D^ ,56 The Mechanics' Lien Act of ONTARIO. Section 35. 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 Form No. 13. In such cases it would seem necessary for a plaintiff at the trial to be prepared to produce the registrar's and sheriff's certificates for the purpose of showing who are the incumbrancers on the property in question, and who are entitled to notice of the proceedings. Sale of land. {(t) "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. Sale of (e) "may also direct the sale of any materials" In materials. ,,!•)« the R. S. O. (1887) 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 ante, section 2 (5). .Materials which have been affixed to the freehold cease to be moveable property. Notwithstanding the generality of the words " any materials," materials which are not subject to the claim of the lien-holder, could not be ordered to be sold, or The Mechanics' Lien Act of ONTARIO. 157 removed under this section Neither is it probable that Section 35. 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 secUon contem- plates the making of the application to be let in, after a report fixing the distribution has been made A diffi- 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 only 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. And more- over, \\\\% subsection does not seem to contemplate that a claimant coming in after the proper time should be allowed to disturb any 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 ^oS The Mechanics' Lien Act ok ONTARIO, Section ss- trial (No. lo) states that if the person on whom it is served does not appear and prove his claim or defence he may be deprived of all benefit of the proceedings. There is no sec/ion 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 be the necessary result, otherwise there would be no finality to the proceedings. The form of judy;ment (No. i.^) given in the Schedule contains a clau.se (par. 7) barring non-appearing parties. (.4,'^) 'may attend in person." Every suitor has the right to appear in any Court in person, and it is not at all probable that this subsection is intended in any way to restrict that right to lien holders for $roo or less ; the really important part of the sub section appears to be the concluding clause entitling such lien holders to be re- presented by agents who are not solicitors, this is merely extending to the High Court a right which suitors in Di- vision Courts are entitled to exercise : R S. () , c. 60, s. 126. (//) " report on the sale" The report on sale here re ferred to is to be in the form of similar reports in other actions, and must be duly confirmed, before it can be acted on : see Con. Rule 769. And before the purcha.se money can be paid out of Court it is necessary to produce to the Accountant evi- dence that the purchaser consents to the payment out, or that he has accepted a conveyance or vesting order : Con. Rule 743. In addition to the ordinary matter contained in a re- port on sale, it seems to be contemplated that the report Thk Mechanics' J.ien Act ok ONTARIO. 151; shall also state the result of the officer's findings on the ^^-^i^tion 35. other matters mentioned in this sub section : viz , 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 siib-sec/ion made equivalent to a judgment of the Court for the amount thereof, and it may be enforced in like manner as a judg- ment. 36. The party obtaining an appointment(^) -"Section 36 fixing the day and place of trial shall, at least i^fauind -. service ot eight clear days [b) before the day fixed for' the trial, serve a notice of trial which mav be in Forni 10 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 (f) as required by this Act, or who are known to him, and on all other persons having any charge or incum- brance {d), or claim on the said lands, who are not parties, or who, being parties, appear personally in the said action, and such service shall be personal unless otherwise directed by the Judge or officer who is to try the case, who may, in lieu. of personal service, direct in what manner the notice of trial may be ser- ved. 59 V. c. 35, s. 34. i6o The Mechanics' Lien Act of ONTARIO. Section ^6. < )iher lien- holders, etc. hi)W ascer- tained. (a) " 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. (b) "at least eight clear days-' Both the day of service and the day of trial are to be excluded from the eight days. The ordinary practice requires 10 days : see Con. Rule 538. (r) " 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 (juesiion. Formerly, under the Act of 1887, in an action to enforce a mechanic's lien, only lien-holders of the same class 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, are 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 be served with the notice of trial, a search must be made in the proper Registry Office, or Land Titles Office, for all liens registered up to the com- mencement of the action and not then expired by effluxion of time ; it is not, however, necessary to The Mechanics' Lien Act oi ONTARIO. 16 1 search whether any other actions have been commenced, Section 36. 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 Bunting \. Bell, 23 (ir. 584. Formerly where a lien-holder, after the institution Costs of action . . . ^^y other 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 Bowes, 3 C. L. T. 606. {d) " 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. ^Vhether 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 section 35. Prior 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 prior mortgagees or chargees are improperly 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, II i62 The Mechanics' Lien Act oe ONTARIO. Section 36. against 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 Bank of Montreal v. Haffner, to A. R. 592 • S. C. sul) nom. 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 37. 37. When iiKjre than one action is brought Consolidation to realize liens 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 (ct), and may give the conduct of the consolidated action to any [)laintiff he sees fit. 59 V. c. 35. s. 35. {a) "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 Mechanics' Lien Act of ONTARIO. \6 should be entitled in the several actions thus consoli- -'section 37. 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 which 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 section 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, Co/i. Rule, 435, and notes in Hobiiested ^^-^ Langton, p. 602 et seq. 38. Any lien-holder entitled to the benefit ■'^c'-tjon 3s. of the action {a) may apply for the carriage jf^'^'^j.^|^^''^^f"8: of the proceedings, and the Judge, or any p'"'"'"^^'^'"^'- other officer having power to try the action, may thereupon make an order giving such lien-holder the carriage of the proceedings, and such lien-holder shall for all purposes thereafter be the plaintift' in the action. 59 V. c. 35. s. 36. 164 The Mechanics' Lien Act of ONTARIO. Section 38. {(i) " Any lien-holder entitled to the benefit of the action-" Ordinarily in a class suit the plaintiff is domi- nits li/is until judgment, and the action may, by his con- sent or default, be compromised, or dismissed : see Sinith V. Doyh\, 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 : McPherson v. Gedge, 4 O. R. 246 ; but 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 ; Iti re Sear 6^ Woods, 2;^^ 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 question : sqq section 32, 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, it would seem proper to re- quire him to indemnify the original plaintiff against any future costs : see Patterson v. Scott, 4 Gr. 145 ; iMcPher- so/i v. Gcdge, supra. 39. ( I ) In all actions where the total men[of court amoLiiit of the claiiiis of the plaintiff and other of first in- ,..,.. finTi''^^"'"' ptirsons claiming liens is $100 or less (f?), the judgment shall be final (6), binding, and with- out appeal, except, that the Judge or officer who tried the same ma\ , upon application Section 39. Where iudg- The Mechanics' Lien Act of ONTARIO. 165 within fourteen days after judgment is pro- Section 39. nounced, grant a new trial. 59 V. c. 35 s. 38 ; 60 V. c. 24, s. 9. (2) In all actions where the total aniount to'D/vistonar^ of the claims of the plaintiff and other per- sons claiming liens is more than $100 (c) 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 the appellant, but the respondent may appeal therefrom to the Court of Ap- peal, whose judgment shall be final and bind- ing on all parties. 60 V. c. 15, Sched. A (77); c. 24, s. 10, (i). {3) In all other cases an appeal may be otherca "es. - had in like manner and to the same extend as from the decision of a Judge trying an action in the High Court without a jury (e). 60 V. c. 24, s. 10 (2). (a) " where the total amount of the claims of the plaintiff and other persons claiming liens is $100 " A judgment to enforce a mechanic's lien is of a com- posite character and may be regarded as several judg- ments combined ; inasmuch as the adjudication in favour of each claim filed constitutes a judgment in favour of the claimant. This serfw?/ must be read, how- 1 66 The Mechanics' Lien Act of ONTARIO. 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 $roo, 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 Otificer 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 would seem that an appeal to a Divisional Court might be had as to any of the claims included therein, even though individually less than $roo. 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 ; Sher- lock v. Powell, 18 P. R. 312. The word " extend " in this subsectio7i 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 Mechanics' Lien Act of ONTARIO. 167 the first Monday of every month, and continues its sit- se=tion ;^9. tings from day to day for 2 weeks, or longer, (Saturdays and holidays excepted) as the business before it may require: Con. 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 i'?ii. 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. (f) " 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 Judica- ture Act., s. ;5 (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 Siip7-eme and Exchequer 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 ^^'^'j^^- , , \ rr • Limit of fees be payable to any ucip:e or other orncer in in money or i- J J J o stamps. 1 68 The Mechanics' Lien Act of ONTARIO. Section 4". jiiiY actioH brought to realize a lien under this Act. nor on any filing, order, record or judgment, or other proceeding in such action, excepting that every person other than a wage-earner shall, on filing his statement of claim where he is a plaintift^, or on filing his claim where he is not a i)laintifr, pay in stamps one dollar on every one hundred dol- lars, or fraction of one hundred dollars, of the amount of his claim up to one thousand dol- lars. 59 \\ c. 35, s. 37. 60 Y. c. 24. s. 8. (a) "No fees in stamps or money" This secfum virtually abrogates the provisions of Co//. Rule 11 79, as regards actions to enforce mechanics' liens, and intro- duces an entirely different method of payment of the fees of Court in such actions, viz., 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 Court 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 4() (2), post^ P- 175- The Mechanics' Lien Act of ONTARIO. 169 41. The costs of the action (^0 under this ^^^'^'°"'*'- Act awarded by the Judge or officer trying J'o'piaintiff'.^^'' the action, to the plaintiffs and successful lien-holders (/;) shall not exceed in the aggre- gate an amount equal to twenty-five percent, of the amount of the judgment (f) besides ac- tual disbursements, and shall be in addition to the amount of the judgment, and shall be apportioned and borne (d) in such proportion as the Judge or other officer who tries the action may direct. 5g V. c. ;^>^, s. 41. (a) ''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 section 40, ante. 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 : see posi^ section 44. {b) "to the plaintiffs and successful lien-holders." This section 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, — eg., 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. lyo The Mechanics' Lien Act of ONTARIO. Section 4T. (^) "the amount of the judgment.' These words LimiT^ costs are somewhat ambiguous ; they may refer to the aggre- to plaintiff. g^jg 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 " ///), 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. («) " against 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. {,b) "the claim of the plaintiff and other claim- ants." It is possible that these words are intended i-j2 The Mechanics' Lien Act of ONTARIO. Section 42. 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 peison's 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 plaintiff, 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 allowed for the vacating the regis- tration of the lien : see section 44, post. 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. {c) " shall be apportioned and borne ' It has been already intimated, that where costs are awarded against The Mechanics' Lien Act of ONTARIO. 173 the plaintiff or other persons claiming Hens, such costs Section 42. will probably be ordered to be borne by the plaintiff and others according to the amounts of their respective claims. 43. In case the least expensive course is Section o not taken by a plaintiff under this Act, the PealfexpeT ,, , , !• • 1 11 • sive course not costs allowed to the solicitor shall in no case taken, exceed what would have been incurred if the least expensive course had been taken. 59 Y. c. 35, s. 43. See Co/i. J\iilcs 1 1 75 ; Hoi /nested i!^ Langto/i, p. 1290. 44. Where a lien is discharged or vacated section 44- under section 27 of this Act or where in an ac hi'Jand^regt^' 1 ^ • • • c r • tering and tion, ludafnient is tjiven in favour ol or ao^ainst vacating ,.,-,. ..... , ^ - registration of a claim for a lien, in addition to the costs of an i^^" action {a), the Judge or other officer may allow a reasonable amount (/>) for costs of drawing and registering the lien or for vacat- ing the registration of the lien. 60 V, c. 24, s. II (2). {a) " the costs of an action." The costs of an action are provided for by sections 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. '74 The Mechanics' Lien Act of ONTARIO. bection 44. Section 45. Costs not otherwise provided for. Section 46. (/') " 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, the costs 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. 45. The co.st.s of and incidental to all ap- plications and orders made under this Act and not otherwise provided for shall be in the discretion of the Judge or officer to whom the application or order is made. 60 V. c. 2 . s. I I ( I ). See sec f ions 41, 42, 44, 4() (2). Payments out 46. — (i.) Excepting' ill actioiis tried by a of court. - 1 I t • 1 /-^ 1 I 1 ' Judge [a) ot 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 recjuisition 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. 175 return to the said Judge or ofticer checjues •'^^ction+e. 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 \\ c. 35, s. 45 ; 60 V. c. 24, s. 12. (2) No fees or stamps (c) shall be payable bepVyaWe on 1 t • payments out on any cheques or proceedmgs to pay money of court, into court or obtain monev out of court, in respect of a claim of lien, but sufficient post- age stamps to prepay a return registered let- ter shall be enclosed with ev'ery requisition for cheques. 59 Y. c. 35, s. 46 ; 60 A', c. 24. s. 13. (a) "Excepting in actions tried by a Judge-" this exception removes from its operation, all mechanics' lien actions which 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^Ti-^ 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 sub section 2, supra. No fees of court are payable on the cheques : //'. .76 Section 46. Section 47. Form of judgment in favour of lien-holders. The Mechanics' Lien Act ok ONTARIO. (c) "No fees or stamps-' By seaiofi 40, n/ife, 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 siz/'-secfiofi so far as it dispenses with the payment of fees or stamps on cheques, etc., seems superfluous. 47. All luclgmcnts in tHVour ot litn- holders .shall adjudge that the person or persons j)ersonally liable for the amount of the judgment (c^), 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 judg- ment and costs is not realized therefrom, the deficiency may be recovered by execution against the property of such j)ers()n or per- sons. 59 V. c 35. s. 47. {(i) " persons personally liable for the amount of the judgment." 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-" 'I'his sect io/i dots 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 The Mfxhanics' Lien Act of ONTARIO. '77 application of whatever may be realized from the lien. Section 47- 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 section against their primary debtors : see per Rose, J., Weatherdon v. Robinson, Q B.D., 23 Mar., 1888. But 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 section^ 48. the provisions of this Act any claimant shall ^^^f^l^^^' fail {a) for any reason to establish a valid lienfatis" 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. 4';Pj^t;J°,^^^ The Act does not cast upon the lienho'der the duty of of. 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'r 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 d-= Etvart^ pp. i86 The Mechanics' Lien Act of ONTARIO. Section 51 136-143, 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. Section 52. 52. The provisions of this Act so far as "ppTiisto"^^' 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). See supra, pp. 30-34, 45-47- railways. The Mechanics' Lien Act of ONTARIO. 187 SCHEDULE. Form i. (Section ij.) Claim of Lien for Registration. A. B (name of claimant) of (here state residence of claimant,) (if so, as assignee of, stating name and residence of assignor) under The Mechanics' and Wage- Earners' Lien Act claims a lien upon the estate of (here state the name and residence of owner of the land upon ivhicli 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 whose credit the work is done or materials furnished,) (b) 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 claimu;g under him subsequently to the (date ■when lien attached)" : see a>ite, p. 104. (b) The omission of the particulars referred to in this parenthesis by a sub-contractor 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 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 (/lere set out a concise description of the land to be charged sufficient for the purpose of registration) (c). IFhen credit has been given, insert : The siid work was done [or materials were furnished] on credit, and the period of credit agreed to expired [or will expire] on the day of Dated at this day of , A.D. 18 . . (Signature of claimant.) l'V)KM 2. (Section ly ) Claim of Lien for Wages, for Re,^istratioji. A. B. (name of claimant ) of (here state residence of claimant,) (if so, as assignee of, stating ?iame and residence of assignor) under The Mechanics' and IVage-jEarners' Lien Act claims a lien upon the estate of (here stare the name and residence of the owner 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 : see 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. The Mechanics' Lien Act of ONTARIO. 189 the lien is claimed)^ (a) in the undermentioned land in respect of days' woric performed thereon while in the employment of (here state the name and residence of the person upon 7vhose credit the work ivas 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 (f claimant.) Form 3. {Section 18.) Claim of Lien for Wages by Several Claimants. The following persons under The Mechanics' and IVage-Earners' Lien Act claim a lien upon \\\e e's,\.di\.e oi {here state the name and residence of the 07vner of land upon which the lien is claimed) {a) in the undermentioned land in respect of wages for labor performed thereon while in the employment o{ {here state name ajid residence., or names and residences, of employers if (he 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 registratioti). Dated at this of {Signature of the sevei-al claimants.) (a) See note (a) to Form i. 190 The Mechanics' Lien Act of ONTARIO. Form 4. {Section ly.) Affidavit Verify i}ig Claim for Registration. I, A. B., named in the above {or annexed) claim, do make oath that the said claim is true. Or, We, A. B. and C D., named in the above {or annexed) claim, do make oath, and each for himself says that the said claim, so far as relates to him, is true. [ Where affidavit made by agent or assignee a clause ?nust 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 , in the county of , this day of , A. D., 18 Or, The said A. B. and C. D. were sever- ^ ally sworn before me at , in the county j of , this day of , f A.D., 18 . J 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. 191 Form 5. {Section ji.) Affidavit Verifying Claim in Commencing an Action. {Style of Court and Cause.) {a) I, , make oath and say, that I have read, or heard read, the foregoing statement of claim {b) and I say that the facts therein set forth are, to the best of my knowledge and belief, true, and the amount claimed to be due to me in respect of my lien is the just and true amount due and owing to me after giving credit 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 Regis tra tion . {Stvle 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. 15, 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. 192 The Mechanics' Lien Act of ONTARIO. Form ■;. {Section J/.) Defence. {Sty/c of Coitrl a /id Ciu/sc.) A. B., disputes that the plaintiff is now entitled to a mechanic's lien on the following grounds : {Setting forth the grounds shortly. ) {a{ The lien has not been prosecuted in due lime as required by statute. (d) That there is nothing due to the plaintiff. {c) That the plaintiffs lien has been vacated and discharged. (d) That there is nothing due by {the o7vncr) for the satisfaction of the plaintiffs claim. Delivered on the day of by A. B. in person, whose address for service is {stating address zvithin two miles of the court housed, or Delivered on the day of by K 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 Acr of ONTARIO. 193 Form 8. (Section ji.) Defence where there are no matters disputed, or ivhere 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 question herein $500 00 Amounts paid on Account. June ist, 1889, paid E. F. $200 00 July I St, 1889, paid G. H. and /. K., sub-con- tractors oi 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. 13 194 The Mechanics' Lien Act of ONTARIO. Form 9. (Section 4g.) Affidavit of Ow tier Verifying Account. {Style of Couft 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 same were made ; and the balance of \$2o6\ 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. The Mechanics' Lien Act of ONTARIO. 195 Form 10. {Section j6. ) Notice 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 following lands : — {set out description of lands.) This notice is served by, etc. 196 The Mechanics' Lien Act of ONTARIO, Form it. {Sectioti 4g.) Statement of Account by Lien-holders, not parties to the action. {Style of Court attd Cause.) E. F. Dr. to G. H. 1889. Jan. I, To 12 doz. brackets $12 00 Feb. 3, " 50 lbs. of nails 5 00 Oct. 3, " 60 sheets of glass 40 00 $57 00 Cr. 1889. Feb. 4, By cash $ 4 00 June 5, " goods 20 00 $24 00 The Mechanics' Lien Act of ONTARIO. 197 Form 12. {Section 4g.) Affidavit of Lien-holder Verifying Claitn. {Style of Court and Cause.) I, G. If., of {address and occupation), make oath and say : — I have in the foregoing account {or\x\ 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 oivner) [or by £. F., who is a contractor with the defendant, L. G. {the ozvne?-), ] 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 6-1 1. 198 The Mechanics' Lien Act of ONTARIO. Form 13. {^Section jj.) Judgmetit. In the High Court of Justice. Name of Judge or officer. Monday the loth July, 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 7vith notice of trial) zvkdi all such persons ipr as the case 7nay be) appearing at the trial [if so and the following persons not having appeared set out naines 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 defendant \if so^ndi by A. B. 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 primarily The Mechanics' Lien Act of ONTARIO. 199 liable for the said claims respectively are set forth 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 which 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 {owner) and deliver up all documents on oath to the said defendant {owner) 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). 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 insufificient 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 The Mechanics' and Wage Earners' Lien Act, and that they are not entitled to any such lien, and this Court doth order and adjudge that the claims of liens respectively registered by them against the lands mentioned in the said 2nd schedule be and the same are hereby discharged, accordifig to the fact. ^ SCHEDULE I. Names of lien-holders entitled to mechanics' liens. Amount of debt and interest (if any). Costs. Total. Names of primary debtors. (Signature 0/ officer issuing judgfnent.) The Mechanics' Lien Act of ONTARIO. 20I SCHEDULE 2. The lands 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 other 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. Form 14. {Section 2/.) Certificate Vacating Lien. {Style of Court and Cause.) Date. I certify that the defendant A. 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. F., G. H., I. /., and K. Z., and their liens are hereby vacated and discharged so far as the same affect the following lands {describe lands). {Signature of Master or Referee.) Form 15. {Section 27.) Certificate Vacating Lien. {Style of Court and Cause.) Date. I certify that 1 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 V\ age - Earners' Lien Act of Manitoba. (6 1 Victoria, Cap. 29.) \_Assented to 2'jth Aprils i8g8. LJER 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 Aci/ 1898 " 2. Where the following words occur in section a. this Act, or in the schedules hereto, they interpretation shall be construed in the manner hereinafter mentioned unless a contrary intention ap- pears : — (i) "Contractor" shall mean a person "*^*'"*''^*=t**'"" contracting with or employed directly by the owner or his agent for the doing of work or ( 203 ) 204 Section 2. " Sub con tractor." " Owner." "Person." The Mechanics' Lien Act of MANITOBA. 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 who.se 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 The Mechanics' Lien Act ok MANITOBA. 205 a body corporate or politic, a firm, partner- ^^^^'"" '• ship or association. (5) " Material" shall include every kind of" Material." moveable property. (6) "Registry office" shall include landXT--''^ titles office. (7) "Registrar" shall include " District" ^^s'"*'"^^" Registrar." See Ont. 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, II 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. (rt) 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 fo^^gpr-ve^*"^ Act, and not a party to the agreement, of theuen. 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 2o6 The Mechanics' Lien x'\ct of MANITOBA. Section 3. infra, s. 4. A contractor cannot bind any sub-contractor by any such agreement : Atily v. Holy Trinity Church, 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 \\ Besant, 3 Man. 519. Section 4. 4. (i) Unless he signs an express agree- Natureofiien. ^gpj- jq j-j-jg 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 [b), sidewalk, paving, fountain, fish- The Mechanics' Lien Act of MANITOBA. 207 pond, drain, sewer, aqueduct, roadbed, way, (a) Section 4. 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 ^i°n! under $20. shall exist under this Act for any claim under the sum of twenty dollars. (2) Such lien, upon regfistration as herein- (^""'"'nence ^ ' i c5 merit of liei 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 (d). 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 liens 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 lien. 2o8 The Mechanics' Lien Act of MANITOBA. Section 4- his Contract, he could not enforce a lien for any more than what, if anything, was actually due according to the contract : Brydon v. Lutes, 9 Man. 463 ; and see Mc- Arthur \. 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 {4), Jfost 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 : An/y V. Nb/y Trinity Church, 2 Man. 248. Municipal buildings have in Manitoba been held to be subject to mechanics' liens : McArthur v. Dewar, 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 lyg). The claim of a lien-holder under this Act, is a prefer- ential claim under The Dominion Winding-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 words " 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 1, are not in the Ont. Act. The Mechanics' Lien Act of MANITOBA. 209 5 — (i) The lien shall attach upon the sections- estate or interest of the owner as defined by wwErlfen^'"" 1 • L • 1 ■ 1MT /\i 1 shall attach. this Act in the erection, building [a), land, wharf, pier, bulkhead, bridge, trestle-work, vault, mine, well, excavation (6), sidewalk, paving, fountain, fishpond, drain, sewer, aque- duct, roadbed, way (c), and the appurtances thereto, upon or in respect of v.hich the work 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 ^^^^^l^^i^f^^ charged by the lien is leasehold the fee ^^^^ ° simple may also, with the consent of the owner thereof, be subject to said lien, provided such consent is testified by the sig- nature of such owner upon the claim ot lien at the time of the registering thereof, and duly verifi.'^d. (3) In case the land upon or in respect of,^and^^*^^*^ 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 2IO The Mechanics' Lien Act of MANITOBA. Section 5- shall havc 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, to the same effect as this section, with the exception Q){ sub section 3, which is somewhat different. {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 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 V. Jeffrey, 10 Man. 514 ; but the purchaser cannot defeat the lien on the purchaser's interest by taking a release thereof : //'. Section 6. ^ Where any of the property upon which oV^nsuSe ^1 lien is given by this Act is wholly or partly Ttuches." destroyed by fire, any money received by reason of any insurance thereon by an owner or prior mortgagee or chargee shall take the place of the property so destroyed, and shall, 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 of MANITOBA. 211 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 Section 7. not attach so as to make the owner liable foramounTof 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 ofifice : McLennaji 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 work were properly performed, but which the contractor has failed to earn : McArthur v. Dewar, 3 Man. 72 ; and see Brydon v. Lutes, 9 Man. 463 ; unless he be a wage-earner to whom section 12 (4), itifra, applies. But the contractor cannot, by release or assignment of 212 The Mechanics' Lien Act of MANITOBA. Section 7- 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. Sections. g^ Savc ES herein provided, where the hen wKcfaimed IS claimed by any other person than the con- ot^hl?™^ 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. 9^ (f^ In all cases the person primarily bede'duct^ed^^'li^^^^^ upon any contract under or by virtue of which a lien may arise under the provisions of this Act shall, as the work is done or 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 be deducted and retained bv owner. The Mechanics' Lien Act of MANITOBA. 213 period of thirty days after the completion or ^^'^^^9- abandonment of the contract twenty percent, 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 Hen created by this Act. 2 14 The Mechanics' Lien Act of MANITOBA. Section 9. ^^j 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. 11, supra^ p. 60, to the same effect. Section 10. iQ^ I n case an owner or coutractor chooses mad™?ngood to make payments to any persons referred to faith without . ^ . r i • a r ^ r notice of lien. HI Section 4 oi this Act tor or on account oi 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 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 of MANITOBA. 215 be, on his contract generally, but not so as to section 10. 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 section ir. 1 • • 11 • 1 .. ,..• Priority of have priority over all judgments, executions, lien. 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 hereinafter provided. (2) In case of an agreement for the pur- fofpurcS, chase of land, and the purchase money or purchase m- ' ney unpaid. part thereof is unpaid, and no conveyance made to the purchaser, the purchaser shall, for the purposes of this Act and within the meaning thereof, be deemed a mortgagor and the seller a mortgagee. (3) Excepting where it is otherwise de-rmongHen- ,,,,.. -1 1 holders. 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 2 l6 The Mechanics' Lien Act of MANITOBA. Section I. ^pjy 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 lienholders, ex- cept where it is otherwise declared by this Act. shall rank pari passu for their several amounts, and the proceeds of any sale shall, subject, as aforesaid, be distributed among the lienholders pro rata, according to their several classes and rights. See Ont. Act, s. 13, siipra, p. 72, to the same effect. section"i2. J2. (i) Every mechanic or laborer whose ulnTirwages. ^^^'^'^ ^^ fo>* 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 pari passu on said twenty per cent, or fifteen per cent., as the case may be. The Mechanics' Lien Act ok MANITOBA. 217 (2) Every wage-earner shall be entitled to '"^^"'^'"" '"■ enforce a lien in respect of the contract not .^"guch'cl'ses" completely fulfilled. (3) In case of the contract not having been percentage^ completely fulfilled when the lien is claimed not'fiufiiied!*''^ by wage-earners, 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 ^orto^be^^ makes default in completing his contract the apph^e'd!^^ 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. (5) Every device by an owner, contractor ^^^^l^^^^s^t"^. or sub-contractor adopted to defeat the prior- eL^efs." ity given to wage-earners for their wages by this Act shall, as respects such wage-earners, be null and void. 2i8 The Mechanics' Lien Act of MANITOBA. Section .2. ^^^ "Wages" shall mean money earned niYanml'of by a mcchanic or laborer for work done, whether by the day or as piece work. See Ont. Act, s. 14, supra, p. 77, to the same effect, except sill) section (6), as to which, see Ont. Act, s. 2 (6), supra, p. 5. Section i- 13. (i) During the continuance of a lien remo'?rmate° no portion of the materials affected thereby by lien^"*^' 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. ^'.oodsfur- (->) When any material is actually brought nished for car- ^^'' ^ JO noTto^be^sub** upon any land to be used in connection with tton. " ^''*'^" 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. The Mfxhanics' Lien Act of MANITOBA. 219 See Ont. Act, s. 16, supra, p. 90, to the same effect as Section 13. xQQ^sccA?, sub-sections {\) 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 the 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 ' ^^ '"" ''*' land titles office in which 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 {'/g^'^''" ^°'" 2 20 The Mechanics' Lien Act ok MANITOBA. Section .5. claiming the lien and of the owner of the property to be charged (or of the person whom the person claiming the lien, or his agent, believes to be the owner of the property to be charged) and of the person for whom and upon whose credit the work (or service) is done, or 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. Formofciaim. (2) The claitti may be in one of the forms given in the schedule to this Act and shall be verified by the affidavit of the person The Mechanics' Lien Act of MANITOBA. 221 claiming the lien or of his agent or section 15 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. 17 (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 Irwin v. Bey turn, 4 Man. 10. As to the statement of the time when the work was done or materials supplied : see Kelly v. McKenzie, i Man. 169; Flack \. Jeffrey, 10 Man. 514. Section i6. 16. A claim for lien may include claims .J What mav be asfainst any number 01 properties, and any included o J 11 "^ m claim. 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. 222 The Mechanics^ Lien Act of MANITOBA. Section 17. 17^ (i) j\ substantial compliance only bi^im-aHdated with Scctions 15 aocl 16 of this Act shall be ifty!" °^™'' required, and no lien shall be invalidated by reason of failure to comply with any of the requisites of Sections 15 and 16 of this Act, unless in the opinion of the Court, Judge, or 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. J'effKed.^^*' (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. r'^gfsteredas 18. (i) The registrar upon payment of b?an"ce'''"" his fee, shall register the claim, so that the same may appear as an incumbrance against the land therein described. tra't/on.*^^''*" {^) The fee for registration oi a claim of lien for wages shall be twenty-five cents. See Ont. Act, s. 20, suprx, [). 106, containing similar provisions. The Mechanics' Lien Act of MANITOBA. 223 19. Where a claim for lien is so registered, ''^^•'^" '^■ the person entitled to the said lien shall be fegfs°terinK a , 1 • U • purchaser deemed a purchaser, pro mnw, and wiihm pro tanto. 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. 20. (0 ^ claim for lien by a contractor Section 20. , . .1 Claims for or sub-contractor may, in cases not other- uens when to ■' 1 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 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 224 The Mechanics' Lien Act of MANITOBA. Section 20. 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 v. Murray, 2 Man. 209 ; but under the present Act, it is not necessary to register the lien before action, if the certificate of lis pendens 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 : Chadtvick v. Hu7iter, 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 v. 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. 225 which the time for registration of the claim must be Section 20. computed : Ir^vin 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. Bradkij, 5 Man. 49 ; but see supra, p. 100. Under the former Act an assignee of a person entitled to claim a lien, Oiight register the claim verified by his own affidavit : Ke/iy v. McKenzie, i Man. 169 ; and see infra, s. 23. 21. Every lien which is not duly regis- '^^^^iZ? - , . , . . r \ • \ I-iens to cease tered under the provisions 01 this Act if action not ^ _ ■ _ commenced shall absolutely cease to exist on the expira- Axed by^Ac^t tion of the time hereinbefore limited for the registration thereof, unless in the meantime an action is commenced to realize the claim, or in which the claim may be realized under the provisions of this Act, and a 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 effect. 22. Every lien which has been duly .Section 2.'. registered under the provisions 01 this cease if regis " ^ tered and Act shall absolutely cease to exist after '""'^^'^''■d J upon. the expiration of ninety days after the worl- or service has been completed or materials 15 ipc Is. 226 The Mechanics' Lien Act of MANITOBA. Section 22. Y^^YQ been furnished or placed, or the expiry of the period of credit, where such period is mentioned in the claim of lien registered, unless in the meantime an action is 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. S. 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. 23. In the event of the death of a lien- Death^ofiien- holclcr 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. Section 24. 24. (i) A lien maybe discharged by a uln'!^^'^^^ ''^ 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 Section 24. registering a claim of lien. (2) Upon application the Court, or ludofe, ^''''""^y9>• ^ / i ^ j^ 'J o ' payment into or Local Judge, having power to try an eating IfeV^ ^' ^ ^• ^• • • thereon. 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 |ud8:e, or Local ^''sating ^^' ' Jo' registration Judge, may vacate the said registration upon grounds, any other ground. (4) The taking of any security for, or ^'^[fj'^^^9t« the acceptance of any promissory note for, or en'forcf nlr*^ 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 any 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 2 28 The Mechanics' Lien Act ci MANITOBA. Section 24. Qf ^}-,jg 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 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. Sub-sectio?i (i) in the Ont. i\ct is somewhat more full in its provisions. Sub- sections (2) (3) are to the same effect. As to sub-section (4) of this section, see Ont. Act, s. 28, which is to the like effect. Section 25. 25. Any lienholder or person entitled Lien-hoideis [q a Heu mav at any time demand of to be entitled -' •' frJm orneVas the owner, or his agent, the terms of to terms of , ^ '^i ^u contract. 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 de- mand or within a reasonable time thereafter, The Mechanics' Lien Act of MANITOBA. 229 inform the person making such demanci, of ^'"^^^'''^■ the terms of such contract or agreement, and the amount due and unpaid upon such contract or agreement, or shall intentionally or knowingly falsely state the terms of said contract or agreement, or the amount due or unpaid thereon, and if the person claiming the lien 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 '^^^^^''- hf Order for avinp^ power to try an action to realize inspection of 1 • • contract by a hen, may, on a summary application at ''en-hoiaer. 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, sipm, p. 139, to the like effect. 27. (i) The liens created by this Act ^e<=tion-'7- may be realized by actions in the Court ofi^ng'^i^-^^'"^'*''''" 230 The Mechanics' Lien Act of MANITOBA. Section 27. Queen's 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 effect of taking security, and also for commencing The Mechanics' Lien Act of MANITOBA. 231 an action before the period of credit expires, where it Section 27. extends beyond the time limited for bringing an action to enforce the lien : see supra., p. 227, section 24 (4). Formerly where any material amendment of a bill was made, the amended bill had to be registered as a lis pendens within the time prescribed for registration, or the lien would cease. Thus 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 Man. 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 : Irwin v. Beynon, 4 Man. 10 ; a misno- mer of the defendants, a corporation aggregate, was held to be of this character : Moo?-e v. Bradley, 5 Man. 49. 28. Any number of lienholders, claiming section 28. liens on the same property, may join in an •ofnlngin^'"* 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.Sn^foriYi'n. 232 The Mechanics' Lien Act of MANITOBA. Section 29. gei^ich ^j; ^iiy regular sittings thereof for the triril of actions, or when the aggre- ^gate amount of the liens involved does not exceed the sum of $1,000 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. Lo^aYjudge such action shall have the ' powers of a for lien. Local Master under " The Queen's Bench Act, 1895, " ^"^"^ ^^^ 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. tmg al. The Mechanics' Lien Act of MANITOBA. 233 and make all orders for the transmission of ^^"^'°" ^° 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- section 31- ment of defence where the plaintiff's claim is di'/f^orti" 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 Bench, 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- -> 1 4 The Mechanics' Lien Act of MANITOBA. Section 31. qyii-jes and give all directions, and do all things necessary to try and otherwise final- ly dispose of the action and of all matters, questions and accounts arising in the action or at the trial, and to adjust the rights and liabilities of and give all necessary relief to all parties to the action or who have been served with the notice of trial, and shall embody all the results in the judgment. Smf f^orsafe'" (2) The Judgc or Local Judge who tries the action may order that the estate or interest charged with the lien may be sold, and when, by the judgment, a sale is directed of the estate or interest charged with the lien, the Judge or Local Judge 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. ?f*matl"r?ai''!''' (s) The J udge or Local J udge who tries the action may also direct the sale of any materials and authorize the removal thereof. i^ln-iiofders (4) ^"Y licnholder, who has not proved who have not U • 1 • 1 • i r • . c proved their HIS claim at the trial of any action to enforce a claims at trial... r • 1 T J T 1 lien, on ap{jlication to the Judge or Local Judge who tried the action on such terms as to The Mechanics' Lien Act of MANITOBA. 235 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 Local Judge shall amend the judg- ment so as to include such claim therein. (5) When a sale is had the Judge or Local f^.^is^Za Judge with whose approbation the lands are sold shall make a report on sale and therein direct to whom the moneys in Court shall be paid, and may add to the claim of the person conducting the sale his actual disbursements incurred in 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 of the Court. here Attendance in (6) Any lienholder for an amount not person at trial ^ ' ■' by certain exceeding $100, or any lienholder not a i'^^-^^'^^^'"^- 236 The Mechanics' Lien Act of MANITOBA. Sections., party to the action, may attend in person at the trial of an action to enforce a lien, and on any proceedings in such action, or may be represented thereat or thereon by a solicitor or by an agent who is not a solicitor. See Ont. Act, s. 35, supra, p. 150, to the same effect. Section 32- 32. The party obtaining an appointment Notice of trial, f^,^ij-igr the dav and place of trial shall, at least service of. o z i 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 as re- quired by this Act, and on all other persons having any registered charge or incumbrance, or claim on the said lands, who are not 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. The Mechanics' Lien Act of ONTARIO. 237 33. Where more than one action is brought section 33. to reaHze liens in respect of the same pro- of'actfonr'"" 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 of 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 section 34. of the action may apply for the carriage ia^Hlgeo"^ proceed in firs of the proceedings, 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 ^^^"35. of the claims of the plaintiff and other persons menTordfun claimmg liens is $100 or less, the said judg- instance to be ment shall be final, binding, and without appeal, except, that upon application within 2->8 The Mechanics' Lien Act of MANITOBA. Section 35 fourteen days after judgment is pronounced, to the Judge or Local Judge who tried the same, he may grant a new trial. See Ont. Act, s. 39 (0. supra, p. 163, to the same ef- fect. Section 36. 3g^ In all actions where the total amount When appeal Qf ^^e claims of the plaintiff and other persons lies. ^ claiming liens is more than $100, any party affected thereby may appeal therefrom to the Court of Queen's Bench in Term, whose judgment shall be final and binding, and no appeal shall lie therefrom. The procedure upon appeal from the judgment of a Local Judge shall be the same as upon appeal from a judgment of a Judge. See Ont. Act, s. 39 (2), supra, p. 165, which contains somewhat similar provisions. Section 37- 37. The costs of the action awarded in Limit of costs any action under this Act, by the Judge or to plaintiff. J i i • Local Judge trying the action, to the plain- tiffs and successful lienholders shall not exceed in the aggregate an amount equal to twenty-five per cent of the amount of the judgment besides actual disbursements, and shall be in addition to the amount of the The Mechanics' Lien Act of MANITOBA. 239 judgment, and shall be apportioned and borne section 37. in such proportion as the Judge or Local Judge who tries the action may direct. See Ont. Act, s. 41, supra, p. 169, to the same effect. 38. Where the costs are awarded against section^ss. the plaintiff or other persons claiming the t^J^i^waS lien, such costs shall not exceed an amount in pfl\ndffs. the aggregate equal to twenty-five per cent. of the claim of the plaintiff and other claim- ants, besides actual disbursements, and shall be apportioned and borne as the Judge or Local Judge may direct. See Ont. Act, s. 42, supra, p. 171, to the same effect. 39. In case the least expensive course is section 39. not taken by a plaintiff under this Act the co|tsjhere costs allowed to the solicitor shall in no case no'tVa°ke'tf^ exceed what would have been incurred if the least expensive course had been taken. See Ont Act, s. 43, supra, p. 173, to the same effect. 40. (i) The costs of and incidental to all section^ 40. applications and orders made under this Act *^""'* and not otherwise provided for shall be in the discretion of the Judge or Local Judge to whom the application or by whom the order is made. osts. 240 The Mechanics' Lien Act of MANITOBA. ■Section 40- (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. Section 4r. 41. In actions tried by a Local Judge, the Payments out Local ludgc who trics the action shall, where of Court. J o money has been paid 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 J udge cheques for the amounts payable to the persons specified in the requisition, and the said Local Judge on receipt oi said cheques shall distribute them to the persons entitled. See Ont. Act, s. 46 ( i i, supra, p. 174, to the Hke effect. The Mechanics' Lien Act of MANITOBA. 241 42. No fees or stamps shall be payable s^^^^^- on any cheques or proceedings to pay money ftamp^not to , , , . ^ ^^ . be payable on into Court or obtam money out 01 Court in payments out -' , of Court. respect of a claim of lien, but sufficient post- age stamps to prepay a return registered let- ter shall be enclosed with every requisition for cheques. See Ont. Act, s. 46 (2), siipra, p, 175, to the like ef- fect. 43. All judgments in favour of lien- section43. holders shall adjudge that the person or per- ?°/^°^t in sons personally liable for the amount of the ifen^hoiders. 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 . judgment the provisions of this Act any claimant shall Yol^^K^nfa^i^ fail for any reason to establish a valid lien JfoceL'!^"*^ 16 242 The Mechanics' Lien Act of MANITOBA. Section 45. Forms. Section 44. ]-jg j^^y nevertheless recover therein a per* sonal judgment against the party or parties to the action for such sum or sunis as may appear to be due to him from him or them and which he might recover in an action in contract against such party or parties. See Ont. Act, s. 48, supra, p. 177, to the same effect. 45. The forms in the schedule hereto, or forms similar thereto or to the like effect may be adopted in all proceedings under this Act. See Ont. Act, s. 49, supra, p. 178, to the same effect. 46. This Act shall not apply to liens aris- Sre^Act"^ ing before the coming into force of this Act, comes into • ,1,1 , • 1 1 force. excepting that where no action has been com- menced or proceeding instituted to realize a lien arising before the coming into force of this Act the procedure herein directed shall be adopted to realize the same. Section 46. Section 47. Repeal. See Ont. Act, s. 50, supra, p. 179, to the like effect. 47. Except in so far as is necessary to- preserve the liens 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 apply The Mechanics' Lien Act of MANITOBA. 243 after the coming into force of this Act, and ^^""^ are hereby repealed : — Chapter 97 of the Revised Statutes of Manitoba ; Chapter 28 of 58 and 59 Victoria, and Chapter 14 of 59 Victoria. 48. This Act shall come into force on the ®®'=|^^'*^- ^^ 1 r T 00 Commence- rst day 01 June, 1898. mentofAct. 244 The Mechanics' Lien Act of MANITOBA. SCHEDULE. Form i. Claim of Lie/i A. B. (7iame of claimant ) o{(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 hen upon the es- tate 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 ., " $ for days' wages. E. F., " $ for days' wages. The following is the description of the land to be charged {hereset out a cojicise description of the land to be charged sufficient for the purpose of registration). Dated at this day of {Signature of the several claimants.) (a) See note {a) supra, p. 187. The Mechanics' Lien Act of MANITOBA. 247 Form 4. Affidavit Verifying Claim. I, A. B., named in the above {or annexed) claim, do make oath that the said claim is true. Or, We, A. B. and C. D., named in the above {or annexed) claim, do make oath, and each for himself saith that the said claim, so far as relates to him, is true. ( Where affidavit is made by agent or assignee, a clause must be added to the following effect : I have full knowledge of the facts set forth in the above {or annexed) claim). Sworn before me at , in of , Ihis day of , A. D., 18 Or, The said A. B. and C. D. were sever- ally sworn before me at , in the of , this day of , A.D., 18 . Or, The said A. B. was sworn before me at , in the of , this day of , A.D., 18 . 248 The Mechanics" Lien Act of MANITOBA. Form 5. Affidavit Verifying Claim in Commencing an Action. (Sty/e of Court {a) and Cause.) I, , make oath and say, that I have read, or heard read, the foregoing claim of hen (/'), and I say that the facts therein set forth are, to the best of my knowledge and belief, true, and the amount claimed to be due to me in respect of my lien is the just and true amount due and owing to me after giving credit for all the sums of money or goods or merchandise to which {naming the debtor) is entitled to credit as against me. Sworn, etc. 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 ionnd, post, in the Appendix. The Mechanics' Lien Act of 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 ozvner) for the satisfaction of the plaintiff's claim. Delivered 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 Y. Z, solicitors for the said A. B. Note- — If the owner does not dispute the lien entirely, a?id only ivishes to have the accounts taken, he t)iay use the following forjn : — 250 The Mechanics' Lien Act of MANITOBA. Form 8. Defence 7vhere then are no Matters Disputed or where 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 question herein $500 • 00 Amounts paid on Account. June ist, 1898, paid E. F. $200.00 July ist, 1898, paid G. H. and /. K., sub-con- tractors oi E. F. 100. 00 $300.00 Balance admitted to be due $200 . 00 For satisfaction of lien of plaintiff and other lien-holders (as the case jnay 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- tiff's claim, and asks that this action be dismissed as against him with costs. Delivered, etc. The Mechanics' Lien Act of MANITOBA. 251 Form 9. Affidavit of Owner Verifying Account. {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 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 same were made ; and the balance of \$2o6\ 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. 252 The Mechanics' Lien Act of MANITOBA. Form io Notice of Trial {Siyif of Cdiirt ami Cause.) Take notice that this action will be tried at the court house, in the 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 liabilities of the persons appearing before him, or upon whom this notice of trial has been served, and at such trial he will take all accounts, make all 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 mechanics' lien action brought by the above named plaintiff against the above named defendants to enforce a mechanics lien against the following lands : (sef out description of lands). This notice is served by, etc. The Mechanics' Lien Act of MANITOBA. 253 Form ii. Statement of Account by Lienholders^ not parties to the action. {Style of Court and Cause.) E. F. Dr. to G. H. 1898. Jan. I, To 12 doz. brackets $12.00 Feb. 3. To 50 lbs. of nails 5 ■ 00 Oct. 3, To 40 sheets of glass 40 . 00 $57.00 Cr. 1898. Feb. 4, By cash $ 4 . 00 June 5 By goods 20 . 00 $24.00 $33.00 Fhrm 12. Affidavit of Lienholder Verifying Claim. {Style of Court and Cause.) I, G If., oi {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 otvner) [or by E. E, who is a contractor with the defendant, Z. G., {the ozvner)], of ihe 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. E 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. 254 The Mechanics' Lien Act of MANITOBA. Form 13. Judgment. In the (]ourt of Queen's Bench. Monday the loth July, iSgS. Name of Jud^e {or Local Judge.) Plaintiff, and Defendant. This action coming on for trial before in at upon opening of the matter and it appearing that the following persons have been duly served with notice of trial herein {set out names of all persons served ivith notice of trial) zvidi all such persons {or as the case may be) appearing at the trial, {if so, and the following persons not having appeared, {set out the nama of non-appearing per- sons), and upon hearing the evidence adduced and what was alleged by counsel for the plaintiff and for C. D. and E. F. and the defendant {if so, and by A. B. appearing in person). 1. This Court doth declare that the plaintiff and the several persons mentioned in the first schedule hereto are respectively entitled to a lien under The Mechanics' and Wage Earners' Lien Act, 1898, upon the lands described in the second schedule hereto, for the amounts set opposite their respective names in the first, second, and third columns of the said first schedule, and the persons primarily liable for the said claims respectively are set forth in the fourth column of the said schedule. 2. {If so.) (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 amount The Mechanics' Lien Act of MANITOBA. 255 set opposite their respective names in the fourth column of the said Schedule 3.) 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 {grass amount of liens in Schedules I and 3 for which owner is liable) on or before the day of next, that the said hens in the said first schedule mentioned be and the same are hereby discharged, (and the several persons in the said third schedule are to release and discharge their said claims and assign and convey the said premises to the defendant {owner) and deliver up all documents on oath to the said defendant {owner) 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 lienholders {if so, and incumbrancers). 4. But in case the said defendant {oivner) 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 ) 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 the said first (and third) schedule(s) mentioned as the said Master shall direct, with subsequent interest and subsequent costs to be computed and taxed by the said Master. 6. And this Court doth further order and adjudge that in case the said purchase money shall be insufficient to pay in full the claims of the several persons mentioned in the said first schedule, the persons primarily liable for such claims as shown in the said first schedule do pay to the persons to whom they are respectively 256 The Mechanics' Lien Act of MANITOBA. primarily liable the amount remaining due to such persons forth- with after the same shall have been ascertained by the said Master. 7. {If so, And this Court doth declare that have not proved any lien under The Mechanics' and Wage Earners' Lien Act, 1 898, and that they are not entitled to any such lien, and this Court doth order and adjudge that the claims of lien respectively registered by them against the lands mentioned in the said second schedule be and the same are hereby discharged.) Schedule i. Names of lien-holders entitled to Mechanics' Liens. Amount of debt and interest (if any). Costs. Total. Names of Primary Debtors. (Signature of officer issuing judgment). Schedule 2. The lands in cjuestion in this matter are {Set out by a description sufficient for registration purposes^. (Signature of officer issuing judgment ). The Mechanics' Lien Act or MANITOBA. Schedule 3. 257 Names of persons entitled to Incumbrances other than Mechanics' Liens Amount of debt and interest (if any). Costs. Total. (Signature of officer issuing judgment. ) Form 14. Certificate Vacating Lien. {Style of Court and Cause.) Date. I certify that the defendant A. B. {the owfier) 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. F., G. H., I. /., and K. Z., and their liens are hereby vacated and discharged so far as the same affect the following lands {describe lands). {Signature of Master or Referee). 17 258 The Mechanics' Lien Act of MANITOBA. Form 15. Certificate Vacating Lien. {Style of Court and Cause.) Date. I certify that I have inquired and find that the plaintiff is not entitled to any mechanics' lien upon the lands of the defendant A. B. (the oivjier) and that his claim of lien is hereby vacated and dis- charged so far as the same affects the following lands (describe lands). (Signature of Master or Referee). Revised Statutes of British Columbia. (1897.) CHAPTER 132. An Act for the Benefit of Mechanics and Laboueers. LJER MAJESTY, by and with the advice *- -"■ and consent of the Legislative Assem- bly of the Province of British Columbia, enacts as follows : — Short Title. 1. This Act maybe cited as the ''Me- s^;^ '■ chanics' Lien Act." 1891. c. 23, s. i. short utie. Interpretation. 2. \\\ the construction of this Act — ^^^^'"" ^• (i.) "Contractor" shall mean a person J°cSictoV°' employed directly by the owner for the doing of work for any of the purposes mentioned in this Act : (259) 2 6o The Mechanics' Lien Act of BRITISH COLUMBIA. Section 2. " Sub-con- tractor." 'Owner. " Works or improve- ments," Labourer. (2.) "Sub-contractor" shall mean a person not contracting with or employed directly by the owner for the purpose 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 e.xtend 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. 1 89 1, c. 23, s. 2. The Mechanics' Lien Act oi BRITISH COLUMBIA. 261 See Ont. Act, s. 2, sitpra, p. 4. The definitions of Section 2. 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. The 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 %tt post sec- tion 22(2), infra, p. 281. See z\'!>o section 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 does the 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. Application. 3. This Act shall apply to any contract s^^^tions- made or work begun previous to the passage ^pp"*=***°"- hereof, but only so far as regards any moneys 262 The Mechanics' Lien Act of BRITISH COLUMBIA Sections- remaining unpaid and as respects any such unpaid moneys. 1891, c. 23, s. 3. There is no similar provision to this in the Ont or Manitoba Acts. Nature of Liens. Section 4. 4^ Unless there is an agreement in writ- andothlrlto ing to the contrary, signed by the person have liens for , .... . i work done, claiming the hen, every contractor, sub-con- tractor, and labourer doing or causing work to be done upon the construction, erection, alteration, or repair, either in whole or in part of, or addition to, any building, erection, wharf, bridge, or other work, or doing or causing work to be done upon or in con- nection with the clearing, excavating, filling, grading, draining, or irrigating any land in respect of a railway, mine, sewer, drain, ditch, Hume, or other work, or improving any street, road, or sidewalk adjacent thereto, at the request 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 works, and all materials furnished or [)rocured for use in constructing or making such works or improvements, so long as the same are Thk Mechanics' Lien Act of BRITISH COLUMBIA. 263 about to be in good faith worked into or Section 4. made part of the 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 acquire during the progress of the works or improvements. 1891, c. 23, s. 4. See Ont. Act, s. 4, supra, p. 18 ; see also s. 7, supra, p. 41. The enumeration of the species of work in res- pect of which a lien may be claimed is more specific in the Ont. Act. But for the Act, no lien exists, and it is only so 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 {h) 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- 364 iHE Mechanics' Lien Act of BRITISH COLUMBIA. Section 4. ated) ; or(r) for "improving 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 " are probably intended to apply also to the classes of work (a) and {/>) supra, as well as to class {c). At the same time there is a difficulty in so applying them, as the Act obviously intends to give sub-contractors (not being 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 : see 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 281. 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 the control of the Do- minion Government : Larsen v. Nelson a/id Fort S. Ry., 4 B. C. R. 151. It was pointed out by Begbie, C. J., in Haggerty v. Grant, 2 B. C. R. 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 The Mechanics' Lien Act of BRITISH COLUMBIA. 265 Section show that though the material man has no hen, Sectuni .,- 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 sectioti 11, if the lien once attaches on materials they 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 only 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 party to the contract, or agrees that his estate shall be subject to the 2 66 The Mechanics' Lien Act of BRITISH COLUMBIA. Section 4. lien. See Ont. Act, s. 7 (2), supra, p. 41 ; see however infra, s. 7, p. 267. Section 5. Amount to which lien is limited. Section 6. Liens on mortgaged premises. 5. Such lien shall be limited in amount to the sum actually owing to the person entitled to the lien, and distribution of any moneys derived from the realization of the liens shall be made in accordance with the twenty-second section of this Act. 1891, c. 23, s 5. See Ont. Act, s. 4, supra, p. 18. Although the lien-holder cannot, of course, recover 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. This limita- tion is actually expressed in the Ont. Act, s. 4, and, it is submitted, it is implicitly a limitation of the lien-holder's right under this Act. See section 14, infra, p. 277. As to sub contractors, see note to section 2, supra, p. 261. 6. Where works or improvements are put upon mortgaged premises, the liens, by virtue of this Act, shall be prior to such mortgage, as against the increase in value of the mort- gaged premises by reason of such works or improvements, but not further, unless the same is done at the request of the mortgagee, The Mechanics' Lien Act of BRITISH COLUMBIA. 267 in writing ; and the amount of such increase "^ectionf,. shall be ascertained upon the basis of the 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 justify the proceedings, order the mortgaged prem- ises to be sold at an upset price equal to the selling value of the premises immediately prior to the commencement of such works or improvements (to be ascertained as aforesaid), and any sum realized in excess of such upset price shall be subject to the liens provided for by this Act. The moneys equal to the upset price as aforesaid shall be applied towards the said mortgage or mortgages, ac- cording to their priority. Nothing, however, in this section shall prevent the lien from attaching upon the equity of redemption or *other interest of the owner of the land subject to such mortgage or charge. 1891, c. s. 6. See Ont. Act, s. 7 (3), supra, p. 42. 23- Section 7. 7. Every building or other improvement mentioned in the fourth section of this Act, ^^XdeeLd 268 The Mechanics' Lien Act of BRITISH COLUMBIA. Section?, constructed upon any lands with the know- thorizld the ledge of the owner or his authorized agent, erection of , , . , . . buildings or the person having: or claimnia: any interest thereon. , ^ ^ & / therein, shall be held to have been con- structed at the instance of such owner, or person 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 sec/ion would affect a landlord whose tenant was erecting or improving any building on the demised land, is a question of some difficutly. As a matter of precaution it would seem safer to assume, in the absence of any adjudication to the contrary, th^ 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 oj/iis 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, su/>ra, p. 38. The Mechanics' Lien Act of BRITISH COLUMBIA. 269 Registration and Transmission. sections. 8. Every lien upon any such building, in^t days ^ ^* J i. J ^ after com- erection, mine, works or improvements, or pjetion^of^^^ land, shall absolutely cease to exist after the '■"«^^'"'""^- expiration of thirty-one days after the work shall h^ve 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 or improvements, until the completion of the same, if he has in the meantime been em- ployed upon any other work by the same contractor), unless in the meantime the per-j^j^^^^^ son claiming the lien shall file 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 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 the claim- ant, and of the owner of the property or interest to be charged : V 2 70 Thk Mechanics' Lien Act of BRITISH COLUMBIA. Section 8. ^^^ j|^g particulars of the kind of work done : (f) The time when the work was finished or discontinued : {d) The sum claimed to be owing, and when due : (e) The description of the property to be charged : Which affidavit shall be received and filed as a lien against such property, interest or estate. The Registrar-General, District Registrar, and every Government Agent shall be supplied with printed forms of such affidavits, in blank, which may be in the form or to the effect of Schedule A to this Act, and which shall be supplied to every person requesting the same, and desiring to file a lien. Every Government Agent, the Registrar- General and District Registrar of Titles, shall keep an alphabetical index of all claim- ants of liens and the persons against whom such liens are claimed, which index shall be open for inspection during office hours, and it shall be the duty of such Government Agent, Registrar-General of Titles or Dis- trict Registrar to decide whether his is or not The Mechanics' Lien Act oi BRITISH COLUMBIA. 271 the proper office for the filing of such affidavit, Section s. and to direct the appHcant accordingly ; and no affidavit shall be adjudged insufficient on the ground that it was not filed in the proper office. In order to make the proviso in the first part of this section 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 the 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 that " in order to acquire a right of this very unusual nature the statute must be strictly fol- lowed " : per Begbie, C J., Haggerty v. Grant, 2 B C. R. 176, and see Wellerv. S/iupe, 6 B. C. R. 58. 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 ; Smith v. Mcintosh, 3 B. C. R. 26, (a decision under the Act of 1888). See further provisions as to the affidavit in section g, infra, p. 272. Owing to this Act giving no lien for materials, 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. 120 ; Weller v. Shiipe, 6 B. C. R. 58, Registration of the lien under this section is necessary in all cases before action. 272 The Mechanics' Lien Act of BRITISH COLUMBIA, S ection 8. 'pj^g jjj^g fp^ bringing an action to enforce the lien is regulated by section 24, infra, p. 284. Section 9. g^ When any works, buildings, or im- oversScon- pfovements upon any lands, mine or prem- tractor must • u^^lj ^J J file statement ises are aDout to be done, erected or made, showing work . . to be done, and the contract price or estimated cost etc. I 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 The Mechanics' Lien Act of BRITISH COLUMBIA. 273 form of Schedule B annexed to this Act. Any affidavit made under section eight of this Act, which shall be in accordance with such statement so filed as above provided, 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 Out. Act. See, however, section 29, supra, p. 137. 10. In the event of the death of the lien- holder his lien shall pass to his personal representatives, and the right of a lienholder may be assigned by any instrument in writ- ing, subject to the limitation contained in the twelfth section hereof. 1891. c. 23, s. 10. See Ont. Act, s. 26, supra, p. 128. Security. 11 During the continuance of any lien no portion of the property affected thereby shall 18 Section 9. Section 10. Liens pass on death to legal representa- tives, or may be assigned. Section n. During- con- tinuance of lien property must not be removed. 274 The Mechanics' Lien Act of BRITISH COLUMBIA. Section ii. ^^ removecl to the prejudice of such hen, 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. 11. See Ont. Act, s. 16. siip7-a, p. 90. Section 12. 12. No contractor, or sub-contractor, shall Receipted be entitled to demand or receive any payment pay-rolls to be j t- j w^oVks."" ""^ respect 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 i 2 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 imi)rovements, 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 opi)Osite their respective names, which pay-roll may be in the form of Schedule C hereto, and no payment made by the owner without the delivery of such pay-roll The Mkchanics' Lien Act of BRITISH COLUMBIA. 275 shall be valid for the purpose of defeating or ^^''^'"" "• diminishing any Hen upon such property, estate or interest in favour of any such labourer. No assignment by the contractor, or any sub contractor of any moneys due in respect to the contract shall be valid as against any lien given by this Act. As to all liens, except that of the contractor, the whole contract price shall be payable in money, and shall not be diminished by any prior or subsequent indebtedness, offset or counter-claim in favour of the owner against the contractor. 1891, c. 23, s. 12. There is no similar provision to this in the Ont. Act. See, however, section 13 (i) of that Act, siip7-a 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 labour for wages, employed by any contractor or sub-contractor : see notes to sections 2 and 4, supra, pp. 261, 263. Enforcement. 13. Any number of lienholders may be section^ 13. joined in one suit, and all suits or proceed- 1->°|''"''^*^'^ 276 The Mechanics* Lien Act of BRITISH COLUMBIA. Section 13. jj-jgj^ brought by a lienholder 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 a party to such suit or proceedings by order of a Judge, upon ex parte application supported by an affidavit stating the particulars of the claim, and any lienholder so joined in any such suit or pro- ceedings shall be deemed to have complied with the twenty-fourth 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 lien must be commenced in the ordinary way. Under the Ont. Act a special mode of procedure is also provided : see Ont. Act, s. 31, supra, p. 140. The Ont. Act, s. t^2, supra, p. 145, contains somewhat similar jjrovisions to this as to parties, except that this Act limits the time for persons not originally named as par- ties to be brought in. The Mechanics' Lien Act of BRITISH COLUMBIA. 277 14. If more than one suit is commenced Section .4. in respect of the same contract, the owner or ^p^^^'toX^ve contractor shall apply to have the causes da'ted'°"'°'" consolidated, and failing to do so he shall pay the cost of such additional suit or suits. The owner complying with the provisions of this Act shall not be liable for any greater sum than he has agreed to pay by contract. 1891, c. 23, s. 14. See Ont. Act, s 37, supra, p. 162, and see section 15, infra. This sectiofi 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 apply, but no duty to apply is imposed. Extra costs occasioned by not consolidating would probably not be recoverable under that Act : see Ont. Act, s. 43, supra, P- 173- 15. If two or more actions are brought in section 15 respect ot the same contract or work, the Judge may order Court or Judge shall, by order, on the appli- o?"^.tlin^*'°" cation of any person interested, consolidate all the actions, and may make such order as to costs as he shall think fit. 1891, c. 23, s. 15. See Ont. Act, s. 37, supra, p. 162. 278 The Mechanics' Lien Act of BRITISH COLUMBIA. Section 16. |g_ Whatever the amount of lien or Hens, brought Vn proceedings may be taken before a Judge of County Court. ^j_^^ Countv 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 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 under 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 possible, according to the practice and procedure in force in the County Court ; and, when these are no guide, the practice and procedure used in the Supreme Court shall be followed, 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. The Mechanics' Lien Act of BRITISH COLUMBIA. 279 The jurisdiction to enforce all mechanics' liens is by Sec tion 16. this section conferred on the County Courts, irrespective of the amount sought to be recovered. The Supreme Court has no original jurisdiction, therefore, in such actions : Martin v. Russell, 2 Man. 98. As to time for commencing action : see section 24, infra, p. 284. 17. Any person against whose property a section 17. lien has been registered under the provisions fj^™^on^«^^^^^ of this Act, may apply to a Judge of the Sid^not be 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 opposite party and made returnable in three days after the issuing thereof, or in such greater or less time as the Judge may direct. 1891, c. 23, s. 17. See Ont. Act, s. 27, supra, p. 129. 18. On the return of such summons, the section is. Judge may order the cancellation of such J^j^lTcSi. T • I • 1 1 • , ,1 lation of lien. hen, either in whole or in part, upon the 28o The Mechanics' Lien Act of BRITISH COLUMBIA. Section i8. Section 19. On Judge's order lien to be cancelled. Section 20. In certain cases owner or contractor to pay costs. giving of security by the party against whose property the said Hen is registered to the opposite party, in an amount satisfactory to the said Judge, and upon such other terms, if any, as the Judge may see fit to impose. 1891, c. 23, s. 18. See Ont. Act, s. 27, supra, p. 129. 19. The Registrar-General, District Reg- istrar, or Government Agent in whose office the said Hen is registered shah, on the pro- duction of such order, file the same and cause the said lien to be cancelled as to the property affected by the order. 1891, c. 23, s. 19. See Ont. Act, s. 27, supra, p. 129. 20. When it shall appear to the Court or Judge in any proceedings to enforce alien or liens under this Act that such proceedings have arisen from the failure of any owner or contractor to fulfil the terms of his contract or engagement for the work in respect of which the liens are sought to be enforced, or to comply with the provisions of this Act, such Court or Judge may order the said owner or contractor or either of them, to pay The Mechanics' Lien Act of BRITISH COLUMBIA. 281 all the costs of such proceedings, in addition section 20. to the amount 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 174. 21. If the property sold in any proceed- Section 21. ings under this Act shall be a leasehold p^'openy.'^ interest, the purchaser at any such sale shall be deemed to be the assignee of such lease. 1891, c. 23, s. 21. There is no corresponding section 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 proceedings the purchaser becomes his assign by operation of law, and bound by all covenants running with the land : see Foa's Landlord and Tenant, p. 347. 22. All moneys realized by proceedings se^tjon on 22. Distribution under this Act shall be applied and distributed of proceearof - sale under Act in the followmg order : — (i.) The cost, of all the lienholders of and 282 The Mechanics' Lien Act of BRITISH COLUMBIA. Section 22. incidental to the proceedings, and of registering and proving the Hens: (2.) The balance shall then be divided 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-contractors and other persons employed by the owner and contractor, after all labour- ers, sub-contractors, and other persons employed by the owner and contractor, have been paid their liens and costs, the balance shall be paid to the con- tractor. 1 89 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 section, the provision of seciiofi 6 would The Mechanics' Lien Act of BRITISH COLUMBIA. 283 have to be regarded, and, where there is a prior mort- Section 22. gage, so much of the purchase money as equalled the upset price must be applied, 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 equal share with others. In the distribution of the proceeds of a sale, however, even under this sectio/t, it is presumed that it would be so made as to preserve the obvious equities of the lien-holders, and so that the money rightfully due to A shall not be applied to satisfy the creditors of B. Subsection 2 provides for the payment of labourers employed by contractors and sub-contractors as well as those employed by the owner, though none but the latter wonld appear to be entitled to liens under the Act : see sectiofis 2 and 4 and notes, supra, pp. 261, 263 ; see also section 12 and notes, supra, p. 275. 23. Every mechanic or other person who section23. has bestowed money or skill and materials jie^non""^" . ' . . . . chattels. Upon any chattel m the alteration and mi- 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 exists, but not afterwards, in case the amount to which he is entitled remains unpaid for three months after the same ought to have been 284 The Mechanics' Lien Act of BRITISH COLUMBIA. Section 23. p^j(j^ have power to sell the chattel in respect 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, the time and place of sale ; and after such sale, such mechanic or other person shall apply the proceeds of such sale in payment of the amount due to him, and the costs of adver- tising and sale, and shall pay over the surplus (if any) to the person entitled thereto on application being made to him therefor, and a notice in writing of the result of the sale shall be left at or posted to the address of the owner at his last known place of abode or business. 1891, c. 23, s. 23. See Ont. Act, s. 51, and notes, supra, pp. 179 186. Expiration, Cancellation, and Discharge. Section 24. 24. Evcry lien shall absolutely cease to Sari"xpirr. exist after the expiration of thirty days after The Mechanics' Lien Act of BRITISH COLUMBIA. 285 the filing o'" the affidavit mentioned in section ^^^ -4. 8 of this Act. unless the claimant in the meantime shall have instituted proceedings to realize his lien under the provisions of this Act, and a certificate of the Judge or Regis- trar of 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 his primary debtor extending beyond the time limited by this Act for bringing his action, it is thereby barred : Biirritt v. Renihan, 25 Gr. 183 ; Haggerty v. Grant, 2 B. C. R. 173 So also the taking of a promissory note and nego- tiating it discharges the lien ; and it does not revive on non-payment of the note: Edmonds v. Tiernnn, 21 S. C R. 406. As to the effect of taking security under the Ont. Act : see Ont. Act, s. 28, and notes, supra, p 132 e/ seq. be cancelled. 286 The Mechanics' Lien Act of BRITISH COLUMBIA. Section 25. 25. The Government Agent, Registrar- ter^eTiie/Ihlu General, or District Registrar of Titles shall, on receiving a certificate under the seal of the Registrar of the Court wherein such action is pending, stating the names of the lienholders parties to such action, and that the amount due by the owner in respect of such liens has been ascertained and paid into Court in pursuance of an order of such Court or Judge, or that the property has been sold to realize such liens, or that such lien has been improperly filed, or that such lien has otherwise ceased to exist or on receiving a statement in writing signed by the claim- ant or his agent that the lien has been satisfied, cancel all liens registered by such parties. 1891, c. 23, s. 25. See Ont. Act, s. 27, supra, p. 129. 26. Every person making or entering Receipted pay • rolls of wood- into any contract, engagement, or agreement man's wages o o o must be with any other person for the purpose of fur- produced. •' i II 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 Section 26. The Mechanics' Lien Act of BRITISH COLUMBIA. 287 shall, before making any payment for, or on -'^^ction 26. behalf of, or under such contract, engage ment, or agreement of any sum of money, or by kind, require such person to whom pay- ment is to be made, to produce and furnish a pay-roll or sheet of the wages and amount due and owing, and of the payment thereof, which pay-roll or sheet may be in the form of Schedule C annexed to this Act, or if not paid, the amount of wages or pay due and owing to all the W'orkmen 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 taken 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, " The Woodman s Lien for Wages Act,^' (R. S. O. c. 154). 27. Any person making any payment section 27. under such contract, engagement, or agree- ^g®q'"^?!Jjfg°^ ment without requiring the production of the receipted pa^y ,| , ... . , roll shall be pay-roll or sheet as mentioned m section 26 Habieatsuit A ' of workman. of this Act, shall be liable, at the suit of any workman or labourer so engaged under said 288 The Mechanics' Lien Act of BRITISH COLUMBIA. Section 27. contract, engagement, or agreement, for the amount of pay so due and owing to said workman or labourer under said contract, engagement, or agreement. 1891, c. 23, s. 27. There is no similar provision to this in the Ont. Act. See, however, " The Wflodman'' s Lien for Wages Acf," (R S O. c. 154). Section 28. 28. The person to whom such pay-roll sumsmen- qj- sheet is glven shall retain, for the tioned in pay o [o^btretafned. use of the labourcrs or workmen whose names are set out in such pay-roll or sheet, the sums set opposite their respectiv^e names which have not been paid, 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, " The Woodmaft's Lien for Wages Act," (R, S. O. c. 154) Section 29. 29. Every Government Agent in whose Government office any affidavit or document shall be filed Agent to -' cop"irinien under the provisions of this Act shall forth- La''n s. 8, supra, p. ^71. The Mechanics' Lien Act of BRITISH COLUMBIA. SCHEDULE B. 291 of " Mechanics' Lien Act." Particulars of work to be done for , owner, by of , contractor. \Here insert nature and location of work, and nature of interest of oivner in the /and.^ Amount of contract, dollars. Dated the day of , 18 . (Signed) Owner. Contractor. SCHEDULE C. Pay-Roll. Descrip tion. From 5th January, 1891, to 10th January, 1891, (inclusive) Amount paid. $21.00 Date of payment. s » S >> a, . Name. Number of days employed Rate per day. Total amount earned. $21.00 > a R. Roe. . Six days. $3 50. 12th Jan., J891. R. Roe I hereby certify that the above statement is correct to the best of my knowledge and belief, and is made by me in compliance, and in accordance with section 12 of the '" Mechanics' Lien Act, 1891," on account of (my contract to, or employment by, as the case may be) [here insert brief description of the ivork\ for {owner's name) up to the day of 18 . (Signed) Contractor. Dated day of , 18 . 1 89 1, c 23, Sch. C. Appendix. 293 APPENDIX. ADDITIONAL FORMS. I , Form of Receipt in Discharge of Lien, Under Ontario Act, Section 27. » ,■ ' ' Appendix. \ {name of lien-holder) acknowledge to have received f^^J^^fpt^fn^j^. from {mime of " oivner " or other person making payment) ^e|is^erediien $ in full discharge of my mechanics' lien as a ""'^'■'" >*• ^^• [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 the north side of Street, according to plan No. , regis- tered in the City of ). Dated this , day of , 18 . {Signature of lien-holder.) Witness : I Signature of witness. ) 2. Affidavit Verifying Receipt in Discharge of Lien, Under Ontario Act, Section 27. County of To wit : In the matter of the Mechanics' and Wage-Earners' Lien Act. I, , of {state residence and occupation)l^l'^}^'^l^f^]^- 1 1 J receipt. make oath and say : 2 94 Appendix. Appendix. i_ I was personally present, and did scc («awf day of . ) {Signature of commissioner.) {a) A Commissiofier, etc. 3. Demand of Terms of Contract Under Ont. Act, Section 29. 'I'o Mr. {name of oivner). Take notice that I claim to be a lien-holder under The Mechanics^ and Wage-Earners' Lien Act upon {describe shortly the premises in i]uestion) under a contract made by me with C. 1). {name of contractor) and I do hereby require you to furnish me with the terms of the contract or agreement existing between you and the said C. D. in reference to [the building or the carpenter work of the building now being erected upon the said premises, or (a) The affidavit may be sworn before a coiniiiissioner for taking aliidavits : .see A'. S. O. c. 74, s. 12 ; and possibly before a notary Public : see R. S. 0. c. 175, ss. 3, 4, Appendix. 295 as may be\ and the amount over due and unpaid upon Appendix, such contract pursuant to section 29 of t/ie Afec/ia/iics' and IVai^e- Earners' Lien Act. {Signature of lien holder.) Dated, etc. 4. Statkment of Claim in an Action to Enforce Mechanics' Lien of Contractors. ( Tif/e of Court and cause). The plaintiff, J. E., is a builder, carrying on business li^enTof^dalm in the City of Toronto, in the County of York, and the '" a<:tion bv ■' ' ■' ' contractor. plaintiff, W. B., is a bricklayer, also carrying on business in the said City of Toronto. 1. On the nth day of November, 18 , the defendant was, and she has ever since remained, and now is, the [owner in fee simple of the lands and or lessee of certain leasehold] premises in the City of Toronto, in the County of York^ more particularly described in the claim or lien hereinafter set forth, {a) 2. On or aoout the said iith day of November, the plaintiffs, who are mechanics, were employed by the said defendant to perform certain work and to furnish certain materials for the erection of a brick hotel upon the said land for the said defendant, and there was no agreement (a) If the lien has not been registered before action, this paragraph should set fortli the lands upon which the lien is claimed, and should be modified accordingly. 296 Appendix. Appendix, between 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 {b). of^'i^hii"' ^' ^" pursuance of the said employment, the plain- tiffs did do a large amount of work upon and did furnish large quantities 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, 18 , whereby the defendant became indebted to the plaintiffs for the said work and materials in the said sum of $18,000. 4. The sum of $15,000 has been paid on account of the said sum of $18,000, leaving a balance of $3,000 still due and payable to the plaintiffs. 5. By 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 " The Mechanics' and Wage- E artier s" Lien Acty (If the lien has been registered before action, proceed as follows :) [6. On the 2 1 St day of September, 18 , the plaintiffs, in pursuance of the said Act, caused to be registered in the Registry Office, in and for the [City of i'oronto, or as ni'iy be]a. claim of lien, which claim is in the words and figures following, that is to say : fcj (b) Rnthhurn V BurqenK, 17 C. L. J. 111. There is no lien for materials in British ('olumbia : see supra, p. 264. (r) Where a lien is registered before action, it is necessary that tiie action should be commenced within ninety days from Appkni>ix. 297 "J. E, of the City of Toronto, in the County of Appendix York, builder, and W. B., of the same place, bricklayer, under ' The Mechanics' mid Wage-Earners Lien Act,' claim a lien upon the estate of M. A. T., of the said City of Toronto, in the undermentioned land, in respect of the following work [and materials, (c/)] that is to say : To amount of contract $17,000 Bill of Extras. To extra stone in foundation 500 " Brick pointing 200 " Second flats of extra ^-bricks in thickness 300 $18,000 1873- Dec. I. — By cash $2,000 " 22. — " 1,000 1874. Jan. 5.— " 5.000 July 6.— " 7>ooo $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 ma- chinery furnished, or the period of credit mentioned in the reg- istered claim expired : see Ont. Act, sec/ionx 24, 2.5, supra, pp. 12.3, 127. (d) No lien can be claimed for materials in liritish Columbia : gee supra, p. 264. 2q8 Appendix. Appendix, jg , and the 14th day of September, A.D. 18 , the amount claimed as due is the sum of $3,000 ; the fol- lowing is the description 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 plan of /. ^. Dennis, P L S., registered in the Registry Office of the said City of Toronto, and numbered D. " Dated at the City of Toronto, in the County of York, this 21st day of September, A.D. in.~\ 10. The lands referred to in the first paragraph of this statement of claim [// 5^(9, and particularly described in the said claim or lien hereinbefore set forth] are the lands occupied by and usually enjoyed with the said house. 11. The defendants, C. D. and E. T., have also done work and furnished materials in and about the erection of the said house and are entitled to liens in respect thereof upon the said lands under the said •* The Me- chanics' and Wage Earners^ Lien Act." The plaintiff claims : — 1. That the defendant, E. T., may be ordered to pay to the plaintiff forthwith the said sum of $400, together with interest and the costs of this action. 2. And that 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. P. (/>) Where the action is commenced by filing a statement of claim under Ont. Act, s. 31 (2), this allegation would have to be omitted, though it appears to be one that would have to be proved at the trial. 304 Appendix. Appendix. ^ ^,-,(] j^^^j jp default of such payment by the said M. A. T. and the said E. T. that all the estate and interest of the defendant, M. A. T., in the 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' afid Wage Earners' Lien Act." 4. That 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 recjuire. The plaintiff proposes that this action should be tried in [Toronto.] Delivered the day of , 18 , by X. Y., of , plaintiff's solicitor. 6. — Claim of Charge on Fifteen or Twenty per Cent in Respfct of Thirty Days' Wages, (a) Form of claim 'j'j^g plaintiff is also entitled to a charge upon twenty of charge on t^ o i / 15 or 20 per p^y centum of the value of the work done and materials cent, of price r in respect of — '■ WH^es lion. (rt) This and the following form are not intended as complete forms, but merely as additional clauses to a statement of claim, claiming a lien. Where the plaintiffs sole claim is the relief referred to in either of Forms (i and 7, the preliminary part of the statement of claim can be readily adapted from the preceding Forms 4 and 5 : See section 14 (1), supra, p. 77. Appendix. 305 furnished by the said {contractor) for the defendant Appendix. {owner) for wages for thirty days {or any less period) in priority to all other liens, and in priority to any claims by the defendant (owner) against the defendant (con- tractor) for, or in consequence of, the failure of the lat- ter to complete his contract with the defendant (oivner). 7. — Claim Against Prior Mortgagee, (b) That prior to the commencement of the said work \or Form of daim ' L uKiunst prior the delivery of the materials or machinery aforesaid] by mortgagee. indenture bearing date the day of the defendant {o2vner, or other mortgagor) did grant and mortgage the lands and premises aforesaid unto 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 re[)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 Mechafiics' and Wage Earners' Lien 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 Plaintiff claims : I. That the amount by which the selling value of the said lands has been increased by the (Jo) See note [a] to Form 6, mpra. See Out. Act s. 7 (3), nupra, p. 42. 20 3o6 Appendix. Appendix. work done and materials furnished by the plaintiff and other lien-holders (if any) entitled to the benefit of this action may be ascer- tained under the order and direction of this Honourable Court. 2. That the defendant {mortgagee) 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] of the building [c;r the erection or placing of the materials or machinery] upon 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 3. That in default of the defendant \jnortgagee) 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 applied in payment of the liens of the plaintiff and other lien-holders entitled to the benefit of this action, sub- ject to the payment of the plaintiff's costs. Appendix. 307 8. Form of Interlocutory Injunction Restraining Appendix. THE Removal of Buildings or Machinery, Etc., UNDER Ontario Act, Section 16. {Formal part of order as usual.) And the plaintiff Fin person or by his counsel] under- Porm of inter- taking to abide by any order this Court may make as to injunction . . restrain injj damages in case this Court shall hereafter be of opinion removal of , 1 J r 1 r r buildings, etc. 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 disposed of,* from moving from the premises known as and being {describe lands subject to lien) any of the build- ings, erections, material or machinery now standing^ lying or being thereon, {a) 9. Form of Injunction Restraining Removal of Buildings or Machinery, PLtc. {b) {Formal parts of judgment, as usual.) The Court doth order and adjudge that the defend- fn'-[,nction granted at (a) Where the injunction is subsequently continued to the trial, restrain- X • 1 *u J 1! • • -1 f 4. *u u u .-* * 'nS'emovalof trial the order may be in a similar lorm to the above, substitut- buildings, etc. ing for the words between the * * the words " the trial or other final disposition of this action." (Ii) Tliis form is only suitable to be inserted in a judgment. For form of an interlocutory injunction granted pending the action see Form No. 8. 3o8 Appendix. Appendix, ant, his [or defendants, their] servants, workmen and agents, be, and they are hereby, restrained from remov- ing from off the premises known as and being {describe 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 benefit of this action upon the said lands shall have been satisfied, or this Court shall make other order to the contrary. 10. Form of Order Vacating Lien. {Title of cause or matter.) Form of order Uoon the application of {owner) in presence of the vacating lien. ' ^- . j / /r- j solicitor for {lien- holder), and upon hearing read {affida- vits and other papers upon which application founded), It is ordered that the claim of {fiame of lien holder) to a lien upon the estate or interest of {name of oivner) in the following lands, viz. : {description of lands as in registered claim), in respect of the following work [rvr materials], that is to say, {describe it as in the registered claim) done [or furnished] (or {/ui/ne of person for whom ivork done or materials furnished as in registered claim) on or before the day of , and in respect of which the sum of $ was claimed by the said {lien-holder) as due \or to become due] and which said claim was 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. Appendix. 301; 11. Form of Noiick of Sale of Chattels to be Appendix. Published, and Served on Owner. Auction Sale. Whereas {name of person indebted) is indebted to the ^°^'^'j'J'^^°'"^® undersigned in the sum of $ for [work done and^"'^;'^.'^*f'*^.*" " ^ L satisfy hen, materials supplied in the alteration or improvement of ""^^'^i"^- s^- one spring waggon], and three months have elapsed since the said sum ought to have been paid, and default has been made in payment thereof, notice is hereby given that on next, the day of , at {place of sale, e.g. the auction rooms of C. D., No. 6 King Street West, in the City of Toronto), the said {describe chattel) will be sold by {name of auctioneer), by public auction. {If the sale is to be subject to a reserved bid, or other special conditions, it should be so stated.) Date, etc. {Sigfiature of lien-holder.) (a.) See Out. Act, s. 51, awpra p. 179 ; and B. C. Act, s. 23, supra p. 283. INDEX. The letters (O), (M), and (B.C.) indicate that the pages following refer to the Ontario, ^Manitoba, or British Columbia Act, respectively. ACCOUNTS, how taken, on summary judgment, (0.) 151, (B.C.) 2(16. parties entitled to notice of taking (0.) 159. ACTION TO ENFORCE LIEN.— -S'ee Lien— Sale. adding lienholder as a party, (B.C.) 276. amendment of bill in, effect of, (M.) 231. appeal in, when it lies, (0.) 164-167, (M.) 2.S7, 238, (B.C.) 278. carriage of proceedings in, (0.) 163, 164, (M.) 237. certificate of lis pmclens to be registered, (O.) 118, 122, (M.) 225, 226, 228, (B.C.) 285. charge on percentage, (O.) 61, 62, 68-70, (M.) 212, 214. cheques, requisition for, how to be forwarded, (0.) 175, (M.) 240. commencement of, (0.) 118, 123, (M.) 225, 226, (B.C.) 279. to enforce charge on percentage, (0.) 62, 68-70, (M.)214. consolidation of. Court may order, (O.) 162, (M.) 237, (B.C.) 277. costs of, (0.) 169-172, (M.) 238, 239, (C.C ) 278, 280. court in which to be brought, (O.) 140, 141, (M.) 229, 230, (B.C.) 278. defence in, time for delivering, (O.) 140, 145. defendant out (.f jurisdiction, (0.) 144. deficiency, judgment to be awarded for, (().) 176, (iM.) 241. execution, — xee Exeoutton. fees of court in, (0.) 167, 168, 175, (M.) 241, (B.C.) 278. forms of proceedings in, (O.) 118, (M.) 242.— ,S'ee FoRiM.o. how to be brought, (0.) 140-145, (M.) 229-231, (B.C.) 275-279. incumbrancers, subsequent, how ascertained, (O.) 160. injunction in, — see Injunction. judgment in, wiien appealable, (O.) 165, (M.) 238. final, (O.) 164, (M.) 2.37, 2-38. form of, (O.) 176. 177, (M.) 241, 242. See Forms. (311) 312 Index. ACTION TO ENFORCE LIE'N— Continued. keeps alive other liens on same property, (0.) 145, 146. lienholders on same property need not be made parties, (0. ) 140, 145 (M.)230. may be let in to prove claims (O.) 152, 157, (M.) 234, 235 attend trial (0.) 153, 158. when entitled to benefit of, (0.) 145, (M.) 231, (B.C.) 275, 276. lin pendens, when to be registered, (O ) 118, 122, (M.) 225, 226, (B.C.) 285. local judge, jurisdiction of, in, (0.) 148, (M.) 231, 232, 233. materials, sale of, may be ordered in, (O ) 152, (M.) 234. moneys realized in, how applied, (B.C.) 276, 281 283. mortgagee, prior, against, (O.) 122. parties to, (0.) 143. tmie for bringing, (0.) 120, 122, 143. parties to, (0.) 12), 122, 142-145, (M.) 2,30, 231, (B.C.) 275, 276. adding, (B.C.) 276. joinder of, (0.) 145, (M.) 230, 231, (B.C.) 275, 276. payments out of court, how to be made in, (0.) 174, 175, (M.) 240. procedure in, (0.) 140147, (M.) 2;)2 23S, (B.C.) 278. registered lien, time for, (0.) 123-126, (M.) 225, 226, (B.C.) 284,285. sale may be ordered in, (O.) 152, (M.) 234, (B.C.) 278. statement of claim in, filing in, (O ) 140. service of, (0.) 140, 143, 144. to be verified by afiidavit, (0.) 140, 142. time for bringing, (O.) 118, 119, 123, 126, (M.) 225, (B.C.) 284, 285. trial of, judges and ollicers who may hold, (0.) 148, (M.) 231, 232, (1{.C.)27S. appointment of day for, (O.) 151, (M.) 233. notice of, on whom to be served, (O. ) 159, 160. procedure at, (O ) 151, 152, l.")3, (M.) 233, (B.C.) 278. unregistered lien, time for bringing, (().) 118, 119, (M.) 225. vacation, whether statement of claim may be delivered in, (O.) 144. writ of summons, dispensed with in, (O.) 140. AFFIDAVIT.— ,SV<' Forms. assignee's, verifying claim for registration, (O.) 96, 102, (M.) 221. commissioner may take, (O.) 102. Index. 3'3 AFFIDAVIT— CoTitinued. proving claim for registration, (O.) 'Hi, (Vi.) 2-20, 221, (B.C.) 2(J<). defects in, (O.) KKi, {M.)222,(li.C.)271. verifying statement of claim, (O.) 140, 142. AGENT, discharge of lien by, (0.) 129, 131, (M.) 226, (B.C.) 280. AGREEMEiMT TO WAIVE LIEN, eifect of, (().) S9, (M.) 205, (B.C.) 262. inquiry should be made as to existence of, ((). ) 20. invalid 2s against persons not parties, (0.) 39, 40. must be in writing, (O.) 18, 19, (M ) 206, (B.C.) 262. ALTERATION OF BUILDING, lien for, (0.) 18, (M.) 206, (B.C.) 262. APPEAL, action to enforce liens, in, when it lies, (0.) 164, 167, (M ) 237, 238, (B.C.) 278. ARCHITECT, when entitled to lien for services, (O.) 21. ASSIGNEE, of lienholder, rights of, (O., 128, (M.) 225. affidavit of. for registration, (0.) 96, 102, (M.) 220, 221^ rights of, (0.) 128, (M.)226. when bound by agreement to waive lien, (O.) 4((. " owner," when bound by lien, (().) 12-16, 98, 99, (M.) 204, 209, (B.C.) 262,. 263. ASSIGNMENT, of lien must be in writing, (O.) 128, 129, (M.) 226. debt by contractor, when invalid, (B.C.) 275. ATTACHMENT OF DEBT, effect of, on lien, (0.) 72, 99, (M.) 215. 314 Index. BOILER, when lien may be claimed for furnishing, (O. ) 29. BUILDINGS.— S-ee Lien. destruction of, effect of on lien, (0.) V,5. erection of, lien for, (O ) 18, 19. (M.) 206, 207, (B C.) 202. 2^3. municipal, (0.) 30, (M.) 208. public, (O.).30, (M.)208. removing, no lien for, (0.) .35. tearing down, no lien for, (0. )35. transfer of to another lot, effect of, (0.) 35, .36. when not subject to lien, (0.) .30. CERTIFICATE.— 5^ee Lis Pendens. architects', or engineers', production of, when condition precedent, (0.) 25. non production of, when excused, (0.) 25, 26. CHARGE ON PERCENTAGE, sub-contractor, when entitled to, (O.) 60-70, (M.) 212, 213. duration of, (O ) 61, 68-70, (M.) 214. extent of, (0.) 60-61, 64, 65, 08-70. when not entitled to, (O. ) 65. suit to enforce, time for bringing, (0.) 62 68, 69, 70. wage-earners' priority on, (0.) 77-88, (M.) 216-218. CHATTELS.— .SVe Forms. lien on, for work, (O.) 180, (B.C.) 283, 284. duration of, (0.) 182. possession of, essential to lien, (0.) 1S2. must be lawful, (O.) 184. sale of, to satisfy lien, authorized, (O.) 180, 184, 185, (B.C.) 284. notice of, to be served and published, (0.) 180, 184, (H.C.) 284. proceeds, how to be applied, (U.) 181, 18.5, 186, (B.C.) 284. CLAIM OF LIEN.— i penih'ns, (0.) 191, (M.) 248. vacating lien, (0.) 202, (M.) 257. chattels, notice of sale of, 307 claim of charge on percentage, (O ) 304. claim of lien, for registration, (O.) 187, ISS, (M.) 244, (B C ) 290. for wages, for registration, (O.) 188, 189, (M ) 245. by several, (O.) 189, (M.) 246. affidavit verifying, (0.) 190, (M.) 247. on commencing action, (M.) 248. defence, (0.) 192, 193, (M ) 249, 250. demand of terms of contract, (0.) 294. discharge of lien, receipt for, (O. )293. affidavit verifying, (0.) 293. certificate for, (O.) 202, (M.)257. injunction, interlocutory, (O.) 305. perpetual, (0.) 305. judgment in lien action, (0.) 198-201, (M.) 254-257. lienholder's statement of account, (0.) 196, (M.) 253 Uh pendi'iin, certificate of, (O.) 191, (M.) 248. notice of sale of chattels, .307. trial of lien action, (0.) 195, (M.) 252. Index. 319 FO RMS— Continued order, — see Injunction. vacating lien, (0.) 306. owner, affidavit of, verifying account, (0.) 194, (M.) 251. particulars of work to be filed, (li.C.) 291. pay-roll, (B.C.) 291. receipt in discharge of lien, (O. ) 29.">. schedule of, to Act, (O.) 187, 202, (M.) 244-258, (B.C.) 290, 291. statement of claim in action by contractor, (0.) 295-300. subcontractor, (0.) 300-304. for charge on percentage. (0 ) 304. relief against prior mortgagee, (O. ) 303. lienholder not a party, of, (O.) 196, (M.) 2.5.3. attidavit verifying (O.) 1U7, (M.) 253. defence, (O.) 192, 193. work to be done, to be filed by owner, or contractor, (B.C ) 291. FUTUllE ADVANCES, mortgage to secure, effect of, (0.) 15, a2. F URN ACE, when lien may be claimed for, (0. ) 29. GOVERNMENT AGENT, registration of lien with, (B.C.) 285, 286. transmission by, of liens to Land Registry, (B.C.) 288. GRADING, lien for, (0.)28. HAULING, lien for, (0.)28. HIGH COURT.— See Action to Enforce Lien— Forms. enforcing lien in, (0.) 140, 141. HOISTING, lien for, (0.) 28. 320 Index. HUSBAND AND WIFE.— .^ee Dowek. wife's interest when bound by contract witli husband, (O.) 9, 10. INCUMBRANCERS, how made parties to action to enforce lien, (0 ) 161. notice of trial to he served on, (O. ) 159, 161. prior, when to be made parties, (0.) 161, 162 INJUNCTION.— See Forms. restraining the removal of buildings, etc., (0.) 90, (M. ) 218. by whom granted, (O. ) 90, (M.)21S, (B.C.) 273, 274. INSURANCE, proceeds of, when subject to lien, (0.) 56, 57. INSTANTANEOUS SEIZIN, owner having, effect of on lien, (O ) l.S. INTERPRETATION OF WORDS, British Columbia Act, 259, 260. Manitoba Act, 203, 205, 218. Ontario Act, 4-17. JUDGE. — See Couktv Court — Local Judge. JUDGMENT -.S'ee Form.s. LABOURER. — .S'ee Wace.s. definition of, (B C.) 260. payment of, when to be proved by contractor, or sub-contractor, (B.C.) 274. right of, to lien, (0.) IS, (M.) 206, (BC.) 261, 262 263, 264, 2Sl. LAND. — See Dower — Hu.sbanh and Wife — Leasehold— Likn — Sale. bound by hen, (0.) 18-19, 20-36, (M.) 206 209, (BC ) 262, 2(>3 railway, when bound by lien, (O.) 18-19, .30-34, (B.C ) 262, 2()3. when free from liability to lien, (0.) 29, 30, (B.C.) 264. LANDLORD, interest of, when not bound by lien, (O.) 7, 8, 49, 50, (M ) 209, (B.C.) 265, 267, 268. Index. 321 LEASEHOLD, lien on, (O.) 41, 49, (M.) 209, (B.C.) 265, 267, 268. purchaser of, to be deemed assignee, (B.C.) 28L LESSOR, interest of, how bound on contract with lessee, (O. ) 41, 49, 50, (M.) 209, (B.C.) 265, 267, 268. LIEN. — See Action to Enforce Lien— Execution — Forms — Lienholders. action, to enforce, unregistered, time for, (O.) 119, 119, (M.) 225. registered, time for, (0.) 123-126, (M.) 225, (B.C.) 284. other lien-holders entitled to benefit of, (0.) 140, 145-147, (M.) 2,30, 231, (B.C.) 275, 276. agreement to wai^e, effect of, (0.) 39, (M.) 205, (B.C.) 262. must be in writing, (0.) 18, 19, (M.) 206, (B.C.) 262. who bound by, (O.) 39, 40, (M.) 205, (B.C.) 262. amount for which it may be claimed, (0.) 19-36, 37, 58, 59, 60, (M.) 207, 208, 211, 212, (B.C.) 263, 266. architect, when entitled to, (0. ) 21 . arising before Act, (0.) 179. assignment of, (0.) 128, 129, (M.) 226, (B.C.) 273. binds land only, on which work done, (O.) 47. building, on, (0.) 18, 19, 35, 36. removed or destroyed, effect of on, (0.) 35, 36. when not liable to, (0.) 30. cancellation of, — see infra, discharge of. cesser of, (0.) 118, 12.S, 124, 125, 127, (M.) 225. chattels, on, nature of, (0.) 181. arises only under contract, (O. ) 184. contrary to contract, none, (0.) 183. credit, effect of on, (0.) 183. duration of, (0.) 182, 183. general, what is, (0.) 181. mechanics entitled to, (0.) 179, (B.C.) 283, 284. particular, what is, (0.) 181. parting with possession, effect of on, (0.) 182. possession essential to, (O.) 182. 21 must be lawful, (0.) 184. W. J. NELSON, BARRISTER AND SOLICITOR, hOSSuAND, 3, C. 322 Index. LIEN— C7o« 44. NOTICE.— S'e^ Forms. of lien, actual, effect of, on prior registration, (0.) 15. sub-contractor, to give, (0.) 61, 62, 67, (M.) 213, 214. prior claim, to lien-holder, effect of, on lien, (O. ) 62. sale of chattels, — si'e Forms. OWNER.— 5ee Contract— Lien. accepting work, (0.) 2,3. subject to remedying defect, (0.) 116, 117. assignees of, right of lien-holder against. (O.) 12-16, 100, (M.) 204, 209, 219, 220. how far bound by lien, (0.) 12, 13. prior registration of claim of, (O.) 13, 14, 109, 114. Index. 329 OWNER— Con^mwed. consent of, when necessary, (0.) 4, 5, 11, (M.) 204, (B.C.) 260. presumed, (B.C.) 268. contract, right to proper performance of, (0.) 22, 23, 24. default in performance of, effect on liability of, (0.) 22, 23, 24. disclosure of to lien holder, (0.) 137-139. (M.) 228, 229. order to produce to lien-holder, (O.) 139, (M.) 229. costs, when he may be ordered to pay, (B.C.) 280, 281. counter-claim, when he may not set up, (B.C.) 275. definition of term, (0.) 4, 7, 10, 11, (M.) 204, (B.C.) 260. does not warrant that work can be done according to plans, (0.) 23. estoppel of, (O.) 11. 12, 44, (B.C.) 267, 268. includes persons claiming under him, (0.) 5, 7, 12-16, (M.) 204, 209, (B.C.) 260. interest of, alone bound, (0.) 7, 41, (M.) 209, (B.C.) 263. instantaneous seizin, of, (O. ) 13. liability of, extent of, (0.) 58, 59, (M.) 211, (B.C.) 266. lien cannot be claimed by, in competition with lien-holders, (O.) 21. notice to, of lien of sub-contractor, (0.) 61, 62, 67, (M.) 213, 214. work being done, efTect of, (B.C.) 267, 268. - payments by, to contractor, effect of, (0. ) 61, 62, 65-70, ( M. ) 213, 214. sub-contractor, effect of, (0.) 61, 62, 65-70, (.\I ) 213, 214. when authorized, (O.) 61, 62, 65-72, (M.) 213, 214. percentage of price, to be retained, (0.) 60, 61, (M.) 212, 213. retention, how far compulsory, (0.) 62. possession by, effect of, where contract imperfectly executed, (O.) 22, 23. price to be paid by, charge on, in favour of sub-contractor, (0.) 60, 61, 64,6.5. privity of, to contract, necessary, (O. ) 4, 11, (M.) 204, (B.C.) 260. set-off, when he may not set up, (B.C.) 275. sub-contractor's claim against, limited, (0.) 59, (M.) 212, (B.C.) 263, 266. payment of, by, (0.) 70-72, (xM.) 214, 215. waiving conditions as to time, (O. ) 23. BAfiRloTER AND SOLICITOR, ROSSLANO, B. C. 330 Index. PARTIES TO ACTIONS TO ENFORCE LIENS.— -See Action to Enforce Lien. adding, (B.C.) 276. defendants, original, who should be made, (0.) 140, 142, 143, (M.) 230. plaintiffs, (O.) 142, 145, 146, (M.) 231. PAYMENT, by owner, validity of, (0.) 60, 61, 62, 65, 66, 70, 88, (M.) 213, 214. into Court, effect of, (0.) 14U, 150. contractor, validity of, (0.) 60, 61, 62, 65, 66, 70, 88, (M.) 214, (B.C.) 274. under timber, or 'og contract, (B.C.) 286, 287. sub contractor, validity of, (0.) GO, 61, 62, 65, 66, 88, (M.) 214, (B.C.) 274. PAY-ROLL, receipted, to be posted on works, (B.C.) 274. woodmans' wages, for, (B.C.) 286, 287. PERCENTAGE, to be retained, (0.) 60, 61, (M.) 212, 213. sub-contractors' rights in, (0.) 60, 61, 62, 63, 64, 65, 77, 78, (M.) 21.3, 217. PERSON, definition of, (O.) 5, 16, (M.) 204-205. POSSESSION.— AS'ee Chattels- Owner. PERSONAL REPRESENTATIVE, agreement to waive lien, when bound by, (0.) 40. of deceased lien-holder, entitled to lien, (0.) 128, (M.) 226, (B.C.) 273. PRE-EMPTION. right of, may be bound by lien, (0. ) 44. PRICE TO BE PAID BY "OWNER." charge on, in favour of sub-contractor, (O. ) 61. 64, 65, (M.) 213. wages, (0.) 77-S7, (M.) 215, 217. payments, how far valid, (0.) 61, 62, 65, 70, (M.) 213, 214. retention of percentage, authorized, (O. ) 60, 61, (M.) 212, 213. Index. 33' PRIMARY DEBTOR, execution against, liability of, to, (().) 176, 177, (M.)241, 242. right of lien holder to, when suspended, (O.) 177. PRIORITY, of liens generally, (O.) 72-77, (M.) 215, 216. for wages, (O.) 76, (M.) 216, (B.C.) 281, 282. how affected by notice, (0.) 108, 109. prior registration, (0.) 13-16, 108. PROCEEDINGS.— .%«> Action to Enforce Lien. to enforce liens when registered, time for, (0.) 12;M26, (M. ) 225, (B.C.) 284, 285. not registered, time for, (O.), 118-123 (M.) 225. PROMISSORY NOTE.— 5^et' Security. PURLIC BUILDINGS, liability of, to lien, (0.) 30, 31, 32, 33, (M.) 208. PURCHASER, contract by, for building, effect of, (0.) 8, (M.) 210, 215. interest of, when bound by lien, (0.) 44, 72-75, (M.) 210, 215. RAILWAYS, Dominion, how far affected by, (O. ) 186. land of, when liable to liens, (0.) 30, 31, 32, 45, 46, 186. not liable to liens, (M.) 221, (B.C.) 264. Ontario Act, application of, to, (O. ) 186. RECEIPT IN DISCHARGE OF LIEN —See Forms. contents of, (0.) 130, 131, (M.) 226, 227. registration of, (0.) 129, (M, ) 226, 227. REGISTRAR.— S'ee Registration. REGISTRATION of lien, (o!) 95, 90, 106, 107, 112, 113, (M.) 219, 220, 221, (B.C.) 269- 270. costs of, recoverable, (O.) 173, (M.) 240. 332 Index. REGISTRATION— Continued. of lien — Continued. discharge of, order for, when made, (0.) 129, 130, (M.) 226, 227, (B.C.) 286, form of, — see Forms. duty of Registrar, on, (0.) 106, (M.) 222. omission of, its effect, (0.) 107. effect of, (0.) 107, (M.)223. fee for, (0.) 106, (M.)222. form of claim for, (0.) 95, 96, 102, 103, (M.) 219, 220, 221, (B.C.) 269-270, — see Forms. defect in, (0.) 103, (M.), 222. verification of, (0.) 96, 101, 102, (M.) 220, 321, (B.C.) 269, 270. how far necessary, (0. ) 97, 98, 99, (M.) 225, 226, (B.C.) 269. informalities in, not to invalidate, (0.) 103, (M.) 222, 225. Land Titles office, when made in, (0.) 96, (M ) 219, (B.C. ) 269. office for, (0.) 95, (M.) 219. (B.C.) 269. omission of, efifect of, (O.) 13, 14, 15, 15, 108, 109, 118, 119, (M.)225, 226, (B.C.) 269. time for, (O. ) 112, 113, 115, (M ) 22.3, 224, (B.C.) 269. computation of, (0.) 115, 116. vacating, (O.) 130, (M.) 226, 227, (B.C.) 286. on giving security, (O.) 129, (M.) 226, 227, (B.C.) 279, 280. order for, form of, — see Form.s. wages, for, (O.) 113, (M.) 223, (B.C.) 269. fe^jeru/MW, when necessary, (O.) 118, 123, 124, (M,) 22r>, 226, (B.C.) 28.5. land in different divisions, (0.) 99, (M.) 219. notice, effect of on prior, (0.) 15, 98, 99. prior, effect of as against lien, (0.) 13, 14, 15, 109. notice, effect of on, (0.) 98, 99. priority, how affected by, (O.) 13, 14, 15, 97, 98, 99. registrar, duty of, on, (0.) 106, 107, (M.) 122. lieijistry Ad, application of, to liens, (O.) 98, 107-112, (M.) 223. time for, of liens for wages, (O.) 113, (M.) 22,3, (B.C.) 269. other liens, (O.) 112, 11.3, (M.) 223, (B.C.) 269. wages liens, of, (0.) 113, (M.) 223, (B.C.) 269. Index. 333 REGISTRY ACT.— See Registration. REPAIRS, ^ lien for, (0.) 18, (M.) 206, (B.C.) 262. SALE. of chattels, — see Chattels. land, Court may order, (0.) 152, (M.) 234, (B.C.) 278. proceeds of, how distributable, (B.C.) 281, 282. report on, (O.) 153, (M.) 235. time within which it may be ordered, (0.) 152, 156, (M.) 234. materials, may be ordered, (0.) 152, 156, (M ) 234. SECURITY, efifect of taking, on lien on land, (0.) 132, 135, (M.) 227, 228. chattels, (O.) 184. promissory note, effect of taking, (0.) 134, 135, (M.) 227 vacating lien, on giving, (O.) 129, (M.) 227, (B.C.) 279, 280. SERVICE, lien for, (0.) 11, (M.) 206. meaning of, (0.) 11. SPECIFICATIONS, contract must be performed according to, (0.) 22-26. owner does not warrant they can be carried out, (0.) 23. STATEMENT OF CLAIM.— »S'ee Forms. proceedings to enforce lien may be commenced by filing, (0.) 140. service of, to be effected within a month from filing, (0.) 140, 143. to be verified by affidavit, (0.) 140, 142. vacation, whether it may be filed, in, (O. ) 144. STATUTES, former respecting mechanics' liens, (0.) 2, 3, (M.) 242, 243, (B.C.) 289. repeal of, (M.) 242, 243, (B.C.) 289. interpretation of, (0.) 3, 4, 5, (M.) 203-205, 218, (B.C.) 259, 260. SUB-CONTRACTOR.- 6Vfi Lien. assignment by, when invalid, (B.C.) 275. charge on percentage of price to be retained, when entitled to, (0.) 60-70, 77, (M.) 212, 213, 216. w J. rr BARRISTER a:v:. ._,CiTOR, «OSSlaNO, 6. C 334 Index. SUB-CONTRACTOR— CoJiJjjmc'f^. contractor in default, rights of, when, (O.) 24, 35. definition of, (0.) 4, (5, (M.) 204, (B.C.) 260. finishing work on dismissal of contractor, (0.) 26, 35. lien, right of, to, (O.) 18, (M.) 206-208, (B.C.) 261. limit of claim of, against " owner," (0 ) 59, (M.) 212, (B.C.) 266. materials furnished by, lien for, (0.) 18, 19, (M.) 206, 207, 215. exemption of, from execution, (0.) 72 90,93,94 notice of lien, to be given to " owner," (0.) 61, 67, 68, (M.) 213. neglect to give, effect of, (0.) 61, 67, 68, (M.) 213. time for giving, (0.) 61, (M.) 213. payment of, by " owner," (0.) 61, t2, (M.) 214. by, effect of, (O.) 61, 67 68, (M.) 213. registering lien of, — •?£»' Registration. waiving lien, agreement for, effect of, (0 ) 17, 18, 20, 39, (M. ) 205, (B.C.) 262. work of, must be in accordance with contract with "owner," (0.)24, 26. SUMMARY APPLICATION.— See Forms. proceedings on, (0 ) 150-153, (B.C.) 278. to enforce lien, (0.) 140, (B.C. 278. TEARING DOWN BUILDINGS, no lien for, (0.)28 TENANT AT SUFFERANCE, cannot bind interest of owner of fee, (0. ) 8. TIME, for action to enforce registered lien, (0.) 123-126, (M.) 225, 226, (B.C.) 284, 285. registering lien, (0.) 112, 113, (M.) 223, (B.C.) 269. for wages, (O.) 113, (M.) 223, (B.C.) 269-270. lis pendens, (0.) 118, 123, 124, (M.) 225, 226, (B.C.) 285. TRUSTEE. contract with, when it confers lien on trust estate, (O.) 10. VACATING LIEN.— See Discharge of Lien. Index. 335 VENDOR, interest of, when bound, (O.) S, 44. WAGES, definition of, (O.) 5, (M.) 218. lien for, (O.) 18, 19, 77, (M.) 206, 207, 216. contract not fiilfined, in case of, (0.) 78, (M.) 217. devices to defeat, void, (0.) 79, (M.) 218. priority of, (0.) 77, (M.) 217. privileges of, (0.) 77, 78, 79, 84, (M.) 216, 217. registration of, (0.) 113, (M.) 228, (B.C.) 269. time for, (O.) 113, (M.) 22.3, (B.C.) 269. WAIVER,, of contract, by "owner," (0.) 23. lien, agreement for, effect of, (0.) 39, (M.) 205, (B.C.) 262. must be in writing, (().) 18, 19, (M.) 206, (B.C.) 262. by taking security, (0.) 132, 135, 184, (M.) 227-228. VYIFt:, interest of, when bound by lien, (0.) 38, 39. WORDS, interpretation of, (O.) 4, 5, (M.) 203-205, 218, (B.C.) 259, 260. WORK. — Set Lien — Likn-Holdkrs — Reoistkation. acceptance of defective, suqject to defect being remedied, (0.) 127! completion of, after delay, effect of, (0.) 127, 128. lien for, (0.) 18-23, 27-29, 34, 35, (M.) 206, (B.(^) 262, 263,. must be in accordance with contract with " owner," (O.) 22, 24, 25 need not be done on land, (0.) 26. " WORKS OR IMPROVEMENTS," definition of, (B.C.) 260. , ^ \ .^''.SO.^M.f'.^I.REGJpNIAL LIBRARY FACILITY AA 000 695 320 2 c-;r J>^ it ^ imimm^'