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Full text of "Mechanics' lien laws in Canada : with the acts of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, and Saskatchewan, relating thereto, and annotations and forms of proceedings thereunder : and also the articles of the Quebec Civil code dealing with mechanics' liens, and a digest of cases in connection therewith"

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Cornell University Library 
KE 930.W19 1920 

Mechanics' Hen laws In Canada with the 



3 1924 018 105 209 





Cornell University 
Library 



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the Cornell University Library. 

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MECHANICS' LIEN LAWS 

IN CANADA 



WITH THE ACTS OP ALBERTA, BRITISH COLUMBIA, MANITOBA, 

NEW BRUNSWICK, NOVA SCOTIA, ONTARIO, AND 

SASKATCHEWAN, RELATING THERETO, 

AND ANNOTATIONS AND FORMS 

OF PROCEEDINGS. 

THEREUNDER. 

AND ALSO THE ARTICLES OF THE QUEBEC CIVIL CODE 

DEALING WITH MECHANICS' LIENS, AND A 

DIGEST OF CASES IN CONNECTION 

THEREWITH. 



BY 

WILLIAM BERNARD WALLACE, LL.B. 

EDITOR OF "DECISIONS OF SUPREME COURT OF NOVA SCOTIA HITHERTO 

UNREPORTED " (40 N.S.R.) I INGPEN ON EXECUTORS AND 

ADMINISTRATORS, CANADIAN NOTES, 

ETC., ETC. 



TORONTO: 
CANADA LAW BOOK COMPANY. 

1920. 



Copyright, Canada, 1920, by B. K. Oeomaett, Toronto. 




PREFACE 



The Mechanics' Lien legislation enacted in the various Pro- 
vinces in Canada is published in this volume, with the exception 
of the Mechanics' Lien Act of Prince Edward, Island, which Act, 
with ' amendments, may be found in Chapter 8 of the Prince 
Edward Island Acts of 1879, Chapter 11, 1881, and Chapter 11, 
1892. There are no reported decisions under this Act, but the 
Act itself is similar to the earlier Ontario legislation. 

The framers of Mechanics' Lien legislation in attempting to 
do justice to workmen and to the suppliers of building materials, 
while at the same time avoiding injustice to the owners of pro- 
perty, have grappled with a difficult problem. Legislation which 
may have the effect of charging one man's land with another's 
man's debt must be worded with very great care, if injustice is to 
be avoided. Since the last consolidation of the Ontario Mechanics' 
and Wage-earners' Lien Act, however, it would seem that this 
statutory remedy, in Ontario., at all events, is as fair and just to 
all parties interested as any legislation of this character can be, 
although like all other human laws it may occasionally fail to 
secure complete justice. 

A large number of new decisions, Canadian and American, are 
published in this volume. As to these decisions, it must be pointed 
out, that as the legislation varies in different Provinces, or States, 
the decisions cannot be attentively studied without closely examin- 
ing the provisions of the Mechanics' Lien Act existing in the par- 
ticular jurisdiction where the question arose. 

A doctrine that should be favorably regarded, in the construc- 
tion of a Mechanics' Lien Act, is that when a statute already in 
force in one jurisdiction is enacted in another, the judicial construe- 



IV , -PBEFACE. 

tions placed upon the statute in the first jurisdiction are received 
in the second jurisdiction as in effect part of the statute, (a) 

The Canadian Bar Association is doing excellent work in endea- 
voring to secure uniformity of legislation throughout the various 
Provinces in relation to many important subjects, but uniformity 
of judicial decision would seem to be as desirable as uniformity of 
legislation. 

W. B. W. 
Halifax, N.S., 

October, 1920. 

(o) Commonwealth v. Hartnett, 3 Gray (Mass.) 450. 



PREFACE TO SECOND EDITION 



Since the first edition of this book important amendments have 
been made to various Mechanics' Lien Acts in Canada and many 
valuable judicial decisions relating to this legislation have been 
given. These statutory amendments and decisions will be found 
noted in this volume. A selection has also been made from recent 
decisions of American courts interpreting provisions of similar 
legislation in the United States. The writer adheres to his view, 
expressed in the earlier Preface, concerning the value of such 
American decisions. 

It is difficult to group the cases on this subject according to 
any logical scheme of classification. The various Mechanics' Lien 
Acts differ in their terms, and, in some instances, amendments 
seem to result in inconsistent provisions in the same Act. But 
there is apparent in recent judicial decisions in various Provinces 
a growing tendency towards uniformity, in gratifying contrast to 
the labyrinth of former conflicting decisions. Any seeming con- 
flict in some recent decisions is probably traceable to the varying 
provincial statutory provisions. 

In a recent case in Alberta,* Beck, J., stated that where a 
statutory provision, is adopted from another jurisdiction, after 
having been in force there for a long period of time, he would be 
disposed to follow the judicial decisions of that jurisdiction upon 
its interpretation, unless there were very strong reasons for a 
contrary view. The general adoption of such a commendable 
' attitude would greatly aid in securing uniformity in the practical 
operation of this beneficial legislation. 

In this edition Canadian decisions down to December, 1912, 
have been noted as far as practicable. 

W. B. W. 

Halifax, January, 1913. 

* Ward v. Serrell (1910) , 3 Alta. L. R., at p. 141. 



PREFACE TO FIRST EDITION 



The decisions upon the Mechanics' Lien Acts existing 1 in vari- 
- ous Provinces in Canada and the amendments to the Statutes 
dealing with this subject have been so numerous of recent years, 
and the subject itself has become so extensive as to warrant the 
publication of a new treatise. While fully sensible of imperfec- 
tions in the execution of this work, it is., nevertheless, hoped that 
it may prove useful to the profession: 

There are some variations in the Statutes of the different 
Provinces on this subject, but very few of them' are substantial, 
and the main sections of the. various Statutes are so nearly alike 
as to make the decisions in one Province of value to the practi- 
tioners in the other . Provinces. Moreover, it is thought that 
judicial interpretations of similar sections in the Statutes exist- , 
ing in various States in the adjoining Eepublic will be useful 
to the practitioners in Canada. Statutes in New York, Massachu- 
setts, Pennsylvania and other States of the Union, on this subject 
use, with very little variation., the phrases of the sections used in 
the Mechanics' Lien Acts existing in various Provinces in Canada, 
and it is felt that, as there are certain principles common to the 
jurisprudence of both countries, the decisions that have expounded 
the Statutes which have been enacted in various States of the 
Union will aid either directly, or by analogy, in the construction 
of similar Acts passed by our Provincial Legislatures. 

Bramwell, B., in Osborn, v. Gillett, (1873) L. R. 8 Exch. 93, 
said, in, speaking of United States decisions on another branch of 
the law: — ' 

" The American authorities are not binding on us indeed, but. 
are entitled to respect as the opinion of professors of English ' 
law and entitled to respect according to the positions of those 
■professors and the reason they give for their opinions." 

The late Mr. Justice Thompson, of, Nova Scotia, in one case 
referred to the value of United States decisions and quoted 



Vlll i ' PREFACE. 

approvingly what Chief Justice Cockburn said in Scaramanga v. 
Stamp; L., E. 5 C. P. D. 303: "Although the decisions of the 
American courts are, of course, not binding on us, yet the sound 
and enlightened views of American lawyers in the administration 
and development of the law, a law, except so far as altered by 
statutory enactment, derived from a common source with out own, 
entitle their decisions to the utmost respect and confidence on 
our part." Such observations must apply with special force to 
decisions of United States courts construing Statutes which, bhe 
Provincial Legislatures in Canada have utilized in framing their 
own Mechanics' Lien Acts. , 

Times have greatly changed since the Court of Queen's Bench 
of Upper Canada, under the presidency of Chief Justice Draper, 
actually declined to make a note of any United States case cited 
on any question of law. 

As the Mechanics' Lien Act of Ontario, the parent Statute, is, 
in its main provisions, similar to the legislation on the same sub- 
ject in Manitoba, British Columbia, Nova Scotia, New Brunswick, 
Alberta and Saskatchewan, and the largest amount of judicial 
interpretation has been given to the Ontario Statute, it has been 
deemed best to group, under appropriate sections of that Statute, 
all the decisions given in Canada that have been obtainable and 
to publish the Mechanics' Lien Acts of the other- Provinces with 
merely the essential notes and cross-references. The Articles of the 
Civil Code of Quebec dealing with the same subject are also pub- 
lished, with decisions of the courts of Quebec relating to them. 

The writer must acknowledge his obligations to Mr. A. A. 
Mackay, B.A., LL.B., Law Clerk of the Nova Scotia Assembly,' 
whose valuable services have greatly improved the volume. 

In the. selection of cases illustrating the Quebec law valu- 
able aid has been given by Mr. H. J, Kavanagh, K.C., of the 
Quebec Bar. 

W. B. W. 

September, 1905. I 



CONTENTS 

PAET I. 

G-ENEEAL LAW EELATING TO MECHANICS' LIENS. 

CHAPTEE I. 
Historical — The Development of the Lien 1 

CHAPTEE II. 
Natithe and Scope op the Lien 10 

CHAPTEE III. 
Construction of Mechanics' Lien Acts 33 

CHAPTEE IV. 
Property which may be Subject to Lien 48 ' 

CHAPTEE V. 
Who may Acquire a Lien 69 

CHAPTEE VI. 
Lien of Sub-contractor and Wage-earners 93 

CHAPTEE VII. 
The Lien of the Materialman 105 

CHAPTEE VIII. 
The " Owner " and his " Interest " 129 



X CONTENTS. 

CHAPTEK IX. 
Essentials to bind an • " Owner " _ 141 

CHAPTEE X. 
Waives of Lien and Estoppel . • • • 150- 

CHAPTEE XI. 
Priorities 167 

CHAPTEE XII. 

Computing the Statutory Time 186 

CHAPTEE XIII. 
Damages . . ..." 197 

CHAPTEE XIV.. 

Mechanics' Liens on Personal Property- 201 



PAET II. 

PEOVINCIAL LEGISLATION. 

The Alberta Mechanics' Lien Act, with Annotations . . 228 , 
The British Columbia Mechanics' Lien Act, with Anno- 
tations 269 

The Manitoba Mechanics' L™n Act, with Annotations. 307 
The New Brunswick Mechanics' Lien Act, with Anno- 
tations . 349 

The Nova Scotia Mechanics' Lien Act, with Annota- 
tions 1 385 

The Ontario Mechanics' Lien Act, with Annotations . . 420 

The Quebec Law Eelating to Mechanics' Liens 534 

The Saskatchewan Mechanics' Lien Act, with Anno- 
tations 569 



TABLE OF GASES CITED 



PAGE 

Abbot Gamble Co., In re, 195 Fed. 465 119 

Abelman v. Meyer, 122 App. Div. CN.Y.) 470 474 

Abhari v. Grassie, 262 111. 636 i 76 

Abramovitch v. Vrondressi, 11 D.L.R. 352 139,, 334 

Adams v. McGreevy, 17 Man. L.R. 115 84 

Adamson v. Rogers, 22 O.A.R. 415 351 

aJschhlimann v. Presbyterian Hospital, 165 N.Y. 296 165 

.2Etna Elevator Co. v. Deeves, 125 App. Div. (N.Y.) 842 146, 147 

Ahem & Soper v. N.Y. Trust Co., 42 S.C.R. 267 537 

Alberta Building Co. v. Calgary, 16 W.L.R. 443 78 

Albion I. Works v. A.O.U.W., 5 B.C.R. 122 47, 271 

Allen v. Deane, 14 W.L.R. 622 '. 271 

Allen v. Harrison. 9 W.L.R. 198 30, 104, 122 

Allen v. Smith, 12 C.B.N.S. 645 193, 221 

Alslip v. Monkman, 22 W.L.R. 667 322 

Alslip v. Robinson, 18 W. L. R. 39 78, 121, 322 

Alvey v. Reed, 115 Ind. 148 54, 63 

American Car Co. v. Alexandria, 215 Pa. 520 481 

American Mortgage Co. v. Merrick, 120' App. Div. N.Y. 150 167, 183 

Anderson v. Archibald, 1 Alta. 524 253 

Anderson v. Armstead, 69 111. 453 62 

Anderson v. Berg, 174 Mass. 404 139 

Anderson v. Fort William Commercial Chambers, 25 D.L.R. 319 . . . 153 

Anderson v. Godsall, 7 B.C.R. 404 138 

Anderson v. Huff, 49 N.J. Eq 93 

Anderson v. Kootenay Gold Mines, 18 B.C.R. 643 175 

Anderson v. Wade, 6 Atl. Rep. 48 187 

Andrews v. Wade (Penn.) , 6 Atl. Rep. 48 214 

Angel v. Joy (1911), 1 K.B. 666 141 

Angler v. Bay State Co., 178 Mass. 163 66, 154, 216 

Anglo-Egyptian Navigation Co. v. Rennie, 10 L.R.C.P. 271 327 

Anglo-Italian Bank v. Davies, L.R. 9 Ch. D. 289 164 

Angus v. McLachlan, L.R. 23 Ch. D. 335 .-. . .216, 225 

Angus v. Scully, 176 Mass. 357 78, 85 

Anly v. Holy Trinity Church, 2 Man. L.R. 248 93 

Antil v. Godwin, 15 Times Rep. 462 79 

Appleby v. Meyers, 2 L.R.C.P. 651 , 226 

Archibald v. Hubley, 18 S.C.R. 116 35 

Argles v. McMath, 26 O.R. 224, 23 O.A.R. 44 64 

Arkansas River Co. v. Florin, 33 Pac. 1006 474 

Armigo v. Mountain Electric Co., 67 Pac. . Rep. 726 445 

Armstrong Cork Co. v. Merchants' Ref. Co., 184 Fed. 199 64 

Arnbery v. Thornton, 6 P.R. 190 512 

Arnold! v. Gouin, 22 Gr. 314 -. 11/ 70 

Arthbutnot & Co. v. Winnipeg M. Co., 16 Man. L.R. 401 155, 335 , 

Ashfield v. Edgell, 21 O. R. 195 ; 79 

Ashford v. Booth, 7 C. & P. 108 227 



Xll v CASES CITED. 

PAGE 

Ashmore v. Cox, (1899) 1 Q.B. 436 89 

Atkinson Co. v. Shields Const. Co., 76 N.J.L. 751 129 

Avery & Sons v. Woodruff, 144 Ky. 227 115 

Badgley v. Dickson, 13 O.A.R. 494 166 

Badger Lumber Co. v. Marion, 15 L.R.A. 652 16 

Badger Lumber' Co. v. Mulhback, 190 Mo. App. 646 162 

Badger Lumber Co. v. Parker, 35 L.R.A. 901 191 

Baldridge v. Morgan, 24 Am. & Bng. Am. Cas. 377 430 

Bagshaw V. Johnson. 3 O.L.R. 58 91 

Baker v. Ambrose, (1896) 2 Q.B. 372 477 

Baker & Stewart L. Co. v. Marathon, 146 Wis. 12 116 

Baker v. Uplands, 24 W. L. R. 768 54, 103 

Baker v. Waldroh, 92 Me. 17 17, 19 

Baker v. Williams, 23 B.C.R. 124 , .' 73 

Baines v. Curley, 33 D. L. R. 309 '.26, 32, 42 

Bank of Charleston v. Curtis, 18 Conn. 342 26 

Bank of Montreal v. Condon, 11 Man. L.R. 366 387 

Bank of Montreal v. Haffner, 10 O.A.R. 599 5, 6, 29, 135 

Banque Jacques Cartier v. Picard, 18 Que. '.S.C. 502 " 539 

Banque La d'Hochelaga v. Stevenson, 9 Que. Q.B. 282, (1900) A.C. 

600 . . 35 

Banque d'Hochlaga v. Montreal Co., M.L.R. 1 S.C. 146 538 

Barker v. Brown, 138 Mass. 340 217 

Barker Lum. Co. v. Marathon, 146 Wis. 12 115 

Barker & Steward Lumber Co. v. Marathon, 36 L.R.A., 875 120 

Barnard v. Wheeler, 24 Me. 412 204 

Barr & Anderson v. Percy, 21 W.L.R. 236 20, 120,' 276 

Barrington v. Martin. 16 O.L.R. 635 .7, 41 

Barry v. Ross, 19 S.C.R. 360 82' 

Bartlett v. Kingan, 19 Penn. 341 487 

Bastrup v. Prendergast, 179 111. 553 161 

Batchelder v. Hutchinson, 161 Mass. 462 23, 180 

Bathurst Lumber Co. v. Nepisiquit, 11 B.L.R. 552 2.15 

Bauer v. Long, 147 Mich. 35 59 

Baughman Automobile Co. v. Emanuel, 38 L.R.A. 97 227 

Beam v. Methodist Episcopal Church, 3 Clark (Pa.) 343 53 

Bean v. Bolton, 3 Phila. (Pa.) 87 215 

Bear Lake & R. W. Co. v. Garland, 164 U.S. 1 47 

Beatty v. Parker, 141 Mass. 523 16 

Beaver Lumber Co. v. Miller. 32 D.L.R. 428 '. 573 

Beck v. Catholic University, 6 App. Div. (N.Y.) 599 139 

Beck v. Duncan, 12 D.L.R. 762 59 

Bellamy v. Davy, (1891) 3 Ch. 540 2 

Belleau v. Pitou, 13 Que. L. R. 337 264 

Belnap v. Condon, 23 L.R.A 148 

Bender v. Carrier, 15 S.C.R. 19 88 

Bennett v. Shackford. 11 Allen, (Mass.) 444 75, 105 

Bennet v. Devitt, 25 Man. L.R. 421 455 

Benson v. Smith & Son, 31 D. L. R. 416 51, 187 

Benton v. Wickwire. 54 N.Y. 229 48 

Berlin Interior Hardware Co. v. Colonial, Ac., 38 D.L.R. 463 152 

Bermingham v. Gill, 164 111. App. 536 .149 

Bernal v. Pirn, 1 Gale, 17 212 



CASES CITED. Xlll 

PAGE 

Bernhardt v. Fry, 2 Sask. L.R. 315 96 

Beseloff v. The White Resort Co., 22 B.C.R. 33 275 

Bevan v. Thackera, 143 Pa. 182 60, 62 

Bevan v. Waters, Moo. & Malk. 236 202 

Beveridge v. Hawes, 2 O.W.R. 619 76 

Bickerton v. Dakin, 20 O.R. 192, 695 15, 38, 74 

Bigelowv. Heaton, 6 Hill (N.Y.) 43...' 174, 223 

Billings v. Brand, 187 Mass. 417 160, 194 

Birkett v. Brewder, 7 O.W.R. 62 25 

Bishop v. Boyle, 9 Ind. 159 54 

Bitner"s Estate, Re, 196 Pa. 90 183 

Blackburn v. Macdonald, 6 U.C.C.P. 380 201 

Black v. Hughes, 22 C.L.T. 220 443 

Black v. Wiebe, 15 Man. L.R. 260 81, 86, 275, 324 

Blake v. Nicholson, 3 M. & S. 167 203, 204 

Blanchard- v. Ely, 179 Mass. 586 140 

Bleadon v. Hancock, 4 C. & P. 152 202 

Bligh v. Davies, 28 Beav. 211 207 

Blight v. Ray, 23 O.R. 415 74; 129, 134 

Boake Mfg. Co. v. McCrimmon, 6 O.W.N. 979 450 

Boarcette v. Williams, 73 Mich. 208 48 

Boardman v. Sill, 1 Camp. 410 . . . , 214 

Bock v. Gorrissen, 2 DeG. F. & J. 443 201 

Bohem v. Seabury, 141 Penn. 594 105 

Bond v. Treahey, 37 U.C.Q.B. 360 89 

Booth v. Booth, 3 O.L.R. 294 20, 22, 61, 120 

Borden v. Mercer, 163 Mass. 7 135, 140 

Boucher V. Belle Isle, 14 D.L.R. 146 361 

Bowers v. Jarrell, 210 111. App. 256 151 

Bowes, Re, (1886) 33 Ch. D. 586 215 

Bowes v. N.Y. Christian Home, 54 How. Pr. 509 498 

Bowden v. Duggan, 91 Me. 141 215 

Boyce v. Huxtable (unreported) 89, 187, 399, 488 

Boyce v. Kennedy (unreported) 391 

Boyer v. Kelly, 258 111. 106 145 

Boynton v. Holcomb, 49 111. App. 503 ; 50 

Boyd v. Mole, 9 Phila. 118 . .- . 441 

Brabazon v. Allen, 41 Con. 361 18 

Braddyl v. Ball, 1 Br. C.C. 427 219 

Braden v. Brown, 24 B.C.R. 374 77, 94 

Bradford, Neill & M. Co., 76 111. App. 488 ' 156 

Bradley v. Huber Co., 146 App. Diy. (N.Y.) 630 : . . 46 

Bradley Co. v. Gaghan, 208 Pa. 511 121 

Bradshaw v. Saucerman, 4 D.L.R. 476 30, 71 

Brant v. City of New York. 186 N.Y. 599 '. 441 

Brassard v. Chisholm, 4 R.Q. dej. 419 542 

Breckenridge v. Travis, 2 Alta. L.R. 71 155, 254 

Breeze v. Midland Ry. Co., 26 Gr. 225 55 

Brett v. Rogers, (1897) 1 Q.B. 525 442 

Brewer Co. v. B. & A. R. Co.; 179 Mass. 228 502 

Brewster v. Warner, 136 Mass. 57 223 

Briggs v. Lee, 27 Gr. 464 456 

Briggs v. Mclnnes (unreported) 393 



XIV CASES CITED. 

PAGE 

Brienzi v. Samuel, 12 O.W.R. 1232 468 

Bristol Corporation v. Aird, (1913) A.C. 241 78 

Bristol v. Wilsmore, 1 B. & C. 614 208 

Brynjolfson v. Oddson, 32 D.L.R. 270 187, 192 

British Columbia Mills v. Horrebin, 12 B.C.R. 426 275 

British Columbia Granitoid Co. v. Domn. Ship. Co., (1918) 2 

"W.W.R. 919 11, 70, 176 

British Columbia Timber & T. Co. v. Leberry, 22 C.L.T. 273 137, 271 

British Wagon Co. v. Lea, 5 Q.B.D. 149 213 

Brookfield v. Hopgood (unreported) Ill, 389 

Brooks v. Mundy, 16 D.L.R. 119 100, 102 

Brooks-Sanford Co. v. Theodore Telier Co., 22 O.L.R. 176... 16, 40, 

: 105, 107, 108, 117, 119, 124, 188 

Brooks-Sanford Co. v. Hampden, 204 Mass. 494 116 

Broomhead, Re, 16 L.J.Q.B. 355 223 

Brougham, Lord v. Cauvin, 37 L.J. Ch. N.S. 691 ' . . 224 

Broughton v. Smallpiece, 25 Gr. 290 . . , 456 

Brown v. Bathurst, 28 D.L.R. 295 ". 363 

Brown v. Allan, 13 D.L.R. 350 .32, 95, 274, 363 

Brown v. Bannatyne School, etc., 22 Man. L.R. 260 1 88, 200 

Brown v. Haddock, 199 Mass. 480 146 

Brown v. Myers, 145 Pa. 17 121 

Brown v. Wyman, 41 Am. Rep. 117 19 

Bruce v. Eveson, 1 Cab. & Ellis, 18 225 

Bruce Lumber Co. v. Hoos, 67 Mo. App. 264 160 

Bruck v. Bowermaster, 26 111. App. 510 61 

Bruner v. Moore (1904) , 1 Ch. 305 87 

Brunswicke-Balke Collender Co. v. Racette, 49 Que. S.C. 50 71, 559 

Bruntnall v. Smith, 166 Mass. 353 217 

Brusk Elec. Co. v. Warwick, 6 Ohio -. 16 

Bryant v. Grady, 98 Me. 389 157 

Brydon v. Lutes, 9 Man. L.R. 463 75, 86, 325 

Buchanan v. Einstein, 87 N.J.L. 307 46 

Budd v. Trustees, 51 N.J.L. 36 471 

Builders Material Co. v. Johnson, 158 111. App. 413 37, 115, 116 

Builders Supply Co. v. Huddleston, 25 Man. 718 17, 20, 21, 26, 32 

Bunting v. Bell, 23 Gr. 584 473 

Burns v. Lane, 23 111. App. 504 92 

Burke v. Ireland, 26 N.Y. App. Div. 487 36 

Burnside v. O'Hara; 35 111. App. 150 479 

Burritt v. Renihan, 25 Gr. 183 493 

Burt v. Wallace, 17 C.L.J. 70 '. 514 

Burton v. Hookworth, 48 D.L.R. 339 12, 101, 122 

BusHeld v. Wheeler, 14 Allen (Mass. ) ; 130- 202, 223 

Busfleld, In re. 32 Ch. D. 123 509 

Buser v. Shepard, 107 Ind. 417 49, 184 

Butterfield v. Byron, 153 Mass. 617 78, 85 

Caldwell v. Glazier, 138 App. Div. (N.Y.) 826 67 

Caldwell v. Schumlback, 175 Fed. 429 89 

Calhoun v. Mahar. 14 Pa. 56 46 

California Power Works v. Blue Tent Mines, 22 Pac. Rep. 391 472 

Camirand v. Durand, 10 Q.P.R. 174 454 

Campbell v. John Taylor Co., 62 N.J. Eq. 30 . '. 66 



CASES CITED. XV 

PAGE 

Campbell v. Jacobson, 145 111. 389 59 

C. P. R. Co. v. Canadian Wheat Growing Co. (1919), 2 W.W.R. 

313 , 245 

Canada Foundry Co. v. Edmonton Portland Cement Co. (1919) 2 

W.W.R. 310 254 

Canada Foundry Co. v. Edmonton (1919) 2 W.W.R. 310 254 

Canada Sand, Lime, Brick Co. v. Ottaway, 10 O.W.R. 686 196 

Canada Sand, Land & Brick v. Ottaway, 15 O.L.R. 128 997 

Canada Sand, etc., Co. v. Poole, 10 O.W.R. 1041 509 

Canada Steel and Wire Co. v. Ferguson, 21 D.L.R. 771 214 

Canadian Bank of Commerce v. Lewis, 12 B.C.R. 398 64 

Canadian Equipment Co. v. Bell, 11 D.L.R. 820 112, 127, 154 

Canadian Gas Power v. Schofield, 15 O.W.R. 847 207 

Canadian General Elec. Co. v. Can. R. Co., 52 Can. S.C.R. 349 198 

Canadian Lumber v. Ferguson (1920) 1 W.W.R. 256 572 

Canadian Western Foundry & Supply Co. v. Hoover (1917) 3 W. 

W.R. 594 83 

Canton Roll Co. v. Rolling Mills Co., 155 Fed. 321 164 

Canton v. Chevalier, 52 Que. S.C. 97 557 

Canty v. Clarke, 44 U.C.R. 505 78 

Capper v. Gillespie, 11 W.L.R. 310 : 20 

C. P. R. Co. v. Notre Dame de Bonsecours, (1899) A.C. 367 57 

Carew v. Rutherford, 106 Mass. 1 225 

C'arew v. Stubbs, 155 Mass. 549 85, 167 

Carey v. Brown, 92 UjS. 171 225 

Carey-Lombard Lumber Co. v. Jones, 187 111. 203. 154 

Carignan v. Gilbert, 7 Q.P.R. 364 529 

Carriere v. Sigouin, Q.R. 33 S.C. 423; 18 K.B. 176 540, 549 

Carriere v. Milot, 15 R. de J. 89 , 540 

Carson & Co. v. Shelton, 15 L.R.A. 509 120 

Carroll v. McVicar, 15 Man. L.R. 379 94, 103, 189 

Carroll v. Shooting the Chutes Co., 85 Mo. App. 563 204 

Carter, Re, 55 L.J. Ch. 230 223 

Casey v. Weaver, 141 Mass. 280 499 

Cassels v. Holden, &c, (1914) 84 K.B. 834 202 

Castellatn v. Thompson, 13 C.B.N.S. 105 205 

Central Lumber Co. v. Braddock Land, 84 Ark. 560 127 

Chadwick v. Hunter, 1 Man. L.R. 363 29, 122 

Chambers v. Davidson, L.R. 1 P.C. 305 215 

Chambers v. Goldthorpe, 70 L.J.K.B. 482 77, 87 

Champion v. The World, 27 D.L.R. 506 175, 280 

Chapin v. Persse, 30 Conn. 461 110, 122 

Charpenter v. Lapointe, 7 R. de J. 92 543 

Charters v. MoCracken, 29 D.L.R. 756 170 

Chase v. Westmore, 5 M. & S. 180 202, 205 

Chatham v. Rowland, 92 N.C. 340 139 

Chew v. Traders Bank of Canada, 19 O.L.R. 74 215 

Chicago & Alton R. R. Co. v. Union R.MX)., 109 U.S. 720 152 

Chicago Artesian Wells Co. v. Covey, 60 111. 73 118 

Chicago Lumber Co. v. Dillon, 13 Colo. App. 196 140 

Chicago Lumber Co. v. Douglas, 44 L.R.A. 843 115 

Chicago Smokeless Gas & Fuel Co. v. Lyman, 62 III. App. 538 68 

Childs v. Anderson, 128 Mass. 108 23 



XVi CASES ~ CITED. 

PAGE 

Chinic Hardware Co. v. Laurent, 1 R. de J. 278 547, 556 

City of Calgary v. Dominion Radiator Co., 40 D.L.R. 65. .29, 33, 174, 259 

Choquette v. Couture, 17 Que. P.R. 480 559 

Christian v. Illinois Malleable Co., 92 111. App. 320 1M 

Christian v. Allee, 104 111. App. 177 .- 1° 4 

Christie v. Mead, 8 C.L.T. 312 \f 

Christie v. McKay, 15 Man. L.R. 612 **< 

Chute v. Gratten, 32 N.B.R. 549 , 444 

City of Montreal v. Lafebre, R. J.Q. 14 S.C. 473 645 

Clapin v. Nagle, 6 L.C.J. 196 • -547, 556 

Clayton v. McConnell, 14 O.R. 608 "' 

Clark v. Butler, 32 N.J. Eq. 664 . . . ; 178 

Clarke' v. Heylman, 80 N.Y. S. 794 ■-. 122 

Clark v. Kingsley, 8 Allen, 543 214 

Clarke v. Costello, 29 N.Y.S.. 937 224 

Clarke v. Barnshaw, Gow 30 ."< 225 

Clarke v. Fell, 2 L.J.K.B.N.S. 84 -. : 22 

Clarke v. Heylman, 80 App. Div. (N.Y.) 572 110 

Clarke v Moore, 1 Alta. L.R. 49 : 17, 26, 155, 187, 191 

Clevenger v. Louis, 16 L.R.A. (N.S.) 410 227 

bleverley v. Moreley, 148 Mass. 280 420 . 

Clinton Thresher Co., 15 O.W.R. 318 182,. 

Close v. Waterhouse, 6 East. 523 225 

Cobban v. Lake Simcoe, 5 O.L.R. 547 521 

Cockburn v. Campbell, 24 Gr, 519 218 

Coddington v. Dry Dock Co., 31 N.J.L. 477 204 

Cole v. Hall, 12 P.R. 584 i 490 

Cole v. Pearson, 17 O.L.R. 46 ..12, 104, 185 

Cole v. Uhl, .46 Conn. 296 „ .492 

Coleman v. Goodnow, 36 Minn. 9 , '. 165 

Colling v. Stimson & Buckley, 10 D.L.R. 597 96, 174, 177, 189 

Columbia Bitulithic v. Vancouver, 21 D.L.R. 91 , 294 , 

Collins v. Drew, 67. N.Y. 149 19, 48, 53 

Collins v. Martin, 41 U.C.Q.B. 602 . . ( . . 450 

Collins v. Patch, 156 Mass. 317 . : 17, 167 

Colonial Investment Co. v. McCrimmon, 5 O.W.R. 315 180 

Colt v. Lausenceburg L. C, 44 Ind. App. 122 62 

Commonwealth v. Green, 111 Mass. 392 227 

Compaigne v. Car/ver, 27 D.L.R. 76 s . 134 

Concord. Apartment House Co. v. O'Brien, 128 111. App. 423....;.. 150 

Cook v. Belshaw, 23 O.R. 545 169, 176, 180 

Cook v. Koldofsky, 28 D.L.R. 346 74, 133, 167, 173 

Connely- v. Havelock School Trustees, 9 D.L.R. 876 51, 53 

Connolly v. Sullivan, 173 Mass. 1 85 

Connor v. Lewis, 16 Me. 268 48 

Conrad v. Kaplan, 24 Man. L.R. 368 98 

Conrow v. Little, 115 N.Y. 387 203 

Copley v. O'Neill, 58 Barb. (N.Y.) 299 .' 450 

Cornish, Re, 6 O.R. 259 , 460 

Corporation du Seminaire v. Banque de St. Hyacinthe M.L.R. 1 1 

Q.B. 396 : 534 

Ooughlan v. Carver, 29 W.L.R. 791 177, 258, 270 

Coughlan v. National Const. Co., 14 B.C.R. 339 37, 155, 160 



CASES CITED. $V11 

PAGE 

Coumbe, Re, Cockburn & Campbell, 24 Gr. 619 189 

Courtemanche v. Blackstone Valley Co., 170 Mass. 50 139, 147 

Cowan v. Griffith., 103 CaL 224 17 

Cowan v. Penn Plate Glass Co., 184 Pa. 16 18 

Cowell v. Simpson, 15 Ves. 27S 215 

Cowper v. Green, 7 M. & S. 633 217 

Craig v. Cromwell, 27 O.A.R. 587 39 

Crapper v. Gillespie, 11 W.L.K. 310 581 

Crawford v. Tilden, 13 O.L.R. 173, 14 O.L.R. 572 10, 56, 57, 58 

Crawshay v. Homfray, 4 B. & Aid. 50 214 

Craigholme v. Southwicke-, 21 O.W.R. 445 432 

Credit Foncier Franco-Canadian v. Lindsay Walker Co. (1919), 2 

W.W.R. 385 67 

Cremier v. Byrnes, 4 E. D. Smith (N.Y.) 756 475 

Crerar v. C.P.R. Co., 5 O.L.R.- 383 38 

Crone v. .Strutters, 22. Gr. 248 34 

Croskey v. Corey, 48 111. 442 148 

Croskey v. N. W. Mfg. Co., 48 111. 481 459 

Crowfoot v. London Dock Co., 2 Cr. & M. 630 211, 218 

Crown Lumber Co. v. Malcolm, 9 W.W.R. 481 264 

Culver v. Lieb^rman, 69 N.J.L. 341 506 

Cumpston v. Haigh, 2 Bing. N.C. 449 201, 204 

Curnew v. Lee, 143 Mass. 105 442 

Currier v. Cummings, 40 N.J. Eq. 145 67, 148, 183 

Currier v. Friedrick, 22 Gr. 243 r 20, 106 

Curtis v. Medansky, 141 App. Div. (N.Y.) 883 476 

Curtis v. Richardson, 18 Man. L.R. 519 14, 333 

Curwen v. Milburn (1889), 42 Ch. D. 424 223 

Cut Rate Plate Glass Co. v. Solodinski, 25 D.L.R. 533 132, 172, 185 

Dakin v. Lee (1916), 1 K. B. 566 80, 83, 100 

Dale v. International Mining 'Syndicate, 25 B.C.R. 1 248 

Daley v. Legate, 169 Mass. 257 75 

Danforth v. Pratt, 42 Me. 50 222 ■ 

Daniel v. MoDuff, R.J.Q. 13 K.B. 361 534 

Darlington Lumber Co. v. Burton, 156 111. App. 82 65 

Davidson v. Francis, 14 Man. L.R. 141 321 

Davidson v. Provost, 35 III. App. 126 88 

Davidson v. Stewart, 200 Mass. 393 183 

Davies v. Bowsher, 5 D. & E. 488 215 

Davis v. Alford, 94 U.S. 545 177, 183 

Davis v. Connecticut & Mut. L. Ins. Co., 84 111. 508 139 

Davis v. Crown Point M. Co., 3 O.L.R. 69 17, 25, 26, 30, 71 

Davis v. Humphrey, 112 Mass. 309 216 

Davis v. LaCrosse Hospital, 121 Wis. 579 . .' 154 

Davis v. Miall, 86 N.J.L. 167 123, 136 

Davison v. Mulcahy, 19 N.S.R. 209 219 

Daubigny v. Duval, 5 T.R. 604 219 

Day v. Crown Grain Co., 39 S.C.R. 258 186, 188, 235 

Deane Steam Pump Co. v. Clark, 84 N.Y.S. 851 519 

Dearie v. Martin, 78 Penn. 55 •. 60 

Deegan -v. Kilpatrick, 64 N.Y, App. Div. 374 24, 134 

Degagne v. Cnave, 2 Terr. L.R. 210 76, 85, 88 

MX. — B 



XV1U' CASES CITED. 

PAGE 

DeKlyn v. Gould, 166 N.Y. App. 282 4,77 

Deldo v. Gough-Sellers, 25 D.L.R. 605 . , 81, 96 

Demaurez, In re, 5 Terr. L.R. 84 466 

Demers v. Byrd, 17 K.B. (Que.) 303 544 

Dempsey v. Carson, 11 U.C.C.P. 462 1, 214, 220 

Dempster v. Wright, 21 C.L.T. 88 .... 399 

Dermott v. Jones, 2 Wall. 1 457 

Desrosiers v. Leedham, 49 Que. S.'C. 33 544 

Devine v. Clark, 198 Mass. 56 186 

De Vingo v. Hall, 205 Mass. 407 478 

Deviner v. Gallery, 38 D.L.R. 542 438 

Dewing v. Wilbraham Society, 18 Gray, 414 53 

Dicas v. Stockley, 7 C. & P. 587 207, 223 

Dick v. Standard, 23 O. W. R. 96 518 

Dick v. Standard Cable Co., 23 O.W.R. 96 30 

Dillon v. Sinclair, 7 B.C.R. 328 279 

Dirks v. Richards, 4 M. & G. 574 ' 214 

Dixon v. Dalby, 11 TJ.C.Q.B. 79 206 

Dixon v. Le Farge, 1 E. D. Smith, 722 472 

Dixon v. Ross, 1 D.L.R. 17 , 77 

Doane v. Russell, 3 Gray (Mass.) 382 204 

Dobson V. Major (unreported) 389 

Dodge v. Hall, 168 Mass. 435 477 

Doe v. Monson, 33 Me. 430 90 

Dominion Fuel & Lumber Co. v. Paskov, (1919),1 W.W.R. 657 173 

Dominion Radiator Co. v. Cann, 37 N.S.R. 237 99, 107 

Dominion Radiator Co. v. Payne, 11 Alta. R. 537 15 

Dominion Trust Co. v. Mutual Life Assn., 26 B.C.R. 237 64, 279 

Donaher v. Boston, 126 Mass. 309 119 

Donahy v. Clapp, 12 Cush. (Mass.) 440 48 

Donal v. Archibald, 1 Alta. L.R. 524 199 

Donaldson v. Collins, 21, W.L.R. 56 78, 86 

Donald v. Suckling, L.R. 1 Q.B. 612 , 204 

Donnell v. Butler, 216 Mass. 41 32 

Doody v. Collins, 223 Mass. 332 '. 219 

Dorrell v. Campbell, 23 B.C.R. 560 129, 270 

Douglas v. Chamberlain, 25 Gr. 289 5 

Doutre v. Greene, 5 L.C.J. 152 537, 555 

Dowdney v. McCallum, 59 N.Y. 367 19 

Dredge v. Conway, 70 L.J.'K.B. 494 446 

Driscoll v. Hill, 11 Allen (Mass.) 154 241 

Drummond Carriage Co. v. Mills, 40 L.R.A. 761 226 

Drummond v. Griffith, L.R.A. 1916, B. 748 227 

Dufresne v. Prefontaine, 21 S.C.R. 607 538 

Dufton v. Horning, 26 O.R. 252 474 

Duncan v. Brunelle, 10 Q.P.R. 268 j 549 

Dunham v. Johnson, 135 Mass. 310 225 

Dunham v. Woodworth, 158 111. App. 486 45 

Duncan Co. v. Desjardins, 51 Que. S.C. 71 551 

Dunlop v. New 1 Garage, (1915) A.C. 79 199 

Dunn v. Holbrook, 7 B.C.R. 503 97 

Dunn v. McCallum, 14 O.L.R. 249 20, 21, 32, 91, 106, 119, 126 

Dunn v. Sedziak, 17 Man. L.R. 484 103 



CASES CITED. XIX 

PAGE 

Dunn v. Stokern, 43 N.J. Eg. 401 164 

Dupont DeNemous Powder Co. v. Culgln-Pace, 206 Mass. 586 115 

Dure v. Roed, 34 D.L.R. 38 173 

Durling v. Gould, 83 Me. 184 46 

Dussault y- Fortin, R.J.Q. 4 S.C. 304 549 

Eadie-Douglas v. Hitch & Co., 9 D.L.R. 239 ... . 8, 28 

Easton v.. Brown, 170 Mass. 311 180 

Eckhard v. Donohoe, 9 Daly (N.Y.) 214 220 

Eddy v. Chamberlain & Landry. 37 D.L.R. 711 73, 131, 132, 134, 142 

Edmonds. v. Tiernan, 2 B.C.R. 82, 21 S.C.R. 406 31, 34, 156 

Edwards v. Derrickson, 28 N.J.L. 39 502 

Eidendrath .Co, v. Gebhardt, 222 111. 113 48 

Eider, The, v. Norddentscher, Lloyd, 62 L.J.P. 65 219 

Elford V. Thompson, 1 D.L.R. 1 77, 199 

EUenwood v. Burgess, 14 Mass. 534 161 

Elliot v. McCallum, 19 C.L.T. 412 291 

Elliot v. Rowell, 11 O.W.N. 203 518 

Ellis v. Cory, (1902) 1 K.B. 38 19 

Emard 'v. Gauthier, 29 D.L.R. 319 36, 554 

Empire Brewing & Malting Co., Re, 8 Man. L.R. 424. 135, 184 

Erdman v. Moore, 58 N XL. 445 64 

Ettridge v. Bassett, 136 Mass. 314 178 

Evans v. Jensen, L.R.A. 1918 B 165 

Evans v. Lower, 58 Atl. Rep. 294 116, 120 

Exall v. Partridge, 8 T.R. 308 ". 90 

Fairclough v. Smith, 13 Man. L.R. 509 17, 20, 21, 61, 130 

Falconer v. Hartlen (unreported) " 192, 389 

False Creek Co. v. Sloan, 17 W. L.R. 525 252, 260 

Farmers' Advocate v. Master Builders Co., (1917) 3 W.W.R. 1100.. 199 

Farr v. Groat, 24 "W.L.R. 860 ' 234 

FarreH v. Gallagher, 18 O.W.R. 446 12, 13, 99, 104, 185 

Farquhar v. City of Hamilton, 20 O.A.R. 86 87 

Federal Trust Co. v. Guigues, 76 N.J. E. 495 183 

Feeny y. Rothflbaum, 155 Mo. App. 331.. 16, 121 

Fehr Construction Co. v. Postl, 189 111. App. 519 64 

Felgenhauer v. Haas, 123 App. Div. 75 478 

Finn v. Miller, 10 C.L.T. 23 483 

First National Bank v. Redman, 57 Me. 405 182 

Fischer v. Jordan, 169 N.Y. 615 145 

Fisher .v. Smith, (1878) 4 A.C. 12 , 214 

Fitzgerald v. Elliott, 162 Pa. 118 202 

Fitzgerald v. Williamson, 18 B.C.R. 322 274 

Fitzpatrick v. Boylan, 57 N.Y. 433 48 

Flack v. Jeffrey, 10 Man. L.R. 514 37, 74, 129 

Flett v. World Construction, 15 D.L.R. 628... 128, 195, 279 

Fletcher v. Stedman, 159 Mass. 124 139 

Fletcher-Crowell Co. v. Chevalier, 108 Me. 453 118 

Folsom v. Barrett, 180 Mass. 439 204 

Forbes v. Mosquito Fleet Yacht Co., 175 Mass. 432 24 

Forhan v. Lalonde, 27 Gr., 600 428 

Forman v. The Liddesdale, 69 L.J.P.C. 44 224 

Forth v. Simpson, 13 Ad. & E.. (N.S.) 680 206 

Fortin v. Pound, 1 W.L.R. 333 145, 270 



XX CASES CITED. 

PAGE 

Fossett v. Rock Island L. Co., 14 L.R.A. 918 199 

Foster v. Baker, (1910) 2 K.B. 636 496 

Foster v. Brocklebank, 22 D.L.R. 38 192, 250 

Foster v. Hastings Corporation, 87 L.T. 736 86 

Fowler v. Parsons, 143 Mass. 401 162 

Fowler v. Pompelly, 76 S.W. 173 123 

Franklin v. Hosier, 4 B. & Aid. 341 202 

Franklin Sav. Bank v. Taylor, 131 111. 376 138, 140 

Fraser v. Griffiths, 1 O.W.R. 141 474 

Frechette v. Ouimet, Q.R. 28 S.C. 4 440 

. Freeze v. Carey, 1 Alta. L.R. 81 229 

French v. Hussey, 169 Mass. 206 48 

Friedman v. County of Hampden, 204 Mass. 494 91, 117 

Fripp v. Clark, 14 D.L.R. 918 .- 11, 72, 281 

Frith v. Rehfeldt, 130 App. Div. (N.Y.) 326 157 

Frohlich v. Ashton, 164 Mich. 132 162 

Frohlich v. Carroll, 127 Mich. 561 6Q 

Fuller v. Beach, 21 W.L.R. 391 30, 76 

•Fuller v. Heintz, 137 "Wis. 16-9 : .' . . . 82 

Fuller v. Turner, 18 B.C.R. 69 95 

Pulp v. Power Co., 157 N.C. 156 15, 94, 486 

Gabriele v. Jackson Mines, 15 B.C.R. 373 299 

Galarneau v. Tremblay, 22 Que. S.C. 143 540 

Gale v. Blaikie, 129 Mass. 206 45 

Galliher v. Cohen, 1 Brown (Penn.) 43 214 

Galvin-Walston Lumber Co. v. McKinnon, 4 Sask. L;R. 68, 16 W. 

L.R. 310 ' 14, 19, 138 

Gannon v. Shepard, 156 Mass. 355 147 

Gardner v. Gorman, 1 Alta. L.R. 106 253 

Gardner v. Lefevre, 180 Mich. 219 213 

Garing v. Hunt, 27 O.R. 149 14, 64, 74 

Garlan v. Rensselaer, 71 Hun. 2 135 

Gearing v. Nordheimer, 40 U.C.Q.B. 21 82 

Gearing v. Robinson, 27 O.A.R. 364 35. 40, 74, 129, 142 

General Contracting Co. v. Ottawa, 14 O.W.R. 749; 16 O.W.R. 479 

" 51, 53 

General Fire B. Co. v. Chaplin, 183 Mass. 376 45 

General Fire E., Co. v. Magee, 199 Pa. 647 91 

Gerry v. Howe, 130 Mass. 374 < 60 

Giant Powder Co. v. Oregon Pac. Ry. Co., 42 Fed. 470........... 471 

Gibbon v. Pease, (1905) 1 K.B. 810 72 

Gibson v. Lenane, 94 N.Y. 183 470 

Gidney v. Morgan, 16 B.C.R. 18 91 

Gillies Supply Co. v. Allan, 15 B.C.R. 375 299 

Gillies v. Gibson, 7 W.L.R. 245 -. 164 

Gillis v. Cobe, 177 Mass. 584 82 

Gilson v. Emery, 11 Gray (Mass.) 430 48 

Gilmour v. Colcourd, 96 App. Div. (N.Y.) 358 145 

Glacius v. Black, 50 N.Y. 145 81 

Gladu v. Hurtubise, 10 Q.PR. 272 536 

Glascock v. Lemp, 26 Ind. App. 175 227 

Goble v. Gale, 41 Am. Dec. 219 157 

Goddard v. Coulson, 10 O.A.R. 1 455, 458 



CASUS CITED. XXI 

PAGE 

Goddefroy v. Caldwell, 56 Am. Dec. 360 31, 120 

Godfrey Lumber Co. v. Kline, 167 Mich. 629 45 

Gogin y. Walsh, 124 Mass. 516 119, 277 

Gold Medal Furniture Co. v. Craig, 6 O.W.R. 954 466 

Goldie McCullough Co. v. Hewson, 35 N.B.R. 349 64 

Good & Nepisiquit Lumber Co., Re, 2 E.L.R. 252 '. 361 

Good v. Toronto H. & B. Ry. Co., 26 O.A.R 55, 78 

Goodbub v. Estate of Horning, 127 Ind. 182 49 

Goodwin v. The Queen, 28 S.C.R. 273 77 

Gorman v. Archibald, 1 Alta. L.R. 524 106, 176 

Gorman v. Henderson, 8 W.L.R. 422 93 

Goss v. Greenleaf, 98 Me. 436 51 

Gould v. McCormack, 75 Wash. 61 164 

Gove v. Cather, 23 111. 634 54, 184 

Grace v. Osier, 16 W.L.R. 627; 19 W.L.R. 109, 326 86, 88 

Graham v. Williams, 8 O.R. 478, 9 O.R. 458 8, 14, 39, 74, 129 

Grand Trunk R. Co. v. Therrien, 30 S.C.R. 485 57 

Government of Newfoundland v. Nfd. R. Co., (1888) 13 A. C. 199. . 443 

Grant v. Dunn, 3 O.R. 376 472 

Great Western Ry. Co. v. Crouch, 3 H. & N. 183 223 

Gray v. McLellan, 214 Mass. 92 182 

Great West Perm. Loan Co. v. National Mtge. Co., (1919) 1 W.W. 

R. 788 185 

Green v. Holmstead Fire Ins. Co., 82 N.Y. 517 453 

Green v. Shewell, 4 M. & W. 277 221 

Green v. All Motors, Limited, (1917) 1 K.B. 625 224 

Green v. Shewell, 4 M. & W. 277 221 

Greenleaf v. Beebe, 80 111. 522 62, 164 

Green Lumber Co. v. Nutriment Co., 113 111. App. 635 440 

Griff v. Clark, 155 Mich. 611 164 

Griffin v. Ernst, 124 App. Div. (N.Y.) 289 67 

Guelph Paving Co. v. Brockville, 5 O.W.R. 626 78 

Guest v. Hahnan 15 C.L.T. 61 52 

Guest v. Hunter, 3 C.L.T. 33 89, 96 

Gurney v. McKay, 37 U.C.Q.B. 336 203 

Gurr v. Cuthbert, 12 L.J. Ex. 309 215 

Haas Electric & M. Co. v. Springfield, 236 111. 452 148 

Hackett v. Coghill, 2 O.W.R. 1077 210, 212 

Haddock v. Humphrey, (1900) 1 K.B. 609 19, 54 

Haggarty v. Grant, 2 B.C.R. 176 34, 35 

Hale v. Hughes, 10 Gray (Mass.) 99 90 

Halestrap v. Gregory, (1895) 1 Q.B. 561 225 

Haley v. Young, 134 Mass. 364 ; 486 

Hall v. Hogg, 14 P.R. 45 486 

Hall v. Pilz, 11 P.R. 449 507 

Halstead & Harmount Co. v. Arick, 76 Conn. 382 155 

Hamilton Bridge Works v. General Contracting Co., 14 O.W.R. 646. 510 

Halifax Shipyards v. Westerian, 19 Can. Ex. C.R. 259 410 

Hamilton v. Vineberg, 4 D.L.R. 827 88 

Hammond v. Damelson, 126 Mass. 204 , 226 

Hammonds v. Barclay, 2 East 235 1, 202 

Hanson v. News Pub. Co., 97 Me. 99 67 

Harding v. Knowlsen, 17 U.C.Q.B. 564 32 



XX11 CASES CITED. 

PAGE 

Hardisty v. Carnell, 40 N.S.R. 214 204 

Harrington v. . Saunders, 23 C.L.J. 48 462 

Harris Mfg. Co. v. McGovern, S,C. 340 (Que.) 539, 547 

Harris-v. Charbonneau, 7 R. de J. 119 542 

Hart v. Iron Works, 37 Ohio St 91 

Hart v. Porthgain Harbour, (1903) 1 Ch. 690 86 

Hartley v. Hitchcock, 1 Stark. 408 206 

Hartney v. Boulton, 7 Sask. L.R. 97 ■. 219 

Hartop y. Hoare, 3, Atk. 43 207 

Harvey v. Brewer, 178 N.Y. App. 5 464 

Harvey v. Mo'se Plumbing Co. v. Wallace, 99 111. App. 212 •. 45 

Hatch v. COleman, 29 Barb. (N.Y.) 201 119 

Hatton Car Maintenance Co.. (1915) 1 Ch. 621 206, 213 

Hawes v. Crowe, Ry. & M. 414 208 

Hawkins v. Mapes-Reeves Co., 178 N.Y. App. 236 496 

Haycock v. Sapphire, 7 O.L.R. 21 515 

Hayden v. Meunier, 13 R. de J. 149 553 

Hayes v. Fessenden, 106 Mass. 223 24 

Hayward v. Grand Trunk R. Co., 32 U.C.Q.B. 392 202 

Hazel v. Lund, 25 D.L.R. 204 51 

Hazard Powder Co. v. Brynes, 12 Abb. Pr. 469 472 

Head Co. v. Coffin, 13 W.L.R. 663 93 

Healey Ice Mach. Co. v. Green, 181 Fed. 890 62 

Heberlien v. Wendt, 99 111. App. 506 198 

Hecla Iron Works v. Hall, 115 App. Div. N.Y. 126 164 

Heckman v. Pinkney, 81 N.Y. 211 48, 85 

Henderson v. Connolly, 123 111. 98 135 

Henderson v. Sturgis, 1 Daly (N.Y.) 336 85 

Henry v. Bowes, 3 C.L.T. 606 : 512 

Henry v. Miller, 145 111. App. 628 146 

Hensel v. Noble, 95 Pehn. St. 345 203, 225 

Henshaw v, Federal, (1916) 34 W.L.R. 208 < 238 

Hercules Powder Co. v. Knoxville, 67 L.R.A. 487 116 

Herbert v. Herbert, 57 Prac. (N.Y.) 33 139 

Heskins v. Hesley, 152 111. App. 141 159 

Hewison v. Guthrie, 2 Bing. N.C. 759 215 

Hickman v. Roberts, (1913) A:c. 229 ' 78 

Higgins v. Scott, 2 B. & Ad. 413 223 

High. River Trading Co. v. Anderson, 10 W.L.R. 127 178, 183 

Hill v. Fraser, 2 Thorn. (N.S.) 294 80 

Hill v. Newman, 80' Am. Dec. 473 123 

Hill v. Story, 34 O.L.R. 489 .'. 127 

Hilliard v. Allen, 4 Cush. 532 486 

Hinchley v. Greany, 118 Mass. 595 t 159, 162, 220 

Hines Lumber Co. v. O'Heron, 183 111. App. 391 115 

Hiscox v. Greenwood, 4 Bsp. 174 » 205 

Hitchcock v. Lancto, 127 Mass. 514 ; 90 

Hofgesang v. Meyer, 2 Abb. N. Cas. (N.Y.) Ill 472 

Hoffstrom v. Stanley, 14 Man. L.R. 227 135, 137 

Holden v. Bright Prospects G. M. Co., 6 B.C.R. 439 292 

Hollingsworth v. Dow, 19 Pick. 228 ... 202 

Hollins.v. Hubbard, 165 N.Y. 534 222 

Holcom v. Boynton, 151 111. 294 i 49 



CASES CITED. XX111 

PAGE 

Holden v. Winslow, 18 Penn. i60 486 

Hollis v. Claridge, 4 Taunt. 807 205 

Hollister v. Mott, 132 N.Y. 18 83 

Holly v. Huggeford, 8 Pic. 73 219 

Holtby v. French, 1 O.W.R. 821 85 

Hommell v. Lewis, 104 Penn. 465 '., 123 

Hope & Co. v. Canada Foundry Co., 40 O.L.R. 338 84 

Horn Mfg. Cd. v. Stedman, 215 Pa. 187 , 48 

Home t. Jenkyn, 6 D.L.R. 55 221 

Home v. Jefnkyn, 6 D.L.R. 55 263 

Hooker v. McGlone, 42 Conn. 95 : 158 

Horr v. Slairk, 35 111. App. 140 i 199 

Hooven v. Featherstone, 111 Fed. 81 45, 152, 190 

Houghton v. Matthews, 3 B. & P. 485 . . : 201 

Hough v. Collins, 70 111. App. 661 161 

Houle v. Couture, 8 Q.P.R. 398 553 

Hovenden v. Ellison, 24 Gr. 448 j 490 

Howard v. American Boiler Co., 68 111. App. 566 48 

Howard v. Robinson, 5 Cush. 121 27 

Howard v. Tucker, 1 B. & Ad. 712 159 

Howes v. Ball,, 7 B. & C. 481 207 

Howlett v. Doran, 11 D.L.R. 372 . . . ) ,. .160, 253 

Hoyt v. Miner, 7 Hill (N.Y.) 193 199 

Hubbard v. Brown, 90 Mass. 590 165 

Hubbell v. Schreyer, 14 Abb. Pr. (N.S.) 284 42 

Hughes v. Lenny, 5 M. & W. 183 73, 224 

Hughes v. McCashland, 122 111. App. 365 162 

Hughes v. Torgerson, 16 L.R.A. 600 72 

Hume v. Seattle Dock Co., 50 L.R.A. 153 116 

Humphreys v. Cleave, 15 Man. L.R. 23 , 289. 

Hunter v. Blanchard, 18 111. 318 , 441 

Hunter v. Leake, 7 L.J.K.B. (O.S.) 221 224 

Hunter v. Walter, 12 N.Y. Supp. 60 85, 87 

Hurst v. Morris, 32 O.L.R. 346 188, 192 

Hutson v." Valliers, 19 O.A.R. 154 505 

Hynes v. Smith, 27 Gr. 150 475 

Ibex Mining & Development Co., 9 B.C.R. 557 . , 184 

Imperial Brewers, Ltd. v. Gelin, 18 Man. L. R. 284 ' '..... 64 

Independence Sash Co. v, Bradfield, 134 S.W. 118 61, 138 

Independent Lumber Co. v. Bocz, 16 W.L.R. 316 ; 179 

Insurance Co. v. Stinson, 103 U.S. 25 455 

Interstate Building Assn. v. Ayers, 177 111. 9 60, 145 

Inverness Ry. v. Canadian Lines, 29 S.C. 151 (Que;) 552 

Irwin v. Victoria Home, 18 B.C.R. 318 .- 274 

Irwin v. Benyon, 4 Man. L.R. 10 .47, 48, 330 

Issacs De Anna v. Tafler, 11 Que. P.R. 359 530 

Isitt v. Merritt Collieries, (1920) 1 W.W.R. 879 74, 142, 271, 306 

Jack v. McKissock, 27 Man. L.R. 548 175 

Jackson v. Cummins, 5 M. & W. 342 205, 206 

Jackson v. Bgan, 138 App. Div. (N.Y.) 505 9, 92, 121 

Jackson v. Hammond, 8 P.R. 157 504 

Jackson Water Supply Co. v. Bardeck, 8 Alta. 305 224, 244 

Jacobs v. Latour, 5 Bing. 132 201,218 



XXIV CASES CITED. 

PAGE 

Jacobs v. Robinson, 16 P.R. 1 : . , 509 

Jarechi v. Society, 79 Pa. St. 403 501 

Jamieson v. Charbonneau, 17 Que. S.C. 514 544 

Janse-Mitchell Cons. Co. v. City of Calgary, 14 Alta. L.R. 214 237 

Jeffersonville Water Supply Co. v. Riter, 138 Ind. 170 188 

Jennings v. Willis, 22 O.R. 439 460 

Jerry v. Hawe, 131 Mass. 347 60 

Job v. Hunter, 165 Pa. 5 60 

Johnson v. Algon, 65 N.J.L. 363 478 

Johnson v. Braden, 1 B.C.R. pt. 2, 265 291 

Johnson v. Butler, 7 Alta. L.R. 427 : 243 

Johnspn & Carey Co. v. C. N. R. Co., 47 D.L.R. 75 • 27, 59, 73 

Johnson v. Crew, 5 U.C.Q.B. (O.S.) 200 : 1 

Jones v. Cliffe, 1 C. & M. 540 217, 226 

Jones v. Menke, 168 N.Y. 61 147 

Jones v. Moores, 74 N.Y. 109 500 

Jones v. Pothast, 72 Ind. 158 62 

Jones v. Shawhan, 4 Watts & Serg. 262 36 

Jones v. Tarleton, 9 M. & W. 67 221 

Jones v. Walker, 83 N.Y. 612 . , 60 

Jourdain v. Miville, Stuart's Rep. 263 531 

Julin v. Ristow Pottes, 54 111. App. 460 '. 198 

Kalbfleisch v. Hurley, 34 O.L.R. 268 108,111 

Kalmanovitch v. Frank, 52 Que. S.C. 171 552 

Kane v. Kinney, 174 N.Y. App. 69 495 

Katzman v. Mannie, 46 O.L.R. 121 212 

Keene v. Thomas, (1905) 1 K.B. 136 213, 224 

Keen v. Keen, (1902) 1 K.B. 55 86 

Keffer v. Miller, 10 C.L.T. 90 135 

Keith v. Maguire, 170 Mass. 210 521 

Kelly v. Johnson, 251 111. 135 150 

Kelly v. McKenzie, 1 Man. L.R. 169 330 

Kelly v. Rosenstock, 45 Ind. 389 443 

Kelly v. Tourist Hotel Co., 20 O.L.R. 267 445 

Kendall v. Fader, 199 111. 294 48, 155 

Kendall v. Fitzgerald, 21 U.C. Q.B. 585 221 

Kendler v. Bernstock, 22 D.L.R. 475 27 

Kennedy v. Haddow, 19 O.R. 240 169, 179 

Kennebec Co. v. Pickering, 142 Mass. 80 486 

Kenny v. Apgar, 93 N.Y. 539 105 

Kenny v. Harrison, (1902) 2 K.B. 168 19,54 

Kerby v. Daly, 45 N.Y. 84' 122 

Kerford v. Mondel, 28 L.J.N.S. 303 217 

Kertscher & Co. v. T5reen, 124 N.Y.S. 461 154 

Keystone Min. Co. v. Gallagher, 5 Col. 23 471 

Keys v. Harwood, 2 C.B. 905 152 

Kievell v. Murray, 2 Man. L.R. 209 167 

Kincaid v. Reid, 7 O.R. 12 60 

King, The, v. C.P.R. Co., 9 Can. C.C. 328 57 

Kilbourne v. McBwan, 6 W.L.R. 562 487 

Kilhurn v. Rice, 151 Mass. 442 161 

King v. Alford, 9 O.R. 643, 10 O.R. 647 . . . 19, 55, 56 

King v. Indian Orchard Co., 11 Cush. 231 202, 208 



CASES CITED. XXV 

i 

PAGE 

King v. Low, 3 O.L.R. 234 78, 85, 89 

Kinney v. Harrison, (1902) 2 K.B. 168 54 

Kirchman v. Standard Coal Co., 52 L.R.A. 318 165 

Kittredge v. Sumner, 11 Pick. 50 219 

Knot v. Cline, 5 B.C.R. 120 291 

Kokomo Investment Co. v. Dominion Harvester Co., 43 D.L.R. 205. 65 

Lacy v. Piatt Power Co., 157 Mich. 545 -. 476 

La Porgee v. Colby, 69 III. App. 443 17 

La Grill v. Mallard, 90 Cal. 373 441 

La Rose v.' Nichols, 103 Atl. 390 343 

La Tour v. L'Henreux, 16 Que. S. C. 485 539 

Laflamme v. Laplante, 51 Que. S.C. 38 548 

Lake v. Biggar, 11 U.C.C.P. 170' 218 

Laine v. The Queen, 5 Ex. C.R. 103 79 

Lalonde v. LaBelle, 16 Que. S.C. 573 535 

Lambert v. Nicklass, 45 W. Va. 527 '. . . 218 

Land Titles Act, In re, (1919) 1 W.W.R. 628 139 

Lane v. Old Colony RR. Co., 14 Gray (Mass.) 148 207 

Landsberg & Co. v. Hein, 135 App. Div. (N.Y.) 819 151, 157 

Landyskowski v. Martyn, 93 Mich. 575 198 

Lang v. Gibson, 21 C.L.J. 74 450 

Larkin v. Larkin, 32 O.R. 80 107, 109 

Larkins v. Blakeman, 42 Conn. 292 20 

Larsen v. Nelson & Port Sheppard Ry, Co., 4 B.C.R. 151 58 

Latch v. Bright, 16 Gr. 653 , 483 

Laurentide Paper Co. v. Pompre, 15 R. de J. 278 552 

Lavoie v. Desrosiers, 46 Que. S.C. 405 547,559 

Law v. City of Toronto, 47 O.L.R. 251 78, 88 

Law v. Mumford, 14 B.C.R. 233 19, 230 

Lawrence v. Congregational (jjhurch, 164 N.Y. App. 115 494 

Lawrence v. Landsberg, 14 W.L.R. 477 124, 191 

Lawrence v. Village of Lucknow, 13 O.R. 421 87 

Lawrie v. Rathbun, 38 U.C.Q.B. 255 481 

Lays v. Hurley, 215 Mass. 582 37 

Lee v. Broley, 2 Sask. L.R. 288 50 

Lee v. Gould, 47 Pa. 398 214 

Lee Co. v. Hill, 11 W.L.R. 611 23, 190 

Leg v. Willard, 17 Pick. 140 ,174, 218 

Leg v. Evans, 6 M. & W. 36 150, 206 

Leibrock v. Adams, 17 Man. L.R. 575 317 

Leith Estate, Re, L.R. 1 P.C. 296 215 

Lemon v. Dunsmuir, 5 W.L.R. 505 247 

Lempriere v. Pasley, 2 T.R. 485 226 . 

Lengelsen v. McGregor, 162 Ind. 258 159 

Lentz v. Emmerman, 119 Wis. 492 62 

Leonard v. Brooklyn, 71 N.Y. 498 52 

Le Page, McKenney & Co. v. Pinner, 21 B.C.R. 81 95 

Leroy v. Smith, 8 B.C.R. 300 35, 77, 86 

Lessard v. Revere, 171 Mass. 294 51 

Levy v. Barnard, 8 Taunt. 149 , 216 

Lezenik v. Greenberg, 157 N.Y. Supp. 1093 215 

Libbey v. Tidden, 192 Mass. 175 125 

Lilley v. Barnsley, 1 C. & K. 344 201 



XXVI CASES CITED. 

PAGE 

Limoges v. Scratch, 44 S.C.R. 86 125, 144, 159 

Lindsay y. Gunning, 59 Conn. 296 18 

Lingren v. Nilsen, 52 N.W. 915, 50 Minn. 449 25 

Lipman v. Jackson, 128 N.Y. 58 181 

Lippman t. Low, 69 App. Div. N.Y. 24 60 

Little v. Vradenburg, 16 111. App. 189 60 

Litton v. Gunther, 12 O.W.R. 1122 : , 129 

Linden Steel Co. v. Ref. Co., 138 Pa. 10 480 

Liverpool, London & Globe Ins. Co. v. Kadlac, 13 Alta. L.R. 498.'. . . 246 

Llado v. Morgan, 23 U.C.C.P: 517 .; 220 

Locke v. Locke, 32 C. L. J. 33,2 '. 180 

Lodder v. Slowey, (1904) A.C. 442 87 

Logan Planing Mill Co. v. Aldredge, 15 L.R.A. 1159 449 

Lord Lumber Co. v. Callahan, 181 111. App. 323 153 

Lowden v. Sorg, 233 111. 79 157 

Lowther v. Heaver, 41 Ch. D. 249 81 

Lucas v. Goodwin, 3 Bing. N.C. 738 85 

Ludlum-Ainslie Lumber Co. v. Fallis, 19 O.L.R. 419.. 108, 111, 113, 193 

Ludlam v. Wilson, 37 C.L.J. 819 . .' 78 

Ludy v. Larsen, 78 N.J. Eq. 23T 160 

Lumbard v. Syracuse, 55 N.Y. 494 501 

Lundy v. Henderson, 9 W.L.R. 527 97, 199 

Lynch v. Tibbits, 24 Barb. (N.Y.) 51 207, 182 

Lynch v. Trainor, 13 C.L.T. 426 27 

Macomber v. Detroit Cadillac Co., 173 App. Div. (N.Y.) 724 223 

Madden v. Kempster, 1 Camp. 12 226 

Madden v. Nelson & Fort Sheppard R. Co., (1889) A.C. 622 57 

Mahley v. German Bank, 174 N.Y. App. 499 43 

Makins v. Robinson, 6 O.R. 1 .36, 155 

Mallet v. Kovar, 14 W.L.R. 327 ( 37, 97, 118 

Malmgren v. Phinney, 50 Minn. 457 135 

Mammoth Min. Co. v. Salt Lake Foundry, 151 U.S. 447 145 

Manton v. Moore, 7 T.R. 67 211 

Manton v. Terrien, 12 R. de J. 488 460 

Maple City Oil Co. v. Charlton, 22 O.W.R. 882 159 

Marinier v. Therrien, 12 R. de J. 488 460 

Marks v. Lahee, 3 Bing. N.C. 408 203, 205 

Marston v. Kenyon, 44 Conn. 349 18 

Marsh v. Mick, 159 111. App. 399 15, 77, 164 

Marshall Brick Co. v. Irving, 28 D.L.R. 464 14, 131 

Marshall Brick Co. v. York Farmers C. Co., 54 Can. S.C.R. 569 

74, 131, 133, 142, 170 

Martin v. Eversall, 36 111. 22 123 

Martin v. Stewart, 204 Mass. 122 125 

Mark v. Murphy, 76 Ind. 535 , 184 

Maryland Brick Co. v. Spelman, 76 Ind. 337 18 

May Brick Co. v. General Engineering Co., 180 111. 535 397 

Mayer v. Mitchler, 50 N.J.L. 162 96, 199 

Mehan v. Thompson, 71 Me. 492 109 

Meistrell v. Baldwin, 144 N.Y. App. 660 147 

Menzel v. Tubbs, 51 Minn. 364 23 

Merriam v. Public Parks, 18 W.L.R. 151 78, 81 

Merrick v. Campbell, 17 D.L.R. 415 192, 195, 321 



OASES CITED. XXV11 

PAGE 

Merritt v. Crane Co., 225 111. 181 431 

Metals, Limited v. Trusts & Guarantee Co., 22 D.L.R. 495 234, 242 

Metals, Limited v. Trusts, 22 D.L.R. 495 234 

Mettallic Roofing Co. v. Jamieson, 2 0. W. R. 316 515 

Meunier v. Hinman, 27 Man. L.R. 270 333 

Meyers v.. Bratlspiece, 174 Pa. 119 202 

Metivier v. Wand, Q.R. 13 S.C. 445 544 

Midtown Con. Co. v. Goldsticker, 165 N.Y. App. 264 89, 92 

Miexell v. Guest, 40 Pac. Rep. 1070 '....' 24 

Milburn v. Milburn, 4 U.C.Q.B. 179 206, 222 

Milton Pressed Brick Co. v. Whalley, 42 O.L.R. 369 84, 111, 113 

Miller v. Duggan, 21 S.C.R 474 

Miller v. Calumet Lumber Co., Ill 111. App. 651 93 

Miller v. Shepard, 50 Minn. 268 23 

Miller v.. Schmitt, 67 N.Y. Supp. 1077 24 

Miller v. Moore, 17 W.L.R. 548 91 

Miller v. Wilkinson, 167 Mass. 136 191 

Milliken v. City of Halifax, 21 N.S.R. 418 88 

Milliken Bros. v. City of N. Y., 201 N.Y. 65 186 

Mireault v. Gauthier, 17 R. de J. 361 . . . , 536 

Mitchell v. Dunsmore Realty Co., 126 App. Div. (N.Y.) 829 83, 148 

Mitchell v. Guildford Union, 1 L.G.R. 857 88 

Mitchell v. Packard, 168 Mass. 467 69,70 

Mitchell v. Williams, 80 App. Div. N.Y. 527 83 

Monaghan v. Goddard, 173 Mass. 468 148 

Monarch Lumber Co. v. Garrison, 18 W.L.R. 686 S . . . 581 

Monro v. Clark, 107 Me. 134 103 

Montandon v. Deas, 48 Am. Dec. 84 138 

Montjoy v. Heward School Dist, 10 W. L. R. 282 109, 138 

Montmorency Cotton Mills Co. v. Gignac, 10' Que. Q.B. 158 534 

Moore v. Bradley, 5 Man. L.R. 49 313 

Moore v. Dugan, 179 Mass. 153 96 

Moore v. Brickson, 158 Mass. 71 85, 148 

Moore v. Jacobs, 190 Mass. 424 157 

Moore v. Protestant School Dist, 5 Man. L.R. 49 47, 50 

Moran v. Chase, 52 N.Y. 346 106 

Morgan v. Congdon, 4 N.Y. 552 203, 217 

Morgan v. Railroad, 96 U.S. 720 160 

Morgan v. Stevens, 6 Abb. (N.Y.) New Cases 356 91 

Moreau v. Guimont, 8 .Que. P.R. 424 438, 547 

Moorehouse, Re, 13 O. R. 290 490 

Morehouse v. Moulding, 74 111. 322 ' 469 

Morris v. Garby, 50 Que. S.C. 273 -. 212 

Moritz v. Lewis. Cons. Co., 51 L.R.A. 1040 115 

Morris, Re, (1908) .1 K.B. 473 216 

Morris v. Tharle, 24 O.R. 159 190, 195 

Morris County v. Rockaway, 14 N.J. Eq. 189 110, 118 

Morrison v. Minot,. 5. Allen, 403 147 

Mors-le-Blanch .v. Wilson, L.R. 8 C.P. 227 210 

Morse .v..Le.vis,Connty Railway, 30 .S.C. 353 (Que.) 536 

Mountjoy.v. Heward School Dist., 10 W.L.R. 282 109, 138 

Moyes v. Kimball, 92 Me. 231 201 

Mulllner. v. Florence, L.R. 3, Q.B.D. 4S4 204, 215 



XXV1U CASES CITED. 

PAGE 

Muto v. Smith, 175 Mass. 175 441 

Munro v. Britt, 8 E. & B. 738 87 

Munroe v. Clark, 107 Me. 134 75 

Murphy v. "Watertown, 112 App. Div. (N.Y.) 670 148 

Murray v. The Queen, 26 S.C.R. 203 77 

Mushlitt v. Silverman, 50 N.Y. 360 31 

Mutual Ins. Co. v. Rowland. 26 N.J. Eq.' 389 72 

Muzzey v. Reardon, 57 N.H. 378 •. 441 

, Myluzyhk v. N. W. Brass Co., 14 D.L.R. 486 124, 237 

McAllister v. DesRochers, 132 Mich. 381 282 

McArthur v. Dewar, 3 Man. L.R. 72 50, 86, 93, 106, 109 

McArthur v. Martinson, 16 Man. L.R. 387 315 

McAulay v. Powell, 7 W.L.R. 433 93 

McBean v. Kinnear, 23 O.R. 313 88, 198 

McBride v. Bailey, 6 U.C.C.P. 523 220 

McCabe v. McRae, 58 Me. 99 151 

McCarthy v. Caldwell, 43 Minn. 442 62 

McCarty v. Carter, 49 111. 53 18, 54 

McCauley v. Powell, 7 W.L.R. 443 , '. . 93 

McClain v. Hutton, 131 Cal. 132 123 

McCombie v. Davies, 7 East 5 222 

McCormack v. Rutland, 191 Mass. 424 181 

McCormick v. Bullivant, 14 C.L.J. 85 482 

McCree v. Campion, 5 Phila. 9 • 161 

McC'ue v. Whitwell, 156 Mass. 205 135 

McCully v. Ross, 22 C.L.J. 63 450 

McDe'armid v. Poster, 12 Pac. Rep. 813 213 

McDonald v. Consolidated Gold Lake Co., 40 N.S.R. 364 140 

McDonald v. Consolidated Gold M. Co.. 21 C.L.T. 482 , 504 

McDonald v. Dominion Iron & S. Co., 40 N.S.R. 465 104, 177 

McDonald v. Hartley, (1918) 3 W.W.R. 910 •. 129, 136 

McDonald v. Mark, 141 111. App. 434 , 6-2 

McDonald v. Mayor of New York, 170 N.Y. App. 409 44 

McDonald v. McKenzie, 7 Alta. 435 249 

McDonald v. Stirsky, 3 R. & C. 520 207 

McDonald v. Symons, 15 W.L.R. 218 81 

McDonald Dure Lumber Co. v. Workman, 18 Man. L.R. 419 215 

McFatridge v. Holstead, 21 N.S.R. 325 204, 222 

McFarland v. Wheeler, 26 Wend. N.Y. 467 212 

McGuirl v. Fletcher, 3 Terr. L.R. 137 488 

McGraw v. Bayard, 96 111. 146 159 

McGraw v. Godfrey, 56 N.Y. 610 , 136 

MoGuinness v. Boyle, 123 Mass. 570 23 

Mclvor v. Crown Point, 19 P.R. 335 502 

McKenna v. McNamee, 14 O.A.R. 339 ' 80 

McKenzie v. Martinson, 40 N.S.R. 346 212 

McKenzie v. Murray, 11 W.L.R. 123 [ 569 

McKinnon v. Pabst, 8 B.C.R. 265 89 

McLachlan v. Kennedy, 21 N.S.R. 271 210 

MaoLaren v. Villeneuve, R.J.Q. 11 Q.B. 131 546 

McLaren v. Loyer, 20 C.L.T. 277 , \ 542 

McLean v. Sanford, 26 App. Div. N.Y. 603 191 

McLean v. Wiley, 76 Mass. 233 157 



CASES CITED. XXIX 

PAGE 

McLennan v. Winnipeg, 3 Man. L;R. 74 196, 330 

McManus v. Rothschild, 25 O.L.R. 138 12, 13, 83, 118 

McMillan v. Byers, 3 Man. L.R. 361, 4 Man. 76 206 

McMillan v. Seneca Lake G. & W. Co., 12 N.Y. Supr. Ct. 12 470 

McNab & Harlin M. Co. v. Paterson, 7.2 N.J. 929 37, 121 

McNamara v. Kirkland, 18 O.A.R. 276 11 

McNeil v. Keleher, (1865) 15 C.P. 470 206 

McNulty Bros. v. Offerman, 126 N.Y.L. 755 147 

MePherson v. Gedge, 4 O.R. 246 42 

McPugti Co. v. Wallace, 198 111. 422 45 

MeSporran v. Miller, 9 W. W. R. 81 241 

National Supply Co. v. Horrobin, 16 Man. 472 335 

National Wall Paper Co. v. Sire, 163 N,Y. 122 147 

Naucolas v. Hatiffer, 12 L.R.A. 864 193 

Neelon v. Toronto, 25 iS.C.R. 579 80 

National Mortgage Co. v. Rolston, 59 Can. S. C. R. 219 171, 177, 292 

Nelson v. Campbell, 28 Pa. St. 156 26 

Nepage v. Pinner, 21 B.C.R. 81 : 276, 281 

Nevils v. Schofield, 21 N.B.R. 124 . .- 215, 220 

New Jersey Steel & I. Co. v. Robinson, 85 App. Div. (N.Y.) 512 165 

N.Y. Elevator iSupply Co. v. Brewer, 74 App. Div. 400 147 

N.Y.L. Co. v. Sehneilder, 15 Daly, 15 150 

Nichols v. Culver, 15 Conn. 177 118 

Nichols v. Buchanan, 117 Mass. 488 90 

Noiseau v. City of Lachine, 24 Rev. Leg. 491 541 

Nobbs v. C. P. R., (1913) 6 W. W. R. 759 37, 274 

Noonan v. Gaiety (unreported) 399 

North American W. P, Co. v. Jackson Const. Co., 167 N.Y. App. Div. 

80, 779 

Northern Plumbing & H. Co. v. Greene, 27 D.L.R. 410 134 

Northern Trusts Co. v.-Battell, 29 D.L.R. 515 172 

North River Co., In re, 38 N.J. Eq. 433 227 

Norton Construction Co. v. Unique C. Co., 121 App. Div. (N.Y.) 585. 121 

Oakes v. Moore, 24 Me. 214 ,,' 212 

Oakland Mfg. Co. v. Lemieux, 98 Me: 488 486 

O'Brien v. Praser & Gallagher, 41 D.L.R. 328. .17, 20, 21, 22, 23, 30, 351 

O'Driscoll v. Bradford, 171 Mass. 231 , V . 485 

Oldershaw v. Garner, 38 U.C.C.P. 21 86 

Oldfleld v. Barbour, 12 P.R. 544 20 

Oldfield v. Dickson. 18 0.|R. 188 : . 87 

Ombony v. Jones, 19 N.Y. 234 440 

Ontario Lime Association v. Grimwood, 22 O.L.R. 17. .17, 20, 31, 

37, 40, 41, 126, 180 

Ontario L. & P. Co. v. Baxter, 5 O.L.R. 419 79 

Ontario Paving Brick Co. v. Bishop, 2 O.W.R. 1063, 4 O.W.R. 34 . . 431 

O'Reilly v. Mahoney, 123 App. Div. (N.Y.) 275 197 

Oriental Hotel Co. v. Griffiths, 30 L.R.A. 765 485 

Ormsby v. Ottman. 85 Fed. 492 120 

Orne v. Barstow, 175 Mass. 193 481 

Orr v. Puller, 172 Mass. 597 18 

Orr v. Davie, 22 O.R. 430 508 

Orr v. Robertson, 23 D.L.R. 17 75, 132 

Osborne v. Barnes, 179 Mass. 597 .178,- 183 



XXX CASES CITED. 

PAGE 

Osborne v. Gillett, L.R. 8 Ex. 92 Preface 

Ottawa Steel Castings Co. v. Dominion Supply Co., 5 O.W.R. 161. . . 15 

Ottiwell v. Watkins, 15 Daly (N.Y.)' 308 179 

Owen v. Lynch, 2 R. & C. 406 177 

Paquette v. Mayer, 18 S.C. (Que.) 563 535 

Palfrey v. Brown, 31 W.L.R. 535 150, 236 

Paddock v. Stout, 121 111. 571 , 157 

Palmer v. Tucker, 45 Me. 316 222 

Paquette v. New York Trust, 15 K.B. 179 (Que.) 531 

Patten v. Laidlaw, 26 O.R 189 513 

Patrick v. Walbourne, 27 O.R. 221 170, 172, 185 

Patterson v. Scott, 4 Gr. 145 507 

Pattison v. Luckley, L.R. 10 Ex. 330 325 

Paulson v. Manske, 126 111. 72 140, 150 

Payne v. Wilson, 74 N.Y. 348 61, 176 

Peabody v. Lynn Society, 5 Allen (Mass.) 540 53 

Peake, In re, 6 C.L.T. 596 508 

Peart y. Phillips, 31 W.L.R. 956 97 

Peart Bros. Hardware Co. v. Battell, 23 D.L.R. 193 100, 102 

Pease v. Johnson. 1 W.L.R. 208 225 

Pelton v. Black Hawk Mining Co., 40 N.S.R. 385 389 

Pennsylvania Globe Co. v. Gill, 1 Pa. Dist. R. 538 16 

Pennington v. Morley, 3 O.L.R. 514 509 

People v. Long, 50 Mich. 249 227 

Perry v. Potashinski, 169 Mass. 351 13, 449 

Peters v. Quebec Harbour Commissioners, 19 S.C.R. 685 77 

Peters, Rohls & Co. v. McLean, 25 W.L.R. 358.... 64, 130, 140, 204, 237 

Petrie v. Hunter, 2 O.R. 233 89, 96 

Phelan v. Franklin, 2 W.L.R. 29 103 

Phillips v. Gilbert, 101 U.S. 721 473 

Pierce v. Cabot, 159 Mass. 202 : 48 

Pilkington v. Brown, 19 P.R. 337 515 

Pinning v. Skipper, 71 Md. 347 154 

Pinnock v. Harrison, 3 M. & W. 522 215, 222 

Pioneer Lumber Co. v. Rooney, 19 W.L.R. 913 253 

Pioneer Mining Co. v. Delamotte, 185 Fed. 752 164 

Pittsburg Plate Glass Co. v. Leary, 31 L.R. A. 746 110 

Pocock v. Novitz, 21 W.L.R. 418 223, 227 

Pollock Bros. v. Niall-Herin Co., 35 L.R.A. 13 157 

Pollock v. Morrison, 176 Mass. 83 375 

Poison v. Thomson, 29 D.L.R. 395.! 17, 21, 31, 37, 41, 107, 265, 332 

Pomerleau v. Thompson, 16 D.L.R. 192 165 

Pontini v. Lecavalier, 16 Que. P.R. 371 547 

Poirier v. Desmond, 177 Mass. 201 155 

Pooley v. Budd, 7 E. L. & Eq. 229 : . . .16«, 220 

Poor v. Oakman, 104 Mass. 309 24 

Potter Mfg. Co. v. Meyer, 171 Ind. 513 110 

Power v. McCord, 36 111. 214 123 

Powers v. Hogan, 12 Daly (N.Y.) 444 76 

Pratt v.. Nakdimen, 138 S.W. 974 18 

Premier Steel Co. v. McElwaine, 144 Ind. 614 . r .. 189 

Prentice v. Brown, 17 D.L.R. 36 130, 135, 229 

Prendergast v. McNally, 76 111. App. 385 62 



CASES CITED. XXXI 

PAGE 

Presbyterian Church v. Allison, 10 Penn. 413 123 

Presbyterian Church v. Stettler, 26 Penn. 246 437 

Prevost v. Wilson, 22 L.C.J. 70 560 

Priestly v. Fernie, 3 H. & C. 977 163 

Price v. Jennings,- 62 Ind. 11 431 

Pritchett Co. v. Currie, (1916) 2 Ch. 515 ; 97 

Proctor v. Tows, 115 111. 138 125 

Prutzman v. Bushong, 83 Pa. 526 139 

Queen, The, v. Fraser, 2 R. & C. 431 225 

Queen, The, v. Hollingsworth, 2 Can. C. C. 291 220 

Quintal v. Bernard, 20 S.C. (Que.) 199 547 

Racicot v. Rutherford & Sons, Q.R. 36 S.C. 97 550 

Rafuse v. Hunter, 12 B.C.R. 126 34, 138 

Ramsay v.- Gordon, 2 D.L.R. 889 518 

Ramsden v. Chessum, (1914). 110 L.T. 274 97 

Randall v. Wagner Glass Co., 47 Ind. App. 439 . . 184, 193 

Rathtrarn v. Hayford, 37 Mass. 406 , 20, , 23 

Rathbone v. Michael, 19 6.L.R. 428 i 194 

Rat Portage Lumber Co. v. Hewitt, 22 W.L.R. 249 ' . , 316 

Rat Portage Co. v. Watson, 10 D.L.R. 833 273 

Read v. Whitney, 48 D.L.R. 309 11, 72 

Ready v. Pinkham, 181 Mass. 351 158, 178 

Redman v. Phoenix Fire Ins. Co., 8 N.W. 226 453 

Reed v. Rockford, 62 N.J. Eq. 186 181 

Reeve v. Elenendorf, 38 N.J.L. 125 421 

Reeves v. Capper, 5 Bing. N.C. 136 216 

Reeves v. Russell, L.R.A. 1915 D., 1149 227 

Rehm v. Viall, 185 111. App. 425 5, 312 

Reid v. Berry, 178 Mass. 260 16 

Reggin v. Manes, 22 O.R. 443- 137 

Reinhart v. .Shutt, 15 O.R. 325 179 

Rendall v. Warren, 8 W.W.R. 113 238 

Renner v. Rosen, 45 D.L.R. 1 199 

Renny v. Dempster, 19 O.W.R. 644 125, 191 

Repauno Chemical Co. v. Greenfield, 59 Mo. App. 6 471 

Revelstoke Saw Mill Co. v. Alberta Bottle Co., 9 Alta. 155 235 

Riatt v, Mitchell, 4 Camp. 146 215 

Rice-Lewis & Son v, Harvey, 9 D.L.R. 114... 8, 12, 13, 99, 100, 102, 198 

Rice v. Nantasket, 140 Mass. 256 ' 20 

Richards v. Chamberlain, 24 Gr. 209, 25 Gr. 402 . .-. 5, 179 

Richards. v. John Spry Co., 69 111. 238 60 

Richardson v. Mark, 11 C.L.T. 283 511 

Richmond & Irvine Cons. Co. v. Richmond Ry. Co., 31 U.S. App. 704 

70, 120, 122 

Rielly v. Mcllmurray, 29 O.R. 167 206 

Riley v. Durfey, 145 App. Div. (N.Y.) 583 481 

Rierser v. Comeau, 129 App. Div. (N.Y.) 490 '. 67 

Ringland v. Edwards, 19 W.L.R. 219 98, 160 

Ringle v. Wallis Iron Works, 149 N.Y. 439 131 

Rittenhouse & Embree Co. v. Brown, 254 111. 549 107, 115 

Rittenhouse v. Warren Co., 264 111. 619 337 

Ritchie v. Grundy, 7 Man. L.R. 532 75, 153, 214 

Ritchie v. Jeffrey, (1915) 9 W.W.R. 1534 329 



XXX11 CASES CITED. 

PAGE 

Rogers v. Gray, 10 D.L.R. 688 573 

Robb v. Woodstock School Board { unreported) 50 

Roberts v. Bank of Toronto, 25 O.R. 194, 21 A.R. 629 208 

Robertson v. Bullen, 13 O.W.R. 56 212 

Robins v. Goddard, (1905) 1 K. B. 294 78 

Robock v. Peters, 13 Man. L.R. 139 11, 14, 31, 34, 39, 179, 331 

Robson v. Drummond, 2 B. & Aid. 308 180 . 

Robson v. Kemp, 4 Bsp. 233 223 

Rockwood v. Wolcott, 25 Mass. 458 90 

Rogers v. James, 8 T.L.R. 67 166 

Rohl v. Pfaffenroth, 31 W.L.R. 197 , 199 

Rolewitch v. Harrington, 6 L.R.A. 550 16 

Rollins v. Bowman Cycle Co., 89 N.Y.S. 289 214 

Romanik v. Raporport, 148 App. Div. (N.Y.) 688 : 164 

Rose v. Peterkin, 13 S.C.R. 677 181 

Rose v. Hart, 2 Taunt. 499 , . . 225 

Rosio v. Beech, 18 B.C.R. 73 276 

Rosio v. Jones, 23 W.L.R. 174 30 

Ross v. Gorman, 1 Alta. L.R. 109 .• 68, 82, 94 

Ross v. St. Onge, Q.R. 14 K.B. 478 537 

Rousseau v. Toupin, Q.R. 32 S.C. 228 546 

Roulet v. Hogan, 203 111. 525 91 

Rowlin v. Rowlin, 9 O.W.R. 297 522 

Roxburghe v. Cox, (1881) 17 Oh. D. 520 222 

Roxbury Painting Co. v. Nuter, 123 N.B. 391 149 

Royal Bank of Canada v. Cbughlan, (1920) 2 W.W.R. 356 65 

Royal Electric Co. v. Three Rivers, 23 S.C.R. 289 76 

Ruggles v. Walker, 34 Vt. 468 227 

Rust & Owen Lum. Co. v. Holt, 60 Neb. 80 63 

Rutherford Sons 1 Co. v. Racicot, Q.R. 19 K.B. 428 550 

Russell v. French, 28- O.R. 215 13, 94, 99 

Russell v. Russell, 28 Gr. 419 ' 483 

Ryry v. Gariepy, 36 Que. S.C. 238 ' 543 

Salem v. Lane, 189 111. 593 19, 50, 110, 118 

Safe Deposit & Steel Co. v. Columbia. 176 Pa. 536 : 476 

Salt Lake Hardware' Co. v. Chainman, 128 Fed. 509 152 

Saltsman v. Berlin Robe Co., 6 D.L.R. 350 518 

Sampson v. Commonwealth, 202 Mass. 335 114, 115, 117 

Sampson v. Dalrymple. 11 Cush. 308 429 

Sanford v. Pollock, 105 N.Y. 450 60 

Saunders v. Bennett. 160 Mass. 48 162, 178 

Saunderson v. Bell, 2 Cr. & M. 304 203 

Saville v. Barchard, 4 Esp. 53 201 

Sawyer v. Longford, 2 C. & K. 697 205 

Sayward v. Dunsmuir, 11 B.C.R. 375 125 

Scannell v. Hub Brewing Co., 118 Mass.-288 65, 66, 75, 187 

Scaramanga v. Stamp, L.R. 5 C.P.D. 303 Preface 

Scarfe v. Morgan, 4 M. & W. 270 201, 205 

Schaeffer v. Wied, 8 111. 513 450 

Schaghticke Powder v. Greenwich, 183 N.Y. 306 114, 117 

Schaller-Hoerr Co. v. Gentile, 153 111. App. 458 193 

Scheid v. Rapp, 121 Pa. 593 153 

Schmalz v. Mead, 125 N.Y. 188 135 



CASES CITED. XXX111 

PAGE 

Schmeling v. Rochford, 154 111. App. 308 65 

Schmld v. Palm. Garden Co 305 

Schmidt v. Anderson, 253 111. 29 . v 121 

Schmulbach v. Caldwell,' 196 Fed. 16 164 

Schultze v. Faber, 21 W.L.R. 163 440 

Schultze v. Goodstein, 180 N.Y. 248 87 

Schultze v. Quereau, 210 N.Y. 257 116, 117 

Schultz v. Reddick, 43 U.C.R. 155 ., 526 

Schwartz v. Saunders, 46 111. 18 158 

Scott v. Goldinghurst, 123 1 Ind. 258 482 

Scratch v. Anderson, 11 Alta. R. 55 , '. . 10, 14, 69, 72 

Scratch V. Anderson, 16 W.L.R. 145 '. 244 

Scott v. Burgess. 19 U.C.Q.B. 28 50 

Scott v. De La Hunt, 5,Lans. (N.Y.) 372 .'.' 226 

Scott v. Newington, 1 M. & Rob. 252, 217, 226 

Scottish American Investment Co. v. Sexton, 26 O.R. 77 64 

Seaman v. Canadian Stewart Co., 18 O.W.R. 56 197 

Sear & Woods, Re, 23 O.R. 474 26 

Searle v. Laverick, L.R. 9 Q.B. 122 225 

Sears v. Wise, 52 App. Div. (N.Y.) 118 : 118 

S«cord v. Trumm, 20 O.R. 174 '. , 514 

Seeley v. Caldwell, 18 O.L.R. 472 64 

Selden v. Melks, 17 Cal. 128 486 

Sewell v. Nicholls, 34 Me. 582 . . . . 223 

Security Lumber Co. v. Duplat, 29 D.L.R. 460 120, 171 

Security Lumber Co. v. Plested, 27 D.L.R. 441 106, 126, 135 

Security Nat. Bank v. St. Croix, 117 Wis. 211 148 

Shaughnessy v. Isenberg, 213 Mass. 159 ; . 42 

See v. Kolodny, 227 Mass. 446 47 

Shaw v. Kaler, 106 Mass. 448 202, 209 

Shaw v. Thompson, 105 Mass. 345 20 

Shaw v. Young, 87 Me. 271 i 46, 145 

Sheppard v. Davidovitch, 10 O.W.N. 159 i 424 

Sheritt v. McCallum, 12 W.L.R. 637 , 191 

Sherlock v. Powell, 26 O.A.R. 407 :....; 81 

Shilling v. Templeton, 66 Ind. 586 4S 

Shorthill Co. v. iEtna Ind. Co., 124 N.W. 613 126 ' 

Showalter v. Loundes, 2 Am. & Eng. Am. Cas. 1096 ,135 

Sidney v. Morgan, 16 W.L.R. 123 63. 91 

Sickler v. Spencer, 19 W.L.R. 557 72, 276 

Silliker v. 'Smith (unreported) 409 

Simbolf v. Alford, 3 M. & W. 248 : : 226 

Simmons v. London, (1892) A.C. 215 159 

Simmonson v. Citizens, 105 Iowa 264 :.'. 28 

Simpson v. Rubeck, 21 O.W.R. 260 , 81 

Sinclair v. Bowles, 9 B. & C. 92 517 

Skipper v. Halloway, (1910) 2 K.B. 630 498 

Slattery v. Lillis, 10 O.L.R. 697 106, 134, 141 

Small v. Robinson, 69 Me. 425 , 205 

Smalley v. Gearing. 121 Mich. 190 -. 187 

Smalley v. Ashland Brown Stone Co., 114 Mich. 104 '. 157 

Smith v, Alker, 102 N.Y. 87 , 86 

MX. C 



XXXIV CASES CITED. 

PAGE 

Smith v. Bernhart, 11 W.L.R. 623 92, 95 

Smith v. Doyle, 4 O.A.R. 477 -. 512 

Smith v. Lange, 81 App. Div. (N.Y.) 192 96 

Smith v. Gordon, 30 U.C.C.P. 553 78, 85, 88 

Smith v. Merriam, 67 Barb. (N.Y.) 403 461 

Smith v. Mcintosh, 3 B.C.R. 26 34, 294 

Smith v. Neubau'er, 33 L.R.A. 685 476 

Smith v. Norris, 120 Mass. 58 199 

Smith v. O'Brien, 94 N.Y. Supp. 673 213 

Smith v. Ruggiero, 52 App. Div. (N.Y.) 382 82 

Smith v. Sissiboo Co., 36 N.S.R. 348 108, 111, 119, 393 

Snaith v. Smith, 25 N.Y. Supp. 513 J . . . 88 

Snittzler v. Filer, 135 111. App. 61 193 

Somes v. British Empire S. Co., 8 H.L.C. 338 210, 224, 225 

Sommerville v. Walker, 168 Mass. 388 19 

Sorette v, N.S. Development Co., 31 N.S.R. 427 77 

Sorg v. Crandall, 129 111. App. 255 157 

Spears v. Bannerman, 1 Alta. L.R. 98 i 240 

Spears v. Hartley, 3 Esp. 81 . . ., r: . . . 223 

Sprague vi Besant, 3 Man. L. R. 519 105, 107, 108 

Sprague v. Brown, 178 Mass. 220 158, 178 

Sprague v. McDougall, 172 Mass. 553 491 

Springer v. Kroeschell, 161 111. 358 139 

Springer Land Association v. Ford, 168 U.S. 513 18, 26, 45 

Spruck v. McRoberts, 139 N.Y. 193 142 

Stack v. T. Baton Co., 4 O.L.R. 335 „ 64 

Stafford v. McKay, (1919) 2 W.W.R. 280 124 

Staples v. Somerville, 176 Mass. 237 51 

Starr v. The Queen,' 1 Ex. C.R. 310 77 

State v. Goll, 32 N.J.L. 285 202, 209 

State v. Stevens, 32 Tex. 155 227 

Steeves v. Cowie, 40 N.S.R. 401 ." .- 214 

Steeves v. Sinclair, 171 N.Y. 676 145 

Steger v. Arctic Ret Co., 11 L.R.A. 580 16 

Steinman v. Koscuk, 4 W.L.R. 575 187 

Steinman v. Henderson, 94 Pa. 313 60 

Stenerwald v. Gill, 85 App. Div. (N.Y.) 605 191 

Stephens Paint Co. v. Cottingham, (1916) 1 W.W.R. 627 122 

Stepina v. Conklin, 134 111. App. 173 45 

Sterling Lumber Co: v. Jones, 29 D.L.R. 288 79, 133, 134, 171 

Stevens v. Lincoln, 114 Mass. 476 23, 24, 76 

Stevenson v. Blakelock, 1 M. & S. 535 215 

Stewart v. Gesner, 29 Gr. 329 11 

Stickney v. Allen, 10 Gray (Mass.) 352 214 

Stiffel v. Corwin, (1911) 1 W.W.R. 339 ' 59, 229 

Stillings v. McGillis, 14 L.C.R. 129 . . , 556 

Stoddard v. Huntley, 8 N.H. 441 215 

St. Catherine Improvement Co. v. Rutherford, 31 O.L.R. 574 ...... 83 

St. Louis Nat. Stock Yards v. O'Reilly, 85 111. 546 18, 187 

St. Onge v. Ross, 7 Q.P.R. 108 517 

St. Pierre v. Rekert, 23 D.L.R. 592 174 

Stolze v. Hurd, 30 L.R.A. 1219 23 

Stoneback v. Waters, 198 Fa. 459 154 



OASES CITED. XXXV 

PAGE 

Strauchen v. Pace, 195 App. Div. (N.Y.) 167 474 

Strawn v. Cogswell, 28 111. 457 198 

Stryker v. Cassidy, '76 N.Y. 50 70 

Summers v. Beard, 24 O.R 641 7 

Sumpter v. Hedges, (1898) 1 Q.B. 673 86, 325 

Sulzer Vogt Co. v. Rushville, 160 Ind. 202 , 792 

Swanson v. Mollison, 6 W.L.R. 678 155 

Taggard v. Buckmore, 42 Me. 77 22 

Taylor v. Goldsorf, 74 111. 254 ,. 140 

Taylor Hardware Co. v. Hunt, 39 O.L.R. 85 80, 83, 84 

Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486 52 

Taylor v. Murphy, 148 Pa. 337 198 

Taylor v. Robinson, T Moore 730 206 

Taylor, Re, (1891) 1 Cb. 590 215 

Taylor v. Wahl, 69 N.J.L. 471 513 

Temple Baptist Church v. Perras, 48 Que. S.C. 84 552 

Thaler Bros. v. Greisser, 229 Pa. 512 440 

Thames Iron Works v. Patent Derrick Co., 1 J. & H. 93 219 

Therrien v. Hainault, 5 Que. P.R. 61 542, 556 

Thomas v. Fleury, 2fi N.Y. 26 88 

Thomas v. Roelofson, 13 O.W.N. 201 436 

Thomas v. Stewart, 132 N.Y. 580 85, 198 

Thompson-Starrett Co. v. Brooklyn, 111 App. Div. (N.Y.) 358 18 

Thompson v. Luciano, 211 Mass. 169 478 

Thorn v. Mayor of London, L.R. 9 Ex. 163 80, 89 

Thurston v. Blunt, 216 Mass. 264 42 

Titus v. Gunn, 69 N.J.L. 410 493 

Tinsley v. Smith, 115 App. Div. (N.Y.) 708 147 

Torrance v. Catchley, 31 O.R. 546 462 

Townsend v. Newell, 14 Pick. 332 202,218 

Townsley v. Baldwin, 10 C.L.T. 13 506 

Tracey v. Rogers, 69 111. 662 138 

Trask v. Searle, 121 Mass. 229 42 

Tracy v. Wetherell, 165 Mass. 113 104, 119 

Travis v. Breckenridge-Lund, 2 , Alta. L.R. 71 94, 97 

Treat, J. A., Lumber Co. v. Warner, 60 Wis. 183 23 

Tremblay v. Smard, 36 S.C. 398 (Que.) 543 

Tripp .v Clark, 14 D.L.R. 918 11,72 

Troop v. Hart, 7 S.C.R. 512 165 

Troy Public Works Co. v. Yonkers, 145 App. Div. (N.Y.) 527 

31, 107, 114, 122 

Truax v. Dixon, 17 O.R. 366 461 

Trussed Concrete Steel Co. v. Taylor B. Co., 46 D.L.R. 663 112, 236 

Tullis v. Jackson, 67 L.T. 840 78 

Turner v. Fuller, 12 D. L. R. 255 274 

Turner v. Stallibras, (1898) 1 Q.B. 56 225 

Turner v. Wentworth, 119 Mass. 459 67,191 

Turnes v. Brenckle, 249 111. 394 37, 151 

Turney v. Saunders, 5 111. 527 48 

Ultzen v. Nicholls, (1894) 1 Q.B. 92 225 

Union v. Porter, 9 W.L.R. 325 577 

Union Stove Works v. Klingman, 20 App. Div. 449, 164 N.Y. 589 .. . 66 
Union v. Porter, 9 W.L.R. 325 231 



XXXVI CASES CITED. 

PAGE 

United States Construction Co. v. The Rat Portage L. Co., 25 

Man. L.R. 793 152, 163 

Valley Lumber & Mfg. Co. v. Dreissel, 15 L.R.A. 299 191 

Vannatta y. Uplands, Limited, 25 W.L.R. 85 30, 54, 124, 278 

Van Vrouker v. Eastman, 7 Met. 157 : 440 

Van Kannell R. D. Co. v. Astor, 119 App. Div. 214 499 

Vaughan v. Ford, 162 Mich. 37 164 

Venness v. Stoddard, (1915) 9 W.W.R. 832 284 

Vernon v. Cook, 49 L. J.C.P. 767 . 477 

Vickery v. Richardson, 189 Mass. 53 145, 146 

Vigers v. Cook, 88 L.J.K.B. 1132 227 

Vincent v. Conklin, 1 E. D. Smith (N.Y.) 203 215 

Vogel v. Grand Trunk Ry. Co., 10 O.A.R. 102, 11 S.C.R. 612 58 

Voightman & Co. v. Southern Ry. Co., 24 Am. & Eng. Ann. Cas. 211 . 485 

Vokes Hardware Co. v. Grand Trunk R. Co., 12 O.L.R. 344 190 

Vosseller v. Slater, 25 App. Div. (N.Y.) 368 135 

Vulcan Iron Works v. Rapid City Co., 9 Man. L.R. 577 .... . .163, 220 

Wagner v. Jefferson, 37 U.C.Q.B. 551 60 

Wagner v. O'Donnell, 11 C.L.T. 962 .... 520 

Wahlstrom v. Trulson, 165 Mass. 429 422 

Wake v. C. P. L. Co., 8 B.C.R. 358 35, 152 

Walcott v. Keith, 22 N.H. 196 > 223 

Walker v. Walton, 1 O.A.R. 579 , 46 

Walkley v. City of Victoria, 7 B.C.R. 481 i. - " 87 

Wall v. Robinson, 115 Mass. 429 , 126 

Wallace v. Woodgate, Ry & M. 193 222 

Wallace Bell Cp. v. Moosejaw, 3 D.L.R. 273, 4 D.L.R. 438 77 

Wallis v. Skain, 21 O.R. 532 : 473 

Walls v. Ducharme, 162 Mass. 432 164 

Walsh v. Mason, 26 W.L.R. 942 : 296 

Walsh, v. Provan, 8 Ex. Rep. 843 226 

Wanty v. Robins, 15 O.R. 474 180 

Ward v. Yamell, 173 Ind. 535 116 

Ward v. Kilpatrick, 85 N.Y. 417 66 

Warner v. Don, 26 S.C.R. 388 64 

Warwick v. Sheppard, 35 D.L.R. 98 I 170 

Watts v. McLeay, 19 W.L.R. 916 78, 81, 86 

Wasdell v. White, 4 W.L-R. 562 .' 315 

Washburn v. Burns, 34 N.J.L. 18 28, 62 

Waters v., Goldberg, 124 App. Div. (N.Y.) 571 44 

Waters v. Johnson, 96 N.W. 504 36 

Watrous v. Davies, 35 111. App. 542 198 

Watts-Campbell v. Yuengling, 125 N.Y. 3 16 

Watson v. Kennedy, 11 C.L.T. 340 511 

Waxman v. Girouard, 24 Rev. Leg. 429 ,. . . . 545 

Weaver v. Sheeler, 124 Pa. 473 139 

Webb v. Gage, 1 O.W.R. 327 25, 34, 35, 74, 76, 129 

Webber v. Cogswell, 2 R. & C. 47, 2 S. C. R. 15 202 

Webber Lumber Co. v. Erickson, 216 Mass. 81 63 

Webster v. Real Estate Improvement Co., 140 Mass. 526 104, 123 

Weeks, v. Goode, 6 C.B.N.S. 367 215 

Weidle v. Elgin, 152 111. App. 292 92 

Wegulin v. Cellier, L.R. 6 H.L. 28 222 



OASES CITED. XXXV11 

PAGE 

Wehner v. Dene Shipping Co., (1905) 2 K.B. 92 150 

Weiss v. Silverman, 58 Can. S.C.R. 363 546 

Weller v. Shupe, 6 B.C.R. 58 119, 277 

Wells v. Christian, 165 Ind. 662 . . 123 

Wells v. Newman, 12 S.C. 216 (Que.) 546 

Wells v. Army & Navy, C.S. 86 L.T. 764 79 

Wentworth Lumber Co. v. Coleman, 3 O.W.R. 618 > 438 

Wera v. Bowerman, 171 Mass. 458 ; 434 

West v. Pullen, 88 111. App. 620 162 

West v. Sinclair, 23 C.L.J. 119 60, 179 

Wesner Drilling Co. v. Tremblay, 18 O.L.R. 439 -. 519 

Westcott v. Bunker, 83 Me. 499 , 46, 121 

Wester v. Jagp, 33 D.L.R. 617 144, 244 

West' Side Lumber & S. Co. v. Herald, 64 Ore. 210 164 

Whalen v. Collins, 164 Mass. 147 475 

Whaley v.. Linnebank, 29 D.L.R. 51 177 

Wheaton v., Trimble, 145 Mass. 345 fiO 

Wheeler v. Schofleld, 67 N.Y. 311 131 

Whimster v. Crow's Nest Pass Co., 13 W.L.R. 621 189 

White v. Gainer, 2 Bing. 23 221 

White v. Livingston, 69 App. Div. (N.Y.) 361 478 

White v. Smith, 44 N.J.L. 105 ' 202, 206 

White v. School District, 42 Conn. 541 480 

Whitford v. Newell, 84 Mass. 424 : 18, 118 

Whitlock v. Holway, 92 Me. 414 224 

Whltlock v. Loney, 38 D.L.R. 52 27, 173 

Whitman v. Harvey, 13 W.L.R. 287 590 

Whitney v. Joslin, 108 Mass. 103 119 

Whittle v. Phelps, 181 Mass. 317 207 

Wilias v. Williamson, (Lear's Digest, 1911), 604 '. 523 

Wilder v. French, 75 Mass. 395 422 

Wiles Laundering Co. v. Hahlo, 105 N.Y. 234 214, 217 

Wiley v. Connolly, 179 Mass. 360 499 

Wilks v. Leduc, 27 Man. L.R. 79 95, 326 

Williams v. Alsop, 10 C.B.N.S. 417 226 

Williams v. Daker, 63 App. Div. N.Y. 614 164 

Williams v. Fitzmaurice, 3 H. & N. 844 81 

Williams v. Vanderbilt, 145 111. 238 135 

Williams v. Weinbaum, 178 Mass. 239 ' ' 499 

Willis v. Sweet, 20 N.S.R. 449 21? 

Willoughby, ex p., L.R. 16 Ch. D. 604 '. 204, 210 

Wilson v. Canevin, 226 Pa. 362 46 

Wilson v. Kymer, 1 M. & S. 157 ..." 207 

Wilson v. Sleeper, 131 Mass. 177 477 

Wimberley v. Mayberry, 14 L.R.A. 305 459 

Windfall Nat. Gas Co. v. Roe, 42 Ind. App. 228 20 

Wirsing v. Penn Hotel, 226 Pa. 254 17 

Witham v. Wing, 108 Me. 364 109 

Wolfe v. Oxbard, 152 Pa. 623 136 

Wood &, McBeth v. Bank of Montreal, 40 N.S.R. 317 97 

Wood v. 'Stringer, 20 O.R. 148 86, 8S 

Woodley v. Coventry, 32 L.J. Ex. 185 166, 220 

Woolek v. Bradley, 18 W.L.R. 622 463 



XXXV111 CASES CITED. 

PAGE 

Woodruff v. Hovey, 91 Me. 116 191 

Woodruff y. Oswez Starch Factory, 74 N.Y. Supp. 961 432 

Woolf v. Schsefer, 103 App. Div. (N.Y.) 567 197 

Worthern v. Cleveland, 129 Mass. 570 486 

Worthily v. Emerson, 116 Mass. 374 . . . 18 

Wortman v. Frld-Lewis, 33 W.L.R. 119 106, 118, 124, 125, 151, 237 

Wright v. Rensens, 133 N.Y. 298 85 

Wyloe v. Radford, 33 L.J. Ch. 51 216 

Yakowchuk v. Crawford, (1917) 3 W.W.R. 479 83 

Yearsley v. Gray, 140 Pa. 238 225 

York v. Barstow, 175 Mass. 167 476 

York v. Mathis, 103 Me. 67 146 

Young v. Haight, 69 N.J.L. 453 181 

Young v. Inhabitants of Falmouth, 183 Mass. 80 51 

Young v. Lambert, L.R. 3 P.C. 142 219 

Young v. West Kootenay Shingle Co., 11 B.C.R. 171 275 

Young v. Wilson, 44 N.J.L. 157 419 

Yungmann v. Briesmann, 67 L.T. 642 219 

Zabriski v. Greater America Exposition Co., 62 L.R. A. 369... 140 

Zehner v. Johnston, 22 Ind. App. 452 176 



THE LAW 

OF 

MECHANICS' LIENS IN CANADA 



CHAPTEE I. 

HISTORICAL. 

The Development of the Lien upon Eealty. 

A common law lien, in its primary sense, has been judicially 
defined to be " a right in one man to retain that which is in his 
possession belonging to another, till certain demands of him, the 
person in possession, are satisfied." Hammonds v. Barclay, (1802) 
2 Bast 227, 235. " It is neither a jus in re nor jus ad- rem."' 
Dempsey v. Carson, (1862) li IT. C. G. P. 462, per Draper, C.J. 
This right to so retain the property, upon Txhich he had per- 
formed labor and thereby added to its value, only applied to' per- 
sonal property. At common law a mechanic had no lien upon a 
building for labor done upon it and could not retain possession 
of realty upon which he had performed labor. Even at so early 
a period as the year 1835 this question was discussed in an On- 
tario case (Johnson v. Crew, 5 U. C. Q. B. (O.S.) 200), where a 
builder, having performed work on a house, withheld possession 
and insisted that his claim must first be paid. It was decided in 
that case that the builder had no lien, and that no action would 
lie for his claim until the absolute delivery of the house. Robin- 
son, 'C.J., said : " On general principles and in ordinary cases a 
builder has no lien, on the house which he has built or repaired,— r 
MX. — 1. 



2 THE LAW OF MECHANICS' LIENS IN CANADA. 

it would be most inconvenient that he should have. The ground 
on which it stands is inseparable from the house and such a lien 
would exclude the owner from his own freehold." Maeaulay, J., 
said: "'Contractors for such work must rely on the personal 
liability of their employer under the contract, in an express 
security' guaranteed by substantive agreement. No lien results in 
law in their favor by reason of the expenditure of their toil and 
material on the estate and for the benefit of the owner." 

It is true that a contractor may have a right to hold materials 
as an unpaid vendor until they are paid for, when such materials 
brought on the land of the employer have not been affixed to the 
freehold, and the property in them has not passed to the employer 
by the terms of the contract (Beliamy v. Davey, [1891] 3 Ch. 
540), but when the materials have been affixed to the freehold, a 
contractor, in the absence of a statute, has no lien on them, or on 
the work constructed with them. They then form part of the 
freehold. Halsbury's Laws of -England, v61. 3, p. 264. 

It required a statute, therefore, to create this lien and it was 
not until the year 1873 that this right was created in Ontario, 
which was the first Province in Canada to enact a Mechanics' 
Lien Law. 36 Vict. ch. 27. 

Oeigin of the Law. 

Ontario, doubtless, adopted the system of Mechanics' Liens from 
the statutes prevailing in many of the 'States of the neighboring v 
Republic. Such a system is unknown to the law of England. The 
actual cause which led to the introduction of the system in the 
United States is not known. Phillips, in his treatise on Mechanics' 
Liens (3rd ed., sec. 6) states that it has been supposed that in 
Pennsylvania, which was one of the first States to establish the 
system, it owed its existence to the analogous provisions contained 
in the Act of the commonwealth of 1784 relating to persons 
employed in building and repairing vessels, tad others! seem 
inclined to trace its origin exclusively to s the necessity, in a young 



ORIGIN OF THE LAW. 3 

and growing country, of fostering mechanical and industrial pur- 
suits, and the manifest equity of dedicating primarily buildings and 
the land upon which they are erected to the payment of the labor 
and materials incorporated, and which have given to them an 
increased value. But is it not probable that the origin of the 
system is traceable to the circumstance that many of the new 
settlers in that country were mechanics, who came from continental 
countries where laws existed based on the civil law, which has so 
deeply influenced the jurisprudence of the civilized world, and that 
these workmen, having had the beneficial experience of the civil 
law provisions which protected the contractor and mechanic and 
clearly defined and regulated their interests, would naturally press 
for the like privilege to be given them in their adopted country ? 
The civil code of Louisiana is drreqtly traceable to this source and 
in regard to mechanics and laborers is practically a re-enactment 
of the provisions of the civil law. The enactment by the British 
Parliament of the famous " Quebec Act " of 1774, which extended 
the limits of the Province southward to the Ohio and Westward 
to the Mississippi, restored the civil law to the people living within 
that extensive territory, and it is probable that the provisions of 
that law protecting mechanics, were familiar to many workmen 
who afterwards became residents of adjoining States and who would 
quickly join in the movement for the securing of a statutory law 
with similar provisions for their protection. The old French law 
gave a lien to workmen over all other creditors, upon the equit- 
able principle' that they who had furnished materials, and had 
worked for the common benefit of all the creditors, should there- 
fore be first paid. Pothier Procedure Civile, partie 4, ch. 2, sec. 
3, sub-sec. 5. 

(Moreover there were many thousands of Dutch settlers not 
only in New York, but along the Delaware arid in Maryland 
and Pennsylvania (Pennsylvania Archives, yol. 1, Hazard), and 
those settlers and their relatives and friends who followed them to 
their new homes had lived under the civil law in Holland, and the 



4 THE LAW OF MECHANICS' LIENS IN CANADA. 

mechanics among them would naturally agitate. to secure an enact- 
ment giving them similar protection in their adopted country. 

It is not unlikely, therefore, that the provisions of the civil 
law constituted the foundation for the system of Mechanics' Liens 
now prevailing on this continent. 

In the United States, the first statute creating such a lien was 
enacted by the iGeneral Assembly of Maryland in 1791. This was 
followed by a measure passed by the Legislature of Pennsylvania 
in 1803. In 1819 the Legislature of Massachusetts passed a 
Mechanics' Lien Act which was adopted in Maine in 1821. As 
illustrating the meagre and' incomplete provisions of these early 
statutes, it is worthy of note that the Massachusetts Act gave a lien 
only to one who had made a written contract with the owner, and 
the first Pennsylvania Act made the lien apply only for debts 
contracted by the owner of the property in connection with work 
done or materials furnished for the building, and the contractor 
himself was hot entitled to any lien under the Act. The primary 
purpose of the latter statute was not to secure the contractor but 
the mechanics and dealers who were liable to lose through him. 
The whole statute consisted only of two sections and was con- 
tained in about thirty lines. 

Initial Difficulties. 

The legislative germ introduced in Ontario in 1873 gave little 
promise of long life or future development. It was an exaspera- 
tion to the owners of real estate, and in many cases was a disap- 
pointment to pa-sons claiming a lien. It was publicly stigmatised 
as being of profit to no one save the lawyers, and it was suspected 
of being the offspring of the wanton wooing of the workingman's 
vote. The Act was vigorously condemned in the press by suitors 
who had invoked it unsuccessfully. 

Looking back to that period, it is not surprising that the new 
Act was unpopular. It was good, so far as it went, but- it did not 
go far enough, and there was the inevitable accompaniment of 



INITIAL DIFFICULTIES. 

ambiguity in respect to some of its terms. It existed only in favor 
of the direct contractor with the Owner, and there was a perilous 
perplexity and haziness about the scope of the word " owner," who 
was, as one judge expressed it, " enyironed with great perils." 
Sub-contractors disliked the statute because it did not give them 
the right to a lien on the land and left them unprotected from 
fraud. They were entitled to have their claims paid out of any 
money due by the owner to the contractor, but that privilege was 
speedily discovered in many eases to be illusory and valueless, 
inasmuch as by the time the owner received from them the neces- 
sary notice of their claims there was nothing due by him to the 
contractor and therefore nothing to pay to the sub-contractors. 
This defect was remedied in 1874 (37 Vict. ch. 20). After fur- 
ther amendments to the law and the decision in a leading case 
(Bank of Montreal v. Haffner, (1884) 10 0. A. E. 592), there was a 
clearer understanding of the scope of the word " owner." In 1877 
there was a consolidation of the Acts (E. S. 0. (1877) ch. 120). 
For some- years there was contention between lien-holders and 
other incumbrancers for priority, (see Douglas v. Chamberlain, 
(1878) 25 Gr. 289: Richards v. Chamberlain, (1878) 25 Gr. 402, 
24 Gr. 209), and there appeared to be general dissatisfaction with 
the statute. An editorial appeared in 1876 in the sedate columns 
of a law journal (12 C. L. J. 300), vehemently demanding the 
repeal of the Act, and describing it as, "that most absurd and 
hurtful of all illogical legislation." In the following year another 
editorial appeared in the same journal, which, after referring to a 
particular case (13 C. L. J, 9), as a specific instance of the un- 
satisfactory character of the Act, denounced the whole measure as 
unjust, absurd and unintelligible. 

It should be noted that the decision in the case which provoked 
this violent attack upon the Act was reversed on appeal. 



6 the law 0e mechanics* liens in canada. 

Important Amendments. 

• WheH, by further' amendments to the Act, the legislature 
sought to protect the sub-contractors and material men by giving 
each of them a lien, the law was often misunderstood by the sub- 
contractors and material men, who in many instances suffered loss 
because they failed to realize the importance 6f s the doctrine en- 
unciated by Mr. Justice Proudf oot, . when he said: "The Ameri- 
can statutes, so far as I have been able to refer to them, contain 
no definitions of the term owner, but the courts- have construed it to 
be the correlative of contractor, and to mean the person who em- 
ploys the contractor, and for whom the work is done under the 
contract. Our statute seems ibo have framed the definition in 
accordance with this course of decision." Bank of Montreal v. 
Haffner, (1881) 29 Gr. 319. The contractor and material men, 
however, felt, that it was unreasonable that anything more should 
be required to be shown by them to secure their claims than to 
prove the ownership of an interest in the land and the doing of 
the work benefiting the owner of that interest. Moreover, wage- 
earners were dissatisfied With the Act because there was no ade- 
quate protection for them against the dishonesty of contractors. 
In order to afford ample protection to wage-earners, amendments 
tb the Act were made in 1882 (45 Vict. ch. 15), and further 
amendments in 1884 (47 Vict. ch. 18), and in 1887 (50 Vict, 
ch. 20) . By these later amendments a better status was given to 
the lien for wages; all agreements made for the purpose of pre- 
venting .the attaching of mechanics' liens were declared void, ex- 
cept as between the actual parties to such agreements, and the 
procedure for enforcing and discharging liens was improved. 
The next consolidation was in 1887 (R. S. 0. (1887) ch. 126), 
and further amendments were made in 1889, one amendment (52 
Vict. ch. 37), directing a special procedure for the enforcement of 
the lien, and the later amendment (52 Vict. ch. 38), making a 
change in the percentage required to be retained by an owner. In 



IMPOKTANT AMENDMENTS. 7 

1893 by an amending Act the procedure for the enforcement of 
the lien was further improved. Notwithstanding all these' amend- 
ments, the Act was in such a condition until 1896, that the courts 
were often forced to allow gross injustice to be done by reason of 
technical slips, and the remedy intended by the Act was often 
burked by matters of form and not of substance. (See observa- 
tions of Eiddell, J., in Barrington v. Martin, (1908) 16 0. L. E. 
635.) In that year the legislature made a clean sweep of the old 
Acts, and recast the whole statute. (50 Vict. ch. .35.) There was 
a subsequent consolidation in 1897 (E. S. 0. (1897) ch. 157), 
and a revision again in 1910, after additional amendments in 
intervening years. The latest consolidation was in 1914 (E. S. 0. 
(1914) ch. 140). Since then practically no important change has 
been made in the Act. 

' For some, time there had been contention in regard to the 
construction of the word " completion " of the work, but finally 
in the case of Neill v. Carroll, affirmed on re-hearing (see Sum- 
mers v. Beard, 24 0. E. 641), it was apparently established that 
" completion " meant substantial completion, and that the subse- 
quent supplying of trifling imperfections would not have the 
effect of prolonging the time for the registration of the lien or for 
bringing the action to enforce, the lien. But this decision has not 
been followed in later cases. (See cases cited in Chapter "Com- 
puting the Statutory Time," post ) . 

When the right to a lien was extended to sub-contractors it 
proved, in many instances, an expensive and useless right because 
there was no machinery accompanying it which would enable sub- 
contractors to ascertain speedily the amount due by the owner to 
the contractor. Eventually a provision was adopted for the fur- 
ther protection of sub-contractors, which provision is now em- 
bodied in the present Act. Another defect in the statute, which 
impaired its value to sub-contractors, arose from the fact that a 
contractor could by his agreement deprive all sub-contractors 
under him of. the right of lien, and it was not until 1884 (47 Vict, 
ch. 18), that the defect was remedied. 



8 THE LAW OF MECHANICS' LIENS IN CANADA. 

It was, of course, very difficult to anticipate and provide for 
the innumerable questions ' -which ultimately arose concerning the 
scope and meaning of the terms of a statute of this novel nature. 
The ambiguity of some of its sections was the subject of occasional 
comment by the courts. Even at so late a period as 1885 Chan- 
cellor Boyd; in one case, expressed regret thathe could not exempt 
the plaintiff from costs "incurred in endeavoring to discover the 
true meaning of the mechanics' lien law." Graham v. Williams, 
(1885) 8 0. R. 478. •' 

Instructive comments on the growth and development of the 
legislation on this subject are to foe found in the 'judgment of 
Magee, J.Ai, in Rice-Lewis & Son v. Harvey, (1913) 9 D. L. E. at 
p. 118, and in the judgment of Eiddell, J., m Eadie-Bouglas \. 
Hitch & Co., 9 D. L. B. 239. 

The experiences of Manitoba, British Columbia, Nova Scotia, 
New Brunswick, Alberta and Saskatchewan were not so trouble- 
some, as by the time enactments on this subject had been passed by 
their legislatures, the path had been made fairly smooth. 

Contrasting the meagre, inadequate and inequitable pro- 
visions of the Ontario Act of 1873 with the comprehensive and 
just provisions of the present Act, based as it is on a due regard to 
the rights of all parties, great progress may fairly be claimed 
along a somewhat thorny and trpublesome path, where conflicting 
rights compelled the legislator to proceed cautiously lest the hon- 
est endeavor to do full justice to one class might involve injustice 
to anotheri class. There has been a slow but steady widening of 
the remedy, so that, while the remedy itself has been made more 
effective, it has also been extended so as to include new classes of 
persons equally entitled to invoke it, and the law itself in the 
various . provinces , of Canada is gradually becoming uniform and 
well settled. , It is not claimed, that even to-day the legislation on 
this subject has anticipated and effectively dealt with all possible 
contingencies and is complete and perfect. "The statute, con- 
strue it as we may, presents anomalies and incongruities with which 



' IMPORTANT AMENDMENTS. 9 

it is very difficult to deal." Jackson v. Eg am, (1911) 200 N. Y. 
500, per Cullen, C.J.. New legislation, doubtless, will be neces- 
sary from time to time to meet new conditions and to cope witb 
ihe ingenuity of tbose desirous of evading the provisions of the 
Act, but when the difficulties of the subject are considered, it must 
be conceded that the Mechanics' Lien Acts as they exist to-day in 
this country, are distinctly beneficial and just measures. It was 
feared, by some persons that the Acts would be oppressive to the 
owners of real estate, but it is now universally recognized that 
these measures are not more onerous than necessity and justice 
demand in order to protect those who do the work and furnish the 
materials by which the realty is benefited. 

The value of a statute of this kind cannot be measured by the 
frequency with which its provisions- are invoked. The mere fact 
that it is on the statute book constitutes in itself a wholesome, 
salutary and far-reaching influence in preventing attempts to 
defraud which might otherwise be successfully undertaken. An 
adequate idda of the value of the Mechanics' Lien Acts could only 
be afforded by their absolute repeal,, as it would then be found that 
those classes now protected by the law, from the fraud, injustice, 
misfortune or improvidence of others in connection with building 
■contracts, would have the strongest reasons for demanding the 
re-enactment of these statutes. 



CHAPTER II. 
Nature and Scope of the Lien. 

A right which requires a statute to create it, and also statu- 
tory words' to determine the precise length of its life, can be truly 
called a creature of the statute. There are other liens created by 
statute, but a mechanics' lien upon realty differs in several respects 
, from any of them. The statutory law which bears the closest 
resemblance to it is that which relates to an incumbrance affixed 
to the realty for taxes due to a municipality. 

While the general principle of this legislation is that the land 

which receives the benefit shall bear the burden (Scratch v. 

Anderson, (1909) 11 Alta. R. 55), yet the ■ application of that 

. principle is necessarily restricted 'by the terms and conditions of 

the statutory enactment creating the lien. 

The object of this legislation is to insure by a cheap and ex- 
peditious method the payment for work and materials out of pro- 
perty upon which the work has -been done, or for which materials 
have been provided. The person who has supplied, labor and 
materials is enabled to establish a lien and thus acquire authority 
to sell the property so as to realize his claim therefor. " The sub- 
stance of the enactment is the sale." (Crawford v. Tilden, 14 
0. L. R. 577, per Meredith, J. A.; Scratch v.' Anderson, (1911) 
16 W. L. R. 145.). The aim of this remedial legislation is to 
secure payment, so far as is just and practicable, to those whose 
work or materials, supplied to the owner in the manner provided 
for in the enactment, tend to enhance the value of the property of 
the owner. The scope and effect of this legislation have been 
widened by amendments. In the- various Proyinces of 'Canada the 
trend of this remedial legislation has been in the direction of 
extending the right of lien; but this statutory remedy, when ex- 
pressed to be given for " services " in " erecting " a building is not 



NATURE AND SCOPE OF LIEN. 11 

broad enough to include a lawyer's charges for drawing contracts 
in relation to the building or his charges for legal advice as to 
questions arising out of the construction or repair of the building. 
An architect, however, or an assistant architect, would be entitled 
to a lien for his " work " and " services " in the drawing of plans 
used in the erection of the building and the superintendence and 
the direction of the construction of the building. Superintending 
the building is " service upon " the building. The architect who 
draws plans used for a building " actually does work upon it as if 
he had carried a hod." (Arnoldi v. Gouin, 22 Gr. 314; Bead v. 
Whitney (1919), 48 D. L. E. at p. 309; Tripp v. Clark, 14 D. L. 
E. 918, 18 B. C. E; 216). But the travelling expenses of an assist- 
ant architect could not be treated as "service upon ... a 
building." Read v. Whitney, supra. There is no lien under the 
British Columbia Mechanics Lien Act, E. S. B. C. 1911, ch. 154, 
in respect to the cost of preparing for work to be done upon a site, 
although such work has been frustrated without fault of the con- 
tractor. British Columbia Granitoid Co. v. Dominion Shipbuild- 
ing Co. (B.C.), (1918) 2 "W. W. E. 919. 

A mechanics'' hen although created by operation of law is 
dependent upon contract, express or implied. It being con- 
sidered that a person who by his labor or material enhances the 
value of realty belonging to others has a special right to compensa- 
tion and, therefore, should have a preferred claim on such realty, 
the object of a Mechanics' Lien is to secure to him a priority of 
payment of the value of the work done, or materials furnished, by 
giving him a lien which attaches to the land and the structure. 

This lien arises by virtue of the employment and the doing 
of the work or furnishing the materials (McNamara v. Kirhland, 
(1891) 18 0. A. E. 276), and is given as a security only for labor 
done or materials furnished to be used in connection with the 
construction, repair or improvement of the structure. Eobock v. 
Peters (1900) 13 Man. L. E. 139.' 

The death of a lienholder or the dissolution of the co-partner- 
ship of a firm of lienholders cannot affect the continuance of a lien. 



12 THE LAW OF MECHANICS' LIENS IN CANADA. 

One purpose of the Act is to secure to wage-earners priority 
over all claimants not having a superior equity, so that wage- 
earners who became entitled to a lien as the work went on would 
not lose their lien through any subsequent default of, the contrac- 
tor. To wage-earners the owner may be made liable for more than 
what is payable to the contractor, but with this exception the 
charge created by the statute is a charge upon money 1 to become 
payable ,to the contractor and when, by reason of the contractor's 
default, the money never becomes payable, those claiming under 
him to have this statutory charge upon the fund created by the 
Act, if and when payable, have no greater right than he himself 
had, and their lien fails. Farrell v. Gallagher, (1911) 1.8 0. W. 
E. 446, 23 0. L. E. 130; McManus y-. Rothschild, 25 ,0. L. E. 138; 
Cole v. Pearson, (1908) 12 0. "W. E. 111. 

A provision requiring an owner to create a fund by deducting 
twenty per cent, from any payment to he made by him in respect 
of a contract, for the protection of those who supplied materials to 
the contractor, does not apply te a contract under which nothing 
was payable' 'by the owner to the con tractor ,— as where during the 
progress of the work the owner had paid the contractor more than 
the value of the work done and the work as a whole was never 
completed. Burton v. HooTcworth, (1919) 48 D. L. E. 339. 

The special provision for priority of wage-earners introduced 
into the Mechanics' Lien Act, whereby it is declared that as 
against wage-earners the percentage required to be retained by the 
o"wner to answer liens "Shall not be applied by the owner to the 
completion of the contract on the contractor's default, nor to the 
payment of damages for non-completion, does not affect the other 
provisions of the Act regarding mechanics' liens generally; and it 
is not to be implied from such prohibition that the owner may in 
cases other than for wages so apply the statutory percentage to- 
wards the cost of completion as against the liens of materialmen 
or sub-contractors in the event of the contractors' default. Rice 
Lewis & Son, Ltd. v. Harvey et al. (1913) 9 D. L. E. 114. 



NATURE AND SCOPE OF LIEN. 13 

The fact that the owner did not retain from his contract any of 
the percentage of the value of the work as required by the 
Mechanics' Lien Act for the protection of sub-contractors and wage : 
earners, does not make him liable for sub-contractors' claims as to 
which no lien' was filed or notice of claim given the owner until 
after the expiry, of thirty days following the abandonment of the 
work by the principal contractor, the statutory obligation to, retain 
the percentage being limited to thiriy days after completion or 
abandonment of the contract with the owner. (Broohs v. Mundy 
(1914 X 16 D. L. E. 119). The statutory percentage which the Act 
requires an owner to retain constitutes a fund of which the 
owner is a trustee, and where a contractor abandons his work the 
materialmen and other lienholders can resort to this fund. Where, 
therefore, under a contract it was provided that eighty per cent, 
of the value of the work done was to be paid, on progress certifi- 
cates, by the owner to the contractor, the owner was held liable to 
other lienholders to the extent of twenty per cent, on such pay- 
ments, and, if any additional sum became payable by the owner to 
the contractor, twenty per cent, of such sum would be available to 
lienholders. Russell T. French, 28 0. E. 215; Bice Lewis & Son 
v. Harvey, (1913) 9 D. L. E.' 114. The views expressed in Far- 
rell v. Gallagher, 23 0. L. E. 130, and McManus v. Bothschild, 25 
0. L. E. 138; must be governed by the decision in Bice Lewis & 
Son v. Harvey, supra. 

The lien itself is an interest in land {Stewart v. Gesner, (1881) 
29 Gr. 329), and attaches to equitable as well as legal estates or 
interests in land. Reggin v. Manes, 22 0. E. 443; Montjoy y. 
Heward School'Dist. Corp., 10 W. L. E. 282. "A- trustee having 
power to improve and repair the property can usually by his con- 
tract subject it to a mechanics' lien." Springer v. Kroeschell, 161, 
111. 358. It will attach to the estate of a lessee. ( Garing v. Hunt, 
27 0. E. 149), but subject to all the conditions of the lease {Wil- 
liams v. Vanderbilt, 145 111. 238),- but the lessee's contract can- 
not, as a rule, affect any other interest, unless the lessor consented 



14 THE LAW OF MECHANICS' LIENS IN CANADA. 

to the making of the improvements. Garing v. Hunt, supra; 
Graham v. Williams, 8 0: R. 478, 9 0. R. 458. See Marshall 
Brick Co. v. Twining, 28 D. L. R. 464; Scratch' v. Anderson, 
(1911) 16 W. L. R. 145. It attaches only to realty, and 
does not create an estate in the realty itself but is, in 
'effect, a statutory charge upon the estate or interest .of the 
" owner," as denned by the Act ( Garing v. Hunt, supra; Graham 
v. Williams, 8 0. R. 478, 9 0. R. 458), and its registration makes 
subsequent transfers or incumbrances of the land affected by the 
charge subordinate to the rights of the lien holder. . It arises as 
soon as work is done or materials furnished, and is subject. to be 
increased or decreased in amount from time to time, as further 
work is done or materials furnished, to be used, on the one hand, 
or payments made to the lien holder, on the other hand. 
Although the lien arises as soon as the work is commenced, or the 
materials have been placed or furnished, yet it actually takes its 
rank with other interests and incumbrances not solely according- 
to the date at which it came into existence, but, in so far as the 
work or materials have increased the value of the land, in priority 
to other interests and incumbrances, though the latter be prior 
in point of time. Galvin-Watson Lumber Co. v. McKinnon, 
(1911) 4 Sask. iL. R 68, 16 W. L. R. 310. 

The lien may be registered when commencing, or during the 
progress of the work, but an action thereon cannot be commenced 
before completion 'of the contract. Curtis v. Richardson, (1909) 
18 Man. L. R. 519. 

The lien upon registration takes effect from the commence- 
ment of the work, or from the placing of the materials, as against 
purchasers, etc., under instruments registered or unregistered. 
RooocTc v. Peters, (1900)' 14 Man. L. R. 139. As between owner 
and contractor, the Ken may exist from the time of the com- 
mencement of the work, yet if the latter desires to preserve bis 
position and establish a priority over subsequent purchasers or 
mortgagees, he must register his lien. McVean v. Tifflin, (1885) 



NATURE AND SCOPE OF LIEN. 15 

13 0. A. E. 4. See Dominion Radiator Co. v. Payne, (1917) 11 
Alta. E. at p. 537. The office of the statement registered, so far as 
respects the lien, is not to create it but to preserve it, and main- 
tain it against subsequent purchasers and protect the latter from 
,the risk of taking without notice any laiid affected by a lien. The 
purpose of registration of claims for liens is to give public notice 
of the existence and nature , and amount of the claims and of the 
persons by and against whom they are claimed, and of the pro- 
perty subject to them, so that persons interested in the property or 
intending to acquire any interest in it may receive reasonable 
notice of the character of the claims attaching to the property. 
Such information as answers this purpose should be held sufficient. 
Bickerton v. Dakin, (1891) 20 O. E. 702; Fulp \. Power Co., 
(1911) 157 N. C. 156. The owner has the right to know from the 
account filed, the amount which has become a charge upon his 
property in order that' by payment or tender he may discharge the 
property of this encumbrance. If, therefore, a claim for lien is wil- 
fully and fraudulently made for an excessive sum, the lien will be 
defeated. Marsh v. Mick, (1911) 159 111. App. 399. 

When the work is done or the, materials are furnished, the 
lien, having attached as the work is being done, relates back to the 
time when the work was begun, or the materials were commenced 
to be furnished, and takes priority over incumbrances not re- 
corded at that time.- Ottawa Steel Castings Co. v. Dominion 
Supply Co., (1905) 5 0. W. E. 161, 41 <C. L. J. 260. 

The lien for materials arises on the materials being furnished 
for the " owner " or contractor or a sub-contractor, and attaches 
only to the erection, building or property in respect of which they 
were furnished, and of the lands occupied thereby or enjoyed there- 
with, or upon which the materials are placed or furnished to be 
used. The policy of this legislation is to prevent an owner from 
obtaining the benefit of the labor and materials "of others without 
compensation, but it is not intended to compel an owner to pay 
his contractor's indebtedness for that which does not go into or 



16 THE LAW OF MECHANICS' LIENS IN CANADA. 

benefit his property. Brooks-Sanford Co. v. Theodore Teller Co., 
22 0. L. R. 176. 

A mechanics' lien is a charge upon the whole realty, although 
the labor done or materials furnished may have only been con- 
nected with part of it. This is aptly illustrated by a Massachusetts 
case (Beatty'v. Barker, (1886) 141 Mass. 523) in which it was 
decided that a drain pipe extending from the cellar of a house in 
a city, through the cellar wall, yard and street into a- sewer, and 
included in the contract for building the house, which was fitted 
for the use of the city water, is a part of the house and that a lien 
may be maintained for the laying of this drain, it being imma- 
terial that the fee of the street is hot in the owner ,of the house. 
In a later case it was held that a lien might exist for grading a lot, 
as, if the grading were reasonably necessary to the proper con- 
struction and occupation of the house, it fairly could be considered 
as part of the erection of the house. Beid v. Berry, (1901) 178 
Mass. 260. In fact, any improvements which . although outside of 
a building are necessary for its proper use, and are on the lot of 
land, may be the subject of a lien on the land and building. Thus, 
a lien may be claimed against the whole realty for the drilling of 
an artesian well (Rolewitch v. Harrington, (1906) 6 L. R! A. 
550) ; -constructing' a reservoir (Brush Elec. Co. v. Warwick Elec- 
tric Co., 6 Ohio Dec. 459); pipes' in a sold storage plant (Steger 
V.' Arctic Ref. Co., 11 L. R. A. 580); a gas machine (Benrisyl. 
Globe Co. v. Gill, 1 Pa. Dis. R. 538) ; electric light (Badger 'Lum-' 
her Co. v. Marion Water Supply & Bower Co., 15 L. R. A. 652) ; 
brewery appliances (Watts Campbell v. Yuengling (1890) 125 
■N". Y. 3) . A person furnishing lead to connect a house with pipes 
in the street may have a lien on the house. F-erry v. Rothbaum, 
(1911) 155 Mo. App. 331. Mechanics' Lien Acts in Canada give a 
lien upon the building ". . . and the lands, occupied thereby 
and enjoyed therewith," and this phrase has been liberally con- 
strued. "Where a lien on a mine was claimed, and it appeared that 
none of the work done and none of the materials were furnished 



NATURE AND SCOPE OF LIEN. 17 

on mining locations Nos. 128 and 129, but these were " enjoyed " 
with No. 258 on which the work was done, it was held that the 
former sections were, therefore, subject to the lien. Davis v. 
Crown Point Mining Company, (i901) 3 0. L. E. 69. These 
, words are not necessarily restricted to the particular lot upon 
which the building is situated, but may include other lots intended 
for use with the house. Clarice v. Moore (1908) 1 Alta. L. E. 49. 
Where a statute permitted the lien to attach to such curtilage as 
is reasonably needed for the general purposes for which the struc- 
ture is erected, a lien on a hotel and sanitarium was held to ex- 
tend to a lot separated -from that containing the building by other 
property, but containing a mineral spring which is intended as 
part of the sanitarium property. (See Wirsing v. Penn Hotel and 
Sanitarium Co., (1909) 226 Pa. 234, where previous eases are 
reviewed.) Where the buildings are upon farms, the lien, as a 
general rule, will include the extra tract that is used as one farm. 
Cowan v. Griffith, 103 Cal. 224. The tendency of legislation is to 
widen, and of the courts to construe liberally, the provisions deal- 
ing with the extent and scope of a lien. Ontario Lime Assocn. 
v. Grimwood, (1910) 22 0. L. E. 17. Such terms as "work" and 
"materials," for instance, have been most liberally construed. 

The question of the extent of land included in the lien depends 
largely upon the facts at the time the contract was made. La 
Forgee v. Colby, 69 111. App. 443; Baker v. Waldron, 92 Me. 17; 
Collins v. Patch, 156 Mass. 317 ; O'Brien v. Fraser and Gallagher, 
(1918) 41 D. L. E. 328; Poison v. Thomson (1916) 29 D. L. E. 
395; Fairclough v. Smith (1901) 13 Man. L. E. 509; Builders 
Supply Co. v. Huddlestone (1915) 25 Man. L. E. 718. As to 
the area of land subject to the hen, Fuller, C.J., in a leading 
American case, said : " The truth is that what area of land is 
subject to a lien in a given case largely depends on the character of 
the improvement. The extent of ground proper and necessary 
to the enjoyment of a building, a wall or a fence, would not be the 
same as that required for or appertaining to an irrigation system, 

MX. — 2. 



. 18 THE LAW OF MECHANICS' LIENS IN CANADA. 

but the principle of determination is the same." Springer Land 
Assri. v. Ford, (1897) 168 U. S. 513. 

Where there aTe no visible divisions the entire tract is con- 
sidered as the lot of land covered by the lien (St. Louis Nat. Stock 
Yards y. O'Reilly, 85 111, 546; Orr v. Fuller, 172 Mass. 597), but 
in Pennsylvania it has been held that if the work is done on a 
structure which is on a separate and remote lot, a lien cannot be 
enforced against a building on another lot, > although the structure 
on which the work was done serves the other building as well as 
other properties.! Cowah v. Penn. Plate Glass Co., 184 Pa. 16. 

All of a block of houses on one tract erected under , one con- 
tract will be covered by a single lien. Brabazon v. Allen, 41 Conn. 
361; Worthley v. Emerson, 116 Mass. 374; see Maryland Brick 
Co. v. Spelman, 76 Ind. 337 (17 L. E. A. 599). The defendant 
bought one of two adjoining pieces of land and took a fifty years' 
lease of the other. He erected an exterior fence, built a continu- 
ous dock for coal along the entire river front of both lots and used 
the whole tract as a coal yard/ and it was held that a lien under a 
single contract covered both lots as a single lien. Marston v. Ken-_ 
yon, 44 Conn. 349. Old material used under the contract in the 
new building may be subject to a lien. (Whitford v. Newell, 84 
Mass. 424), and the amount paid by a contractor agreeing to erect 
a new building for removing an old building on the site is a proper 
.claim. Pratt v. Nakdimen, (1912) 138 iS. W. 974), but.no lien 
arises for merely tearing down a building or part thereof (Thomp- 
son-Starrett Co. v. Brooklyn Heights B. C, 111 App. Div. (N.Y.) 
358) unless the work of tearing down was a necessary preliminary 
to the making of subsequent improvements. 

Where it is intended to use the whole of the land with the 
buildings on which the work was done, all the land will be subject 
to the lien (Lindsay v. Gunning, 59 Conn. 296), where the whole 
farm of 350 acres was held to be "the land on which" the build- 
ings stand. 

The estate or interest, large or small, of the " owner " is bound 
by the lien (MoCarty v. Carter, 49 111. 53, 95 Ain. Dec. 572), and 



NATUKE AND SCOPE OF LIEN. 19 

where the equitable title afterwards merges into the legal, the lien 
will attach to the legal title. Where a person has a valid lien on 
a lot and building and subsequently becomes owner of the land on 
which the building was then standing, whatever interest he could 
claim in the property under his lien merges in his title as owner. 
Galvin Watson Lum. Co. v. McKinnon, (1911) 16 W. L. E. 310. 
Once a lien attaches no subsequent conveyance can affect it pre- 
judicially. Salem v. Lane, 189 111. 593. 

• As to the operation of the lien itself, Boyd, C, in delivering 
judgment in a leading Ontario case (King v. Alford, (1885) 10 
0. E. 647), said: "There is nothing in the scope of the Act as 
to liens to indicate that it was intended to be operative to a greater 
extent than as giving a statutory lien issuing in process of execu- 
tion, of efficacy equal to, but not greater than, that possessed by 
the ordinary writs of execution." In another part of his judg- 
ment in that case, the learned Chancellor points out that a me- 
chanics' lien is not analogous to a vendor's lien, and Ferguson, J., 
in the same case states fully the distinction between a mechanics' 
lien and a vendor's lien. 

The lien upon a mine is a lien on the mine itself and riot on 
any fund arising from the sale of ore extracted from the mine. 
Law y. Mumford, 14 B. G. E. 233. 

Such terms as "building" (6 Cyc. 115); "wharf" (Collins 
v. Drew (1876) 67 KT. Y. 149; Ellis v. Cory (1902) K. B. 38; see 
also Haddock v. Humphrey, (1900) 1 K. B. 609; Kenny v. Har- 
rison, (19.02) 2 K. B. 168; "curtilage" (12 Cyc. 1021) occurring 
in a statute have been given a wide and liberal interpretation. 

Work on an excavation or foundation will give a lien, even 
though no building is subsequently erected (Baker v. Waldron, 
92 Me. 17; Sommerville v. Walker, 168 Mass. 388), but unless the 
statute expressly provides there is no hen for the breaking of land 
for the purposes of cultivation. Brown v. Wyman, 41 Am. Eep. 
117. To create a lien it is not essential that the contract should 
contemplate that the lien claimant should be paid in money. 
Dowdney v. McCullom, 59 N. Y. 367. 



20 THE LAW OF MECHANICS' LIENS IN CANADA. 

The lien extends only to the property upon or in respect of 
which the work is performed or the materials furnished to be used, 
and the lands occupied thereby or enjoyed therewith, and this 
being so, it follows that though the work is done under one con- 
tract and for the same owner, no lien is created upon the property 
for work done or materials furnished upon another distinct pro- 
perty (Currier v. Friedrick, (1875) 22 Gr. 243; Dunn v. McCal- 
lu'm, (1907) 14 0. L. OR. 249; Barr & Anderson v. Percy & Co., 
(1912) 21 W. L. R. 237; Oldfield v. Barbour, (1888) 12 P. E. 
544; Ldtkins v. Blakeman, 42 Conn. 292; Bice v. Nantasket Co., 
(1870) 140 Mass. 256), but a joint lien may be had upon a num- 
ber of structures built or repaired under a single contract, and thus 
connected in construction and ownership. In reality they are to 
be considered as one building or structure. Thus, semi-detached 
houses, or houses erected in a row, would be treated as one build- 
ing (Ontario Lime Assn. v. Grimwood (1910) 22 O. L. R. .17; 
Capper V. Gillespie, 11 W. L. R. 310; Windfall Nat. Gas. Co. v. 
Eoe, (1908) 42 Ind. App. 228; O'Brien v. Fraser & Gallagher, 
(1918) 41 D. L. R. 328. 

But the Act does, not authorize the registration of one lien for 
one lump sum against the lands of different owners, although the 
work may have been done or the materials furnished under one 
contract for the building of houses on the lands of the different 
ownefs, unless, perhaps, in a case where the lien claimant did not 
know and had no means of ascertaining before filing his lien, that 
the lands ,were owned by different persons. Builders Supply Co. 
v. Huddlestone, (1915) 25 Man. L. R. 718. 

If the amount for which the lien, is claimed can be apportioned 
between two or more properties, or if separate prices are fixed, it 
would seem from some decisions that a separate lien may be claimed 
on each property for the amount due in 'respect to it. Booth y. 
Booth, (1902) 3 O. L. R. 294; Shaw v. Thompson, (1870) 105 
Mass. 345; but see Fairclough v. Smith, (1901) 13 Man. L. R. 
509; Rathbum v. Hayford, (1862) 87 Mass. 406. But the pro- 



NATURE AND SCOPE Or LIEN. 21 

visions of the various Mechanics' Lien Acts in Canada, although 
allowing any number of lienholders to' be joined in one suit, do 
not enable a lienholder to consolidate liens against several different 
buildings. Each individual building must bear the burden of its 
own construction. O'Brien y. Fraser & Gallagher, (1918) 41 D. 
L. E. 328. 

The lien may attach against 'several pieces of property as one 
individual claim; the fact that houses are subsequently divided 
between different owners cannot impair the lien, which becomes 
effective from the time of the commencement of the work. Poison 
v. Thomson, (1916) 29 D. L. E. 395. This case is distinguished 
from Fairclough v. Smith, (1901) 13 Man. L. E. 5t>9, as in the 
latter case the lots in question were severally vested in two dif- 
ferent owners. 

Where a contractor has several contracts with different per- 
sons for the erection of distinct buildings, a person who supplies 
materials to the contractor can only have a lien upon each owner's 
house for the amount due to him for material that had gone into 
that particular house. The onus is upon him to make his claim 
upon each house severally and he cannot join all the houses and 
all the owners in one proceeding and make one lump claim against 
them jointly. But where an owner enters into an entire contract 
for the supply of material to be used upon several buildings the 
nature of the contract shifts the onus and the lien claimant can 
ask to have his lien follow the form of the contract, and that it be 
for an entire sum upon all the buildings, and, in such case, if an 
owner desires to invoke the statute to the extent of having a lien 
upon any building confined to the value of the material going into 
that building the onus is upon him to shew the facts. Dunn v. 
McCallum, (1907) 14 0. L. E. 249; Ontario Lime Association v. 
Grimwood, (1910) 22 0. L. E. 17; see also Builders Supply Go. 
v. Huddlestone, (1915) 25 Man. L. E. 718. But where a definite 
labour account has been kept against each of two separate build- 
ings in different parts of a city, a workman cannot lump the two 
accounts together and claim against both buildings for. its total. 



%% THE LAW OF MECHANICS' LIENS IN CANADA. 

O'Brien v. Fraser & Gallagher, (1918) 41 D. L. E. 328. Where 
the materials were sold oh the ; representation of the buyer that 
they were to be used by him in a particular building, but were 
actually used in the construction of another, the supplier had a" 
lien on the building in which they were actually used. Taggard 
v. Buchmore, 42 Me. 77. 

In an action by a husband against a wife to enforce a lien 
{Booth v. Booth, (1902) 3 0. L. E. 294), it appeared that defend- 
ant's wife and plaintiff's mother each owned a dwelling, both dwell- 
ings being in one building which was damaged by fire. Plaintiff con- 
tracted to repair both for a lump sum — the amount of insurance. 
Meredith, C.J., in this case said : " It was contended that as the 
agreement was made 'between the husband on the one part and his 
wife and mother on the other part for the performance of the whole 
work necessary to be done on 'both buildings for one entire price, the 
Act, E. S. 0. (1897) ch. 153, gives no lien upon the land of either 
for the price of the work and material or any part of them. . . . 
It is unnecessary to express an opinion as to whether the respon- 
dent would have been entitled to a lien under the Act on both the 
lands of his wife and his mother for the whole of the agreed price, 
for the only claim which is made is a lien on the lands of the wife 
for the price of the work done on her part of the building and for 
the materials furnished in respect to it. It was, however, con- 
tended that the effect of -the bargain, it having been for the whole 
work at one price and not separate prices in respect to each build- 
ing, is that even such a lien as is claimed was not created. I am 
unable to agree with this view. Had it been impossible to dis- 
tinguish between the work done and the materials furnished on 
the wife's building and those for the building of the mother, there 
possibly might have been a difficulty in the respondent's way, but 
I see no reason why, if it be practicable to do this, and a fortiori 
where, as appears to have been done in this case, a separate account 
had been kept, the lien may not attach to the land of each owner 
for the priee of the work performed and materials furnished on 



NATTJEE AND SCOPE OF LIEN. 23 

his part of the building. . . . Though the price for the work 
and materials was a lump sum, and included what was to be paid 
for that which he contracted to do in respect to his mother's build- • 
ing, I see no reason why for the purposes of the Act the price may 
not be apportioned between the two buildings according to the 
amount of the work performed and the materials in respect of it." 
Though the decisions are conflicting, in the United States a 
lien would be upheld in the 1 majority of the States in cases where 
separate buildings are erected upon the same lot or contiguous lots, 
for the same owner under an entire contract. If the buildings 
are on separate lots, though erected under an entire contract with 
one owner, the lien is only for the work done or materials fur- 
nished on each particular lot. No lien arises if the lots on which 
the buildings are erected are owned by different persons, though 
erected under one contract. Bathbun v. Hayford, (1862) 87 Mass. 
406; C'hilds v. Anderson, (1880) 128 Mass. 108; see Stoltze v. 
Hurd, (1910) 30 L. E. A. 1219. If, however, different owners 
join in the contract for the erection of one building on contiguous 
lots, a lien may be claimed against the whole property. Miller v. 
Sheppard, 50 Minn. 268; Menzel v. Tubbs, 51 Minn. 364; J. A. 
Treat Lumber Co. v. Warner, 60 Wis. 183. No lien can be claimed 
where • the work is done or the materials furnished partly upon 
land owned by the person for whom the work or materials is done 
or furnished and partly upon land of a stranger. Stevens v. Lin- 
coln, (1874) 114 Mass. 476; McGuinness v. Boyle, (1878) 123 
Mass. 570; see' Lee v. Hill, 11 W. L. R. 611, unless the amount 
due in respect to the part owned by the person for whom the work 
was done can be shown. Batchelder v. Hutchinson (1894) 161 
Mass. 462. 

Where a definite labor account has been kept against each of 
two separate buildings in different parts of the city,, a workman 
cannot lump the two accounts together and claim against both 
buildings for his total. O'Brien v. Fraser & Gallagher (1918) 41 
D. L. E. 324. 



24 THE LAW OF MECHANICS' LIENS IN CANADA. 

There are some American decisions to the effect that a lien 
attaches on the land of both owners where a joint contract is made 
with them for the work to be performed on both lots which are 
owned separately. Deegan v. Kilpatrich, (1900) 54 .JT. Y. App. 
Div. 374, 66 IS. Y. Supp. 628; Miller v. Schmitt, (1901) '67 N". Y. 
Supp. 1077,-and Miexell v. Guest, (1895) 40 Pac. Rep. 1070. 

In a leading Massachusetts ease (Forbes y. Mosquito , Fleet 
Yacht Club, (1900) 175 Mass. 432), it was held that a mechanics' 
lien may be enforced upon a building erected by the lessee under 
a lease of the land for a term of years which requires the erection 
of the building and which prevents the building from becoming 
•a part of the realty, and upon the lessee's estate for years in the 
land, for labor performed on the buildings by employees of the 
contractor with the lessee. In delivering the- judgment of the 
Court in this case, Barker, J., said that it was intended by the 
Legislature to give a lien upon buildings the owner of which had 
no estate or interest in the land upon which the building was 
erected, and that ,the lien might extend to a building erected upon 
land although the building was personal property. The learned 
judge continues as follows : " The contrary ■ opinion expressed in 
Hayes v. Fessenden, 106 Mass. 223, 231, and in Stevens v. Lin- 
coln, 114 Mass. 476, 478, Was not necessary to the decision of either 
of those eases and therefore is not binding as an authoritative con- 
struction of the statute. In neither of those cases was the build- 
ing personal property. In the former it was put upon the land 
by one who had merely a written agreement with the owners 'of 
the land for its purchase, and the lien was denied for the sufficient 
reason that a person holding such an agreement mexely could not 
charge the building with a lien, because he was not the owner of 
the building, under the authority of Poor v. Oakmcm, 104 Mass. 
309. .So in Stevens v. Lincoln, where a lien was denied because 
by mistake a school house had been built partly upon lands of the 
town and partly upon lands of third persons, and it was not 
shown how much of the work was done on the respondent's land. 



NATURE AND SCOPE OE LIEN. 25 

There was no ground for contending that the building was per- 
sonal property. So much of it as stood on lands of other persons 
than the respondent was the real estate of those persons, and so 
much of it as stood on the respondent's land was the respondent's 
real estate; and the ground upon which the exceptions were sus- 
tained was that it could not be shown how much of the work was 
done upon the building on the respondent's land. In the present 
case the lease of the respondent required the erection of the build- 
ing and so was a consent to its erection on the part of the owner 
of the land, and as the lease also gave to the respondent an estate 
for years in the land, this made the respondent the owner of the 
building within the meaning of Pub. Sts. ch. 191, sec. 1, for the 
term of years at least." 

But where a building is by mistake erected upon the wrong 
property, no lien can be claimed; thus where materials were 
furnished to be used in the erection of a building upon lot 3, 
but which was, by mistake, erected upon lot 4 and afterwards 
removed to lot 2, the materialman was not entitled to a lien upon 
lot 2. Lingren v. Nilsen, 52 N". W. 915, 50 Minn. 448. 

Where a carpenter was to furnish the plant, etc., necessary 
for the carrying out of the contract, which was to become the 
property of the owner if the contract was not fulfilled, it was held 
that the value of the plant so furnished should not be included 
in the amount on which the owner was required to retain the per- 
centage, though the contractor had failed to complete the contract 
and the plant had become the property of the owner. Birkett v. 
Brewder, (1902) 10. W. K. 62. 

Where defendant leased premises to a company and the com- 
pany agreed to erect buildings and plant to' the value of $100,000, 
which were to become the property of the defendant, it was held 
that the lien only attached to the company's interest. Webb v. 
Gage, (1902) 1 O. W. E. 327. 

Where a lien on a mine was claimed, and it appeared that 
none of the work was done and none of the materials were fur- 



26 THE LAW OE MECHANICS'' LIENS IN CANADA. 

nished on mining locations Nos. 128 and 129, but these were 
"enjoyed" with No. 258 on which the work was done, it was 
held that the former sections were therefore subject to the lien. 
Davis v. Crown Point Mining Co., 3 0. L. E. 69; see also remarks 
of Puller, C.J., in Springer Land Association v. Ford, (1897) 
168, U. S. 513, upon the principle of determination of the extent 
of land covered by a lien. 

A lien upon a building also attaches upon so much of the ad- 
joining land as is necessary for the use and enjoyment of the 
building for the purpose for which it was erected. Clarice v. 
Moore, (1908) 8 W. L. E. 405; Nelson v. Campbell, 28 Pa. St. 
156 ; Bank of Charleston v. Curtiss, 18 Conn. 342. The extent of 
land covered depends on the circumstances of each case; thus a 
distinction is drawn between property in the country and pro- 
perty in the city, a larger area being allowed in the former case. 

In construing the Manitoba Act, a decision in, that Province 
held that the expression " lienholder " means a person having a 
lien which was valid at the time of commencing his action, so that 
when, in ah action commenced by a lien claimant, it is decided 
that he had no valid lien and no action was commenced within 
the statutory time by any other person claiming a lien on the same 
property, all the liens upon it must fail. Builders Supply Co. v. 
Huddlestone, (1915) 25 Man. L. E. 718. The case of Be Sear & 
Woods, 23 0. E. 474, which was followed in this case, on one 
point, is given a new interpretation in Barnes v. Curley, post, 
and , £he word " lienholder " is. given a plain meaning by this 
recent decision of an Ontario Court, which holds 1 that "lien-, 
holder," as used in a corresponding provision of the Ontario Act, 
includes a person who files a claim but fails to establish it at the 
trial, and that a lien duly registered but upon which no action has 
been brought, within the stipulated time, may be enforced in an 
action brought within that time by the plaintiff who failed. 
Baines v. Curley, (1916) 33 D. L. E. 309. 

Where the lien cannot be enforced against the property of a 
railway company, no valid lien which justifies the plaintiff to 



NATURE AND SCOPE OF LIEN. 27 

proceed to judgment under the section of the Act dealing with 
personal judgments can be established. Johnson & Carey Co. v. 
Canadian Northern B. Co., (1918) 47 D. L. E. 75. But in an- 
other case where the plaintiff failed to establish a lien, the Eeferee 
gave him a personal judgment and the Appellate Division dis- 
missed an appeal from the Eeferee's decision. See Kendler v. 
Bemstock, (1915) 22 D. L. B. 475, 33 0. L. E. 351. In that case, 
however, there was property which could be legally charged with the 
statutory lien, and this condition also applies to the ease of Baines 
v. Curley. 

If all the work is done, or all the. materials are furnished, under 
one entire continuing contract, although at different times, a lien 
claim filed within the statutory period after the last item was done 
or furnished is sufficient as to all the items. In order that the 
contract may be a continuing one within this rule, it is not neces- 
sary that all the work or materials should be ordered at one time, 
that the amount or nature of work or materials should be deter- 
mined at the time Of the first order, or that the prices should be 
then agreed upon. A mere general agreement to furnish labor or 
materials for a particular building or improvement is sufficient if 
complied with. Whitloch v. Loney (Sask.), 38 L>. L. E. 52, (1917) 
3 W. W. E. 971. 

The question whether the enforcing of this lien is a proceed- 
ing in rem or in personam has been much discussed and conflict- 
ing views have been expressed. In a Newfoundland ease {Lynch 
v. Trainor, (1893) 13 €. L. T. 426, Newfoundland L. E. (1884- 
1896) 744, an action to enforce a claim for wages under a Me- 
chanics' Lien Act, it was held that such a proceeding was an 
action in rem and not in personam. The Newfoundland Act is 
almost a complete transcript of the Ontario Act. In n Massa- 
chusetts ease {Howard v. Bobinson, 5 Cush. 121), Shaw, C.J., 
referring to this question said: — 

" The course directed by statute is conformable in part to pro- 
ceedings in rem, arid partly to those in personam, but the objecit 
being to charge the estate with a lien, an incumbrance wholly 



28 THE LAW OF MECHANICS' LIENS IN CANADA. 

independent of the personal remedies which a contracting party 
niay have, the course of proceedings must be considered as most 
nearly resembling a proceeding in rem." 

It may now be considered as well settled that the action is one 
in rem. Washburn v. Burns, 34 N. J. L. 18 ; Simmonson v. Citi- 
zens' State Bank, 105 Iowa 264. 

The view expressed by Boisot will be generally accepted as an 
accurate statement on this point : " If when we say proceeding 
in rem we mean a proceeding which is not against any person, but 
is directly against a thing whose state and condition are to be 
determined, and which results in a judgment equally binding on 
all persons, although not made parties to the proceedings, then a 
suit to foreclose a mechanics' lien cannot be said to be a pro- 
ceeding in rem. But, if we use the term proceeding in rem in a 
larger and more general sense, as applied to actions between par- 
ties, where the direct object is to reach and dispose of property 
owned by them or of some interest therein, then a suit to fore- 
close mechanics' lien is a proceeding in rem. It is" perhaps/ how- 
ever, more accurate to say that suits to foreclose mechanics' lien 
are suits in the nature of proceedings in rem in which the object 
is to determine the status of certain property, but which affect 
only those persons who are parties or privies." Boisot, Mechanics' 
Liens, sec. 511. 

For the purposes of the legislation, liens are divided into two 
classes: (1) Liens for which a claim is not registered; and (2) 
Liens for which a claim is registered. A lien is given by an early 
section of the Act and exists independently of the registration of 
a claim. Before registration there are two courses open to a lienor : 
(a) He may omit to register a claim, in which case his lien will 
either lapse or be enforced by action at his own instance or that 
of others; or (b) he may register a claim, in which case his lien 
will lapse on the expiration of ninety days, or he must bring an 
action within a certain time or some one else must, and thus the 
lienor who registers a claim must be taken to have abandoned all 



NATURE AND SCOPE OF LIEN. 29 

relief but what he can obtain under the provisions embodied in 
section 24 of the Ontario Mechanics' Lien Act, or the similar sec- 
tion in the Mechanics' Lien Act of any other Province. Eadie- 
Douglas v. Hitch & Co., (1912) 27 0. L. E. 261. By section 24 of 
the Ontario Act, it is provided that " Every lien for which a claim 
has been registered shall absolutely cease to exist on the expira- 
tion of 90 days . . . unless in the meantime an action is 
commenced to realize or in which the claim may be realized under 
the provisions of this Act." The words " in the meantime " do 
not mean " between the time of registering the claim and the 
expiry of the time limited " ; but any proceeding taken during the 
existence of the lien (at all events) is taken "in, the meantime" 
if taken before the expiration of the period mentioned in sec- 
tion 24. 

The effect of a special provision in some Mechanics' Lien Acts 
(see section 32, Mechanics' Lien Act, Alberta), is to make the 
giving of notice in' writing to the owner a condition of the me- 
chanic's or materialman's lien attaching so as to make the owner 
liable, just as other sections make registration and the institution 
of an action within defined periods conditions of its preserva- 
tion. City of Calgary v. Dominion Radiator Co., (1917) 40 D. L. 
E. 65. 

A decree enforcing a mechanics' lien is a conclusive deter- 
mination of the rights of the parties, but it does not conclude 
persons who are neither parties nor privies. Bank of Montreal v. 
Haffner, (1884) 10 0. A. E. 599. 

Where lands are out of the jurisdiction the court cannot affect 
them otherwise than by proceeding in personam and cannot there- 
fore enforce a mechanics' lien by sale of land out of the jurisdic- 
tion. Chadwich v. Hunter, 1 Man. E. 363. 

A person who claims the benefit of a mechanics' lien must show 
affirmatively that he is in one of the classes of persons that the 
statute intends to secure, and also that his claim is one of the kind 
that the statute secures. He must, therefore, be in one of the 
following classes of persons: — 



30 THE LAW OF MECHANICS' LIENS IN CANADA. 

(1)' Those whose claims are * by virtue of an agreement with the 
owner of the land and building or by reason of work done or 
materials furnished with his consent, i.e.., original contractors and 
others having the statutory claim by consent of the owner; 

(2) Those having a claim of the statutory description without 
any such agreement or direct consent, i.e., all sub-contractors (and 
persons whose claims are by virtue of a contract with any such 
sub-contraetor, and who thereby come within the statutory defini- 
tion of the term " sub-contractor ") ; 

(3) All laborers and wage^earners. 

This statutory remedy is cumulative, and does not affect any 
other remedy which the claimant might invoke. Where a con- 
tractor has a claim against an owner of land larger than the value 
of the land and wishes to prove his claim in an action indepen- 
dently of Mechanics' Lien proceedings, he may do so. Dick v. 
Standard Underground Cable Co., (1912) 23 0. W. E. 96. The 
work or service need not be performed on the site of the building, 
but must be directly connected with the repairs or construction" of 
it. Davis v. Crown Point M. Co., (1901), 3 0. L. E. 69; Brad- 
show v. Saucerman, (1912) 4 D. L. E. 476. A person employed 
to sharpen picks to get out stone to build a lime kiln might have 
a lien on the quarry, but would have no lien on the lime kiln. 
Allan v. Harrison, (1908) 9 W. L. E. 198. 

The rights i of lien claimants are confined to the provisions of 
the statute creating such rights. Sub-contractors for the supply- 
ing of materials and doing the painting for a lump sum do not 
come within the meaning of the words " laborer or person placing 
or furnishing material." Bosio & Jones v. Beach & Turner, (1913) 
23 W. L. E. 174, 406, 9 D. L. E. 416. Puller v. Turner & Beach, 
(1913) 23 W. L. E. 170. A person who has delivered material to 
be used in the construction and improvement of a place, although 
the place of delivery is upon the land, is not a person who has done 
work or service upon the premises. Vannatta v. Uplands, Limited, 
(1913) 25 W. L. E. 85. And the whole burden of the procedure 



NATURE AND SCOPE OF LIEN. 31 

' rests upon the claimant who institutes the process. O'Brien v. 
Ftaser & Gallagher, (1918) 41 D. L. R. 328. But the above state- 
ment would not apply to the provision of the Act which requires 
substantial compliance only with certain sections and declares that 
no lien shall be invalidated by reason of failure to comply with 
those sections unless the owner, contractor or mortgagee is preju- 
diced thereby. In such cases the onus on the question of prejudice is 
on the party objecting to the registered claim. Robock v. Peters, 13 
Man. L. R. 139 ; Poison v. Thompson, (1916) 29 D. L. R. 395. As 
an illustration of how the onus may shift, see Ontario Lime Assn. 
v. Greenwood, 22 0. L. R. 17, per Middleton, J. 

When any part of a claim has matured an action lies, and in 
that action all claims, whether then payable or not, are to be dealt 
with at the trial. 

The lien claimant must bring himself within the terms of the 
statute, which cannot be extended to cases not fairly within its 
general scope and purpose. Troy Public Works Co. v. City of 
Yonkers, (1911) 145 App. Div. .(N".Y.) 527. Money advanced 
for the purpose of purchasing material or paying for labor which 
labor and material were intended to come within the lien law 
will not entitle the person advancing the money to a lien. Godef- 
froy v. Caldwell, 56 Am. Dec. 360. As was said by Sprague, C, 
in an Ontario ease (Crone v. Struthers, (1875) 22 Gr. 248; see 
also Mushlitt v. Silverman, (1872) 50 1ST. Y. 360:' "The lien 
of the plaintiff is the creature of the statute and must be limited 
by its provisions." [Sometimes Mechanics' Lien Acts are loosely 
referred to as giving absolutely a lien to contractors, sub-contrac- 
tors, material men and laborers. Such a statement. is calculated 
to mislead. The statute gives only an inchoate right of lien. 
"The statute does not give a lien, but only a potential right of 
creating it." Edmonds v. Tiernan, (1892) 21 S. C. R. per Strong, 
J., at p. 407. 

As to procedure, any person claiming a lien can commence the 
action; he is required to serve all persons whose claims of lien are 



32 THE LAW OF MECHANICS' LIENS IN CANADA. 

of record; when that is done, these persons are as much parties to 
the action for all purposes as though they had been parties in the 
beginning. Bainesv. Curley, (1917). 33 D. L. E. 309. "Lienholder" 
means a person having a valid lien. Builders Supply Co. v. 
Huddlestone, (1915) 25 Man. L. K. 718. Although the burden 
of the procedure rests upon the claimant who institutes the pro- 
cess, the onus- may shift, (Dunn v. MoCallum, 14 0. L. E. 249) 
as where an owner desires to invoke the statute to the extent of 
having the lien upon any building confined to the value of the 
material going into that building, the onus is upon him to shew 
the facts, which must be peculiarly within his own knowledge. 
Ontario Lime Assn. v. Grimwood, 22 0. L. E. 17. If in such a 
case the facts cannot be ascertained, "less violence will be done 
to the statute by construing it as indicated, than by rendering it 
nugatory in many instances in which the legislature apparently 
intended a lien to exist." Ontario Lime Assn. v. Grimwood, supra, 
per Middleton, J. But under ordinary conditions the burden of 
proof is on the lien claimant. Donnelly v. Butler, (1913) 216 
Mass. 41, although the onus rests on the owner in an action by a 
sub-contractor of shewing that nothing is' due from the owner to 
the principal contractor. Brown v. Allen, (1913) 13 D. L. E. 350. 



CHAPTER III. 

Construction of Mechanics' Lien Acts. 

Mechanics' liens upon realty being in derogation of the com- 
mon law and depending for their existence wholly upon statutes, 
the courts throughout Canada have given a strict construction 
to the provisions of Mechanics' Lien Acts, so far as they create 
the right to a lien, but the courts adopt a liberal construction of . 
the provisions which deal with the enforcement of the lien. These 
provisions being remedial should be liberally construed, but, so 
far as the terms creating the right to a lien are concerned, the 
language of such statutes is strictly construed against the person 
Claiming the lien. Such a lien should be fully enforced when the 
claimant has brought himself within the provisions of the statute, 
but its terms should not be extended to cases falling within the 
reason, but not provided for by the language of the statute. The 
courts cannot extend the statute to meet meritorious cases unpro- 
vided for by the statute. A compliance with the provisions creat- 
ing the right is essential before the lien can attach. The statute 
itself gives only an inchoate right of lien, and although the trend 
of amendments to this legislation has been in the direction of 
extending the potential right of creating the lien, and the courts 
in Canada will construe such legislation as remedial, yet these 
courts cannot extend it to meet cases not within its scope, how- 
ever meritorious such cases may be. The existence of the Hen 
itself and its extent depend upon the provisions of the particular 
Mechanics' Lien Act, and, therefore, legislation in other Acts 
(such as The Land Titles Act, Alberta), cannot be considered as 
neutralizing or- modifying the limitation upon the extent of the 
lien which the Mechanics' Lien Act in question explicitly imposes. 
City of Calgary v. Dominion Radiator Co., (1917) 40 D. L. E. 
65. 



34 THE LAW OF MECHANICS' LIENS IN CANADA. 

The filing of the lien is a simple and reasonable requirement 
and can be done in a plain and obvious way, and a lien claimant 
has no just ground of complaint if this portion of the statute is 
strictly construed. This lien is just what the statute makes it, 
.and the courts cannot enlarge or lessen it. Being the creature of 
the statute it must be limited by the provisions of the. statute 
.(Crone v. Struthers, (1875) 22 Gr. 248; Edmonds v. Tierhan, 
(1892) 21 6. C. E. 407; Rolock v. Peters, (1900) 13 Man. L. E. 
139 ; Haggerty v. Grant, (1895) 2 B.C.E. 176; Smith v. Mcintosh, 
(1896) 3 B. C. E. 26, 28; Webb v.,Gage, (1902), 1 0. W. E. 327; 
JRafuse v. Hunter, 12 B. C. E. 126), and courts are powerless to 
change the conditions upon which the lien depends. 

As Strong, J., said, in his decision in a case appealed under 
£he British Columbia Mechanics' Lien Act: "It is quite clear 
that when a statute gives a privilege in favor of a creditor, the credi- 
tor must bring himself strictly within its terms, and there is 
nothing in the statute in question here which prbvides that if a 
lien has once been abandoned it is to be considered as being 
abandoned merely for a time. If we should hold that it was to 
be so considered we should be adding a clause to the Act." Ed- 
monds v. Tieman, (1892) 21 S. C. E. 407. 

In another case, where the Manitoba Act was being construed, 
Killam, C.J., said : " But these liens are wholly of statutory crea- 
tion, and in derogation of ordinary rights. They can be given 
only such effect as the statute clearly warrants. While the whole 
statute must be read together,- and one clause may assist in the 
construction of another, I, cannot find in the other clauses such an 
indication of an entire intention as should affect the natural inter- 
pretation of the language in section 4, sub-section (2). That 
clause seems to me to be the one which deals specifically with the 
relative priority of liens and mortgages made after commence- 
-ment of work or furnishing materials, and must govern upon 
that point." Bobock v. Peters, (1900) 13 Man. L. E. 139. 

In a British Columbia case, Begbie, C. J., said : " The same 
statute which gives the inchoate right of lien, either for work or 



CONSTRUCTION OF MECHANICS' LIEN ACTS. 35 

materials, declares that it shall absolutely cease unless an affidavit 
be filed within thirty-one days, stating the enumerated particulars, 
one of which is the address of the pwner. That affidavit consti- 
tutes the lien (section 9 of 1888, section 8 of 1891) and in order 
to adquire a right of this very unusual nature, the statute must 
be strictly followed." At page 177 of the same report the Chief 
Justice further says : " These statutes do hot confer ordinary 
rights. They must be followed and construed at least as strictly 
as the statutes regulating conditional bills of sale." Haggerty v. 
Grant, (1895) 2 B. G. R. 176. 

In a later case in the same province, Martin, J., said : " How- 
ever unfortunate it is that the laborers have lost oj will lose most 
of their wages, it would be still more unfortunate if," when they 
pursue a statutory remedy which imposes a heavy penalty upon 
persons who do not even employ them, the statute should be 
strained to add to the existing burden of responsibility already 
borne by such third persons." Wake v. C. P. L. Co., (1901) 8 
B. C. R. at p. 360. See also observations of Irving, J., in Leroy v. 
Smith, (1900) B. C. R., at p. 298, and of Maclennan, J.A., in 
Gearing v. Robinson, (1900) 27 O. A. R. 364, and, as to the general 
rule, Archibald v. Hubley, 18 Can. S. C. R. 116. 

In an Ontario case, Meredith, C.J., said: "In some of the 
American States a construction more favorable to the contractor . 
has been given to the Mechanics' Lien Acts, the provisions of 
which were somewhat like those of our Act, which are in question 
here, though not identical with them, but we are, of course, bound 
to follow the decisions of the Court of Appeal of this province in 
preference to those decisions." Webb v. Gage, (1902) 1 O. W. R. 
327. 

In the Province of Quebec, where, although there is no 
Mechanics' Lien Act, provisions of the civil law, similar in many 
respects, exist, it has been held that a strict compliance with sue! 
provisions is necessary to create a lien. La Banque d'Hochelaga 
v. Stevenson, 9 Que. Q. B., [1900] A. C. 600. In a recent 



36 THE LAW .OF MECHANICS' LIENS IN CANADA. 

case before the Quebec t3ourt of Review (Emard v. Gauthier, 
(1916) 29 D. L. R., at p. 319), Mr. Justice Charbonneau said, 
" We cannot, under the pretext of defining the intentions of the 
legislature and to better the law, suppress a formal provision 
which remains on the statute even if it was evident that it was by 
mere forgetfulness that this provision was not made to disappear." 

The only Canadian judgment' which is apparently not in com- 
plete harmony with the principle of applying strict construction 
to the sections creating' the lien is a judgment by Mr. Justice 
Ferguson, in an Ontario case. It was contended that the regis- 
tration of the liem was not good because the name of the person 
who was the owner at the time was not mentioned in it, the former 
owner having without the knowledge of the claimant sold and con- 
veyed the property before the completion of the work. Ferguson, 
J., after quoting from the decision in the case of Jones v. Shaw- 
Kan, (1842) 4 Watts & Serg. 262, and stating that the statute 
under which that decision was given was somewhat different from 
the Ontario statute he was then construing, said : " Yet I am pi 
opinion that the .reasoning of the ease to which I have referred 
applies, especially when I look at the date of the conveyance to 
Pousette and the allegations of the plaintiff ' that he did not know 
anything about it, and I am of opinion that this alleged defect is 
not fatal, although it has been said that the statute relative to 
mechanics' lien being in derogation of the common law, should be 
strictly complied with." Makins v. Robinson, (1884) 6 0. R. 1. 
But in the Pennsylvania case quoted by Ferguson, J., it is import- 
ant to note that Gibson, C.J., stated in his judgment that the 
Pennsylvania statute, "expressly requires no more than the name 
of the reputed owner, and it might be sufficient to file it (i.e., the 
claim) against the past or present one." 

In 1903 the Supreme Court of Michigan, in a case (Waters v. 
Johnson, 96 N. W. 504) which involved the construction of 
a statute similar in its terms to that construed in Jones 
v. Shawhan, supra, dissented from the construction given in that 



CONSTRUCTION OF MECHANICS' LIEN ACTS. 37 

case, and held that a lien claim which named a person who had 
conveyed the property before the filing of the claim was insufficient, 
and that the claimant could only be relieved from such mistake 
on proof of facts showing that the error was justly chargeable to 
the grantee of the property so as to estop him from taking advan- 
tage of the error. 

Where an owner may be compelled to pay twice by the statute 
such legislation is highly penal and it is but just to construe it 
strictly against such a result. • Eecent decisions in other American 
courts generally adopt the view that Mechanics' Lien Acts must 
be strictly construed with reference to all requirements upon 
which the right to a lien depends. Turnes v. Brenckle, 249 111. 
394. As the mechanics' lien law is contrary to the course of the 
common law, any ambiguity must be resolved against the party 
seeking to enforce a lien under it. Builders' Material Co. v. John- 
son, 158 111. App. 413. Provisions which require an owner to pay 
a debt which he did not contract or which he may have already 
paid to the contractor should be construed strictly against the 
claimant. McNab <& Harlin Mfg. Co. v. Paterson Bldg. Co., 
(1907) 72 1ST. J. Bq. 929. 

But as to the provisions dealing with the enforcement of the 
lien, the legislation in some of the provinces of Canada now re- 
quires only a substantial compliance. Mallett v. Kovar, 14 W. L. 
E. 327; Flack v. Jeffrey, 10 Man. L. E. 514; Poison v. Thomson, 
(1916) 29 D. L. E. 395; Ontario Lime' Association v. Grimwood, 
-(1910) 22 0. L. E. 17, and the prevailing opinion is that while 
claimants must bring themselves strictly within the wording of 
the statute which provides for the creating of the lien, yet when 
a lien attaches, the provisions of the law upon the subject being 
remedial, a liberal construction will be put upon the statute fof 
the purpose of accomplishing its objects. Nobbs v. C. P. B., 
(1913) 6 W. W. E. 759; Coughlan V. National Construction Co., 
(1909) 14 B. O. E. 339; Poison ^.'Thomson, (1916) 26 Man. 
L. E. 410; 29 D. L. E. 395; Lays v. Hurley, (1913) 215 Mass. 582. 



38 THE LAW OF MECHANICS' LIENS IN CANADA. 

It may now be considered as well settled law that the sections 
creating the right to a lien cannot be extended beyond the plain 
sense of their words, although the same rule will not be followed 
when other sections of the Act, dealing with the enforcement of 
the lien, are the subject of construction. There is, indeed, no rule 
of construction applicable uniformly to every provision of such an 
., Act. So far as the provisions which create the right to a lien are 
concerned, a rule of construction as stated by an eminent authority 
might be appropriately invoked: — 

"Statutes which encroach on the rights of the subject, whether 
as regards person or property, are similarly subject to strict con- 
struction." Maxwell on Statutes, 3rd ed., 399. But when the 
other provisions of a Mechanics' lien Act, dealing with the en- 
forcement of the lien, are the subject of construction, a tendency 
to give these sections a broad and benign interpretation is justifi- 
ably shown by the courts in the various Provinces of Canada, and 
there appears a disposition to follow the advice of Lord Mansfield, 
given in connection with another branch of the law, but quoted 
approvingly by a Pennsylvania court, in respect to the construc- 
tion of Mechanics' Lien Acts, to "avoid. entangling the right in 
a net of form." 

In one Ontario case, Meredith, J., stated a canon of construc- 
tion which will probably be followed in the various courts in Can- 
ada. „ Eef erring to the mechanics' lien laws, he said : " These 
essentially remedial Acts are to be given such fair, large and 
liberal construction 1 and interpretation as will best ensure the 
attainment of those objects. Effect should not be given to techni^ 
cal objections founded upon matters which in no way have pre* 
judiced or could prejudice any one. ... It was never in- 
tended that the benefits of the Acts should be frittered away by 
requiring the skill of a special pleader to secure them." Bicloen-, 
ton v.Dahirij (1891) 20 0. R. 702; see also observations of Boyd, 
C, in Crerar v. G. P. B. Co., (1903) 5 0. L. E. 383, 2 0. L. E. 107. 

In the case in question, the owner had purchased, with notice 



CONSTRUCTION OF MECHANICS' LIEN ACTS. 39 

of all the facts, and invoked purely technical grounds in seeking 
to have the property declared to be unaffected by a claim of lien. 

In another Ontario case (Praig v. Cromwell, (1900) 27 0. A. E. 
587), Osier, J.A., in referring to the question of sufficiency of the 
notice in writing required by section 11, sub-section 2, said : — 

"It may be that if the notice were to be read as pleadings, civil 
and criminal, were read fifty years ago, fatal defects might be 
picked out in it. But it is not intended to be the subject of 
subtle criticisms and trifling objections." 

In a Manitoba case, Killam, C.J., after quoting section 17 of 
the Manitoba Mechanics' Lien Act, said: — 

""This latter clause appears divisible into two parts. First, 
only substantial compliance with sections 15 and 16 is required, 
and, secondly, no failure in such compliance, in however sub- 
stantial a degree, is to invalidate the lien unless some party is 
prejudiced, provided there is registration of a claim. I think 
that the onus on the question of prejudice is upon the party ob- 
jecting to the registered claim. The defect is not to invalidate 
the lien, unless in the opinion of the judge there is prejudice to 
some one. That is, the judge must positively form the opinion, 
for which purpose he must have some evidence either direct pr 
arising out of the circumstances and the nature of the defect. In 
the present case there is nothing to suggest that any of the par- 
ties interested saw the registered statement of claim or knew its 
contents or was in any way affected by the error." Robock v. 
Peters, (1900) 13 Man. L. E. 139. 

An observation made by Chancellor Boyd points to an addi- 
tional principle which jhight be adopted in the construction of 
Mechanics' Lien Acts. That eminent judge said : " If you give a 
very latitudinarian interpretation to the definition of 'owner,' it 
is possible to read such a ease as this into the Act, but I am against 
giving such a meaning to the words when the result is to charge 
one man's land for another man's debt." See Graham v. Williams, 
(1S85) 8 O. E. 478. Boisot, after referring to the difficulty of 



40 THE LAW 0? MECHANICS' LIENS IN CANADA. 

harmonizing the conflicting decisions in various States, and point- 
ing out the^ distinction between the "remedial" sections of a 
Mechanics' Lien Act and the ( other portions, propounds a rule 
which is in line with the observation of Boyd, C: "It follows, 
then, that those provisions of .the Mechanics' Lien Statutes which 
make a mail's property liable for his dehts are remedial, and 
should be liberally construed;, while those provisions that make 
his property liable in a case where he is not personally liable, 
create a new right in .derogation of the common law, and should be 
strictly construed." 

In a later Ontario case '(Gearing v. Robinson, (1900) 27 0. A. 
E. 364), Maclennan, J. A., adopts a similar attitude in construing 
the statute, and says : " This may seem a very strict and literal 
construction of the Act, but, if it is, as I think it is, the plain mean- 
ing of the language of the legislature, we must so construe it, and 
I do not think we ought to change 'and' into 'or,' or strain the 
language in order to charge one man's land with another man's 
debt." 

It is but gust to require that an intention to cireate such a 
charge should be plainly and unmistakeably expressed in the 
statute, in language which excludes any other interpretation, but 
after the lien has actually attached, the better opinion seems to 
favor the view that the other provisions of the statute should 
receive a liberal construction. The bbject of a Mechanics' Lien 
Act is to secure and make available as far as possible to those best 
entitled to it the money which the owners have contracted to pay 
and for which they have received value. This legislation was 
not passed for the purpose of making owners pay for things not 
contracted for by them and of which they have not had the bene- 
fit (Brooks Sanford Co. v. Theodore Telier Construction Co., 
(1910) 22 O. L. E. 176), but where a lien is created by the statute 
it should be construed, if possible, so as to make the lien co-exten- 
sive with the benefit, and to avoid defeating the spirit of the 
statute by a too literal adherence to its letter. Ontario Lime 
Association v. Grimwood, (1910) 22 0. L. E. 17. - 



CONSTRUCTION OF MECHANICS' LIEN ACTS.' 41 

In delivering the judgment of the Manitoba Court of Appeal 
in a recent case (Poison v. Thomson (1916) 29 D. L. B.' 395), 
Cameron, J. A., said: "We were urged to give the statute a strict 
construction, particularly in view of the position of the, defendant, 
a mortgagee, whose security may be impaired by priority being 
given to an indebtedness to which he was not a party, and with 
which he had nothing to do. But he might have protected him- 
self, as to advances actually made, by prompt registration. In 
any event, the authorities now seem to indicate that it is for the 
courts to work out, as best they can,, the problems arising under 
the Act by giving effect to its spirit rather than its letter, and it 
is undeniably the intention of the statute to afford protection to 
the men who supply labor and materials." Courts will not favor 
a construction which would render a Mechanics' Lien Act nuga- 
tory in many instances in which the legislature apparently in- 
tended a lien to exist. Ontario Lime Association v. Grimwood, 
(1910) 22 0. L. E. 17. It would be intolerable if persons hon- 
estly entitled to receive money should be" deprived of all chance of 
asserting their rights, by reason of some petty — or even some grave 
slip—in practice ; and especially so in the administration of an Act 
which is so clearly intended to enable the poor man to procure his 
wages, and the supplier of materials to receive pay for his materials 
in a cheap, simple and expeditious manner." Barrington v. Martin, 
(1908) 16 0. L. B. 635, at 640, per Biddell, J. 

In view of the foregoing statements, it appears plain' that 
courts in Canada, once the lien is acquired, will give a liberal 
construction to provisions dealing with procedure and will not be 
disposed to permit mistakes of procedure to defeat the lien or to 
nullify the purposes of the legislation. 

As to questions of practice and procedure under Mechanics' 
Lien Acts, an eminent Ontario judge said: 

"The purpose of the statute is to prevent multiplicity of 
actions for small claims, in which the Costs would be enormously 
out of proportion to and in excess of the sums claimed; and these 



42 THE LAW OF ■ MECHANICS' LIENS IN CANADA. 

provisions, and the whole purpose of the Act, and the proceedings 
of and in the action, are so widely different from the ordinary 
creditor's action that the rules which are applicable to such latter 
actions cannot be held to govern the peculiar statutory remedy of 
these lien holders." McPherson v. Gedge, (1883) 4 0. E. 246. 

It seems now to be recognized by the courts in the various 
provinces of Canada that the practice under the Mechanics' lien 
Acts is sui generis, and is not to-be governed by the established 
practice respecting class actions. iSee observations of Masten, J., in 
Baines v. Curley, (1916) 33 D. L. E. 309. 

There are conflicting decisions throughout the 'United States 
in the construction of Mechanics' Lien Acts, but decisions of 
Massachusetts and New York courts accord substantially with -the 
principles of construction adopted by courts in Canada. '"Although 
when a lien attaches, the provisions of law upon the subject being 
remedial, a liberal construction will be put upon the statute for 
the purpose of accomplishing its objects, yet this applies only to 
liens which have attached. Upon the ; question whether a lien 
attaches, a different rule of construction obtains. Liens are in 
derogation of the common law; they may create an interest in 
land by parol, and that interest may be a secret interest.. The 
court is not authorized to extend the law beyond the causes specific- 
ally provided for. It cannot say that the statute by implication 
includes labor not within its terms." Trash v. Searle (1876) i21 
Mass. 229, per Lord; J. : The statute is remedial and intended to 
protect those who lawfully enhanced the value of land by the ex- 
penditure upon it of material or labor. Shaughnessy v. Isenberg, 
(1912) 213 Mass. 159, 162; Thurston v. Blunt, (1914) 216 Mass. 
264. The rule in New York has been stated to be that the Act 
should not be strictly construed except as to the provisions by 
which the property of a third person may be incumbered. Hub- 
hell v. Schreyer, 14 Abb. Pr. (N.S.) 284. In a leading ease in 
New York, the' question of construction of the New York Lien 
Act was discussed. That Act requires the notice of lien to state 



CONSTRUCTION OF MECHANICS' LIEN ACTS. 43 

when the first item of work was done, and the notice of lien in that 
ease failed to make any such statement, although it complied with 
the other ' provisions of the statute. Section 22 of that Act ex- 
pressly declares that the statute is to be construed liberally. Cul- 
len, J., in delivering the judgment of the court, said : " But under 
the most liberal rule of construction we cannot find anything in 
the notice that even attempts to state when the first item of work 
was done, or anything from which that time might be inferred. 
It is true that the particular advantage or object of requiring this 
fact to be stated is not readily apparent, but the statute has ex- 
pressly required it. Errors in the notice may be disregarded, and 
it is not necessary that the precise verbiage of the law should be 
followed. But the provision of the statute that the law shall be 
construed liberally does not authorize the courts to entirely dis- 
pense with what the statute says the notice shall contain. We are, 
' therefore, constrained to hold the notice of lien insufficient." 
Mahley v. The German Bank, (1903) 174 N. T. App. 499. 

An important New York case serves to illustrate the liberal 
construction of the New York statute respecting mechanics' liens. 
The chapter under which the plaintiff undertook to acquire a lien 
provided that " at any time before the whole work to be performed 
by the contractor for the city is completed or accepted by the city, 
and within thirty days after the same is so completed or accepted, 
any claimant may file notice stating the residence of the claim- 
ant, verified by his oath or affirmation, stating the amount claimed, 
etc." The verification was by an agent of the claimant, stating 
"that he is the agent of the claimant . . . mentioned in the 
foregoing claim, and that the statements therein contained are 
true to: his own knowledge or information and belief." Haight, 
J., said : " It appears to us that this statute should receive a 
liberal construction. Indeed, the general lien law of the State 
provides that it shall be construed liberally, etc. A very large 
proportion of the business of the country is carried on by agents, 
whose principals may have but a slight knowledge of the details of 



44 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

, the work and who may be absent in other parts of the world. 
Agents are generally recognized as possessing the powers of their 
principals in the transaction of their business and in the preserva- 
tion of their properties and rights. In construing the Act in ques- 
tion we think the act of the agent should be deemed to be that of 
the principal, and that it was so contemplated by the legislature." 
McDonald v. Mayor, etc., of New York, (1902) N. Y. App. 409. 
"Adherence to the terms of the statute is indispensable, but 
the rule must not be pushed into such niceties as serve but to per- 
plex and embarrass a remedy intended to be simple and summary, 
without in fact adding anything to the security of the parties hav- 
ing an interest in the building sought "to be encumbered. Certainty 
to a common intent has, therefore, always been held to suffice." 
Waters v. Goldberg, (1908) 124 App. Div. N. Y. 511. 

The Massachusetts Supreme Court has declared its view on this 
question of construction in an instructive ease. The facts were 
that under an entire contract to construct and install in the re- 
spondent's buildings a fire extinguishing system of a specified kind 
for a stated price, a sworn statement was filed in the Eegistry of 
Deeds while the work was going on and about ten days before it 
was completed. It was held that such a statement -filed before the 
work was done or the debt was due did not fulfil the requirements 
of the Act. Under section 1 of the Act in question it is only " a 
person to whom a debt is due " who can file a statement and estab- 
lish a lien. By section 6 he is authorized to file his statement 
within thirty days after he ceased to labor on or furnish labor or 
materials for the building or' structure. Section 7 relieves the 
claimant from any injurious effect of an inaccuracy in stating 
" the amount due for labor or materials " unless he has " wilfully 
and knowingly claimed more than is due to him." 

Knowlton, C.J., said: "We are of opinion that these various 

provision's of the statute do not authorize the filing of a statement 
except where work and labor has been done under such circum- 
stances as to create a debt which is due, and which is payable then 



CONSTRUCTION OF MECHANICS' LIEN ACTS. 45 

or at some future time. This is the construction which has been 
put upon similar statutes by the courts. The cases which seem 
to hold differently are all, or nearly all, under statutes which re- 
quire the filing within a stated time after an event, the happening 
of which has no important relation to any of the facts to be em- 
bodied in the certificate or statement." General Fire Extinguisher 
Co. y. Chaplin, (1903) 183 Mass. 376. 

The judgment concludes by using precisely the same words which 
were used in a Massachusetts case more "than twenty years previously : 
"A lien of this kind can be preserved and enforced only by a strict 
compliance with the requirements of the statute. There are no equi- 
ties to be invoked in aid of it." Gale v. Blaikie, 129 Mass. 206. The 
Supreme Court of the United States has said ; , "Although me- 
chanics' liens are the creation of statute, the legislation, being 
remedial, should be so construed as to effectuate its object." 
Springer Land Association v. Ford, (1897) 168 TJ. S. 513. The 
reason stated by the United States Circuit Court of Appeals, Mis- 
souri, for a liberal construction of statutes which gave liens to 
laborers and materialmen, ig that such men cannot recover back 
their labor or material, and the improvements on which they are 
placed are ordinarily enhanced by their value. Hooven v. Feather- 
stone, (1901) 49 C. C. A. 229. 

The view expressed by the Supreme Court of Illinois on this 
question is that the right to a mechanics' lien is a cumulative 
remedy existing by statute in derogation of the common law, and 
statutes granting such right must be strictly construed. Harvey 
& Mose Plumbing Co. v. Wallace, (1901) 99 111. App. 212, 
affirmed; McPugh Co. v. Wallace, 198 111. 422. And to enforce a 
lien there must be a substantial compliance with the require- 
ments of the lien law. Dunham v. Woodworth, 158 111. App. 486. 
See Godfrey Lum. Co: v. Kline, (1911) 167 Mich. 629. Eemedial 
provisions should be construed liberally and unless a variance is 
palpable and material it will not be deemed fatal. Stepina v. 
Conklin Lumber Co., (1907) 134 111. App. 173. 



46 THE LAW OF MECHANICS' LIENS IN CANADA. 

In Maine the courts favor a liberal construction of the statute. 
Shaw v. Young, 87 Me. 271; Westcott v. Bunker, 83 Me. 499; 
Burling v. Gould, 83 Me; 134. 

i "We must not be hypercritical when scanning the species of 
lien and estimating its sufficiency," etc. Calhoun v. Mahar, 14 
Pa. 56, 58, quoted approvingly in Wilson v.Canevin, (1910) 226 
Pa. 362. But a provision that the lien law shall be construed 
liberally to secure the beneficial interests and purposes thereof, 
does not authorize the court" to dispense entirely with what the 
statute says a notice shall contain. Bradley v. Huber Co., (1911) 
146 App. Div. (K- Y.) 630. 

The policy of the law does not favor forfeitures, and a provision 
in a Mechanics'- Lien Act which invalidates the entire claim if 
the " bill of particulars " shall " wilfully or fraudulently " mis- 
state any of the matters directed to be included therein, is to fee 
construed strictly. Buchanan, v. Emstem, (1914) 87 N. J. L. 307. 

In the Interpretation Acts of various provinces of Canada 
there is a provision which enacts that every chapter of the Eevised 
Statutes shall be deemed remedial and shall be construed liberally, 
unless such construction is inconsistent with, the intent and object 
of the particular Act.. But this is a general rule of construction 
and is necessarily subordinate to particular cases. 

Retrospective and Repealing Acts. 

The question whether a Mechanics' Lien Act is to be construed 
retrospectively so as to apply to past contracts depends primarily 
upon the precise language of the Act. 

The Interpretation Acts of the various provinces often have an 
important bearing on the construction of the Mechanics' Lien 
Acts. A n illustration of the- application of the Interpretation Act 
is afforded by an Ontario case. Walker v. Walton, 1 0. A. R. (Ont.) 
579. The plaintiff registered a lien under the Mechanics' Lien 
Act of 1873, on the 14th of August, 1874, for the price of machin- 
ery furnished on the 12th of the same month. The price was pay- 



CONSTRUCTION OE MECHANICS* LIEN ACTS. 47 

able in instalments, the last of which fell, due on the 4th of May, 
1875. A bill to enforce the lien was filed on the 7th of July, 
1875, being within the 90 days from the expiry of the period of 
credit prescribed by section 4 of the Mechanics' Lien Act of 1873. 
Section 14 of the Mechanics' Lien Act of 1874, which came into 
force on the 21st December, 1875, enacted that "every lien shall 
absolutely cease to exist at the expiration of thirty days after the 
work shall- have been completed or the machinery furnished, unless 
in the meantime proceedings shall have been taken to realize the 
claim under this Act," and section 20 repealed all Acts inconsist- 
ent therewith. Held, jeversing the decree in the preceding case, 
that even if the Act of 1874 repealed the Act of 1873, the plains 
tiff's lien was saved by subsection 4 of section 7 of the Interpreta- 
tion Act, which provides that the "repeal of an Act at any time 
shall not affect any act done or any right or rights of action, exist- 
ing, accruing, accrued or established . . . before the time 
when such repeal shall take effect." 

The repeal of a mechanics' lien law during the progress of the 
work for which a lien is claimed does not cut off the lien claim- 
ant's right for the work already done, where the repealing statute 
re-enacts and continues the lien law, with some changes in mat- 
ters of procedure only. Bear Lake & B. W. W. & I. Co. v. •Gar- 
land, (1896) 164 U.S. 1. 

A Mechanics' Lien Act by one section repealed previous Me- 
chanics' Lien Acts and as it enacted no lien for materials, no such 
lien existed. Albion I. Works v. A. 0. U. W., (1895) 5 B. C E. 
122, note. 

Where a statute is passed changing a law it is generally con- 
strued to apply to the facts coming into existence after the pas- 
sing of the statute. See Irwin v. Benyon, 4 Man. L. E. 10 ; Moore 
V. Protestant Hist., 5 Man. L. E. 49; See v. Kolodny (1917) 227 
Mass. 446. 

Mechanics' lien laws are not construed to have any retrospec- 
tive effect unless such construction is clearly and unmistakeably 



48" THE LAW OF MECHANICS' LIENS IN CANADA. 

" required by the words of the Act. Irwin v. Benyon, 4 Man. L. R. 
10; Horn "Mfg. Co. v. Steelman, 215 Pa. 187; Howard v. American 
Boiler Co., 68 111. App, 566; French v. Hussey, (1893) 159 Mass. 
206; Pierce v. Cabot, 159 Mass. 202; Benton v. Wickwire, (1873) 
54 JST. Y. 229. 

Where a later Act does not expressly repeal the former one, and 
they are not so inconsistent that they cannot stand together, the 
two Acts' are construed together as if parts of a single statute. 
Gilson V. flmery, (1858) 11 Gray (Mass.) 430; Collins v. Drew, 
(1876) 67 N..Y. 149. 

A lien may be acquired under a statute passed before the work 
was done or materials furnished, and although the contract there- 
for was ma.de before such enactment. Donahy v. Clapp, 12 Gush. 
(Mass.) 440; see Bourgette v. Williams, 73 Mich. 208, 216. 

As a general rule, the law in force at the .time the work was 
done or materials furnished) governs (Eidendrath Co. v. Geb- 
hardt, 222 111. 113) ; but the law in force at the time the lien is 
perfected will control proceedings, in enforcing the lien. Kendall 
v. Fader, 190 111. 294. 

Where a Mechanics' Lien Act repealed all Acts inconsistent 
with it, but was to apply only to contracts, thereafter to" be made, 
contracts previously made may be governed by the former Act 
(Connor v. Lewis, 16 Me. 268; see Turney v. Saunders, 5 111. 527), 
but a provision in a Mechanics' *Lien Act which is manifestly in- 
consistent with an antecedent law must prevail. Shilling v. Tem- 
pleton, 66 Ind. 586; Heckman v. Pmkney, 81 .N. Y. 211. Where 
a notice of lien was filed and proceedings commenced prior to a 
law which declared that "liens shall in all cases cease after one 
year, unless by order of court, the lien is continued," the statute 
was not construed retrospectively and it was held that the lien con- 
tinued after the expiration of the year. Fitzpatrick v. Boylan, 57 
N. Y. 433. 

If under a mechanics' lien law, materials had been furnished 
to the owner of the property, the right of lien becomes a vested 



CONSTBUCTION OF MECHANICS" LIEN ACTS. 49 

one, and the repeal of the law will not destroy such a lien.- Hol- 
com v. Boynton, 151 111. 294; Boynton v. Holcom, 49 111. App. 
503. 

The remedy of a repealing statute will be applied to previously 
vested liens if such a remedy is adequate, but if the former law is 
repealed, and no adequate remedy provided by the repealing law, 
the court will enforce vested liens according to the remedy of the 
repealed law. Subject to this exception, the rights of the parties 
are fixed by the law in force when the contract was made,- but 
such rights are to be established and enforced by the law existing 
at the time when the suit was brought. Phillips, sec. 29 ; Ooodbub 
v. Estate of Horning, 127 Ind. 182, 192. A lien which attached 
before the enactment of a statute making absolute the inchoate 
interests of married women is not affected by that legislation, 
though the foreclosure and sale are subsequent thereto. Buser v. 
Shepard, 107 Ind. 418, 419. 

In concluding this chapter it may be observed that the trend of 
judicial decisions is in the direction of liberal construction of this 
legislation, but the real difficulty experienced by the courts is, 
while endeavoring to apply a liberal construction to various provi- 
sions of this legislation, to avoid, at the same time, a construction 
that would compel an owner to pay twice for the same thing. 



CHAPTER IV. 

Peopeett which mat be Subject to Lien. 

In ascertaining the character and extent of property which 
may be subject to a lien, it is necessary first to examine the pro- 
visions of the Mechanics' Lien Acts which 'define the scope of 
the lien. 

Some of the Mechanics' Lien Acts in Canada expressly include 
municipal corporations as within the definition of " owner." 
Where municipal corporations are not expressly included in such 
definition, there are conflicting decisions upon the question 
whether a right to a lien arises in a case where the work has been 
done on a public building, such as a schoolhouse, which is not 
liable to sale in execution. Holmested, at p. 30, refers to a deci- 
sion of Proudfoot, J., in Robb v. Woodstock School Board, in 
which the right of lien was denied because such buildings are 
not liable to sale in execution. In Manitoba it has been held that 
a public school building was not exempt from the operation of the 
mechanics' lien law. Moore v. Protestant School District of 
Bradley, (1897), 5 Man. L. E. 49, distinguishing Scott v. Burgess, 
(1859) 19 U. C. Q. B. 28. The American cases cited in the Mani- 
toba case all adopt the view that public schoolhouses are exempt, 
and subsequent American decisions uphold that view. See City 
of Salem v. Lane, (1900) 90 111. App. 560, affirmed (1901) 6 N. 
E. 37, which decides that the property of a municipal corporation 
cannot be sold to satisfy a mechanics' lien. 

In another Manitoba case (McArthur v. Dewar, 3 Man. L. R. 
72), the test question was stated to be whether such property is 
liable to sale under execution. In Saskatchewan it has been de- 
cided that a schoolhouse may be the subject of a lien. Lee v. 
Broley, (1909) 11 W. L. R. 38, 2 Sask. L. R. 288. 

All the later cases in the other Provinces of Canada hold that 



PROPERTY WHICH MAT BE SUBJECT TO LIEN. 51 

public school buildings and the lands upon which they are erected 
are not exempt from the operation of the Mechanics' lien law. 
Benson v. Smith & Son, (1917) 31 D. L. E. 416; Hazel v. Lund 
(B.C.) 25 D. L. E. 204; Connely v.' Haveloch School Trustees, 
(1912) (KB.) 9 D. L. E. 875; General Contracting Co. v. City 
of Ottawa, 16 0. W. E. 479. The Ontario Mechanics' Lien Act 
and other provincial Acts with corresponding provisions were not 
meant to be applicable to private property only; nor to such pro- 
perty only as is exigible under ordinary writs of execution. But 
in the absence of express statutory provision it would seem, ac- 
cording to some decisions, that the property held by a municipal 
corporation for public purposes is not subject to a mechanics' 
lien. Lessard v. Revere, (1898) 171 Mass. 294; Staples v. Somer- 
ville, (1900) 176 Mass. 237-242. 

The ground of decision in the Massachusetts cases is that the 
buildings are held for a public use, and that it is against public 
policy in the absence of express provision to the contrary, that the 
instrumentalities for carrying on the government should be the 
subject of seizure and sale for debt. See also Young v. Inhabi- 
tants of Falmouth, (1903) 183 Mass. 80, and Goss v. Greenleaf, 
(1904) 98 Me. 436, which cases hold that a building erected as a 
public library is exempt from the operation of a mechanics' lien law, 
the grounds of public policy which exempt such property from 
seizure on execution being equally applicable in respect of me- 
chanics' liens. 

In the absence of express statutory enactment, the same princi- 
ples have been held to apply to any building erected exclusively for 
public purposes. Under an Act to simplify the procedure for 
enforcing mechanics' lien (53 .Vict. ch. 137, Ont.) an application was 
made by a sub-contractor to determine whether the plaintiff was 
entitled to a lien on a building known as " The House of Eefuge," 
and the lands used and enjoyed therewith. This property was 
vested in the corporation of Hamilton, which erected the building 
"for public, beneficial and charitable purposes," and the Master 



:h 



52 THE LAW OF MECHANICS' LIENS IN CANADA. 

held that the said house and lands were, therefore, of such a 
character as not to be liable to sale under execution, and conse- 
quently no lien attached (Guest v. Hahnan, (1895) 15 C. L. T. 61). 

The general principles which should apply in considering this 
question whether a statute creates a mechanics' lien against pro- 
perty held by a municipal corporation are discussed with much 
ability in a New York case {Leonard v. Pity of Brooklyn, (1887) 
71 N. Y. 498), which held that no lien was enforceable against the 
property. 

It should be stated, however, that the. Lien Act construed 
in that case, after providing for instituting and prosecuting the 
hen action, contains this further provision: "That such action 
shall be governed and the judgment thereon enforced in the same 
manner as upon issues joined and judgments rendered in all 
other civil actions aforesaid." It was a natural conclusion, there- 
fore, that the lien claimant was in no better position than an 
• ordinary creditor against the municipal corporation. The judg- 
ment is referred to here because it states in the strongest form 
the reasons against creating a lien upon municipal property or 
recognizing it as created by implication, and in those provinces of 
Canada such as Nova Scotia, the Lien Acts of which contain no ex- 
press reference to municipal corporations, the judgment would be of 
interest, particularly the concluding portion of it, which says: 
" To make such a material alteration the law should be plain, 
explicit and clear, and there is no ground for holding that it was 
the intention of the law makers to confer upon a certain class of 
creditors the right to a lien upon property held for public use by 
a municipal government unless there is an express provision to 
that effect." Land set apart by a city for the erection thereon of 
a building for educational purposes by the trustees of a private 
charitable trust cannot be bound by a mechanics' lien for labor or 
material furnished to the building erected thereon. Taylor Lum- 
ber Co. v. Carnegie Institute, (1909) 225 Pa. 486. 

But in a case decided by the Supreme Court of New Bruns- 



PROPERTY WHICH MAT BE SUBJECT TO LIEN. 53 

wick (Connely v. Haveloch School Trustees, (1912). 9 D. L. E. 
875), Chief Justice Barker said: "The Mechanics' Lien Act was 
passed in the interest of workmen and contractors so as to afford 
them some security by way of a lien on the buildings which had 
been created by their labor. If the principle is, worth anything, it 
is equally valuable in the case of a school building paid for by an 
assessment of the inhabitants of a school district as in the case of 
an individual taxpayer erecting a building for his private pur- 
poses." 

In all probability future legislation in provinces not having 
a provision similar to the Ontario enactment, will adopt such a 
provision in the interests of the workmen and contractors and 
thus deal justly and finally with this question. 

A church, not being public property, is not exempt from the 
operation of a mechanics' lien law. Dewing v. Wilbraham Society, 
(1859) 13 Gray 414; Peaoody v. Lynn Society, (1863) 5 Allen 
Mass.) 540. In Pennsylvania it has been decided that a burial 
ground is not subject to a lien (Beam v. Methodist Episcopal 
Church, 3 Clark (Pa.) 343). Lands of a municipality actually 
required for its use such as fire halls and police stations may be 
exempt on the grounds of public policy and public convenience, 
although some classes of municipal property may be within the 
provisions of the lien law. General Contracting Co. v. Ottawa, 
(1909) 14 0. W. E. 749, 16 0. W. E. 479, 1 0. W. N/911. 

Mechanics' Lien Acts in Canada, specifically give a lien against 
a " wharf." Such terms as " wharf " or " building " are liberally 
construed. A statute giving a lien on wharves " and other struc- 
tures connected therewith " extends to all structures on or con- 
nected with a wharf. Collins v. Drew', (1876) 67 N. Y. 149. The 
word "wharf" as used in two statutes in England, was held to 
include a floating structure carrying cranes for loading and un- 
loading, vessels, and which was moored in the Eiver Thames, 500 
feet from the shore, by chains fastened to piles driven in the bed 
of the river. There was no connection with the shore except by 



Wl,/:; 7 



i 



54 THE LAW OF MECHANICS LIEN'S IN CANADA. 

boats. Ellis v. Cory, [1902] 1 K. B. 38. See also Haddock v. 
Humphrey, [1900] 1 K. B. 609; Zerara/ v. Harrison, [1902] 2 
K. B. 168. A workman is entitled to a lien for work upon the 
part of a sewer extending below watermark into the ocean. Baker 
v. Uplands (1913), 24 W. L. E. 768. 

A minor cannot subject his property to a lien unless, after 
majority, he ratifies the contract. Alvey v. Reed, 115 Ind. 148; 
McOarty v. Carter, 49 111. 53. 

A wife's inchoate right of dower is not subject to a mechanics' 
lien. Gove v. Gather, 23 111. 634; Bishop v. Boyle, 9 Infl. 169, 68 
Am. De,c. 615. 

Eoads laid out by private persons cannot be regarded as public 
highways before dedication. Vannatta v. Uplands Ltd., (1913) 
25 W. L. B. 85. 

Eailwats. 

In dealing with the question whether a railway in any province 
of Canada is subject, to mechanics' liens, two classes of railways 
must be considered: — \ 

(a) Railways constructed and in operation under provincial 
legislation and not declared by the Parliament of Canada to be 
for the general advantage of Canada; 

(6) Railways between two or more provinces or extending 
beyond the limits of a province, and railways declared by Act 
of the Parliament of Canada to be for the general advantage of 
Canada. 

Railways in class (a) are under the legislative jurisdiction of 
the provincial legislature, and it is doubtful whether existing 
legislation in Ontario or other provinces is sufficiently plain and 
explicit to subject such railways to mechanics' liens. 

Under a former Ontario Mechanics' Lien Act it had been 
held that the lands of a railway company were exempt from the 
operation of that Act, the ground of the decision being that it was 
against public policy that railways being essential to the public 



PROPERTY WHICH MAT BE SUBJECT TO LIEN. 55 

use and convenience should be liable to be cut in pieces and sold 
under legal process. King v. Alford, (1885) 9 0. E. 643; 
Breeze v. Midland Railway Co., (1879) 26 Gr. 225. 

Section 6 of the present Act, however, includes " any . . . 
railway." Moreover, sec. 2, sub-sec. (c) includes " any . . . 
railway company " as within the definition of. " owner," and sec. 
17 (3) provides for the sufficiency of the description of lands 
where a lien is registered against the lands of a railway com- 
pany. Nevertheless, it having been judicially declared in con- 
struing 'the former Ontario Act that railways were exempt from 
the operation of that Act on grounds of public policy, any sub- 
sequent legislative intent to reverse that policy should be plainly 
and unmistakeably expressed. The grounds of the decision in 
King v. Alford, 9 O. E. 643, are just as strong now as before the 
amendments to the Mechanics' Lien Act were made, and if pos- 
sible such a construction would be given to these amendments 
as would prevent the operation of a railway from being inter- 
rupted. It may well be argued that these changes only extend 
the mechanics' lien to property of the railway company not 
necessary to the operation of the railway and that the lien can 
only be enforced against such property. It is to be noted also 
that the former Act used the word " person " in the definition 
of owner, and the word " person " under the Interpretation Act 
included corporations P E. S. O. 1887, ch. 1, sec. 8, sub-sec. 13. 

It might also be urged that the term "railways" 'could be 
construed as applicable only to street railways or other railways 
operated exclusively within the registration division. 

It is questionable, therefore, whether the changes in the Act 
have affected materially the law as stated in King v. Alford, supra. 
In another case (Good T. Toronto, JI. & B. Railway Co., (1889) 
26 0. A. E. 133, the lien was upheld, but this point was not raised. 

Boyd, C, referring to the amendment, has said: "But the 
machinery supplied by the Act does not provide for working out 
a sale of the entire undertaking. The remedy seem to be 



56 THE LAW OF MECHANICS' LIENS IN CANADA. 

restricted to that part of the railway where the work was done, and 
if the right of relief to the wage-earner in respect of his lien was 
analogous to that enjoyed by a vendor of land in right of the lien 
for the price, relief might be given and worked out by the court 
under the provisions of the Provincial Act. 

" But we are precluded by the decision in King v. Alford from 
holding that the mechanics' lien is of the legal character with a 
vendor's lien. It was there held that the mechanics' lien was 
operative as a statutory lien arising in process of execution of 
efficiency equal to, but not greater than, that possessed by ordi- 
nary writs of execution. Under a writ of execution against lands 
the sheriff can only sell what is in his bailiwick and this limited 
process is npt applicable to a sale of a line of railroad running 
through many counties of the province." Crawford v. Tilden, 
(1906) 13 0. L. E. 173. 

And after dealing with the question of the competence of a 
province to put the burden upon the lands and property of a 
federal railway undertaking,, he thus refers again to the legisla- 
tive attempt to apply the li'en law to a provincial railway under- 
taking: "I foresee, besides, great difficulty in working out the 
, provisions of the Mechanics' Lien Act as applied even to Ontario 
railways under the existing law, which forbids the disposal of a 
railway piecemeal. To make the local law effective it would 
appear to be requisite to provide for a sale of the particular part 
of> the land benefited by the work in respect of which a lien is 
given. The Act as it stands at present can only be worked out by 
attributing the lien to all the line of railway lands and selling the 
whole as an entire thing while yet the lien is registered only in the 
county where the work had been done." Crawford v. Tilden, 
(1906) 13 0. L. E. 175. 

To apply a Mechanics' Lien Act to a railway which does not 
lie wholly within a registration division, would seem to be unjust 
and inexpedient under the existing Mechanics' Lien Acts in Canada, 
in view of property rights which should be safe-guarded, and for 



PBOPEBTY WHICH MAT BE SUBJECT TO LIEN. 57 

the preservation of which provisions were enacted and made part 
of these Acts. To construe any Mechanics' Lien Act in its pre- 
sent form as giving a workman a right of lien upon railway pro- 
perty outside the boundaries of the registration division where the 
lien claimant's work was done and his lien registered, would 
jeopardize and might seriously injure the legal rights of others, 
and it is but reasonable to declare that legislation which would 
involve such a result should be strictly construed against the lien 
claimant. 

Dealing to some extent with this point, and referring to the 
contention that the lien extended beyond the registration division 
and covered the portion of' the property lying in an adjoining 
county, Mr. Justice Meredith has said: — 

"It was said that the lien might be applied to the whole of 
the road in order that relief might be given to the appellant; but 
that was not the appellant's claim in, nor the judgment at the 
trial of the action. Nor can I think that the enactment relied 
upon would warrant it. Under the 17th section, the lien is to be 
registered in the registry office of the registry division ... in 
which the land is situated. It is hardly likely that the legisla- 
ture intended to give a workman employed upon a railway in the 
county of Huron a lien upon it in the county of Glengarry, for 
instance, with all the difficulties such a right would create, and the 
manifest injustice it: might do to others having better rights in 
that distant county." Crawford v. Tilden, (1907) 14 0. L. E. 
577. 

Eailways in class (&) are under the legislative jurisdiction of 
the Parliament of Canada, and it may be generally stated that the 
provincial legislation affecting such a railway is ultra vires. 
C. P. B. Co. v. Notre Dame de Bonsecours, (1899) A. C. 367; 
Madden v. Nelson & Fort Sheppard R. Co., (1889) A. C. 626; 
Grand Trunk B. Co. v. Therrien, (1900) 30 S. C. E. 485; The 
King v. C. P. R. Co., (1905) 9 €an. C. C. 328. The power of the 
provinces to legislate in respect to property and civil rights is 



\ - 



58 THE LAW OF MECHANICS' LIENS IN CANADA. 

subject to the power of the Parliament of Canada to legislate in 
respect to such railways ; that power of the Parliament of Canada - 
extends to property and civil rights as applied to railways within 
its legislative jurisdiction. Vogel v. Grand Trunk R. Co., (1884) 
10 0. A. E. 102, 11 S. C. E. 613. As the mode of enforcing a 
mechanics' lien is by sale of the property, it seems that such a 
remedy against a Dominion railway could not be given by a pro- 
vincial statute. See Larsen v. Nelson & Fort Sheppard B. Co., 
(1895) 4 B. C. E. 151. 

Since, the foregoing paragraph appeared in the first edition 
. of this treatise, the question has been before the Ontario courts 
for consideration and it has been decided that a mechanics' lien 
cannot be enforced against a railway company incorporated under 
a federal Act and declared thereby to be a company incorporated 
for the general advantage of Canada. Crawford v. Tilden, (1907) 
14 0. L. E. 572. 

Dealing with the important question of the constitutionality 
of • the enactment, Meredith, J., at page 576 of that case, said: 
" But reliance was placed, and mainly, if not entirely, placed, 
upon provincial legislation, which, in plain terms, has given the 
appellant a right of sale such as he seeks, even against a railwaj 
under the exclusive power of Parliament, but with this saving 
clause, 'in so far as the Legislature of this province has authority 
or jurisdiction in regard thereto.' The creation of a right such 
as the appellant alleges, and the enforcement of it in the manner 
sought, are matters which come within the meaning of ' property 
and civil rights in the •province,' subjects which are within the 
exclusive legislative power of the 'provincial legislature; but an 
enactment, under such general power which encroaches upon the 
exercised power of Parliament in respect of any particular subject 
coming under its exclusive jurisdiction, cannot prevail; and the. 
enactment in question distinctly does that; the principle before 
referred to, and the cases decided upon it, show that any exercise 
of private rights which would extinguish, or substantially impair, 



PEOPEBTY WHICH MAT BE SUBJECT TO LIEN. 59 

the public rights and interest in the railway, as a railway, is in 
direct conflict with the federal legislation providing for the build- 
ing and maintenance of the road. The legislation which gave the 
power to sell this railway piecemeal, was, therefore, ultra vires, or 
to speak more accurately, such legislation is rendered inapplicable 
to the railway in question by the restricting clause which I have 
quoted." 

This decision has since been followed in Ontario and Alberta, 
it being held by Appellate Courts in these Provinces that a lien 
claimed under a Mechanics' Lien Act cannot exist or be enforced 
against the property of a Dominion railway company. (Johnson 
& Carey Co. v. Canadian Northern B. W. Co., (1918) 44 0. L. E. 
533; Stiff el v. Corwin & Can. Pac. By. Co., (1911) 1 W. W. R. 
339). 

In view of these recent decisions, this question of the uncon- 
stitutionality of the provisions dealing with railways subject to 
federal jurisdiction may be considered as settled. But it would 
seem that additional provincial legislation is necessary before it 
can be determined with certainty whether railway property of 
class (a) outside the registration division where the lien claim- 
ant's work was done and his lien filed is subject to such lien. 

Maeeied Women's Peopeett. 

As a married woman has now full power to hold and dispose of 
her real estate and to make contracts her property may be subject 
to mechanics' Hens. 

In the absence of statutory provision to the contrary, such as 
section 5 of the Ontario Mechanics' Lien Act, the separate pro- 
perty of a married woman only becomes subject to a mechanics' 
lien by virtue of a contract made by her or under her authority, 
express or implied. The marital relation alone is not sufficient to 
establish the authority of the husband to contract on behalf of his 
wife. A husband has no original or inherent power to act as his 
wife's agent. Beck v. Duncan, (1913) 12 D. L. E. 762; Campbell 



60 THE LAW OF MECHANICS' LIENS IN CANADA. 

v. Jacobson, 145 111. 389 ; Bauer v. Long, 147 Mich. 35 ; Lippman 
v. Low, 69 App. DiV. (N.Y.) 24. Ordinarily there is no pre- 
sumption that the husband is acting as the agent of the wife, the 
question of agency being one of fact to be determined from all the 
circumstances of the case. Wagner v. Jefferson, (1876) 37 U. C. 
Q. B. 551; Jones v. Walker, 83 K Y. 612; Kincaid v. Reid, (1884) 
7 O.K. 12. As to evidence of agency of husband, see Gerry v. 
Howe, 130 Mass. 374; Wheaton y. Trimble, 145 Mass. 345; 
Richards v. John Spry Co., 69 111. 238; Frohlich v. Carroll, 127 
Mich. 561 ; Interstate Bldg. Assoc, v. Ayers, 71 111. App. 529 ; Bevan 
v. Thackera, 143 Pa. 182; Job v. Hunter, 165 Pa. 5. Knowledge by 
the wife that the work was being done on her property, and silent 
acquiescence, would not be sufficient to make her property subject 
to the lien. West v. Sinclair, (1892) 23 C. L. J. 199, 12 C. L. T. 
44 ; Sandford v. Pollock, 105 N". Y. 450. But the Ontario Act now 
contains an express provision dealing with this question. See 
post. The burden is on the contractor or materialman to , show 
that the contract was made or the materials supplied with the 
wife's authority. Little v. Vredenburgh, 16 111. App. 189. 
Where a husband and wife were guilty of collusion to defeat lien 
claimants against the wife's land for materials furnished at the 
husband's instance, the fact that the statement of lien mentioned 
the husband as owner and that a copy of the statement was served 
on him alone will not prevent a lien from attaching. Frohlich v. 
Carroll, 127 Mich. 561. In the absence of knowledge of or par- 
ticipation in a fraudulent intent on the part of the husband to 
improve his wife's property at the expense of his creditors, the 
wife's property is not liable for such improvements. A husband, 
without her authority, cannot create a lien against her separate 
estate even for necessary repairs to the property. Dearie v. Mar- 
tin, 78 Penn. 55 ; Steinman v. Henderson, 94 Penn. 313. But in 
Illinois it has been held that if one who is ignorant of the wife's 
interest, contracts with the husband to build on the wife's land, 
and the wife knowing this, fails to disclose her interest or stop the 



PEOPEKTY WHICH HAY BE SUBJECT TO LIEN. 61 

work, \ she is estopped from setting up her rights against the lien. 
Bruck v.. Bowermaster, 36 111. App. 510 ; Paulsen v. Mamslce, 126 
111. 72. 

In the Ontario Mechanics' Lien Act (see Ontario Mechanics' 
Lien Act, sec. 5), in order to protect contractors and others deal- 
ing with the husband, when the property is the wife's separate 
estate, a section has been inserted which, in effect, provides that 
instead of the claimant being compelled to prove the husband's 
authorization by the wife, he is now conclusively presumed to be 
acting as the agent of his wife, unless the claimant has actual 
notice to the contrary. Under this provision a married woman 
will not be permitted to show that her husband was not author- 
ized by her to make the contract unless she can also show that 
the contractor has actual notice of the absence of such auth- 
ority. A person contracting with the husband without actual 
notice that the husband was not authorized to make the contract, 
may assert a mechanics' lien upon the interest of the wife in the 
property subject to the lien, as well as upon the interest of the 
husband. 

The contract, however, is the contract of the wife; hence, 
where the husband makes one contract for repairs to two houses, 
one belonging to his wife and the other to himself, a lien cannot ' 
be claimed against both properties for an amount due in respect 
to both houses without apportioning the same. Fairclough v. 
Smith, (1901) 13 Man. L. R. 509. 

A husband may assert a lien upon the property of his wife for. 
work or for materials performed or supplied by him. Booth, v. 
Booth, (1902) 3 0. L. E. 294. 

Where a conveyance of land was made to a husband and wife 
each of the grantees is an "owner" and may by contract subject 
his or her estate to a lien for improvements on the land, though 
the other does not join in the contract (Independence Sash, 
Door & ^Lumber Co. v. Bradfield, (1911) 134 S. W. 118), but 
under a contract of the husband alone, a mechanics' lien will not 



62 THE LAW OF MECHANICS' LIENS IN CANADA. 

attach to the estate of the wife under such conveyance. Wash- 
turn v. Burns, 34 N. J. L. 18. 

If the authority of the husband is shown, the lien will not fail 
because the husband has exceeded his authority as to the amount 
of expenditure. Jones v. Pothast, 72 Ind. 158. 

In the absence of express enactment to the contrary, some- 
thing more than mere knowledge that her husband is making the 
improvement, is required to create a lien against the wife's pro- 
perty. Healey Ice Mack. Go. v. Green, (1910) 181 Fed. 890. In 
Illinois it has been held that if with knowledge of the contract, and 
the delivery of materials thereunder, a wife makes no protest 
against the acts of her husband, a lien may be enforced against 
her property with respect to which such contract has been made 
and such materials delivered. McDonald v. Mark, (1909) 147 
111. App.' 434. The conduct of the wife may constitute a recog- 
nition of the husband's authority. Prendergast v. McNally, 76 
111. App. 385; Bevan v. Thackera, 143 Pa. 182. Where a wife 
knew, soon after the excavation was begun, that her husband was 
constructing a building on a lot owned by her, and that shortly 
afterwards she executed a mortgage of the premises, and turned 
the money over to her husband to use in the building, such 
facts were considered to show consent on her part. Lentz v. 
Mmmerman, 119 Wis. 492. If one who is ignorant of the wife's 
interest, contracts with the husband to build on the wife's land 
and the wife acquiesces, she may be estopped from setting up her 
rights against the lien. McCarthy v. Caldwell, 43 Minn. 442. 
See also 'Anderson v. Armstead, 69 111. 453 ; Greenleaf v. Beebe, 
80 111. 522. Where a husband with his wife's permission pur- 
chased lumber to construct a greenhouse on her land and she 
denied any agency on the part of the husband, but there was 
evidence of declaration made by her that she was constructing it, 
a finding that her property was subject to the lien therefor will 
not be ^disturbed. Colt v. Lawrenceburg Lumber Co., (1909) 44 
Ind. App. 122. A husband may have his wife's authority by 



PKOPEETX WHICH MAT BE SUBJECT TO LIEN. 63 

estoppel. Where a wife has by words or conduct held out her 
husband or enabled her husband to hold himself out as having 
authority to act on her behalf she is bound as regards third par- 
ties by the acts of her husband to the same extent as she would 
have been bound if her husband had in fact had the authority 
which he was held out to have. 

But her land will not be subject to a lien unless she authorizes 
her husband, or authority is conferred on him by estoppel. 

Mere occupation of a wife with her husband of the building 1 
erected, does not show ratification on her part. Bust & Owen 
Lumber Co. v. Molt, 60 Neb. 80. 

A husband who, as owner, enters into a contract with a builder, 
cannot subsequently claim that he was acting solely for his wife. 
Sidney v. Morgan, 16 W. L. E. 123. 

As to questions concerning capacity to contract, a person fur- 
nishing labor or material should first ascertain whether the owner 

» 
of the realty is under such a disability as would avoid the- con- 
tract. Alvey v. Reed, 115 Ind. 14.8. Where the husband and wife 
own the property as tenants in common, any notice in writing to 
the owner required by the statute to be served is ineffectual if 
served upon the husband alone. Webber Lumber Co. v. Erickson, 
(1913) 216 Mass. 81. 

Various facts from which the husband's agency may be inferred 
are considered in an exhaustive note by Mr. C. B. Labatt in Vol. 52, 
D. L. B. at p. 213. 

PlXTUEES. 

As the statutory lien is primarily intended to affect realty, a 
question of importance which often arises is whether materials 
which have been furnished have become structurally and per- 
manently a part of the realty. Under a Mechancis' Lien Act the 
lien created for materials furnished is not upon the specific ma- 
terials furnished, but upon the building and land to which these 
materials become so attached as to be a part of the realty. 



64 THE LAW, OF MECHANICS'" LIENS IN CANADA. 

The question whether materials so furnished constitute "fix- 
tures " is a> question of law and fact. A large number of citations 
are mentioned by Armour, CJ., in Argles v. McMath, (1895) 26 
0. B. 224, affirmed, 23 0. A. E. 44. See also the judgment of 
Sedgewick, J., in Warner v. Don, (1896) 26 S. C. E. 388; Stack 
y. T. Eaton Co., (1902) 4 0. L. E. 335; Garing v. Hunt, (1895) 
27 0. E. 149; Goldie, MoCulloch Co. v. Hewson, (1901) 35 N. B. 
E. 349; Scottish-American Investment Go. v. Sexton, (1894) 26 
0. E. 77; Canadian Bank of Commerce v. Lewis, (1907) 12 B. C. 
E. 398; Seeley v. Caldwell; (1908) 18 0. L. E. 472; Imperial 
Brewers Ltd. v. Gelin, (1908) 18 Man. L. E. 284. Electric light 
fixtures and an electric light sign on the outside of the building, 
put up by the tenant, were considered not to have become part of 
the realty, but to be chattels removable by the tenant. Rohls & 
Co. v. MacLean, (1913) 25 W. L. E. 358"; 13 D. L. E. 519. 

It is the general rule that furnaces, ranges arid heaters with 
their necessary attachments, annexed to a dwelling as permanent 
parts of it in the course of its construction for purposes of sale or 
rent, which fixtures are regarded by builders generally as essential 
parts of that class of houses, entitle the materialmen to a lien 
therefor. A portable furnace and portable cooking stove resting 
on a cemented floor and attached tp the realty only by pipes run- 
ning to the chimney flues are fixtures where they were installed 
by the owner of the house with the intention of making them a 
part of it, and the vendor of such heating apparatus is entitled to 
a mechanics' lien therefor as against a mortgagee of the, realty. 
. Erdman v. Moore, (1896) 58 N". J. L. 445; Armstrong Cork Co. 
V. Merchants' Refrigerating Co., (1910) 184 Fed. 199. There 
can be a mechanics' lien for only such work as constitutes a per- 
manent improvement to the building, or for articles furnished 
which might be considered permanent fixtures. The Fehr Con- 
struction Co. v. Postl, (1915) 189 111. App. 519. Intention is really 
the dominating test. Dominion Trust Co. v. Mutual Life Assce. 
Co., (1918) 26 B. C. E. 237, 43 D. L. E. 184. The position of the 



PROPERTY WHICH MAY BE SUBJECT TO LIEN. 65 

rival claimants is also an important consideration. See Kokomo 
Investment Co. v. Dominion Harvester Co., (1918) 43 D. L. E. at 
p. 205 (Alta.). 

In determining whether materials have become fixtures the 
test is whether it was intended that the materials furnished 
should form part of the realty, and whether there is, in fact, 
structural connection with the building. E. R. Darlington Lum- 
ber Company v. Burton, (1910) 156 111. App. 82. "Ordinarily 
there must exist some sort of annexation of the machine or 
machinery in order to make it part of the realty; not necessarily 
physical annexation, but an actual or constructive annexation that 
shews adaptability, purpose and intention to permanently use the 
article in connection with the freehold." Bronson on Fixtures, p. 
249. The rule in Illinois for determining what constitutes a fix- 
ture is, 1st, Eeal or constructive annexation of the thing in ques- 
tion, to the realty. 2nd, Appropriation or adaptation to the use or 
purpose of that part of the realty with which it is connected, and 
3rd, the intention of the party making the annexation to make it 
a permanent accession to the freehold,— this intention being in- 
ferred from the nature of the article affixed, the relation and situa- 
tion of the party making the annexation and the policy of the law 
in relation thereto, the structure and mode of the annexation and 
purpose or use for which the annexation has been made. Schme- 
ling v. Rockford Am. Co., (1910) 154 111. App. 308. A recent and 
instructive Canadian case deals with this difficult question as to 
what constitutes " fixtures." See Royal Bank of Canada v. Cough- 
Ian, (1920) 2 W. W. E. 356. 

When is a chattel so affixed to the structure as to be part 
of it and, therefore, to subject it to the lien upon realty? The 
test question as applied by the Massachusetts Courts is, — What 
would pass as between vendor and vendee? Scannell v. Hub 
Brewing Co., (1901) 118 Mass. 288. Asbestos and magnesia 
covering placed around steam piping and in a distillery, intended 



66 THE LAW OF MECHANICS' LIENS IN CANADA. 

as a permanent covering for the metal, may be found to be fur- 
nished in the erection of a building, within the meaning of a 
Mechanics' Lien Act. "Although it was possible to remove it, the 
removal would greatly injure it, and it was procured to be re- 
tained as long as the pipes remained." Angler v. Bay State, 
(1901) 178 Mass. 163, per Knowlton, J. Mirror frames annexed 
to a house at the time it is built, and fitted into gaps left for that 
purpose in the walls, are fixtures for which a mechanics' lien may 
be maintained. Ward v. Kilpatrick, (1881) 85 N. Y. 417. See 
also Union Stove Works v. Klingman, 20 App. Div. 449, affirmed, 
(1900). 

It was held, in Scannell v. Hub Brewing Co., (1901) 118 Mass. 
288, that a mechanics' lien upon realty may be established for labor 
performed in making in an entire contract for a round sum the 
apparatus and appliances for a brewery, to be inserted in the 
building and connected together by pipes, although part of the 
labor was performed in the lien claimant's shop in another city, 
and the final connecting of the various appliances by pipes in the 
brewery may have been done by persons other than the lien claim- 
ant. Holmes, C.J., in referring to the question whether the labor 
f urnished was performed in the erection of a building, said : " They 
were built up in the building and could not be got at except by 
taking them to pieces, which would seem from the testimony of 
the respondent's witnesses, to be commercially impracticable. If 
any object was more movable than the others, it none the less was 
an integral part of one original whole, which, as a whole, was a 
building and real estate." 

Gas and electrical fixtures furnished to the owner of a house 
but not permanently annexed to the building are not treated as an 
" improvement " upon the realty which would subject the realty 
to a lien. As a tenant would be entitled to remove them and as 
they would not pass as between vendor and vendee or mortgagor 
and mortgagee they cannot be said to be furnished for the perman- 
ent improvement of the realty. Campbell v. John Taylor Co., 62 



PROPERTY WHICH MAY BE SUBJECT TO LIEN. 67 

N. J. Eq. 30 ; Hanson v. News Pub. Co., 97 Me. 99 ; Caldwell v. 
Glazier, (1910) 138 App. Div. 1ST. Y. 826. But double cases with 
shelves, a platform, lockers, etc., in a building designed for a pub- 
lie library,, fastened to the rooms by nails, screws, etc., and with- 
out which equipment the building could not be used for library 
purposes are an "improvement" protected by a lien: Rierser v. 
Commeau, 129 App. Div. (NY.) 490, 198 N. Y. 560. 

If the owner of the fee in a lease authorizes the making of 
improvements, the fee is subject to a lien in so far as the improve- 
ments are permanent in. character and inure to the benefit of the 
owner, but in so far as such improvements are temporary and 
subject to removal by the lessee a lien should not be awarded as 
against the fee. Turner v. Wentworth, (1876) 119 Mass. 459. 
For cases dealing with the rights of sellers of fixtures as against 
holders of mechanics' liens, see British Euling Cases, vol. 1, pp. 
6, 673 and 98. 

One who furnishes and installs second-hand machinery in a 
vacant building which the owner purchased for the express pur- 
pose of equipping as a factory for his own use, is entitled to a 
mechanics' lien, even though no extensive alteration was made for 
its instalment and it was merely fastened to joists by screws so as 
to be removable without injury to the building. Griffin v. Ernst, 
(1908) 124 App. Div. (N.Y.) 289. Where a chattel mortgage is 
given on personal property, which afterwards becomes a perman- 
ent part of the real estate, a mechancis' lien attaching to the real 
estate will have priority over the chattel mortgage. Currier v. 
Cumming's, 40 1ST. J. Eq. 145. 

In the- absence of express stipulation to the contrary a mort- 
gagor in possession has the right to permit trade fixtures to be put 
up and removed from the mortgaged premises provided they are 
removed before the mortgagee takes possession. Credit Fonder 
Franco Canadien v. Lindsay-Walker Company, (1919) 2 W. W. E. 
385. 

If fixtures are subsequently severed the lien continues on the 



68 THE LAW OP MECHANICS' LIENS IN CANADA.' 

land, itself. Chicago Smokeless Gas Fuel Co. v. Lyman, 62 111. 
App. 538. 

Where the title to furnaces sold is retained by a "vendor until 
the payment of the price, the rights of such parties, in Ontario, 
are governed by section 9 of the Conditional Sales Act, E. S. 0. 
1914, c. 136, and such vendor cannot rant as a lienholder under 
the provisions of the Mechanics' and "Wage-earners' Lien Act. Hill 
v. Storey, 25 D. L. E. 247, 34 0. L. E. 489. But, in the absence of 
special legislation affecting the question, one who erects a fire 
sprinkler system under an agreement ^whereby the equipment is 
merely leased to the owner of the premises with a right to purchase, 
reserving the title and ownership thereto until paid in the lessor, is 
not precluded from claiming the statutory mechanics' lien against 
the premises of which the erection has been made part. U. S. Con- 
struction Co. v. Rat Portage Lumber Co., 25 Man. L. E. 793. 

A lien claimed by a partnership stands in no different position 
from any other lien by reason of " the owner " being a member of 
the partnership. Ross v. Gorman, 1 Alta. L. E. 516, 9 W. L. E. 
319. / 



CHAPTER V. 

Who mat Acquire a Lien. 

The underlying principle of Mechanics' Lien Acts in Canada 
is that persons who benefit realty by furnishing for it labor, ser- 
vice or, materials should be entitled to a preferred claim upon the 
realty. Priority is given to the claims of such persons not be- 
cause they are " mechanics," but because of the character of the 
work done, the service performed, or the materials supplied. The 
lien claimant must of course bring himself within the provisions 
of the statute creating the lien, but the tendency of the legislation 
on this subject is to include all who by furnishing work, service 
or materials are justly entitled to be so secured, and therefore the 
statute is not exclusively for the benefit of mechanics but is ex- 
pressly extended to " any person " who thus furnishes work, ser- 
vice or materials. 

It is immaterial where the work was done, so long as it is done 
under the contract in the erection of the building and its result 
goes into the building. The work of the contractor and of the 
sub-contractor, the supplies of the materialman, and the labor of 
the wage-earner, the services of the superintendent of construc- 
tion and of the architect are all essential to the erection of the 
structure, and contribute to its increased value, and each o'f these 
classes therefore should be entitled to a lien on the structure. 

The word " work " used in Mechanics' Lien Acts in Canada, is, 
at least, as broad in its meaning as the word " labor " which is 
used in the Massachusetts Act, under which it was held that super- 
intendence is labor though it involves little physical effort. Mitchell 
v. Packard, (1897) 168 Mass. 467. Under the Alberta Act it has 
been held that a superintendent of construction is entitled to a 
lien. Scratch v. Anderson, (1911) 16 W. L. R. 145. 

Ontario and the other Lien Acts in Canada use also the word 



70 THE LAW OF MECHANICS' LIENS IN CANADA.' 

"service," which is even more comprehensive than "work." But 
legal or other services rendered in acquiring rights of way do not 
constitute services within the meaning of a lien law. Richmond 
& Irvine Construction Co. v. Richmond Ry. Co., (1895) 31 U. S. 
App. 704, 34 L. E. A. 625. . 

An old decision in Ontario (Arnoldi v. Gouin, (1876) 22 
Grant 314) held that an architect is entitled to a lien for drawing 
plans arid specifications and superintending the erection of a build- 
ing. In that case no distinction was raised by counsel between 
the right to charge for superintendence and the right to charge 
for drawing the plans. An architect's right to a lien for drawing 
plans and specifications has been denied in several American courts. 
In a Massachusetts case {Mitchell v. Packard (1897) 168 Mass. 
467^, the court held that while a -lien could be maintained by an 
architect for labor performed by him in the supervision of the erec- 
tion of a building, he was not entitled to a lien for the. preparation 
of plans and specifications therefor. 

'Similar decisions have been given by courts in Pennsylvania, 
Missouri, Kentucky and Maine. ' In New York, apparently the 
only cases upon the question are where the architect acted in both 
capacities, although in deciding that he is entitled to a lien he is 
sometimes referred to as a supervisory architect. See Stryher v. 
Cassidy, (1879) 76 N. Y. 50. Under the British Columbia 
Mechanics' Lien Act (R. S. B. €., 1911, ch. 154) there is, no lien 
in respect of the cost of preparing for work to be done upon a site, 
although such work has been frustrated without fault of the con- 
tractor. British Columbia Granitoid Co. v. Dominion Shipbuild- 
ing Co., (1918) 2 W. W. B. 919. In some American cases stress 
seems to be laid upon the circumstance that the work of drawing 
plans and preparing specifications is essentially professional work, 
and therefore not within the scope of a' mechanics' lien statute. 
But a great deal depends upon the precise words of the statute, 
and the lien Acts existing in Canada seem broad enough in their 
terms to include " work " or " service " rendered by an architect 



WHO MAY ACQUIRE A LIEN. 71 

in drawing the plans for the building. The preparation of the 
plans and specifications appears to be regarded under some Ameri- 
can decisions as merely preliminary to the construction of a build- 
ing and in effect to be too remote to be treated as work used in the 
erection of the building. The wording of the Mechanics' Lien 
Acts in Massachusetts and in various other States undoubtedly 
warrants ■ such a view, but the lien Acts existing in Canada are 
much wider in their scope. Under them a lien is given not only 
for " work " but for " service " and such work or service may be 
not only " upon " but " in respect of " a building, etc., so that the 
Acts are broad enough to not only cover the manual labor of the 
workman, but the professional services of the architect. The ser- 
vices rendered by an architect in drawing the plans and preparing 
the specifications are not any more remote than the services of the 
blacksmith who sharpens the tools .which other workmen use in a 
mine, and under a decision in Ontario a blacksmith was held en- 
titled to a lien for such work. See Davis v. Crown Point M. Co., 
(1901) 3 0. L. E. 69 ; Bradshaw v. Saucerman, (1912) 4 D. L. R. 
476; Brunswick Balke Collender Co. v. Bacette, (1916) 49 Que. 
S. C. 50. 

The words of the Ontario Act, section 6, which give a lien to 
" any person who performs any work or service upon or in respect of 
. . . the . . . erecting . . of any . . . build- 

ing . . . for any owner, contractor- or sub-contractor . . . 
a lien for the price of such work, service or materials upon the 
. . . building . . . and the land occupied thereby or en- 
joyed therewith, or upon or in respect of which such work or ser- 
vice is performed," are wide enough to include the architect who 
was employed by the owner, in regard to his work and services, as 
well upon the plans and specifications upon which the building 
was erected as for his work and services in superintending and 
directing the actual construction of it in accordance with them. 
The work of an architect, particularly in regard to large struc- 
tures, is generally necessary and advantageous work done in erect-' 



72 THE LAW OF MECHANICS' LIENS IN CANADA. 

ing the structure. Notwithstanding a decision to the contrary in 
relation to a similar provision in the British Columbia Act, Fripp 
v. Clark, (1913) 14 D. L. E. 918 (B.'C), it would seem that an 
architect is entitled to a lien for such services which are performed 
in "erecting" the building. Bead v. Whitney, (1919) 48 D. L. 
B. 309. As to assignment of Iris claim by the architect, see Sichler 
v. Spencer_, (1911) 17 B. C. R. 41, 19 W. L. E. 557. The claim 
of an under-arehitect, or assistant architect, would stand in a dif- 
ferent position, and if he be entitled to a lien, it would be on an- 
other ground. His work would be performed for the architect, a 
person who from the wording of the Act would be entitled to be 
considered a " contractor," which word in the Act includes a per- 
son employed by or contracting with the owner " for the doing of 
work or service . . . for any of the purposes mentioned in 
this Act." 

It has been held that where a statute gave a lien for " work 
or labor upon ... a building,"' the services of an architect 
in the preparation of plans and in superintendence were within 
the statute. Hughes v. Torgerson, (1892) 16 L. E. A. 600; 
Mutual Ins. Co. v. Rowland, (1875) 26 N. J. Eq. 389. It seems 
reasonable to conclude that within the meaning of Mechanics' Lien 
Acts in Canada superintendence is " work." Scratch v. Anderson, 
33 D. L. E. 620; 11 Alta. L. R. 55, (1917) 1 W. W. E. 1340. 
" The work of superintendence is as much service upon a building 
as carrying bricks to the bricklayers. Bead y. Whitney, (1919) 
48 D. L. E. 309. But there would be no lien for plans and specifi- 
cations prepared but not used, or for solicitors' costs for drawing 
contracts respecting the building, or advising as to legal points 
arising out of it. 

As to the actual ownership of the plans and specifications, it 
has been decided in England that the plans and specifications are 
not the property of the architect, but belong to the owner of the 
building. Gibbon v. Pease (1905) 1 K. B. 810. But the architect 
has a lien on them and need not deliver them until he is paid^ 



WHO MAY ACQUIBE A LIEX. 73 

Hughes v. Lenney, ( 1839 ) 5 M. <& W. 183. See chapter, Liens on 
Personalty, posh 

Where a' claimant from the nature of the property cannot have 
a lien, he cannot have his personal claim tried by the special tribunal 
provided for trials of cases of liens. Johnson & Carey Co. v. C. N. 
B. W. Co., (1918) 44 0. L. B. 538. 

Lien of Contractor. 

To entitle the contractor to a lien there must be something in 
the nature of direct dealing between the contractor and the person 
whose estate is sought to be charged. Eddy Co. v. Chamberlain 
and Landry, 37 D. L. K. 711 (N.B.). The foundation of the right 
to a mechanics' lien is a valid contract with the " owner " of the 
lot of land to be improved or with his agent. Although the' lien is 
not created by the contract of the parties but by the statute, never- 
theless 'something in the nature of direct dealing between the 
contractor and the " owner " is essential. Bittenhouse v. Warren 
Co., (1914) 264 111. 619. The special provisions of the particular 
Lien Act must, however, govern. In an action to enforce a lien 
' under the British Columbia Mechanics' Lien Act in a case where 
the owner of the property did not contract for , the work or im- 
provements it is incumbent upon the lien claimant to shew that 
the owner had knowledge of such work or improvements. Baker & 
Ellicott v. Williams, (1916) 23 B. C. B. 124. But it has been 
held in proceedings under the New Brunswick Act that to create 
a lien against the interest of an " owner," for work done and 
materials furnished with his " privity and consent," there must 
be something in the nature of a direct dealing between the con- 
tractor and the owner or person whose estate is to be charged, — 
when the latter merely has knowledge that the work is being done 
or materials furnished, and silently assents thereto, and benefits 
thereby, a lien is not thereby created against his interest. Eddy Co. 
v. Chamberlain and Landry, (1917) 37 D. L. B. 711 (X.B.). 



74 THE LAW OF MECHANICS' LIENS IN CANADA. 

Mere knowledge of the owner that the work is being done or 
materials are being furnished will not suffice to create a lien against 
his interest. Isitt v. Merritt Collieries, (1920) 1 W. W. E. 
879. The contractor to succeed must have been employed by 
some one having an interest in' the land. The person with whom 
the contract was made must be an " owner." Gearing v. Robin- 
son, (1900) 27 0. A. R. 364. See Webb v. Gage, (1902) -1 O. W. 
R. 327; Flack v. Jeffrey, (1895) 10 Man. L. R. 514; Blight v. Ray, 
(1893) 23 O. R. 415; Graham v. Williams, (1884) 8 0. R. 478; 
9 0. R. 458; Garing v. Hunt, (1895) 27 0. R. 149; Bickerton v. 
Dakin, 20 0. R. 192, 695. The owners of four lots executed an 
agreement to sell them to one Irving, who was to make a cash 
deposit and undertake to build four houses on the lots, the ven- 
dors to advance $6,400 for building purposes. On completion of 
the houses and on receipt of the balance of price and amount of 
advances the vendors were to execute a deed of the lots. Irving 
gave contracts for the building which was partly completed, and 
$3,400 was advanced by the vendors when Irving became insol- 
vent, and the vendors under the terms of their agreement gave 
notice of forfeiture and took possession of the property. Prior to 
this, liens had been filed for labor and materials supplied and the 
lienholders brought action for enforcement thereof against the 
vendors. It was held that the vendors were not " owners " of the 
property, and therefore were not liable to pay for the labor and 
materials supplied for the building of the houses by Irving. Mar- 
shall Brick Co. v. York Farmers Colonization Co., (1916) 54 
Can. S. C. R. 569. Anglin, J., in this case, expressed the opinion 
that to make the vendors " owners " because the work was done 
with their privity and consent, a direct dealing between them and 
the materialmen was requisite: 

Priority of registration must prevail, in the absence of actual 
notice. Cook v. Koldoffsy, 28 D. L. R. 346, 35 O. L. R. 555. Mere 
knowledge that building was going on upon the land does not 
amount to actual notice. Sterling Lumber Co. v.' Jones, (1916) 



WHO MAY ACQUIRE A LIEN. 75 

29 D. L. E. 288. In this case a purchaser of an unfinished build- 
ing, whose deed was registered prior to the registration of any 
mechanics' liens without actual notice thereof, thereby acquired a 
priority and took the property free of the liens. The purchaser 
cannot be deemed an owner within the meaning of the provision 
in the Mechanics' Lien Act which depends upon privity, consent 
or benefit, in order to charge the land with the liens. See also 
Cut-Rate Plate Glass Co. v. SolodinsM, 25 D. L. B. 533, Orr v. 
Robertson, 23 D. L. E. 17. 

An explicit statement in the contract that he will assert no 
lien (Brydon v. Lutes, 9 Man. L. E. 463), or that the building 
shall be delivered from liens, or that all persons shall' be paid by 
cheque of the contractor, will bind the contractor. Ritchie V. 
Grundy, 7 Man. L. E. 532. It is not essential to the attaching 
of a lien that the labor for which a lien is claimed should be per- 
formed at the site of the building upon which the lien is claimed. 
Daley v. Legate, 169 Mass. 257; Munroe v. Clark, (1911) 107 Me. 
134. The work may be done in another city than that where the 
building is erected, the real question being whether the work done 
was intended for and went into the structure and was such as to 
be within the contemplation - of the contracting parties. Scannell 
v. Hub Brewing Co., (1901) 178 Mass. 288. In this case part of 
the labor upon the apparatus- for a brewery situate in Boston was 
performed in the lien claimant's shop in Lowell, and the final con- 
necting of the various appliances by pipes in the brewery may have 
been done by persons other than the lien claimant, nevertheless 
the lien was held to exist. Holmes, C.J., bases the judgment of 
the court on this point on the ground that the labor at Lowell was 
contemplated by the contract. But where the work was merely 
sawing and planing lumber in the lien claimant's mill at the re- 
quest of one who was erecting the buildings, there being no agree- 
ment that the lumber should be appropriated to said buildings, no 
lien attached to the buildings although the lumber was used upon 
them. Bennet v. Shachford, (1865) 11 Allen (Mass.) 444. 



76 x THE LAW OF MECHANICS' LIENS IN CANADA. 

The contractor is not entitled to a lien merely because he has 
performed work or service ; such work or service must be performed 
under a contract. If, therefore, a contractor is wrongfully dis- 
missed or is wrongfully prevented by the owner from fully per- 
forming his contract he has no lien for damages caused thereby, 
although he has a right of action for such damages. In like 
manner, if the contract is rescinded, the contractor cannot claim 
a lien for work done afterwards, nor can he recover unless he 
shews that the person with whom he made the contract had some 
interest in the land. Beveridge v. Hawes, (1903) 2 0. W. R. 619; 
Gearing v. Eolinson, (1900) 27 0. A. R. 364; Webb v. Gage, 
(1902) 1 0. W. R. V 327; Stevens v. Lincoln, (1874) 114 Mass. 476. 
If a contract provides that no payment shall be due until the work 
has been satisfactorily completed, a claim for extras, made under 
the contract, will not be exigible prior to the completion of the 
main contract. Royal Electric Co. v. City of Three Rivers, (1894) 
23 Can. ,S. C. R. 289), but where after a portion of the work is done 
the contract is abandoned by consent (Powers v. Hogan, 12 Daly 
(N. Y.) 444, or where the owner orders the contractor to stop work 
on 'the building and the contractor agrees to do so, there is no aban- 
donment or discontinuance of the work as these words are used in 
a Mechanics' Lien Act. ' (Abhari v. Grassie, (1914) 262 111. 636. 
Where the contract is improperly terminated by the owner (Fuller 
v. Beach, (1912) 21 W. L. R. (B.C.)), the lien may be enforced 
upon a quantum meruit. Where a tender for the erection of a build- 
ing is made and accepted to deceive the other tenderers, but without 
the intention on the part of either owner or contractor that the 
amount stated in the tender should be the contract price, the con- 
tractor is entitled to recover on a quantum meruit. Degagne v. 
Chave, (1895) 2 Terr. L. R. 210. 

In the event of the failure of the owner to comply with his 
part of the contract the statute does not give a contractor a lien 
for the whole amount of his contract, nor for the entire amount 
of his damages against the owner because of a breach of the con- 



WHO MAY ACQUIHE A LIEN. < 7 

tract, but simply for the value of what has been done. Marsh v. 
Mich, (1911) 159 111. App. 399. The completion of a building 
contract is a condition precedent to the contractor's right to re- 
cover, unless the contract provides otherwise, or unless there has 
been a waiver of such condition by the other party, or an interfer- 
ence preventing the completion of the contract. Dixon v. Ross, 
(1912) 1 D. L. B. 17. See Elford v. Thompson, (1913) 1 D. L. E. 
1. Any substantial variation from the contract must be waived or 
assented to by the "owner" as otherwise the contract must be ad- 
hered to. Clayton v. McOonnell, (1877) 14 0. E. 608, 15 0. A. E. 
560. In this case the owner said to the contractor, " If you won't 
go on with your work, go away/' and it was held that this did not 
amount to a rescinding of the building agreement. 

The onus is on the plaintiff to show that the non-performance of' 
an essential term of an entire contract was not due to his own de- 
fault and if he fails to discharge that onus he cannot recover any 
part of his claim. Vigers v. Cook, (1919) 88 L. J. K.' B. 1132. 

The lien of a contractor attaches when he has completed his 
contract, but if the contract provides for interim payments, a lien 
attaches when each payment becomes due to the extent of the 
amount thereof. Braden v. Brown, (1917) 24 B. C. E. 374. 

The contractor cannot recover unless he complies with any 
term of the contract which is made a condition precedent to pay- 
ment, such as the procuring of an engineer's, architect's or sur- 
veyor's certificate. Starr v. The Queen, (1887) 1 Ex. C. E. 301; 
The Queen v. Starr, (1889) 17 Can. S. C. E. 579; Murray v. The 
Queen, (1896) 26 Can. S. C. E. 203; Goodwin r. The Queen, 
(1897) 28 Can. S. C. E. 273; Sorette v. N., S. Development Co., 
(1889) 31 X. S. E. 427; Leroy v. Smith, (1900) 8 B. C. E. 293. 
See Wallace Bell Co. v. Moose Jaw, 3 D. L. E. 273, 4 D. L. E. 438 
(Sask.). See also annotations to Chambers v. Goldthorpe, 4 Brit. 
E. C. 833. 

As to engineers exceeding their powers in determining certain 
points in dispute, see Peters v. Quebec Harbor Commrs. (1891) 19 



78 THE LAW OF MECHANICS' LIENS IN CANADA. 

Can. S. C. B.-685. See also Watts v. McLeay, (1911) 19 W. L. K. 
916 (Alta.) ; Alslip v. Robinson, (1911) 18 W. L. E. 39; Merriam 
v. Public Parks Board of Portage la Prairie, (1911) 18 W. L. E. 
151, affirmed, (1912) 20 W. L. E. 603 (Man.) ; Donaldson v. Col- 
lins, (1912) 21 W. L. E. 56 (>Sask.). 

The contractor is bound in the absence of fraud or undue in- 
fluence or mistake, by the certificate of the engineer or architect, 
and cannot dispute the same. Canty v. Clarke, (1879) 44 IT. C. E. 
505; see Robins v. Goddard, (1905) 1 K. B. 294; Smith v. Gordon, 
(1880) 30 U. C. 'C. P. 553; Guelph Paving Co. v. Town of Brock- 
ville, (1905) 5 0. W. E. 626. As to effect of undue influence of 
architect,- see Alberta Building Co. v. Calgary, (1911) 16 W. L. E. 
443. A provision that an architect's certificate shall not be set aside 
for any suggestion of fraud is not void as contrary to public policy. 
TuIUsy. Jackson, (1892) 67 L. T. 840. But the rule that a con- 
tractor is bound by the terms of a contract making the employer's 
engineer the interpreter of the contract and the arbiter of all dis- 
putes arising under it, does not extend to a case where the named 
engineer, while in fact the engineer of the employer, is described 
in the contract as and believed, by the contractor to be the engineer 
of a third person. Good v. Toronto, H. & B. Ry., (1899) 26 O. A. 
E. 133, affirmed, 30 S. C. E. 114, sub. nom. Dominion Construction 
Co. v. Good. As to effect of non-disclosure of family relationship 
and financial connections between the superintendent of work, who 
was to furnish the certificate, and the defendant, see Ludlam v. 
Wilson, (1901) 37 C. L. J. 819. As to conflict between interest 
and duty, see Law v. City of Toronto, (1919) 47 O. L. E. 251. An 
arbitrator should not be allowed to act if he necessarily occupy at 
once the position of judge and witness. Bristol Corporation v. Aird, 
(1913) A. C. 241; Hickman & Co. v. Roberts, (1913) A. C. 229. 

There are several decisions by Massachusetts courts (see Butter- 
field v. Byron, (1891) 153 Mass. 517 ;• Angus v. Scully, (1900) 176 
Mass. 357), which hold that where performance of the contract was 
prevented by destruction of the subject-matter, a contractor may 



WHO MAY ACQUIKE A LIEN". 79 

recover for partial performance, but Canadian and English deci- 
sions are opposed to this view of the law. The Canadian law is 
aptly illustrated by an Ontario case which deals fully with the 
question. King et al. v. Low et al., (1901) 3 0. L E. 234, follow- 
ing Appleby v. Meyers, (1867) L. E. 2 C. P. 651. For legal effect 
of accident to subject-matter, see Lame v. The Queen, (1896) 5 
Ex. C. E. 103. As to default in building contract by the owner, see 
Wells v. Army & Navy C. 8., (1902) 86 L. T. 764. As to question 
of right of removal of plant and dismissal of contractor, see Ash- 
field v. Edgell, (1891) 21 0. E. 195. 

The .defendant, who had taken a contract for the erection of a 
dwelling house for a fixed sum, accepted the plaintiff's tender to do 
the plumbing and tinsmithing for $500, but before the completion 
of the plaintiff's contract, though after they had done work up to 
$488, the building was destroyed by fire, not happening by the fault 
of the plaintiffs, defendants, or the owner. The defendants had 
received two sums amounting to $1,500 on account of their contract, 
but they denied that any portion of it was for work done by the 
plaintiffs. In an action by the plaintiffs to recover the $488, on a 
quantum meruit, it was held that where the contract is to do work 
for a specific sum, there can be no recovery until the work is com- 
pleted, or unless the failure to complete is caused by the defendant's 
fault, and this applies as" well to original as to sub-contractors, and 
as the plaintiffs admitted the non-completion by suing on -a quan- 
tum meruit, and there was nothing to show any default on the de- 
fendant's part, there could be no recovery. A different phase of this 
question as to the effect of the destruction of the subject-matter is 
dealt with by the decision in Ontario L. & P. Co. v. Baxter & Gal- 
loway Co., (1903) 5 O. L. E. 419. Where a person entered into an 
agreement to build a cofferdam, and there was no sustaining sub- 
stratum, an action would not lie for the work and labor performed 
in attempting to complete the contract. Where the plans furnished 
to the plaintiff represented the existence of a sufficient substratum, 
which did not in fact exist, and his labor was thus rendered useless, 



80 THE LAW OF MECHANICS' LIENS IN CANADA. 

he could only recover for the 'work done before that fact was dis- 
covered. In this case the distinction between a warranty and a 
representation, and between a representation inducing a contract 
and a representation forming part of a contract is discussed. Hill 
v. Fraser, (1858) 2 Thorn. (Nova Scotia) 294. See also Thorn 
V. Mayor of London, (1874) L. E. 9 Ex. 163; L. R. 10 Ex. 112; 
McKenna v. McNamee, (1887) 14 0. A. R. 339, 15 ,Can. S. C. R. 
311. 

Although Canadian Courts do not absolutely adopt the doctrine 
of " substantial performance " which is generally favored by Ameri- 
can Courts, yet where it appears that the repairs called for by the 
contract were substantially done, though there, might have been a 
variation from the contract in some particulars, or an unimportant 
part of the contract remained unfinished, the contractor would be 
treated by Canadian Courts as entitled to recover the price agreed 
upon in the contract, subject to deductions for whatever expendi- 
ture was found necessary to make the work correspond , with the 
specifications. In such a case the failure to do everything called 
for in the specifications would not put an end to the contract or 
prevent the contractor from making any claim upon it. The con- 
tractor can recover the contract price less so much as it is found 
ought to be allowed in respect of the items which , are defectively 
done or not done at all. He may enforce a lien for the contract 
price, less the cost of completing the contract. Taylor Hardware 
Co. v. Hunt, 39 0. L. R. 85 ; 35 D. L. R. 584. See also 36 D. L. R. 
383; Daiin v. Lee, (1916) 1 K. B. 566. 

If, however, the work omitted is substantial in value and extent 
and there has been no waiver of performance in respect thereto, 
unless it appears that the work was omitted through oversight or 
excusable neglect, the' contractor, even under an American law, 
would not be entitled to recover anything. North American W. P. 
Co. v. Jackson Const. Co., (1915) 167 N. Y. App. Div. 779. In 
this case it appeared that the contractor had omitted work valued 
at about 14 per cent, of the entire contract price^ and there had 



WHO MAY ACQUIEE A LIEN. 81 

been no waiver of performance and no finding of good faith on the 
part of the contractor. But trifling omissions in the performance of 
the contract will not defeat a lien. Glacius y. Black, (1872) 50 
N. Y. 145. On the other hand the contractor cannot recover in the 
action if an important item of his contract is absolutely omitted. 
Simpson v. Bubeck (1911) 21 0. W. E. 260. See Watts v. McLeag, 
(1911) 19 W. L. B. 916; Merriam v. Public Parks Board, (1911) 
18 W. L. E. 151, affirmed, (1912) 20 W. L. E. 603; McDonald v. 
Symons, 15 W. L. B, 218. 

It would seem that the rule in the case of building contracts is 
somewhat similar to that in' the case of specific performance, which 
is that such non-essential and trivial defects on the side of one 
party as can be compensated for will not excuse the other party to 
the contract. See Halsbury's Laws of England;, vol. 3, p. 387. In 
every case it must be a matter of degree. The omission of a lock on 
a door in a large mansion, or the omission to put some zinc on a 
roof might not amount to non-completion (liowfher v. Heaver, 
(1899) 41 Ch. D. 248, 262), while omission to put down the floor 
in a house would certainly do so. See Williams v. Fitzmauricei 
(1858) 3 H. & N". 844. The omission to erect a verandah required 
by the contract was considered as sufficiently substantial to preclude 
recovery of the contract price and prevent the enforcement of a lien. 
Simpson v. Bubeck, (1911) 21 0. W. E. 260. 

In Ontario it has been held that where there is a contract to do 
specified work for a fixed sum with a proviso for payment of propor- 
tionate amounts equal to 80 per cent, of this fixed sum as the work 
is done, and the balance of 20 per cent, in thirty days after com- 
pletion, the completion is a condition precedent to the right of the 
plaintiff to enforce payment of the balance of the contract price. 
Sherlock v. Powell, (1899) 26 O. A. B. 407. The headnote in this 
case is somewhat misleading. The right to recover instalments of 
the price was not dealt with. See comment of Hodgins, J.A., in 
Deldo v. Qough-Sellers Investments, Ltd., (1915) 25 D. L. B. at 
p. 605. See Black v. Wiebe, (1905) 15 Man. L. E. 260, 1 W. L. E. 

MX. 6 



82 THE LAW OF MECHANICS' LIENS IN CANADA. 

75. As to oral alterations of terms and quantum meruit, see 
Barry v. Ross, (1891) 19 Can. S. C. E. 360. 

Where no time for performance is fixed in the contract, the 
law implies that it is to be performed within a reasonable time. 

The lien may be acquired by a corporation or a partnership. A 
lien claimed by a partnership stands in no different position from 
any other lien by reason of the " owner " being a member of the 
partnership. Boss v. Gorman, (1908) 1 Alta. L. E. 516. The death 
of the contractor or the dissolution of the partnership cannot affect' 
the lien of the contractor. 

In building contracts the law is now on a just basis, the rule of 
exact or literal performance having been somewhat relaxed in 
recent years. But where omissions or deviations from the terms of 
the contract are so substantial that an allowance out of the contract 
, price would not give the owner essentially what he contracted for 
there can be no recovery. Where the defects pervade the whole 
work and are very substantial, and where some if not many of them 
are wilful and intentional departures or omissions from the con- 
tract, the contractor cannot recover. Smith v> Buggiero, 52 App. 
Div. (N.'Y.) 382, affirmed 173 N. Y. 614. But where a detail is not 
a matter going to the essence of the contract, an exact compliance 
with it not being a condition precedent, — for instance, the omission 
of tie-rods in a cement floor, the contractor can recover. Gillis v. 
Cobe, 177 Mass. 584. The rule of damages by which to measure 
the loss, as stated in an important American case, is the rea- 
sonable cost of remedying the defects which can be practically 
remedied so as to make the structure exactly conform to the agree- 
ment, and the difference between the value of the structure so com- 
pleted and one like the building agreed upon. Fuller v. Heintz, 
(1909) 137 Wis. 169. If the defects may easily be remedied with- 
out a reconstruction of any special part of the building, the builder 
may recover the contract price less what it will cost to make his 
work comply with the contract. 

In cases where an unimportant part of the work remains un- 
finished,' one who contracts to supply material or do work on a 



WHO MAT ACQUIEE A LIEX. 83 

building is entitled to enforce a lien for the contract price less the 
cost of completing the contract. Taylor Hardware Co. v. Hunt, 
(1917) 35 D. L. E. 584, Adams v. McGreevy, 17 Man. L. K. 115, 6 
W. L. E. 188. But where the entire contract for work and labor 
has not been substantially performed, or where the contractor, al- 
though the contract has, been substantially carried out, refuses to 
complete it, he is not entitled to recover anything. Yakowchuk v. 
Crawford, (1917) 3 W. W. E. 479. But a building contract for 
$2,850 cannot be said to have been substantially performed where, 
after buildings contracted for were completed, the builder neglected 
to put in lateral sewers and water connections, which the owner 
afterwards caused to be put in at the expense, of $180. Hollester v. 
Mott, (1892) 132 N. Y. 18. The work as done being worth one- 
seventh less than it would have been had it been done in compliance 
with the terms of the contract, there is no substantial performance 
of the contract, so as to entitle the contractor to recover. Mitchell 
v. Williams, 80 App. Div. (NY.) 527. See also Mitchell v. Dun- 
more Realty Co., 126 App. Div. (N.Y.) 829. 

Where there has been substantial but not absolute performance 
of a building contract, the contractor may, in certain cases, recover 
the contract price, less such deductions as the other party is entitled 
to insist upon because of negligence or bad workmanship in respect 
of some items of the work. Canadian Western Foundry & Supply 
Co. v. Hoover, (1917) 3 W. W. E. 594; Watts v. McLeay, 19 W. L. 
E. 916. As to entire contract and provision for "liquidated dam- 
ages," see St. Catherine Improvement Co. v. Rutherford, (1914) 
31 0. L. E. 574; McManus v. Rothschild, (1911) 25 <0. L. E. 138. 
The authorities on the question of penalty or liquidated damages 
are reviewed in the latter case. The fact that, in an entire contract, 
some item of the work has been done negligently or inefficiently o.r. 
improperly does not prevent the builder from recovering in an 
action) but, in such case, the builder would be entitled to recover the 
contract price less so much as is found ought to be allowed in re- 
spect of the items of defective Work. Dakin v. Lee, (1916) 1 K. B. 



84 THE LAW OF MECHANICS' LIENS IN CANADA. 

566; Taylor Hardware Co. v. Hunt, (1917) 35 D. L. E. 584; 
Adams v. McGreevy, 17 Man. L. E. 115, 6 W; L. E. 188. 

Even where builders enter into a contract to carry out a large 
number of alterations and repairs to a. house in accordance with 
specifications for a lump sum, and it is established in evidence that 
the concrete used to underpin a wall was not in accordance' with the 

. specifications either as to quality or quantity, and, secondly, that 
certain rolled steel joists supplied had not been bolted ,at the top 
in accordance with specifications, and, thirdly, solid columns, four 
inches in diameter had been supplied in place of hollow columns 
five inches' in diameter, it was nevertheless held that the builders 

• were entitled to recover the lump sum subject to deduction of the 
amount necessary to make the work correspond with that contracted 
to be done. The defects and omissions in the work amounted only 
to a negligent performance of the contract, and hot to an abandon- 
ment of or failure to complete the contract. Dakin v. Lee, (1916) 
1 K. B. 566. 

The damages suffered by an owner owing to non-completion, 
while not available to him as a set-off against claims for wages, nor 
bo diminish the statutory percentage required to be retained by him, 
may be and sometimes must be gone 'into before the judge or officer 
trying a ease under the Act. To ascertain the sum justly due from 
the owner to the contractor necessitates an inquiry,, where a case is 
made for it, as to the value of the work done and the damages suf- 
fered, — to be set off or deducted for work undone or improperly done 
or for delay; and in a case where such an inquiry is proper the 
result may be stated in the judgment. Milton Pressed Brick Co. v. 
Whalley, (1918) 42 0. L. E. 369. As to delay in performance, 
which delay owing to unavoidable cause, did not amount to breach, 
see Henry Hope & Sons v. Canada Foundry Co., (1917) 40 0. L. E. 
338. 

Partial Performance. 

In building contracts the question of completion is one of fact,i 
and while ordinarily, in order to claim a Hen, the contractor must 



WHO MAY ACQUIRE A LIEN. 85 

show that he has performed his contract, yet, a contractor may 
recover for partial or inexact performance of the contract in some 
cases, as where the defect in the building was known before the com- 
pletion of the work and the defendant allowed the work to go on, 
minimizing the defect, and after completion promised to pay and 
made no complaint until after the registration of the lieu (Holtby 
v. French, (1902) 1 0. W. E. 821), where a strict compliance was 
waived by the owner (Heckman V. Pinkney, (1880) 81 N. Y. 211), 
or where the completion was dispensed with by agreement (Moore 
Y.Ericksbn, (1893) 158 Mass. 71; Connoly v. Sullivan, (1899) 173 
Mass. 1), where the deviation in the contract arose in respect to a 
matter not a condition precedent to recover (Lucas, v. Goodwin, 
(1837) 3 Bing. N. C. 737), or where the owner refused to pay an 
instalment of the contract price, or to furnish the necessary 
materials as agreed. Thomas v. Stewart, '(1892) 132 1ST. Y. 580; 
Wright v. Bensens, (1892) 133 N. Y. 298; Carew v.. 
Stubbs, (1892) 155 Mass. 549; Hunter v. Walter, 12 N. 
Y. iSupp. 60, affirmed, (1891) 128 N. Y. 668. A contrae-. 
tor may recover without the architect's certificate where the. 
contractor is prevented from obtaining the certificate by the wrong- 
ful act of the " owner." Smith v. Gordon, (1880) 30 U. C. C. P. 
553. Failure by the owner to supply material whiph the contract 
provides he shall supply discharges a penal clause. Degagne v. 
Ohave, (1895) 2 Terr L. E. 210. Insolvency of the owner which 
prevents performance is a valid excuse for non-performance. Hen- 
derson v. Sturgis, 1 Daly (N.Y.) 336. 

There are several decisions by Massachusetts courts (Butterfield, 
v. Byron, (1891) 153 Mass. 517; Angus v. Scully, (1900) 176 
Mass. 357 which hold that where performance of the contract was 
prevented by destruction of the subject-matter a contractor may 
recover for partial performance, but Canadian and English deci- 
sions are opposed to this view of the law. The Canadian law on 
this point is to be found in an Ontario case already referred to. 
King et al v. Low et al., (1901) 3 O. L. E. 234. As to responsi- 



86 THE LAW OF MECHANICS'" LIENS IN CANADA. 

bility of contractor where foundation walls collapse, see Grace v. 
Osier, (1911) 16 W. L. B. 627, 19 W. L. E. 109, 326. If an owner 
employs a competent architect to design a building, the owner would 
ordinarily not be liable to employes of a, contractor injured by the 
collapse of the building during its construction. , Burke v. Ireland, 
26, N". Y. App. Div. 487. 

Mere possession or user by the owner of the building upon 
which the work was done is not a sufficient acceptance of an incom- 
plete or imperfect performance of the contract so as to entitle the 
contractor to recover. Brydon v. Lutz, (1891) 9 Man. L. E. 64; 
Gearing v. Nordheimer, (1876) 40 TJ. C. Q. B. 21; Sumpter v. 
Hedges, (1898) 1 >Q. B. 673; Oldershaw v. Garner, (1876) 38 IT. 
C. Q. B. 21; Wood v. Stringer, (1890) 20 O. E. 148; Keen v. 
Keen, (1902) 1 K. B. 55. See also Hart v. Porthgain Harbor, 
(1903) 1 Ch. 690; Foster v. Hastings Corporation, (1903) 87. 
L. T. 736 ; Leroy y. Smith, (1900) 8 B. C. E. 293 ; Watts v. McLeay, 
(1911) 19 W. L. E. 916 (Alta.) ; Donaldson v. Collins, (1912) 21 
W. li. E. 56 (Sask.).. 

In a Manitoba case (McAr'thurY. Dewar, (1885) 3 Man. L. E. 
72; see also judgment of Perdue, J., in Black v. Wiebe, (1905) 
15 Man. L. E. 260), Killam, J., said: "The owner of the land 
has not an option of giving up the benefit received, the portion 
of the building erected has become a part of his land and is 
not severable therefrom, and the mere retention of the erection 
upon the lands and the use of it with the other portion of the 
lands cannot give rise to an implied contract to pay for the 
work done." In an Ontario case (Wood v. Stringer, (1890). 20 
O. E. 148), it was contended that certain pews were accepted and 
used by the church, but Boyd, C, on this point said: "However, 
the church had to be oocupied, and I do not think this should 
operate as an acceptance of this bad work." Acceptance of a 
building by the owner as completed, operates as waiver of the 
requirements that the contractor shall procure the architect's cer- 
tificate. Smith v. Alker, (1886) 102 N". Y. 87. As to the effect 



WHO MAT ACQUIRE A LIEN. 87 

of taking possession and making payment on account, see Law- 
rence v. Village of Luchnow, (1887) 13 0. E. 421, in -which. 
Munro v. Butt (1858) 8 E. & B. 738, is distinguished. 

Time might be of the essence of a contract even without any 
express stipulation, if it appears that such was the intention. 
Oldfield v. Dickson, (1889) 18 0. E. 188. Non-performance of 
one contract does not affect the claimant's rights to a lien under 
another contract which has been performed, though- both relate to 
the same premises. Hunter v. Walter, 12 N. Y. Supp. 60, affirmed, 
(1891^ 128 N. Y. 668. A contractor may .not show that materials 
used in construction are preferable to those required by the con- 
tract. Shultze v. Coodstein, (1904) 180 N. Y. 248. But much 
would depend upon the actual facts in the particular case. Al- 
though the subsequent acts of the parties to a contract are not 
admissible as evidence to vary its terms they may prevent one of 
the parties from insisting upon the strict performance of the origi- 
nal agreement. Bruner v. Moore, (1904) 1 Ch. 305. Under a 
contract to execute certain work, where there was a wrongful sei- 
zure of the work by the defendants, the plaintiff was held entitled 
to determine the contract. 'Ladder v. Slowey, (1904) A. C. 442. 

If under a contract which makes, the right of the contractors 
to receive payment dependent upon the certificate of an engineer 
who is also the sole arbitrator of all disputes, the engineer unjusti- 
fiably delays the issue of the certificate and acts in a shifting and 
vacillating, though not fraudulent manner, and probably causes 
heavy loss to the contractors by mistakes, the certificate cannot be 
set aside in the absence of collusion. Walhley et al. v. City of Vic- 
toria, (1900) 7 B. C. E. 481. An architect, in such cases, occupies 
the position of an arbitrator, and is therefore not liable to an action 
by the owner for negligence in the exercise of such functions. 
Chambers v. Goldthorpe, 70 L. J. K. B. 482, (1901) 1 K. B. 624. 
Possible bias does not disqualify an engineer whose certificate is 
required under the contract. Farquhar v. City of Hamilton, (1892) 
20 0. A. E. 86. As to power of architect, under special agreement, 



00 THE LAW OF MECHANICS LIENS IN CANADA. 

to dismiss contractor or any workman, see Smith r. Gordon, 
(1880) 30 U. C. C. P. 553. 

Under a contract which empowers an owner to take possession 
and complete the work when the work is not being proceeded with 
at a rate to ensure its completion by a stipulated date, an owner is 
not, bound to exercise his right as soon as he has reason to suspect 
that the work will not be completed at the date mentioned, but 
without waiving his right may delay action until the fact becomes 
established beyond all doubt. Millihen v. City of Halifax, (1889) 
21 N. S. E. 418. 

Where under a building contract work was to be completed by 
" Noy. 31st" under penalty of damages, this date was construed to 
mean Nov. 30th. McBetm v. Kinnear, (1892) 23 0. R. 313. As 
to the- rights of parties where in a contract 'between a builder and 
an owner a date was fixed for the completion of the, building and, 
delay occurred by default of sub-contractors, — see Mitchell v. Guild- 
ford Union, (1903) 1 L. G. E. 857, 68 J. P. 84." As to the failure 
to complete building contract and faulty construction of the work, 
see Bender v. Carrier, (1877) 15 Can. S. C. B. 19. 

If the contract provides for the certificate of an architect and no 
architect is appointed the provision is inoperative, Degagne v. Ghave, 
(1895) 2 Terr. L. E. 210. Where a building contract stipulates 
that the < architect's certificate shall be conclusive evidence of the 
builder's right to final judgment, and the certificate is produced 
and not impeached, there is no ground for refusing enforcement 
of the lien. Snaith v. Smith, 25 N". Y. Supp. 513. As to final and 
conclusive character of architect's certificate, see Brown v. Banna- 
tyne School Section, (1912) 22 'Man. L. E. 260; Hamilton v. 
Vineberg, (1912) 4 D. L. E.'827. 

If the architect is by the' terms of the contract made arbitrator, 
his decision cannot be dispensed with unless it is withheld un- 
reasonably or in bad faith. Thomas^ v. Fleury, 26 TS. Y. 26 ; 
Davidson v. Provost, 35 111. App. 126. See Law \. City of Toronto, 
(1919) 47 0. L. E. 251, as to bias. The written contract con- 
trols the specifications. Grace v. Osier, (1911) 16 W. L. R. 627, 



WHO MAY ACQUIRE A LIEX. 89 

19 W. L. E. 109, 326 (Man.). Caldwell v. Schmulbach, 175 Fed. 
429. The plaintiff, a builder, contracted to erect a building in 
Vancouver for the defendants, the contract providing that no 
extras would be allowed unless their value was agreed upon and 
endorsed on the contract. On the instructions of S. who intended 
to occupy the building for the purpose of a bottling company of, 
which he was a member the plaintiff made alterations and addi- 
tions, *but no endorsement was made on the contract. It was held 
that such endorsement was a condition precedent to plaintiff's 
right to recover. McKinnon v. Pdbst Brewing Co.,. (1900) 8 B. 
C. E. 265. See also Wood v. Stringer, (1890) 20 O. E. 148. 

If the contractor is dismissed and the owner verbally employs 
a sub-contractor to finish the building, this new contract need not 
be in writing, and the sub-contractor, after the new contract, is 
entitled to a mechanics' lien as contractor. The conditions of such 
old contract would not be applicable to the new contract, and the 
non-production of an architect's certificate required by the con- 
tract of the dismissed contractor as a condition precedent, would 
not preclude the sub-contractor from recovering under the oral 
agreement, provided the work was so done as to morally entitle 
him to such certificate. Guest v. Hunter, (1882) 3 G. L. T. 33, 
distinguishing Bond v. Treahey, (1876) 37 U. C. Q. B. 360; Petrie 
v. Hunter, (1882) 2 O. E. 233, 10 O. A. E. 127; King v.. 
Low, (1901) 3 O. L. E. 234. Where a person by a contract, 
takes upon himself the responsibility that certain events shall take 
place or pay damages if from any cause he is prevented from 
carrying out the contract, the fact that the contract becomes im- 
possible of performance does not excuse such party for non-per- 
formance of the contract. Ashmore v. Cox, (1899) 1 Q. B. 436. 
See Thome v. Mayor of London, (1874) L.'e. 9 Ex. 163, L. E. 
10 Ex. 112. 

In Boyce v. Huxtable, (unreported, Nova Scotia), an action by 
a contractor against the owner of the property who employed him 
to make extensive repairs, the defendant sought to set off a payment 
made by him to a sub-contractor of the plaintiff. It appeared that 



90 THE LAW OF MECHANICS' LIENS IN CANADA. 

the sub-contractor came to the office of the defendant and informed 
him that the sub-contract had been completed 29 days before this 
interview, but that he had received no payment from the plaintiff, 
and intended placing a lien on defendant's property for the amount 
of his claim, $420. In order to avoid having this lien placed upon 
his property and thereby injuring his business, defendant notified 
the plaintiff of his intention to pay this debt, and hearing nothing 
from plaintiff, the defendant subsequently paid this amount to the 
sub-contractor. Wallace, Co.J., held that while it is ordinarily no 
defence or set off in an action of pontract that the defendant has 
paid to a creditor of the plaintiff the amount which defendant owed 
the plaintiff, yet, in Mechanics' Lien proceedings the owner of the 
property is not bound to wait and allow his property to be charged 
with an enforceable lien which might injure his credit, or otherwise 
embarrass him, but may pay this enforceable claim which the con- 
tractor should have paid, and may set off such payment in a suit or 
lien proceedings instituted by the contractor. Where the debt 
was justly due by the plaintiff and was enforceable by lien proceed- 
ings againsfr the defendant's property, and where the defendant was 
notified by the lien claimant that he was about to start proceedings 
against this property, defendant is justified in paying the claim, 
after notifying plaintiff of his intention to do so, and receiving no 
reply from the plaintiff. In such an exceptional case it is reason- 
able to imply a request from the plaintiff to pay this pressing and 
enforceable debt. 

There appears to be no report of any similar Mechanics' Lien 
case, involving the same question, but a similar request has been 
implied in cases of a like nature. See Exall v. Partridge, 8 T. E. 
308; Hale v. Euse, 10 Gray, (Mass.) 99; Nichols v. Bucknam, 117 
Mass. 488; Hitchcock v. Lancto, (1879) 127 Mass. 514; Doe v. 
Monson, 33 Me. 430. 

In an action to enforce a lien a contractor joined the architect 
as a defendant and claimed damages against him for fraudulently 
withholding a certificate. It was held that the architect should, 
be struck out as defendant. The claim would be good as against 



WHO MAY ACQUIRE A LIEN. 91 

the owner, but as against the architect the plaintiff must pursue 
his ordinary remedy. Bagshaw t. Johnson, (1901) 3 0. L. E. 
58, followed by Magee, J., in Dunn v. McCallum, (1907) 14 0. 
L. E. 249. 

Immoral contracts being against public policy as encouraging 
immorality, courts will not aid in enforcing a mechanics' lien for 
a contractor who knew that the additions which he made to a pro- 
perty were for the purpose of increasing the defendant's immoral 
trade. Miller v. Moore, (1911) 17 W. L. E. 548 (Alta.). 

A contractor agreed to erect a house with the exception of the 
plumbing and certain other work which the owner agreed to do. 
The contractor, after performing work which entitled him to pay- 
ment of the first instalment of his contract price, notified the 
owner that he was unable to complete his contract because the 
plumbing had not been done, and demanded payment of the first 
instalment. It was held that the contractor was entitled to treat 
the owner as having repudiated the contract, and could take the 
necessary steps to recover for what he had done under it, and also on. 
his part to put an end to it. Sidney v. Morgan, 16 B. C. R. 18, 16 W., 
L. E. 123. Where a contract for a heating plant provided that the, 
contractor should do certain work upon or before a certain date and. 
should not be required to do any more work after that date on 
said job until the payment of $1,000, and the payment of the bal- 
ance was satisfactorily secured, it was held the terms were suf- 
ficient to authorize the allowance of a lien for the $1,000. Boulet 
v. Hogan, 203 111. 525. It has been held that in the absence of 
express stipulation the materials of old buildings on the site belong 
to the contractor. See Morgan v. Steevens, (1879) 6 Abb. (N.Y.) 
Xew Cases, 356. 

It is no objection to the claim of a sub-contractor that the 
principal contractor as a corporation had no power to contract 
under its charter. General Fire Extinguisher Co. v. Magee Carpet 
Works, 199 Pa. 647. 

In an important Massachusetts case, Friedman v. County of 
Hampden, (1910) 204 Mass. 494, in connection with a claim aris- 



92 THE LAW OF MECHANICS' LIENS IN CANADA. 

izfg from construction of public works, certain principles deter- 
mining the validity of liens under a Mechanics' Lien Act were 
applied, and it was held that certain charges of a sub-contractor 
for removal of loam and putting up fence and employment of 
watchman, in connection with work of excavation and grading, 
constituted items of the cost of the material and labor which fin- 
ally went into the building for which he could have a lien under 
a Mechanics' Lien Act. But a sub-contractor who performed the 
work of furnishing, putting up and removing radiators for the 
drying of plaster put in by another sub-contractor had no such 
lien. 

Anyone who contracts directly with the owner, though it be only 
to furnish materials, is a "contractor." Jflclcson v. Etfan, (1911) 
200 K. Y. 496. 

The lien of the materialman is dealt with in a subsequent 
hapter. - 

A mechanics' lien is restricted to the value of the labour per- 
formed and materials furnished, and any claim for damages for 
breach of a contract in refusing to allow the contractor to perform, 
the work is not within the provisions of the statute and must be 
enforced in an ordinary action for. damages. Midtown Contracting 
Go. v. Goldsticher (1914), 165 1ST. Y. App. Division 264. On the 
other hand, damages for delay in performance cannot be set off 
against a lienholder. Smith- v. Bernhardt, 2. Sask. L. E. 315. 



CHAPTER VI. 

Liens of Sub-Contkactors and Wage-Earners. 

A sub-contractor is defined by the Mechanics' Lien Acts, gen- 
erally, as a person not contracting with or employed directly by 
the owner or his agent, but contracting with or employed by a 
contractor, or under him by another sub-contractor. 

No privity of contract is necessary between the sub-contractor, 
the materialman, and the workman on the one hand, and the owner 
on the other. The statute gives a direct lien to persons who do 
the work or furnish materials under contract , with the contractor, 
and the owner cannot deprive them of this lien. Arily v. Holy 
Trinity Church, (1885) 2 Man. L. E. 248; McArthur v. Dewar, 
3 Man. L. E. 72; Union v. Porter, 8 W. L. E. 423; 9 W. L. E. 325; 
Gorman v. Henderson, (1908) 8 W. L. E. 422 (Alta.) ; McAulay v. 
Powell, (1908) 7 W. L. R. 443 (Alta.) ; Miller v. Salumet Lumber 
Cq., (1903) 111 111. App. 651. If a payment in land is to be made 
to the contractor, the court will secure the sub-contractors' right. 
Anderson v. Huff , (1892) 49 N. J. Eq. 349. Where part of the 
contract price was to be paid in lots the sub-contractors doing the 
work and proving a lien were held to be entitled to have such lots 
sold and the proceeds of such sale applied in payment of their 
claims. Head v. Coffin, (1910) 13 W. L. R. 663. 

While the sub-contractor's lien can exist only upon the basis of 
the contract between the owner and the original contractor, it is, 
nevertheless, a direct lien, and is not entirely dependent upon the 
contractor's lien, which may, however, affect its extent. 

Where nothing is payable under a building contract until the 
whole of the work is completed, but the owner voluntarily makes 
payments to the contractor as the work progresses, to the extent of 
the value of work done, a sub-contractor who has not been paid is 
entitled, as against the owner, to a lien for the amount due him, 



94 THE LAW OF MECHANICS' LIENS IN CANADA. 

to the extent of twenty per cent, of such payments. Russell v. 
French, 28 0. B. 215; Carroll v. McVicar, (1906) 15 Man. L. B. 
379, 2 W. L. E. 25. In the latter case the plaintiff's claim con- 
sisted of charges for different jobs, all in his line of business, but, 
ordered at different times, and, as to the first job, if considered 
separately, his lien was not filed within the statutory time, but it, 
was held that in such circumstances a mechanic should not he 
required, in order to secure payment, to file a lien after completing 
each piece of work, and that filing his lien after he has completed 
all of his work is sufficient. 

The lien of a contractor or sub-contractor attaches when he has 
completed his contract, or, if the contract provides jor interim pay-, 
ments on account, a lien attaches when each payment becomes 
due to the extent of the amount thereof. Where a sub-contractor 
undertakes to do a certain work and supply materials for a lump 
sum, without any stipulation as to payment before completion, 
his lien attaches only on completion of his work, and if there be 
no money then due fro,m the owner to the contractor, the sub- 
contractor's lien fails. Brader v. Brown, (1917) 24 B. C. E. 374; 
Fuller v. Turner and Beech, (1913) 18 B. ,C. E. 69. There is a 
provision in the Acts of Alberta, British Columbia and Saskatche- 
wan declaring that save as in the Act set out, the lien shall not 
attach so as to make the owner liable for a greater sum than the 
sum payable by the owner to the contractor. It was formerly held 
by the Supreme 'Court of Alberta that when the lien attached by 
the furnishing of material or the. doing of work, the amount at 
that time unpaid, which then, or later, the owner might legally 
be required to pay, is the limit of the amount for which the lien- 
holder may have recourse against the owner, but that, so far as 
that amount is concerned and to the extent of the sum owing to 
the lien-holder, no subsequent payment to the contractor will re- 
lieve the owner. Ross Bros. v. Gorman, (1908) Alta L. E. 516. 
Travis v. Brechenridge Land, Inimler & Coal Co., (1910) 43 
Can. S. ,C. E. 59. See note relating to this case, 9 D. L. E. 110, 
which note states that this case in no way overrules or weakens 



LIENS OF SUB-CONTRACTORS AND WAGE-EARNERS. 95 

the authority of the other cases cited, as the lien was disallowed 
by the Supreme Court of Canada on the express finding that there 
was no " sum owing and payable to the contractor by the owner at 
the time when delivery of the materials was made by the plain- 
tiffs." The Court of Appeal in British Columbia, however, in the 
ease of Fuller v. Turner, (1913) 18 B. C. K. 69, and LePage 
McKenney & Co. v. Pinner & McLellan, (1915) 21! B. C. E. 81, 
have not followed the earlier British Columbia and Alberta cases. 
In Fuller v. Turner, B. contracted to build a house for T. A lien 
claimant, F., was a sub-contractor for the plastering. The con- 
tracts included both labor and material and were for lump sums. 
B.'s contract was for $8,500, and after payment of $6,100, T. under 
a provision in the contract took it over from B., who had assigned 
for the benefit of his creditors, and completed it at a cost of more 
than $2,400. At the time the contract was taken over, B. had 
almost completed his contract, and it was held that as there was 
no amount due T. to B. when he took over the contract, the limita- 
tion in section 8 of the Act applied and the lien failed. 

The rights of sub-contractors and materialmen are measured 
by the amount " justly due " by the owner to the contractor, and, 
the owner is not liable to these claimants for a greater sum than 
is payable to the contractor. ' Smith v. Berrihart, (1909) 11 W. 
L. E. 623 (Sask.). If, for instance, at the time of the abandon- 
ment by a contractor of his building contract there is by the terms 
of it nothing payable to him by the owner, a sub-contractor, 
whether for work or materials, can have no lien upon the property 
for money due him by the contractor. Wilks v. Ledue, (1917) 27 
Man. L. E. 79, 30 D. L.E. 792, 35 W. L. E. 4. The onus of proof 
is on the owner to show that nothing is due to the contractor. 
Brown v. Allan, (1913) 25 W. L. E. 128. 

A mechanic's lien filed by a sub-contractor is not to attach so 
as to make the owner liable for a greater sum than the sum owing 
by the owner to the contractor; consequently, if the latter's con- 
tract with the owner does not entitle him to a further payment 
until completion, the lien of the sub-contractor who has completed 



96 THE LAW OF MECHANICS' LIENS IN CANADA. 

his sub-contract cannot be made effective until completion of the 
entire work of the principal contractor, but the Court may, on the 
trial of the lien action, direct that such lien shall remain in force, 
so that it may attach in respect of further sums that may there- 
after become due by the owner to the principal contractor, reserv- 
ing leave to the owner to apply to discharge the lien. Colling v. 
Stimson & Buckley, (1913) 10 D. L. E. 597 (Alta.). A sub- 
contractor completing a building, where the contractor had been 
dismissed, is entitled to a lien as contractor, and not as sub- 
contractor, and his contract being a new one, the conditions of the 
old contract would not be applicable. Quest v. Hunter, (1882) 3 
C. L. T. 33; Petrie v. Hunter, (1883) 2 0. E. 333, 10 0. A. E. 
127. See Smith y. Lange, 91 App. Div. (N.Y.) 192; Moore v. 
Duggm, (1901) 179* Mass. 153. , 

As has been already stated, the rights of lien-holders are 
measured by the amount " justly owing " by the owner to the con- 
tractor, and where an agreement provides payment by instalments 
with the right to retain an amount as a drawback on the comple- 
tion of the work, the lien accrues for the full amount of any instal- 
ment payable, 'subject to the owner's right of deduction in the 
event of the non-completion of the whole contract. Deldo v. 
Gough-Sellers Investments, Ltd., (1915) 25 D. L. E. 602. • A sub- 
contractor cannot acquire a lien on a claim for damages. Mayer v. 
Mutchler, 50 N. J. L. 162; and on the other hand, damages for 
delay in the contractor's performance cannot be set off against a 
sub-contractor. Bernhardt v. Fry, (1909) 2 'Sask. L. E. 315. 

The provision requiring the owner to create a fund by deducting 
twenty per cent, from any payment to be made by him in respect' of 
a contract entitles a sub-contractor to a lien on the statutory per- 
centage in priority to any right of set off the owner may have by 
reason of the default of the contractor in the performance of his 
contract. 

To establish a lien a sub-contractor must shew a substantial 
performance of his contract with the contractor unless such per- 
fqrmanee is waived or prevented by the contractor or owner. A 



LIENS OF SOB-CONTEACTORS AND WAGE-EARNERS. 97 

sub-contractor is not bound to a strict compliance with the terms 
of the principal contract. 2Iallett v. Kovar, (1910) 14 W. L. E. 
327 (Alta.), But where the original contract contains a clause 
requiring production of an architect's certificate before payment 
becomes due, the sub-contractor is not required to show that this 
term of the contractor's contract has been complied with. Lundy 
v. Henderson, (1908) 9 W. L. E. 327. In an action by a sub- 
contractor to enforce his lien, the contractor and any sub-contrac- 
tor through whom the plaintiff claims must be made parties to the 
action as well as the owner. Dunn v. HolbrooTc, (1900) 7 B. C. E. 
503. In connection with work done for defendant bank, sub- 
contractors supplied work and material to D. and G., other sub- 
contractors, who failed to pay them, and a lien was registered on 
the property of defendant bank. D. and G. had been already paid 
in full by the contractor with the bank, but the bank held money 
due the contractor on the contract. ,It was held that the funds 
due the contractor in the hands of the bank were, liable. Wood & 
McBeth v. Bank of Montreal, (1901) 40 N. S. E. 317. In Eng- 
land, where there is no mechanics' lien legislation, a recent case 
arose where an unsuccessful claim was made by a sub-contractor 
of a lien on the whole of moneys payable by a building owner to 
the head contractor for the amount of his debt. See Pritchett Co. 
v. Gurrie, (1916) 2 €h. 515. 

Where the amount required to complete the work over and 
above the contract price far exceeds the amount retained the lien- 
holders, other than wage-earners, have no claim upon the amount. 
Peart v. Phillips, (1915) 31 W. L. E. 956 (Sask.) ; Travis v. Brech- 
enridge, 43 iCan. S. C. E. 59, as summarized in Peart v. Phillips, 
supra. In England, under ordinary contract law, a sub-contractor 
was held to be entitled to sue the building owner where the sub- 
contractor was_ a specialist for the supply of door handles and 
door fittings, as, in the circumstances, the fact that the goods sup- 
plied had been used by the builders raised an implied promise by 
them to pay for the goods. Ramsden v. Chessum, (1914) 110 L. 

MX. — 7 



98 ■ THE LAW OF MECHANICS* LIEN'S IN CANADA. 

T. 274. Where a contract with the owner is sufficient to create a 
mechanic's lien, it may well be implied that the owner, through, 
the agency of the contractor, assents to the sub-contractor's lien 
by the employment of labour and procuring materials to carry out 
the contract. > ' 

Payments made by the owner to the contractor after the lien- 
holders' claim has attached, of moneys not due according to the 
contract, should not be protected as payments made oona fide 
without, notice. Ringland v. Edwards, (1911) 19 W. L. E. 219. 
Where sub-contractors claimed a lien as against the owner for 
work done under the contractor, and it appeared that these sub- 
contractors had by giving the contractor receipts for money which 
he had received from the owners to pay these , sub-contractors, and 
had not paid them, led the owner to believe that they had been 
paid, and he thereupon made other payments to the contractor in 
excess of the work which he did or procured to be done upon the 
building and the owner completed the building when the contrac- 
tor abandoned it, it was held that these sub-contractors were not 
entitled to enforce a lien against the owner's land, though they 
had not been paid in full. 

Where a contractor for a building abandons his contract without 
paying a sub-contractor, and the owner of the property, solely with 
the object of procuring the completion of the building, promises the 
sub-contractor that in consideration of such completion, he will 
pay him the debt due from the contractor as well as for the finishing 
work, such contract can be enforced even \f it be oral. Conrad v. 
Kaplan, 24. Man. L. E. 368. 

The iStatutokt Pebcentage. 

Statutory provisions dealing with a fund to be created by the 
owner, out of which persons claiming a lien under, a contract not 
made directly with the owner may be paid, have been! introduced 
into Mechanics' Lien Acts in Canada, for the protection- of sub- 
contractors and others. By these provisions a lien is given to sub- 
contractors and labourers independent of the primary contract. 



LIENS OF SUB-CONTEACTOKS AND WAGE-EABNEBS. 99 

This fund is to be created by the owner deducting a specific statu- 
tory percentage from any payments to be made by him in respect 
of the contract. The Act requires the owner to retain this per- 
centage for the benefit of others who are putting their labour and 
materials into his building. 

This statutory fund arises from and consists of sums deducted 
from "payments to be made." It cannot exist unless there are 
payments made or to be made from which the deductions are made 
which constitute the fund to be charged. The charge is not upon 
money to become payable, but upon money which has actually, 
become payable, a payment which is to be made and is directed to 
be retained. Rice Lewis & Son, Ltd. v. Harvey, (1913) 9 D. L. E. 
per Magee, J.A., at p. 123. So far as the claims of sub-contractors 
and materialmen upon this statutory fund are concerned, in cases 
where by reason of the contractor's default, the money never be- 
comes payable, those claiming under him and having this statutory 
charge upon this fund, if and when payable, have no greater right 
than he himself had and their lien fails because for them, no fund 
came into existence. Russell v. French, 28 0. E. 215; Farrell v. 
Gallagher, (1911) 23 0. L. E. 130. 

The owner is required to retain the statutory percentage whe- 
ther he has notice, of the sub-contract or not, and he pays it to the 
contractor at his own peril, if there be a sub-contractor in exist- 
ence who is prejudiced by the payment. Dominion Radiation Co. 
v. Cann, (1904) 37 F. S. E. 327. 

The property owner is entitled under the Mechanics' Lien Act 
. in Ontario and several other Provinces of 'Canada, to deduct from 
the sums for which he is liable to his contractor on progress cer^ 
tificates while ,the work is going on, twenty per cent, thereof (or 
fifteen per cent, where the contract price exceeds $15,000) for the- 
protection of persons entitled to liens as sub-contractors; and the 
owner is not entitled as against the sub-contractor to apply such 
percentage to answer the cost of completing the work on the con- 
tractor's default. Rice Lewis & Son, Ltd. v. Harvey' et al., (1913) 
9 D. L. E. 114. 



100 THE LAW OF MECHANICS' LIENS IN CANADA. 

The fact that the owner did not retain from his contract "any 
of the percentage of the value of the work as required by the 
Mechanics' Lien Act (Ont.) for the protection of sub-contractors 
and wage-earners, does not make him liable for sub-contractors' 
claims as to which no lien was filed or notice of claim given the 
owner until after the expiry of thirty days following the abandon- 
ment of the work by the principal contractor, the statutory obli- 
gation to retain the percentage being limited to thirty days after 
completion or abandonment of the contract ' with the owner. 
Brooks v. Mundy, (1914) 16 D. L. E. 119. 

The provision requiring the owner to create a fund by deduct- 
ing a specific percentage from any payment to be made by him in 
respect of his contract entitles a sub-contractor to a lien on the 
statutory percentage in priority to any right of set off the owner 
may have against the contractor by reason of his default in the 
performance of his contract. The statute gives a statutory right 
in this fund to the sub-contractor, and no subsequent accruing, 
rights of the owner can prejudice or affect that statutory right. 
The statutory amount of payment which the owner may retain by 
virtue of section 11 (i) of the Mechanics' Lien Act E. ,S. Sask. 
c. 150, 'forms a fund available for the lien holders only, to which 
the owners cannot resort as security against or to make good any 
loss occasioned by the non-completion of the contract. Peart Bros. 
Hardware Co. y. Battell, 23 D. L. B. 193 (1913) ; 9 S. L. E. 305. 

With the exception of the special provision in the case of- wage 
earners, the Mechanics' Lien Act does not make the owner liable, 
for any greater sum than he has contracted to pay. If there be no 
contract to pay except on completion of the work by the contrac- 
tor, and the ' contractor does not fulfil his contract to the extent 
required by the modern interpretation of the rule as to entire con-, 
tracts, nothing is payable. .See H. Dahin & Co. v. Lee, (1916) 1. 
K. B. 566. But where the case can be brought within this modern 
interpretation of the rule as to entire contracts, and upon the tak- 
ing of accounts upon the footing there recognized there is a bal- 



«'^k 



LIENS OF SUB-CONTEACTOBS AND WAGE-EAENEES. 

ance due the contractor, the owner must retain the statutory per- 
centage of this sum for the protection of possible lien holders. 
Burton v. Hoohwith, (1919) 48 D. L. E. 339. 

The special provision for priority of wage-earners whereby it 
is declared that as against wage-earners the percentage required 
to be retained by the owner to answer liens shall not be applied by 
the owner to the completion of the contract on the contractor's 
default, nor to the payment of damages for non-completion does 
not affect the other provisions of the Act regarding Mechanics' 
Liens generally ; and it is not to be implied from such prohibition 
that the owner may in cases other than for wages so apply the 
statutory percentage towards the cost of completion as against the 
liens of sub-contractors or materialmen in the event of the con- 
tractor's default. Rice Lewis & Son, 'Ltd. v. Harvey, (1913) 9 D„ 
L. E. 114. 

When the statutory fund comes into existence, the property 
owner is, as regards lien-holders holding claims against the princi- 
pal contractor, a trustee of the twenty per cent, of payments which 
become due to the latter under the contract during the progrses 
of the work; and the owner will be liable for such percentage so 
far as may be required to satisfy the unpaid lien claims, although 
by his contract he was to pay and did pay the contractor only 80 
per cent, of the value of , the work as certified by progress certifi- 
cates of the architect, where the contractor afterwards abandoned 
the work and the 20 per cent, retained of the value so certified by 
the architect was insufficient to pay the cost of completing the con- 
tract. Bice Lewis & Son, Ltd. v. Harvey et al., (1913) 9 D. L. E. 
114. As to the percentage fund protecting sub-contractors, see 
Annotation, 16 D. L. E. 121. 

The provision requiring the owner to deduct 20 per cent, from 
any payment to be made by him in respect of the contract, when 
applied to a contract providing for payment of 80 per cent, of the 
progress certificates, makes it necessary for him to deduct 20 per 
cent of the 80 per cent. The amount so deducted forms a fund. 




102 THE LAW OF MECHANICS' LIENS IN CANADA. 

for the lien-holders and thereafter it is available for them only, 
and not as a fund to which the owner can resort as security against 
or to make good any loss occasioned by the" non-completion of the 
contract. Peart v. Phillips, (1915) 31 W. L. E. 956 (Bask.). 

The obligation of the owner to retain a statutory percentage 
of the value of the work and materials is limited to the period, of 
thirty days after the completion or abandonment of the contract by 
the contractor with whom the owner has contracted, and where 
such contractor had abandoned the work uncompleted and the 
owner had to pay more than the balance of the contract price to 
finish it, a sub-contractor filing his claim more than thirty days 
after the principal contractor's abandonment, although within 
thirty days of his own last work on the building, has no lien, if 
nothing then remained due the principal contractor. Brooks v. 
Mundy, (1914) 16 D. L. B. 119 (Ont.). In Manitoba it has been 
decided that under a Mechanics' Lien Act enabling claims for liens 
by contractors or sub-contractors to be registered within thirty 
days after the completion of "the contract," a sub-contractor is to 
register his lien within thirty days after the completion of his con- 
tract with the principal or superior contractor. Merrick v. Camp-, 
bell, (1914) 17 D. L. E. 415. 

Lien of the Wage-Eaenee. 

The provisions in the Mechanics' Lien Acts in the various Pro- 
vinces of Canada, aiming to protect the claims of workmen, are 
substantially alike. In some of these Acts special clauses have 
been introduced declaring that as against wage-earners the statu- 
tory percentage required to be retained by the owner to answer 
liens shall not be applied by the owner to the completion of the 
contract on the contractor's default nor to the payment of damages 
for non-completion. These clauses, indeed, may be sufficiently 
broad to afford protection also to sub-contractors under similar 
conditions. Bice Lewis & Son, Lid. v. Harvey, (1913) 9 D. L. E., 
114. But the primary purpose of the legislation is to safeguard the 



LIENS OF SUB-CONTBACTOES AND WAGE-BAENEES. 103 

claims of the wage-earners, and, therefore, provisions dealing with 
the liens of wage-earners are given a liberal construction. A 
workman is entitled to a lien upon the part of a sewer, extending 
below water mark into the ocean, upon which he worked. Baker 
v. Uplands, (1913) 24 W. L. E. 768 (B.C.). 

On the other hand statutory requirements cannot be entirely 
ignored and although a workman under a contract engaged in the 
repair of a building for the owner is entitled to a lien on the 
building for his unpaid wages to the extent of the twenty per cent, 
of the payments made that the owner should have held back from 
the contractor, Carrol v. McVicar, (1905) 15 Man. L. E. 379, 
yet a workman cannot avail himself of a personal - remedy given 
by a special provision contained in some of the Acts against the 
proprietor for the full amount of his claim, in cases where a pay 
list is not kept and the proprietor neglects to see that the workmen 
are paid. Phelan v. Franklin, 15 Man. L. E. 520. A workman 
at a rate per hour is not a workman employed " by the day." Dunn 
v. Sedziak, 17 Man. L. E. 484, 7 W. L. E. 563. 

The lien of the wage-earner being created by the statute is, of 
course, limited by the special provisions creating it and determin- 
ing its scope and extent. It may be entirely dependent upon the 
nature of the work done or the material furnished by the employer 
, of the wage-earner, and the relation that work or material bears to 
the property ultimately benefited by such work or materials. This 
question is dealt with in the next chapter, " The Lien of the 
Materialman." In every case the wording of the particular enact- 
ment must govern. A section in onfe Act gave a lien to whoever 
labors ... in erecting . . . any building thereon by 
virtue of a contract with or by the consent of the owner has a lien 
thereon. A person contracted to furnish completed articles, like 
cut and fitted stones for a building to be erected, and was to have, 
no part in the erection of the building, and it was held that, under 
this Act, his employees had no lien on the building for their labor 
in preparing and completing the articles. Monroe y. Clark, 
(1910) 107 Me. 134, 



104 THE LAW OF MECHANICS' LIENS IN CANADA. 

A workman for the materialman is not entitled to a lien. Allen 
v. Harrison, 9 W. L. E. 198. As to the status of workmen for a 
sub-contractor, see McDonald v. Dominion Iron & Steel Co., 40 
N. S. E. 465. Where a materialman contracts to deliver material 
in a manufactured form, the contract is for materials only, and a 
lien cannot be had for labor performed in manufacturing the 
materials as a claim for labor. Tracey v. Wetherell, (1896) 165 
Mass. 113. The employees of one who contracts to furnish -com- 
pleted articles for v a building, where their employer is to have no 
part in the erection of , the building can have no lien for their 
labor in preparing and completing the articles. Their labor is 
in no proper sense performed in the erection of the building. See 
Webster v. Real Estate Improvement Co., (1886) 140 Mass. 526. 

In the case of a contract not finished and abandoned by the 
contractor, the method of computation in ascertaining the amount 
upon which the percentage provided by the Ontario and similar 
Mechanics Liens Acts is payable to wage-earners, is that the value 
of the work done and materials furnished is to be calculated upon 
the basis of the price to be paid for the whole contract. Cole v. 
Pearson, (1908) 17 0. L. E. 46. See Farrell v. Gallagher, (1911) 
18 O. W. E. 446 ; 23 O. L. E. 130. 

Although at the time of the abandonment by a contractor of 
his building contract there is, by the terms of it, nothing payable 
to him by the owner, a wage-earner may, nevertheless, have a lien 
upon the percentage held back by the owner, and a right to prefer- 
ential payment. Wilhs v. Leduc, (1916) 27 Man. L. E. 72. 

See next chapter, " The Lien of the Materialman." 



CHAPTER VII. 

The Lien of the Matekialman. 

The main purpose of a Mechanics' Lien Act usually is to secure 
a priority or preference to those who add value to specific realty by 
their labor or by material furnished. If the Act itself does not 
create a lien for material no such lien exists. The word " materials " 
includes every kind of movable property. 

The claimant, must bring himself wholly within the terms of 
the statute giving the right to a lien. For instance, in accordance 
with the wording of the Ontario, ManitoBa, and similar Me- 
chanics' Lien Acts, it is not enough that the materials are fur- 
nished to be used upon or in the building, — the lien attaches only 
in virtue of materials- furnished to be used in the making, con- 
structing, erecting, fitting, altering, improving, or repairing the 
erection or building, and the significance of the term "furnishes, 
any material to be used " is that unless the material is furnished 
by the materialman for the purpose of being used in the building 
or other work, or on the land on which the structure is situated, 
it cannot be the subject of a lien', even though used. Brooks-San- 
ford Co. v. Theodore Teller Cons. Co., (19"10) 22 0. L. R. 176; 
Sprague v. Besant, (1885) 3 Man. L. R. 519. 

Material furnished for the construction of a house on a specified 
lot cannot be the basis of a lien if used in building, a house on 
another lot, (Bennet v. Shachford, 11 Allen (Mass.) 444; Bohem 
v. S'eabury, 141 Penn. 594, Burns v. Lane, 23 111. App. 504), 
but Mechanics' Lien Acts in Canada include work done upon the 
appurtenances to the building, and the terms of these Acts are so 
broad that it would probably be held that a lien would attach to the, 
building and the land enjoyed therewith for the construction of a 
sidewalk in the street adjoining the lot, where such sidewalk 
would be necessary for the use of the premises. See Kenny v. 



106 THE LAW OF MECHANICS' LIENS IN CANADA. 

Afgar, (1883) 93'N.Y. 539; Moran y. Chase, (1873) 52 N.Y. 346. 
A materialman is not entitled to register, as one individual claim, 
a lien for the amount due for materials supplied by him to the 
contractor, against all the lands jointly of the owners of different 
parcels, who had made separate contracts, with the contractor for 
the erection of houses on their respective parcels; nor do the 
owners have such interest in one another's land as " owners " so 
as to ehaT^e the other's land for materials furnished at the owner's 
request or for his benefit. Security Lumber Co. v. Plested, (1916) 
27 D. L. E. 441; Dunn v. McCallum, (1907) 14 0. L. E. 249, 

To create a lien on the property of the owner in favor of the 
materialman, there must be a request of the owner and a supplying 
of the materials in pursuance thereof, either upon the owner's 
credit or on his behalf^ or with, his privity or consent, or for his, 
direct benefit. 'Slattery v. Lillis, (1905) 10 O. L. E. 697. 

Bel credere agents supplying materials have such an interest 
in the goods as entitles them to a mechanics' lien as materialmen, 

, and one claim of lien can be filed in respect of all goods supplied 
though from different principals. Gorman v. Archibald, 1 Alta. 

.L. E. 524; Currier v. Friedrich, (1875) 22 <Jr. 243. A foreign 
unregistered company may -file and be. entitled to a lien for ma- 
terials. Wortman v. Frid-Lewis Co., (1915) 33 W. L. E. 119 
(Alta.).. 

The building for which the materials are to be used should be 
identified with reasonable sufficiency, but in Manitoba it has been 
held that a materialman is not bound to show that his materials 
were used in the building; delivery upon the ground for the pur- 
pose of being used is sufficient. McArthur v. Dewar, (1885) 3 
Man. L. E. 72, provided, however, that they were supplied for the 
purpos§ of being used in the particular building for which the lien 
is claimed, or in the construction of any one of several buildings 
for which the materials were supplied. An order for goods fol- 
lowed by the statement: "We have secured contract for hotel 
which requires above goods," was held sufficient identification of 



THE LIEN OF THE MATERIALMAN. 107 

the building to give the person who furnished the goods a lien. 
Dominion Radiator Co. v. Cann, (1904) 37 N. S. E. 237. In 
Ontario it has been held sufficient that the material be furnished 
on the credit of the building for. use therein, it being immaterial 
as between owner and furnisher whether the material is used or 
not (Larkin v. Larkin, 32 0. E. 80), although where articles are 
furnished to a contractor for an experimental purpose, and are not 
incorporated in the building, the furnisher is not entitled to a 
lien. Brooks-Sanford Oo. v. Theodore Telier Co., (1910) 22 O. 
L. E. 176. Where no statutory definition is given, the scope of 
the word "material" is fully discussed in Troy Public Works y. 
City of Yonkers, (1911) 145 App. Div. (N.Y.) 527. Sprague v. 
Besaht, (1885) 3 Man. L. E. 519. Some American and Canadian 
courts hold that there must be an understanding that the ma- 
terials furnished are for a building, though the particular build- 
ing need not be designated or described. See Poison v. Thomson, 
(1916) 29 D. L. E. 399. 

Some of the Acts might imply that to give a lien to the per- 
son furnishing the material he must have supplied it fo» the pur- 
pose of being used in the particular building upon which he claims 
to have the lien. But a reasonable construction of such Acts 
would justify the view that where material is sold for the particu- 
lar, purpose of being used in the construction of certain houses and 
was delivered on any part of the land to be covered by these houses 
or to be enjoyed therewith, the statutory lien for materials so 
supplied arises without the necessity of showing that the material 
was actually used in the erection of a particular building. Sprague 
v. Besant, (1885) 3 Man. L. E. 519; Rittenhouse & Embree Co. 
v. Brown, (1912) 254 111. 549. It would seem unreasonable to so 
construe the Act as to deprive a materialman of a lien who fur- 
nishes material to be used in the erection of several buildings, 
unless he can shew in relation to the building against which he 
seeks to enforce his lien that the particular materials in that build- 
ing were furnished by him for that one particular building. Pol- 
son v. Thomson, (1916) 29 D. L. E. 395, 399. 



108 THE LAW OF MECHANICS' LIENS IN CANADA. 

In this case Cameron, J.A., says, — "I do not gather that it 
was intended to be laid down in Sprague v. Besant that a material- 
man furnishing materials to be used in the erection of several 
buildings could not have a lien against any one of them unless he 
could shew that the particular materials in that building were 
furnished for that one particular building." 

As the lien does not in any event, commence until the sup- 
plier "places or furnishes" the materials, no lien is created for 
materials to be supplied under contract not to the owner, but to a 
contractor, by a sub-contractor, until the materials have reached 
the owner's property. Ealbfleisch v. Harley, (1915) 34 0. L. E. 
268 ; Ludlam-Ainslee Lumber Co. v. Fallis, (1908) 19 0. L. K. 419, 
Smith Co. y. Sissiboo Pulp & Paper Co., (1903) 36 N. S. E. 348 > 
affirmed, (1904) 35 S. C. E. 93. 

In considering more fully a materialman's right to a lien an 
important distinction should be noted between his rights where he 
furnishes materials to contractors and, on the other hand, where 
he furnishes materials to an owner for use in or upon a building. , 
It is rigfit that the owner's land should be subject to a lien for 
materials furnished him to be used in the erection or improve- 
ment of the building whether these materials are actually used or 
not, and it is also right that his land should be subject to a lien 
for materials furnished to a contractor or sub-contractor to be used 
in the erection or improvement of a building, when these materials 
are actually used, and when the lien is limited in the amount to 
the sum justly owing by the owner to the contractor, but it would 
not be just to give the person furnishing materials which were not 
incorporated in the building, or placed upon the land to be affected, 
so as to increase, at least in contemplation of law, the value of the 
land, a tight to payment out of the property of others which had 
increased the value of the realty, or a right against an owner who 
had not bought these materials, and whose land was not even in- 
directly benefited by them. Accordingly, in an Ontario case 
(BrooTcs-Sanford Co. v. Theodore Telier Construction Co., (1910) 



THE LIEN OF THE MATERIALMAN. 109 

22 0. L. E. 176), it has been held that a person furnishing articles 
to a contractor for an experimental use in regard to the work on 
the building is not entitled to a mechanics' lien for such articles 
where they are not incorporated in the building, and that a person 
who sells tools to a contractor for use on a building has no lien 
against the property for such articles. In a previous Ontario 
case (Larkin v. Larkin, (1900) 32 0. R. 80), it had been decided 
that under • certain circumstances a lien might be claimed for 
materials furnished which were not incorporated in the building, 
but the later case has sometimes been relied upon as deciding that 
to entitle the materialman to a lien the materials must have been 
used in construction of the building. The basis of that decision, 
however, was that articles intended to be used only for the pur- 
pose of making an experiment, and not intended for use in the 
building, would not be within the statute as materials furnished 
to be used in the construction of the building. 

It has been held in Saskatchewan and in Maine that it is not 
necessary in order to entitle a materialman to a lien to show that 
the materials were actually used upon the building, the test ques- 
tion being whether the materials were furnished with the intent 
and expectation that they were going into the building. Montjoy 
v. Reward School District Corporation, 10 W. L. R. 282; M&han 
v. Thompson, 71 Me. 492; see also McArthur v. Deimr, 3 Man. 
L. B. 72, where, however, the question is only touched upon, al- 
though the decision holds that the materialman need not shew 
that the material entered into the building. There are conflicting 
decisions in the American courts. See 19 Am. & Eng. Ann. Cas. 
588; Witham v. Wing, (1912) 108 Me. 364. 

The weight of American opinion would seem to favor the 
view that a sub-contractor is not entitled to a lien for materials 
sold to a contractor where the materials are not actually placed in 
the building or upon the land upon which the contractor is erecting 
the building. But according to some American decisions a 
materialman must ordinarily show that his materials were fur- 
nished for and were actually used in the erection of the building 



110 THE LAW OF MECHANICS' LIENS IN CANADA. 

against which the lien is claimed. Potter Mfg. Co. v. Meyer, (1909) 
171 Ind. 513. A reason suggested for such a view is that to give a 
lien for all the material sold for the purpose of going into the 
building, irrespective of the actual use of it for that purpose, might 
have the effect of creating a lien to the full value of the building, 
and the land on which it stands, in favor of parties whose property 
did not in fact go into the building, and thus the persons who had 
in fact erected the building would be deprived of any advantage - 
from the liens given them. See Chapin v. Persee, 30' Conn. 472. 
But in the Mechanics' Lien Acts in Canada there is a clause which 
limits the owner's responsibility to the amount payable to his 
contractor. It would seem that the view that the materials must 
be actually incorporated in the building to establish the lien must 
lead to confusion and frequent injustice in respect of the claims 
of materialmen. At all events, under the Mechanics' Lien Acts 
in Canada, it is not essential to the enforcement of the lien that 
the material placed on the land shall be actually used in the 
building. 

The seeming conflict in the decisions on this question is often 
traceable to the varying statutory provisions. The precise phrase- 
ology of the provisions creating the lien for materials must deter- 
mine the question whether the actual use of the materials is essen- ■ 
tial to the lien. Where the lien is given by the statute for the con- 
struction or improvement of a building or " for, or in the erection 
of a building," the actual use of the articles furnished is not essen- 
tial to the lien of the materialman, but where the lien is given for 
furnishing materials " used " or "to 'be used " in a building or in 
an "improvement" the weight of recent American opinion seems 
inclined to the view that the use of the materials is a prerequisite 
to the enforcement of the lien. Pittsburg Plate Glass Co. v. Leary, 
31 L. E. A. 746; see particularly cases cited at page 758. The 
realty will be liable to a lien if it is the fault of the owner that the 
materials were not used. Salem T. Lane & Bodley Co., 189 111. 
593; Morris County Bank v. Bockaway Mfg. Co., 14 N. J. Eq. 189. 



THE LIEN OF THE MATEEIALMAN. Ill 

When materials are furnished to be used upon the land and are 
placed upon the land they may be considered for the purposes of a 
lien as -if they were incorporated in the structure in course of erec- 
tion. The lien for materials so " placed " commences when the 
materials are placed, but, as against an owner, such a lien cannot 
arise until the materials have reached his property. Smith Co. v. 
The Sissiboo Pulp & Paper Co., (1903) 36 1ST. S. E. 348, 35 Can. 
S. C. E. 93; Kalbfleish v. Hurley, (1915) 34 0. L. E. 268, 25 D: 
L. E. 469. 

Eecent decisions in Canada have placed the law on this ques- 
tion on a , satisfactory and just basis, and it is plain from these 
decisions that if the material be delivered for the purpose of being 
used in the building and is placed upon the land in question, it is 
within the statute, and its actual use in the construction of the 
building is not essential to the creation and enforcement of the lien. 
It is not the actual use of the material in the building that gives 
the furnisher a lien, but the furnishing under a contract for that 
use, and the placing of the material on the land. 

The lien of the materialman is upon the land and structure 
which it is intended to benefit. In the ease of materials supplied 
the lien is given, by the words generally used in the Mechanics' 
Lien Acts in Canada, upon the land "upon which such materi- 
als are placed or furnished.'' Where these quoted words, or 
similar words, are used the general statutory lien upon the land, 
and the special one in the nature of a vendor's lien upon the 
material itself, depend upon the placing of the material- in ques- 
tion upon the land to be affected. Proximity to the land is not 
enough ; the material must be on it, so that in fact or in contempla- 
tion of law the value of the land itself is enhanced by its presence. 
Milton Pressed Brick Go. v. Whalley, (1918) 42 D. L. E. 394; 
Kalbfleish v. Hurley, (1915) 34 0. L. E. 268; 25 D. L. E. 469; 
Ludlam-Ainslee Lumber Co. v. Fallis, (1909) 19 0. L. E. 419. 
In Broohfleld v. Hopgood, (1919) unreported, where materials for 
use in repairing a shop were placed on an adjacent street, it being 
impracticable to place the materials on the sidewalk or within the 



113 THE LAW OF MECHANICS' LIENS IN CANADA. 

building, Wallace, Co.J., decided that to have a lien arise in 
respect of materials furnished for use in a building, the materials 
must be placed on the land, and that the word " upon " in the sec- 
tion of the Nova Scotia Act, which section is similar to section 6 
of the Ontario Act, could not be strained to mean " adjacent to " 
or " near " the land, so as to give a lien upon land in a case where 
materials were not placed' on the land but were left in the adjacent 
street, and -did not come under the control of the "owner." There 
would seem to be an obvious line of demarcation between materials 
which are merely appropriated to a contract by the parties thereto 
or are delivered to the " owner " or contractor, but do not reach 
the land to be affected, and on the other hand, materials which 
are actually placed upon the land to be charged. 

There are some decisions in conflict with this view. In a case 
in Alberta, Canadian Equipment Co. v. Bell, (1913) 11 D. L. B. 
820, where the materials were not placed on the lands to be af- 
fected because there was no room thereon, but they were delivered 
on ground in the immediate vicinity thereof, Scott, J., decided 
that that delivery was, in effect, a delivery upon the land in ques- 
tion. In a later case, in the same Province (Trussed Concrete Steel 
Co. v. Taylor Engineering Co., (1919) 46 D. L. E. 663), the 
material was brought upon the land adjoining, which had been 
acquired by one of the defendants expressly for the storage of the 
materials intended for use in the building. It was contended that 
the claimant was not within the provision of the Act which only 
applied " when any material is brought upon any land to be used 
in connection with such land." Walsh, J., followed the decision of 
, Scott, J -j iu the earlier case. The wording of the Alberta section 
is not identical with the Ontario or Nova Scotia enactments, but in 
any event, it, is obvious that in the decisions of the Ontario and 
Nova Scotia courts the principles of construction applied to this 
provision of the Act differ from those applied by the Alberta Courts. 
In a recent decision of the Appellate Division of the Ontario 
Supreme Court, Hodgins, J.A., referred to the difficulties in 
the way of any other method of establishing a lien than the appli- 



THE LIEN OF THE MATERIALMAN. 113 

cation of the doctrine that the materials must be placed upon 
the land in order to establish the lien. " If a contractor for half 
a dozen different houses buys steel or concrete by wholesale and. 
stores it in the yard, it is in one sense delivered to be used in cer- 
tain buildings. A car of lumber for a particular building may 
be bought in Buffalo f.o.b. there. It is intended to use it in a 
building and on certain land. Yet it would be impossible to give 
the wholesaler or the lumber merchant a lien upon the land merely 
because there was in his mind and that of the contractor an in- 
tention to devote the material in whole or in part to the erection 
of a building or buildings upon certain specified land." Milton 
Pressed Brick Co. v. Whalley, (1918) 42 D. L, E. 394. 

The weight of authority tends to show that before a lien for 
materials can arise the materials must be furnished and placed 
upon the land upon which the lien is claimed. Where material is 
furnished the lien in respect thereof is limited to such material as 
is placed upon the land to which the lien attaches. In an Ontario 
case (Ludlam-Ainslee Lumber Co. v. Fallis, (1909) 19 0. L. E. 
425) Clute, J., after dwelling upon the significance of section 16 
of the Ontario Act, whereby it is in effect provided that the lien 
having attached to the land because of the material furnished and 
being upon the land, the creditors of the person who furnishes the 
same have no right to pursue the property there to satisfy their 
claims, points out that a great mischief would follow a construc- 
tion of the Act which would give to a materialman a lien as soon 
as he delivers the material to the contractor, no matter whether it 
be placed upon the land or not. If the lien attaches to the land 
as soon as the delivery 'takes place by the sub-contractor to his 
contractor, it would follow that what would practically be a mort- 
gage upon land might be created by goods being delivered to the 
contractor at a distance, or even in a foreign country. It seems 
absurd to say that there can be a lien upon land -where the material 
for which the lien is created has never become incorporated with 
the land or been placed thereon. 

MX. — 8 



114 THE LAW OF MECHANICS' LIENS IN CANADA. 

A distinction should be noted 'between the question whether 
there can be a lien for materials furnished but never used, and the 
question whether materials furnished and consumed in the process 
of the work but not entering into and becoming part of the struc- 
ture are "materials" within Mechanics' Lien Acts. Whatever 
difference of. opinion may exist as to the former class of cases, the 
prevailing view is that in the latter class of cases the materialman 
is entitled to a lien, as such materials are used- up in the perform- 
ance of the work on the structure and survive in tangible results 
in* the building itself. The distinction is clearly expressed in a 
New York case : — 

™ The argument that dynamite' is not a material but a part of 
the contractor's plant which like picks or shovels or mechanical 
appliances are used in the performance of work but are not con- 
sidered materials furnished, within the purview of the statute, 
seems to us inherently unsound. A steam shovel, an engine and 
boiler, picks, shovels, crow-bars and the like are tools and appli- 
ances which while used in the doing of the work survive its per- 
formance, and remain the property of their owner. Not so, how- 
ever, with materials that are used up in the performance of the 
work and are thereafter invisible except as they survive in tangible 
results. We think that explosives when used as substitutes for 
other recognized ' materials ' are covered by the same principle. 
They enter into and form part pf the permanent" structure quite 
as much as the earth, rails, ties, culverts and bridges that we can 
see and feel." Schaghticoke Powder Co. v. Greenwich, etc., Rail- 
road, (1905) 183 N. Y. 306, quoted approvingly in Sampson Co. v. 
Commonwealth, (1909) 202 Mass., at p. 335. 

It would seem that an accurate and comprehensive state- 
ment of the law on this question is that a person furnishing 
" materials " is one who supplies towards the making of a struc-. 
-ture matter which may become a part thereof, or which is ex- 
pended in the labor incident to the erection thereof. Troy Public 
Works Co. v. City of Yonkers, (1911) 145 App. Div. (N.Y.) 527. 



THE LIEN OF THE MATEEIALMAN". 115 

A very broad and justifiable interpretation is now given to the 
phrase " one who furnishes material in the erection of a building " 
or any similar statutqry words in a Mechanics' Lien Act. ITnder 
one Act giving a lien to one who furnishes material in the erection 
of a building or for the improvement of real estate it has been 
held that a person furnishing lumber for the forms in which to 
mould the concrete for a building is entitled to a lien, although 
the lumber is destroyed in the use, and becomes no part of the 
building. Avery and Sons v. Woodruff, (1911) 144 Ky. 227, 36 
L. B. A. 866; Chicago Lumber, Co. -v. Douglas, 44 L. E. A. 843; 
Barker Lumber Co. v. Marathon, 146 Wis. 12. See also Moritz v. 
Lewis Construction Co., (1914) 51 L. E. A. 1040. But the lien was 
denied in Builders Material Co. v. Johnson, 158 111. App. 441. 
But if the lumber is only depreciated in value, and is taken away 
by the contractor to be used again for his Own purposes, no lien 
exists for it. Bittenhouse & Embree Co. v. Brown, (1912) 254 
111. 54:9; Hines Lumber Co. v. O'Heron, (1913) 183 111. App. 391. 
While the use of machines which wear out in the use does not give 
a right to a lien for their value as materials, yet the use of 
machines controlled by workmen rendering their labor on a struc- 
ture more effective than if performed with their hands alone does 
not defeat a claim for labor in the operation of the machines. 
Geo. H. Sampson Co. v. Commonwealth, (1909) 202 Mass. 326. 
So, fuses used to explode dynamite are "materials." The 
sticks of dynamite could not be exploded without the use of the 
fuses, and in the process of such work both are entirely destroyed. 
Gunpowder and al] explosives necessarily consumed in the use are 
considered as " materials," and within the meaning of the statute. 
Dupont Be Nemours Powder Co. v. Culgin-Pace Construction Co., 
(1910) 206 Mass. 585; George A. Sampson Co. v. 'Commonwealth, 
202 Mass. 326. Explosives used in the breaking up of earth are 
"materials" used in the improvement of real property. Schagh- 
ticke Power Co. v. Greenwich and Johnsonville By. Co., (1905,) 
2 L. E. A. 288. The. test question is whether the materials were 



116 THE LAW OF MECHANICS' LIENS IN CANADA. 

necessary to the work of erection under the contract, and were 
consumed in the making of the improvememnts. Hercules Powder 
Co. v. KnoxvUle, (1904)' 67 L. E. A. 487. As a general rule arti- 
cles furnished for tise merely as tools and appliances in carrying- 
on the work of construction are not "materials" for which a 
Mechanics' Lien may be claimed. BrooTcs-Sanford Co. v. Hamp- 
den County, 204 Mass. 494; Evans v. Lower, 67 N. J. Bq. 232; 
Builders Material Co. v." Johnson, 158 111. App. 411; Ward v. 
Yarnelle, 173 Ind. 535. 

In a leading American case (Baker & Stewart Lumber Co. v. 
Marathon Paper Mills Co., 146 Wis. 12), materials used in a 
cofferdam constructed specially to make possible the building' of 
the dam contracted to be built, and which were, in effect, de- 
stroyed by their use in the cofferdam or subsequent use, were held 
to be lawful subjects of a mechanics' lien. The court, in that case, 
used the following words which were quoted with approval in an 
important New York case, (Shultm v. Quereau Co., (1914) 210 
N.Y. 257) "It is certainly true that this doctrine must be care- 
fully guarded or it might be carried to extreme and fanciful 
lengths. Thus it might be argued that upon the same principle 
coal that is used in portable engines, oil that is used in the lubri- 
cation of building machinery, and even food which is eaten by 
labourers, are all consumed in the construction of the building 
and hence are lienable materials. But all these things seem quite 
plainly distinguishable. They are at least one step further re- 
moved from the actual work of construction. They have neither 
physical contaet nor immediate connection with the structure at 
any time. They are used only to facilitate and make possible the 
operation of tools, machinery or men, which in their turn act upon 
the structure. No lien accrues for such materials." Eaw ma- 
terial furnished for the manufacture of plaster blocks and tile to 
be used by one having a contract for the fire-proofing work on a 
building may form the subject of mechanics' lien thereon. Hume 
v. Seattle Dock Co., (1914) 50 L. K. A. 153. Coal consumed in 



THE LIEN OF THE MATEEIALMAN. 117 

generating steam in boilers of machinery used in construction of 
an improvement is not material furnished for which a lien can be 
established; Shultz v. Quereau, (1914) 210 K. Y. 257; Sampson 
Co. v. Commonwealth, (1909) 202 Mass. 326; but dynamite used 
in breaking up frozen earth required by a construction contract to 
be excavated so that it could be handled by means of a steam 
shovel 1 , is lienable material furnished for the improvement of real 
property. Schaghticohe Powder Co. v. G. & J. By. Co., (1905) 
183 N. Y. 306. 

The line of demarcation between materials which ordinarily 
enter into or are used in the construction of a building, and, on the 
other hand, the machinery that may be used for the manufacture 
of the materials themselves is rather narrow, but it is obvious that 
the tools used by -a mechanic in building a house cannot be re- 
garded as materials furnished in the construction of the house. 
Broohs-Sanford Co. v. Theodore Tellier Co., (1910) 22 O. L. E. 
176; Friedman v. Hampden County, (1910) 204 Mass. 494. A 
person who fashions structural steel at his factory and supplies it 
to a principal contractor for use in the erection of a building, 
taking no part in the actual construction thereof, is a " material- 
man " only, and not a " sub-contractor." Coughlan v. Carver, 
(1914) 29 W. L. E. 791 (B..C). Under the British Columbia 
Act a "sub-contractor" is not required to give the statutory 
notice necessary in the case of a " materialman." Nor can the 
machinery used in the manufacture, for instance, of the hydro- 
stone blocks and ultimately used in the construction of the build- 
ing be treated as part of the materials used in the structure. Such 
things are to be regarded merely as the plant of the contractor. 

The wording of the particular enactment, and the purpose for 
which the article is used or supplied, are the important factors 
in determining whether the article is lienable material. A claim- 
ant who supplies to a contractor coal which is used for generating 
steam for the purposes partly of running an engine which oper- 
ates a hoist in which the, materials used in the construction of the 



118 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

building are elevated, and partly for heating the building for the 
purposes of drying the plaster during the construction -work, is 
entitled to a lien for the value of the coal supplied. Wortman v. 
Fried-Lewis, (1915) 33 W. L. E. 119. 

1 If the materials are prepared and actually placed in the build- 
ing, the fact that the materials were subsequently removed by the 
owner's direction, upon change of the building plans, will not 
affect the lien for these materials (Fletcher Crowell Co. v. Cheva- 
lier, (1911) 108 Me. 435), and it has been held that old materials 
used in a new building may be subject to a lien. Whitford v. 
Newell, 84 Mass. 424, 36 L. E. A. 871. If after an old building is 
partially repaired it is torn down and a new one erected in its 
stead, the lien claimant can claim a lien on the new building for 
materials furnished 'for and used in the old building which were 
afterwards used in the new building. Nichols v. Culver, 51 Conn. 
177. ' 

If materials have been prepared or furnished as ordered and 
the owner rejects them or neglects to accept them or diverts them 
to other uses a lien will be established. The plaintiff, a sub-con- 
tractor, who installed a furnace in a building was held to have 
strictly complied with his contract with the principal contractor 
and to be entitled to enforce his lien though the furnace which 
he installed was rejected by the owners. Mallettt and Kevar, 14 
W. L. E. 327; Salem v. Bane, etc., Go., 189 111. 593; Sears v. Wise, 
52 App. (N.Y.) 118; Chicago Artesian Wells Co. v. Covey, 60 111. 
73 ; Morris Co. Bank v. Bochaway, 14 N. J. Eq. 198. But a material- 
man has no relief against the land, under the Ontario Act, or simi- 
lar Acts, in a ease where the building was never completed by the 
contractor and the building contract provided that time was of 
the essence of the contract and stated a specified sum for every 
day beyond a stated period that the owner was denied the full 
possession of the premises. McManus v. Bothschild, 25 0. L. E. 
138. Where a materialman contracts to deliver material in a 
manufactured form the contract is for materials only, and a lien 



THE LIEN OF THE MATEKIALMAN. 119 

cannot be had for labor performed in manufacturing the materials 
as a claim for labor. Tracey v. Wetherell, (1896) 165 Mass. 113; 
Donaherv. Boston, (1879) 126 Mass. 309. 

There is no lien if the debt ceases to be for materials, or is 
furnished on general account, and not for a specific building. 
Brooks-Sanford v. Theodore Teller Con. Co., (1910) 22 0. L. E. 
176. A. began to erect a building for X. but abandoned the work, 
and B. agreed with X. to complete it, to pay all outstanding bills, 
X. agreeing to pay a round sum for the whole work, including that 
already done by A. It was held that B. could maintain no lien for 
materials which he had furnished to A. for that debt was merged, 
in the round sum to be paid by A. Whitney v. Jospin, (1871) 108 
Mass.103. See Hatch v. Golman, (1857) 29 Barb. (NVY.) 201, 
Furnishing wood blocks for floor of a bridge over railway tracks, 
after other blocks have been rejected as not conforming to contract, 
was held a furnishing of material within the lien law pf New 
York. In re AUott Gamble Co., (1912) 195 Fed. 465. 

Where part of a claim is for materials and part for labor and 
the claim is so mixed, the contract being entire, that they cannot 
be determined respectively, there is no lien for either. Cogin v 
Walsh, (1878) 124 Mass. 516. See Wetter v. Shupe, (1897) 6 
B. C. E. 58; Smith v.' Sissiboo Pulp and Paper Co., (1903) 36 N 
S. E. 348, (1904) 35 S. C. E. 93. Where the property owner 
joins with the contractor in giving the order for material to be 
supplied in the erection of the building and it is charged to their 
joint account, the owner may be held liable for the full price in a 
mechanics' lieu action brought against them both to enforce pay- 
ment, although Only a lesser sum be due by him to. the contractor. 

A materialman is not entitled to register as one individual 
claim, a lien for the amount due for materials supplied by him to 
a contractor, against all the lands jointly of the owners of different 
parcels of land who have made separate contracts with the con- 
tractor fdr the erection of houses on their respective parcels. Dunn 
v. McCallum, (1907) 14 0. L. E. 249. In this case the owners 



120 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

of separate, parcels of land made separate contracts with a con- 
tractor for the erection of houses on. their respective parcels, and 
, materials were furnished by a materialman to the contractor which 
were used by him in the erection of the houses, and it was held 
that the Act did not empower the materialman to register a lien 
for the total amount against all the land jointly. See Booth v. 
Booth, 3 .0. L. R. 294, Barr v. Percy, (1912) 21 W. L. E. 236 
(B.C). A lien for furnishing new material and replacing it in a 
bridge cannot be claimed by a sub-contractor whose employees by 
negligence had made the new work and material necessary. Rich- 
monol and Irvine Construction Co. v. Richmond Ry. Co., (1895) 
31 IT. S. App.'704. 

A lienholder for materials supplied and used in ' the construc- 
tion of a building upon land subject to an existing mortgage is 
entitled to rank upon the increased value in priority to the mort- 
gage in the proportion only that the value of the materials exclu- 
sively supplied, by him bears to the whole cost of the building, and 
not for any part of the increase/ brought about otherwise. In 
computing this proportionate amount, no regard should be taken 
to amounts paid the lienholder oh account, before the action was 
brought. Security Lumber Co. v. Duplat et al., (1916) 29 D. L. 
K 460 (Sask.). 

Disbursements, such as money advanced to pay freight on 
material furnished for' use in a structure may, although no agree- 
ment was made in advance, to make the payment, be regarded as 
part of the purchase price of the materials furnished {Barker and 
Steward Lumber Co. v. Marathon Paper Mill Co., 36 L. E. A. 
875), but Where a materialman furnished money to a building con- 
tractor to purchase certain material which the materialman did 
not have, he could not claim a lien for the amount so furnished 
{Evans v. Lower, (1904) 58 Atl. Eep. 294; Ooddefroy v. Cald- 
well, 56 Am. Dec. 360), nor will " supplies " include food for men 
and teams while at work. Carson and Co. v. Shelton, (1908) 15 
L. E. A. 509. A person furnishing lead to connect a house with 



THE LIEN OF THE MATERIALMAN. 121 

pipes in the street may hav.e a lien on the house. Feeny v. Boih- 
boum, (1911) 155 Mo. App. 331. In a claim for materials sup- 
plied the work of installation is properly included as part of the 
cost of the materials' in situ. McNab, Harlin Mfg. Co. v. Paterson 
Big. Co., (1907) 72 N. J. Eq. 929. 

A claim for lien against several buildings or lots not adjoin- 
ing or adjacent, on which the work was done and materials were 
furnished under one entire contract, cannot be enforced at all, 
where there is nothing in the claim from which it can be ascer- 
tained how the amount claimed for work and materials is to be 
apportioned among the several buildings. -Schmidt v. Anderson, 
(1912) 253 111. 29. Where the claimant furnishes materials partly 
for sidewalk and partly for other purposes, and part of the ma- 
terial was used for sidewalks, but the claimant failed to show what 
portion went for sidewalks, the claim was held wholly bad, since 
it could not be determined which portion of it was valid. Bradley 
Co. v. Gaghan, 208 Pa. 511. Although the claim must show whe- 
ther it is for work or materials (Norton Construction Co. v. 
Unique Construction Co., 121 App. Div. (N.Y.) 585), yet where 
the contract is entire, a statement of the contract price and the 
total amount of materials furnished is sufficient. Westcott v. 
Bunker, 83 Me. 499; Brown v. Myers, 145 Pa. 17. If a person 
who furnishes material for the improvement of real property fur- 
ther agrees with the owner to use that particular material in the 
erection of any structure upon the lands, he ceases to be a material- 
man and becomes a contractor. Jackson v. Egan, (1910) 138 
App. Div. (IST.Y.) 505. 

A provision requiring an owner to create a fund by deducting 
twenty per cent, from any payment to be made by him in respect of 
a contract for the protection of those who supplied materials to the 
contractor, does not apply to a contract under which nothing was 
payable by the owner to the contractor, — as where during the pro- 
gress of the work the owner had paid the contractor more than the 
value of the work done -and the work as a whole was never com- 



122 THE LAW OF MECHANICS'' LIENS IN CANADA. 

pleted ; under such circumstances the claims of the materialmen are 
not enforceable against the owner. Burton v. Hookwith, (1919) 

48 D. L. K. 339. 

i 

A statement in somewhat indefinite form may be held sufficient. 
A statement that the work performed and materials furnished 
were "plumbing, tinning, furnaces and ranges, as per contract to 
the amount of $2,560, and additional labor to the sum of $77, 
making in all $2,637, upon account of which there has been paid 
$850, and leaving a balance due therefor for $1,787," was held 
sufficient. Clarke v. Heylman, 80 App. Div. (KY.), 572. 

Materials not actually used or delivered to a contractor are 
not " furnished " for the purpose of creating a sub-contractor's 
lien, although they are worthless for any other purpose and were 
prepared for the contractor under a contract which he broke by 
refusing to accept them. Richmond and Irvine Construction Co. 
v. Richmond Ry. Co., (1895) 31 U. S. App. 704, 34 L. E. A. 625. 

Whether the transaction was really materials furnished for a 
building or merely a sale of a chattel is mainly a question of fact. 
If it be shown that such chattels are so attached as to become a per- 
manent part of the structure, and it had been contemplated by the 
parties that they should be furnished, a lien may be enforced by 
furnishing them. See cases cited in Chapter IV., ant e, dealing with 
" Fixtures." 

Articles rented for use in the, construction of the works are not 
materials within the meaning of the statute, and the person who 
rents such articles is not entitled to a lien for unpaid rental. Troy 
Public Works Co. v. City of Yonkers, (1911) 145 App. Div. (N.Y.) 
527. A workman for a materialman is not entitled to a lien. Allen 
v. Harrison, (1908) 9 W. L. E. 198. 

To create the lien the sale of the materials must be with refer- 
ence to the improvement of the land or building. Chapin v. Persse, 
30 Conn. 461,. As to facts which would constitute separate sales of 
materials so as to require separate registrations, see Stephens Paint 
Co. v. Cottingham, (1916) 10 "W. W. E. 627; Ghadwick v. Hunter, 
1 Man. L. E. 39. 



THE LIEN OF THE MATERIALMAN. 123 

The lien will cover only materials furnished by a lien claimant 
and not materials procured by him as the agent for the owner and 
on the credit of the owner, although afterwards paid for by the lien 
claimant. Eerby v. Daly, 45 N". Y. 84. It is a question of fact 
whether the materials were furnished on the credit of the building 
(Hommell v. Lewis, 104 Penn. 465), and the placing of the ma- 
terials in the building in itself would justify a finding that they 
were furnished to be used in the building (Power v. McCord, 36 
111. 214; Martin v. Eversall, 36 111. 222), but the fact that the 
materials are charged to the contractot alone is not prima facie evi- 
dence that his credit was relied on to the exclusion of the credit of 
the building. Hommell v. Lewis, 104 Penn. 465. Entries of charges 
for materials are strong evidence to show to whom they were sold, 
but are not conclusive. Presbyterian Church v. Allison, 10 Penn. 
413. Phillips, s. 124. 

There is a conflict in the decisions in relation to the question 
whether the lien given for labor and materials furnished in respect 
to any structure or land includes hauling the materials there, but 
the generally accepted view is that a mechanics' lien claim may be 
maintained for the transportation and delivery of materials as for 
labor performed, for the erection and construction of a building. 
McClain v. Hutton, 131 Cal. 132. A lien is usually allowed for 
transportation of the materials to be used in the construction of the 
building, 27 Cyc. 44; Fowler v. Pompelly, (1903) 76 S. W. 173; 
Hill y. Newman, (1861) 80 Am. Dec. 473. Teamsters and laborers 
who hauled away the dirt that remained after filling up trenches for 
a heating plant as well as those who dug the trenches, are entitled 
to a lien. Wells v. Christian, 165 Ind. 662. 

In a recent New Jersey case (Davis v. MM, (1914) 86 N. J. L. 
167) 'Chancellor Walker, in delivering the judgment of the Court of 
Appeal, said, "The only openly antagonistic decision that I have 
found is Webster v. Real Estate Improvements Co., 140 Mass. 526. 
I cannot adopt the reasoning used in that case. It is against the 
great weight of authority. The reasons upon which it rests would 
oust a hod-carrier and an architect out of a lien." Under the 



124 THE LAW OF MECHANICS' LIENS IN CANADA. 

Alberta Act it has been decided that the lien would include hauling, 
(Myluzyhh v. N: W. Brass Co., 14 D. L. K. 486) but in a decision 
under the British Columbia Act, a lien for haulage of materials to 
the land where they were to be used was denied. Vannatta v. Up- 
lands, (1913) 12 D. L. R. 669. But one who furnishes a contractor 
with horses and wagons and drivers for use on premises he is im- 
proving is entitled to a lien for their hire. Vannatta v. Uplands, 
, supra. A claim for hauling materials to the building sites to be 
paid for in a lump sum, the haulage being done by persons hired by 
the claimant, and the price including the services of his horses and 
equipment, the claimant having the right to select the mode of doing 
the work, is not a claim for wages, but a claim as' a sub-contractor. 
Stafford v. McKay, (1919) 2 W. W. R. 280 (Sask.). 

The materialman is entitled to include in his lien the charge for 
conveying building materials to the land where they are to be used, 
as that charge should be- considered part of the costs of the material. 

The time for filing a lien for materials furnished to a contractor 
cannot be computed from the date of the last item in the claimant's 
account unless such item was the subject of a lien. Broohs-Sanford 
Co. v. Theodore Teller Co., (1910) 22. 0. L. R. 176. A claimant 
who has supplied material to be used in the erection of a building 
under a contract by which the materials were to be supplied from 
time to time and has filed a lien, which at the request of the owner 
he has subsequently discharged, taking instead an order upon cer- 
tain moneys, which order was not paid, cannot upon supplying 
further material under his contract and within the'statutory period, 
file a lien for . the total amount of his claim. Wortman v. Frid- 
' Lewis, (1915) 33 W. L. R. 119 (Alta.). 

If a plaintiff claims to retain a mechanics' lien by means of 
material supplied and work done after the completion of a building, 
and after the architect has given the final certificate, it is incum- 
bent on him to prove clearly that the material was supplied and the 
work done in pursuance of and as a part of his original agreement 
(Lawrence v. Landsterg, 14 W. L. R. 477), and the question whe- 
ther the material is supplied in good faith for the purpose of com- 



THE LIEN OF THE MATERIALMAN. 125 

pleting a contract, or as a pretext to revive a right to file a lien, is 
a question of fact for the trial Judge, and his decision on such fact 
should govern. Sayward v. Dunsmuir, 11 B. C. E. 375. 

Material furnished after the work is completed will not keep a 
lien alive so as to prejudice others. Renney v. Dempster, (1911) 19 
0. W. E. 644. See Limoges v. Scratch, 44 Can. S. C. E. 86. Claim- 
ants who have done work as sub-contractors under a contract cannot 
for lien purposes dissolve the contract into its original component 
parts and claim to rank as materialmen in respect of the value of 
material covered by their sub-contracts, and claim that they are 
only relegated to the status of sub-contractors with respect to the 
balance of their claims. Wortmanv.Frid-Lewis Co., (1915) 33 W. 
L. E. 119 (Alta.). 

A materialman who without knowledge of the owner furnishes 
a tenant at will with materials for a house, knowing that the tenant 
is not the owner, can have no lien on the porperty. Proctor y. 
Tows, 115 111.. 138. 

If the materials are furnished under a contract for the construc- 
tion of a building for a person who at the time of making the con- 
tract has not the title to the land on which the building is to be 
built, but who afterwards acquires it, the lien extends as well to the 
labor and materials furnished before the deed was delivered as to 
those furnished afterwards. Libbey v. Tilden, (1906) 192 Mass. 
195. In Massachusetts it has also been held that no lien for ma- 
terials can be established against the owner of real estate if the 
materials were furnished under a contract which was made with the 
person from whom he. purchased the property before it was con- 
veyed to him, and no notice was given to him of an intention to 
claim a lien, although a part of the materials were furnished after 
he acquired the title. Martin v. Stewart, (1910) 204 Mass. 122. 

A materialman is not entitled to register, as one individual 
claim, a lien for the amount due for materials supplied by him to 
a contractor, against all the lands jointly of the owners of different 
parcels of land who have made separate contracts with the con- 
tractor for the erection of houses on their respective parcels. 



126 THE LAW OP MECHANICS'' LIENS IN CANADA. 

Dunn v. McCallum, (1907) 14 0. L. E. 249; Security Lumber Co. 
v. Plested, (1916) 27. D. L. K. 441; 34 "W. L. E. 352, 9 Sask. 
L. E. 183. But where one owner enters into an entire contract 
for the supply of material to be used in several buildings, the 
materialman can ask to have his lien follow the form of the con- 
tract, and that it be for an entire sum upon all the buildings. If 
the owner desires to invoke the statute to the extent of having the 
lien upon any building confined to the value "of the material going 
into that building, the onus is upon him to shew the facts, and if 
the facts cannot be ascertained less violence will be done to the 
statute by construing it as indicated than by rendering. it. nuga- 
tory in many instances in which the legislature apparently in- 
tended a lien to exist. Ontario Lime Association v. Grimwood, 
(1910) 22 O. L. E. 17. The Massachusetts decisions uniformly 
hold that where claimants have performed labor upon- several 
buildings situated upon the same lot under an entire contract for 
an entire price, a lien is created upon the whole lot and all the 
buildings, the conclusion being that the parties by their contract 
have connected the several buildings and treated them as one 
estate. Wall v. Robinson, (1874) 115 Mass. 429. 

When can materials be said to be " used " within the meaning 
of this legislation? It would seem to be sufficient to raise a pre- 
sumption that the materials were actually used to show that they 
were furnished to be used in the building and were delivered to the 
builder. It would be unjust to require a materialman to prove 
conclusively that every article furnished by him was incorporated 
in the building. It is not necessary that the materials should be 
delivered at or near the building, so long as they are placed any- 
where upon the land to.be affected by the lien. In one American 
case it was held that the materials might be delivered at some other 
accessible place agreed upon, and convenient for use by the con- 
tractor or owner. A. E. Shortill Co. v. Aetna Indemnity Co., 124 
N. W. 613. But this would not be accepted as a correct construe-' 
tion of similar provisions in the Mechanics' Lien Acts in 'Canada. 



THE LIEN OF THE MATERIALMAN. 127 

It is a question of fact whether the materials were furnished on 
the credit of the building. 

Proof that the materials were delivered at or near the building 
site, at a place designated by the contracting party, and that the 
building was thereafter completed with materials of the descrip- 
tion of those furnished, is prima facie evidence that the materials 
so delivered were used in its construction. Central Lumber Co. v. 
Braddoch Land, etc., Co., (1907) 34 Ark, 560. Under the Al- 
berta Act it has been decided that one who delivers materials for 
use in a building under course of construction by a contractor is 
not, after the latter's default, and the taking over of the work by the 
property owner, entitled to a mechanics' lien for such of the ma- 
terials as were subsequently worked into the building by the latter. 
Unless there was a balance payable by the owner to the contractor 
the claimant's only remedy was by a personal judgment against the 
property owner. Canadian Equipment Co. v. Bell, (1913) 11 D. 
L. E. 820. 

The question has "arisen as to the rights of parties in relation 
to materials which are the subject of conditional sale whereby the 
property does not pass till payment, and also in the case of articles 
supplied but on which the vendor is given a lien until the article 
is affixed to the realty. In some of the Provinces legislation such 
as the Conditional Sales Act (E. S.' 0. 1914, c. 136) exists. It 
has been decided in Ontario that where the claimants of a lien 
upon land for materials supplied for the erection of a building, 
under , a Mechanics' Lien Act, - insist upon the terms of a condi- 
tional Sale contract whereby they have a lien upon the materials 
until payment, they cannot rank as lienholders and compete -with 
others who have no right as against the materials. Hill v. Storey, 
(1915) 34 0. L. E. 489. 

Where the materialman has contracted to supply all of a certain 
class of supplies required in the construction of a particular build- 
ing, as mentioned in the specifications, and he supplies not only the 
goods which were so mentioned but further materials which were 



128 THE LAW OF MECHANICS' LIENS IN CANADA. 

contemplated by his contract as extras or additions, for the amount 
of which the fixed price was subject to increase, the lien for the 
entire bill is not lost by the lapse of the statutory period for filing 
liens between the last delivery of that portion of the goods, the class 
and quantities of which were shown in the specifications, and the 
later delivery of the extras ; the lien in such cases is in time if filed 
within the statutory period following the last delivery of extras. 
Flett v. World Construction, (1914) 15 D. L. E. 628 (B.C.). 

A mechanics' lien will attach for all materials supplied in the 
erection of a building although the time for filing has expired as 
to certain classes of material, ordered at a different time, where it is 
shewn that there was a prior agreement to purchase all material 
required for the, building from such vendor. WhitlocJc v. Loney, 10 
Sask. L. E. 377, (1917) 3 W. W. E. 971, 38 D. L. E. 52. Where 
the property owner joins with the contractor in giving the order 
for material to be supplied in the erection 'of the building and it 
is charged to their joint account the owner may be held liable for 
the full price, although only a lesser sum is due by him to the 
contractor. Rogers Lumber Co. v. Gray, 10 D. L. E. 698 (Sask.). 



CHAPTEE VIII. , 

The " Owner " and his " Interest/'' 

The person who is sought to be held responsible for the pay- 
ment of the claim must be an " owner " of the property within 
the meaning of that term as used in the Mechanics' Lien Act 
under which the proceedings are taken. The lien attaches to the 
estate or interest. of such owner in the realty upon which or in 
respect of which the work or service is performed or the materials 
placed or furnished. A lien cannot be sustained unless the 
"owner" has an estate or interest in the land to which this "lien 
would attach. Litton v. Gunther, 12 0. W. E. 1122; Atkinson Go. 
V. Shields Construction Co., (1909) 76 N. J. L. 751. Actual pos- 
session under a grant from the Crown coupled with ■ a statutory 
right to register the grant, and thereupon to become the owner in 
fee, creates an estate or interest upon which a mechanics' lien may 
attach. Dorrell v. Campbell, 23 B. C. E. 560, (1917) 1 W. W. E, 
500, 32 D. L. E. 44. See also MacDonald v. Hartley, (1918) 3 
W. W. E. 910 (B.'C), which decides that a squatter on Crown 
land who accepts work and materials applied to the erection of a 
building thereon, holds himself out to be the " owner " of the land 
and will be regarded as having an " interest " in the land. 

To be entitled to a lien, the lien claimant must have been em- 
ployed to do the work or furnish the materials by some one having 
either an interest in the land or an interest in a contract made 
with the owner. The persdn with whom the contract was made 
must be an " owner " or else some relation of the parties must 
have existed which would give a right of lien. Gearing y. Robin- 
son, (.1900) 27 O. A. E. 364; Webb v. Gage; (1902) 1 O. W. E. 
327; Flack v. Jeffrey, (1895) 10 Man. 514; Blight v. Ray, (1893) 
23 0. E. 415; Graham v. Williams, (1884) 8 0. E. 478, 9 0. E. 

MX. — 9 



130 THE LAW OF MECHANICS'" LIEN'S IN CANADA. 

458. See also Garing v. Hunt, (1895) 27 0. E. 149; Fuirclough 
v. Smith, (1901) 13 Man. 509; Baker v. Williams, (1916) 23 
B. C. E. 124. 

"Owner" is a variable term, (Prentice v. Brown, (1914) 17 
D. L. E. 36 (Alta.) but the following definition in the Ontario 
Mechanics' Lien Act is substantially the same as in the other pro- 
vincial Acts, — 

" ' Owner ' shall extend to any person, body corporate or poli- 
tic, including a municipal corporation and a railway company, 
having any estate or interest in the land upon or in respect of 
which the work or service is done or materials are placed or fur- 
nished, at whose request and (i.) upon whose credit, or (ii.) on 
whose behalf, or (iii.) with whose privity and consent, or (iv.) 
for whose direct benefit work or service is performed or materials 
are placed or furnished, and all persons claiming under him or 
them whose rights are acquired after the work or service in respect 
of which the lien is claimed is commenced or the materials fur- 
nished have been commenced to be furnished." E. S. 0. e. 140, 
s. 2 (c). Under the Alberta Mechanics' Lien Act, E. S. A. 1906, 
c. 21, s. 11, a mechanics' lien may be acquired on demised pre- 
mises for making alterations therein under contract with the 
lessee, where the" landlord with knowledge that the work was in 
. progress, failed to give notice of non-responsibility. Under that 
section the right to a lien on demised premises for making altera- 
tions therein under a contract with the lessee is not limited to such 
alterations as are beneficial to and which increase the landlord's 
interest in the property. Peters, Bohls v. McLean, (1913) 13 
D. L. E. 519. 

No precise general rule can be laid down declaring what con- 
stitutes " request " or " privity and consent " of the owner. Some 
confusion may have arisen because, in some instances, in deciding 
a particular case upon its own facts, attempts were made to state 
a general rule, which rule as therein stated was too broad for gen- 
eral application. In dealing with this question each case must be 
determined by its own facts, and while there may be special cir- 



THE " OWNER " AND HIS " INTEREST." 131 

cumstances in a case which would justify implying a "request," 
no mere consent to the work, or mere knowledge that the work is 
being done and non-interference can constitute "request" or 
"privity and consent." These words "privity and consent" in- 
volve something in the nature of a direct dealing between the 
contractor and the persons whose interest is sought to be charged. 
Graham v. Williams, 8 0. R. 478, 9 0. R. 458, Gearing T. Robin- 
son, 27 0. A. R. at p. 371 ; Marshall Brick Go. v. York Farmers 
Colonization Co., (1917) 36 D. L. R. at p. 427, per Anglin, J.; 
Marshall Brick Co. x. Irving, 28 D. L. R. v 464, 35 0. L. R. 542 ; 
Eddy Company, Limited v. Chamberlain, (1917) 45 N. B. R. 261. 
Although some Mechanics' Lien Acts contain a provision (see 
R. S. 0. c. 140, s. 14, (2) ) declaring that an unpaid vendor who 
has not conveyed shall be deemed a mortgagee, yet he may also be 
regarded as an " owner " if he fulfils the requirements prescribed 
by the statutory definition of " owner," but mere consent to the 
work or mere knowledge that the work is being done will not make 
a mortgagee liable as " owner " 

An unpaid vendor who advances funds to the purchaser to 
build upon the land is not an " owner " so as to subject the land 
to Mechanics' lien for work done and materials furnished under 
contracts with the purchaser, but such vendor is deemed a " mort- 
gagee " for the purpose of giving priority to the liens upon the 
•increased selling value of the land caused by the improvements. 
MarshaW Brick Co. v. Irving, 28 D. L. R. 464, 35 0. L. R. 542 ; 
Marshall Brick Co. v. York Farmers Colonization Co., (1917) 36 
D. L. R. 420. 

To render the interest of an owner liable, the building, etc., 
must have been at his request, express or implied. A " request " 
within the meaning of the statute may be implied from a variety 
of circumstances. The defendant T., having a lease of land, sublet 
it to the defendant H., the latter agreeing to build upon the land 
according to plans to be approved by T., and H. entered into a 
contract with the plaintiff to build accordingly. It was held that 



132 THE LAW OF MECHANICS' LIENS IN CANADA. 

the taking from H. of an agreement to build was a " request " 
_ from T. and that the interest of T. as owner was subject to the lien 
of the plaintiff under the Act. Orr v. Robertson, (1915) 34 0. L. 
E. 147. It has been held, however, that a defendant, B., the 
purchaser from the defendant S. of land upon which S. was erect- 
ing houses, is not personally liable as " owner " for work done and 
materials supplied by a company in and for the building of the 
houses, — some of the work having been done and some of the 
materials having been supplied after B. took possession, but the 
company having had no communication, direct or indirect, with 
him in regard to work or material. It could not' be said that what 
the company did was done at B.'s request, express or implied, or 
upon his credit, or on his behalf, or with his privity or consent, or 
for his direct benefit. Cut-Rate Plate Glass Co. v. Solodinslci, 
(1915) 34 0. L. E. 604. 

It may happen that the work turns out to the advantage of the 
owner, but this circumstance would not necessarily establish the 
fact that the work was for his " direct benefit." 

A person is not an " owner " so as to make his land liable to a 
lien for materials supplied under a contract with the tenant, for 
the purpose of adding to or improving a hotel upon the land in the 
possession of the tenant with an option to purchase, unless there 
is something in the nature of a direct t dealing between the owner 
and the person furnishing the materials. Eddy Company Limited v. 
Chamberlain, (1917) 45 1ST. B. E. 261. The owners of four lots 
executed an agreement to sell them to one Irving who was to make 
a cash deposit and undertake to build' four houses on the lots, the 
vendors to advance $6,400 for building purposes. On completion of 
the houses and on receipt of the balance of price and amount of 
advances the vendors were to execute a deed of the lots. Irving 
gave contracts for the building which was partly completed, and 
$3,400 was advanced by the vendors when Irving became insol- 
vent, and the vendors, under the terms of their agreement, gave 
notice of forfeiture and took possession of the property. Prior to 



THE " OWNER " AND HIS " INTEREST." 133 

this liens had been filed for labor and materials supplied and the 
lien holders brought action for enforcement thereof against the 
vendors. It was held that the vendors were hot " owners " of the 
property and therefore _ were not liable to pay for the labor 
and materials supplied for the building of the houses of Irving. 
Marshall Brick Co. v. York Farmers Colonizaztion Co., (1917) 
54 Can. S. C. E. 569. 

Under the Mechanics' Lien Act in Manitoba it has been held 
that the Act does not authorize the registration of one lien for one 
lump sum against the lands of different owners, although the work 
may have been done or the materials furnished under one contract 
for the building of houses on the lands of the different owners, 
unless, perhaps, in a case where the lien claimant did not know and 
had no means of ascertaining before filing his lien, that the lands 
were owned by different persons. Builders Supply Co. v. Huddle- 
stone, (1915) 25 Man. L. E. 718. 

A purchaser of an unfinished building whose deed is registered 
prior to the registration of any mechanics' liens without actual 
notice thereof thereby acquires a priority (see Eegistry Act, E. S. 
0. 1914, c. 124) and takes the property free of the liens. Mere 
knowledge that building was going on upon the land does not 
amount to actual notice; nor can the purchaser be deemed an 
" owner " within the meaning of the provision of the Mechanics' 
Lien Act which depends upon privity, consent or benefit, in order 
to charge the land with the liens. Priority of registration in the ' 
absence of actual notice must prevail. Sterling Lumber Co. v. 
Jones, (1916) 29 D. L. E. 288; Cook v. Koldofsky, (1915) 28 
D. L. E. 346, 35 0. L. E. 555 ; Marshall Brick Co. v. Irving, 28 
D. L. E. 464, 35 0. L. E. 542. 

A .contractor's offer to build a pair of semi-detached houses on 
two adjoining lots, owned by different persons, naming separate 
terms for each house, but addressed to both owners together, im- 
plies a distinct acceptance by each of them, and the acceptance by 
one does not create a joint contract binding on both as subjecting 



134 THE LAW OF MECHANICS' LIEN'S IN. CANADA. 

both lots to a mechanics' lien for materials furnished for both 
houses ; nor can the interest of the, accepting owner be charged for 
materials furnished on the adjoining lot not at "his request or 
for his direct benefit." Compeigne v. Carver, (1915) 27 D. L. E. 
76. But if two persons each owning in severalty one or two ad- 
joining lots enter into a joint contract for work to be done on both 
lots under an agreement treating both lots as one, a mechanics' 
lien may be filed on both parcels. Deegan v. Kilpatrich, 54 N. Y. 
App. Div. 374. The distinction between the former and the latter 
case is that the contractor in the former case undertook to proceed 
as on two separate contracts whereas in the latter case there was a 
joint contract. A lien which appears to be for work done, at the 
instance of other persons, without indicating that the work was done 
for the " owner " of the property to be charged, is incurably defec- 
tive, and the owner's subsequent undertaking to assume such lien 
is not binding on him. Northern Plumbing & Keating Co. v. 
Greene, (1916) 27 D, L. K. 410 (Sask.). 

To create a lien on the property of the owner in favor of the 
materialman, there must be a request of the owner and a supplying 
of the materials in pursuance thereof, either upon the owner's 
credit or on his behalf or with his privity or consent or for his 
direct benefit. Slattery v. Lillis, (1905) 10 0. L. E. 677, Blight v. 
Ray, (1893) 25 0. E. 415; Eddy Company, Limited, v. Cham- 
berlain, (1917) 45 N. B. E. 261. If, in addition to the request, 
. one or other of these alternative conditions exist the lien is created. 
Slattery v. Lillis, supra; Sterling Lumber Co. v. Jones, (1916) 
29 D. L. E. 288. A materialman is not entitled to register as one 
individual claim, a lien for the amount due for materials supplied 
by him to the contractor, against all the lands jointly of the 
owners of different parcels, who had made separate contracts with 
the contractor for the erection of houses, on their respective par- 
cels; nor do they have such interest in one another's land as 
" owners " so as to charge the other's land for materials furnished 
at the owner's request or for his benefit. Security Lumber Co. v. 



THE "OWNER" AND HIS " INTEREST." 135 

Plested, (1916) 27 D. L. E. 441, 9 Sask. L. K. 183, 34 W. L. E. 
352. 

The vendor and vendee cannot prejudice the rights of a lien 
claimant by secret agreement. Malmgren v, Phinney, 50 Minn. 
457, 18 L. E. A. 753 ; Henderson v. Connolly, 123 111. 98 ; Gwrlan 
v. Van Rensselaer, 71 Hun. (N.Y.) 2. Where a vendee agrees 
with a vendor to erect certain buildings this makes the vendee an 
" owner," and the entire interest may be bound by him. Borden v. 
Mercer, 163 Mass. 7 ; McCue v. Whitwell, 156 Mass. 205 ; Young 
v. Wilson, 44 N. J. L. 157; Schmalz v. Mead, 125 (N.Y.) 188, 
even where the vendee forfeited his contract. Henderson v. Con- 
nolly, supra. 

A surrender to the vendor by a purchaser in possession under 
an executory agreement will not defeat the lien. Hoffstrom v. 
Stanley, 14 Man. L. E. 227. Under the Alberta Mechanics' Lien 
Act, c. 21, s. 11, Statutes of 1906, owner will include "lease- 
holder " when read with the interpretation clause, s. 2, s.-s. 4, 
extending the term owner to a person having any estate or inter- 
est, legal or equitable, in the land; Prentice v. Brown, (1914) 
17 D. L. E. 36 (Alta.). 

In some American courts it has been held that where the 
building is by the terms of the lease to become the property of the 
lessor, this will be sufficient ground for charging his estate with 
the amounts owing to the lienholders, Williams v. Vanderbilt, 
(1893) 145 111, 238; Showalter v. Loundes, 2 Am. & Eng, Ann. 
Cas. 1096. 

The interest, large or small, of the contracting " owner " will 
be covered by the lien, and if, afterwards, that estate or interest 
becomes less, the lien can still be claimed against the estate or 
interest the owner had at the time the lien attached. Bank of 
Montreal v. Haffner, (1884) 10 O. A. E. 573; Keffer v. Miller, 
(1890) 10 iC. L. T. 90; In re Empire Brewing and Malting Co., 
(1902) 9 B. C. E. 557. The word "interest" is the broadest 
term applicable to claims in or upon real estate, in its ordinary 



136 THE LAW OF MECHANICS' LIENS IN CANADA. 

signification among men of all classes. It is broad enough to 
include any right, title or estate in or a lien upon real estate. 
Ormsby v. Attman, 85 Fed. 492, 29 C. C. A. 295. A squatter on 
Crown land who accepts work and materials applied to the erection 
of a building thereon, holds himself out to be the " owner " of the 
land and will be regarded as having an " interest " in the land. 
Macdonald v. Hartley, (1918) 3 W. W. E. 910 (B.C.). An estate 
in remainder is a legal estate and will support an action under the 
Mechanics' Lien Act. Davis v. MM, (1914) 86 N. J. L. 167. 

In the case of a lessee, while the lien may be enforced against 
the interest of a lessee, some Mechanics' Lien Acts require the con- 
sent of the lessor, in writing, signed by him upon the claim of lien 
before the fee simple can be charged.. 

As a general rule the lien only attaches upon the estate or 
interest of the owner at the time the work or service is performed, 
or the materials • furnished. If, however, an owner having an 
equitable estate, subjects that estate to a mechanics' lien and after- 
wards acquires the fee simple or other larger estate, such -larger 
estate will be subject to the lien. The owner may be estopped from 
setting up the subsequent purchase in answer to the claim of the 
lien holder. Wolfe v. Oxbard, 152 Pa. 623; McGraw v. Godfrey, 
56 ~N. Y. 610. Where labor and materials are furnished under a . 
contract for the construction of a building for a person who at the 
time of making the contract has not the title to the land on which 
the building is to be built, but who afterwards acquires it, the lien 
extends as well to the labor and materials furnished before the 
deed was delivered as to those furnished afterwards. Libbey v. 
Tilden, (1§Q§) 192 Mass. 175. The most frequent instance of an 
equitable estate becoming chargeable is that of a purchaser under 
a contract, which has not been fully completed, the purchaser not 
having acquired the legal title. Even ihen, if upon the comple- 
tion of the contract the vendor takes a mortgage for the purchase 
money, it becomes a prior mortgage under the Act, and the ven- 
dor's interest in the property is only chargeable to the extent pre- 



THE " OWNBB " AND HIS " INTEBEST." 137 

scribed in the Act. See s. 14, s.-s. 2 of Ontario Act, and corre- 
sponding provisions in other provincial Acts. It is probable that 
though the contract is never carried out, the lienholder may assert 
his lien upon the increase in value, against the vendor as if the 
relationship had been that of mortgagor and mortgagee. 

As a general rule it is only the interest of the purchaser that 
is affected by the lien. In a case under the Manitoba Act (British 
Columbia Timber and Trading Co. v. Leberry, (1902) 22 C L. T. 
273) the defendant bought lands from one T., for $1,200 and paid 
$50 on account, balance to be payable immediately. The defend- 
ant took possession and erected a building and made improvements. 
Plaintiff supplied materials and claimed a lien against defendant 
and Townsend, and it was held that the lien only extended to the 
equitable interest of defendant, and that the claim against Town- 
send should be dismissed. The same principle has been applied 
generally in other cases. In Hoffstrom v. Stanley, (1902) 14 
Man. 227, the defendant agreed to purchase land from D. & MeC. 
The price was to be paid August 15th, 1901, and in default D. & 
McC. could either cancel the agreement, in which event any pay- 
ments made became forfeited, or could re-sell and recover any 
deficiency from defendant. No part of the purchase money was 
paid, but defendant made improvements on the land, work upon 
which went on after August 15th, with the .knowledge and concur- 
rence of D. & MoC. Plaintiff was employed by defendant as car- 
penter and claimed a lien. Killam, J., held that, having granted 
an extension, D. & McC. could not cancel the agreement without 
notiee,' and, therefore, the agreement was still subsisting when 
plaintiff did the work. The parties must be, regarded as mort- 
gagor and mortgagee, and plaintiff was entitled to a lien, subject 
to the charge of D. & McC. for unpaid purchase money and inter- 
est. iSo, the holder of a working option on a mineral claim was 
held to have an estate or interest against which a lien might be 
enforced and the interest of the person giving the option to pur- 
chase was not chargeable unless he had brought himself within the 



138 THE LAW OF MECHANICS' LIENS IN CANADA. 

provisions of the Act. Anderson v. Godsall, (1900) 7 B. C. B. 
404. In Saskatchewan it has been held that where the defendant 
held the land under an agreement to purchase he had an interest 
or estate on which the lien would attach. Mountjoy v. Reward 
School District Corporation, 10 W. L. E. 282. 

A person in actual possession of land has a title thereto as 
against all the world except the true owner, and has a sufficient 
interest to come within the meaning of " owner." Blight v. Bay, 
23 '0. E. 415; Beggin v. Manes, 52 O. E. 443, but in order to 
amount to an interest which would support a lien, the actual pos- 
session or interest must exist at the time the materials were or- 
dered. Calvin Walston Lumber Company v. McKinnon, (1911) 
16 W. L. E. 310. A lien can attach to any equitable title or inter- 
est or to any other interest which can be conveyed. Montandon 
v. Deas, 48 Am. Dee. 84; Tracy v. Bogers, 69 111. 662; Franklin 
Sav. Bank v. Taylor, 131 111. 386. A person cannot by a wrong- 
ful act, such as trespassing, constitute himself an "owner." If a 
person without any authority from the then owner erects a building 
upon a lot of land and subsequently becomes owner of the lot on 
which the building is standing, any interest which might have 
been claimed by him in the property under a lien previously as- 
serted by him merges in his title as owner. Calvin Walston Lum- 
ber Company v. McKinnon, supra. Where a conveyance of land 
was made to a husband and wife, each of the grantees is an 
" owner " under the Mechanics' Lien Act, and may by contract 
subject his or her estate to a lien for improvements on the land, 
though the other does not join in the contract (Independence 
Sash Co. v. Bradford, (1911) 134 S. W. 118) ; but a statute vest- 
ing in the holder of a special timber license all rights of property 
in all trees, timber and lumber cut within the limits of the 
license during the term thereofj was construed as not giving any 
estate in the land itself chargeable under the Mechanics' Lien Act. 
Bafuse v. Hunter, 12 B. C. E. 126. Under the Manitoba Act a 
claim of lien cannot be "realized" unless the person who is the 



THE " OWNEE " AND HIS " IETTEBEST." 139 

registered owner of the land at the time of the commencement of 
the action is made a party to it, or unless there is some other 
a tion pending to which such owner is a party, in which the claim 
may be " realized." Abramovitch v. Vrondressi, (1913) 24 W. 
L. E. 439, 11 D. L. R. 352. 

A vendee in possession is an " owner " (Beck v. Catholic Uni- 
versity of America, 62 App. Div. (K. Y.) 599; Courtemanche v. 
Blackstone Valley Co., (1898) 170 Mass. 50; Anderson v. Berg, 
174 Mass. 404), and, indeed, a mere possessory interest or even 
constructive possession, may sometimes suffice to create a lien 
(Christie v. Mead, 8 C. L. T. 312; Prutzman v. Bushong, 83 Pa. 
526), although, sometimes, possession is not sufficient. Fletcher 
Y. Stedman, 159 Mass. 124; Tracy v. Rogers, 69 111. 662. A 
mortgagor is an owner until after decree of foreclosure. Davis v. 
Connecticut Mut. Life Ins. Co., 84 111. 508. A mechanics' lien 
filed against the possessory interest of an entrant to Crown lands 
does not follow on the title if the Crown grant issues to another 
person. In re The Land Titles Act, (1919) 1 W. W. E. 628 (Sauk.). 
Upon the registration of a grant from the Crown where a mechan- 
ics' lien is filed against the interest in the land of a person other 
than the grantee, the lien should be followed on the title unless the 
grant shows on its face that it is a homestead grant. In re The 
Land Titles Act, (1919) 2 W. W. E. 39 (Sask.). 

It has been held that a partner may bind a partnership. 
Christian v. Illinois Malleable Iron Co., 92 111. App. 320. 

A trustee may be an "owner." Springer v. Eroeschell, 161 
111. 358; Weaver v. Sheeler, 124 Pa. 473. A contract for neces- 
sary repairs made with trustee to whom the land has been conveyed 
in trust " to secure and pay over the profits above and beyond all 
necessary expenses," will support a mechanics' lien (Chatham v. 
Rowland, 92 N\ C. 340), but a contract with the trustee, who is 
only authorized to collect rents, for large and expensive improve- 
ments in excess of necessary repairs, would not entitle the con- 
tractor to a lien. Herbert v. Herbert, 57 How. Prac. (N.Y.) 33. 



140 THE LAW OF MECHANICS' LIENS IN CANADA. 

A trustee who is authorized to build may encumber the estate with 
a mechanics' lien. Taylor v. Goldsorf, 74 111. 254. 

A mechanics' lien attaches to the leasehold interest and to 
buildings erected by one tenant and sold to another, who has 
acquired a lease of the same interest, and this, notwithstanding 
the removal of the buildings, at the end of the term, is expressly 
required by the lease. Zabriski v. Greater America Exposition 
Company, (1903) 62 L. Er A. 369. The question whether a lien 
can be created by a trustee against a trust estate depends upon 
the terms of the trust. But property held in trust is not subject 
to a mechanics' lien where the trust deed has been duly recorded 
and prohibits the creating of a lien. Franklin 8. Bank v. Toylor, 
(1890) 131 111. 376. An agreement between vendor and vendee 
that the vendee shall, erect certain buildings may make the vendee 
an "owner." Paulsen v. Manske, 126 111. 72; Borden v. Mercer, 
163 Mass. 7. The vendor and vendee cannot, by secret agree- 
ment, prejudice the rights of the lien claimant. Henderson v. 
Connolly, 123 111. 98; Malmgren v. Phinney, 50 Minn. 457; 18 
L. E. A. 753. A purchaser under a deed held in eserow may sub- 
ject his interest to a lien. Chicago Lumber Co. v. Dillon, 13 Colo. 
App. 196. A mechanics' lien cannot be acquired (under section 
11 of the Alberta Mechanics' Lien Act) on demised premises for 
building or placing therein at the request of the tenant chattels 
or trade fixtures which he may remove at the expiry of his term. 
Peters, Bohls & Co. v. McLean, (1913) 13 D. L. E. 519. 



CHAPTEE IX. 

Essentials to Bind an " Owner." 

To ascertain the rights and liabilities of an " owner " where 
it is sought to charge his interest in the particular lot of land with 
a lien, two important provisions of the Mechanics' Lien Act must 
be considered and read together, — viz. — the section creating the 
lien and the section defining the meaning of the term " owner." 

These two sections in the Ontario Act correspond substantially 
with other Mechanics' Lien Acts in Canada, and one section pro- 
vides that: — 

Unless he signs an express agreement to the contrary . . . 
any person who performs any work or service upon or in re- 
spect of or places or furnishes any materials to be used in 
the making, constructing . . . any erection, building, . . . 
for the owner, contractor or sub-contractor, shall by virtue 
thereof have a lien for the price of such work, service or ma- 
terials upon the erection, building . . . and the land occupied 
thereby or enjoyed therewith or upon or in respect of which 
such work or service is performed, or upon which such ma- 
terials are placed or furnished to be used. E. S. 0. 1914, c. 
140, s. 2 (c). 

The other section defining owner is as follows: — 

" Owner " shall extend to any person, body corporate or 
politic, including a municipal corporation, and a railway com- 
pany, having' any estate or interest in the land upon or in 
respect of which the work or service is done or materials are 
placed or furnished, at whose request, and (i) upon whose 
credit, or (ii) on whose behalf, or (iii) with whose privity and 
consent, or (iv) for whose direct benefit work or service is per- 
formed, or materials are placed or furnished, and all persons 



142 THE LAW OF MECHANICS' LIENS IN CANADA. 

claiming under him or them whose rights are acquired after 
the work or service in respect of which the lien is claimed is 
commenced or the materials furnished have been commenced to 
be furnished. E. S. 0. 1914, c. 140, s. 2 (c). 

And there is also a later section, B. S. 0. 1914, c. 140, s. 8, 
which provides that the lien shall attach upon the estate or inter- 
est of the owner in the property mentioned in the earlier section. 

In order to create a mechanics' lien against any interest in 
land certain things are made essential by the foregoing or similar 
sections. It is plain that the work must be performed, or the 
materials supplied for an owner, and also at his request and upon 
his credit or on his behalf or with his privity or consent or for his 
direct benefit. 

Although the fact that work is done on the erection of a build- 
ing or that materials are furnished, will not necessarily give to any 
one the right to a lien against the realty, yet, on the- other hand, 
to create a lien a Mechanics' Act does not require a contract be- 
tween the person performing the work or furnishing the materials 
and the " owner " of the property. 

To bind the "owner," however, and create a lien against his 
interest, something more than his mere knowledge or mere consent 
to the work being done, is necessary; there must be a request by 
him, either, express or by implication from circumstances, and the 
work must be done or the materials furnished in pursuance of that 
request. Slattery v. Lillis, (1908) 10 0. L. E. 697; Gearing v. 
Robinson, (1900) 27 0. A. E. 364; Marshall Brick Co. Y. Irving 
v. York Farmers Colonization Co., (1917) 54 Can. S. ;C. E. 569; 
Eddy Company, Limited v. Chamberlain, (1917) 45 1ST. B. E. 261; 
Isitt v. Merritt Collieries, (1920) 1 W. W. E. 879. 

The sections of a Mechanics' Lien Act defining the meaning of 
the term " owner " must be read in connection with the section 
creating the lien, and if this be done it will appear that the follow- 
ing essentials must exist in order to create the lien, — 



ESSENTIALS TO BIND AN " OWNEE." 143 

(1) A request by the "owner." 

(2) Work done or materials furnished in pursuance of that 
request. 

(3) The work must be done or the materials furnished either 
(a) upon the owner's credit, or 

(6) on his behalf, or 

(c) with his privity or consent, or 

(d) for his direct benefit. 

Any one of the alternative conditions mentioned in (3) will 
suffice if joined with the essentials specified in (1) and (2). 

The expression " upon the credit of the owner " has a broad 
meaning and does not necessarily mean only upon his credit in the 
sense that a personal obligation was created on his part to the person 
who supplied the materials. Slattery v. Lillis, (1905) 10 0. L. 
E. 697. 

An owner's request may be implied. An agreement for the 
sale of land which contains a covenant binding the purchaser to 
erect certain works on the land at a certain cost and contains a 
covenant by the vendor, the owner, to remit a specified amount 
from the purchase price on the completion of the undertaking, is 
such a request in writing as gives a mechanics' lien arising from 
the erection of the works general application. See section 6, Me- 
chanics' Lien Act, B. C. 1916, c. 154. And therefore the lien is 
not restricted to the increase in value of the premises by reason of 
such works. British Columbia Granitoid, etc., Company, Ltd. y. 
Dominion Shipbuilding, Engineering and Dry Dock Co., (1918) 
2 W. W. E. 919. 

The owner may subject his interest to a mechanics' lien for 
repairs made by a tenant, provided that the owner's consent is 
clearly established. Caring v. Hunt, (1895) 27 0. E. 149. This, 
of course, would not apply where there is a statutory provision to 
the contrary. See Ontario Mechanics' Lien Act. The Alberta 
'Act, e. 21, Acts of 1906, contains a section (.11) which provides 
that : " Every building or other improvement . . . constructed 



144 THE LAW OF MECHANICS' LIENS IN CANADA. 

upon any lands with the knowledge of the owner or his authorized 
agent . . . shall be held to have been constructed at the request of 
such owner . . ." unless notice shall have been given of re- 
pudiation of responsibility. Under this section it was held that 
no lien would attach to bind the owner of land, for work performed 
in mining coal under a lease, at the request of the lessee, not of 
the owner or for his benefit.', Work of mining coal is not work in 
respect of a building or other improvement. It was not improving 
the land but depreciating it: Wester v. Jago, (1917) 33 D. L. E. 
61-7. Under this same important section, where a building was 
constructed with the knowledge of the owner who gave no notice 
disclaiming responsibility, the same Tesult followed as if the build- 
ing had been constructed at the owner's request. Scratch v. An- 
derson, (1908) 33 D. L. E. 620; Limoges v. Scratch, (1910) 44 
Can. S. 0. E. 86. 

In dealing with the question as to what constitutes " request " 
or "privity and consent" of the owner, each case must be deter- 
mined by its own facts. A " request " may be implied from 
special circumstances, (Orr v. Robertson, (1915) 34 0. L. E. 147; 
Cut-Rate Plate Glass Co. v. Solodinski, (1915) 34 0. L. E. 604) 
but the provisions of the Mechanics' Lien Acts in Canada do not 
warrant the view that mere consent to the work or mere know- 
ledge that the work is being done and non-interference will con- 
stitute "request" or "privity and consent." The words "privity 
and consent " involve something in the nature of a direct dealing 
between the contractor and the persons whose interest is sought to 
be charged. Graham v. Williams, 8 0. E. 478, 9 O. E. 458; 
Gearing y. Robinson, (1900) 27 O. A. E. at p. 371; Marshall Brick 
Co. v. York Farmers Colonization Co., (1917) 36 D. L. E. at p. 
427, per Anglin, J.; Marshall Brick Co. v. Irving, 28 D. L. E. 
464; 35 0. L. E. 542; Eddy Company, Limited v. Chamberlain, 
(1917) 45 N. B. E. 261; Slattery v. Lillis, (1905) 10 0. L. E. 
697; Webb v. Gage, 1 0. W. E. 327. The onus of proof of con- 
sent is upon the person claiming a lien against the owner of the 



ESSENTIALS TO BIND AN " OWNER." 145 

property. Marshall Brick Co. v. Irving, (1916) 35 0. L. E. 542. 
" Privity " must . mean knowledge and acquiescence. Marshall 
Brick Co. v. Irving, supra. An express request of the owner is not 
necessary; it may be implied from the circumstances. Fortin v. 
Pound, (1905) 1 W. L. E. 333. Consent may be implied. Yick- 
ery v. Richardson, 189 Mass. 53; Steeves v. Sinclair, 171 N. Y. 
676; Fischer v. Jordan, 169 N. Y. 615; Gilmour v. Colcord, 96 
App. Div. (N.Y.) 358. 

But mere failure to object on the part of the lessor to improve- 
ments by his lessee should not subject the interest of the lessor to 
a lien. Graham v. Williams, 8 0. E. 478, 9 0. E. 458. 

To bind the owner's interest there must be. the request, the 
furnishing of the materials, or the doing of the work, in pursu- 
ance of that request, either upon the owner's credit or on his be- 
half or with his privity or consent, or for his direct benefit. If in 
addition to the request one or other of these alternative condi- 
tions exist, the lien is created. Slattery v. Lillis, (1908) 10 0. L. 
E. 697. 

A contract with the authorized agent of the owner is sufficient 
to create a lien against the property. Interstate Building Assoc, v. 
Ayers, 177 111. 9 ; Mammoth Min. Co. t. Salt Lake Foundry, 151 
TJ. S.- 447. Where the improvement of the premises is the joint 
enterprise of the owner of the premises and the lessee, a provision 
in the lease to the effect that the lessor's interest shall not be sub- 
ject to mechanics' liens for labor or material furnished for the 
improvement is void. Bbyer v. Keller, (1913) 258 111. 106. 

A lease with a building covenant by the lessee and knowledge 
of the work by the owner amounts to " consent " of the owner to 
the building, and creates a lien against his estate. 

The consent must be shown, and' whether .it appears in any 
given case will depend wholly upon the facts of that case. Shaw 
V. Young, 87 Me. 271. 

A mere general consent or requirement on the part of a land- 
lord that the lessee may or shall at his own expense make altera- 

mx. — 10 



146, THE LAW OE MECHANICS' LIENS IN CANADA. 

tions and repairs to premises, does not constitute consent. The 
cases in which such a consent has been implied are cases in which' 
the owner has done some affirmative act respecting the particular 
improvement from which his knowledge and consent may properly 
be inferred. JUtna Elevator Go. v. Beeves, (1908) 125 App. Div. 
(N.Y.) 842. While consent must be something more than mere 
acquiescence in the act of a tenant, who for his own convenience, 
makes temporary erections and additions which he has a right to 
remove during his tenancy, yet if the owner of the building has 
knowledge that certain repairs are necessary and makes no pro- 
vision for them, but is present when they are being made by his 
tenant, and gives no notice that he will not be responsible therefor, 
his consent may be inferred from his conduct considered in connec- 
tion with all the circumstances oj: the case. York v. Mathis, 
(1907) 103 Me. 67. 

In construing Acts which make the consent of the owner suf- 
ficient to bind his interest in the property, and in determining the 
question of consent much may depend on the nature of the work 
done, consent may be inferred for ordinary preservative repairs 
when it would not be inferred for alterations, remodellings, addi- 
tions, or even more expensive repairs. Shaw v. Young, 87 Me. 
271. A lien will be enforced against the owner for repairs -made 
by his lessee where the lease provides that the lessee should make 
such improvements and that the same should become the property , 
of the lessor at the expiration of the lease. Henry v. Miller, (1908) 
145 111. App. 628. 

The consent of the owner or of any person having authority 
from or rightfully acting for such owner is consent to the perform- 
ance of the work or to the furnishing of the materials, not to the 
creating of a debt for such labor or materials. Brown* v. Haddock, 
(1905) 199 Mass. 480; Vickery v. Richardson, 189 Mass. 53. The 
owner by giving a lease in which lessee covenants to keep all the 
machinery in good working order at his own costs, " consents " to 
work done under contract with lessee for the purpose of putting 



ESSENTIALS TO BIND AN " OWNER." 147 

and keeping the machinery in working order. Tinsley v. Smith, 
(1909) 115 App. Div. 708, 104 N. Y. 581. As to provisions in a 
lease which constitute " consent," see New York Elevator Supply 
Co. v. Brewer, 74 App. Div. (NY.) 400; Jones v. Menke, 168 
N. Y. 61; Meistrell v. Baldwin, (1911) 144 N. Y. App. Div. 660. 

Where, by virtue of a special provision of a Mechanics' Lien 
Act, " consent " is sufficient to bind an " owner," express consent 
of the owner is not necessary. Consent may be inferred from 
facts which indicate at least a willingness on the part of the 
owner to have the improvements made, or an acquiescence in the 
means adopted for that purpose, with knowledge of the object for 
which they are employed. The omission of the owner to object to 
improvements made upon his premises by a tenant, when the 
owner has knowledge of the circumstances under which they are 
being made is an important fact bearing upon the question of 
consent. National Wall Paper Co. v. Sire, 163 N. Y. 132, 131. 
Consent to the making of small repairs to an elevator cannot be 
implied under a clause in a lease whereby the lessee agreed to 
keep the premises in good repair, and where nothing appears from 
which it may be inferred that the landlord knew of. or anticipated 
them. Mtna Elev. Co. v. Beeves, (1908) 125 App. Div. (N.Y.) 
842. As to facts showing " consent," see Courtemanche v. Black- 
stone Valley St. R. Co., 170 Mass. 50; Paulsen v. Manske, 126 
111. 72. /Consent may follow from the owner's conduct when ac- 
companied with knowledge of the circumstances under which the 
work is being done. Gannow v. Shepard, 156 Mass. 355 ; Vickery 
Y. Richardson, (1905) 189 Mass. 53; York v. Mathias, 103 Me. 
67; Anderson v. Berg, 174 Mass. 404; Steeves v. Sinclair, 171 
N. Y. 676. 

An owner who has power to choose whether or not his property 
shall be improved, and who executes a lease requiring the tenant 
to make substantial improvements, consents to the improvements 
within the law. McNulty Bros. v. Offerman, 126 N. Y. S. 755, 
141 App. Div. 730. But a lease and contract to convey is not the 



148 THE LAW OF MECHANICS' LIENS IN CANADA. 

" consent " required by the statute to subject" the lessor's title to a 
lien for building, though the erection of buildings was contem- 
plated by both parties, being necessary to the utilization of the 
lease. Currier v. Cummings, 40 N. J. Eq. 145. As to power of 
lessee or vendee to subject owner's interest to lien, see Belnap v. 
Condon, (1908) 23 L. E. A. and cases therein reviewed. When a 
contractor perforins work under a contract with the tenant and 
relies also upon the consent of the owner, he is not justified in 
abandoning the work because the tenant refused to pay or is other- 
wise guilty of a breach of the contract, unless he was actually 
prevented from completing. In order to hold the owner on the 
theory that he consented to the work, the contract must be sub- 
stantially performed. Mitchell v. Dunsmore Realty Co., (1908) 
126 App. Div. (N".Y.) 829. 

If "consent" be made sufficient by the terms of the Act to 
bind an owner, then an owner of the fee of leased land who consents 
that the lessee shall make improvements which shall remain upon 
the property for^ the benefit of the lessor at the expiration of the 
lease, there being no restriction as to the extent of such improve- 
ments, subjects his interest to mechanics' liens for labor and 
materials furnished for. the improvements and cannot be heard to 
say that the cost is excessive or the improvements undesirable. 
Haas Electric & Mfg. Co. v. The Springfield Amusement Park 
Co., (1908) 236 111. 452. Under certain circumstances, where a 
contractor employs necessary workmen the consent of the owner 
to the work done may be implied so as to entitle such workmen to 
a lien. Monaghan v. Goddard, 173 Mass. 468. If a third party 
does the work by consent of all parties, he may be considered as 
entitled to the rights_ of the persons whose places he has taken. 
Moore v. Ericksen, 158 Mass. 71; Security National Bank v. St. 
Croix Power Co., 117 Wis. 211; Murphy v. Watertown, 112 App. 
Div. (N.Y.) 670. 

Where a contract between the lessor and the lessee provides 
for certain improvements, the interest of the lessor cannot be sub- 



ESSENTIALS TO BIND AN " OWNER." 149 

jected to a mechanics' lien for other improvements in the absence 
of any evidence showing -that he authorized or consented to the 
additional work. Bermingham v. Gill, (19H) 164 111. App. 536. 
The mere fact that one tenant in common has notice that re- 
pairs are being made on the property by a purchaser under execu- 
tory contract does not establish consent to a change of the contract 
of sale so as to authorize the purchaser to establish mechanics' liens 
against his interest in the property. Roxbury Painting Co. v. 
Nuter, 123 N. E. 391. 



CHAPTEK X. 

. How Lien Mat be Waited or Defeated. 

In the absence of special statutory provision,, the doctrine of 
waiver would apply to mechanics' liens and a mechanic could 
waive his right to a lien in like manner as he might waive any 
other statutory privilege. 

Mechanics' Lien Acts in Canada not only provide that a lien 
upon realty may be waived as between the immediate parties by 
agreement in writing, but also contain a provision that a person 
who does any kind of manual labor cannot, even by written agree- 
ment, waive his right to a lien. This latter provision in intended 
to protect those who do the manual labor, and its application is 
limited to that, class. 

Even where such a provision does not exist, the waiver to be 
effective must be clear and unmistakable. Concord Apartment 
House Co. v. O'Brien, 128 111. App. 433, affirmed, 328 111. 476. 

The right to a lien is waived where the parties have submitted 
the matters to arbitration and the arbitrators have made an award. 
N. Y. L. Co. v. Schneider, 15 Daly 15 ; but it had been held other- 
wise where there is a revocation of the agreement to submit by the 
lien claimant. Paulsen v. Manske, (1888) 126 111. 72. The right 
to a mechanics' lien may be waived by a contractor for a sufficient 
consideration during the pendency of the work. Kelly v. John- 
son, (1911) 251 111. Eep. .135, 36 L. E. A. 573. 

There is no waiver of a lien upon a certain lot where a form 
of waiver as to that lot had been signed without consideration and 
by mistake, there being no intention to waive, and the claimant not 
knowing at the time of signing that he was to do work on that par- 
ticular lot. The principle of estoppel would not apply in such a 
case. Palfrey V. Brown, (1915) 31 W. L. K. 535. 

The right to acquire a mechanics' lien will not be waived by 



HOW LIEN MAT BE WAIVED OE DEFEATED. 151 

the extension of credit unless the time of payment is extended 
beyond the time within which an action must be commenced to 
enforce the lien. Landsoefg & Go. v. Hein Construction Co., 
(1909) 135 App. Div. (N.Y.) 819. The cases cited in this 
volume, (chap, xii, post) dealing with liens on personalty have 
practically no application where the subject-matter is realty, the 
nature and terms of the statutory provision respecting realty 
negativing such application. 

A claimant who has supplied material to be used in the erection 
of a building under a contract by which the materials were to be 
supplied from time to time and has filed a lien, which at the request 
of the owner he has subsequently discharged, taking instead an 
order upon certain moneys, which order was not paid, cannot, 
upon supplying further material under his contract and within 
the statutory period, file a lien for the toal amount of his claim. 
Wortman v. Frid-Lewis Co., (1915) 33 W. L. E. 119 (Alta.). 

It is for the defendant to show that the lienholder has waived 
his lien. McCabe v. McRae, (1871) 58 Me. 99. A lien may be 
waived for a special purpose, and if so, the courts will confine it to 
the purpose intended, but a general waiver of lien must be enforced 
as made by the parties. Turn-es v. BrencMe, (1911) 249 111. 394; 
Weiss v. Silverman, 58 Can. S. C. E. 363. 

Any person interested in the premises is entitled to rely on 
waiver of lien which is addressed " to whom it may concern." 
Bowers v. Jarrell, (1919) 210 111. App. 256. 

Does the fact that the supplier of materials for improvements 
on land retains the title to the materials until they are paid for 
deprive him of the right to a mechanics' lien? 

The weight of authority justifies the conclusion that the reten- 
tion of title is not inconsistent with the statutory lien and that 
either remedy can be invoked. American decisions incline to this 
view that, although the title to the article supplied is reserved to 
the furnisher of it until payment is made, this fact does not 
amount to a waiver of the right to a mechanics' lien. While a con- 
tract of this kind may be in form of a lease, it is in substance an 



152 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

agreement for sale and a lien upon the article supplied, as security 
for the purchase price, whereas the Mechanics' Lien Act creates a 
lien- not only upon the article supplied but upon the real estate 
upon which it was placed. " The former was a lien by contract, 
the latter by statute; and neither is destructive of the other." 
United States Construction Co. y. The Bat Portage I/umber Co., 
(1915) 25 Man. L. E. 793; Hoover v. Featherstone, 111 Fed. at 
p. 95. See also Chicago and Alton B. B. Co. v. Union Boiling 
Mills Co., 109 U. S. at p. 720 ; Salt Lake Hardware Co. v. Chair- 
man Mining Co., 128 Fed. 509. 

But while the retention of title is not inconsistent with the 
statutory right to a mechanics' lien, if a lien claimant invokes the 
provisions of the Mechanics' Lien Act to enforce his claim for the 
materials furnished for and erected in a building, the view seems 
justifiable that he should be taken to have thereby elected to make 
them a part of the building and realty against which he claims the 
lien and to be thereafter estopped from claiming that the materials 
are his property and that he has a right to remove them. See 
United States Construction Company v. The Bat Portage Lumber 
Company, Limited, (1915) 25 Man. L. E. at p. 797. Where both 
remedies are statutory a plaintiff who resorts to one of these reme- 
dies, (under the Woodmen's Lien Act) cannot obtain another 
judgment under the Mechanics' Lien Act for the same claim. 
Wake v. C. P. L. Co., (1901) 8 B. C. E. 358. Articles sold under 
a lien agreement, whereby the vendor retains the ownership and 
possession until paid, affixed permanently to the floor of the build- 
ing, with the vendor's knowledge and consent, become part of the 
realty. A purchaser of realty is not bound to search for liens 
against goods which under the law have become part of the realty. 
Berlin Interior Hardware Co. v. Colonial I. and L. Co., 38 D. L. 
E. 463, 11 Sask. L. E. 46, (1918) 1 W. W. E. 378. 

It would seem also that the effect of the special provision con- 
tained in the Mechanics' Lien Acts in Canada (E. S. 0. c. 140, 
s. 6) declaring that "Unless he signs an express agreement to the 



HOW LIEN MAY BE WAIVED OE DEFEATED. 153 

contrary, any person who performs any work or service upon or in 
respect of or places or furnishes any materials to be used in the 
making ... of any erection- . . . shall . . . have 
a lien" must prevent a waiver of the statute by the lien claimant 
except by an " express agreement." As this statutory provision 
declares that only a signed express agreement can prevent a lien 
claimant from asserting a lien, it must follow that an estoppel in 
pais cannot prevent such lien. Anderson v. Fort William Com- 
mercial Chambers Ltd., (1915) 25 D. L. E. 319; United States 
Construction Co. v. The Bat Portage Lumber Co., Limited, 
(1915) 25 Man. L. R. 793. "It would emasculate this section to 
hold that an estoppel in pais would do what the section declares 
only a signed agreement can do." Anderson v. Fort William Com- 
mercial Chambers Ltd., supra, per Eiddell, J. 

Under the Manitoba Mechanics' Lien Act it has been held that 
where a building contract provides for a time of payment later 
than the time within which a lien can be filed, the lien is waived. 
Ritchie v. Grundy, (1890) 7 Man. L.E. 532 ; see Scheid v. Rapp, 121 
Pa. 593. But if, by the contract, a promissory note or other security 
for the price of the work is to be given within the time for enforc- 
ing a mechanics' lien, the implied agreement to waive the lien is 
conditional upon the giving of the note or other security. Ritchie 
v. Grundy, supra. 

A materialman's waiver of lien, under seal, given to the contrac- 
tor and presented to the owner's agent, is supported by sufficient 
consideration where it is given to enable the contractor to get money 
belonging to the owner from such agent which the agent pays to 
such contractor. P. A. Lord Lumber Co. y. Callahan, (1913) 181 
111. App. 323. 

A builder may waive his right to a lien remedy but, where 
the terms of the alleged waiver are ambiguous, the doubt should 
be resolved against the waiver, as it should be presumed that one 
has not disabled himself from the use of so valuable a statutory 
privilege. Hence it would seem that an agreement in a building 



154 THE LAW OF MECHANICS' LIENS IN CANADA. 

contract not to permit or suffer a mechanics' lien to be filed or 
remain on the property is not a waiver of the contractor's* statutory 
right to file a lien on his own behalf. Eertscher & Co. y. Green, 
(1910) 124 N. Y. S. 461, (1911) 127 tf. Y. S. 127 ; Davis v. 
La Crosse Hospital, 121 Wis. 579. One who furnishes a defaulting 
contractor with building materials under a. guarantee of' payment 
from the property owner is not entitled to a mechanics' lien against 
the property unless there is a balance payable by the owner to the 
contractor ; his remedy is by a personal judgment against the pro- 
perty owner. Canadian Equipment & Supply Co., Ltd. v. Bell & 
Schiesel, (1913) 11 D. L. ft. 820, 24 W. L. E. 415 (Alta.). 

A clause that the " lessee " shall permit no mechanics' liens to 
attach to the " premises," is construed as merely a covenant on the 
part of the lessee that he would discharge such liens, and such 
clause would not prevent a lien from attaching as between the 
owner and the party otherwise entitled thereto. Carey-Lombard 
Lumber Co. v. Jones, (1901) 187 111. 203. 

A claimant who files a claim for lien does not thereby waive 
any other right he may have against his debtor in respect to the 
claim. Dunn y. Stoherm, (1855) 43 N. J. Eq. 401. Nor does he 
waive his lien by bringing an action at law for his debt and at- 
taching the real estate against which he is seeking to enforce his 
lien. Angier v. Bay State Company, (1901) 178 Mass. 163. As 
to stipulation constituting express waiver, see Stoneback v. Waters, 
(1901) 198 Pa. 459 ; Pinning v. Shipper, 71 Md. 347. - 

Where a contractor agreed to. build a house for a price named, 
one-half to be paid when the shingles and clapboards were on, and 
the other hajf when the house was finished, it was held that this 
contract did not stipulate for a credit, inconsistent with the enforce- 
ment of the lien, and could not be considered as a waiver of it. 

A waiver does not result, as a matter of law, merely from the 
fact that the owner, when ordering materials, agreed to give and 
afterwards did give the materialman" a mortgage on other land " as 
additional security." The question whether the mortgage was 



HOW LIEN MAT BE WAIVED OE DEFEATED. 155 

intended to be in lieu of a lien is a question of fact for the trial 
court. Halstead and Harmount Co. v. Arich, (1904) 76 Conn. 
382; 

A provision in a contract postponing the final payment until 
32 days after the work was entirely completed, and requiring pay- 
ment only on sufficient evidence that all claims upon the building 
for work or materials were discharged, is not inconsistent with the 
existence of a right on the part of the contractor to secure the 
payment of his dues by claiming, a lien. Poirier v. Desmond, 
(1900) 177 Mass. 201. 

Although in Manitoba it has been held that a lien claimant 
who takes a promissory note for the amount of his claim and dis- 
counts it thereby forfeits, his right to a lien (Arluthnot & Go. v. 
Winnipeg Mfg. Co., 16 Man. L. E. 401) there is authority for 
the view that a lien claimant does not waive his lien by taking and 
negotiating the owner's promissory note from the contractor. 
Coughlin v. National Construction Co., 14 B. C. E. 339 ; Gorman 
v. Archibald, 1 Alta. E. 524; Clarice v. Moore, (1908) 1 Alia. 
-L. E. 49; Makins v. Bobinson, 6 Ont. 1; Kendall v. Fader, 199 
111. 294; Breckenridge) v. Short, 2 Alta. L. E. 71. In a decision 
by a Saskatchewan court (Swanson v. Mollison (1907) 6 W. L. 
E. 678, Stuart, J., questions the soundness of the view expressed 
in the Manitoba judgment, and says : "In Wallace on Mechanics' 
Liens, 1st ed. (1905) p. 150, there is the following note to the 
similar clause in the Ontario statute, 'After the note has been 
negotiated, the debt then becomes due to a third party, and the 
original creditor becomes guarantor of the payment of the debt. 
While the note is in the hands of the third party, no proceedings 
can be taken to enforce the lien. If the lien claimant pays the 
note, and is the holder of the note at the time he begins proceed- 
ings, the fact of his having negotiated the note will not take away 
his lien.' This paragraph seems to me to contain a much more 
reasonable principle than that contained in the Manitoba case." 
Eockel on Mechanics' Liens, (1909) also supports this view, in 



156 THE LAW OF MECHANICS' LIENS IN CANADA. 

these words: ".Some few courts have held that the taking of a 
note operates as a payment of the debt and waives the lien. But 
the great weight of authority now is that the taking of a note is 
neither a waiver of the lien nor a payment of the debt unless it is 
expressly agreed that it shall have that effect or there is a manifest 
intention that it shall so "operate." The decision in the Manitoba 
case, however, follows a decision of the Supreme Court of Canada 
(Edmonds v. Tiernah, (1892) 21 Can. S. C, E. 406), which dealt 
with a case under the British Columbia Mechanics' Lien Act, and . 
held that the plaintiff who had taken a note for the amount of his 
claim, which he had negotiated, had thereby lost his lien, notwith- 
standing that the note had been dishonoured and taken up by him. 
Eeferring to this latter decision, Stuart, J., in an Alberta case 
says : " I find myself quite unable to tell from the reasons given, 
what was the ground on which the judgment was based. The last 
sentence is : ' Had the note not been negotiated by the appellant, 
different considerations might have prevailed,' — which would 
seem to indicate that it was considered that the mere giving of the 
note might nqt have been deemed a waiver or extinguishment of 
the lien, though the reasons given do not make clear what differ- 
ence the negotiation makes." Stuart, J., also quotes the following 
passage from Phillips on Mechanics' Liens, "It has been argued, 
that although the acceptance of negotiable paper is not a waiver 
of the lien, yet a negotiation of it operates as an extinguishment. 
This argument has not been generally assented to. On the con- 
trary, it has been almost universally held that the negotiation pro- 
duces no other effect than to suspend the right of the mechanic to 
sue until the instrument is returned to him unpaid." Various 
Mechanics' Lien Acts in Canada now contain a special provision 
which declares that the taking or the discounting or negotiation 
of any promissory note shall not waive or prejudice any lien 
created by the Act. 

The lien is not waived by the acceptance of drafts by the 
debtor (Bradford Neill & Mahrike Const. Co., (1897) 76 111. App. 



HOW LIEN MAY BE WAIVED OR DEFEATED. 157 

488), or by the taking of collateral security unless the parties so 
intended. Bryant v. Grady, 98 Me. 389; McLean v. Wiley, (1899) 
176 Mass. 233; Frith v. Rehfeldt, (1909) 130 App. Div. (NX) 
326, affirmed 164 N.Y. 588; Sorg v. Crandall, (1907) 129 111. App. 
255 ; affirmed Lowden v. Sorg, 233 111. 79. 

The general rule in the United States is that a note is not such 
a payment as will extinguish the lien unless it was so agreed. 
See Pollock Bros. v. Niall-Herin Co., (1911) 35 L. E. A. 13, and 
particularly cases cited at page 93 of that report. See also Moore 
v. Jacols, 190 Mass., (1906) 424. The intention to waivethe 
right to a lien by the taking of a note must be clearly established. 
Paddock v. Stout, (1888) 121 111. 571. Unless the note is. paid 
it will not waive the right to a lien. Goole v. Gale, 41 Am. Dec. 
219. The giving by the claimant, of a receipt "in full" for' the 
owners or the contractor's note will not discharge the lien, unless 
a clear intention is shown. Smalley v. Ashland Brown-Stone Co., 
(1897) 114 Mich. 104. 

The fact that promissory notes have been accepted in payment, 
is not a waiver of the right of the sub-contractor to file a lien where 
the time of payment is not extended beyond the time within which 
an action must be commenced to enforce the lien. Landsoerg & 
Co. v. Rein Construction Co., (1909) 135 App. Div. (IX) 879. 

Special provisions in Mechanics' Lien Acts in 'Canada dealing 
with the taking of collateral security, must be followed. 

The doctrine of estoppel is frequently invoked in connection 
with proceedings under the Mechanics' Lien Acts. 

If, as is probable, the mechancis' lien should be considered as 
a charge or mortgage created upon his interest or estate by the 
" owner," the principle applied in .the case of a mortgagor who 
acquires the legal estate after the making of the mortgage, would 
be applicable; the mortgagor is said to be estopped from denying 
his title. 

The application of the principle of estoppel in such eases 
should, however, not be relied upon to too great an extent. The 
lien is purely statutory and is limited by the words of the stat- 



158 THE LAW OF MECHANICS' LIENS IN CANADA. 

ute. It extends only to the estate or interest of the " owner," that 
is, of the person who makes the contract, and it may well be 
argued that only the estate or interest at the time of the making 
of the contract is bound by the lien. In Ontario, under the 
Mechanics' Lien Act, it has been held that an estoppel in pais from 
claiming such lien cannot arise, and such right can only be waived 
by a signed agreement. Anderson v. Font William Commercial 
Chambers, 25 D. L. E. 319, 34 0. L. E. 567. 

Fraud, misrepresentation or concealment will estop the owner 
of the fee from setting up his title in answer to the claims of the 
mechanic. He cannot take advantage of his own wrong to gain 
improvements on his property. iSo, where a purchaser takes a 
conveyance to his wife in order to defeat a lien, or purchases a 
property formerly owned by him and subject to a mechanics' lien, 
at a tax sale, the lien would be upheld. HooTcer v. McGlone, 42 
Conn. 95 ; Schw'artz v. Saunders, 46 111. 18. 

The conduct of a mortgagee may enable the principle of 
estoppel to be applied to him. If in a suit to establish a mechanics' 
lien as against a mortgagee from A., it appeared. that A. had only 
an instantaneous seisin of the land on which the lien was claimed, 
yet it also appeared that A. falsely represented to the lien claimant 
that he was the owner of the land and thereby induced the lien 
claimant to enter into the contract under which his lien was 
claimed and the mortgagee, when he took his mortgage, knew of 
the lien claimant's claim of lien and also of the false representation 
and inducement, whether the mortgagee as well as A would not be 
estopped from denying A.'s ownership of the land, quaere. Sprague 
V. Brown, (1901) 178 Mass. 597; Ready v. Pinhham, (1902) 181 
Mass. 351. - 

The doctrine of estoppel is frequently invoked to prevent a 
lienholder from enforcing his lien against innocent third persons 
whom he has misled. This doctrine would apply if a lienholder 
purposely suppresses the fact that he is entitled to a lien and 
thereby induces another to act to that other's injury upon the 
belief that the lienholder has no such right. Estoppel would also 



HOW LIEN MAT BE- WAIVED OE DEFEATED. 159 

or makes a similar misrepresentation so that the subsequent en- 
forcement of a lien on his part would be a fraud upon innocent 
third persons. McGraw x. Bayard, 96 111. 146; Hinchley v. 
Greatly, 118 Mass. 595 ; Howard v. Tucker, 1 B. & Ad. 712. 

If a person is induced to purchase property upon the represen- 
tation of another that he has no lien thereon, such other is subse- 
quently estopped' from asserting a lien to the detriment of the 
person who has made such purchase. Heskins v. Hesley, (1909) 
152 111. App. 141. 

Mechanics' Lien Acts in some of the Provinces of Canada 
require the written consent of the owner of the land before his 
interest can be made subject to liens filed for improvements made 
at the instance of the lessee, but under other Mechanics' Lien Acts 
in /Canada, if an owner of the land allows, without protest or no- 
tice, such improvements to be -made by the lessee, the interest of 
such owner becomes subject to the liens filed. Limoges v. Scratch, 
(1910) 44 S. C. E. 86. 

If the true owner has so acted as to mislead a purchaser into 
the belief that the person dealing with the property had authority 
to do so, a good title is acquired by personal estoppel against the 
owner. Simmons v. London, (1892) A. G. 215. See Maple City 
Oil & Gas Go. v. Charlton & Bidgetown Fuel Supply Co., (1912) 
22 0. W. E. 882. In Indiana it has been decided that an owner 
may not stand by without objection and see another in good 
faith improve and enhance the value of his property and retain 
these benefits without paying for them. Lengelsen v. McGregor, 
162 Ind. 258. A special provision in the Alberta Mechanics' Lien 
Act protects such claimants. 

If the true owner of property stands by and permits another 
to deal with it as owner, he will be estopped as against a purchaser 
for value. Estoppel does not require for its operation that the 
purchaser shall have acquired the legal estate; a change of his 
position on the faith of the misrepresentation is all that is essen- 
tial. Ewart on Estoppel, 140, 263. Having been silent as to his 
apply where a lienholder wrongly represents that he has been paid 



160 THE LAW OE MECHANICS' LIENS IN CANADA. 

alleged rights -when he ought to have spoken, he should not be 
heard to speak when he ought to be silent. Morgan v. Railroad;, 
(1877) 96 U. S. 720. But if he is not obliged to speak his silence 
may not work an estoppel. Billings Go. v. Brand, 187 Mass. 417; 
Bruce Lumber Co. v. Roos, 67 Mo. App. 264. As to the conclus- 
iveness of a judgment, as between the plaintiff and one not a party 
nor privy, but who voluntarily conducted the defence, see -Imdy 
v. Larsen, (1911) 78 N. J. Eq. 237. 

In Alberta it has been held that on the trial of a mechanics' 
lien action involving materials supplied to a building contractor, 
a receipt of the materialman for a fictitious payment intended to 
assist the- contractor in obtaining an advance from the owners will 
not necessarily be charged against the materialman (Howlett v. 
Doran, (1913) 11 D. L. E. 372 (Alta.), but in British Columbia a 
person who supplies" materials and during the course of construction 
gives a receipt for payments which he had never received is estopped 
from claiming such amount against the owner under mechanics' 
lien proceedings. Coughlan v. National Construction Co., 14 B. C. 
E. 339. 

In Alberta, a firm of sub-contractors claimed a lien for work 
done as against the owner, but it appeared that they had given 
the contractor receipts for money which he had received from the 
owner to pay them and had not paid them, the sub-contractors 
thereby leaving the owner to believe that they had been paid. In 
that belief, the owner made other payments to the contractor in 
excess of the work he did upon the building, and also made pay- 
ments to another sub-contractor and lienholder. In the circum- 
stances, these sub-contractors were not entitled to enforce a lien 
against the owner's land though they had not heen paid in full for 
the work done and materials furnished by them. Bingland v. Ed- 
wards, 19 W. L. E. 219. 

A principal, who knowing that an agent with a limited author- 
ity is assuming to exercise a general authority, stands by and 
permits third persons to alter their position on the faith of the 



HOW LIEN" MAY BE WAIVED OK DEFEATED. 161 

existence in fact of the pretended authority, cannot afterwards 
against such third persons, dispute its existence. If an agent is 
vested with general" authority, and such authority is subsequently 
sought to be limited by writing, notice of such subsequent limita- 
tion must be conveyed to third parties having dealings with the 
agent. In the absence of such notice the principal is estopped 
from setting up the limitation as against a third party acting bona 
fide. Sayward v. Dunsmuir, 11 B. ,C. K. 375. 

A husband who as owner enters into a contract with a builder 
cannot subsequently claim that he was acting solely as agent for 
his wife. Sidney v. Morgan, 16 W. L. E. 123 (BjC). See other 
eases cited under "Married Women's Property, ante. 

If the true owner stands by while another is making a contract 
and encourages the builder to perform the same, his conduct will 
operate as an estoppel. Bastrup v. Prendergast, 179 111. 553. Con- 
spiracy or deceit in preventing the attaching or enforcement of a 
lien would be sufficient to justify an action at law. Ellenwood v. 
Burgess, 114 Mass. 534, 539". See also Kilourn v. Bice, 151 Mass. 
442. 

If the owner holds a person out as having authority he will not 
be permitted subsequently to assert the contrary. Hough v. Collins, 
70 111. App. 661. 

Whether authority has been conferred on an agent is a question 
of fact, and such authority may be inferred from the acts of recog- 
nition by the principal. Sayward v. Dunsmuir, (1904) 11 B. C. B. 
375. There may be authority by estoppel. If A. has by words of con- 
duct held out B., or enabled B., to hold himself out as having the 
authority of the former to act for him, A. is bound as regards 
third parties by the acts of B., to the same extent as A. would 
have been bound if B. had in fact had the authority which he was 
held out as having. 

Any act or neglect of the lien claimant' which induces a person 
to rely upon the non-existence of the lien, may defeat the lien by 
estoppel. Thus, where the holder of a mechanics' lien stated at a 

m.l. — 11 



162 THE LAW OF MECHANICS' LIENS IN CANADA. 

sale that there was no incumbrance on the estate and advised a 
party to buy it, who, relying on the' statement, became the pur- 
chaser, the lienholder cannot set up his lien. Hindhley v. Greany, 
(1875) 118 Mass. 595; Fowler v. Parsons, (1887) 143 Mass. 401. 
See also cases cited in vol. 20, Am. &- Eng. Bncy. of Law, 2nd ed. 
at p. 497. A mechanics' lien can be enforced against the owner of 
a lot who knowingly suffers a verbal sale of it through an agent 
to a person and the erection of a building thereon by the purchaser 
pursuant to such sale. West v. Pullen, (1900) 88 111. App. 620. 
See on this question pf estoppel, Sprdgue v. Brown, (1901) 178 
Mass. 220; Saunders v. Bennett, (1893) 160 Mass. 48; and Angel 
v. Joy, (1911)' 1 K. B. 666. It is not necessary to an equitable 
estoppel that the party should design to mislead. On the general 
principle of estoppel, see Citizens Bank of Louisiana v. First Na- 
tional Bank of New Orleans, (1873) L. E. 6 H. L. 352, 360, 361; 
Ghadwick v. Manning, (1896) A.' C 231; George Whitechurch 
Ltd. v. Cavanagh, (1902) A. ;C. 117. 

By guaranteeing the performance of a building contract a sub- 
contractor estops himself from claiming a lien upon the building 
which was abandoned by the contractor and constructed by the 
owner (Frohlich v. Ashton, (1900) 164 Mich. 132) but there is 
no estoppel generally unless, without it, a wrong will result from 
the action of the party against whom the estoppel is sought. Hughes 
v. McCashland, (1906) 122 111. App. 365; Badger Lumber Go. v. 
Mulheback, 190 Mo. App. 646. 'Where it appears that the defen- 
dant, a construction company, before the suit, cancelled the con- 
tract, deprived the plaintiff company of the power to complete the 
contract, and at the same time denied all liability either by reason 
of services rendered thereunder, or by reason of the cancellation 
thereof, the defendant company is estopped to claim that the plain- 
tiff company has lost its right to a lien, or to a first lien, by agree- 
ing to accept part of its compensation in defendant's bonds, — 
whether or not any lienor other than the plaintiff may raise such 
objection. Wetzel, etc., B. Go. x. Tennis Bros. Co., (1906) 145 



HOW LIEN MAX BE WAIVED OH DEFEATED. 163 

Fed. 458-. A person who places or furnishes any materials to be 
used in the making of any building does not lose' the right of lien 
given him by the Mechanics' Lien Act by stipulating in the con- 
tract under which the; materials were furnished that they were 
only leased to the owner of the building, and that the right of 
property in them shall remain in the vendor until payment of the 
purchase money in full, and that he shall have the right at his 
option to remove the materials at any time, provided .that the 
contract is in substance an agreement of sale of the material; 
United States Construction Company v. The Rat Portage Lumber 
Co., Ltd: (1915) 25 Man. L. E. 793; nor will a claimant who had 
made a similar agreement, be estopped if, having first invoked 
proceedings under the Mechanics' Lien Act he abandoned those 
proceedings and sought relief under the agreement by which he 
was to have the right to remove the article in default of payment. 
W. & Co. having a contract to build an elevator, etc., for the de- 
fendants, purchased an engine and other machinery from plain- 
tiffs on the terms that the ownership was not to pass until pay- 
ment, which was to be cash on delivery, and that in case of default 
plaintiffs were to be at liberty to remove the machinery. Plain- 
tiffs first took proceedings under the Mechanics'. Lien Act to realize 
the amount of their claim, but abandoned them. In the present 
suit the plaintiffs asked that the defendants might be ordered to 
deliver up the machinery and to permit plaintiffs to remove it. 
Held, 1 that plaintiffs were entitled to relief and were not estopped 
by having commenced proceedings under, the Mechanics' Lien Act, 
as they had not gone on to judgment. Vulcan Iron Co. v. Rapid 
City Co., (1894) 9 Man. L. B. 577 and 586. In this case Priestly 
v. Fernie, 3 H. & C. 977 is distinguished, the parties there having 
gone to judgment. 

In the absence of special legislation, if a person ignorant of 
the wife's interest. contracts with the husband to build on the wife's 
land and the wife acquiesces she is estopped from setting up her 
rights aganst the lien. McCarthy v. Caldwell, 43 Minn. 442. See 



164 THE LAW OE MECHANICS' LIENS IN CANADA.'. 

Greenleaf v. Beebe, 80 111. 552; Bevan v. Thackera, 143 Perm. 182 
But there is no presumption that a husband is his wife's agent. 
Gillies v. Gibson, (1907) 7 W. L. E. 245. 

A materialman who files a lien is not estopped by the fact that 
without bad faith he claimed more than was due him. Frohlich 
v. AsMon, (1909) 159 Mich. 265; Gould v. McCormick, (1913) 
75 Wash. 61. The lien will not be defeated unless the excessive 
claim were made in bad faith. Schmulbach v. Caldwell, (1912) 
196 Fed. 16; Vaughan v. Ford, (1910) 162 Mich. 37; Bomanih 
v. BaporpoH, (1912) 148 App. Div. (NY.) 688; West Side Lum- 
ber and Shingle \Co. v. Herald, (1913) 64 'Qre. 210. But where a 
claimant has filed a sworn statement fixing the date when he ceased 
work, he is estopped thereby, and cannot by a subsequent state- 
ment, fixing a later date, extend the time for claiming a lien. 
Canton Boll Co. v. Rolling^ Mills Co., (1907) 155 Fed. 321, A 
reduction in the amount of the claim will not render the lien void. 
Mont joy v. Heward School District, (1909) 10 W. L. E. 282. 
Where a defect in the claim of lien was caused by a statement made 
to the claimant by the owner and the contractor the owner and 
contractor are estopped from setting up the defect. Brown Vt 
Welch, 5 Hun. (NY.) 582. 

Where the mistake in claiming an excessive amount is an hon- 
est one, the lien is not lost (Pioneer Mining Co. T. Delamotte, 
(1911) 185 Ted. 752), but a statement of lien grossly in excess of 
the amount actually due is not such " a just and true statement of 
account of the demand due " as is required by these words of the 
statute. Griff v. Clark, (1909) 155 Mich. 611. Where an over- 
statement of the amount due and sought to be recovered is made 
intentionally and with a design to defraud the entire lien must 
fail. Christian v. Allee, 104 111. App. Ill; Marsh v. Mich, 159 
111. App. 399 ; Walls v. Ducharme, 162 Mass. 432 ; Burrell v. Way, 
(1894) 176 Mass. 164; Hecla Iron Works v. Hall, 115 App. Div. 
(NY.) 126; Williams v. Daiker, 63 App. Div. (NY.) 614. In 
this case the claim embraced more materials than had been used, 



HOW LIEN MAT BE WAIVED OR DEFEATED. 165 

and this fact was known to the claimant. If the claimant know- 
ingly files a claim for a larger amount than is due it is void. 
Hubbbard v. Brown, 90 Mass. 590; Aeschlimann v. Presbyterian 
Hospital, 165 N. Y. 296 ; New Jersey Steel & Iron C<o. v. Robin- 
son, 85 App. Div. (N.Y.) 512. A mistaken statement that a 
mechanics' lien has been paid does not estop the lien claimant 
from subsequently enforcing it against one who bought the pro- 
perty in reliance on the statement, if it was made to him without 
any knowledge that he had any interest in the matter or any in- 
tention to buy the property. Kvrchman v. Standard Coal Co., 
(1901) 52 L. E. A. 318. 

As a general rule the lien only attaches upon the estate or 
interest of the owner at the time the work or service is performed 
or the materials furnished.' If, however, an owner having an 
equitable estate subjects that estate to a mechanics' lien and after- 
wards acquires the fee simple or other larger estate, such larger 
estate will be subject to the lien. The owner may be estopped 
from setting up the subsequent purchase in answer to the claim of 
the lienholder. Coleman v. Goodnow, 36 Minn. 9, 29 N". W. 338. 

As to homestead exemption laws, it is a sound doctrine that 
' whatever liberality should be given the construction of such laws, 
they ought not to be so construed as to give the debtor the power 
by his own acts to deprive others of rights previously obtained in 
his property. One who has contracted for the improvement of 
his property cannot after the work is completed defeat the right 
to a lien for the work done by marrying and claiming the property 
as a homestead free from such right of lien. Evans v. Jensen, 
L. E. A. 1918 B. 

Does a lien claimant who in addition to instituting lien pro- 
ceedings brings an ordinary action claiming a personal judgment 
thereby forfeit his rights to the statutory remedy? In lien pro- 
ceedings under the Alberta Mechanics Lien Act, (Pomerleau v. 
Thompson, (1914) 16 D. L. E. 192) which contains provisions 
constituting the money owing to a contractor for getting out 



166 THE LAW OF MECHANICS' LIENS IN CANADA. 

timber and logs, a specific fund, on which the workmen and 
laborers have a lien for wages, Beck, J., held that an employee of 
the contractor for getting out logs who has obtained personal judg- 
ment against the contractor does not thereby forfeit his equitable 
right to be paid out of this fund, and such right may be enforced 
in garnishment proceedings. It is pointed out in the judgment 
that in the case of an ordinary mechanics' lien the lien claimant 
may undoubtedly bring his action claiming both a personal judg- 
ment as against his employer and a lien as against the owner of 
the property. Why may he not do so in separate actions? Beck, 
J., suggests reasons why the lien claimant should not be consid- 
ered as waiving his claim to a lien merely because he has also 
proceeded by ordinary action. The amount realizable by way of 
lien might be insufficient to pay his elaim. A judgment against 
his employer might be nugatory unless very speedily obtained. The 
employer is liable to have judgment against him for the whole 
indebtedness. His ultimate liability may eventually be reduced or 
extinguished by realization of the amount by force of the lien. 
Pomerleau v. Thompson, (1914) 16 D. L. E. at p. 146. 

The certificate of an architect in a dispute between th*' build- 
ing owner and the builder is no estoppel in an action by the build- 
ing owner against the architect for negligence. Badgley v. Dick- 
son, (1886) 13 0. A. E. 494; Rogers v. James, (1891) 8 Times 
L. E. 67. 

In the absence of express enactment a plaintiff who resorts to 
one statutory remedy cannot obtain another judgment- under the 
Mechanics' Lien Act for the same claim. Wake v. C. P. L. Co., 
(1901) 8 B. ,C. E. 358. 

A common law lien against personalty may be lost by estoppel 
where its assertion would operate as a fraud on innocent parties. 
Howard v. Tucker, (1831) 1 B. & Ad. 712. Assertion of payment 
will operate as estoppel as against those who have acted on it. 
Tooley v. Budd, (1851) 7 E. L. & Eq. 229; Woodley v. Coventry, 
(1863) 32 L. J. Ex. 185. See also cases cited in Chapter "Me- 
chanics' Liens on Personal Property," post. 



CHAPTEE XI. 

Priorities. 

The statutory right to a mechanics' lien would be of little value 
if it did not involve the subordination to it of subsequent incum- 
brances or conveyances of the property. No rights subsequently 
accruing can affect the mechanics' lien once it attaches (American 
Mortgage Co. v. Merrick, (1907) 130 App. Div. (N7Y.) 150; 
Carew v. Stubbs, 155 Mass. 549 ; or any part of it, Collins v. Patch, 
156 Mass. 317, and, on the other hand, no prior rights can be' 
displaced by it. Bobock v. Peters, (1909) 13 Man. L. E. 124; 
' Kievell V. Murray, 2 Man. L. E. 129. When a conveyance is re- 
corded prior to the commencement of the work or the placing of the 
materials the mechanic cannot have priority for his claim. He 
cannot acquire any greater interest than that which the owner 
possesses. An incumbrance so recorded has priority to the extent 
of its security and it cannot be affected injuriously by acts of the 
person creating the incumbrance. 

In dealing with any question concerning - priorities under the 
Mechanics' Lien Acts in Canada, the words of the enactment in the 
jurisdiction where the land to be affected lies must be carefully 
examined, as, on this subject, there is some variance between the 
Acts in the different Provinces of Canada. In the present chapter 
the provisions of the Mechanics' and Wage Earners Lien Act of 
Ontario will be specially considered, although enactments in other 
jurisdictions will be referred to. One provision of the Ontario Act 
gives a hen priority over mortgages upon, the increase in selling 
value of land by reasori of work or service done thereon or materials 
supplied. This provision is as follows, — ■ 

" Where the land upon or in respect of which any work or 
service is performed, or materials are placed or furnished to be 
used, is incumbered by a prior mortgage or other charge, and 



168 THE LAW OF MECHANICS' LIENS IN CANADA. 

the selling value of the land is increased by the work or service 
or by the furnishing or placing of the materials, the lien shall 
attach upon such increased value in priority to the mortgage or 
other charge." E. S. 0. 1914, c. 140, s. 8 (3). 

Another provision of the same Act gives priority to a lien which 
has been registered or of which written notice has been given to the 
mortgagee upon the land itself, including the buildings and erec- 
tions thereon, over all subsequent advances under a mortgage. This 
latter provision is as follows, — 

(1) " The lien shall have priority over all judgments, execu- 
tions, assignments, attachments, garnishments, and receiving 
orders recovered, issued or made after such lien arises, and 
over all payments or advances made on account of any con- 
veyance or mortgage after notice in writing of such lien to 
the person making such payments or after registration of a 
claim for such lien as hereinafter provided. 

(2) Where there is an agreement for the purchase of land, and 
the purchase money or part thereof is unpaid, and no con- 
veyance has been made to the purchaser, he shall, for the 
purposes of this Act, be deemed a mortgagor and the seller 
a mortgagee. 

(3) Except where it is otherwise provided by this Act, no per- 
son entitled to a lien on any property or money shall be en- 
titled to any priority or preference over another person of 
the same class entitled to a lien on such property or money, 
and each class of lienholders shall rank pari passu for their 
several amounts, and the proceeds of any sale shall be dis- 
tributed amongst them pro rata according, to their several 
classes and rights." E. S. 0. 1914, c. 140, s. 14. 

Under this section the lien has priority over mortgage advances 
made after the lienholder has notified the mortgagee in writing of 
his lien or has registered it, and in the latter case the lienholder is 
deemed a purchaser pro tanto. 



PEIOBITIES. 169 

Actual notice not in writing is not sufficient to give a lien the 
priority over mortgages provided under this section. Cook v. Kol- 
doffsky, (1916) 28 D. L. E. 346, 35 0. L. E. 555. 

These provisions are not necessarily in conflict. "The true 
principle is to treat section 8 as confined to those mortgages and 
charges which existed before work began, by reason of which in- 
creased selling value may arise, and section , 14 as dealing with 
priorities among competing claims, all arising after work has com- 
menced, and upon land and buildings together." Cook v. Koldoff- 
sky, supra. 

The priority of an unpaid vendor is not forfeited by the substi- 
tution of a mortgage for the unpaid amount. " Prior " mortgages 
or charges mean those mortgages or charges which existed upon 
the land or those interests before the work began, because by section 
6 the lien attaches then, and it may then be at once registered. 
E. S. 0. ch. 140, s. 22; Kennedy v. Haddow, (1890) 19 0. E. 240; 
Cook v. Belshaw, (1893) 23 0. E. 545. The lien given as against 
the prior mortgagee or chargee is not, however, given upon the land, 
but upon the value which has been produced by way of increase, 
over that which the land itself previously had, by the subsequent 
doing of the work or the placing of the materials; and this value 
is not that which represents the actual value or cost of the work, 
etc., in itself, but the amount which it adds to the selling value. 
Cook v. Koldoffsky, supra. The selling value is not necessarily in- 
creased by work done subsequently. Kennedy v. Haddow, 19 0. E. 
240. 

The priority of the " charge " on the land does not depend on 
registration, but upon its existence as a charge before the lien arose. 
Cook v. Belshaw, (1893) 23 0. E. 545 ; Marshall Brick Co. v. York 
Farmers Colonization Co., (1917) 36 D. L. E. at p. 427. Under a 
provision already referred to, E. S. 0. c. 140, s. 14 (1), the mort- 
gage or charge is to be regarded as a " prior mortgage " only in 
respect of payments or advances made before notice in writing or 
registration of the lien. To the extent to which the selling value 



170 THE LAW OE MECHANICS' LIENS IN-CANADA. 

of the property has been increased by the work or services performed 
or the materials furnished by the lien claimants, the mortgagee's 
interest as such prior mortgagee is subject to the plaintiff's lien. 
See s. 8 (3) E. S. 0. c. 140; Patrick v. Walbourne, (1896) 27 0. E. 
at pp. 225-6 ; Marshall Brick Co. v. York Farmers Colonization Co., 
(1917) 36 D. L. E. at p. 427. 

An unpaid vendor who advances funds to the purchaser to build 
upon the land is not an " owner," so as to subject the land to , 
mechanics' liens for work done or materials furnished under con- 
tracts with the purchaser; but by virtue of sec. 14 (2) of the Act 
such vendor is deemed a "mortgagee", for the purpose of giving 
priority to the liens upon the increased selling" value of the land 
caused by the improvements. Marshall Brick Co. v. Irving, 28 D. 
L. E. 464, 35 0. L. E. 542, affirmed, sub nom. Marshall Brick Co. 
v. York Farmers Colonization Co., (1917) 36 D. L. E. 420, 54 Can. 
S. C. E. 569. 

A vendor of land ( to whom a portion of the purchase price is 
due is to be treated as if mortgagee, so far as the Mechanics' Lien 
Act is applicable, despite the fact that the land has been con- 
veyed to the purchaser, and mortgaged by him; a duly registered 
reconveyance to the vendor in payment of the unpaid purchase 
money, the vendor assuming the existing mortgage, has priority 
to any unregistered lien under the Mechanics' Lien Act of which 
the vendor had no actual notice. Charters v. McCracken, (1916) 
29 D. L. E. 756, 36 0. L. E. 260. Where a mortgage has been 
duly registered, advances made ' thereunder after mechanics' liens 
on the mortgaged property have arisen, but before their registra- 
tion, take precedence of the liens. A mortgage having been held to 
have priority over liens, both upon the land and the improvements, 
a lienholder cannot take away that priority by showing that the 
work and materials increased the selling value of the property. 
Warwick v. Sheppard, (1917) 35 D. L. E. 98, 39 0. L. E. 99. 

A purchaser of an unfinished building whose deed is registered 
prior to the registration of any mechanics' liens without actual 



PEIOEITIES. 171 

notice thereof thereby acquires a priority by virtue of the Eegistry 
Act, (E.'S. 0. 1914, c. 124) and takes the property free of the 
liens. Sterling Lumber Co. v. Jones, (1916) 29 D. L. E. 288, 36 
0. L. E. 153. 

While each lienholder is entitled to claim upon the enhanced 
value arising by reason of his work and materials, each lien must 
stand on its own footing. No mechanic has a right to priority 
in respect to another mechanic's work. His own right is based on 
his proportionate contribution to the increased value of the pro- 
perty. Security Lumber Co. v. Duplat, (1916) 29 >D. L. E. 460, 
Sask.; Bank of Montreal v. Eafner, (1883) 3 0. E. 183; Brough- 
ton v. Smallpiece, (1878) 25 Gr. 290 ; Cook v. Eoldofsky, 28 D. 
L. E. 346, 35 0. L. E. 555. Under the Saskatchewan Act, it has 
been held that a lienholder for materials supplied and used in the 
construction of a building upon land subject to an existing mort- 
gage is entitled to rank upon the increased value in priority to the 
mortgage in the proportion only that the value of the materials 
supplied by hirn exclusively bears to the whole cost of the building, 
and not for any part of the increase brought about otherwise. In 
computing this proportionate amount no regard should be taken 
to amounts paid the lienholder on account before the action was 
brought. Security Lumber Co. v. Duplat, (1916) 29 D. L. E. 
460, 9 Sask. L. E. 318, 34 W. L. E. 1131. 

The claim of a mortgagee in respect of advances made subse- 
quently to .the commencement of the work done by lienholders is 
postponed to the rights of the , lienholders. The mortgagee as a 
subsequent incumbrancee might have been entitled to be given an 
opportunity in the lien action to redeem the lienholders had it 
applied for registration at once, but having neglected to do so until 
after the sale of the land in question, any such right has been lost. 
National Mortgage Co. v. Bolstqn, (1917) 59 Can. S. C. E. 219. 

The plain purpose of this legislation in dealing with the ques- 
tion of increased value of the property is to take from the mort- 
gagee the benefit which at common law he was entitled to, of the 



172 THE LAW OF MECHANICS' LIENS IN CANADA. 

work and materials which after the making of the mortgage had 
been employed in the improvement of the property and which 
had not been paid for by the mortgagor, and to leave his security 
otherwise unimpaired. The lienholder is, therefore, given a secur- 
ity in priority to the mortgage on the increased value, and the 
mortgagee still retains his priority over the lienholder as to all 
that his security embraces, except that increased value. Patrick 
v. Walboume, (1896) 27 0. B. 221. Depreciation in value of the 
property has the effect of wiping out the security of the lienhold- 
ers before it affects the security of the prior mortgagee. Northern 
Trusts Co. v. Battell, (1916) 29 D. L. E. 515, 9 Bask. L. E. 103, 
33 W. L. E. 738. 

•In the absence of evidence that the selling value of the land 
incumbered by a mortgage has increased by the work or materials, 
no lien attaches upon such increased value, in priority to the inter- 
est of a mortgagee; nor will it warrant a sale of the mortgage to 
satisfy the statutory lien, even though subject to a first charge in 
favor of the mortgagee for advances made prior to the registra- 
tion of the lien. Out-Rate Plate Glass Co. v. Solodinski, (1915) 
25 D. L. E. 533, 34 0. L. E. 604. 

As under the Ontario Act the lienholder is only given priority 
over the mortgagee to the extent of any increased value given to 
the property by any work or service, or the furnishing or placing of 
the materials, this would seem to place the onus upon the lien- 
holder of attacking the position of the mortgagee and showing 
that there was such increased value added to the property, but 
under the Manitoba Act it is expressly provided that the prior 
mortgagee has priority over a lien only to the extent of the actual 
value of such land at the time the improvements were commenced. 
It has been decided that where under a Mechanics' Lien Act, prior 
encumbrancers have priority over the mechanics' liens only to the 
extent of the actual value of the premises at the time the im- 
provements are made, and the lienholders have priority as to the 
increase in value effected by the improvements, the rights of the 



PRIOEITIES. ' 173 

latter cannot be worked out in an action for the foreclosure of a 
vendor's lien or mortgage, but can only be given effect to in an 
action brought to enforce their liens. Dure v. Roed, 34 D. L. E. 
38, 27 Man. L. E. 417, (1917) 1 W. W. E. 1395. Accordingly, 
when under the Manitoba Act such a mortgagee appears at the trial 
pursuant to notice and seeks to prove his claim under his prior 
mortgage, it may well be that the onus will be thrown upon him of 
showing what the actual value of the land was, because that is the 
limit placed by the statute upon his priority. Dominion Lumber 
and Fuel Co. v. Paskov, (1919) 1 W. W. E. 657; Dure v. Roed, 
27 Man. L. E. 417, (1917) 1 W. W. E. 1395. The "increased 
selling value," within the meaning of the Mechanics' Lien Act, 
which results from the erection of a building, is the difference 
between the value of the land without the building and the amount 
for which both land and building may be sold. WheTe the pro- 
perty has a potential value, such as that which arises from its pos- 
sibilities as a future industrial site, the " increased selling value " 
cannot be ascertained without a sale. A lienholder under the 
Mechanics' Lien Act has a right to pay off the unpaid purchase 
money under an agreement for sale to the same extent as he would 
have had if the vendor's claims were that of a mortgagee. Whitloclc 
v. Loney, (Sask.), 38 D. L. E. 52, (1917) 3 W. W. E. 971, 10 
S. L. E. 377. 

Where, as in Ontario, there is in the Mechanics' Lien Act a 
definite provision dealing with mortgages, whether registered or 
unregistered, and providing that payments or advances under 
them may be defeated by a registered or unregistered lien in one 
of two ways, such a provision overrides any other right accruing 
from or arising out of the Eegistry Act, which deals solely 
with priorities as between instruments. Cook v. Koldoffsky, 
(1916) 28 D. L. E. 346, 35 0. L. E. 555. 

The fact that the Mechanics' and Wage-earners Lien Act 
merely confers the status of a' purchaser pro tanto upon a regis- 
tered lienholder, and excludes the Eegistry Act in other respects, 



174 THE LAW OF MECHANICS' LIENS IN CANADA. 

indicates that where there is a specific provision in the former Act 
it must be read as exclusive of any other provision of the Eegistry 
Act. Cook v. Koldofsky, supra. " There is a provision in the Land 
Titles Act which declares a mechanics' lien when registered to be 
an encumbrance on the lands. But the existence of the lien itself 
and its extent depend upon the provisions of the Mechanics' Lien 
Act. The two statutes must be read together, and registration 
under the Land Titles Act 'cannot be taken to create an encum- 
brance where there is no valid lien under the Mechanics' Lien 
Act, or to neutralize or modify the limitation upon its extent 
which the Mechanics Lien Act explicitly imposes." City of Cal- 
gary v. Dominion Radiator Co., (1917) 40 D. L. E. 75, per 
Anglin, J. 

Under the Alberta Act it has been held that where progressive 
payments under the contract of the principal contractor are made 
contingent upon advances being made to the owner by the mortga- 
gee, the Court may, on the trial of a mechanics' lien action brought 
by a sub-contractor who had completed his sub-contract, direct that 
his lien remain in force, so that it may attach in respect of any such 
further advances which may in future be made by the mortgagee, 
reserving leave to tfye owner and the mortgagee to apply for the dis- 
charge of the lien. Colling v. Stimson & Buckley, (1913) 10 D. L. 
E. 597 (Alta.). The provision in the Saskatchewan Mechanics' 
Lien Act that the failure to file a lien or to commence action 
thereon within the statutqfy period shall not defeat the lien ex- 
cept as against liens, registered by intervening parties meanwhile, 
does not create a priority in favor of intervening liens for work 
not performed and materials not furnished. St. Pierre v. Rekert, 
(1915) 23 D. L. E. 592, 8 Sask. L. E. 41.6, 31 W. L. E. 909. 

In determining the value of a parcel of land upon which stands 
a portion of a house which has been, by mistake, built partly upon 
the parcel in question and partly upon an adjoining lot owned by 
another person, for the purpose of adjudicating upon the respec- 
tive rights of a mortgagee and a lienholder, no regard can be had 



PEIOEITIBS. 175 

to the fact that such other person, if applied to, ■would have con- 
sented to the removal of the house off his lot, and the priority of 
a mortgage on the lot in question over the lien of a workman sub- 
sequently arising, for the cost of removing the house so as to place 
it wholly on the parcel in question, is limited to the actual value 
of such parcel with the part of the house upon it at the time he 
began the work, which value must be ascertained without reference 
to the subsequent removal. Jack v. McKissock, (1917) 27 Man. 
L. E. 548. But the Ontario Act affords a different test. 

Under the British Columbia Act (E. iS. B. C. 1911, c. 154, 
s. 9), the yalue of the property before the lien attached is to' be 
taken for the purpose of fixing the ( upset price for which the lien- 
holder -would have priority over a mortgagee as against the increase 
in value of the mortgaged premises by reason of the work and im- 
' provements, the latter, however, must be limited only to the extent 
to which the specific contract enhances the selling value, and not 
for work or improvements by others under independent contracts; 
if no greater sum than the upset price is obtained at the sale the 
lienholder has no priority, and his only recourse is against the 
equity of redemption. Champion v. The World, (1916) 27 D. L. 
E. 506, 22 B. G, E. 596, 34 W. L. E. 317. The provisions of -this 
Act do not give relief to lienholders as against prior mortgagees, 
• unless, from the proceedings at the trial, the increase in the value 
of the mortgaged premises can be ascertained. Lienholders for 
work consisting entirely of the taking out of ore from a mine, can- 
not, except when it is strictly development work, enforce their liens 
as against a prior mortgagee. Anderson et al. v. Kootenay Gold 
Mines, et al, (1916) 18 B. .0. OR. 643. 

A lien for materials supplied as against a mortgage has priority 
over the mortgage only to the extent of the materials placed on the 
ground before the mortgage money was advanced. Roboch v. Peters, 
(1909) 13 Man. L. E. 124. The first mortgagee having applied 
his last advance in payment of the purchase money of the lots to 
the unpaid vendor who then conveyed the land in fee to the defen- 



176 THE LAW OF MECHANICS'" LIENS IN CANADA. 

dant owner, and having thus secured the title to the property 
claimed to be entitled to be subrogated to the position of the origi- 
nal vendor in respect of such purchase money, but, having had 
actual notice of one of the liens and constructive notice of the 
other before making this payment, he could not have priority over 
either lienholder for such advance. Bobock v. Peters, supra. 

An agreement for the sale of land which contains a covenant 
binding the purchaser to erect certain works on the land at a cer- 
tain cost and contains a covenant by the vendor, the owner, to 
remit a specified amount from the purchase price, on the comple- 
tion of said undertaking, is such a request in writing as gives a 
mechanic's lien arising from the erection of said works general 
application under section 6 of the British Columbia Act, 1916, 
e. 154, and therefore the lien is not restricted to the increase in 
value of the premises by reason of such works. British Columbia 
Granitoid Co. v. Dominion Shipbuilding Co. (B.C), (1918) 2 
W. W. R. 919. 

Where an incumbrance is duly recorded, delay in recording an 
assignment of it cannot affect the assignee's priority. Zehner v. 
Johnston, 22 Ind. App. 452. If the incumbrance or conveyance is 
not recorded until the mechanics' lien has attached, the lien has 
priority, but, in the absence of legislation to the contrary, a mort- 
gage recorded before the work is commenced to secure future 
advances which are made to pay for work or materials, takes prior- 
ity over mechanics' liens. Roboch t. Peters, (1909) 13 Man. L, R. 
124; Cook v. Belshaw, (1903) 23 '0. R. 545. A mortgage made 
in good faith will not lose its priority, because of an omission of 
some technical matter in its execution, although such advances are 
not made until after the work commences. Payne v. Wilson, 74 
N. Y. 348. As to questions of priority arising as against rival 
incumbrancers who may have been misled by error of registrar, see 
Gorman v. Archibald, 1 Alta. L. R. 524. 

The limitation of the priority of mechanics' liens over mort- 
gages declared by the Alberta Mechanics' Lien Act to the amount 



KUOKITIES. 177 

whereby the premises have been increased in value -by the work, 
does not apply where no money was advanced by the mortgagee 
until after the commencement of the work for which the lien is 
claimed. Under this Act a mechanics' lien attaches to the interest 
which is vested in the owner at the time the work is commenced 
or to any interest which he may acquire during the progress of the 
work; and the lien Will take priority over a mortgage upon which 
no money was advanced until after the commencement of the work, 
although the mortgage had been registered before that time. 
Colling v. Stimson, 10 D. L. B. 597, 6 Alta. L. E. 71. 

Lienholders under the British Columbia Mechanics' Lien Act 
are entitled to a priority over an unregistered charge or transfer 
,of which they had no knowledge, actual or constructive. National 
Mortgage Go. v. Bolston, (1916) 32 D. L. E. 81, 35 W. L. E. 494, 
23 B. C. E. 384, (1917) 1 W. W. E. 494, affirmed by Supreme 
Court of Canada, (1917) 2 W. W. E. 1144. 

It is not' essential to the preservation of a lien against a prior 
mortgagee, (under s. 8 (3) E. S. 0. 1914, c. 140) that it shall be" 
stated in the registered claim that it is against the mortgagee, 
inclusively or otherwise. Whaley v. Linneoank, (1916) 29 D. L. 
E. 51, 36 0. L. E. 361. 

The mechanic asserting his lien must show that he is entitled 
to priority before the same can be allowed. Davis v. Alford, 94 
U.S. 54'5. A mortgage of the real estate of the defendant com- 
pany was given by the directors to S., one of its directors, to 
secure him and his co-directors against their endorsements on the 
notes of the company, which had been made to raise money for. the 
purposes of the company. This mortgage was recorded prior to 
the registration of a mechanics' lien. It was held that the mort- 
gage was valid and that its prior registration must prevail over the 
lien of the mechanic. McDonald v. Consolidated Gold Lake Co., 
(1902) 40 N". S. E. 364. 

A mere instantaneous seisin is insufficient to sustain the lien. 
■See Owen v. Lynch, (1876) 2 E. & C. (Nova Scotia) 406. Where 

mm,.— 12 



178 THE LAW OF MECHANICS' LIENS IN CANADA. 

a purchaser under an agreement creates a lien upon his interest, 
and afterwards receives a deed and immediately executes a mort- 
gage; to the vendor for the whole or part of the purchase money, 
such mortgage takes priority to the lien except, perhaps, as to the 
increased value. Ettridge v. Bassett, (1884) 136 Mass. 314; 
Saunders v. Bennet, (1893) 160 Mass. 48; Clark v. Butler, (1880) 
32 N. J. Eq. 664. See also Ontario Mechanics and Wage Earners 
Act, which contains a provision for the case where the conveyance 
has not been taken; Whether a, seisin is instantaneous must de- 
pend upon all the facts and circumstances of the case. See Sprague 
v. Brown, (1901). 178 Mass. 220; Osborne v. Barnes, (1901) 179 
Mass. 597; Beady y. PinTcham, (1902) 181 Mass. 351. See also 
chapter entitled, " The Owner and His Interest," ante. 

In Massachusetts, on a petition to establish a mechanics' lien, , 
as in the case of dower, a mortgagee can take advantage of the 
doctrine of instantaneous seisin only where the mortgage was made 
to secure the purchase money, or some part of it. Libbey v. Tilden, ' 
(1906) 192' Mass. 175. 

Although the lien arises as soon as the work is commenced, 
or the materials have been placed or furnished, yet it actually 
takes its rank with other interests and incumbrances not solely 
according to the date at which it came into existence, but, in so 
far as the work or materials have increased the value of the land, 
in priority to other interests and incumbrances,, though the latter 
be prior in point of time. A mortgagee or vendor of land under 
an executory contract for sale cannot do anything to prejudice the 
vested statutory right of the lienholder to a lien upon -the property 
to the extent to which its value has been increased by the work of 
the lienholder. High River Trading Co. v. Anderson, (1909) 10 
W- L. E. 127. 

But the mere fact that materials had been furnished and placed 
upon the land by a lien claimant does not prove that the selling 
value of the property- had been thereby increased. The onus of 
proving that the selling value of the land has been increased by 



PEIOEITIBS. 179 

the materials furnished is on the lien claimant, and unless it be 
shewn that the increased value of the land was due to the furnish- 
ing and placing of the material the claim of the materialman will 
not be given priority as against the mortgage. • Independent Lum- 
ber Co. v. Bocz, (1911) 16 W. L. E. 316 (Sask.) ; Kennedy v. Had- 
dow, 19 'Ont. B. 240; Richards v. Chamberlain, 25 Grant, 402; 
McVean v. Tiffin, 13 0. A. E. 4; Reinhart v. Shutt, 15 0. B. 325. 
See Roboch v. Peters, (1909) 13 Man. L. E. 124. 

In Saskatchewan it has been decided that a mortgage, equitable 
or legal, has priority over a lien if registered before the lien, and a 
mortgagee is entitled to priority for all moneys advanced by him 
on the security of an equitable mortgage before the registration of a 
lien for materials, regardless of the fact that some of the material 
had been delivered and a lien accrued in respect thereof before some 
of the advances were made. Independent Lumber Co. v. Bocz, 
(1911) 16 W. L. E. 316 (Sask.). See Roboch v., Peters, (1909) 13 
Man. L. E. 124, West v. Sinclair, 12 C.L.T. 44, 23 C.L.J. 119. "No- 
tice cannot affect the question of priority. Where a lienholder has 
not registered his lien the mortgagee need not hesitate to advance 
money legitimately under his mortgage, because possibly the" lien- 
holder might thereafter register his lien." Independent Lumber 
Co. v. Bocz, (1911) 16 W. L. E. 316 (Sask.). See Roboch v. Pet- 
ers, (1909) 13 Man. L. E. 124; West v. Sinclair, 12 C. L. T. 44, 
23 C. L. J. 119. 

The right to priority is dependent on statutoTy provisions, but, 
in the absence of such provisions the fact that the holder of the 
incumbrance knew that improvements were being ' placed on the 
incumbered property would not oblige him to give notice disclaim- 
ing responsibility. Independent Lumber Co. v. Bocz, 4 Sask. L. E. 
103, 16 W. L. E. 316, Interstate. Building &■ Loan Association v. 
Ayers, 177 111. 9. The mechanic should inform himself concerning 
existing recorded incumbrances. In the absence of express statu- 
tory provision any improvement placed upon incumbered land would 
be subject to the existing incumbrance. But Mechanics' Lien Acts 



180 tHB LAW OP MECHANIC^ LIENS IN CANADA. 

in Canada provide that mechanics' liens for work done or materials 
furnished for incumbered realty shall take priority over the in- 
cumbrance to the extent of the increased value so given to the 
property. 

When, after the lien has attached td several distinct" buildings 
constructed under an entire contract, the owner has sold one or 
more, the equities which then arise between the owners of the 
several buildings may be worked out upon the principles applied 
where part of a property subject to a mortgage is sold and the 
mortgagee seeks to enforce his remedy against both parcels. On- 
tario Lime Association v. Grimwood, 22 0. L. E. 17. 

A 'mortgage subsequent in point of time takes priority over an 
unregistered lien. Cook v. Belshaw, (1893) 23 0. E. 545. A 
mortgagee for future advances is also protected to the extent of 
all. advances made before registry of the lien and before he- had 
actual notice of the lien. Under the Saskatchewan Lien Act, in 
construing a provision similar to one in the Ontario Act, it has 
been held that notice of an unregistered lien will not affect the 
question of priority of the mortgagee for future advances. Inde- 
pendent Lumber Co. v. Bocz, (1911) 16 W. L. E. 316. It has also 
been held that a mortgage subsequent to a lien but given for the 
purpose of paying off a prior incumbrance will be protected to the 
extent of such prior incumbrances. Locke v. Locke, (1898) 32 
'C. L. J. 332. ' In Massachusetts, under a similar provision, it has 
been held that a mortgagee, under a mortgage given to pay off 
existing mortgages, even to himself, acquires no rights under 
them. Batchelder v. Hutchinson, (1894) 161 Mass. 462; Easton 
v. Brown, (1898) 170 Mass. 311. See Colonial Investment & Loan 
Co. v. McCrimmon, (1905) 5 O. W. E. 315. 

A lienholder if he wishes to preserve his lien as against subse- 
quent purchasers and mortgagees, who registered their conveyances, 
must register his lien (McVean y. Tiffin, 13 0. A. E. 1 ; Reinhart 
v. Shutt, (1888) 15 0. E. 325; Wanty v. Rooms, (1888) 15 0. E. 
474), but the subsequent purchaser or mortgagee who registers his 



PHIOEITIES. 181 

conveyance does not gain priority if at the time of the payment of 
his purchase money and registering his conveyance he had actual 
notice and knowledge of the prior claim of the lienholder. Rose 
v. Peterkin, 13 S. ( C. E. 677. 

If one contemplates the purchase of certain land and having 
agreed in writing with the owner of the land to build a house on 
it. makes an oral contract with a mechanic to construct the cellar 
of the house, and the mechanic proceeds to dig the cellar with the 
knowledge and consent of the owner of the land, and if shortly 
thereafter the owner sells and conveys the land to the contem- 
plated purchaser who employed the mechanic, and takes a mort- 
gage back, the mechanic can enforce a lien upon the property for 
the labor and materials furnished by him in constructing the 
cellar which will be good against the mortgage. McOormack y. 
Rutland, (1906) 191 Mass. 424. 

A lien to be prior to a mortgage must be registered before the 
mortgage, in' the absence of statutory enactment to the con- 
trary. Reinhart v. Shutt, 15 0. E. 325. Where the mort- 
gagees take their mortgage on the security, of a house which was 
being erected by certain contractors the mortgagees were held not 
entitled to priprity over the contractor's lien. Aslip v. Robinson, 
(1911) 18 W. L. E. 39 (Man.). 

A mortgage given to secure future advances to be paid as the 
building progresses is a prior lien for claims for materials used in 
the construction of the building for the full amount advanced. 
Cook v. Belshaw, 23 Ont. E. 545 ; Robock v. Peters, (1909) 13 Man. 
E. 124; Reedy. Rochford, 62 N. J. Bq. 186; Lipman v. Jackson, 
128 N. Y. 58. But such mortgage to take priority must be re- 
corded before the lien right has attached. Young v. Haight, 69 
N. J. L. 453. 

If the mortgage is given before the time that the law provides 
that the lien right shall attach to the property it takes priority 
over the right of the mechanic. Robock v. Peters, supra; KieveU 
v. Murray, 2 Man. E. 209. 



182 , THE LAW OP MECHANICS' LIENS IN CANADA. 

A bank with whom an owner of land has made an agreement in 
the nature of a mortgage as to advances of money for the construc- 
tion of buildings on the land, by the terms of which the bank 
cannot be compelled to make advances, cannot, lessen the value of 
the equity of redemption as to holders of mechanics' liens upon 
the land by making payments to the owner after it learns of the 
existence of the liens. Gray v. McLellan, (1913) 214 Mass. 92. 

A liquidator represents no higher claim than that of the insol- 
vent company ; therefore, liens registered within the statutory 
trine for materials supplied and for work done, prior to the service 
of a petition to wind up the company, are to be paid in priority to 
ordinary creditors. Re Clinton Thresher Co., (1910) 15 0. W. 
E. 318. 

In a proceeding to enforce a mechanics' lien for labor and 
materials furnished in the construction of a building, where the 
evidence shows that the contract between the contractor and the 
builder was entered into prior to the acquisition of title to the 
property by the builder, and that subsequently the builder acquired 
title to the property and at the same time executed a mortgage 
thereon, but that such mortgage was executed to obtain money for 
the construction of the building and not to pay the purchase 
money, the mechanics' lien of the contractor will be held to be 
prior to the lien of' the mortgage, notwithstanding the doctrine' of 
instantaneous seizin, as the deed to the builder and the mortgage 
hy the builder were separate transactions consummated at one 
time, and not merely component parts of one transaction. Libbey 
V. Tilden, 192 Mass. 175. See Am. & Eng. Ann. Oas., vol. 7, p. 
617. If the earliest item of a mechanics' lien is a date subsequent 
to the date of an attachment, the attachment has priority over the 
mechanics' lien, under the Maine Mechanics' Lien Act., First Nat. 
Bank of Salem v.' Redman, 57 Maine 505. But an attachment or 
execution, to have priority, must be levied on the property before 
the right to a mechanics' lien attaches. 

If a judgment becomes a lien during the period within which 
a mechanic can perfect his right it will not take priority of the 



PRIORITIES. 183 

mechanics' lien. In re Bailer's Estate, 196 Pa. 90. Though a 
mechanic's lien was subject to a prior mortgage on the land, upon 
the release of a part of the land from the mortgage, the lien was 
left, in full force on such part. Davidson v. Stewart, (1909) 200 
Mass. 393. Where a chattel mortgage is given on personal pro- 
perty which afterwards becomes a fixture and a part of the real 
. estate, a mechanics' lien attaching to the real estate will have prior- 
ity over the chattel mortgage. Currier v. Cummings, ,40 N. J. Eq. 
145. 

Where a building was commenced before the execution of a 
mortgage, valid lien claims have priority , over the mortgage. 
Federal Trust Co. v. Guigues, (1909) 76 N. J. Eq. 495. A con- 
veyance of the property made after the right to liens has attached 
is made subject to these liens. American Mortgage Co. v. Merrick 
Const. Co., 120 App. Div. N. Y. 150. 

The fact that the building is by the terms of the lease to be- 
come the property of the lessor is ground for charging his estate 
with the amounts owing to lienholders. High River Trading Co. 
V. Anderson, (1909) 10 W. L. E. 126. 

As Mechanics 5 Lien Acts in Canada fix the time when the lien 
attaches, the question of priority between a recorded incumbrance 
and a mehcanics' lien is not a difficult one. The onus is on the 
mechanics to show priority. Davis v. Alford, 94 U. S. 545. If 
the contract between the vendor and vendee required the erection 
of the building, the mechanics' lien will be given priority. Eockel, 
s. 163 ; Henderson v. Connelly, 123 111. 98. 

Where a mortgage is given simultaneously with a deed for the 
property to secure the unpaid purchase price, such mortgage is 
prior to a mechanics' lien for work' or materials furnished under a 
contract with a vendee in possession prior to the execution of the 
mortgage. Osborne v. Barnes, 179 Mass. 597. Where a building 
was commenced before the execution of a mortgage on the pro- 
perty, lien claims have priority over the mortgage. Federal Trust 
Co. v. Guigues, (1909) 76 N. J. Eq. 495. The claims of wage- 



184 THE LAW OE MECHANICS' LIEN'S IN CANADA. 

earners are given priority .to a limited extent over all other lien 
claimants. Other lien claimants who register their claims within 
the statutory period share equally. . The statute determines the 
priority of liens, and the legislation in force at the time the obli- 
gation becomes fixed must control. 

The right to dower or curtesy, if existing at the time the lien 
attaches, takes priority over a mechanics' lien for work done or 
materials placed upon property under contract with the person 
owning the fee. Gove v. Cather, 23 111. 585; 76 Am. Dec, 711; 
Mark v. Murphy, 76 Ind. 535; Buser v. Shepard, 107 Ind. 417. 
\ By statutory provision taxes are entitled to payment prior to 
a mechanics' lien. 

The appointment of a receiver does not divest the property of 
prior existing liens, but affects them only in the manner and time 
of their enforcement. While £he property is in the possession of 
the receiver the right to enforce the lien is suspended, because the 
property is in the custody and control of the Court. Randall v. 
Wagner Glass Co., (1910) 47 Ind. App. 439; Beach on Beceiyers, 
2nd ed.^ 194. 

In a case under the Manitoba Act (In re Empire Brewing & 
Malting Co., (1891) 8 Man. L. B. 424), proceedings had been 
taken to enforce a mechanics' lien after a winding-up order had 
' been made. On an application to stay the proceedings it was held 
by Taylor, C.J., that the lien was not created by the taking of pro- 
ceedings, but prior to that time, and prior to the winding-up, .and 
that the proceedings could not be stayed. In another case, under 
the British Columbia Act (Re Ibex Mining and Development Co., 
(1902) 9 B. C. B. 557), mechanics' liens had been filed against the 
property of- a company, and judgment recovered in respect to them 
in the County Court. On the same day as the judgment, a wind- 
ing-up order was made in the Supreme Court. Subsequently the 
liquidator obtained an order authorizing him to give a first charge 
on the property of the company in order to raise money to take out 
certain Crown grants of property to which ' the company was 



PRIORITIES. 185 

entitled. The lienholders had no notice of the application and did 
not. appear on the hearing. They did not appeal from the order, 
but applied for leave to enforce their judgment in priority to the 
charge created by the liquidator under the order of court. Held, 
that the order made on the application of the liquidator, was made 
without jurisdiction, and the lienholders were not bound by it. 

Mechanics' Lien Acts in Canada give a lien to the mechanic on 
mortgaged land where the selling value of the land is increased by 
the work or service. This lien attaches upon such increased value 
in priority to the mortgage or other charge. Unless the selling 
value of the property had been increased the lien has no priority 
over the mortgage. Kennedy v. Haddow, (1890) 10 0. E. 240. 
See Cole v. Pearson, 17 0. L. E. 46; Parrel v. Gallagher, (1911) 
23 0. L. E. 130, and cases cited under sections 8 and 15 of the 
Ontario Act, post. See particularly Patrick v. WaTbourne, (1896) 
27 0. E. 221; Cut-Bate Plate Glass Co. v. Solodinski, (1915) 25 
D. L.-E. 533, 34 0. L. E. 604. 

A covenant in the plaintiff's mortgage, entitling them to pay 
" liens, taxes, rates, charges or encumbrances " affecting the mort- 
gaged lands and adding them to the mortgage debt, did not entitle 
them as against defendants, subsequent mortgagees, to add to their 
mortgage debt amounts used to pay off mechanics' liens of later date 
than the registration of defendants' mortgage. Great West Per- 
manent Loaji Co. v. National Mortgage Co., (1919) 1 W. W. E. 
788 (B.C:). 

As to rights of execution creditors, where land is sold to satisfy 
a mechanics' lien, see Beaver Lumber Co. v. Quebec Bank, 11 SasL 
L. E. 320> (1918) 2 W. W. E. 1052. 



CHAPTER XII. 

Computing the Statutoet Time. 

The- performance of the work or the supplying of the materials 
gives merely a right to acquire a lien; the statute prescribes the 
steps necessary to perfect it. 

The function of the statement required to be filed in the reg- 
istry of deeds within a certain time after the person claiming the 
lien has ceased to labor or to furnish labor and materials is merely 
to preserve the right to lien already in existence, which otherwise 
would expire. Devine v. Clark, (1908) 198 Mass. 56. 

The time. limited for the registration of claims for liens does 
not commence to run until there has been such performance of the 
contract as would entitle the contractor to maintain an action for 
the whole amount due thereunder. If the last work upon which 
the lien claimant relies as giving a new date from which the stat- 
ute begins to run against his lien is something which the owner 
could have insisted upon before accepting the whole work as a 
completed contract, it will be sufficient to fix the date from which 
to reckon the statutory period. Day v. Crown Grain Co., (1907) 
39 Can. S. C. E. 258. 

The time for registering the lien should be calculated from the 
date when the work under the contract was completed or the 
materials furnished and placed. 

Even if. there be only some touching-up work to do, and whe- 
ther much or little, if it be a part of the work necessary under the 
contract, the statutory time is to be calculated from the completion 
of such' work. Fuller v. Beach, (1912) 21 W. L. E. 391 (B.C.). 

The time for filing the lien is to be reckoned from the date of 
performance of the latest work under the contract, regardless of 
acceptance or occupation by the owner. Milliken Bros. v. City of 



COMPUTING THE STATUTORY TIME. 187 

New York, (1911) 201 N. Y. 65; St. Louis N. Stock, Yards y. 
O'Reilly, 85 111. 546. 

The doing of work or supplying of materials even of a trivial 
character, should be taken into consideration in determining the 
date from which the statutory time should be calculated if the work 
was done or materials supplied, in good faith, to complete the 
contract, and not cdlorably to revive the lien. Sayward v. Duns- 
muir, 11 B. 0. B.375 ; Steinman v. Zosuck, 4 W. L. E. 575 ; Clarice 
v. Moore, (1908) 1 Alta. L. E. 49, 8 W. L. E-. 405; Brynjolfson v. 
Oddson, 32 D. L. E. 270, 27 Man. L. E. r 390, (1917) 1 W. W. E. 
1000. 

" Within the thirty' days plaintiff's workmen returned and put 
in two lights of glass in a dining ■ room window. This was done 
without the knowledge of defendant and might be. regarded as 
unimportant work, but the essential factor or test is that the work 
done was done in pursuance of and to complete the contract. It 
is contended that this later small piece of work was done in "bad 
faith," but even if bad faith would affect the matter, I cannot find 
that there was bad faith. The work was done in fulfilment of the 
contract and the delay was due to the non-arrival of the glass. The 
statutory period should be computed from the day when the 
omitted work was done by the plaintiffs workmen." Boyce v. 
Huxtable, (1919) unreported, per "Wallace, Co.J. (K.S.). 

Where any additional, work essential to the' completion of the 
contract is required to be done the statutory time is calculated 
from the date when the additional work is done. Benson v. Smith, 
(1916) 31 D. L. E. 416. If the agreement between the con- 
tractor and the materialman is that the latter is to furnish all 
material for the building without any specific quantity being 
designated and such material is delivered to the contractor from 
time to time, the time for filing a claim begins to run .from the 
last delivery. Smalley v. Gearing, (1899) 121 Mich. 190. The 
fact that the last article supplied is trifling in value or was supplied 
much later than the bulk is of no importance. " Material sup- 



188 THE LAW OF MECHANICS LIENS IN QANADA. 

plied later than, the bulk is none-the less material supplied within 
the meaning of the Act." Hurst v. Morris, (1914) 32 0. L. E. 
346', per Biddell, J. An amendment to the Act, E. S. 'O. 1914, 
c. 140, s. 22 (2), provides that a Claim for a lien for materials 
supplied may be filed #ithin thirty days after the furnishing or 
placing of the last material so furnished or placed, and no differ- 
ence is made between a large and a small amount, so that any diffi- 
culty as to this question is removed, so far as the law in Ontario is 
concerned. By this amendment it is now immaterial whether the 
material is furnished under one contract or more; and the right 
is independent of the completion of the work. Hurst v. Morris, 



The calculation of the time is affected by the question whether 
it is necessary to test the work or machinery in order to certify 
that the contract has been completed. Day v. Grown Grain Co., 
(1907) 39 S. C. E. 258; Jefersonville Water Supply Go. v. Biter, 
138 Ind. 170. But where the material last furnished is for a tem- 
porary or experimental purpose only, the lien claimant would not 
be justified in computing the statutory period from the date of the 
furnishing of this material. Plaintiffs had contracted to supply 
the hardware for use in the construction of a building, and the last 
delivery upon which they relied for preservation of their lien — 
the registry , of the claim of lien being within thirty days of that 
delivery, but more than thirty days after the last previous delivery 
of materials 1 — was of certain bolts, of trifling value and used for a 
temporary or experimental purpose only, it was held that these 
articles were not furnished in such manner as to enable the plain- 
tiffs to claim a lien for their price upon the land of the owners, 
and so the whole claim failed. Broohs^Sanford Gb. v. Theodore 
Telier Construction Co., (1910) 22 O'. L. E. 176. 

In dealing with this question of the computation of the statu- 
tory period it is important to consider and construe reasonably the 
terms, of the actual contract. A plumbing contract to furnish and 
install a hot air furnace for heating a house, including the neces- 



COMPUTING THE, STATUTOHY TIME. 189 

sary pipes, registers and fittings, comprises the furnishing and 
installation of the incidental cold air registers as a material part 
thereof; and the time within which a mechanics' lien may be filed 
for such work is to be computed with reference to the installation 
of the' cold air registers where that is the last work done under the 
contract, notwithstanding a delay of two months after the instal- 
lation of the furnace itself and of the other incidental fittings. 
Colling v. Stimson & Buckley, (1913) 10 D. L. E. 597 (Alta.). 

And where sub-contractors acting in good faith consider that 
their work is completed, but upon a test additional work is found 
necessary, which additional work is done as soon as practicable, 
this additional work being substantial, and not being done to 
remedy slight defects, the time for registering their lien can be 
computed from the completion of this additional work. Whim'ster 
v. Crow's Nest Pass Coal Co., (1910) 13 W. L. E. 631. On the 
other hand, where the work consists of different jobs all in one line 
of business, but ordered at different times, a mechanic is not re- 
quired to file a lien after completing each, piece of work. It is 
sufficient if he files his lien after he has completed all of his work. 
Carroll v. McVicar, (1905) 15 Man. L. E. 379. Where a con- 
tract is made for materials to be delivered from time to time as 

' required in the repairs of buildings, and the material is furnished 
as orders are received, each order is not an independent contract. 

■ Premier Steel Co. v. McElwaine Richards Co., (1895) 144 Ind. 614. 
Special considerations may apply in relation to the question as 
to what constitutes completion of the contract. — Under a contract 
made with the railway company for the erection of a building, the 
work was to be done to the entire satisfaction of certain architects. 
The plaintiffs, who were sub-contractors for a part of the building, 
ceased work on May 20th, under the belief that their contract was 
completed, and their secretary-treasurer, on June 8th, made an 
affidavit stating such to be the fact, with a view of having a lien 
registered, which, was done on June 24th. The architects, how- 
ever, were not satisfied and required further work to be done, and 



190 THE LAW OF MECHANICS' LIENS IN CANADA. 

this was accordingly done in June, and again in August, and it 
was , not until August 4th that the architects were satisfied' and 
accepted the work. It was held that the architects being the per- 
sons to determine when the work was completed, it was not com- 
pleted until they had signified their approval, and, therefore, the 
lien was registered in time. Voices Hardware Co. v. Grand Trunk 
R. Co., (1906) 12 0. L. E. 344. 

If there are separate contracts the notice for each must be 
within the time limit of each, but this, of course, wbuld not apply 
if the, job were one continuous contract. Morris v. Tharle, (1894) 
24 O. E. 159; Hooven, etc., Co. v. John Feather*stone's Sons, 
111 Fed. 81. The general principle applicable to a running ac- 
count Will ' 'ordinarily be applied to cases of materials supplied 
by a lien claimant. When one item is connected with another 
in the sense of a running account and the dealing is intended 
to be continuous^ so that one item if not paid shall be united with 
another and form one entire demand, the time for filing a lien 
runs from the date of ±he things last supplied. Morris v. Tharle, 
supra. 

But where a plumber agreed in a single written document to 
instal plumbing and heating apparatus in each of two houses situ- 
ated on two adjoining lots, for the sum of $620 for each house, it 
was held that the contract contained two severable or divisible 
promises, one in respect to each house. The work in connection 
with the house on lot No. 30 was completed on July 29th, 1908, 
and that in connection with the house on lot "So. 29 on June 15th, 
1909 ; the sewer connections from both houses were joined in a line 
between the two lots. A lien filed against both lots on February 
1st, 1909, in respect of the whole contract price for the two houses 
was too late to preserve the lien against lot 30. A. Lee Co. v. Hill, 
2 Alta. E. 368. 

If the claimant has delayed completion, in order to give the 
owner time to arrange for payment, by arrangement with the 
owner, and work is then done to keep the lien alive, the owner hav- 



COMPUTING THE STATUTORY TIME. 191 

ing accepted the benefit of the delay and the work being necessary, 
the date of completion of such work will be taken as the date upon 
which the claimant has ceased to work. Clarice v. Moore, (1908) 
1 Altai. L. E. 49. 

Parties cannot by afterthought and subterfuge, extend the 
statutory time for filing a statement of lien so as to prejudice 
others. Renhey ' v. Dempster, (1911) 19 0. W. E. 644; Badger 
Lumber Co. v. Parker, (1911) 35 L. E. A. 901. See Woodruff v. 
Hovey, 91 Me. 116; Miller v. Wilkinson, 167 Mass. 136; 
McLean v. Sanford, 26 App. Div. (N.Y.) 603; Stenerwal,d 
v. QUI, 85 App. Div. (N.Y.) 605. As to right to different 
contracts to perform labor or furnish material for the purpose of 
extending time, see Valley Lumber & Mfg. Co. v. Dreessel, (1907) 
15 L. E. A. 299. It is incumbent on the lien claimant to prove 
clearly that the material was supplied and the work done in pur- 
suance of and as a part of his contract. Lawrence v. Landsberg, 
(1,910) 14 W. L. E. 477. The question whether labor and mater- 
ial furnished within the statutory period, but after the contract had 
been substantially completed, were in good faith and for the pur- 
pose of completing the contract or colorably to revive the lien, is 
a question of fact. Turner v. Wentworth, (1876) 119 Mass. 459. 
Plaintiff, a sub-contractor for plastering, had allowed the time for 
filing his lien to expire. Under the building contract the plas- 
terer was to '" fix up " after the other trades. He attempted, 
against the instructions of the defendant, the owner, to do some 
" fixing up," worked about four hours and then filed his lien. As 
he was really trying to manufacture a lien his action to enforce his 
lien failed. Sheritt v. McCallum, (1910) 12 W. L. E. 637. 

A few decisions, in rejecting a plaintiff's claim as registered too 
late, seem to put too much emphasis on the fact that the last work 
in question was trivial work, but this fact, in itself, is not im- 
portant. The very last repair or construction work done on any 
building generally is comparatively trifling, but the triviality of 
the work done, if done in accordance with the contract, cannot 



192 THE LAW OF MECHANICS'" LIENS IN CANADA. 

affect the plaintiS's rights, nor, in the case of a materialman, can 
the small value of the last materials supplied make any difference. 
Brynjolfson v. Oddson, (1916) 32 D. L. B. 270, (Man.); Hurst 
v, Morris, (1914) 32 0. L. E. 346; Merrick v. Campbell, (1914) 
17 D. L. E. 415, 24 Man. L. E. 446; Foster V. Btocklebank, 
(1915) 22 D. L. E. 38, (Alta.) ; Swwiison v. Mollison, (1907) 6 
W. L. E. 687 (Alta.). In considering this and kindred questions, 
an eminent judge has aptly said,— "It does not appear to me to 
affect the. matter that the latest orders were at long intervals for 
small quantities of goods, after the bulk of. the work had been done 
and the building occupied and used. These articles seem to have 
been bona fide required for small finishing jobs such as are usual 
in building operations, and which are frequently done after the 
owner is in occupation." BobocTc v. Peters, (1900) 13 Man. L. E. 
124, per Killam, C.J., at p. 136. 

"Even if the subsequent work was, as one witness stated, 
'. patching ' or ' odds and ends,' and comparatively unimportant, it 
was none the less done in connection with the original contract. 
It often happens that on a big repair job the last work done is of a 
trivial nature, but if such work be done at the request of the owner 
and in accordance with the terms of the contract it is still done 
before ' completion ' of the contract, within the meaning of the 
statute." Falconver v. Hartlen (Nova Scotia) unreported, per 
Wallace, County Court Judge. 

The time for .'filing a claim for lien cannot be extended by send- 
ing new material to replace alleged defective material formerly 
delivered and used in the completed building, which new material 
was not suited for the purpose and was rejected. Snitzler v. Filer, 
135 111. App. 61. After full delivery under a building contract, 
an agreement to extend the time for 'filing a claim for lien is in- 
effective. 

The time for filing a lien for material furnished to a contrac- 
tor cannot be computed from the date of the last item in the claim- 
ant's account unless such item was the subject of a lien. Brooks- 



i COMPUTING THE STATUTORY TIME. 193 

Sanford Co. v. Theodore Teller Co., (1910) 22 O.L.E. 176; Ludlam 
Ainslie Lumber Co. v, Follis, (1909) 19 O.L.E. 419. If materials 
are furnished for several buildings under one contract the time will 
begin to run on either building from the last item furnished. 
Premier Steel Co. y. M'cElwaine-Rickwrd Co., 144 Ind. 614. A 
lien which does not cover all the items set forth in the claim be- 
cause all are not within the time limit, will be good as to those 
which are within the time limit. Steves y. Sinclair, 171 N. Y. 
676. 

In dealing with the claim of the materialman the statutory 
time limit for registration is calculated from the date when the 
last material furnished by the claimant had been placed upon the 
land or used in the construction of the building. 

Notice of a mechanic's lien is filed in time if filed within the 
statutory time for furnishing the last of several lots of material 
ordered and furnished at different times, where they are all sup- 
plied under one contract. Randall y. Wagner Glass Co.; (1910) 
47 Ind. App. 439. 

Where work or material is in good faith furnished at the 
request and with the knowledge of the owner to remedy defects in 
the original work this is sufficient to establish a new period from 
which the statutory time limit is to be computed, but where the 
work contracted for is completed according to contract, as the con- 
tractor believes, but he later discovers defects and voluntarily 
undertakes without authority from the owner after the time for 
completing the contract has expired, to remedy the trouble, it is 
generally held that such work would not extend the time for filing. 
See Naucolas'v. Hitaffer, (1907) 12 L. E. A. 864. But ordinarily 
when materials are furnished after the work is completed, this will 
not keep the lien alive so as to prejudice others. See Benney Y. 
Dempster, (1911) 19 0. W. E. 644; Schaller Hoerr Co. v. Gentile, 
(1910) 153 111. App. 458. Where, hbwever, the Government In- 
spector orders changes, after supposed completion, the computation 

M.L. — 13 



194 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

may be made from the date when the changes were completed. 
Winer v. Rosen, (1918) 231 Mass. 418. 

While there might be an interval of delay so great and unrea- 
sonable as to justify a Court in holding as a matter of law that 
a lien had been lost by reason of such great delay, yet if the sworn 
statement of a mechanic's lien is filed within the statutory time 
after the claimant has ceased to labor, and if the last item of labor 
were performed in good faith under the claimant's contract the 
lien is none the less valid because before the work named in the 
last items was done, no work had been done by the claimant for 
more than a month, and before the last work was done the houses 
on which the lien is claimed appeared to be completed, and were 
purchased by their present owner without knowledge of any lien. 
Billings Go. v. Brand, (1905) 187 Mass. 417. 

The words " the last material" in a statute providing that " a 
claim for lien for materials may be registered before or during 
the furnishing or placing thereof, or within thirty days after the 
furnishing or placing of the last material so furnished and placed," 
mean the last material furnished by the materialman under his 
contract, where there is a distinct contract; and where he fur- 
nishes materials outside of his contract, it has been held that the 
time for registering his claim for lien in respect of the material 
supplied under the contract begins to run from. the time of the 
last delivery of material under the contract, without regard to the 
time of delivery of material outside of the contract. Bathbone v. 
Michael, (1909) 19 0. L. E. 428. 

But the whole transaction in relation to the building contract 
between the owner and the contractor must be considered in de- 
termining the question of the date when the statutory period 
begins to run. Where the materialman has contracted to supply 
all of a certain class of supplies required in the construction of a 
particular building, as mentioned in the specifications, and he 
supplies not only the goods which were so mentioned, but further 
materials which were contemplated by his contract as extras or 



COMPUTING THE STATUTORY TIME. 195 

additions, by the amount of which the fixed price was subject to 
increase, the lien for the entire bill is not lost by the lapse of the 
statutory period for filing liens between the last delivery of that 
portion of the goods, the class and quantities of which were shown 
in the specifications, and the later delivery of the extras; the lien 
in such case is in time if filed within the statutory period follow- 
ing the last delivery of extras. Flett v. World Construction, 
(1914) 15 D. L. E. 628. In such cases, although the initial ar- 
rangement is not a binding contract for the supply of any defi- 
nite kind or quantities of materials or even of all, such as should 
be required, yet the whole transaction is so linked together as to 
constitute a single cause of action, and the time for registration 
or bringing an action runs from the supply of the last of the ma- 
terials in respect of the whole bill. Booock v. Peters, (1900) 13 
Man. L. E. 124; Morris v. Tharle, (1910) 24 0. E. 159. 

The period of thirty days during which the owner is to retain 
twenty per cent, of the value from his contractor for the protection 
of other lienholders is to be computed from the completion or 
abandonment of the contract ,by the ' principal contractor, but the 
expiry of such period does not relieve the owner from his obliga- 
tion to protect the interests of a sub-contractor of whose right to 
register a lien the owner has notice ; and such obligation is enforce- 
able by a sub-contractor who was enabled to file his lien more than 
thirty days after the abandonment of the work by the principal 
contractor by having been permitted by the owner thereafter to go 
on and complete the subcontract and who has filed his lien within 
thirty days of completing his own work. Merrick v. Campbell, 
(1914) 17 D. L. E. 415 (Man.). 

The Mechanics' Lien Act requires effective proceedings to be 
commenced within a specified number of days from the date of the 
last work done. As to the question whether the Eules of the 
Court relating to vacation can apply to the Mechanics' Lien Act, 
it has been decided in Ontario that such rules cannot apply. Al- 
though the initial step in an action under a Mechanics' Lien Act 



196 THE LAW OF MECHANICS' LIENS IN CANADA. , 

is called a statement of claim, it differs materially from the plead- 
ing of that name in an ordinary action. It is the first step in a 
proceeding to enforce a statutory remedy, and the Act requires this 
step to be taken within a fixed period. To extend that period by 
excluding vacations would be, in effect, to amend the Act and 
materially enlarge the time which must elapse before proceedings 
under it will be barred. Canada, Sand Lime Brick Co. v. Ottaway, 
(1907) 10 0. W. E. 666. 

In the computation of time within -which proceedings must be 
instituted, the rule is that the first day is to be excluded and the 
last day included. McLennan v. The City of Winnipeg, (1882) 3 
Man. L. E. 474. As to the law relating to the question " when the 
last (lay falls on Sunday," see Holmested, and also an article by 
Gorman, K.C.j 48 C. L.J. 281. See also Bevelstoke, etc. v. Alberta 
B. Co., 9 Alta. L. E. 162. 

In computing the statutory period in relation to filing a lien 
fractions of a day will not be counted. 

" Day " means the twenty-four hours from midnight ' to mid- 
night. Clarke v. Moore, (1908) 1 Alta. L. E. 49, 8 W. L. E. 405. 

The time of the filing of the lien determines the legislation 
to be applied. Mont joy v. Reward School Dist. (1909) 10 W. L. 
E. 282 (Sask.). 

A mechanics' lien will attach for all materials supplied in the 
erection of a building, although the time for filing has expired as 
to certain classes of material, ordered at a different time, where it 
is shewn that there was a prior agreement to purchase all material 
required for the building from such vendor. Whitlock v. Loney, 
10 Sask. L. E. 377, (1917) 3 W. "W. E. 971, 38 D. L. E. 52. The 
lien is enforceable if registered within the statutory period from the 
last delivery of materials, even though the materials last delivered 
may never have been used in the construction of the building, if 
they were furnished for the purpose of being, used therein. Kalb- 
fleisch v. Hurley, 469, 34 0. L. E. 268. . . 



CHAPTEE XIII. 



Damages. 



The contractor is not entitled to a lien merely because he has 
performed work or service ; such work or service must be performed 
under a definite contract, or something in the nature of a contract. 
If, therefore, a contractor is wrongfully prevented by the owner 
from fully performing his contract he has no lien for damage's 
caused thereby, although he has a right of action for such damages. 
The lien does not extend to unliquidated damages due to the 
contractor by the owner on account of the violation of the terms 
of the contract. Damages suffered by a contractor by reason of 
his being improperly deprived of his contract cannot be claimed 
in a proceeding under the Mechanics' Lien Act nor can such dam- 
ages be a lien on the lands. Seaman v. Canadian Stewart Co., 18 
0. W. E. 56; Hoyt v. Miner, 7 Hill (N.Y.). As to measure of 
damages recoverable by owner under a counterclaim for certain 
material not furnished by a contractor, see Woolfe v. Schaefer, 
(1905) 103 App. Div. (N.Y.) 567. 

The lien- is restricted by. the statute to the labor performed and 
materials furnished. Loss of profits or damages for breach of 
contract in refusing to allow the contractor to perform cannot be 
the subject of a lien. O'Rielly v. Mahoney, (1908) 123 App. Div. 
(N.Y.) 275. 

The owner is not entitled to recover damages from the con- 
tractor for loss of the rental value of the property and for deterio- 
ration thereof which he claims resulted from failure to deliver cer- 
tain articles. Woolf v. Schaefer, supra. If a building contract 
provides a sum as liquidated damages in the event of failure to 
complete work and give complete possession within stipulated 
time and the contractor fails to complete work within the time 
and the liquidated damages exceed the amount that would other- 



198 THE LAW OF MECHANICS' LIENS IN CANADA. 

wise be due the contractor, there is no sum " justly owing " or 
" payable " by the owner to the contractor, and a materialman 
cannot succeed in an action. McManus t. Rothschild, 25 0. L. K. 
138 ; Farrell v. Gallagher, 23 0. L. R. 130. 

The Mechanics' Lien Act is not broad enough to extend to the 
cost of preparing for work to be done upon a site, such as the as- 
sembling of the necessary tools and equipment, although such" work 
has been frustrated without fault of the contractor. Any such loss 
must be treated as damages. British Columbia Granitoid, etc. Go. 
v. Dominion Shipbuilding, Engineering and Dry Dock Co., (1918) 
2 W. W. E. 919. 

So long as only the Tights of the owner and principal contrac- 
tor are to be considered, damages resulting from the default of 
the contractor can always be set up as a defence (Taylor v. Mur- 
phy, 148 Pa. 337; Heberlein v. Wendt, 99 111. App. 506), except 
to the claim of the wage-earner. Farrell v. Gallagher, supra ; 
McManus v. Rothschild, supra. The fact that materials were re- 
ceived at the building will not prevent an owner from claiming 
damages if they were defective. Strawn v. Cogswell, 28 111. 457. 
Consequential damages resulting from a breach of the contract will 
not give a lien, and if a contractor be wrongfully discharged the 
damages to which he would be entitled would be the amount coming 
to him on, the footing of the contract if he had been allowed to 
complete the work. Farrell v. Gallagher, supra. See reference to 
this case in Rice Lewis v. Harvey, 9 D. L. E. 114. See also Watrous 
v. Davies, 35 111. App. 542 ; Landyshowshi v. Martyn, 30 Mich. 575 ; 
Thomas v. Stewart, 132 (N.Y.) 580. 

"Where liquidated damages are specified in the event of the con- 
tract not being completed, the owner can retain such sum even as 
against sub-contractors (McBean v. Kinnear, 23 Ont. E. 313; Julin 
v. Ristow Pottes Mfg. Co., 54 111. App. 460), but not as against 
wage-earners. Farrell v. Gallagher, supra, McManus v. Rothschild, 
supra. In a suit by a sub-contractor to enforce a lien against the 
owner of the building one American Court decided that the owner 





DAMAGES. 199 

may off-set any actual damages which he has sustained caused by 
the contractor's failure to complete the building in time, provided 
that the damages are such as may be said to have been in contempla- 
tion of the parties when the contract was made. Fossett v. Rock 
Island Lumber Co., (1907) 14 L. E. A. 918. If the work is not 
completed owing to the default of the owner the contractor has a 
lien for the work performed. Smith v. Norris, 120 Mass. 58. 

Deduction by way of damages was not allowed when there had 
been delay by the contractor, the lienholder not being the con- 
tractor and the onus being on the owner to show that contractor 
should not have been given an extension of time. Lundy v. Hen- 
derson, 9 W. L. E. 327. 

If the owner rescinds the contract before any work is done no 
right to a lien will exist, the contractor's remedy being an action 
for breach of contract. Horr v. Slairk, 35 111. App. 140. 

A sub-contractor cannot acquire a lien on a claim for unliqui- 
dated damages. Mayer v. Mutchler, 50 N. J. L. 162; Miner v. 
Hoyt v. mil (N.Y.) 193. As to whether the sum mentioned in 
a building contract is a penalty or liquidated damages, see 
McManus v. Rothschild, (1911) 25 0. L. E. 138. See also Farmers 
Advocate v. Master Builders Company, (1917) 3 W. W. E. at p. 
1100; Dunlop v. New Garage, (1915) A. C. 79. Canadian General 
Electric Company v. Can. Rubber Co., 52 Can. S. C. E. 349 ; 
Renner v. Rosen, 45 D. L. E. 1. Where the contractor is entitled 
to a quantum meruit, a fair and reasonable sum to compensate 
him for the work undertaken and done, and for the responsibility 
involved in the doing of it, should be added to the actual cost of 
it to him. Rohl v. Pfaffenroth, (1915) 31 W. L. B. 197. 

Loss of probable rentals from houses in course of construction, 
because of the contractor's delay in completing, can be allowed to 
the owner in abatement of the price only when a time has been 
specified for doing the work or after the owner is given notice to 
proceed with it. Elford v. Thompson, (1912) 1 D. L. E. 1, 19 
W. L. E. 809. 



200 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

Compensation for expense incurred by owner, where there was 
delay in completion of work, will be refused, unless sufficient ex- 
cuse is shown by owner for incurring the expense. Brown Con- 
struction Go. v. Bannatyne School District Corporation, (1912) 
21 W. L. B. 827 (Man.). 

The ordering of extras does not necessarily put the parties at 
large and deprive the owner of his right to liquidated damages. 
See Grace y. Osier, (1911) 16 W. L. K. 627, 19 W. L. E. 109, 326. 

The lien is restricted by the terms of the statute to the labor 
performed and materials furnished. Loss of profits or damages 
for breach of contract in refusing to allow the contractor to per- 
form cannot be the subject of a lien. O'Bielly v. Mahoney, (1908) 
123 App. Div. ]ST.Y. 275. Damages suffered by a contractor by reason 
of his being improperly deprived of his contract cannot be claimed 
in a proceeding under the Mechanics' Lien Act, nor can such dam- 
ages entitle a claimant to a lien on the land. Seaman v. Canadian 
Stewart Co., 18 0. W. E. 56, 2 O. W. N. 576. 



CHAPTER XIV. 

, Mechanics' Liens on Personal Pkoperty. 
Their Nature, and Scope. 

There are two species of lien known to the common law, namely, 
particular liens and, general liens. A particular lien attaches to 
property to secure a debt relating to that property. 

Particular liens exist where persons have the right to retain 
goods in respect to labor or money expended upon them, and these 
liens are favored in law. Houghton v. Matthews, (1803) 3 B. & 
P. 485. "As between debtor and creditor, the doctrine of lien is 
so equitable that it cannot be favored too much." Jacobs v. La- 
tour, (1828) 5 Birig. 133, per Best, C.J. All such specific liens 
being consistent with the principle of natural equity are favored 
by the law, which is construed liberally in such eas,es. Scarf e v. 
Morgan, (1838) 4 M. & W. 283, per Parke, B.' 

General liens attach to property to secure a general balance of 
account due from the owner to the possessor, whether in respect to 
that property or not. Anglo-Italian Bank v. Davies, L. B. 9 Ch. 
D. 289. General liens, are founded on custom only, and are there- 
fore to be taken strictly. Houghton v. Matthews, (1803) 3 B. & 
P. 494; Bock v. Gorrissen, (1860) 2 De G. P. & J. 443. The liens 
of bankers, factors, attorneys and wharfingers are general liens. 

By the general custom of trade an artisan may have a lien for 
his general balance (Saville v. Burchard, (1801) 4 Esp. 53), but 
ordinarily a mechanic has no lien to secure a general balance due 
him (Oumpston v. Haigh, (1836) 2 Bing. N". C. 449; Lilley V. 
Bamsley, (1844) -1 C & K. 344. See distinction between 
particular and general liens, — Blackburn v. MacDonald, 6 U. C. 
C. P. 380. A general lien can no doubt be made by contract, but 
it requires a clear contract. A recent instructive case on general 



202 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

and particular liens is Cassels & Co. v. Holden Wood Bleaching Co., 
(1914) 84 K. B. B. 834. 

The lien exists whether a price be specified in the contract or 
not {Chase v. Westmore, 5 M. & S. 180; Townsend v. Newell, 14 
Pick. 332), or whether the lien claimant does the work himself, or 
in his own shop, or employs an outside mechanic to do the work 
for him' (Webber v. Cogsw.ell,;2 E. & C. 47/2 Can. S. C. R". 15), 
but a mere employee of the mechanic or contractor can have no lien 
on the chattel. Hollingsworth v. Dow, 19 Pick. 228; Meyers v. 
Bratispiece, 174 Pa. 119. A servant has no lien upon the personal 
property of his employer, because his possession is not in his own 
right but in , the right of his employer. Fitzgerald v. Elliott, 162 
Pa. 118. See Zing v. Indian Orchard Co., 11 ,Cush. 231 ; Shaw 
v. Ealer, 106 Mass. 448; State v. Goll, 32 N". J. L. 285. A packer 
has a lien upon the goods packed for the work done. Hay ward v. 
Grand Trunk B. Co., 32 IT. C. Q. B. 392. 

It is one of the characteristics of the common law liens such 
as a mechanics' lien on a chattel as distinguished from liens 
created by contract or by statute, that, the former over-ride all 
other, rights in the property to which they attach and the latter 
are subordinate to all prior existing rights therein. , White V. 
-Smith, (1882) 44 N". J. L. 105. The work done must be based 
on a, valid contract. There must.be a legal obligation of the owner 
to pay. LaBose v. Nichols, (1918) 103 Atl. 390. 

A mechanics' lien is a particular or specific lien which con- 
fers upon a mechanic who has bestowed labor, skill or expense 
upon of in respect of the chattel of another, the right to retain 
the chattel for his reasonable charges until' they are satisfied. The 
i work done must be authorized expressly or impliedly by the owner 
' of the chattel. Bleaden y. Hancock, (1829) 4 C. & P. 152; Ham- 
monds v. Barclay, (1802) 2 East 235; Chase v. Westmore, (1816) 
5 M. & S. 180 ; Bevan v. Waters, Moo. and Malk. 236 ; Franklin 
v. Hosier, (1821) 4 B. & Aid, 341; Bushfield Y.Wheeler, (1867) 
14 Allen (Mass.) 139. As to authority implied from -circum- 
stances, see White v. Smith, (1882) 44 N"; J. L f 105. 



mechanics' liens on personal peopehtt. 203 

This lien extends to all labor and materials expended upon 
the chattel, and to all the goods included in the contract, although 
delivered to the mechanic in different parcels and at different 
times, so long as there is an entire contract. Chase v. Westmore, 
(1816) 5 M. & S. 180; Blake v. Nicholson, (1814) 3 M. & S. 167; 
Saunderson v. Bell, (1834) 2 Cr. & M. 304; Morgan v. Congdon, 
(1851) 4 N. Y. 552. This principle, would not apply where there 
are distinct contracts {Marks v. Lahee, (1837) 3 Bing. N. C. 408), 
but' where there is an entire contract for a certain sum to make 
or repair several articles, the lien rests on one or two articles in 
the possession of the lien claimant, not only for their proportion- 
ate part of repairing the whole, but for the amount due for labor 
on all the articles. Hensel v. Noble, 95 Penn. St. 345; Blake v. 
Nicholson, (1814) 3 M. & S. 167. 

This lien has been extended so as to include all money ex- 
pended in the preparation of the means of doing the work. Conrow 
v. Little, (1889) 115 N.Y.. 387, 393; Busfieldv. TT7ieeZe»v(1867) 14 
Allen (Mass.) 139. In one case the lien claimants were a printing 
. firm and had only executed a small portion of work upon a large 
quantity of paper supplied them, when through the owner's default 
the completion of the work was prevented. Danforth, J., in deliver- 
ing the judgment of the court, said, in referring to the lien of the 
claimants : " It attached the moment the paper came into the 
possession of the defendants for the purpose of having work done 
upon it, and' remains good until discharged by payment, not only 
far labor literally expended upon the paper itself, as by printing, 
but for any act done or labor performed or money expended in the 
preparation of instrumentalities by which that labor was to be per- 
formed, as types, cuts, illustrations, electrotypes and other things 
of like nature and object." Conrow v. Little, supra. But see 
judgment of Harrison, C.J., in Qurney t. MacKay, (1875) 37 U. 
C. Q. B. at p. 336. 

The lien extends only to the principal chattels placed in the 
mechanic's hands to be worked up and not to the accessorial 



204 , THE LAW OF MECHANICS' LIEN'S IN CANADA. 

materials which may have been furnished, by the employer and left 
upon the premises of the mechanic unusecj- Cumpston v. Haigh, 
(1836) 2 Sc. 684, 5 L. J. C. P. 99. An unliquidated claim will 
support a lien. McFatridge v. Eolstead, 21 N. S. E. 325. A 
carriage' 1 builder who constructs a stationary top for a wagon and 
fastens the same with bolts and nuts, has a lien on the whole 
structure. Hardisty v. Cornell,. (1899) 40 N. S. E. 214. 

The lien law leaves the question of trade fixtures where it finds 
it. Coddington v. Dry Dock Co., (1863) 31 N. J. L. 477. "Trade 
fixtures" are personalty and the security of the mechanic who 
constructs them is in the enforcement of his lien upon the chat- 
tel. Corroll v. Shooting the Chutes Co., (1900) 85 Mo.. App. 563; 
Rohls v. McLean, (1913) 25 W. L. E. 358. 

The Mechanics' Lien Acts existing in various provinces in 
Canada contain provisions which deal with liens on personalty and 
are intended to give an effectual remedy for the enforcement of 
the lien. These provisions do not create the lien, as the lien always 
existed, not only under the civil law (Belleau v. Pitou, 13 Quebec 
L. E. 337), but also at common law (Chase v. Westmore, (1816)- 
5 M. & S. 180; Ex p. Willoughby, (1881) L. E. 16 Ch. D. 604. 
This lien attaches for the whole amount of indebtedness to any 
part of the goods remaining in possession of the lienor. , Blake v. 
Nicholson, (1814) 3 M. & S. 167. 

The Mechanics' Lien Acts give the additional right of sale to 
the lienholder. Under the common law the mechanic already had 
the right to retain the chattel in his possession until his claim was 
satisfied, but there was no efficient method of enforcing the lien, 
as he did not have the right to sell the chattel, there being in that 
respect a distinction between a mechanics' lien and an express 
pawn or pledge of goods by the owner, as collateral security for a 
loan of money, as the creditor might sell the pledge in the latter 
case. Mulliner v. Florence, (1878) L. E. 3 Q. B. D. 484; Donald 
v. Suckling, (1866) L. E. 1 Q. B. at p. 612; Doane v. Russell, 
(1855) 3 Gray, (Mass.) 382; Folsom v. Barrett, (1902) 180 Mass, 
439. 



mechanics' liens on pehsonax peopeety. 205 

Ebsentials of the Lien. 

To establish the lien at common law there must be, — 

(a) A debt arising by implication of law out of a contract be- 
tween the mechanic and the owner of the chattel (Hiscox v. Green- 
wood, (1801) 4 Esp. 174), by the performance of which the me- 
chanic bestows labor, skill or expense upon the article. Sawyer v. 
Longford, -(1848) 2 C. & K. 697; Chase v. Westmore, (1816) 5 M. 
& S. 180; Belleau v. Pitou, 13 Que. L. E. 337; Maries v. Lahee, 
(1837) 3 Bing N". C. 408; Jackson v. Cummins, (1839) 5 M. & W. 
342; Scarf 'e v. Morgan, (1838) 4 M.'& W. 270. 

Several of the cases seem to hold, and some of the legal writers 
on this subject apparently conclude, that it is essential to the 
maintenance of the lien that the labor and skill bestowed on the 
chattel should actually add value to it. But such a proposition, 
perhaps, should not be accepted as absolute and inflexible. An 
owner might employ a mechanic to alter a chattel, although the 
alteration required would not add value to the article and might 
in fact lessen its value except in the opinion of the owner. But if 
the work be performed according to an agreement with the ownei, 
the lien claimant should not be deprived of a lien because in 
carrying out the instructions of the owner, and as result of doing 
so, the article was, perhaps, rendered less valuable than before. 
The rule, therefore, should possibly be stated in some such form 
as that the labor and skill of the mechanic must impart additional 
value .to the chattel or be intended by the owner to have that effect. 
Section 51, post, which empowers the mechanic to sell the chattel 
recognizes his right to a lien where his work had been done on the 
thing " for the purpose of imparting an additional value to it." 

The work on the chattel must be expressly or impliedly author- 
ized by the owner of the chattel. HolKs v. Claridge, (1813) 4 
Taunt. 807; Castellain v. Thompson, (1862) 13 C. B. N". S. 105; 
32 L. J.C. P. 79; Small v. Robinson, (1879) 69 Me. 425, 31 Am. 
Eep. 299. While the work on the chattel must be done under 



208 THE LAW OF MECHANICS' LIENS IN CANADA. 

contract, the authority of the owner to do the work will be im- 
plied from circumstances which would not raise an implication of 
a contract by the owner to pay the charges to be enforced by a suit 
against him, as where a wife allowed her husband to use her 
wagon and he had necessary repairs made, it was held that the 
mechanic had a lien therefor. White v. Smith, (1882) 44 N. J. 
Law 105. 

(b) Continuous possession, either actual or constructive, in the 
lipn claimant, is essential to the existence of Me lien. .Such posses- 
sion must have been acquired in due course of business or in some 
other lawful way, and must not be inconsistent with the terms of 
the contract under which the lien is claimed. A lien cannot be 
acquired by fraud, misrepresentation, violence or any unlawful 
act. Leg v. Evans, (1840) 6 M. & W. 36; Taylor v. Bolinson, 
(1818) 2 Moore 730; Ex p.Willoughly, (1881) L. E. 16 Ch. D. 
604; McMillan v. Byers, (1886) 3 Man. 861. The possession need 
not be absolutely exclusive but must be uninterrupted, as even a 
temporary voluntary relinquishment and subsequent resumption of 
it is an abandonment of the lien. Hatton v. Oar Maintenance Co., 
(1915) 1 Ch. 621; Forth v. Simpson, (1849) 13 Ad. & E. (N.S.) 
680; Hartley v. Hitchcock (1816) 1 Stark. 408; Jackson v. Cum- 
mins, (1839) 5 M. & W. 342; Dixon v. Daily, (1852) 11 U. C. Q. 

B. 79; Rielly v. Mcllmurray, (1898) 29 O. E. 167; McNeil v. 
Eeleher, (1865) 15 C. P. 470; Milium v. Milium, (1848). 4 U. 

C. Q. B. 179 ; Weller v. Cogswell, 2 E. & C. 47, 2 Can. S. C. E. 15. 

Cases are sometimes cited as inconsistent with the proposition 
that continuous possession is esential to the maintenance of the 
lien, but a careful examination of the facts will show that they are 
not in conflict with this doctrine, but that in each case the chat- 
tels were during all the time in the constructive possession of the 
lien claimant. In one case (Weller v. Cogswell, supra) the 
mechanic at Halifax sent the chattel to Boston to have it repaired 
and it was held that the Halifax mechanic had a lien for the charge 
made by the Boston mechanic. Unless there is a stipulation or 



mechanics' liens on personal property. 207 

implication to the contrary in the contract the hen claimant is 
not obliged to do the work himself, or to have it done upon his 
own premises, but may employ some one outside his premises, and 
in such a case, where the outside mechanic would be a sub-contrac- 
tor, the outside mechanic would have no lien, there being no con- 
tractual relation between him and the owner and no implied con- 
sent to such a lien (Hollingsworth v. Dow, (1837) 19 Pick 228) 
and his possession being really in the right of his own employer. 
See Whittle v. Phelps, (1902) 181 Mass. 317. 

(c) The possession must be lawful. Where one wrongfully 
obtains possession of chattels and delivers them to a third party, 
Who bestows money, skill or materials thereon the latter would 
have no lien therefor as against the rightful owner (Hartop v. 
Hoare, (1743) 3 Atk. 43; Bernal v. Pirn, (1835) 1 Gale 17, 20), 
and even where a person lawfully obtains possession of a chattel, 
as by gratuitous loan or bailment, and delivers the chattel to a 
third person who repairs it, the latter has no lien for the repairs. 
The right being inseparably coupled with possession, loss of pos- 
session involves loss of lien, which once lost does not- re-attach on 
re-possession of the article, unless the loss of possession be involun- 
tary. McDonald v. Stirskey, (1879) E. & C. 520, N.S.; Canadian 
Gas Power v. Schofield, (1910) 15 O. W. E. 847. 

An involuntary surrender of possession does not defeat the 
lien. Wilson v. Kymer, 1 M. & S. 157; Lane v. Old Colony R. 
R. Co., 14 Gray (Mass.) 148; Lynch v. Tibbits, (1857) 24 Barb. 
1ST. Y. 51. An agreement which is void from the beginning cannot 
give rise to a lien, but an agreement to do something which is illegal 
can give rise to the lien if the work is done. Scarf e v. Morgan, 
(1838) 4 M. & W. 270, 282. On the other hand, regaining posses- 
sion without the consent of the owner, after voluntarily parting 
with the possession, will not revive the lien. Hartley t. Hitch- 
cock, (1816) 1 Stark. 408; Howes v. Ball, (1827) 7 B. & C. 481. 

Ee-delivery to the owner cannot be recalled even if made by 
mistake {Dicas v. Stockley, (1836) 7 C. & P. 587; see Bligh v. 



208 THE LAW OF MECHANICS' LIENS IN .CANADA. 

Davies, (1860) 28 Beav. 211), but if re-delivery is induced by 
fraud the lien revives if possession is recovered. Bristol v. Wils- 
more, (1823) 1 B. & C. 514; Hawes v. Crowe, (1826) Ey. & M. 
414. 

■Some of the earlier English cases and a few cases decided in 
the United States are sometimes cited by legal writers to sustain 
the proposition that possession in order to confer the right to a lien 
must be exclusive and unconditional. Such a proposition does not 
seem to be clearly sustained by the governing decisions on this ques- 
tion. , 

It is difficult to state, what constitutes sufficient possession to 
secure the right to lien, but while exclusive possession is not 
strictly essential there must be such actual control and possession 
\in the lien claimant as would be reasonable under the special cir- 
cumstances of the case. This question of what constitutes suffici- 
ent possession to give the right of lien can best be answered by a 
comparison of two cases, — King v. Indian Orchard Go., (1853); 
11 Cush. (Mass.) 231 ; and Roberts v. The Bank of Toronto, 
(1894) 25 Q. E. 194, 21 A. E. 629: In the former case it was 
decided that a manufacturer of bricks burnt on the land of an- 
other, but of which the manufacturer has no lease and no other 
interest than the right to enter and make the bricks, has no such 
possession of the bricks as to give him a lien thereon for his labor. 
In that case the court (per Bigelow, J.) said : " Upon the undis- 
puted facts in this case it appears to us that the plaintiff fails 
to show any such possession of the property in question as will 
support the lien which he set up in order to maintain this action. 
In the first place he shows no right or interest in himself as owner, 
lessee, or tenant of the possession of the yard in which the bricks 
were made and burned. 

" Upon these facts it is manifest that the plaintiff never had 
any exclusive and unconditional possession of the property. It 
was, at most, only a mixed possession with Stearns or rather, a 
license to the plaintiff to enter upon ; and use the yard of Stearns 



mechanics' liens on personal property. 209 

for the purpose of making and burning the brick. It is entirely 
clear that such a restricted and limited possession is insufficient 
to support a lien. It amounts to nothing more than the ordinary 
transaction of work done by one person in the manufacture or 
repair of articles for another upon the premises of the latter. The 
workman in such a case has to a certain extent possession of the 
property upon which his labor and services are expended, but it 
is a qualified and mixed possession which can form no valid basis 
for a lien." 

It is apparent that in this case the claimant failed to make out 
his own actual possession, and" moreover, that as an employee he 
could have no lien upon property of his employer. State v. Goll, 
(1867) 32 N. J. L. 285. 

In the case of Roberts v. Batik of Toronto, the plaintiff was 
employed to manufacture bricks for another in a brickyard belong- 
ing to the latter, of which, however, the plaintiff held possession 
foT the purpose of his contract, and remained and was in posses- 
sion of the bricks. at the time of their seizure by the sheriff under 
an execution against the owner of the brickyard, who immediately 
after such seizure made an assignment for the benefit of creditors. . 
It was held that the plaintiff was entitled to a lien upon the bricks 
in priority to the execution and assignment for the benefit of credi- 
tors, and also in priority to the claim of the chattel mortgagee, 
though his mortgage cove.red brick in course of manufacture dur- 
ing its continuance. 

On appeal it was contended that exclusive possession must be 
shown. The judgment, however, was confirmed, and Haggerty, 
C.J.O., in the course of his judgment, said: "The possession 
necessary to entitle him to his common law lien must be such a 
reasonable, clear and actual possession as the nature of the case 
will admit." 

An examination of two other cases will throw further light on 
the question of sufficiency of possession. In Shaw v. Kaler, (1871) 
106 Mass. 448, it was held that a mechanic constructing articles 

MX. — 14 



210 THE LAW OF MECHANICS' LIENS IN CANADA. 

of furniture, under a contract by which his employer furnished, 
the materials and bench room, could maintain an action for the 
conversion of the articles against one who took them from his 
possession claiming under an alleged mortgage from the em- 
ployer, of the existence of which there was no evidence. In this 
case the crucial fact was established that the articles were retained 
in the actual possession of the mechanic in the employer's work- 
shop. In another case (McLachlan v. Kennedy, (1889) 21 N. S. 
E. 271), defendant wrote to plaintiff proposing an arrangement 
for quarrying and burning lime on plaintiff's land. Eeeeiving no 
reply, he entered and burnt lime. . The plaintiff afterwards rati- 
fied defendant's action and agreed to buy all the lime he burned 
and to supply the barrels. Plaintiff having refused to accept a 
lot of lime on the ground that it was not delivered within the time 
agreed on, the defendant shipped it to another party, and plain- 
tiff then brought action for the conversion of his property, and it 
was held that the action could not. be maintained, the defendant's 
lien on the lime being undischarged. 

In a later case, in Ontario (Hachett v. Coghill, (1903) 2 0. 
W. E. 1077), Boyd, C, said: "Later cases show explicitly that 
one necessary ingredient of lien is that the person claiming it 
should have full possession, meaning thereby that the claimant 
must have exclusive and continuous possession, and if the things 
are moved from the place of repair it must be to a place where 
absolute and entire dominion over them can be retained, a thing 
which can rarely be done." See Mors-le-Blanch v. Wilson, L. E. 
8 C. P. 227, at 238 ; Jfiz p. Willoughby, 16 Ch. D. 610, 612. In 
support of this proposition some English eases are cited by this 
eminent judge, and the case of Somes v. British Empire Shipping 
Co., (1860) 8 H. L. C. 338, is distinguished. The facts in 
Hachett v. Coghill, as stated by the judge, were as follows : " The 
plaintiff's claim is in respect of repairs done upon their ves- 
sels when they were hauled out upon his ways in the har- 
bor at Wiarton. After the work was done the vessels were respec- 
tively restored to the water and taken first to the dock belonging 



mechanics' liens on personal peopebtt. 211 

to Gastner and afterwards to the old dock erected by the town and 
which was in common and public use even after the erection of a 
new dock by the town about two years ago. While lying at the 
old dock the plaintiff put lock and chain upon the dredge and noti- 
fied the owners, but before this he says ,that he tied up the vessels 
at this dock and claimed to be in possession of them. The evi- 
dence shows that the plaintiff had permission to use Castner^s 
dock from the owner, and the old dock from the town authorities 
by verbal license for the purpose of his business in repairing ves- 
sels. The legal possession of the water lots on which the moor- 
ing existed at the time of the dispute as to possession which is now 
being litigated was vested in the Crown. It is further in evidence 
that the owners had a person in possession of the dredge for the 
purpose of looking after it and keeping the machinery in proper 
order and he was on the boat at the time it was chained up by 
the plaintiff." Upon this state of facts it was impossible to sup- 
port the claim of the plaintiff to a lien and the decision against 
the plaintiff cannot be questioned. The general statement of law, 
however, in the case, as reported, that a claimant must have exclu- 
sive possession, seems at variance with some English judgments 
and at least one Canadian decision. 

In one English case (Crowfoot v. London Dock Co., (1834) 
2 Cr. & M. 630), which is not cited in this Ontario case, but, like 
it, was in connection with the repair of a ship, Parke, B., said (at 
p: 655) : "It is impossible to lay down any precise rule as to the 
sort of possession which is necessary in order to give validity to 
the lien. Each case must, depend a good deal upon its own cir- 
cumstances, and here the company had possession so far as the 
nature of the transaction would admit. Any more exclusive pos- 
session on their part would have defeated! the whole object of the 
advances which it was, the purpose of the lien to secure. It would 
be going too far to say that the law] rendered such exclusive pos- 
session necessary ; and the case which has been cited (Manton v. 
Moore, 7 T. E. 67), though not exactly on the same subject, is 
nevertheless fairly relied upon as showing that the law does not 



212 THE LAW OF MECHANICS' LIENS IN CANADA. 

require it. Though Streather has been permitted to use the en- 
gines and materials for a particular purpose, they remained on the 
defendant's premises and under their control." Hackett v. Goghill 
also omits any reference to the case of Roberts v. Bank of Toronto, 
(1894) 25 0. B. 194, 21 0. A. E. 629, where the Ontario Court on 
appeal did not uphold the contention that possession must be exclu- 
sive. The decision in Hackett y. Goghill was appealed to a Divi- 
sional Court, which upheld the trial judge's finding of fact. See 
3 0. W. E. 827. See also Keystone M. Go. v. Close, (1917) 3 Am. 
L. E. 857; Bank of Montreal v. Potts, (1892) 91 Mich. 342. Aban- 
donment of possession forfeits the lien. Troop v. Hart, 7 Can. 
S. C. E. 512; Katzman v. Mannie, (1919) 46 0. L. E. 121. 

If possession is parted with the lien is gone in respect to third 
persons, although it was stipulated between the parties that the 
lien should continue notwithstanding the removal of the property. 
McFarland v. Wheeler, 26 Wend. N. Y. 467; Oakes v. Moore, 
(1844) 24 Me. 214. Whether possession has been parted with or 
not is a question of fact. Bernal v. Pirn, (1835) 1 Gale 17. As 
to facts which would constitute insufficient possession, see 
McEenzie v. Mattinson/iO N. S. E. 346. 

(d) The work must be work of skill. The principle of a com- 
mon law lien is not applied to every kind of labor done on a chat- 
tel but extends only ,to skilled workmen exercising a trade or art. 
The proprietor of a garage is not entitled to a lien on an auto- 
mobile for keeping and caring for same in his garage, nor for sup- 
plies such as gasoline and oil furnished by him to the owner while 
the machine was being kept in the garage. Behm v. Viall, (1914) 
185 111. App. 425. But a workman who makes repairs to ah auto- 
mobile has thereon a right of retention, and in Quebec his claim 
for repairs constitutes a privileged debt which takes rank by pre- 
ference on the proceeds of the sale of the vehicle. He has the right 
to cause a conservatory attachment to issue for the purpose of 
giving effect to his privilege. Morin v. Garbi, (1916) 50 Que. S. 
C. 273. A lien may be had for the repair of automobiles. Gardner 
v. Le Fevre, (1914) 180 Mich. 219; Smith v. O'Brien, (1905) 94 



MECHANICS' LIENS ON PERSONAL PROPERTY. 213 

N". Y. Supp. 673, affirmed, 103 App. Div. '(NY.) 596. It would 
not apply to ■ an ordinary" laborer for doing such work as cutting 
wood {McMillan, V. Byers, (1886) 3 Man. L. B- 361), nor to an 
employee of a farmer in respect to a crop which the employee has 
harvested. McDearmid v- Foster, 12 Pac. Eep. 813. In ordinary 
.cases the workman may accomplish the work through the medium 
of inferior agents and workmen, but if the work is a work of art 
and genius and the contract is founded upon the personal talent 
of the artist he impliedly undertakes to perform the work him- 
self and may not entrust it to one less skilful. Addison on Con- 
tracts, 11th ed. p. 888; Bohson v. Prummond, (1831) 2 B. & Aki. 
308; British Wagon Co. v. Lea, (1880) 5 Q. B> D. 149. 

To maintain a lien a mechanic must bring himself within all 
the foregoing equally essential conditions. 

A person who agrees with the owner of an automobile to main- 
tain the car, supply a chauffeur, and care for the machine, at a 
certain amount a week for his charges, has no lien, the car being 
merely maintained in the same condition, there being no improve- 
ments in it and the owner, under the agreement, being permitted 
to take it out of the other's possession at any time, Hatton v. Car 
Maintenance Co., (1914) 30 Times L. B. 375, (1915) Ch. mi. As 
to periodical use of article by owner defeating lien, see also Glarks- 
burg Gasket Co. v. Phares, (1917) 3 Am. L. E. 660; 'Smith v. 
O'Brien, (1905) 103 App. Div. (NY.) 596. 

By a hire-purchase agreement the plaintiff let a dog-cart to a 
person who in the course of time sent the cart to be repaired to the 
defendant, a coach-builder. The agreement contained a clause by 
which the hirer undertook " to keep and preserve the dog-cart from 
injury." Some instalments under the agreement being unpaid, the 
plaintiff sought to recover the cart, but the defendant claimed a lien 
upon it for the cost of the repairs, and it was held that, under the 
circumstances, the hirer had authority to send the cart to be re- 
paired, and, therefore, that the defendant's lien was good, not only 
against the hirer, birt also, against the plaintiff. Keene v. Thomas, 
(1905) 1 K. B. 136. 



214 the law of mechanics' liens in canada. 

Waiver ok Loss of Lien. 

The right to a lien may- be lost or waived, expressly or by impli- 
cation. 

A lien does not exist where the contract between the parties or 
the circumstances are inconsistent with the notion that one was 
intended. Ritchie v. Grundy, (1891) 7 Man. L. E. 532. . When 
possession is lost, the lien is lost. Fiddes v. Henderson, C. Mss. 
(NtB.). Conduct inconsistent with the existence or continuance 
of a lien will constitute a waiver of it. " It is neither a jus in re 
nor jus ad rem and it may be waived by any act or agreement be- 
tween the parties by which the right is given up." Dempsey v. 
Carson, (1862) 11 TJ. iC. C. P. 462, per Draper, C.J. Thus the 
lien will be waived by an agreement relating to the mode or time 
of payment, inconsistent with the right of lien. Grawshay v. Horn- 
fray, 4 B. & Aid. 50 ; Fisher v. Smith, (1878) 4 App. Cas. 12 ; 
Rollins v. Bowman Cycle Co., (1904) 89 N. Y. 8. 289, 96 App. 
Div. 365; but a sale of part of property does not involve loss of 
lien on the remainder. Steeves v. Cowie-, (1903)" 40 N. S. E. 401; 
a lien will be waived by claiming the ownership of the goods 
(Boardman v. Sill, (1808) 1 Camp. 410n.) ; claiming to hold 
them for a debt due from a third party (Diflcs v. Richards, (1842) 
4 M. & G. 574) ; refusing to deliver up the goods on the ground 
that they belong to a third person {Andrews v. Wade (Penn.), 6 
Atl. Eep. 48) ; stipulating to receive other work in future (Stick- 
ney v. Allen, (1858) 10 'Gray (Mass.) 352) ; making a binding 
agreement to restore possession (The Wiles Laundering Co. v. 
Hahlo, (1887) 105 1ST. Y. 234) ; agreeing to receive payment 
after delivery (Lee v. Gould, 47 Pa. St. 398) ; pawning the chat- 
tel (Gallaher v. Cohen, 1 Brown (Penn.) 43). Any agreement 
which is inconsistent with the lien claimant's right to retain the 
chattel until payment negatives his claim of lien at common law. 
Canada Steel & Wire Go. v. Ferguson, (1915) 21 D. L. E. 771. The 
defence of liens can only be pleaded when there has been no conver- 



mechanics' liens on personal property. 215 

sion {Neville v. Schofield, 2 N.B.E. 435, 5 N.B.B. 124) ; a lien will 
be waived by setting up a claim which has no relation to the lien 
(Weeks v. Goode, (1859) 6 C. B. N. S. 367) ; destroying part of 
the goods (Gurr v. Cuthbert, (1843) 12 L. J. Exch. 309). See 
Chew v. Traders Bank of Canada, (1909) 19 0. L. E. 74; attempt- 
ing to sell the chattel (Vincent v. Gonklin, 1 E. D. Smith (N.Y.) 
203; Bean v. Bolton, 3 Phila. (Pa.) 87); (see Mulliner v. Flor- 
ence, (1878) 3 Q. B. D. 484) ; agreeing to do the work on credit 
(Riatt v. Mitchell, (1815) 4 Camp. 146) ; agreeing to do certain 
work to be performed during the year and to receive payment 
quarterly (Stoddard, v. Huntley, (1831) 8 New Hampshire 441, 
31 Am. Dec. 198; Hatton v. Car Maintenance Co., (1914) 30 
Times L. E. 275 ; alleging some independent ground without 
claiming a lien (Folsom y. Barrett, 180 Mass. 439; Bowden v. 
Duggan, 91 Maine 141). Agreeing to wait for payment until the 
owner has collected insurance money covering the accident which 
caused the damage will prevent the repairer from claiming a lien. 
Lezenik v. Greenberg, (1916) 157 N.Y. Supp. 1093. Taking particu- 
lar security for the debt (Hewison v. Guthrie, (1836) 2 Bing. N\C. 
759; Pinnock v. Harrison, (1838) 3 M. & W. 539; Davies v. Bow- 
sher, (1794) 5 D. & E. 488; Cornell v. Simpson, (1809) 16 Ves. 
275). See Stevenson v. Blakelock, (1813) 1 M. & S. 535 ; Bathurst 
Lumber Co. and Nepisiquit Lumber Co., (1911) 11 E. L. E. 552. 
This last proposition, however, depends entirely upon the special 
circumstances of each case, as the taking of other security does not 
necessarily import an abandonment of the lien. It is a question of 
intention to be , ascertained from the relation of the parties and the 
special circumstances. Be Taylor, (1891) 1 Ch. 590, 597; fie Bowes, 
(1886) 33 Ch. D. 586. The question to be determined is one of 
intention, viz., 'Was the security intended to be cumulative or sub- 
stitutional? The presumption of intention will not be the same 
in all trades, Halsbury's Laws 1 of England, 257. Lord Westbury 
in In re Leith's Estate, Chambers v. Davidson, (1886) L. E. 1 
P. C. 296, 305, said : " But lien is not the result of an express con- 



216 THE LAW OF MECHANICS' LIENS IN CANADA. , 

tract; it is given by implication of law. If therefore a mercantile 
relation which might inyolve a lien is created by a written contract, 
and security given for the result of the dealings in that relation, the 
express stipulation and agreement of the parties for security ex- 
cludes lien and limits their rights by the extent of the express con- 
tract they have made. Expressum-facit cessare taciturn. If a 
consignee takes an express security, it includes general lien." The 
editor of Smith's Mercantile Law, 10th ed., p. 700, questions whe- 
ther these words are not too wide. See Wylde v. Radford, (1864) 
33 L. J. Ch. 51; Davis v. Humphrey, (1873) 112 Mass. 309, 315; 
Angier v. Bay State Co., (1901) 178 Mass. 163; Ritchie v. 
Grundy, (1891) 7 Man. GL. E. 532; Fisher v. Smith, (1878) 4 
App. Cas. 1. 

In an important English case {Angus v. McLachlan, (1883) 
L. E. 23 Ch. D., at 335), Kay, J., said: " It is not the mere tak- 
ing of a security which destroys the lien, but there must be some- 
thing in the facts of the ease or in the nature of the security which 
is inconsistent with the existence of the lien and which is destruc- 
tive of it." In this case and some of the other eases previously 
cited on this point, the lien was not a mechanics' lien but the deci- 
sions upon the question of waiver would be equally applicable to 
mechanics' lien cases. See Re Morris, (1908) 1 K. B. 473, 477. 
A lien is not lost by deposit of the chattel with a third party on 
behalf of the lienor. Levy v. Barnard, (1818) 8 Taunt. 149. See 
Reeves v. Capper, (1838) 5 Bing N". iC. 136. 

The claim of lien cannot be supported where the particular 
transaction shows that there was no intention that there should 
be a -lien, but some other security is looked to and relied on. 
United States v. Barney, 24 Fed. 1014. 

An examination of all the English cases leads to the conclusion 
that this question of waiver of the lien is a question of fact; the 
cardinal point being whether the new security was intended to be 
cumulative or substitutionary, and to determine that point all the 
circumstances of the case must be weighed. 



mechanics' liens on personal propebty. 217 

The United States law on this question was thus formerly 
stated : " The effect of taking security upon a lien is a matter 
upon which the courts have not agreed, the better opinion being 
that such an act is presumptive of a waiver of the lien but may 
be shown to have been given! with other intention." 13 Am. & Bng. 
Ency. of Law, p. 622, 1st ed. But a later and more accurate state- 
ment of the law is to be found in the second edition of that work 
where the general rule is stated to be that the mere taking of other 
security for a debt secured by a lien does not constitute a waiver 
of the lien, and that to constitute a waiver an intention to waive 
the lien must appear from the circumstances of the case, or from 
the nature of the security taken. See vol. 19, p. 29, 2nd ed. 

A person may lose his lien by misconduct. In such case the 
owner's right to possession revives. Scott v. Newington, (1833) 
M & Bob. 252. See Jones v. Cliffe, (1833) 1 C & M. 540. A lien 
may also be lost where the lien claimant uses the article as his' own. 
Bruntnall v. Smith, (1896) 166 Mass. 253. When the debt in 
respect to which the lien is claimed is satisfied the lien is lost. If 
for instance, a person releases the debt by executing a composition 
deed the lien is lost. Cowper v. Green, (1841) 7 M. & W. 633. 

A release of part of the goods does not waive the lien upon the 
rest for the whole amount. Morgan v. Congdon, 4 N. Y. 552; 
Wiles Laundering Co. v. Hahlo, 105 N. Y. 234; Barker v. Brown, 
138. Mass. 340. ' 

Honestly claiming more than is due does not waive the lien, 
Folsom v. Barrett, 180 Mass. 439. See Kerford v. Mondel, 28 
L. J. N. 'S. 303. , • 

Attachment, Execution ok Assignment. 

There is some conflict in the decisions and opinions upon the 
question whether an attachment or levy on execution upon the 
property upon which the lien is claimed, in a suit brought by the 
lien claimant upon the lien claim, is a waiver of the lien. One 
American authority, hummus (sec. 24), inclines to the view that 



218 THE LAW OF MECHANICS' LIENS IN CANADA. 

such an act is not a waiver of the lien, and he cites a case (Lam- 
bert v. Nicklass, (1898) 45 W. Va. 527) which decides that levy- 
ing an attachment upon the property held under the hen does not 
waive the lien. There are conflicting decisions in Massachusetts 
on this question. Townsend v. Newell,' (1833) 14 Pick. 332; cf. 
Leg. v. Willard, (1835) 17 Pick. (Mass.) 140. On the other hand, 
it has been decided in England that a person having a lien upon 
chattels loses it by having them levied on under an execution upon 
the lien debt. Jacobs v. 'Latowr, (1828) 5 Bing. 130. Boisot, sec. 
780, cites a Canadian case (Lake v. Biggar (1862) 11 U. 'C. C P. 
170) as an authority deciding "that an artisan's having a lien on 
a chattel would not prevent his seizing it under an execution for 
a debt which constituted the lien nor would his asserting such a 
right be inconsistent with his lien or a waiver of it," but a close 
examination of this case shows that the judgment of the County 
Court Judge on that point is not directly confirmed by the Appeal 
Court, which merely decides that there was no evidence of tender 
or of waiver of tender. Inasmuch as possession is essential to 
maintenance of a lien it is difficult to understand how a lien claim- 
ant can be considered as retaining possession when the chattel is 
in custodia legis. The decision in Jacobs v. Latoiir was based 
on that principle, that the lien claimant had parted with the pos- 
session of the chattel. The weight of authority favors the view 
that when a lien claimant issues an execution and the sheriff 
levies upon the chattel the lien is lost. It might be said that the 
lien claimant still has possession through his agent, the sheriff, but 
if so, he has so altered the nature of his possession as to destroy 
his lien. Possession must vest in the sheriff to enable him to sell 
the chattel, and when the lien claimant authorizes the levy he is 
deemed to have abandoned the possession by virtue of his lien. 
See also Crowfoot v. London Dock Co., (1834) 2 !Cr. & M. 637; 
McMillan v. Byers, (1886) 3 Man. L. E. 361; and Be Coumbe, 
Cockbum and Campbell, (1877) 24 Gr. 519, where a lienor was 
held to have waived his lien on lumber by procuring the lumber to 
be taken in execution at his own suit. 



MECHANICS'' LIENS ON PERSONAL PKOPEETY. ' 219 

The interest of a lienholder is not attachable as personal pro- 
perty, as it is neither property nor a debt (Yungmann v. Bries- 
mann, (1892) 67 L. T. 642; Kittredge v. Sumner, (1820) 11 Pick. 
(Mass.) 50; Thames Iron Works v. Patent Derrick Co., (1860) 
1 J. & JEL 93) ; and for the same reason it cannot be assigned or 
transferred (Daubigny v. Duval, (1794) 5 T. E. 604), except 
in the case of a dissolution of a partnership where the firm was 
entitled to a lien. In such case one partner may assign his inter- 
est in the lien to the other who may enforce the same in the name 
of the firm. Busfield v. Wheeler, (1867) 14 Allen (Mass.). 139; 
Holly v. Huggeford, (1829) 8 Pick. (Mass.) 73. As to a sheriff's 
right to seize property covered by a lien, under an execution 
against the party claiming the lien, see Young v. Lambert, (1870) 
L. E. 3 P. C. 142; 39 L. J. P. C. 21. 

On the same principle as that which applies to a levy under 
execution, a replevin destroys the lien acquired. Braddyl v. Ball, 
(1785) 1 Br. C. ;C. 427. 

Tender and Discharge of Lien. 

The lien is discharged by an unconditional tender of the amount 
due. The Eider v. Norddeutscher 'Lloyd, (1893) 62 L. J. P. 65; 
69 L. T. 622; Willis v. Sweet, (1888) 20 N". S. E. 449; Fvlsom v. 
Barrett, 180 Mass. 439 ; Davison v. Mulcahy, 19 N. S. E. 209. In 
one case the owner, after tender of the amount due and its refusal 
by the mechanic, broke open the mechanic's shop to recover the 
chattel and the court held that he thereby committed trespass. 
Davison v. Mulcahy, supra. One having the right to the disposal 
of an automobile, Left by another at a garage, cannot maintain 
replevin against the owner of the garage who has a lien for repairs 
and storage, without proof of prior payment of the. proper charges, 
or tender and refusal, or such conduct on the part of the garage 
keeper as estops him to claim either that he has a lien or that the 
plaintiff has made no- sufficient tender. Doody v. Collins, (1916) 
223 Mass. 332. As to sufficient evidence of refusal of tender, see 
Eartney v. Boulton, (1914) 7 Sask. L. E. 97. 



220 THE LAW OF MECHANICS' LIENS IN CANADA. 

In an Ontario case where the mechanic agreed to accept part 
payment in cash and a cognovit for the balance, it was held that 
his lien was lost on payment of the cash agreed upon and tender 
of the cognovit. Dempsey v. Carson, (1862) 11 U. C. 0. P. 462. 

In McBride v. Bailey, (1857) 6 U. C. C. P. 523, previous cases 
on the subject of waiver of tender are' fully reviewed. 

The fact that a person was claiming to hold the goods for a 
certain tenable claim and for an untenable claim does not dispense 
with the necessity of tender of the amount of the tenable claim. 
Llado v. Morgan, 23 U. C. C. P. 517 ; The Queen v. Hollmgs- 
worth, (1899) 2 Can. Cr. Cas. 291. >See Nevils v. Schofield, (1881) 
21 N. B. R. 124. A tenable claim of lien cannot be set up in an 
action of trover where it was not made when the goods' were de- 
manded. Llado v. Morgan, 23 IT. C. C. P. 517. 

Where work was done under a contract for cash payment, an 
offer to endorse the amount of the bill on an acceptance of the 
mechanic is not such a tender as will terminate the lien. Clarke 
v. Fell, (1833) 2 L. J. K. B. (N,S.) 84. 

Estoppel. 

The lien may be lost by estoppel where its assertion would 
operate as a fraud on innocent parties, or where some one is in- 
duced by 'the act or neglect of the lienor to rely upon the non-exist- 
ence of the lien. Howard v. Tucker, (1831) 1 B. & Aid. 712; 
Moyes v. Kimball, 92 Maine 231; Fowler v. Parsons, 143 Mass. 
401. Assertion of payment will operate as estoppel as against those 
who have acted on it. Pooley v. Budd, (1851) 7 B. L. & Eq. 229; 
Woodley y. Coventry, (1863) 32 L. J. Ex. 185 pt. 1. 

Any act or neglect of the lien claimant which induces a person 
to rely upon the non-existence of the lien, may defeat the lien by 
estoppel. Fowler v. Parsons, (1887) 143 Mass. 401; Hinckley y. 
Greany, (1875) 118 Mass. 595. See Vulcan Iron Works Co. v. 
Rapid City Farmers E. Co., (1894) 9 Man. L. E. 577. Reason- 
able delay in accepting tender will not forfeit the lien. Eckhard 
y. Donohoe, 9 Daly (N.Y.) 214. 



mechanics' liens on peesonal property. 221 

Even where the lien claimant demands a larger sum than is 
due for the lien, a tender of the sum actually due is necessary to 
discharge the lien. Kendal v. Fitzgerald, (1862) 21 IT. C. Q. B. 
585. If the owner of ah article is willing to satisfy all charges 
incurred in respect of them, the article cannot be retained until 
payment of a general balance due to the person having the par- 
ticular lien. Jones v. Tarleton, (1842) 9 M. & W. 67. Hag- 
gerty, J., in that ease said : " Mr. Eccles' argument for the plain- 
tiff is that by insisting on holding the goods, not only for the sum 
properly due, but for charges not legally demandable, the lien is 
waived and forfeited, without the necessity of any tender. I have 
hitherto understood the law to be that where the holder of goods 
having a clear lien, sets up not only that lien, but also another 
claim against the plaintiff, of an untenable character, the true 
owner should' tender the proper amount due or an amount reason- 
ably sufficient therefor, unless the defendant either expressly or 
by fair implication, gives the owner to understand that he dis- 
penses with a tender or offer of any sum less than that which he 
advances as his claim." See also Green v. Shewell, (1838) 4 M. 
& W. 277. 

In another case, Allen v. Smith, (1862) 12 C. B. N. -S. 645, 
Willes, J., said : " If the defendant had been shown , the lesser 
amount he might have been willing to have accepted it." See 
Nevihs v. Schofield, (1881) 21 N. B. E. 124. 

lief erring to this question of waiver, in an English case (White 
v. Gainer, (1824) 2 Bing. 23), Best, C.J., said: "I agree in 
the law as laid down in Boardman v. Sill, but not in the appli- 
cation of it now proposed. In that case it was held that if 
a party, when goods are demanded of him, rests his refusal upon 
grounds other than that of lien, he cannot afterwards resort to his 
lien as a justification for retaining them. Therefore, if, even in 
this case, the defendant when applied to to deliver the goods had 
said, ' I bought them, they are my property,' I should have holden 
there was a waiver of his lien, but he said no such thing, but only, 



222 THE LAW OF MECHANICS' LIENS IN CANADA. 

'If I deliver them up I may as well give up every transaction of 
my 'life.'" 

If the lien claimant is prevented hy the owner from complet- 
ing his work, the lien continues. Lilley v. Bamsley, 1 'C. & K. 
344. It also continues if the reason why the lienor ceased to work 
upon the chattel 1 was that the owner failed to furnish materials 
therefor according to his agreement. Busfield v. Wheeler, (1867) 
14 Allen (Mass.) 139. 

Bringing suit on the claim secured by the lien and attaching 
other property of the debtor is no waiver of the lien. Palmer v. 
Tucker, 45 Me. 316; Barnard v. Wheeler, 24 Me. 412. As to 
delivery of goods by a person who has a lien thereon to another 
person so as to preserve his lien,, see McCombie v. Davies, 7 Bast 5. 

An agreement to waive an existing lien,', where the lienor re- 
tains possession, is invalid unless supported by consideration. 
Danforth v. Pratt, 42 Maine 50 • Hollins v. Hubbard, 165 N. Y. 
534. 

A- set-off cannot be considered as destroying a lien unless it 
be so agreed upon between the parties. Pinnoch v. Harrison, 
(1838) 3 M. & W. 532; Clarke v. Fell, (1833) 4 B. & Ad. 404; 
Wegulin v. Cellier, (1857) L. B. 6 H. L. 286. See Boxburghe v. 
Cox, (1881) 17 ,€h. D. 520. 

An unliquidated claim will not destroy a lien. McFatridge v. 
Holstead, (1889) 21 N". S. B. 325. 

Delivery by the lien claimant to a third person, as depositary 
or bailee for safe custody, generally does not affect the lien 
(McLachlan v. Kennedy, (1889) 21 N. 8. B. 271), particularly if 
such third person re-transfers the property to the lien claimant 
before the lien is sought to be enforced. Milbum v. Mtiburn, 4 
tJ. C. Q. B. 179. 

If a chattel is fraudulently or unlawfully taken out of posses- 
sion of the lien claimant by the owner and the lien claimant 
without force retakes the chattel the lien revives. Wallace 
v. Woodgate, (1824) By. & M. 193. In this case the lien 
was that of a livery stable keeper but the same principle 



mechanics' liens on peesonal peopebty. 223 

would apply to a mechanics' lien. See also Dicas v. Stockley 
(1836) 7 C. and P. 587; Wilson v. Kymer, (1813) 1 M. & S. 157; 
Re Garter, (1885) 55 L. J. :Ch. 230; Bigelow v. Eeaton, 6 Hill. 
(N.Y.) 43. A lien is always, forfeited by delivery but a delivery 
procured by fraud is not within the rule. Pocock v. Novitz, 
(1912) 21 W. L. E. 418 (Sask.) ; Walcott v. Keith, 22 N". H. 196. 

The lienor may by legal proceedings recover the property even 
against the owner. Sewell v. Nicholls, 34 Maine 582; Brewster v. 
Warner, 136 Mass. 57. 

A lien is not destroyed though the demand in respect of which 
it arises is barred by the Statute of Limitations. It is the remedy, 
not the debt itself, that is discharged by that statute. Spears v. 
Hartley, (1819) 3 Esp. 81; Biggins v. Scott', (1831) 2 B. & Ad. 
413; Be Broomhead, (1847) 16 L. J. Q. B. 355; Cwrwen v. Mil- 
ium, (1889) 42 Ch. D. 424. 

The taking of a negotiable instrument by way of security will 
not apparently discharge the lien if the instrument is dishonored 
- before a claim is made to enforce the lien. Stevenson v. Blakelock, 
(1813) 1 M. & S. 535 ; Bathurst Lumber Co. v. Nepisiquit Lumber 
Co., (1911) HE. L. B. 552. A repair man does not lose his lien 
because he made a reduction in the amount of his claim and the 
amount to which he was entitled was less than the reduced sum 
claimed. Macomber v. Detroit Cadillac Motor Car Co., (1916) 
173 App. Div.724. 

A lien which has accrued to a partnership for work done and 
money expended upon machinery is not, lost by the dissolution of 
the firm and the assignment by one partner of his interest therein 
to the other, but in such case the partner to whom the claim of lien 
has been assigned may enforce the same in the name of the firm. 
Busfield v. Wheeler, (1867) 14 Allen (Mass.) 139. 

A lien is not affected by the fact that the owner of the goods 
becomes bankrupt. Robson v. Kemp, (1803) 4 Esp. 233. 

The party claiming a lien is bound to take reasonable care of 
the article. Scarf e v. Morgan, 4 M. & W. 270 ; Great Western Ry. 



224 THE LAW OF MECHANICS' LIENS IN CANADA. 

Po. y. Crouch, 3 H. & N. 183. Generally, a person having a lien 
on a chattel who keeps, it for the purpose of enforcing his lien 
cannot make any claim against the owner for so keeping. Somes 
v. British Empire Shipping Co., (1860) 8 H. L. Cas. 338. 

A mere promise by the lien claimant, without consideration, 
to restore the chattel, is not a waiver of his lien. Clarice v. Cos- 
tello, 29 K Y. S. 937, (1894) 79 Hun. 588. An agreement to 
waive an existing lien is invalid, unless made with a valuable con- 
sideration. Rollins v. Huboard, (1901) 165 N. Y. 534. As to 
right of lien claimant to retain article against owner, where a 
hire-purchase agreement is outstanding, the hirer having ordered 
the repairs, a term of the hire-purchase agreement being that the 
hirer should keep the article in good repair, see Green v. All 
Motors, Ltd., (1917) 1 K, B. 625; Keene Y.'Thomas, (1905) 1 K. 
B. 136. 

Bights of Ownek. 

The owner of chattels upon which a lien is claimed may inspect, 
or show them as long as he does not interfere, with the possession 
of the lien-holder. If a chattel is detained by a person under an 
invalid claim of lien, the owner is not obliged to bring replevin or 
similar action to test the validity of the lien. He may pay the 
amount under protest, obtain his property and then sue to recover 
back the money so paid. Whitlock Co. v. Holway, 92 Maine 414; 
Somes v. B. E. S. Co., (1860) 8 H. L. Cas. 338. Hunter v. Leake, 
(1829) 7 L. J. K. B. (OjS.) 221; Hughes v. Lenny, (1839) 5 M. 
& W. 187; Lord Brougham v. Cauvin, (1868) 37 L. J. Ch. N. S. 
691. 

Where a contract provides for stipulated work at a lump sum 
and such work is not done but its equivalent or better work is 
effected, no claim for such substituted work can be sustained. For- 
man v. The " Liddesdale" 69 L. J. P. C. 44; (1900) A. C. 190; 
82 L. T. 331. The fact that the owner of the chattel thus repaired 
has sold it at a price enhanced by such unauthorized labor does 



mechanics' liens on peesonal pbopebty. 225 

not amount to acquiescence on his part or acceptance of liability 
for the work done. 

A lienor or bailee must take ordinary care of goods held under 
a lien. Clarke v. Earnshaw, (1818) Gow 30; Angus v. McLach- 
lan, 23 €h. D. 330; Ultzen v. Nicholls, (1894) 1 Q. B. 92; Searle 
v. Laverich, (1874) L. E. 9 Q. B. 122; Halestrap v. Gregory, 
(1895) 1 Q. B. 561; Turner v. Stallibras, (1898) 1 Q. B. 56. As 
to consideration for a promise to pay the amount of, a void lien, 
see Dunham v. Johnson, 135 Mass. 310. 

A lien claimant cannot add to the amount for which the lien 
exists, a charge for keeping the chattel until the debt is paid. 
Where such a charge is made and the owner of the chattel pays 
it under protest he may maintain an action for money had and 
received. Somes v. Directors B. E. S. Co., (1860) 8 H. L. Cas. 
338; Bruce v. Eveson, (1883) 1 Cababe & Ellis, 18; Pease v. John- 
son, (1905) 1 W. L. R. 208. See Carew v. Rutherford, (1870) 
' 106 Mass. 1; Canada Steel & Wire Co. v. Ferguson, (1915) 21 D. 
L. E. 771. 

The goods of the Sovereign cannot be detained under a claim 
of lien. Queen v. Eraser, (1877) 2 R. & C. (Nova Scotia) 431. 

A mechanic has no right to detain cloth for a debt due for 
dressing or dyeing other cloth for the same party. Rose v. Hart, 
8 Taunt. 499; Close v. Waterhouse, (1805) 6 Bast 523, hote; 
Hensal v. Noble, 95 Pa. 345 ; see also Yearsley v. Gray, 140 Pa. 
238. The proprietor of a garage is not entitled to a lien on an 
automobile for keeping and caring for same in his garage. Rehm 
v. Viall, (1914) 185 111. App. 425. 

A person cannot avail himself of a lien, the discharge of which 
has been fraudulently prevented by his own acts. Carey v. Brown, 
(1875) 92 U. S. 171. The owner cannot obtain any part of the 
goods covered by the lien without paying the whole claim. 

Eights oe Third Peesons. 

Where the party entitled to a lien wrongfully parts with the 
goods the owner may recover them from the holder without tender- 
m.l. — 15 



226 THE LAW OF MECHANICS' LIENS IN CANADA. 

ing what is due on the lien, for a party is only obliged to make a 
tender where it is necessary to give him the right to the possession 
of the goods. Eoscoe's N. P. Evidence (17th ed.) 974; Scott v. 
Newington, (1833) ll.ft Eob. 253; Jones v. Cliff, (1833) 1 Cr. 
& M. 540. 

A person who obtains possession of goods by fraud or misre- 
presentation cannot claim a lien upon them. Madden v. Demp- 
ster, (1807) 1 Camp. 12; Lempriere v. Pasley, (1788) 2 T. E. 
485; Simbolf v. Alford, (1838) 3 M. & W. 248; Walsh v. Provan, 
(1853) 8 Ex. Eep. 843. 

It has been held that a vendor's lien secured by a duly recorded 
chattel mortgage takes precedence of a mechanics' lien for repairs 
subsequently done at the purchaser's request. But, as a general 
rule, where the mortgagee of chattels leaves the property in pos- 
session of the mortgagor and the property is of a character that 
suggests use, and that repairs will be needed, and the mortgagor 
takes it to an artisan to be repaired, the common law lien will 
attach in favor of the artisan as against the mortgagee. Boisot, 
sec. 771. See Hammond v. Danlelson, (1879) 126 Mass. 294; 
Williams v. Allsop, (1861) 10 C. B. (N.S.) 417; Scott v. De La 
Hunt, 5 Lans. (N.Y.) 372; Drummond Carriage Co. t. Mills, 
(1898.) 40 L. E. A. 761; Halifax Shipyards v. The Ship Westerian, 
(1919) 19 Pan. Ex. E. 259. 

If the agreement for the work is entire and indivisible, that 
is, if the contract between the parties is one for the delivery of a 
completed article, and the chattel is accidentally destroyed, with- 
out negligence on the part of either party, before the completion 
of the contract, the destruction of the subject-matter discharges the 
liability and excuses further performance of the agreement. In 
such case the employer of the labor cannot sue the contractor for 
the return of any sums already paid to him on account, in an 
action for money had and received, and correlatively the contrac- 
tor had no legal claim to compensation for that portion of .the 
work actually executed by him at the time of the destruction of the 
chattel. Paine on Bailments, 163; Appleby v. Myers, (1867) 2 



mechanics' liens on personal pkopebty. 227 

L. E. C. P. 651; Ashford v. Booth, (1835) 7 C. & P. 108; Anglo- 
Egyptian Navigation Co. v. Bennie, (1875) 10 L. E. 'C. P. 271 
and 571. 

To take your own property from one who has a valid lien 
upon it and was rightfully in possession, may be theft. People v. 
Long, 50 Mich. 249 (a buggy) ; State v. Stevens, 32 Tex. 155 (a 
watch) ; Queen v. M oiling sworth, 2 Can. Cr. Cas. 291 (baggage). 
See Com. v. Greene, 111 Mass. 392. 

If assigned, the lien is lost. Glascock v. Lemp, 26 Ind. App. 
175 ; Buggies v. Walker, 34 Vt. 468. 

A sale of personalty in the vendor's possession implies a war- 
ranty against liens. Clevenger v. Lewis, (1908) 16 L. E. A. 
(N.S.) 410. A person having no interest, who pays a debt secured 
by a lien, is not entitled to subrogation. In re North Biver Co., 
38 N". J. Eq. 433. As to procedure to enforce lien upon personalty, 
see Pocock v. Novitz, (1912) 21 W. L. E. 418 (Sask.). 

The improvement of personal property at the instance of a 
bailee thereof, with knowledge of the ownership of the bailor, and 
either without the latter's knowledge or consent, or with his mere 
knowledge under such circumstances that no consent to liability 
can be implied, creates no liability against the bailor or the pro- 
perty. Baughman Automooile Co. v. Emanuel, (1911) 38 
L. E. A. 97. As to priority of lien for services on personal 
property over a prior chattel mortgage, see Beeves & Co. v. Bus- 
sell, L. E. A. 1915 D, 1149, and Drummond v. Griffith, L. E. A. 
1916 B. 748. 

Proof of usage may establish a possessory lien. Welch v. Scott, 
(1919) 3 W. W. E. 425, (1920) 2 W. W. E. 510. 

A lien implies the right of continuing possession, or the con- 
tinuing right of possession. Katzman v. Mannie, (1919) 46 O. 
L. E. 121. 

As to implied authority given by the owner to the bailee to 
have the chattel repaired and in so doing to subject it to the ordi- 
nary repairer's lien, see Commercial Finance Corporation v. Strat- 
ford, (1920) 47 O. L. E. 392. 



THE ALBERTA MECHANICS' LIEN ACT. 



CHAPTEE 21. 

An Act foe the Benefit of Mechanics and Laborers. 

(Assented to May 9, 1906.) 

TT IS MAJESTY, by and with the advice and consent of the 
■*- ■*■ Legislative Assembly of the Province of Alberta, eriacts as 
follows : 

Short Title. 1 

1. Short title. — This Act may be cited as " The Mechanics' Lien 
Act." 

2. Interpretation. — In the construction of this Act — ■ 

1. " Court " or " judge " shall mean the court within the pro- 
vince exercising jurisdiction in civil cases to the amount claimed 
in the action or proceeding whether brought in respect of one lien 
or more than one lien, and the interpretation herein given shall for 
all purposes be deemed to have been included in the original Act; 
1908, e. 20, s. 12. 

2. " Contractor." — " Contractor " shall mean a person em- 
ployed directly by the owner for doing the work or placing or 
furnishing materials for any of the purposes mentioned in this 
Act; 

3. " Sub-contractor." — i" iSub-eontractor " shall mean a person 
not contracting with or employed directly by the owner for the 
purpose aforesaid, but contracting with or employed by the con- 



THE ALBEETA MECHANICS' LIEN ACT. 229 

tractor or under him, by another sub-contractor, to do all or a 
certain portion of the work or to place or furnish material, but a 
person doing manual or mental labor for wages shall not be deemed 
a " sub-contractor " ; 

4. " Owner." — " Owner " shall extend to and include a person 
having any estate or interest, legal or equitable, in the lands upon 
Or in respect of which the work is done or materials are placed or 
furnished, at whose request and upon whose credit or on whose 
behalf, or with whose privity or consent, or for whose direct 
benefit any such work is done or materials are placed or furnished, 
and all persons claiming under him whose rights are acquired 
after the work in respect to which the lien is claimed is com- 
menced or the materials furnished have, been commenced to be 
furnished ; 

5. " Works or improvements." — ■" Works or improvements " 
shall include every act or undertaking for which a lien may be 
claimed under this Act; 

6. " Laborer." — " Laborer " shall mean, extend to and include 
every mechanic, miner, artisan, builder, or other person doing 
labor for wages; 

7. " Material." — " Material " shall include every kind of mov- 
able property; 

8. " Wages." — " Wages " shall mean money earned -by a 
laborer, for work done whether by time or as piece work. 

As to interpretation of sub-section 1, prior to amendment of 
1908, see Freeze v. Cwrey, (1907) 1 Alta. L. E. 81, 7 W. L. E. 287. 

The word " owner " includes a leaseholder. James Prentice 
& Go. v. Brown, (1914) 7 Alta. L. E. 454. 

The Act gives no power to file a lien against the lands of a 
Dominion railway as there is no means of enforcing such a lien. 
The Act does not give a lien for work done or materials furnished 
in connection with the digging of wells, apart from the work done 
or materials furnished in connection with One of the " works " 



230 THE LAW OF MECHANICS' 1 LIENS IN CANADA. 

enumerated in this section. Stiffel v. Gorwin, (1911) 1 W. W. 
E. 339. 

Application. 

3. Application. — This Act shall apply to any contract made 
or work begun previous to the passage hereof, but only so far as 
regards any moneys remaining unpaid and as respects any such 
unpaid moneys. 

Natuke of Liens. 

4. Mechanics and others to have liens for work done, etc. — 

Unless there is an agreement in writing to the contrary signed by 
the person claiming the lien, every contractor, sub-contractor, 
laborer, and furnisher of material doing or causing work to be done 
upon or placing or furnishing any materials to be used in or for 
the construction, erection, alteration or repairs, either in whole 
or in part of, or addition to, any building, tramway, railway, erec- 
tion, wharf, bridge or other work, or doing or causing work to be 
done upon, or in connection with, or the placing or furnishing to 
be used in or for the clearing, excavating, filling^ grading, track- 
laying, draining, or irrigating of any land in respect of a tram- 
way, railway, mine, sewer, drain, ditch, flume or other work, or 
improving any street, road or sidewalk adjacent thereto, at the 
request of the owner of such land, shall by virtue thereof have a lien 
or charge for the price of such work, and the placing or furnishing 
of such materials upon such building, erection, wharf, machinery, 
fixture, or other works, and all materials furnished or produced 
for use in constructing or making such works or improvements so 
long as the same are about to be in good faith worked into or made 
part of the said works or improvements, and the land, premises, 
and appurtenances thereto, occupied thereby or enjoyed there- 
with, but limited in amount as hereinafter mentioned: 

Provided such lien shall affect only such interest in the said 
land, premises and appurtenances thereto as is vested in the owner 
at the time the works or improvements are commenced, or any 



THE ALBEBTA MECHANICS' LIEN ACT. 231 

greater interest the owner may acquire during the progress of the 
works or improvements, or have at any time during which the lien 
'stands as an encumbrance against said land. 

Neither the owner nor the land can be held liable to the lien- 
holders for a greater aggregate sum than the amount of the con- 
tract price. Ross v. Gorman, 1 Alta. L. K. 109. 

If, by arrangement with the owner the claimant has delayed 
completion in order to give the owner time to arrange for pay- 
ment, and work is then done to keep the lien alive, the owner 
having accepted the benefit of the delay, and the work being neces- 
sary, the date of completion of such work will be taken as the date 
upon which the claimant " has ceased " to work. Clarke v. Moore, 
(1907) 1 Alta. L. E. 49, 8 W. L. R. 405. As to the taxation of 
school property, see Mallet v. Kovar, (19l0) 14 W. L. E. 337. As 
to right to lien when work is done at the instance of lessee, see 
Scratch v. Anderson, (1909) 2 Alta. L. E. 109, 13 W. L. E. 113; 
Limoges v. Scratch, (1910) 44 Can. S. C. E. 86. 

A lien arises and attaches as soon as work is done or materials 
are furnished, subject to be increased or decreased in amount from 
time to time, as further work is done or materials furnished, on 
the one hand, or payments made to the lienholder on the other 
hand. Boss v. Gorman, (1908) 1 Alta. L. E. 109, 516, 9 W. L. E. 
319. 

Where part of the contract price was agreed to be paid by 
conveyance of land to contractor, who, however, did not complete 
his work, sub-contractors who had registered liens against the 
property built on were held entitled to the equity in the lots which 
had been agreed to be conveyed to the contractor. The claim of 
the sub-contractor, however, was subject to the owner's claims for 
payments made to the contractor and for damages against the 
contractor. Head Co. v. Coffin, (1910) 13 'W. L. E. 663. 

The installation of a furnace in a buildmg comes within the 
terms of this section. The lands of a school board may be subject 
to a mechanic's lien. Mallett v. Kovar, (1910) 14 W. L. E. 327. 

Where the lienholder is not the contractor, the onus is on the 
owner to show that the contractor should not have been given an 
extension of time. Lundy V. Henderson, 9 W. L. E. 327. 

Payments made by owner will not discharge him from liens 
existing at the time of such payments. Union v. Porter, (1908) 



232 THE LAW OF MECHANICS' LIENS IN CANADA. 

? W. L. E. 325. See Gorman v. Henderson, (1908) 8 W. L. E. 
422; Boss v. Gorman, (1908) 1 Alta. L. E. 109, 516, 9 W. L. E. 
319. The words "land . . . occupied thereby or enjoyed 
therewith," are not necessarily restricted to the particular lot upon 
which the building is situated, but will include other lots intended 
for use with the house. Clarke v. Moore, (1908) 1 Alta. L. E. 49, 
8 W. L. E. 405. 

The claim of a lien-holder will not be defeated by the absence 
of an architect's final certificate. Lundy v. Henderson, 9 W. L. 
E. 327. 'See Boss v. Gorman, 1 Alta. 516; Swanson v. Mollison, 
6 W. L. E. 678 ; Clarke v. Moore, 1 Alta. L. E. 498, 8 W. L. E. 
405, 411. 

Superintendents of construction are entitled to a lien. High 
Biver Trading Co. v. Anderson, (1909) 10 W. L. E. 126. 

A claimant is not bound to give notice of lien to the owner. 
Boss v. Gorman, (1908) 1 Alta. L. E. 516, 9 W. L. E. 319. A 
lien claimed by a partnership stands in no different position from 
any other lien by reason of "the owner " being a member of the 
partnership. Boss v. Gorman, 1 Alta. L. E. 516. As to scope of 
the word " owner," see Scratch v. Anderson, (1911.) 16 W. L. E. 
145. 

Where the contractor is entitled to a quantum meruit, a fair 
and reasonable sum to compensate him for the work undertaken 
and done and for the responsibility involved in the doing of it, 
should be added to the actual cost of it to him. Bohl v. Pf af en- 
roth , 31 W. L. E. 197. 

Sub-contractors gave the contractor receipts for money which 
he had received from the owner to pay the sub-contractors and 
had not paid them, thereby led the owner to believe that they had 
been paid. The owner, influenced by this belief, made other pay- 
ments to the contractor in excess of the work which he did or 
caused to be done on the building, and the owner completed the 
building when the contractor abandoned it. The owner also made 
payments to another sub-contractor and lienholder. It was held 
that the sub-contractors who gave the receipts in question were not 
entitled to enforce a lien against the owner's land, though they 
had not been paid in full for the work done and materials fur- 
nished by them. Bingland v. Edwards, (1911) 19 W. L. E. 219. 

Del credere agents supplying materials have such an interest 
in the goods as entitles them to a mechanics' lien as materialmen. 
Gorman.v. Archibald, (1908) 1 Alta. L. E. 524. 



THE ALBERTA MECHANICS' LIEN' ACT. 233 

As to overpayment to contractor, see Travis v. Breckenridge- 
Lund Lumber & Coal Co., (1909) 2 Alta. L. E. 71, 43 Can. S. C. 
E. 59. 

Where trial judge finds defendant had promised to pay plain- 
tiff and there was sufficient consideration, it is not open to the 
court to reverse that finding. Union v. Porter, 9 "W. L. E. 325. 

The words in this section " land . . : occupied thereby or 
enjoyed therewith," have been construed as not necessarily re- 
stricted to the particular lot upon which the building is situated, 
but may include other lots purchased by the owner for his use 
with the house. Clarke v. Moore and Simpson, (1908) 1 Alta. 
L. E. 49. 

A lien claimed by a partnership against a property the 
" owner " of which is a member of the partnership is enforceable 
in the same way as any other lien. The individual claimant and 
the firm of which he is a member are different entities, and the 
fact that he as an individual may, as a member of the firm, be 
entitled, to share in the payment, will not affect the question. 
Ross v. Gorman, (1908) 1 Alta. L. E. 516. 

Miners employed by a lessee of a coal mine are not entitled to 
mechanics 3 liens in respect of their work where it has not been 
actually requested by the owner. Wester et al. v. Jago et al. (1917) 
11 Alta. L. E. 52. See Scratch v. Anderson, post, cited also under 
s. 11. 

The work of superintendence is work done in or for the con- 
struction of a building within the terms of the Act, so as to give 
the superintendent a lien. Scratch v. Anderson, (1909) 11 Alta. 
L. E. 55; High River Trading Co. v. Anderson, (1909) 10 W. L. 
E. 126. 

The Act gives no power to file a lien against the lands of a 
Dominion railway as there is no means of enforcing such a lien. 
The Act does not give a lien for work done or materials furnished 
in connection with the digging of wells, apart from the work done 
or materials furnished in connection with one* of the "works" 
enumerated in s. 2. Stiffelv. Corwin & C. P. R., (1911) 1 W. W. 
E. 339. 

The work done in excavating the basement of a building is 
included in the term "construction," and gives rise to a lien, and 
this notwithstanding the .fact that the word " excavating " is ex- 
pressly used with reference to certain classes of construction 



234 THE LAW OF MECHANICS' LIENS IN CANADA. 

(including tramway and railway) mentioned later in the same sec- 
tion. Fair v. Groat, (1913) 24 W. L. K. 860; 4 W. W. E. 1097. 

The expression "furnisher of material," in this section can- 
not be applied to a laborer working for wages, but is intended to 
cover only persons who sell or supply material on contract at a 
certain price. 

The phrase " furnishing any materials " in this section is 
referable only to the term "furnisher of materials," in the same 
section, and does not refer in any way to the word, " laborer " 
therein. Mylnzyuk v. Northwestern Brass Co., Ltd. (1913) 6 
Alta. L. E. 413. 

If it appears that moneys were paid by the owner to the con- 
tractor or sub-contractor for the very purpose of being applied in 
paying wage-earners having a privileged and preferential lien over 
other lienholdefs, and the moneys were in fact so applied, the 
owner is entitled to credit for such payments against the contract 
price. Metals Ltd. v. Trusts & Guarantee Co., 22 D. L. E. 495. 

Where a building in respect to which a mechanics' lien is 
sought to be enforced is situate upon one of several contiguous sec- 
tions of land "enjoyed therewith," the failure to file the lien 
against the section upon which the building stands does not render 
ineffective a lien filed against the other sections. The Jackson 
Water Supply Go. v. Bardech et ah (1915) 8 Alta. L. E. 305. 

A mechanics' lien is maintainable for installing a water system 
in a dwelling house as against the land occupied or enjoyed there- 
with, and which was specified in the mechanics' lien which was 
registered, although the parcel of land itself upon which the house 
was situate was not included in the registered claim of lien; its 
omission therefrom operated only as a relinquishment of part of 
the security and did not have the effect of extinguishing the re- 
mainder of it. The Jackson Water Supply Go. v. Bardeck et ah, 
(1915) 8 Alta. L. E. 305, 21 D. L. E. 761. 

Even if the correct rule be that a Mechanics' Lien Act must 
refer expressly to the property of municipalities in order to render 
ordinary municipal property subject to the Act, such a rule is not 
applicable to property acquired by a municipality for the purpose 
of alienating it to a manufacturing company, and where the muni- 
cipality has agreed to convey the land to the company on the ful- 
filment of certain conditions, the fact, that, owing to the non- 
fulfilment of such conditions, the conveyance has not been made, 



THE ALBERTA MECHANICS'" LIEN ACT. 235 

and, therefore, the company has not acquired any interest in the 
land, does not prevent a lien attaching to the land in the absence 
of proof of the notice called for by section 11 for material used 
in a building constructed by the company in pursuance of said 
agreement. RevelstoJce Saw Mill Co. v. Alberta Bottle Co., (1915) 
9 Alta. L. E. 155. 

The interest of the registered owner of land upon which a 
church has been erected by a contractor pursuant to a contract 
with the trustees for an unincorporated church congregation who 
held under an agreement for sale from the owner, is chargeable 
with a lien in the contractor's favor where the owner has not given 
the notice required by section 11 of the Alberta Mechanics' lien 
Act, and the fact that the contractor was a member of the congre- 
gation, and knew of the interest of the various parties in the land 
does not cut down his right of lien. Rohl v. Pfaffienroth, (1915) 
31 W. L. E. 197. 

The liability of the " owner " as designated in section 11 is not 
limited to such alterations and repairs (made by his tenant) as 
increase the value of his interest in the land and premises. The 
lien of those who furnish materials and do work in altering and 
repairing -the premises will be enforced against the interest of the 
landlord. Peters, Rohls & Co. v. MacLean, (1913) 25 W. L. E. 
358. 

A contractor H. gave to E. a materialman, an order upon the 
building owner J., in the following form : — " J. Please pay to E. 
the sum of ($800 dollars on account of material delivered and 
shipped to X. H." It was held that the order amounted to a good 
equitable assignment of the fund over which E. would ultimately 
have the disposition as between H. and J., but that there was 
nothing to warrant an inference by E. that J. had relinquished in 
his favor the right to make out of the moneys payable to H. such 
payments as might be necessary to protect his property from liens 
and to insure the completion of the building contract, and to de- 
duct payments so made from the moneys which would otherwise 
be payable to H. Ritchie v. Jeffrey, (1915) 9 W. W. E. 1534. 

-Where progressive payments under the contract of the princi- 
pal contractor are made contingent upon advances being made to 
the owner by the mortgagee, the court may, on the trial of the action 
brought by a sub-contractor who had completed his sub-contract, 
direct that his lien remain in force, so that it may attach in respect 



236 THE LAW OF MECHANICS' LIENS IN CANADA. 

of any such further advances which may in future be made by 
the mortgagee, reserying leave to the owner and the mortgagee to 
apply for the discharge of the lien. , Colling v. Stimson, 6 Alta. 
L. E. 71, 10 D. L. E. 597. 

■One who delivers materials for use in or upon a building under 
course of construction by a contractor, is not, after the latter's 
default and the taking over of the work by the property owner 
entitled to a mechanics' lien for such of the materials as were sub- 
sequently worked into the building by the latter; the right to a 
lien under such circumstances being denied under this Act. Cana- 
dian Equipment and Supply Co. v. Bell & Schiesel, (1913) 24 
W. L. E. 415 ; 11 D. L. E. 820. 

If the work upon which the lien claimant relies as giving a 
new day from which the statute begins to run against his lien, is 
something which the owner could have insisted upon before accept- 
ing it as complete, it will be sufficient for that purpose. The test 
to apply is to ascertain if the work in question, trifling though it 
might be, was necessary to be done in order to complete the fulfil- 
ment of the contract. Day y. Crown Grain Company , 39 S. C. E. 
258. 

Building materials are sufficiently delivered as regards a build- 
ing in course of erection, so as to satisfy this Act, where, be- 
cause of lack of storage room on the land, they were delivered in 
its immediate vicinity. Trussed Concrete Steel Co. of Canada v. 
Taylor Engineering Co., (1919) 2 W. W. E. 123; Canadian Equip- 
ment and Supply Col y. Bell et al., 11 D. L. E. 821. Decisions 
in Ontario and Nova Scotia appear to be in conflict with this view. 
See annotations under section 4 of the Ontario Act, post. 

There was no waiver of a lien upon a certain lot where a form 
of waiver as to that lot- had been signed without consideration and 
by mistake, there being no intention to waive and the claimant not 
knowing at the time of signing that he was to do work on thati 
particular lot. The principle of estoppel did not apply in that 
particular case. Palfrey v. Brown, (1915) 31 "W. L. E. 535. 

The word "placing" in this section qualifies the word 
"laborer" as well as the term "furnisher of material." Laborers 
employed at a distance from the site of a building in excavating 
and loading filling-in material for use in furthering the construc- 
tion of the building cannot maintain a mechanics' lien against it. 

Teamsters employed in hauling filling-in material from a dis- 
tance to the site of a building may maintain a mechanics' lien 



THE ALBEBTA MECHANICS' LIEN ACT. 237 

against it, either on the ground that they are entitled to the bene- 
fit of the word " placing " in this section, or because they must be 
treated as doing "work upon the construction," within the mean- 
ing of that phrase in this section, i Mylnzyuh v. Northwestern 
Brass Co., Ltd. (1913) 6 Alta. L. E. 413. 

Whether specific articles are " fixtures ". and lienable is a ques- 
tion of fact as to each item. Prentice v. Brown, (1914) 28 W. L. 
B. 226. Electric light fixtures and an electric light sign on the out- 
side of the building, put up by the tenant, were considered not to 
have become part of the realty, but to be chattels removable by the 
tenant. Peters, Rohls & Co. v. MacLean, (1913) 25 W. L. E. 
358. 

As to meaning of " extra work," in a building contract, see 
Janse-Mitchell Construction Co. v. City of Calgary, 14 Alta. L. E. 
214. 

Where a plumber agreed in a single written document to instal 
plumbing and heating apparatus in each of two houses situated on 
two adjoining lots for the sum of $620 for each house, it was held 
that the contract contained two severable or divisible promises, 
one in respect of each house. The work in connection with the 
house on lot No. 30 was completed on the 29th July, 1908, and 
that in connection with the house on lot No. 29 on the 15th June, 
1909; the sewer connections from both houses were joined on a 
line between the two lots. It was held that a claim filed against 
both lots on the 1st February, 1909, in respect of the whole con- 
tract price for the two houses, was filed too late to preserve the lien 
against lot 30. The A. Lee Co. v. Hill, (1909) 2 Alta. L. E. 368. 
This decision is apparently not in accord with Ontario Lime As- 
sociation v. Grimwood, (1910) 22 O. L. E. 17. 

A person who supplies coal to a building contractor for generat- 
ing steam for the purpose of hoisting material and to dry the build- 
ing in course of construction may be entitled to a mechanics' 
lien. Wortman v. Frid Lewis Co., (1915) 9 W. W. E. 812. 

The wages claims of laborers which are given a special privi- 
lege if for " not more than six weeks' wages," are the wages earned 
within a continuous period of six weeks counting backward from 
the last day's work. Rendall y. Warren, 8 W. W. E. 113. 

A mechanics'' lien filed by a sub-contractor is not to attach so 
as to make the owner liable for a greater sum than the sum owing 



238 THE LAW OF MECHANICS' LIENS IN CANADA. 

by the owner to the contractor; consequently if the latter's con- 
tract with the owner does not entitle him to a further payment 
until completion, the lien of the sub-contractor who has completed 
his contract cannot be made effective until completion of the entire 
work of the principal contractor, but the court may, on the trial 
of' the lien action, direct that such lien shall remain in force, so 
that it may attach in respect of further sums. that may thereafter 
become due by the owner to the principal contractor, reserving 
leave to the owner to apply to discharge the lien. Colling v. Stim- 
son et al., (1913) 10 D. L. E. 597, 23 W. L. E. 789. 

This section does not give a lien for wages for work done in 
boring for oil. Hensbaw v. Federal, etc., Corporation, Ltd., 
(1916) 34 W. L. E. 208. 

Where the contract work both with the principal contractor 
and the sub-contractor for excavating expressly included the clean- 
ing up of the debris on the completion of the building, and the 
owner called upon the principal contractor to do it' before taking 
over the building and the latter replied that he would have the 
sub-contractor do it, the sub-contractor's lien for the excavation 
work will be kept alive by the cleaning up done by the latter in 
good faith in fulfilment of his sub-contract, although his last prior 
work (the excavating) was done more than five months before. 
Foster v. Brocklebank, (1915) 22 D. >L. E. 38, 8 W. W. E. 464. 

An unregistered foreign company is entitled to a mechanics' 
lien inasmuch as the enforcement of the lien does not involve the 
acquisition or holding of lands or any interest therein or the reg- 
istration of any title thereto under the Lands Titles Act. Wort- 
man v. Frid Lewis Co., 9 W. W. E. 812 ; 33 W. L. E. 119. 

i 

5. Material subject to lien. — When any material is brought 
upon any land to be used in connection with such land for any 
of the purposes enumerated in the last preceding section hereof, 
the same shall be subject to a lien for the unpaid price thereof in 
favor of any person supplying the same until it is put or worked 
into the building, erection or work as part of the same. 

To preserve the unpaid seller's lien given by this section, pos- 
session of the materials delivered must be resumedbefore the same 
are worked into the building. Metals Ltd. v. Trusts & Guarantee 
Co. Ltd., (1914) 29 W. L. E. 953. 



THE ALBEETA MECHANICS' LIEN ACT. 239 

The general lien arising under section 4, covering not only- 
land and buildings but also materials for the work, is subject to 
the lien on materials given by sub-section 5 to the person supply- 
ing the same. Trussed Concrete Steel Co. v. Taylor, etc., (1919) 
2 W. W. E. 133. Such lien under this section exists notwithstand- 
ing that the materials are not delivered on the lands where the 
building is being erected, if there is no room there for storing 
them, and they are deposited on ground in the immediate vicinity 
thereof. Trussed Concrete Steel Co. v. Taylor Engineering Co., 
(1919) 2 W. W. R. 123, 46 D. L. R. 663. 

6. Agreement as to liens. — No agreement shall be held to de- 
prive any one otherwise entitled to a lien under this Act and not a 
party to the agreement of the benefit of the lien and the lien shall 
attach notwithstanding such agreement. 

7. Certain proceedings not to be deemed satisfaction or waiver 
of lien. — The taking of any security for, or the acceptance of any 
promissory note for, or cheque which on presentation is dis- 
honored, or the taking of any other acknowledgment of the claim, 
or 1 the taking of any proceedings for the recovery of the claim or 
the recovery of any personal judgment for the claim, shall not 
merge, waive, pay, satisfy, prejudice, or destroy any lien created 
by this Act, unless the lienholder agrees in writing that it shall 
have that effect. 

Provided, however, that a person who has extended the time 
for payment of any claim for which he has a lien under this Act 
to obtain the benefit of this section shall , institute proceedings 
to enforce such lien within the time limited by this Act, but no 
further proceedings shall be taken in the action until the expira- 
tion of such extension of time: 

Provided further, that notwithstanding such extension of time 
such person may where proceedings are instituted by any other 
person to enforce a, lien against the same property prove and 
obtain payment of his claim in such suit or action as if no such 
extension had been given. 



240 THE LAW OF MECHANICS' LIENS IN CANADA. 

'Where the contract price is payable in instalments, if default 
is made in payment of an instalment, the contractor, prior to the 
falling due of the later instalments, can commence proceedings to 
enforce his lien. The words, "No further proceedings shall be 
taken in the action until after such extension of time," are to be, 
construed distributively. Spears v. Bannerman, (1907) 1 Alta. 
L. E. 98. 

The claimant does not waive or lose his lien by taking and 
negotiating the owner's promissory note in part payment of the 
amount then due. Clarice v. Moore, (1907) 1 Alta. L. E. 49, 8 
W. L. E. 405. See Brooks-Sanford Co. v. Theodore Teller Con- 
struction Co., (1910) 19 O. L. E. 303; also Swanson v. Mollison, 
(1907) 6 W. L. E., at 682, citing approvingly the following para- 
graph from the first edition of this work : " After the note has been 
negotiated, the debt then becomes due to a third, party, and the 
original creditor becomes guarantor of the payment of the debt.- 
While the note is in the hands of the third party, no proceedings 
can be taken to enforce the lien. If the lien claimant pays the note, 
and is the holder of the note at the time he begins proceedings, the 
fact of his having negotiated the note will not take away his lien." 

8. Amount to which lien limited. — 'Such lien shall be limited 
in amount to the sum actually owing to the person entitled to the 
lien. 

Where in an action to enforce a lien against a building,' by 
reason of the owner of the property not being indebted to the con- 
tractor, the claimant cannot have a lien, he is entitled to a declara- 
tory judgment that the administrator of the contractor's estate 
is, in the due course of administration, liable therefor. Canadian 
Equipment and Supply Co. v. Bell, 11 D. L. E. 821, 24 W. L. E. 
415i 

9. Liens on mortgaged premises. — Where works or improve- 
ments are put upon mortgaged premises the liens by virtue of this 
Act shall be prior to such mortgage as against the increase in value 
of the mortgaged premises by reason of such works or improve- 
ments but not further unless the same is done' at the request of the 
mortgagee in writing; and the amount of such increase shall be 
ascertained upon the basis of the selling value upon taking on the 



THE ALBERTA MECHANICS' LIEN ACT. 241 

account, or by the trial of an action or issue as provided herein, 
and thereupon the judge may if .he shall consider the works or 
improvements of sufficient value to justify the proceedings > order 
the mortgaged premises to be sold. at an upset price equal to the 
selling value of the premises immediately prior to the commence- 
ment of such works or improvements (to be ascertained as afore- 
said) and any sum realized in excess of such upset price shall be ' 
subject to the liens provided for by this Act. The moneys equal , 
to the upset price as aforesaid shall be applied towards the said 
mortgage or mortgages according to their priority. Nothing, 
however, in this section shall prevent the lien from attaching, upon 
the equity of redemption or other interest of the owner of the land 
subject to such mortgage or charge. 

(2) Interpretation of mortgage. — "Mortgage" in this section 
shall not include any part of the principal sum secured 
thereby not actually advanced to the borrower at the time 
the works or improvements are commenced, and shall include a 
vendor's lien and an agreement for the purchase of land, and for 
the purposes of this Act and within the meaning thereof the pur- 
chaser shall be deemed mortgagor and the seller a mortgagee. 

A mechanics' lien attaches to the interest which is vested in 
the owner at the time the work is. commenced, or to any interest 
which he may acquire during the progress of the work; and the 
lien will take priority over a mortgage upon which no money was 
advanced' until after the commencement of the .work, although the 
mortgage had been registered before that time. Colling v. Stim- 
son et al., (1913) 10 D. L. R. 597, 23 W. L. E. 789. 

The limitation of the priority of mechanics' liens over mort- 
gages to the amount whereby the premises have been increased in 
value by the work does not apply where.no money was advanced 
by the mortgagee until' after the commencement of the work for 
which the lien is claimed. Colling v. Stimson & Buckley, (1913) 
4 W. W. E. 597, 23 W. L. E. 798, 10 D. L. E. 597. 

See McSporran v. Miller, 9 W. W. R. 81, 32 W. L. E. 392. 

10. Claims for wages. — Without prejudice to any liens which 
he may have under the preceding sections every mechanic, laborer 

MX.— 16 



242 THE LAW OF MECHANICS' LIENS IN CANADA. 

or other person who performs labor for wages upon the construc- 
tion, alteration or repairs of any building or erection, br in erect- 
ing or placing machinery of any kind in, upon or in connection 
with any building, erection or . mine shall to the extent of the 
interest of the owner have upon the building, erection or mine 
and the land occupied thereby or enjoyed therewith a lien for such 
wages, not exceeding the wages of six weeks or a balance equal to 
his wages for six weeks. 

(2) The lien for wages given by this section shall attach when 
the labor is in respect of a building, erection or mine on property 
'belonging to the wife of the person at whose instance the work 
is done, upon the estate or interest of the wife in such property 
as well as upon that of her husband. 

An owner -is entitled to discharge liens for six weeks' wages of 
laborers no matter by whom employed, even though the result may 
be to reduce the fund which would otherwise be available for other 
lien claimants. If money be paid by the owner to a contractor for 
the very purpose of being applied in payment of wage-earners and 
such money is in fact so applied, the owner is entitled to credit for 
such payments against the contract price. Metals Ltd. v. The 
Trusts and Guarantee Co. Ltd., (1914) 7 W. L. E. 605. 

A sub-contractor is not a "laborer" so as to acquire as to 
labor done as part of the contract, the special privileges ' given by 
that Act to laborers. Rendall v. Warren, 21 D. L. K. 801, 8"W. 
W. E. 113.. 

The wages, must be earned within a continuous period of six 
weeks counting 'backwards from the last day's work. Stafford v. 
McKay, (1919) 2 W. W. E. 280. 

11. Owner of land deemed to have authorized the erection, of 
buildings thereon. — Every building or other improvement men- 
tioned in the fourth section of this Act constructed upon any 
lands with the knowledge of the owner or his authorized agent, ,or 
the person having or claiming any interest therein, shall be held 
to have been constructed at the request of such owner or person 
having or claiming any interest therein, unless such owner or 
person having or claiming any interest therein shall, within three 
days after he shall have obtained knowledge of the construction, 



THE ALBERTA MECHANICS' LIEN" ACT. 243 

alteration or .repair, give notice that he will not be responsible 
for the same, hy posting a notice in writing to that effect in some 
conspicuous place Upon said land or upon the building or other 
improvement thereon. 

v (2) Notice by owner that he will not be responsible for work 
done on his land^ — Whenever such owner or such person, not hav- 
ing contracted for or agreed to such construction, alteration, repair, 
works or improvements 'being done- or made, but who has failed to' 
give said notice within the said three days, shall post a notice 
in writing in some conspicuous place upon said land, or Upon 
the buildings or improvements thereon, to the effect that he will 
not be responsible for the works or improvements, no works or 
improvements made after such posting shall give any right as 
against such owner or person, or his interest in said land, to a 
lien under this Act. 

It is knowledge of the fact of construction and not knowledge 
of the intention to construct which gives rise to the statutory 
request created by this section. Johnson v. Butler and Spencer, 
(1914) 7 Alta. L. B. 427. Where an owner of land does not ob- 
tain knowledge of the construction of a building upon his land 
until after such construction has been completed, he is not obliged 
in order to avoid liability for the cost of such construction to post 
the notice called for by this section. Johnson v. Butler and Spen- 
cer, supra. 

" The two-fold purpose of the section is obvious. It is to give 
to a contractor, who otherwise might have the mistaken idea that 
he was doing the work in hand for the owner of the land, notice to 
the contrary so that. he may with his eyes open to the facts elect 
whether or not he will proceed with it on the personal liability of 
him by whom he is employed, and at the same time to work a 
statutory estoppel against an owner who stands by while the work 
is being done to his knowledge,' and says nothing." Johnson v. 
Butler & Spencer, supra, per Walsh, J. 

This section applies only to the cases that do not come within 
section 4, in which the owner has in fact -requested " the work to be 
done." Scratch v. Anderson, (1909) 16 W. L. E. 145. 

Where an owner leased premises for seven years, the lessee 
having an option to purchase the right to remove a building and 



244 THE LAW OP MECHANICS' LIENS IN CANADA. - 

erect another in lieu thereof, which new 'building was to become 
property of the lessor, , a lien claimant filed liens in connection 
with erection of new building. The lessee being in arrears for 
rent, the lease was forfeited. It was held that the, liens were valid 
against the land. High River Trading Co, v. Anderson, (1909) 10 
W. L. E. 126.' 

The interfest of the registered owner of ' land upon which ' a 
church has been erected by a .contractor pursuant to a contract 
with the trustees for an, unincorporated church congregation, who 
held under an agreement for 'sale from the hwner, is chargeable 
with a lien in the contractor's favor, where the owner has not given 
the notice required by this section. Bohl v. Pfaffenroth, 31 W. L r 
E. 197. ■ 

The lessee of land, as permitted by his lease, had buildings 
thereon pulled down and proceeded to erect others in their place, 
but was obliged to abandon the work before it was finished. The 
owner was aware of the work being done, but gave no notice dis- 
claiming responsibility therefor. Mechanics' liens, having been filed 
.under the Act, the' interest of the~ owner was held subject to such 
liens. Scratch v. Anderson, (1909) 2 Alta. L. E. 109, 13 W. L. E. 
113 ; Limoges v, Scratch, (1910) 44 Can. S. C. E. 86. 

The general principle of the Mechanics' Lien Act is, that the 
land which receives the benefit shall bear the burden. By virtue 
of this section (11), 'where a building is constructed with the 
knowledge of the owner, who gives no notice disclaiming respon- 
sibility, then, the same result follows as if the building had been 
constructed at his request under section 4, and the lien will bind 
his interest in the land. Scratch v. Anderson, (1909) 11 Alta. 
L. E. 55. The only lien which can attach to bind an .owner not 
actually requesting the work must be in respect to a building or 
other improvement constructed on the land. Wester e't al. v. 
J ago et al, (1917) 11 Alta. L. E. 52. 

Where an owner of land is informed that improvements are 
being placed thereon and does not discredit what he is told, but 
does not make any investigations as to the truth of the report,, he 
will be held- to have " knowledge of the work " within the meaning 
of this section. , The Jackson Water Supply Co. v. Bardech et al., 
(1915) 8 Alta. L. E. 305, 21 D. L. E. 761. 

Lands agreed to be conveyed -by a city to a purchaser buying 
,same as an industrial site upon his building and equipping a fac- 



THE ALBEETA MECHANICS' LIEN ACT. 245 

tory and performing certain conditions as to trie operation of the 
factory, are not exempt from having a mechanics' lien enforced 
against the city's title fgr the cost of the building, if the city has 
failed to post up the notice under this section. Bevehtdice Saw 
Mill Co. ,v, Alberta Bottle Go., (1915) 21 D. L. E. 779; 9 Alta. 
L. E. 155. ' 

■ This section does not limit the liability of the " owner " to 
such alterations and repairs (made by his tenant) as increase the 
value of-his interest in the land and premises. The lien of those 
who, furnish materials and do work in altering and repairing the 
premises will be enforced against the interest of the landlord. 

The provisions of this section preclude the application to it 
of the' definition of "owner" in sub-section 4 of section 2.' , 

Alterations and repairs are not' excluded from the liability 
imposed 1 by this section, but- the landlord can avoid liability by 
giving the notice prescribed by this section. Peters, Bohls & Go. 
v. MacLean, (1913) 25 W. L. E. 358, 13 D. L. E. 519. 
i The onus of proving the posting of the notice mentioned in 
this section is on tib^ " owner." Beiielstohe Saw Mill Go. y. Al- 
berta Bottle Company, (1915) 9 Alta. L. E. 155. 

" Owner ". is a variable term, and as used in this section will 
include " leaseholder '.' when read with the* interpretation clause. 
Prentice v. Brown, 7 Alta. L. E. 454, 17 D. L. E. 36. 

" Subsequent encumbrancers " who are not to be made parties 
to the action, but who are to be served with notice of the judg- 
ment or order in a vendor's action for specific performance under 
Alberta ■ Eule 47, mean those encumbrancers whose claims arose 
subsequently to the making, of the agreement of sale, and include 
one claiming under a subsequent mechanics' lien although he, may 
be entitled to priority over the vendor's claim for the whole or a 
part of his claim either under this section, by reason of the vendor 
as " owner " having had knowledge of tb.e construction and not 
disclaimed, or under section 9 by showing an increased value in 
the property. The rights of such mechanics' lien claimant should 
be determined in the same action brought by the vendor,, and such 
claimant should not be required, to bring a separate action for such 
purpose. Canadian Pacific Bailway Company v. The Canadian 
Wheat Growing Company,; (1919) 2 W. W. E. 313, 14 Alta. L. 
E. 452; 47 D. L. E. 102. 



246 THE LAW OF MECHANICS' LIENS IN CANADA. 

- 12. Insurance moneys. — Where any of the property upon whieh 
a lien is given by this Act is wholly or partly destroyed by fire, 
any insurance receivable thereon by the owner, prior mortgagee 
or chargee, shall take the place of the property so destroyed, and 
shall, after satisfying any prior mortgage or charge in the manner 
and to the extent set out in section 9 hereof, be subject to the claims , 
of all persons for liens to the same extent as if such moneys were 
realized by the sale of such property in an action to enforce a 
lien. 

Where the claimants of the proceeds of a policy of fire insur- 
ance are jointly interested, but not adversely to one another, in 
establishing as great a liability as possible in the- insurance com- 
pany, and the question outstanding, once the amount of such lia- 
bility is settled, is that of the claimants' respective rights and 
priorities under the Mechanics' Lien Act, an application by the 
company for leave to interplead is not the proper procedure, for 
it to take in respect to the amount which it admits to be due.- 
(Per Stuart, J., Harvey, C.J., concurring, Beck, J., contra.) 
HyUdman, J., concurred with Walsh, J., below, in the view that 
the liability of the company is one for unliquidated damages and 
not for a debt or money and therefore it is not entitled to inter- 
plead. 

The effect of this section is that an insurance company which 
admits liability in respect to property against Which mechanics' 
liens are filed is a trustee of the amount of such liability, and 
where, in such circumstances, there is a dispute between the lien- 
holders and mortgagees as to how the money is to be divided, s. 27 
of The Trustee Ordinance, c. 119, C. 0., is applicable and, there- 
fore, the company is entitled under Rule 448 to petition for leave 
to pay the money into Court. (Per Stuart, J., Harvey, C.J., con- 
curring). The Liverpool and London and Globe Insurance Com- 
pany, Limited v. Kadlac and Imperial Lumber Co., (1918) 13 
Alta. L. E. 498. 

13. Lien expires in 31 days after completion of work unless 
registered. — Every lien upon such building, erection, mine, works 
or improvements, or land shall absolutely cease to exist after the 
expiration of thirty-five days, except in the case of a claim for 



THE ALBERTA MECHANICS' LIEN ACT. 247 

wages owing for work in, at or about a mine, in which case the 
lien shall cease after the expiration of sixty days after the claim- 
ant has ceased from any cause to work thereon, 'or place or furnish 
the materials therefor ; provided, however, that any laborer shall 
not be held to have ceased work upon any building, erection, mine, 
works or improvements until the completion of the same, if he has 
in the meantime been employed upon any other work by the same 
contractor, "unless in the meantime the person claiming the lien 
shall -file in the land titles office of the land registration in which 
the land is situate or in the office of the clerk of the Superior 
Court of the province in the judicial district in which the land 
lies, an affidavit sworn before any person authorized to take oaths, 
stating in substance : 1915, c. 2, s. 27. 

(a) The name and residence of the claimant, and of the 
owner of the property or interest to be charged; 

(b) The particulars .of the kind of works or improvements 
done, made or furnished; 

(c) The time when the works or improvements were finished 
of discontinued; 

(d) The sum claimed to be owing and when due; 

(e) The description of the property to be charged; 

» (f) The address for service of the claimant. 1915, c. 2, s. 27, 

which affidavit shall be received and- filed as a lien against the 
property, interest or estate. Every registrar under the Land 
Titles Act, and every such clerk shall be supplied with printed 
forms of such affidavits in blank, which may be in the form or 
to the effect of schedule A to this Act, and which shall be supplied 
to every person requesting the same and desiring to file a lien. 
Every such registrar and clerk shall keep an alphabetical index 
of all claimants of liens, and the persons against whom such 
liens are claimed, which index shall be open for inspection during 
office hours, and it shall be the duty of such registrar and clerk . 
to decide whether- his is or is not the proper office for the filing of 
such affidavits, and to direct the applicant accordingly; and no 



248 THE LAW OF MECHANICS' LIENS IN CANADA. 

affidavit shall be adjudged insufficient on the ground that it was 
not filed in the proper registry office or clerk's office. The said 
claim of lien may be described as a mechanic's lien: 

Provided, however, that no lien shall be filed unless the claim 
or joined claims shall amount to or aggregate $20 or more. 

(2) Claims to be filed as encumbrances, with registrar.- — Upon 
the filing of such affidavit in any such land titles office, the 
registrar shall enter and register the claim as an encumbrance 
against the land or the estate or interest in the land therein de- 
scribed as provided in the Land Titles Act. 

(3). With clerk. — -Upon -the filing of such affidavit in the 
office of any such clerk the clerk shall forthwith transmit to the 
registrar of the land Tregistration district in which the land lies a 
certificate of the filing of such lien in his office, and specifying the 
particulars in the affidavit contained, and upon, the receipt by the 
said registrar of such certificate he shall enter and register the 
claim as an encumbrance against the land oe the estate or interest 
in the land therein described as provided in the Land Titles Act. 

Under a similar section of the British Columbia Act it has 
been decided that the omission to register in the Land Eegistry 
Office within the specified time was not cured by the curative sec- 
tion, and is fatal to the validity of the lien, even where registration 
was effected within the prescribed time in the County Court 
Eegistry. See Dale v. International Mining Syndicate, (1917) 
25 B. C. E. 1. 

Where the last day for the filing of an affidavit falls on a Sun- 
day, an action to enforce the lien is in time if brought on the fol- 
lowing day. Revelstohe Saw Mill Co. v. Alberta Bottle Co., (1915) 
21 D. L, E. 779. 

An owner's acceptance of the contractor's order given in return 
for the release of a materialman's lien operates as an accord and 
satisfaction of the materialman's claim, which cannot be revived 
by the subsequent delivery of additional material. Wortman v. 
Frid Lewis Co., 9 W. W. E. 812. 

In determining when the lien claimant has ceased to work the 
doing of work or supplying materials even of a trivial character. 



THE ALBERTA MECHANICS' LIEN ACT. 249 

if done or furnished in good faith, should be considered. Clarice v. 
Moore, (1908) '1 Alta. L. R. 49, 8 W.'L. R. 405. See Sayward v. 
Dunsmuir, (1906) 11 B. C. R. 375 ; Steintoan v. Kosculc,, 4 W. L. R. 
514; and Swanson v. MolUson, (1907) 6 W. L. R., 678. 

This section will protect a laborer who has done his last work 
more than 35 days before his lien was filed. Stafford v. McKay, 
(1919) 2 W. W. R. 280. 

One claim of lien can be filed in respect of all goods supplied; 
though from different principals, and the time of filing it will 
run from the date of the last delivery irrespective of whose goods 
constitute it. Gorman, v. Archibald} (1908) 1 Alta. L. R. 524. 
Delivery of the certificate of Us pendens to the land titles office 
before ,4' p.m. on the last day for filing is, as .against the " owner " 
a sufficient 'filing within the Act, notwithstanding that the regis- 
tration is not completed until the next day. Gorman v. Archibald, 
(1908) 1 Alta. L.R. 524. 

When a claim of a mechanics' lien is prepared in respect to and 
registered against land other than that which is properly subject to 
the*lien, an order giving leave, to correct the claim can be made 
in Alberta only by the Court or Judge who is trying the action to 
enforce the lien, and cannot be made after the expiration of 31 
days within which the affidavit prescribed by this section must be 
filed in the Land Titles Office. McDonald v. McKenzie, (1914) 
7 Alta. L. R. 435. See also Bafuse v. Hunter, 12 B. C. R. 126. 
No court has authority to re-create a lien which has ceased to 
exist under the statute. McDonald v. McKenzie, supra. 

A plumbing contract to furnish and instal a hot air furnace for 
heating a house, including the necessary pipes, registers and fit- 
tings, comprises the furnishing and installation of the incidental 
cold air registers as a material part thereof; and the time within 
which a mechanics' lien may be filed for such work is to be com- 
puted with reference to the installation of the cold air registers, 
where that is the last work done under the contract, notwithstand- 
ing, a delay of two months after the installation of the furnace 
itself and of the other incidental fittings. Colling v. Stimson et 
al., (1913) 10 D. L. R. 597, 6 Alta. L. R. 71. 

This section which makes necessary the filing in the land titles 
office of an affidavit in support of the lien, does not apply to a lien 
under section 5. 

14. Substantial compliance with section 13 only necessary. — 

A substantial compliance only with section 13 of this Act' shall 



250 THE LAW OF MECHANICS' LIENS IN CANADA. 

be required and no lien shall be invalidated by reason of failure to 
comply with any of the requisites thereof, unless in the opinion of 
'the .court or judge adjudicating upon the lien under this Act the 
owner, contractor, sub-contractor, mortgagee or other person is 
prejudiced thereby, ahd i then only to the extent to which he is pre- 
judiced, and the Court or judge may allow the affidavit and state- 
ment of claim to be amended accordingly. 

The word " prejudiced " in this section means " unjustly made 
to suffer." Rendall et al. v., Warren et al., (1915) 21 D. L. E. 
801. 

The filing of an affidavit in support of a mechanics' lien with 
the deputy clerk of a District Court, instead of with a deputy 
qlerk of the Supreme Court, where one person carries on both of 
said offices in the same room in the same court house, is a defect 
in the proceedings which is covered by the remedial provisions in 
this section, although it is not covered by those of section 13. 
Revdlstoke Saw Mill Company v. Alberta Bottle Company et al., 
(1915) 9 Alta. L. E. 155; 21 D. L. E. 779, 7 W. W. E.' 1002* 30 
W. L. E. 312. 

Ah error in the affidavit misnaming the company for whom the 
work was done as equitable owner of the land is cured by this sec- 
tion, where no prejudice has been shown. Revelstolce Saw Mill Co. 
v. Alberta Bottle Co., supra. 

This section may operate to make a lien effective although the 
affidavit of lien did not shew, as required by section 13, the name 
and residence of the owner of the property or interest to be 
charged, ex. gr. on a lien which the affidavit shewed to be for work 
on a school identified by name and location, although the' board of 
school trustees was not named as owner. Foster, v. Brocklebank, 
(1915) 22 D. L. E. 38, 8 W. W. E. 464. 

15. Liens to pass on death to legal representatives or may he 
assigned. — In the event of the death of a lienholder his lien shall 
pass to his personal representatives, and the right of a lienholder 
may be assigned by any instrument in writing subject to the limita- 
tions contained in section 17 hereof. 

16. During continuance of lien property must not be removed. 

■ — During the continuance of any lien no portion of the property 



THE ALBEKTA MECHANICS' LIEN ACT. 251 

affected thereby shall be removed to the prejudice of such lien and 
any attempt at such removal may be be restrained on application 
to the court or judge. 

17. Receipted pay rolls to be posted on works. — No contractor 
or sub-contractor shall be entitled to demand or receive any pay- 
ment in respect of any contract where the contract price exceeds 
$500 until he or some person in charge of the works or improve- 
ments shall post upon the works or improvements a copy of the 
receipted pay roll, from the hour of 12 a.m. to the hour of 1 p.m. 
on the first' legal day after pay day, and shall have delivered to the 
owner, or other person acting on his behalf, the original pay roll 
containing the names of all laborers who have done work for 
him upon such works. or improvements;, with a receipt in full from 
each of the said laborers, with the amounts which were due and 
had been paid to each of them set opposite their respective names, 
which pay roll may be in the form of schedule C hereto, and no 
payment made by the owner without the delivery of such pay roll 
shall be valid for the purpose of defeating or diminishing any lien 
upon such property, estate or interest in favor of any such laborer. 
No assignment by the contractor or any sub-contractor of any 
moneys due in respect to the contract shall be valid as against any 
lien given by this Act. As,to all liens, except that of the contractor, 
the whole contract price shall be payable in money, and shall not 
be diminished by any prior or subsequent indebtedness, offset or 
counterclaim in favour of the owner against the contractor: 

Provided, however, that the failure to comply with the pro- 
visions of this section respecting the posting of the receipted pay 
roll and delivery of the same shall not prejudice the right of lien 
of the contractor or sub-contractor so in default, or his right to 
maintain an 1 action or other proceeding to enforce the same, but 
the court or judge on application may at -any stage before trial 
order a stay of proceedings until proof be made to his satisfaction 
that all workmen employed by such contractor or sub-contractor 
on such works or improvements haye been paid in full, and may 



252 THE LAW OF MECHANICS' LIENS IN CANADA. 

in such" order limit the time within which such proof may be' 
furnished, and if the same be not furnished to the satisfaction of 
such court or judge such action may be dismissed, and in any 
such action or proceeding the court or judge may in his discretion 
award costs against the plaintiff in any event and 'notwithstanding 
that he may have successfully maintained his action to judgment. 
1908, c. 20, s. 12. 

The effect of this section is that as between the owner and lien- 
holders an agreement to pay the contract price or any part of it, 
otherwise than in money, is ineffective to discharge the owner, 
False Greek Lumber Go. v. Sloan, (1911) 17 W. L. E. 525, 3 Alta. 
L. E. 363. 

This section is intended solely to protect the laborers, and to 
afford the owner the means of securing himself from liability to 
the laborers, and non-compliance by' the contractor with this section 
does not prevent his lien coming into existence, or nullify a lien 
already existing, or prevent the lienholder from keeping it alive by 
commencing proceedings. Spears v. Bannerman, (1907) 1 Alta. 
L. E. 98. . 

The latter part of this section applies only to an " indebtedness, 
offset or counterclaim " by the owner against the contractor aris- 
ing dehors the contract. False Creek Lumber Co. v. Sloan, (1911) 
17 W. L. E. 525., See Boss v. Gorman, 1 Alta. L. E. 516. 

The effect of the words of this section is that, as between the 
owners and the holders of mechanics' liens, an agreement to pay 
the contract price, or any part of it, otherwise than in money, is 
ineffective to discharge the owner. The distinction between the 
agreement to pay in future and actual payment effected in accord- 
ance with the agreement is of the /greatest importance. The latter 
part of this section applies only to an " indebtedness, offset or 
counterclaim" by the owner against the contractor arising dehors 
the" contract. False Cre'ek Lumber Co. v. Sloan, (1911) 17 W. L. 
E. 525. 

This section does not operate so as to prevent payments made 
by the owner to creditors of the contractor, under an arrangement 
between the owner and the contractor, from being effective as pay- 
ments on account of the contract price, in the ascertainment of the 
amount due from the owner to the contractor, upon which alone 
the lien of materialmen attaches under section 32 of the Act, as 



THE ALBERTA MECHANICS' LIEN ACT. 253 

amended by section 12 of the Statute Law Amendment Act, 1908. 
Secus, if the arrangement had been one for payment in the fu- 
ture; but, once the arrangement was acted upon and payments 
were made in pursuance of it, the assignment (if the arrangement 
amounted, to an assignment) ceased to be 01 importance, and the 
payments must be regarded as payments to the contractor, — no no- 
tice in writing having been given by the plaintiffs, — land the owner 
was protected to the amount of these payments. Pioneer Lumber 
Go. v. Rooney, (1911) 19 W^ L. E. 913. See False Creek Lumber 
Go. v. Sloan, 17 W. L. E. 525, 3 Alta. L. E. 363. 

The onus is not upon the plaintiffs (materialmen) to show 
that there is a sum of money owing by the owner to the contractor 
out of which the lien can be realized. If. this is disputed it is a 
matter of defence; Gorman & Co. v. Archibald; Anderson *?. , 
Archibald, (1908) 1 Alta. L. E. 524. 

The owner who makes payments to the contractor without satis- 
fying himself that all wages have been paid, does so at his own risk. 
Stafford v. McKay, (1919) 2 W. W. E. 280. 

Enfokcement. 

18. Consolidation of liens. — Any number of lienholders may 
be joined in one suit and all suits or proceedings brought by a 
- lienholder shall be brought on behalf of all lienholders who may 
be made parties to such suits or proceedings within the time men- 
tioned in section 35 hereof: 

Provided that the moneys realized in such ,isuit .shall be dis- 
tributed amongst the lienholders, parties to such suit or proceed- 
ings, in the order and manner provided in section 30 of this Act. 
Any lienholder not originally joined may be made a party .to 
such suit or proceedings by order of a judge, upon ex parte appli- 
cation supported by an 'affidavit stating the particulars of the 
claim, and any lienholder so joined in any such suit or proceedings 
shall be deemed to have complied with section 35 of this Act as 
fully as if he had instituted a suit in his own behalf. 

'See Gardners. Gorman, (1907) 1 Alta". L. E. 106; Head v. 
Coffin, 2 Alta. L. E. 663; Howlett & Bell v. Doran, (1913) 24 W. 
L. E. 401, 11 D. L. E. 372, 4 W. W. E. 674. 



254 THE LAW OF MECHANICS' LIENS IN CANADA. 

An unregistered foreign company is entitled to a mechanics' 
lien inasmuch as the enforcement of the lien does not involve the 
acquisition or holding of lands or any interest therein or the regis- 
tration of any title thereto under the Land Titles Act within the 
meaning of s.-s. 2 of s. 11 of the Foreign Companies Ordinance. 
Wortman v. Frid-Lewis Co., (1915) 9 W.'W. E. 812. 

Where action has been brought to enforce a mechanics' lien 
under a building contract, other claimants against the same pro- 
perty should make ex parte application to be added to the action, 
instead of bringing separate actions, and where they pursue the 
latter course they are entitled to such costs only as they would 
have properly ' incurred in making an ex parte application. How- 
lett v. Doran, (1913) 11 D. L. E. 372, 24 "W. L. E. 401. 

A plaintiff in an action to enforce a mechanics' lien is not 
obliged to add as a party an enciimbrancee whose claim was created 
pendente lite. Canada Foundry Co. v. Edmonton Portland Cement 
Co., (1919) 2 W. W.'E. 310. v 

19. Owner may apply to have suits consolidated. — If more 
than one suit is commenced in respect of the same contract the 
owner or contractor shall apply to have- the causes consolidated, 
and failing to do so he shall pay the costs of such additional suit- 
or suits. Save as hereinafter mentioned the owner complying with 
the provisions of this' Act shall not be liable for any greater sum 
than he has agreed to pay by contract. 

The expressions " the owner shall not be liable " and " to' make 
the owner liable " contained in this section and section 32, do not 
refer to personal liability, but refer only to the liability of the pro- 
perty to which a lien attaches. The effect of these two sections' is 
to limit the amount of the liens for which the property can be 
liable to the amount of the contract price; and when the time is 
reached when payments already properly made in satisfaction or 
prevention of liens and the amount unpaid for which liens exist, 
together equal the contract price, no liens can arise thereafter. 
BrecTcenridge & Lund v. Short, (1909) 2 Alta. L. E. 71; 10 W. L. 
E. 392; 43 Can. S. C. E. 59. 

20. Judge may order consolidation of actions. — If two or moTe 
actions are brought in respect of the same contract or work the 
court or judge may by order on the application of any person 



THE ALBERTA MECHANICS' LIEN ACT. 255 

interested consolidate all the actions and may make such order as 
to costs as he shall think fit. 

Once an action to enforce a mechanics' lien is commenced, it is 
improper for another lienholder, in respect of the same subject- 
matter, to commence an action, because all suits or proceedings 
brought by a lienholder shall be taken to be brought on behalf of 
all lienholders who became parties within the time limited for 
instituting proceedings. Gardners. Gorman, (1907) 1 Alta. L. E. 
106, 7 W. L. E. 630. 

21. Summary proceedings to enforce liens. — Proceedings to 
enforce a lien or liens under this -Act may he taken before the, 
court or a judge in a summary way by originating summons sub- 
ject to the provisions in that behalf of the Judicature Ordinance, 
and of the rules of court, which are now or which shall hereafter be 
in force in the province. The court or judge upon the return of the 
summons may either proceed to take the accounts and make the 
necessary inquiries for the purpose of determining the matter, or he 
may try or direct the trial of any issue or issues in relation thereto 
as he shall, think necessary, and he may give directions as to the 
conduct of any such issue, the parties thereto, pleadings, particu- 
lars, production and discovery .therein (if any such proceedings be 
by him thought necessary), and any other directions he shall deem 
advisable for the proper disposal and trial thereof; and in default 
of payment of any amount that shall be found to 'be due, the court 
or a judge may direct the sale of the estate or interest charged 
and such further proceedings may "be taken for the purposes afore- 
said as the court or judge may think proper, and, any conveyance 
under the seal of such court or judge shall be effectual to pass the 
estate or interest sold, and the fees and costs in all proceedings so 
taken shall be such as are payable according td the ordinary pro- 
cedure of the said^ court, and except as herein otherwise provided 
the proceedings shall be as nearly as possible according to the prac- 
tice and procedure in force in the said court.. 1909, c. 4, s. 10. 

22. Proceedings by suit: — Proceedings to enforce a lien or liens , 
tinder this Act may also 'be taken by suit in the ordinary way, pro- 



256 THE LAW OF MECHANICS 1 LIENS IN CANADA. 

vided, however, that the court or judge hef ore whom such action is 
tried may in dealing with the question of the costs of such action 
take into consideration the difference in costs occasioned by rea- 
son of an action having been brought instead of proceedings hav- 
ing been taken by originating summons as provided in section • 21 
hereof, and may make such order as to costs therein, both as be* 
tween solicitor and client as well as between party and party, as to 
him shall seem just. 1909, c. 4 ; s. 10. 

23. Appeal to Supreme Court. — There shall be an appeal to 
the Supreme Court en lane from the decision of the court or a 
judge hereunder in all matters where the amount of the lien or 
the total amount of the liens joined in one action or proceeding 
is $200 or over, but where the amount of the lien or the total 
amount of the liens so joined is less than $200, the decision of the 
court or judge of first instance shall be final. 1909, c. 4, s. 10. 

24. Judgment for amount of claim. — Upon the hearing of 
• any claim for a lien the^ eourt or judge may so far as the parties 

before him, or any of them, are debtor and creditor, give judgment 
against the former in favor of the latter for any indebtedness or 
liability arising out of the claim in the same manner and to the 
same extent as if such indebtedness or liability had been sued upon 
in the said court in the ordinary way without reference to this Act. 
(See Mallet v. Kovar, (1910) 14 "W. L. E. 327. 

25. Summons to show cause why lien should not be cancelled. — 

Any person against whose property a lien hasl^een registered under 
the provisions of this Act may apply to the court or judge on an 
affidavit setting forth the registry of the same, and that hardship 
or inconvenience ,is experienced or is likely to be experienced 
thereby, with the reasons for such statement, for a sum- 
mons calling upon the opposite party to show cause why 
such lien should not be cancelled upon sufficient security being 
given. Such summons, together with a copy of the affidavit on 



THE ALBEBTA MECHANICS' LIEN ACT. 357 

■which the same is granted, shall be served on the opposite party 
and made returnable in three days after the issuing thereof, or in 
such greater or less time as the judge may direct. 

26. Judge may order cancellation of lien.— On the return of 
such summons the court or judge may order the cancellation of 
such lien, either in whole or in part, upon the giving of security 
by the party against whose property the said lien is registered to 
the opposite party in an amount satisfactory to the said court or 
judge, and upon such other terms, if any, as the court or judge 
may see fit to impose. 

27. On Judge's order lien to be cancelled. — The registrar in 
whose office the said lien is registered shall on the production of 
such order file the same and cause the said lien to be cancelled as 
to the property affected by the order. 

28. In certain cases owner or contractor to pay costs. — When 
it shall appear to the court or judge in any proceedings to enforce a 
lien or liens under this Act that such proceedings have arisen from 
the failure of any owner or contractor to fulfil the terms of his 
contract or engagement for the work in respect of which the liens 
are sought to be enforced or to comply with the provisions of this 
Act, such court or judge may order the said owner or contractor, 
or either of them, to pay all the costs of such proceedings in addi- 
tion to the amount of the contract or sub-contract, or wages 'due 
by him or them to any contractor, sub-contractor or laborer, and 
may order a final judgment against such contractor or owner or 
either of them in default for such costs with execution as provided 
in section 21 of this Act. 

See Pioneer Lumber Co. v. Booney, (1911) 19 W. L. E. 913. 

29. leasehold property. — If the property sold in any proceed- 
ings under this Act shall be a leasehold interest the purchaser at 
any such sale shall be deemed to be the assignee of such lease. 

M.L. — 17. 



258 THE LAW OF MECHANICS' LIENS IN CANADA. 

30. Distribution of moneys realized under Act. — All moneys 
realized by proceedings under this Act' shall he applied and dis- 
tributed in the following order : 

First. — The costs of all the lienholders of and incidental to 
the proceedings, and of registering and proving the liens ; 

Second. — Six weeks' wages (if so much be owing) of all 
laborers employed by the owner, contractor or sub-contractor; 

Third. — The" several amounts -owing , for material, placed or 
furnished, in respect of the works or improvements; 

Fourth. — The amounts owing the sub-contractor and other 
persons empldyed by the owner and contractor; 

Fifth. — The amount owing the contractor. 

(2) Each class of lienholders shall rank pari passu for their 
several amounts, and the portions of said moneys available for 
distribution shall be distributed among the lienholders pro rata 
according to their several classes and rights.- 

(3) Any balance of said moneys remaining after all 1 the above 
amounts have been distributed shall be payable to the owner or 
other person legally entitled thereto: 

Provided, however, that when any laborer has more than six 
weeks' wages owing to him by any sub-contractor, contractor or 
owner, the court or judge shall cause the extra sum beyond six 
weeks' wages to be deducted out of any sum actually coming under 
the above" distribution to such sub-contractor, contractor or owner, 
and shall order the same to be paid to such laborer. 

A person who has contracted to do a certain specified part of a 
building contractor's work and to supply all the needed material 
therefor for one set sum can only rank in priority as a sub- 
contractor, and not as a materialman under this section. Wort- 
man v. Frid-Lewis Co., (1915) 9 W. W. E. 812'. See also Cough- 
lin v. Carver, 7 W. W. E. 457. 

In an action to enforce a mechanics' lien for materials sup- 
plied to a building contractor, the owner is ordinarily entitled to 
costs out of the fund in court before it is distributed. Howlett v. 
Doran, 11 D. L. E. 372, 24 W. L. E. 401. Where action has been 
brought to enforce a mechanics' lien under a building contract, 



THE ALBERTA MECHANICS' LIEN ACT. , 259 

other claimants against the same property should make ex parte 
application, under section 18, to be added to the action, instead 
of bringing separate actions. Howlett v. Dorari, supra. 

As to mechanics' liens as " subsequent encumbrances," where 
vendor sues for specific performance, see C. P. R. Co. v., The Cana- 
dian Wheat Growing Co., 14 Alta. L. E. 453. 

31. Device to defeat priority of wage-earners void. — Every 

device by an owner, , contractor or sub-contractor, adopted to de- 
feat the priority given to wage-earners for their wages by this Act 
shall, as against such wage-earners, be null and void. 

32. Owner's liability as to wages. — No lien, except for not 
more than six weeks' wages in favor of laborers, shall attach so as 
to make the owner liable for a greater sum than the sum owing by 
the owner to the contractor at the time of the receipt by the owner 
or person having superintendence of the work on 'behalf of the 
owner, of notice in writing of such lien and of the amount thereof, 
or which may become owing by the owner to the contractor at any 
time subsequent thereto while such lien is in effect. ' 1908, c. 20, 
s. 12. 

In order to enforce a mechanics' lien under this section a 
"notice in writing of such lien and of the amount thereof " must 
be given to the " owner or person having superintendence of the 
work on behalf of the owner." City of Calgary v. Dominion Radia- 
tor Co., (1918) 40 D. L. E. 65. 

(2) What latest notice shall contain. — Where more than one 
such notice is given by a lienholder to the owner in regard to 
material furnished to the same contractor the lienholder shall in 
the latest notice so given state the total amount or 'balance owing 
at the time of the giving of such latest notice toy the contractor to 
the lienholder, and in default of such total amount or balance 
being so stated it shall, with respect to any payments made by the 
owner, be taken to be the amount of the lien mentioned in the said 
latest notice, and no lien or liens of such lienholder shall attach 
so as to make the owner liable for more than the amount or the 
total amount or balance so ascertained. 1908, c. 20, s. 12. 



360 ■ THE LAW OF MECHANICS'' LIENS IN CANADAv 

(3) Statement of lienholder. — "Where notice of a lien has been 
given as in this section provided the lienholder shall upon request 
furnish to the contractor or owner a statement in writing of the 
amount or balance due and payable in respect of the material, for 
the supplying or furnishing of which such lien is claimed, and no 
lien or liens of such lienholder for material supplied or furnished 
up to the time of the giving of such statement shall attach so as 1jo 
make the owner liable for any greater sum than is. so stated. 1908, 
c. 20, s. 12.' 

(.4) Court may order statement to be given. — The contractor 
or owner may apply to the court by originating summons as set 
out in the Judicature Ordinance, to compel any lienholder who 
refuses or neglects to do so, to furnish such a statement as in the 
next preceding sub-section required or with respect to the accuracy 
of any statement furnished in accordance with the provisions of 
this section, and the court may upon such application make such 
order in the premises and as to the costs of the application as to 
the court shall seem just. 1908, c. 20, s. 12. 

This section does not protect an " owner " who is not under a 
contractual obligation to pay the persons seeking to enforce a lien. 

Payment actually made, by the owner to sub-contractors under 
an arrangement with the contractor is payment to the contractor 
so as to protect the owner under this section, and is not within 
section 17, which makes invalid, as against the lien, assignments' 
by a contractor or sub-contractor of any moneys due in respect of 
the contract. Pioneer Lumber Co. v. Rooney, (1911) 4 Alta. L. 
' E. 1 ; see also False Creek Lumber Co. v. Sloan, 3 Alta, L. E., 17 
W. L. E. 525; Swanson v. Mollison, (1907) 6 W. L. E. 678 J 
Breckenridge v. Travis, 2 Alta. L. E. 71, 43 S. C. E. 59. 

This section, it is alleged, was enacted to overcome the diffi- 
culty in Breckenridge & Lund v. Short, 2 A. L. E. 71, and Travis 
v. Breckenridge Land Co., 43 Can. S. -C. E. 59. 

The existence of the lien itself and its extent depend upon the 
provisions of the Mechanics' . Lien Act, and, therefore, legislation 
in other Acts cannot be considered as neutralizing or modifying 
the limitation upon the extent of the lien which the mechanics' 



THE ALBERTA MECHANICS' LIEN ACT. 261 

lien explicitly imposes. City of Calgary v. Dominion Radiator 
Co., (1917) 40 D. L. E. 65. 

The effect of this section is to make the giving of notice in 
writing to the owner a condition of the mechanics' or material- 
man's lien attaching so as to make the owner liable, just as other 
sections of the Act make registration and the institution of an 
action within defined period conditions of its preservation. 

A notice given by a sub-contractor under this section cannot 
avail to give the sub-contractor a priority over those who by virtue 
of section 30. have priority over him, but who have given no notice 
under this section. Wortman v. Frid-Lewis Co., (1915)- 9 W. 
W. E. 812; 33 W. L. E. 110. 

The wages claims of laborers which are given a special privi- 
lege under this section are the wages earned within a continuous 
period of six weeks, counting backward from the last day's work. 
Rendall et al. v. Warren et al., (1915) 21 D. L. E. 801. 

A sub-contractor is not a " laborer " so as to acquire as to 
labor done as part of the contract, the special privileges given to 
laborers. The priority acquired by notice under this section is a 
priority only over other lienholders of the same class as fixed by 
section 30, and does not interfere with the priority fixed by that 
section as between the different classes of lienholders. Rendall 
et al. y. Warren et al., supra. 

No fund exists to which can attach a mechanics' lien for ma- 
terial furnished a contractor, where, on the construction of the 
building being taken over by the owner in accordance with the 
terms of a contract, the money already paid the contractor and that 
subsequently expended in completing the work, exceeded the con- 
tract price. Canadian Equipment and Supply Co. v. Bell et al., 
(1913) 11 D. L. E. 820, 24 W. L. E. 415. 

In order to enforce a mechanics' or a materialman's lien under 
this section a " notice in writing of such lien and of the amount 
thereof " must be given to the " owner, or person having superin- 
tendence of the work on behalf of the owner." Calgary v. Do- 
minion Radiator Co., 56 Oan. S. C. E. 141, (1918) 1 W. W. E. 
137, 40 D. L. E. 65. 

This section as amended is for the protection of an owner who 
is under a personal contractual obligation to pay and not other- 
wise. Prentice v. Brown, 7 Alta. L. E. 454, 17 D. L. E. 36. 



262 THE LAW OF MECHANICS' LIENS IN CANADA. 

I 

33. Materials exempt from execution, — Where any mechanic^ 
artisan, machinist, builder, miner, contractor or any other person 
has furnished or procured materials for use in the construction,, 
alteration or repair of any building, erection or mine at .the re- 
quest of and for some other person, such materials shall not 
be subject to execution or other process to enforce any debt (other 
than for the purchase thereof), due by the person furnishing or 
procuring such materials, and whether the same have or have not 
been in whole or in part worked into or made part of such building 
or erection. 

34. Enforcing liens for the improvement of chattels. — Every 
mechanic or other person who has bestowed money or skill and 
materials upon any chattel in the alteration and improvement of 
its . properties, or' increasing its value, so as thereby to become 
entitled to a lien upon such chattel or thing for' the amount or 
value of the. money, skill, or materials bestowed, shall, while 
such lien exists, but not afterwards, in case the amount to which 
he is entitled remains unpaid for three months after the same 
ought to have been paid, have power to sell the chattel in 
respect of which the lien exists, on giving two weeks' notice by 
advertisement in a newspaper published in the city, town or judicial 
district in which the woTk was done, or in case there is no news- 
paper published in such city, town or judicial district, then in a 
newspaper published nearest thereto, stating the name of the per- 
son indebted, the amount of his indebtedness, a description of the 
chattel to be sold, the time and place of sale; and after such sale 
such mechanic or other person shall apply the proceeds of such sale 
in payment of the amount due to him, and the costs of advertising 
and sale, and shall pay over the surplus (if any) to the person 
entitled thereto on application being made to him therefor, and a 
notice in writing of the result of the sale shall be left at or posted 
to the address of the owner at his last known place of abode or 
business. 



the alberta mechanics' lien act. 263 

Expiration, Cancellation and Discharge. 

35. When a lien shall expire. 1 — Every lien in respect of which 
an affidavit has been filed against the title of any land or any 
interest therein shall be deemed to have lapsed after the expiration 
of sixty days after service, in the manner in which service of process 
is usually made and proved to the satisfaction of the registrar of 
land titles for the district in which the said affidavit has been filed, 
of a notice in form A in the schedule D to this Act, or to the like 
effect, shall have been made upon the lienholder, unless before the 
expiration of the said period of sixty days the lienholder shall have 
taken proceedings in court to enforce his lien, ,and shall have filed 
or caused, to have been filed a certificate thereof in form B in the 
schedule D. to this Act, or to the like effect, in the land titles office 
for the said district: 1915, c. 2, s. 27. 

Provided that the court or judge may, upon an ex parte applica- 
tion, shorten the said period of thirty days to such period as he 
shall specify in such order, and a copy of such order shall be served 
with the notice in this section referred to. 

. (2) Such certificate may be granted by the court or judge in 
which or before whom proceedings are instituted or by the clerk 
of, such court. 1907, c. 5, s. 17. Repealed and substituted 1915, 
c. 2, s. 27. 

In computing the statutory period, fractions of a day will not 
be counted. Clarke v. Moore, (1907) 1 Alta. L. E. 49, 8 W. L. E. 
405, 411. 

As to defect constituting ground for vacating registration, see 
Home v. Jenhyn, 6 D. L. E. 55. 

An owner's acceptance of the contractor's order given in return 
for the release of a materialman's lien operates as an accord and 
satisfaction of the materialman's claim, which cannot be re-awak- 
ened by the subsequent delivery of additional material and the 
filing of a fresh lien within the statutory period therefor. Wort- 
man v. Frid-Lewis Co., (1915) 9 W. W. E. 812. 

A certificate of the commencement of an action to realize a 
mechanics' lien, which states that " some title or interest is called 
in question in the following lands," (describing the lands as they 



264 THE LAW OF MECHANICS' LIENS IN CANADA. 

are set out in the statement of claim) " under the Mechanics' Lien 
Act of Alberta, is a sufficient compliance with -the requirements of 
this section, although it does not state that the action referred to 
was taken by the plaintiff to "realize his lien." Revelstoke Saw 
Mill Company v. Alberta, Bottle Company, (1915) 9 Alta. L. E. 
155. 

Failure to serve a statement of claim in a mechanics' lien 
action within six months after issue does not destroy the lien. 
Crowp, Lumber Co. v. Malcolm, 9 W. W. K. 481. 

36. When a registered lien shall be cancelled. — The registrar 
of the land registration district shall on receiving a certificate 
under the seal of the clerk of the court wherein any action in 
respect of any lien registered in the land titles office within the 
jurisdiction of such registrar is pending, stating the names of the 
lienholders, parties to such action, and that the amount due by the 
owner in respect of such liens has been ascertained and paid into 
court in pursuance of an order of such court or judge or that the 
property has been sold to realize such liens or that such lien has 
been improperly filed or that such lien has otherwise ceased to 
exist or, on receiving a statement in writing signed by the claim- 
ant or his agent that the lien has been satisfied, cancel all liens 
registered by such parties. 

37. Receipted pay rolls of woodman's wages must be produced. 

— Every person making or entering into any contract, 'engagement 
or -agreement with any other person for the purpose of furnishing, 
supplying or obtaining timber or logs, by which it is requisite or 
necessary to engage and employ workmen and laborers in the 
obtaining, supplying and furnishing such logs or timber as afore- 
said, shall before making any payment for or on behalf of, or under 
such contract, engagement or agreement, of any sum of money, or 
by kind, require such person to whom payment is to be made > to 
produce and furnish a pay roll or sheet of the wages and amount 
due and owing, and of the payment thereof, which pay roll or 
sheet may be in the form of schedule C annexed to this Act, or if 
not paid, the amount of wages or pay due and owing to all the 



- THE ALBEETA MECHANICS' LIEN ACT. 265 

workmen or laborers employed or engaged on or under such con- 
tract, engagement or agreement, at the time when the said logs 
or timber is delivered or taken in charge for or by or on 'behalf 
of the person so making such payment and Teceiving the timber 
or logs. 

The effect of this section and the two following sections is to 
constitute moneys owing to a contractor for getting out timber and 
logs a specific fund, on which the workmen have a lien for' wages, 
with an equitable as well as statutory legal remedy in regard 
thereto. Pomerleau v. Thompson, 16 D. L. E. 142, 27 ,W. L. R. 
254. 

38. Persons not requiring production of receipted pay roll shall 
be liable at suit of workman. — Any person making any payment 
under such contract, engagement or agreement without requiring 
the production of the pay roll or sheet as mentioned in section 3 7 
of this Act shall be liable at the suit of any workman or laborer so 
engaged under said contract, ' engagement or agreement for the 
amount of pay so due and owing to the said workman or laborer 
under said contract, engagement or agreement. 

39. Sums mentioned in pay roll as unpaid to be retained. — 

The person to whom such pay roll or sheet is given shall retain 
for the use of the laborers or workmen whose names are set out in 
such pay roll or sheet the sums set opposite their respective names 
which have not been paid, and the receipt or receipts of such laborers 
or workmen shall 'be a sufficient discharge therefor. 

40. Judges may make rules of court. — The judges of the said 
court, or any two of them, may make general rules and regulations 
not inconsistent with this Act for expediting and facilitating the 
business before such court under this Act and for the advancement 
of the interests of suitors therein. 

41. Construction of this Act. — Nothing in this Act contained 
shall be construed to affect any mechanic's lien filed or registered 
or the rights or liabilities of any person by or against whose 



266 THE LAW OF MECHANICS' LIENS IN CANADA. 

property any mechanic's lien- has 'been filed or registered prior to 
the coming into force of this Act; and all such liens may be 
enforced in the same manner as though this Act had not been 
passed. 

42. Repeal. — Save as herein provided. The Mechanics' Lien 
Ordinance of the North-West Territories and all amendments 
thereto are hereby repealed. 

SCHEDULE A. 

In the matter of The Mechanics' Lien Act and in the matter 
•of a lien claimed by . I, of 

Alberta, make, oath and say : 

1. That of claim a mechanic's 
lien against the property or interest hereinafter mentioned 
whereof residing at is owner. 

2. That the particulars of the work done or materials furnished 
are as follows: 

,3. That, the work or materials were finished, furnished or dis- 
continued on or about the day of 

4. That the said was in the employment 
of contractor for the work in respect of which 
the lien is claimed, for days after the above mentioned 
date. 

5. That the sum of dollars is owing to in 
respect of the same, and was or will be due on the day 
of . 

6. That the description of the property to be charged is as 
follows : 

Sworn at Alberta, this day of before 



me. 



1907, c. 5, s. 17. 



SCHEDULE B. 

(Repealed— 1907, c. 5, s. 17.) 



THE ALBEHTA MECHANICS' LIEN ACT. 



267 



SCHEDULE C. 
Pat Roll. 





g 
a 

s , 

Q 


Frem 5th Jan., 1891, to 10th 
Jan., 1891 (inclusive) 


Amount 
paid 


Date of 
pay- 
ment 


Received 


Name 


No. days 
employed 


Rate 
per 

day 


Total 
amount 
earned 


payment 
in full 


R. Roe .:. 




Six days 


S3.50 


$21.00 


S21-00 


12th 
Jan. 
1891 


R. Roe 









I hereby certify that the above statement is correct to the best 
of my knowledge and belief, and is made by me in compliance and 
in accordance with section 17 of The Mechanics' Lien Act, on 
account of (my contract to, or employment by, as the case may be) . 
(Here insert brief description of the work) for (owner's name) up 



to the_ 



day of 



19 . 
(Signed) 



Contractor. 



Dated 



day of 



19 



SCHEDULE D. 

Form A. 

To i: . 

Take notice that the mechanics' lien filed by you in the land 
titles office for the Alberta Land Registration Dis- 

trict on the , day of 19 , as D.B. No. shall 

be deemed to have lapsed according to the provisions of section 35 
of The 'Mechanics' Lien Act unless, within days from the 

date of service of this notice on you, you shall have taken proceed- 
ings in court to enforce such lien and shall' have caused a certifi- 
cate thereof to he filed as required by said section. 



268 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

Poem B. 

To the Registrar Alberta, 

. Land Registration District : ' 
This is to certify that proceedings have been taken in court to 
enforce a certain mechanic's lien filed by 

against • (here describe lands), which 

said lien was filed on the day of 19 , as D.B. 

No. 

(L.S.) 

Clerk of the Court. 
1915, c. 2, s. 27. 



THE BRITISH COLUMBIA MECHANICS' LIEN 

ACT. 

CHAPTEK 154. 

An Act Kespecting Liens of Mechanics, Wage-earners and 

Others. 

HIS MAJESTY, by and with the advice and consent of the 
Legislative Assembly of the Province of British Columbia, 
enacts as follows : — 

Shoet Title. 

1. Short title. — This Act may be cited as the " Mechanics' 
Lien Act." 1910, c. 31, s. 1. 

Interpretation. 

2. In the construction of this Act — 

"Contractor" — " Contractor " means a person contracting with 
or employed directly by the owner or his agent for the doing of 
work or service, or placing or furnishing material for any of the 
purposes mentioned in this Act; ./ 

" Sub-contractor." — " Sub-contractor " means a person not con- 
tracting with or employed directly by the owner or his agent for 
the purpose aforesaid, but contracting with or employed by the 
contractor, or under him by another sub-contractor, to do the whole 
or a certain portion of the work, or to place or furnish material, but 
a person doing manual or mental labor for wages shall not be 
deemed a sub-contractor; 

" Owner." — " Owner " means and shall extend to and include 
a person having any estate or interest, legal or equitable, in the 



270 THE LAW OP MECHANICS' LIENS IN CANADA. 

lands upon or in respect of which the work or service is done, or 
material is placed or furnished, at whose request and upon whose 
credit, or on whose behalf, or with whose privity or consent, or for 
whose direct benefit any such work or service is done, or material 
is placed or furnished, and all persons claiming under him whose 
rights' are acquired after the work or service in respect of which 
the lien is claimed is commenced or the material placed or furn- 
ished have been commenced to be furnished; 

"Laborer." — "Laborer" means and shall extend to and in- 
clude every mechanic, miner, artisan, builder, or other person 
doing labor for wages; 

" Person." — " Person " includes a body corporate, firm, part- 
nership, or association; 

" The judge." — " The judge " means the judge of the county 
court of the district in which the premises upon which the works 
or improvements are being carried, on are situate; 

" Works or improvements." — " Works or improvements " shall 
include every act or undertaking for which a lien may be claimed 
. under this Act ; 

" Material." — " Material " shall include every kind of movable 
property; 

" Wages." — " Wages " means money earned by a laborer for 
work done, whether by time or as piece-work; 

"Mortgage." — [See section 9, subsection (a), of this Act]. 
1910, c. 31, s. 2. 

As to distinction between "sub-contractor" and materialman 
see Coughlan v. Carper, (1914) 7 W. W. E. 457. 

Actual possession under a grant from the Crown, coupled with 
a statutory right to register the grant, and thereupon to become 
the owner in fee, creates an estate or interest upon which a me- 
chanics' lien may attach. Dorrell v. Campbell, 23 B. C. E. 500, 
32 D. L. E. 44, (1917) 1 W. W. E. 500. 



THE BBITISH COLUMBIA MECHANICS' LIEN ACT. 271 

The holder of a special timber license has no estate in the land 
itself chargeable under the Mechanics' Lien Act. Rafuse v. 
Hunter, (1906) 12 B. C. E. 126, 3 W. L. E. 381, but the holder of 
a working option on a mining claim comes within the definition 
of "owner" as he has an equitable estate. Anderson v. Godsall, 
(1900) 7 B. C. E. 404. See reference to this case in Scratch v. 
Anderson, (1900) 16 W. L. E. 145. See Fortim, v. Pound, 1 
W. L. E. 333. 

L. bought property from T. for $1,200, paid $50 down, balance 
to be 'payable immediately, and took possession and erected build- 
ings, etc. Plaintiff supplied lumber for these and claimed lien 
against L. and T. It was held, following Anderson v. Godsall, 
7 B. C. E. 404, that the lien only extended to the equitable inter- 
est of L., and that claim against T. should be dismissed. B. C. 
Timber and Trading Go. t. Leberry, (1902) 22 C. L. T. 273. 

A lien for material cannot exist unless expressly created by the 
statute. Albion I. Works v. A. O. U. W., (1895) 5 B. G, E. 122, 
note. 

It cannot be said merely because one of several " owners " has 
knowledge of work being done on their property, that .the work is 
done at their " request and upon their credit " or .with their 
" privity and consent" or " for their direct benefit." Isiit v. 
Merritt Collieries, (1920) 1 W. W. E. 879. 

3. Act not to apply to public street. — Nothing in this Act 
shall extend to any public street or highway, or to any work or 
improvement done or caused to he done by a municipal corporation 
thereon. . 1910, c. 31, s. 3. 

See Vannatta v. Uplands, (1913) 25 W. L. E. 85, cited under 
section 6. post. 

4. Contracting out by laborer forbidden. — (1) Every agree- 
ment, verbal or written, express or implied, on the part of any 
laborer or other person employed in any kind of manual labor, 
intended- to be dealt with in this Act, that this Act shall not apply, 
or that the remedies provided by it shall not be available for the 
benefit of such person, shall 'be null and void. 



372 THE LAW OF MECHANICS' LIENS IN CANADA. 

(2) Exception. — This section shall not apply" to a manager, 
officer, or foreman, or to any other person whose wages are more 
than five dollars per day. 1910, c. 31, s. 4. 

5. Husband to be deemed wife's agent. — Where work or service 
is done or material is furnished upon or in respect of the land 
of a married woman, with the privity and consent of her husband, 
he shall be conclusively presumed to be acting as well for himself 
so as to bind his own interest, and also as her agent for the pur- 
poses of this Act, unless before doing such work or service, or furn- 
ishing such material, the person doing or furnishing the same 
shall have had actual notice to- the contrary. 1910, c. 31, s. 5. 

See Laurrence v. Landsberg, (1910) 14 W. L. E. 477. See also 
notes under corresponding section of Ontario Act. 

Nature of Liens. 

6. Mechanics, miners, contractors, materialmen, and others to 
have lien. — Unless there, is an agreement in writing to the con- 
trary, signed 'by such person, and in that ease subject to the pro- 
visions of section 4, every person — 

(1) Who, does work or service or causes work or service to be 
done upon, or places or furnishes any material to be used in 
the making, constructing, erecting, altering, or repairing, 
■either in whole or in part of, or adding to, any erection, 
building, railway, tramway, road, bridge, trestle-work, 
wharf, pier, mine, quarry,, well, excavation, embankment, 
sidewalk, sewer, drain, ditch, flume, tunnel, aqueduct, dyke 
or other work, or the appurtenances to any of them, or 
improving any street, road, or sidewalk adjacent thereto, 
for any owner, contractor, or su'b-contractor, or who does 
such work, or causes such work to he done, and places or 
furnishes any such material; or 

(2) Who does such work or service, or causes work or service 
to be done, or places or furnishes any material for or in 
respect of clearing, excavating, filling, grading, or ditching 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 273 

any land for any owner, contractor, or sub-contractor, or 
who does such work, or causes such work to he done, and 
places or furnishes any such material, — 

shall, by virtue thereof, have a lien for the price of such work, 
service, or material, or work, service and material, upon — 

(a) Said erection, building, railway, tramway, road, bridge, 
trestle-work, wharf,, pier, mine, quarry, well, excavation, 
embankment, sidewalk, sewer, drain, ditch, flume, tunnel, 
aqueduct, dyke, or other work, and the appurtenances to 
any of them; 

(b) The materials so placed or furnished for said works or 
improvements ; 

(c) The lands occupied or benefited thereby or enjoyed there- 
with, or upon or in respect of which such work or service 
is done, or upon which such material is placed or furnished 
to be used : 

Notice of lien for material to be given. — Provided that no lien 
for material supplied shall attach or be enforced unless the person 
placing or furnishing the same shall, before delivery, or within 
ten days thereafter, give notice in writing of his intention to claim 
such lien. Such notice shall be given to the owner or his agent, or 
to such person and in such manner as the judge may, on summary 
application, order. Such notice may be given in respect of any 
specific delivery, or in respect of all deliveries of material made 
within ten days <prior to such notice, and all deliveries subsequent 
thereto. Such notice may fee in the form or to the effect of 
Schedule A to this Act. 1910, c. 31, s. 6. 

The word " delivery " in this section means actual physical 
delivery, and a lien does not attach under the above proviso for 
material furnished more than ten days before the notice, although 
other material also included in the notice was supplied within the 
ten days for the same work. Bat Portage Lumber Co. v. Watson, 
(1912) 10 D. L. E. 833, 17 B. C. E. 489. 

MX. — 18. 



274 THE LAW OF MECHANICS' LIEN'S IN CANADA. 

A subcontractor who not only supplies material, but works it 
into the building, is not obliged to give notice to the owner of- the 
material supplied, in order to make his claim for a lien valid in 
respect of the material. This section applies only to a material- 
man. Irvin v. Victoria Home Construction and Investment Com- 
pany, Limited, 18 B. C. E. 318; Fitzgerald v. Williamson, 18 B. 
C. E. 322. See Ferrara v. National Surety, (1916) 34 W: L. K. 697. 

One who makes the excavation for the foundation of a building 
is entitled to a lien. Turner v. Fuller, (1913) 12 D. L. E. 255. 

Property held by public school, trustees for school purposes is 
liable to mechanics' liens. Hazel v. Lund, (1915) 9 W. W. E. 749. 
See conflicting eases cited under Ontario Mechanics' Lien Act, sec- 
tion 4, post. 

An agreement for the sale of land which contains a covenant 
binding the purchaser to erect certain works on the land at a 
certain cost and contains a covenant by the vendor, the owner, to 
remit a specified amount from the purchase-price on the completion 
of said undertaking, is such a request in writing as gives a me- 
chanics' lien arising from the erection of the works general appli- 
cation, and, therefore, the lien is not restricted to the increase in 
value of the premises by reason of such works. British Columbia 
Granitoid', etc., Co. Ltd. T. Dominion Shipbuilding, Engineeri/ng 
and Dry Dock Co., (1918) 2 W. W. E. 919. The defence that 
nothing is payable by the owner to the contractor must be raised in 
the dispute note, and tbe onus is on the owner to show that nothing 
is due. Brown v. Allan, 18 B. C. E. 326. 

A squatter on Crown land who accepts work and materials ap- 
plied to the erection of a building thereon, holds himself out to be 
the " owner " of the land, and will be regarded as having" an 
" interest " in the land. Macdonald v. Hartley, ( 1918) 3 W. W. E. 
910. 

The Land Act, which vests in the holder of a special timber 
license all rights of property in all trees, timber and lumber cut 
within the limits of the license during the term thereof, does not 
give any estate in the land itself chargeable under, the Mechanics' 
Lien Act. Bafuse v. Hunter, 12 B. C. E. 126. 

Sections creating the right to a lien are strictly construed, but 
provisions dealing with procedure on the enforcement of the lien 
should be liberally construed. Nolls v. C. P. B., 6 0. "W. W. E. 759. 



THE BEITISH COLUMBIA MECHANICS' LIEN ACT. 275 

A laborer who worked for a contractor who was employed to 
clear a quantity of land for the purpose of cultivation has no lien 
under this Act. Black v. Hughes, (1902) 22 C L. T. 220. As to 
contract for clearing land, see Beseloff v. The White Bock Resort 
Development Co.,. (1915) 22 B. C. B. 33. 

As to notice, see Coughlan v. National, (1909) 11 W. L. E. 202, 
491; Sayward v. Dunsmuir, (1905) 2 W. L. E. 319. As to appro- 
priation of payment on account, see British Columbia Mills, etc., 
Co. v. Horrobin, (1901) 12 B. 0. E. 426, 5 W. L. E. 275; Lemon 
v. Dunsmuir, (1907) 5 W. L. E. 505. 

•Where sub-contractors completed their work, as they thought, 
but upon a test it was ascertained that the work could not effectively 
serve the purpose for which it was intended, and after an unavoid- 
able delay of several months, further work was done to increase 
the efficiency of the earlier work, it was held that this later work 
was substantial work, and not work that could be described as 
being done to remedy slight defects, and the sub-contractors hav- 
ing acted in good faith, the lien was registered in time. Whimster 
v. Crow's Nest Pass Coal Co., (1910) 13 W. L. E. 62-1. See Sqy- 
ward v. Dunsmuir, (1908) 2 W. L. E. 319. 

As to work done after acceptance of building and after final 
certificate of architect, see Lawrence v. Landsberg, (1910) 14 W. 
L. E. 477. As to attempt of sub-contractor to preserve lien after 
time for filing lien had expired, see Sheritt v. McCallum, (1910) 
12 W. L. E. 637. 

Where the land is misdescribed the court will not give leave to 
amend. Bafuse v. Hunter, 12 B. C. E. 126. But an error in 
naming the owner of the lands is not sufficient, to prevent the 
instrument claiming the lien from shewing " substantial compli- 
ance " under, section 17. Nobbs v. C. P. R., 6 W. W. E. 759. 

Under the sections of the Mechanics' Lien Act, relating to 
woodmen's wages, a person by requiring only the production of 
the pay-roll is not relieved of liability to the workmen for the. 
amounts due them from the contractor; he must have produced 
to him a receipted pay-roll, showing that the wages were actually 
paid by the contractor. Young v. West Kootenay Shingle Co., 
(1905) 11 B. C. E. 171, 1 W. L. E. 184. 

Whether material is supplied in good faith for the purpose 
of completing a contract, or as a pretext to revive a right to file 
a lien, is a question of fact for the trial judge, and his decision 



276 THE LAW OF MECHANICS' LIENglN CANADA. 

as to such fact should govern. Sayward v. Dunsmuir, (1905) 11 
B. C. E. 375, 2 W. L. B. 319. As to implied request of owner, see 
Fortin v. Pound, (1905) 1 W. L. E. 333. 

The lien of a sub-contractor will attach when he has completed 
his contract, or if the contract provides for progress payments on 
account, a lien would attach for the amount of each instalment 
as it became due; and in the absence of evidence that either the 
whole or some part of the contract price was due or payable to the 
sub-contractor at the time of payment by the owner to the princi- 
pal contractor of the only sum which accrued due to the latter 
before his abandonment of the contract, the sub-contractor cannot 
rely upon such payment to establish his lien. Nepage v. Pinner, 
21 B. C. E. 81, 21 D. L. E. 315, 8 W. W. E. 322, 30 W. L. E. 720. 
See also Turner v. Fuller, 18 B. C. E. 69, Rosio v. Beech, 18 B. C. 
B. 73 ; Braden v. Brown, 24 B. C. E. 374. 

Whether authority has been conferred on an agent is a question 
of fact, and such authority may be inferred by acts of recognition. 
Sayward v. Dunsmuir., 11 B. C. E. 375. 

In an action by the assignee of an architect against the owner, 
the latter's objection that the architect had not posted upon the 
buildings or delivered to the owner a receipted pay-roll showing 
payment of the wages of the foreman, draftsman, and other 
employees of the architect, in compliance with s. 15 of the Me- 
chanics' Lien Act, not being raised in the pleadings and no evi- 
dence being given upon it, the owner could not avail herself of this 
defence. Sickler v. Spencer, (1911) 19 W. L. E. 557. In this, 
action it was held upon the evidence that there was such a substan- 
tial performance of the contract of the architect as to entitle him 
or his assignee to a lien, although a trifling part of the material 
contracted for had not been supplied by one of the contractors at 
the time he received his final certificate from the architect. Sickler 
v. Spencer, (1911) 19 W. L. E. 557. 

The Act is not so broad in its scope as to charge one lot for 
services rendered upon another lot because the person rendering 
the service upon each lot did so under an indivisible contract. 
Barr & Anderson v. Percy <& Co., (1912) 21 W. L. E. 236. See 
Lee v. Hill, (1909) 11 W. L. E. 611 (Man.) ; Fairclough v. Smith, 
(1901) 13 Man. L. E. 509. 

Where part of a claim is for materials and part for labor, the 
particulars stated in the affidavit for lien being " the putting in 



THE BEITISH COLUMBIA MECHANICS' LIEN ACT. 277 

bath tubs, wash tubs, hot and cold water connections, all neces- 
sary pipes, boiler and hot water furnace and waste pipes, $220," 
were held insufficient as including two classes (Davie, C.J., dis- 
senting). Weller v. Shupe, (1897) 6 B. C. E. 58. Where the two 
classes of charges for labor and for materials are so mingled, the 
contract being entire, that they cannot be determined respectively, 
there is no lien for either. Gogin v. Walsh, (1878) 124 Mass. 
516; Clark v. Kingsley, (1864) 8 Allen (Mass.) 543; Driscoll v. 
Hill, (1865) 11 Allen (Mass.) 154. 

As to defective work and unreasonable usage, see Allen v. 
Deane, (1910) 14 W. L. E. 622. 

A lien for materials cannot exist unless expressly created by 
the statute. Albion I. Works v. A. 0. U. W., (1895) 5 B. : C. E. 
122, note. A lien may be enforced upon a quantum meruit. 
Fuller v. Beach, (1912) 21 W. L. E. 391. 

The true tenor and intent of the instrument claiming a 
mechanics' lien is a claim of a lien upon certain specified land and 
not a claim of lien upon the estate or interest in the lands of cer- 
tain named persons. Nohbs v. C. P. B., 6 W. W. E. 759. 

The right to a declaration of a lien is wholly statutory, and is 
enforceable only in the manner provided by the statute and the 
Act is not broad enough to charge one lot for services rendered 
upon another lot, because the person rendering the service upon 
each lot did so under an indivisible contract, Barr & Anderson v. 
Percy & Go., (1912) 21 W. L. E. 236. 

The doctrine of substantial performance has no place in Can- 
adian jurisprudence. McDonald v. Simons, 15 W. L. E, 218; 
Brydon y. Lutes, (1891) 9 Man. L. E. 471; Merriam v. Public 
Parks Board, (1912) 22 Man. L. E. 107; Smith v. Bernhart, 
(1909) 11 W. L. E. 623. But see later Canadian eases cited under 
section 4 of Ontario Act, post. 

As to appropriation of payments on account, see B. G. Mills v. 
Horrobm, (1907) 12 B. C. E. 426. 

As to notice to owner's agent see Coughlin v. National Con- 
struction Co., (1909) 14 B. C. E. 339. 

No lien can be claimed against a railway under the control of 
the Dominion Government. Larsen v. Nelson and F. S. By., ■ 
(1895) 4 B. C. E. 151. See observations in respect to lien legisla- 
tion as applied to railways, in chapter entitled " Property which 
may be subject to lien," ante. 



278 THE LAW OE MECHANICS' LIENS IN CANADA. 

A person who has delivered material to be used in the con- 
si ruction and improvement of a place, 1 although the place of 
delivery is upon the land, is not a person who has done work or 
service upon the premises. Vannatta v. Uplands, Limited, 
(1913) 25 W. L. E. 85. But where claimants supplied teams 
of horses, waggons and drivers to the contractor for hauling 
sand, gravel and earth, upon the property, for which they , were 
paid so much per day, and these teams, waggons and drivers were 
subject to the contractor's foreman, and did only what work he 
required of them, such claims should be allowed. Vannata v. 
Uplands, Limited, supra. 

An action to enforce a mechanics' lien is not an action for 
" any kind of debt " but is for penalty or forfeiture. Dillon v. 
Sinclair, (1900). 7 B. C. E. 328. 

A lienholder is entitled in preference to holders of equitable 
assignments from the contractor. Johnson v. Braden, (1887) 1 
B. C. B., part 2, p. 265. 

Defendant employed contractor under written contract to clear 
land for cultivation purposes. Laborer who worked for contractor 
in clearing the land held not entitled to lien. Black v. Hughes, 
(1902) 22 C. L. T. 220. 

The Act does not give a lien for cooking. Anderson v. Godsal, 
7 B. C. E. 404. . 

There is no lien in respect to the cost of. preparing for work 
to be done upon a site, although such work has been frustrated 
without fault of the contractor. B. C. Granitoid Co. v. Dominion 
Shipbuilding Co., (1918) 2 W. W. E. 919. 

Mechanics' liens were filed against mining claims and judg- 
ment recovered on them in the County Court. On the same day 
a winding-up order was made in the Supreme Court. Subse- 
quently the liquidator obtained an order to give first lien on 
property in order to get funds to take out Crown grants. The 
lienholders were not notified of this application and did not 
appear. They did not appeal, but applied for leave to enforce 
their judgment in priority to charge given by liquidator. Held, 
thai; liquidator's order was made without jurisdiction and that lien- 
holders were not bound by it. Re Ibex Mining and Development 
Co., (1902) 9 B. C.'E. 557. 

Plaintiff was employed by Green as a logger. Green had a 
contract with defendant company. In an action to enforce 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 279 

mechanics' lien for wages it appeared that prior to this action 
plaintiff and sixteen others obtained a judgment against Green 
under the Woodman's Lien Act for gross amount of their wages 
and had seized the logs and sold. Held, that they could not get 
another judgment, under the Mechanics' Lien Act for the same 
claim. Wake v. 0. P. Lumber Co., (1901) 8 B. C. E. 358. 

, The defendants, the contractors, had a contract with the de- 
fendants, the owners, to make streets, boulevards, and sewers in a 
tract of land of several hundred acres, which was being sub- 
divided for residential purposes, and mechanics' liens were as- 
serted by several persons, who had done work for the contractors 
in making these streets, boulevards and sewers. It was held that 
the streets were not to be regarded as public highways, and lien- 
claimants were not precluded by section 3, ante. The streets were 
not dedicated to the public before completion. Vannatta v. Up- 
lands, Limited, (1913) 25 W. L. B. 85. 

As to the general law relating to the question of what consti- 
tutes "fixtures," see Dominion Trust Co. v. Mutual Life Assce. 
Co. of Canada, (1918) 26 B. C. B. 237. 

Where the contractor also supplies the materials, and no notice 
of claim is filed by any materialman within the statutory period, 
the conditions of this section as to notice, do not apply to the con- ■ 
tractor. Gidney v. Morgan, 16 B. C. E. 18. 

The word " owner " in the Mechanics' Lien Aqt does not neces- 
sarily mean registered owner. National Mortgage Co. v. Rolston, 
(1915) 8 W. W. E. 630. 

A person who accepts an order from a contractor for struc- 
tural steel to be used in the construction of a building, fashions it 
at his factory to meet specified requirements, and delivers it so 
made ready at the building site, but takes no part in the construc- 
tion thereof, is a " materialman " only ; his status is not affected 
by the fact that he expended labor on the material before delivery. 
He is bound, therefore, to give the notice prescribed by this sec- 
tion, and, in order to preserve his lien, to file his claim within 31 
days after the last delivery of material, as prescribed by section 19, 
post. J. Coughlan & Sons v. John Carver & Company, 20' B. C. 
E. 497. 

There is no waiver of a lien upon a certain lot where a form of 
waiver as to that lot had been signed without consideration and 
by mistake. Palfrey v. Brown, 31 W. L. E. 535. 



280 THE LAW OF MECHANICS' LIENS IN CANADA. 

The plaintiff, in pursuance of an agreement, having done work 
and supplied material in connection with the construction of a 
building, brought action to enforce a lien. He gave no notice of 
his intention to obtain a lien, but he was able to segregate the 
amount due for labor from the value of the material supplied. In 
such case he is a person who " does such work or causes such work 
to be done," within the meaning of this section; and even if his 
claim for materials failed, there was no reason why he should not 
succeed for work done. Brown v. Allen & Jones, 18 B. C. E. 326. 

Where a materialman has contracted to supply all of a certain 
class of supplies required in the construction of a particular build- 
ing, as mentioned in the specifications, and the materialman sup- 
plied not only the goods which are mentioned in the specifications, 
but further, materials which were contemplated by his contract as 
extras or additions, for the amount of which the fixed price was 
subject to increase, the lien' for the entire bill is not lost by the 
lapse of the statutory period for filing liens between the last de- 
livery of that portion of the goods, the class and quantities of 
which were shown in the specifications, and the later delivery of 
the extras ; the lien in such case is in time if filed within the statu- 
tory period following the last delivery of extras. Flett v. World 
Construction, 15 D. L. B. 628, 19 B. C. E. 73, 26 W. L. E. 612. 

The lien for work done in clearing a townsite consisting of 
several tracts extends to the whole land benefited by the work 
within, the meaning of section 6 (c), except whatever may be ex- 
cluded from it by section 3, as being " a public street or highway. 
Beseloff v. White Bock, etc., 22 B. C. E. 33, 23 D. L. E. 676. 

A workman is entitled to a lien upon the part of a sewer, ex- 
tending below low water mark into the ocean, upon which he 
worked. Baker v. Uplands, (1913) 24 W. L. E. 768. 

To -bring an action under the Mechanics' Lien Act, as in any 
other case, a cause of action must have arisen. In the case of a 
contract containing conditions precedent to payment, no action 
can be brought to enforce a lien alleged to arise out of labor per- 
formed and materials supplied under such contract until the con- 
ditions have been complied with. Champion and White v. The 
World Building, 20 B. C. E. 156. 

The lien upon a mine is a lien on the mine itself and not on 
any fund arising from the sale of ore extracted from the mine. 
Law v. Mumford, 14 B. C. E. 233. 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 281 

An architect is not entitled to a mechanics' lien for preparing 
plans, and where a lump sum is to be paid for preparing plans and 
for superintendence he is not entitled to a lien for any amount. 
Fripp v. Clark, 18 B. 0. R. 216. But see decisions cited under 
Ontario Mechanics Lien Act, section 4, post. 

A sub-contractor has a lien on the interest of his principal 
acquired through his (the principal's) lien. Nobis v. C. P. R., 
6 W. W. E. 759. 

7. Amount to which lien is limited; — The amount of such lien 
ghall not exceed the sum actually owing to the person entitled to 
the lien, and distribution of any moneys derived from the realiza- 
tion of the liens shall be made in accordance with section 36 of 
this Act. 1910, c. 31, s. 7. 

8. Owner's liability as to wages unpaid by contractor. — With 
the exception of liens in favor of laborers for not more than six 
weeks' wages, no lien shall attach so as to make the owner liable 
for a greater sum than the sum payable by the owner to the con- 
tractor : 

Provided that this clause shall not be construed to apply to liens 
under section 11 hereof. 1910, c. 31, s. 8. 

Where upon default of a contractor, a building owner takes over 
the work under the provisions of the contract, in effect becoming 
the contractor's agent for that purpose, the full balance of the 
contract price must, as between the building owners and lien- 
holders, be treated ■ as still owing by the owners to the contract. 
Hazel v. Lund, (1915) 9 W. W. R. 749; 22 B. C. R. 264. 

The lien of a sub-contractor will attach when he has completed 
his contract, or if the contract provides for progress payments on 
account, a lien would attach for the amount of each instalment as 
it became due ; and in the absence of evidence that either the whole 
or some part of the contract price was due or payable to the sub- 
contractor at the time of payment by the owner to the principal con- 
tractor of the only sum which accrued due to the latter before his 
abandonment of the contract, the sub-contractor cannot rely upon 
such payment to establish his lien. Nepage v. Pinner, (1915) 21 
D. L. R. 315. See also Turner v. Fuller, 12 D. L. R. 255, 18 
B. C. R. 69, and Rosio v. Beech, 9 D. L. R. 416, 18 B C. R. 73. 



282 THE LAW OF MECHANICS' LIENS IN CANADA. 

School property may be the subject of a mechanics' lien. 
Hazel v. Lund, 22 B. C. E. 264, 25 D. L.' E. 204. 

A defence under this section, that no money is payable by the 
owner to the principal contractor, must be pleaded in the dispute 
note filed in an action brought by a sub-contractor to enforce a 
lien for the balance due to him by the principal contractor. Fitz- 
gerald v. Williamson, 12 D. L. E. 601, 18 B. C. E. 322. See also 
Brown v. Allen, 18 B. C. E. 326. 

9. Liens on mortgaged premises. — Where works or improve- 
ments are put upon mortgaged premises, the liens, by virtue of 
this Act, shall be prior to such mortgage as against the increase in 
value of the mortgaged premises by reason of such works or im- 
provements, but not further, unless the same is done at the request 
of the mortgagee in writing; and the amount of such increase 
shall be ascertained upon the basis of the selling value upon tak- 
ing of the account, or by the trial of an issue as provided in 
section 31 hereof, and thereupon the judge may, if he shall con- 
sider the works or improvements of sufficient value to justify the 
proceedings, order the mortgaged premises to be sold at an upset 
price equal to the selling value of the premises immediately prior 
to the commencement of such works or improvements (to 'be as- 
certained as aforesaid), and any sum realized in excess of such 
upset price shall be subject to the liens provided for by this Act. 
The moneys equal to the upset prices as aforesaid shall be applied 
towards the said mortgage or mortgages, according to their priority. 
Nothing, however, in this section shall prevent the lien from at- 
taching upon the equity of redemption or other interest of the 
owner of the land subject to such mortgage or charge : 

(a) Interpretation of "mortgage.'' — "Mortgage" in this sec- 
tion shall not include any part of the principal sum. secured thereby 
not actually advanced to the borrower at the time the works or im- 
provements are commenced, and shall include a vendor's lien and 
an agreement for the purchase of land; and for the purposes of 
this Act, and within the meaning thereof, the purchaser shall be 
deemed a mortgagor, and the seller a mortgagee. 1910, c. 31, s. 9. 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 283 

This section was amended by section 40 of the Acts of 1917, 
post. 

The provisions of this section do not give relief to lienholders 
as against prior mortgagees, unless, from the proceedings at the 
trial, the increase in the value of the mortgaged premises can be 
ascertained. Lienholders for work consisting entirely of -the taking 
out of ore from a mine cannot, except when it is strictly develop- 
ment work, enforce their liens as against a prior mortgagee. 
Anderson v. Kootenay Gold Mines, Ltd., 18 B. C. E. 643. 

Mechanics' liens had been filed against the property of a com- 
pany and judgment recovered in respect to them in the County 
Court. On the same day as the judgment a winding-up order was 
made in the Supreme Court. Subsequently the liquidator obtained ' 
an order authorizing him to give a first charge on the property of 
the company in order to raise money to take out certain Crown 
grants of property to which the company was entitled. The lien- 
holders had no notice of the application, and did not appear on 
the hearing. They did not appeal, but applied for leave to enforce 
their judgment in priority to the charge created by the liquidator 
under the order of court. Held, that the order was made without 
jurisdiction, and the lien-holders were not bound by it. Be Ibex 
Mining and Development Co., (1902) 9 B. C. B. 557. 

Under this section the value of the property before the lien 
attached is to be taken for the purpose of fixing the upset price, for 
which the lienholder would have priority over a mortgagee as 
against the increase in value of the mortgaged premises by reason 
of the work and improvements. Champion & White v. The World, 
22 B. C. E. 596, 27 £). L. E. 506, 34 W. L. E. 317, 10 W. W. E. 
470. 

A covenant in the plaintiffs' mortgage, entitling them to pay 
" liens, taxes, rates, charges or encumbrances " affecting the mort- 
gaged lands and adding them to the mortgage debt, did not en- 
title them as against defendants, subsequent mortgagees, to add 
to their mortgage debt amounts used to pay off mechanics' liens of 
later date than the registration of defendants' mortgage, and as 
to which there had been no adjudication establishing priority to 
defendants' mortgage through increase in value of the premises 
under this section. The meaning of such covenant must be con- 
fined to the payment of liens which affect the plaintiffs' interest 
in the property. A lien filed prior to plaintiffs' mortgage came 



284 THE LAW OF MECHANICS' LIENS IN CANADA. 

within such covenant and the amount used to pay off same could be 
added to plaintiffs' claim. Great West Permanent Loan Company 
v. National Mortgage Company, (1919) 1 W. W. E. 788, 47 D. L. 
E. 751. 

The claim of a mortgagee in respect of advances made subse- 
quently to the commencement of the work done by lienholders is 
postponed to the rights of the lienholders. The mortgagee as a 
subsequent incumbrancee might have been entitled to be given an 
opportunity, in the lien action to redeem the lienholders had it 
applied for registratioh at once, but having neglected to do so until 
after the sale of the land in question, any such right has been lost. 
National Mortgage Co. v. Eolston, 59 Can. S. C. E. 219, 49 D. L. 
E. 567, affirming 23 B. C E. 384, (1917) 1 W. W. E. 494. 

10. Owner deemed to have authorized works. — All works or 
improvements mentioned in section 6 of this Act constructed upon 
any lands with the knowledge, but not at the request, of the owner, 
or his authorized agent, or the person having or claiming any 
interest therein, shall be held to have been constructed at the 
instance and request of such owner or person having or claiming 
any interest therein: Provided this section shall not apply to any 
works or improvements done after there , has been posted, on at 
least two conspicuous places upon 'said land, or upon the works 
or improvements thereon, by authority of such owner or person, a 
notice in writing that he will not be responsible for such works or 
improvements, or after actual notice in writing to the above 
effect has reached the person claiming a lien under the provisions 
of this Act. 1910, c. 31, s. 10. 

This section in its present amended form has overcome the de- 
cision in Anderson v. Godsal; 7 B. C. E. 404, the words " and 
request" having been added after the words "constructed at the 
instance." See Vermess v. Stoddard, (1915) 9 W. W. E. 832. 

This section does not apply to any case already provided for 
by section 6, but only applies where the actual owner had not 
authorized the works or improvements, which were authorized by 
the supposed owner, the actual owner standing by, and allowing 
the work to be done in order to take advantage of it. The govern- 
ing phrase in section 6 is " at the request of the owner." The holder 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 285 

of a working option comes within the definition of " owner," as 
he has an equitable estate. Anderson v. Godsall, (1900) 7 B. C. B. 
404. Irving, J., dissented in this case and held that this section 
(or rather a former section corresponding to this one) incorpor- 
ated the words of section 6 as to " other improvements," and there- 
fore included " excavating land in respect to a mine," and was 
therefore applicable in the case of work done on a mining claim 
which appears, from the agreement, to have been done for the 
direct benefit of the owner, and subject to the inspection of his 
engineer. See Scratch v. Anderson, (1910) 16 W. L. E. 145, con- 
cerning the case of Anderson v. Godsall, (1900), 7 B. C. E. 404. 

In an action to enforce a lien where the owner of the property 
did not contract for the work or improvements, it is incumbent 
upon the plaintiff to shew that the owner had knowledge of. such 
work or improvements. Bakery. Williams, (1916) 23 B. C. B. 124. 

A miner may enforce a mechanics' lien against a mineral claim 
which has not been Crown granted. Venness v. Stoddard, 9 W. 
W. E. 832. 

11. Owner's liability for works on premises held under option. 

— Notwithstanding anything in the last preceding section con- 
tained, all works or improvements mentioned in section 6. of this 
Act placed upon 'premises held under option or working bond 
where the grantee of the option is required or permitted by the 
grantor of such option to make works, or improvements thereon, 
shall, for the purpose of creating a lien, be held to have been con- 
structed at the instance and request of the owner of such premises, 
and the grantor of such option and the liens by virtue of this Act 
shall attach and be enforceable against the interest 'both of the 
owner of the said premises and the grantor of such option. 1910, 
c. 31, s. 11. 

A miner may enforce a mechanics' lien against a mineral claim, 
which has not been iQrown granted. 

An option (mining) or working bond can be distinguished from 
an agreement of sale, in that in the former, the vendor looks to 
payment from whatever ore may be extracted from the mine and 
not to the vendee's covenant for payment. Venness. v. Stoddard; 
(1915), 9 W. W. E. 832. 



286, THE LAW OF MECHANICS' LIENS IN CANADA. 

12. Insurance moneys. — Where any of the property upon which 
a lien is given by this Act is wholly or partly destroyed by fire, 
any insurance receivable thereon by the owner, prior mortgagee, or 
chargee shall take the place of the property so destroyed, and shall, 
after satisfying any prior mortgage or charge in the manner and 
to the extent set out in section 9 of this Act, be subject to the 
claims of all persons for liens to the same extent as if such moneys 
were realized by the sale of such property in action to -enforce a 
lien. 1910, c. 31^ s. 12. 

13. Lienholder may demand particulars of contract. — Any lien- 
holder or person entitled to a lien may at any time demand of the 
owner, or his agent, the terms of the contract or agreement with the 
contractor for and in respect of which the work is done or material 
is furnished or placed, and a statement of the amount due or 
unpaid thereunder ; and if such owner or his agent-^ 

(a) Does not at the time of such demand, or within a reason- 
able time thereafter, inform the person making such de- 
mand of the parties to and general terms of sueh contract 
or agreement, and the amount due or unpaid on such 
contract or agreement; or 

(b) Intentionally or knowingly falsely states the terms of such 
contract or agreement, or the amount due and unpaid 
thereon ; 

and if the person claiming the lien sustains loss by reason of such . 
refusal, or neglect, or false statement, such owner shall be liable 
to him in an action therefor to the amount of such loss. 1910, 
c. 31, s. 13. 

14. Owner may demand particulars from lienholder. — Any 

owner or other person who may be liable for the payment therefor 
may at any time demand from any contractor or sub-contractor 
performing work, or person who has given notice that he intends to 
claim a. lien for materials, the terms of and parties to any contract 
or agreement under which he is performing work or placing or 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 287 • 

furnishing material, and a statement of account under same to 
the date of such demand ; and if such contractor, sub-contractor, or 
person, or his agent-^- 

(a) Does not at the time of such demand, or -within reasonable 
time thereafter, inform the person making the demand of 
the terms of such contract or agreement, and the amount 
due or unpaid on such contract or agreement, and furn- 
ish the account as demanded; or 

(b) Intentionally or knowingly falsely states the terms of such 
contract or agreement, or the amount due or unpaid 
thereon, or furnishes a false account; 

and if the owner or person making such demand sustains loss by 
reason of such refusal, neglect, or false statement, such contrac- 
tor, sub-contractor, or person shall be liable to him in an action 
therefor to the amount of such loss, and, in any event, the lien 
of such contractor, subTContractor, or person shall be limited by 
the statement given or furnished. 1910, c. 31, s. 14. 

15. Receipted pay-rolls to be posted on works. — No owner 
shall 'be required to make any payment to any contractor or sub- 
contractor in respect of any contract where the contract price 
exceeds five hundred dollars until such contractor, or sub-contractor, 
or some person in charge of the works or improvements shall post 
upon the works or improvements a copy of the receipted pay-roll 
from the hour of twelve o'clock noon to the hours of one o'clock p.m., 
on the first legal day after pay-day, and shall have delivered to the 
owner, or other person acting on his behalf, the original pay-roll 
containing the names of all laborers and persons placing or furn- 
ishing materials who have done work, or placed or furnished ma- 
terial for him upon such works or improvements, with a receipt 
in full from each of the said laborers and persons placing or 
furnishing material with the amounts which were due and had 
been paid to each of them set opposite their respective names, 
which pay-roll may be in the form of Schedule B hereto, or until 



■ 288 THE LAW OF MECHANICS' LIENS IN CANADA. 

the time for filing liens in respect of such works or improvements 
shall have expired; and no payment made by the owner without 
the delivery of such pay-roll shall be valid for the purpose of de- 
feating or diminishing, any lien upon such property, estate, or 
interest in favor of any such laborer or person placing or furnishing' 
material. 1910, c. 31, s. 15. 

A contractor building a house under a profit sharing arrange- 
ment with his helpers, on completion of the work, not having any 
wages to pay is not subject to the provision for the posting of a 
receipted pay roll. Gidney v. Morgan, (1910) 16 B. C. E. 18. 

An objection alleging non-compliance with a provision some- 
what similar to the one in this section in regard to posting upon, 
the buildings and delivering to the owner a receipted pay-roll, is not 
available unless it has been raised in the pleadings and evidence 
has been given of the fact. Sichler v. Spencer, (1911) 19 W. 
L. B. 557. See Young v. West Kootenay Shingle Co., (1905) 11 
B. C. E. 171, 1 tV. L. E. 184. 

The failure of the contractor to keep a pay-roll as required by 
this section, prevents any one from bringing an action against the • 
owner for payment. This section does not prevent a sub-contractor 
from filing a lien. Irvin v. Victoria Home, etc., Co., 18 B. C. E. 
318. 

A sub-contractor is not .entitled to take advantage of the fail- 
ure by the owner to obtain duly receipted pay-rolls under this sec- 
tion. A sub-contractor at a lump sum for painting work, includ- 
ing the supply of the necessary 'materials for that purpose, is not a 
" laborer " nor " person placing or furnishing materials." Rosio 
v. Beech, 18 B. C. E. 73. 

16. Assignment by contractor not to defeat lien. — No assign- 
ment by the contractor or any sub-contractor of any moneys due 
in respect of the contract shall be valid as against any lien given 
by this Act. As to all liens, except that of the contractor, the 
whole contract price shall be payable in money, and shall not be 
diminished by any prior or subsequent indebtedness, set-off, or 
counterclaim in favor of the owner against the contractor. 1910, 
c. 31, s. 16. 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 289 

A stipulation in a building contract, that upon default of the 
contractor, the school trustees shall be entitled to take his place to 
complete the contract and deduct the cost of completion from the 
balance of the purchase price, is in effect an assignment of the 
unpaid balance of the contract price within the purview of this sec- 
tion and therefore invalid against the lien for the full balance of 
the contract price acquired under the Act. Hazel v. Lund, 22 
B. C. E. 264, 25 D. L. E. 204. 

17. During continuance of lien property must not be removed. 

— During the continuance of any lien, no portion of the property 
affected thereby shall be removed to the prejudice of such lien, and 
any attempt at such removal may be restrained on application to 
the judge. 1910, c. 31, s. 17. 

18. Devices to defeat priority of wage-earners void. — Every 
device by an owner, contractor, or sub-contractor adopted to defeat 
the priority given to wage-earners for their wages by this Act 
shall, as against such wage-earners, be null and void. 1910, c. 31, 
s. 18. 

Eegistration and Transmission. 

19. lien expires in thirty-one days after completion of work, 
unless registered.- — Every lien upon any such erection, building, 
railway, tramway, road, bridge, trestle-work, wharf, pier, mine, 
quarry, well, excavation, embankment, sidewalk, sewer, drain, ditch, 
flume, tunnel, aqueduct, dyke, works, or improvements, the appur- 
tenances to any of them, material or lands, shall absolutely cease 
to exist, — 

1. In the 'case of, a claim for lien by a contractor or sub-con- 
tractor, after the expiration of thirty-one days after the comple- 
tion of the contract. 

(2) In the case of a claim for lien for materials, after the 
expiration of thirty-one days after the furnishing or placing of 
the last materials so furnished or placed. 

M.L.— 19 



290 THE LAW OF MECHANICS' LIENS IN CANADA. 

(3) In the case of a claim for lien for services, after the expira- 
tion of thirty-one days after the completion of services. 

(4) In the case of a claim for lien for wages, after thirty-one 
days after the last work is done for which the lien is claimed 
(except in the case of a claim -for wages owing f or work in, at, or 
about a mine, in which case the lien shall cease after the expira- 
tion of sixty days after the last work is done for which the lien 
is claimed) ' Provided, however, that any laborer shall not be held to 
have ceased work upon any erection, building, railway, tram- 
way, road, bridge, trestle-work, wharf, pier, mine, quarry, well, 
excavation, embankment, sidewalk, sewer, drain, ditch, flume, tun- 
nel, aqueduct, dyke, works, or improvements, or land, until the com- 
pletion of the same, if he has in the meantime been employed upon 
any other work by the same contractor, — 

unless in the meantime the person claiming the lien shall file in the 
nearest County Court registry, in the county wherein the land is 
situate, an affidavit, sworn before any person authorized to take 
oaths, stating in substance — 

(a) The name and residence of the claimant, and the name of 
the owner of the property or interest to be charged; 

(b) The particulars of the kind of works, services, improve- 
ments, or materials done, made, or furnished; 

(c) The time when the works, services, or improvements were 
finished or discontinued, or the materials furnished or 
placed ; , 

(d) The sum claimed to be owing, and when due; 

(e) The description of the property to be charged ; 

and shall within the respective times hereinbefore in this section 
mentioned, file in the Land Eegistry Office of the land registry 
district within the limits of which the lands, mines, or premises 
in respect of which the lien is claimed are situate a duplicate or a 
copy certified by the said County Court Eegistrar to 'be a true 
copy of such affidavit, which duplicate or certificate copy of such 
affidavit shall be received and filed in the said Land Eegistry Office 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 291 

as a lien against the property, interest, or estate against which 
the lien is claimed. Every County Court Eegistrar shall be sup- 
plied with printed forms of such affidavits, in blank, which may 
be in the form or to the effect of Schedule C. to this Act and 
which shall be supplied to every person requesting the same and 
desiring to file a lien. Every County Court Eegistrar shall keep 
an alphabetical index of all claimants of liens, and the persona 
against whom such liens are claimed, which index shall be open 
for inspection during office hours, and it shall be the duty of such 
County Court Eegistrar to decide whether his is or is not the 
proper office for the filing of such affidavit, and to direct the 
applicant accordingly; and no affidavit shall be adjudged insuffi- 
cient on the ground that it was not filed in the proper County 
Court registry. 1910, c. 31, s. 19. (Redrawn.) 

A person who accepts an order for steel beams to be used in 
the erection of a building, and has to fashion them so as to meet 
specified requirements, and then delivers the material so made 
ready at the building site, is a "materialman" as distinguished 
from a " sub-contractor." Coughlan & Sons v. Carver, (1914) 7 
W.- W. E. 457. 

Where sub-contractors completed their work, as they thought, 
but upon a test it was ascertained that the work could not effectively 
serve the purpose for which it was intended, and, after an un- 
avoidable delay of several months, further work was done to in- 
crease the efficiency of the earlier work, it was held that this later 
work was substantial work, and not work that could be described as 
being done to remedy slight defects, and the sub-contractors' having 
acted in good faith, the lien was registered in time. Whimster v. 
Crow's Nest Pass Coal Co., (1910) 13 "W. L. E. 621. See Sayward 
v. Dunsmuir, (1905) 2 W. L. E. 319, 11 B. C. E. 375. 

A statement of claim did not disclose the kind of materials 
furnished. Held, defective, but as the lien is operative when regis- 
tered and action brought and certificate of lis pendens registered, 
it was held that plaintiffs lien was not prejudiced. Johnson v. 
Braden, (1887) IB. C. E. (Pt. 2), p. 265. See Weller v. Shupe, 
(1897) '6 B. C. E. 58, where particulars of claim in affidavit for 
lien were held insufficiently stated. See also Knott v. Clime, (1896) 
5 B. C. E. 120, and -Smith v. Mcintosh, (1893) 3 B. C. E. 26. 



292 THE LAW OF MECHANICS' LIENS IN CANADA. 

In a proceeding for the purpose of realizing a mechanics' lien 
the affidavit was. sworn before a person now plaintiffs solicitor. 
Held, sufficient. Elliott v. McCallum, (1899) 19 C. L. T. 412. 

But now Eule 309, which provides that an affidavit shall not be 
sworn before the solicitor for the party on whose behalf it is to be 
used, is held to apply to the affidavit required under this section. 
Braden v. Brown, 24 B. C. E. 374, (1917) 3 W. W. E. 906. 

Completion may be considered as dating from the doing of a 
little " touching up," if such work be a part of the work necessary 
under the contract. Fuller v. Beach, (1912), 21 W. L. E. 391. 

Lienholders are entitled to priority over an unregistered charge 
or transfer of which they had no knowledge actual or constructive ; 
the unregistered interests,, therefore, cannot prevail against a pur- 
chaser of the property to whom it has been sold in satisfaction 
of the registered charges. National Mortgage Co. v. Botston, 32 
D. L. E. 81, 23 B. C. E. 384, (-1917) 1 W. W. E. 494, affirmed 
by Supreme Court of Canada, (1917) 2 W. W. E. 1114. 

The claim of a mortgagee in respect of advances made sub- 
sequently to the commencement of the work done by lienholders is 
-postponed to the rights of the lienholders. The mortgagee as a 
subsequent incumbrancee might have been entitled to be given an 
opportunity in the lien action to redeem the lienholders had it 
applied for registration at once, but having neglected to do so until 
after the sale of the land in question any such right has been lost, 
(a) National Mortgage Co. v. Rolston, (1919) 49 D. L. E. 567. 

A person who accepts an order from a contractor for structural 
steel to be used in the construction of a building, fashions it at 
his factory to meet specified requirements, and delivers it so made 
ready at the building, site, but take's no part in the construction 
thereof, is a " materialman " only and, in order to preserve his lien, 
must file his claim within 31 days after the last delivery of material, 
as prescribed by this section. Coughlan & Sons v. Carver & Com- 
pany, 20 B. C. E. 497. 

The term " delivery " in section 6 means actual, physical de- 
livery. Where a materialman, , who had contracted to furnish all 
the materials for a building, and after some of the material 
had been delivered, gave notice of intention to claim a lien in 
respect of more material than had been delivered, it was held 
that the notice was defective as to the material not delivered. Bat 
Portage Lumber Company, Limited v. Watson & Bogers, 17 B. 
C. E. 489. 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 293 

An action to realize a lien can be brought only when the money 
' sought to be recovered has become payable and within 30 days 
after the filing of the lien; no action lies for the purpose of keep- 
ing the lien in esse where the due date is deferred beyond the time 
limited by the Act. Champion v. World Building, 18 D. L. B. 
555, 20 B. C. E. 156, 29 W. L. E. 299, 6 W. W. E. 1469. 

20. — Mode of construing last preceding section. — A substantial 
compliance only with the last preceding section shall be re- 
quired, and no lien shall be invalidated by reason of failure to 
comply with any of the requisites thereof, unless, in the opinion 
of the judge, adjudicating upon the iien under the said Act, the 
owner, contractor, sub-contractor, mortgagee, or some other person 
is prejudiced thereby, and then only to the extent to which he is 
prejudiced, and the judge may allow the affidavit, statement of 
claim, plaint, and summons to 'be amended accordingly; and may 
allow the addition or substitution of all proper parties to the claim 
of lien, and the action to enforce the same, although the time for 
filing the affidavit mentioned in the said last preceding section, and 
instituting proceedings under section 23 hereof, shall have, or 
either of them has, expired. 1910, c. 31, s. 20. 

But where the land sought to be charged by a lien is mis- 
described in the lien affidavit the court will not give leave to 
amend by correcting the description, as that would in effect be 
creating a lien, and the statute provides a specific mode for creating 
a lien. Bafuse v. Hunter, (1906) 12 B. C. E. 126. 

An affidavit stating that work finished or discontinued " on or 
about " a stated date was held sufficient. Holden v. Bright Pros- 
pects G. M. Co., (1899) 6 B. C. E. 439. 

Particulars of claim in affidavit for lien were:. "The putting 
in bath-tubs, wash-tubs, hot and cold water connections,- all neces- 
sary pipes, boiler and hot water furnace and waste pipes, $220. 
Part was for material and part for labor. It was held (Davie, 
C.J., dissenting), that the statement was fatally defective, as 
including two classes, in regard to one of which there was no 
statutory lien. Davie, C.J., was of the opinion that the particulars 
were sufficient, and that the separation of the price of the labor 
from that of the material was a function of the court exercisable 



294 THE LAW OF MECHANICS' LIENS IN CANADA. 

at the trial. Wetter v. Shupe, (1897) 6 B. C. E. 58. In another 
case the particulars for lien were: "Brick and stone work and 
setting tiles in the house situate upon the land hereinafter described, 
for which I claim the balance of $123." Held, insufficient. Knott 
v. Cline, (1896) 5 B. 0. E. 120. 

IJnder the Mechanics' Lien Act of 1888 it was held that the 
affidavit must be strictly followed in order to validate the lien. 
Smith v. Mcintosh, (1893) 3 B. C. E. 26. 

See Barr & Anderson Y.Percy & Co., (1912) 21 W. L. E. 236. 

An error in' naming the owner of the lands with respect to 
which a lien is claimed, is not sufficient to prevent the instrument 
claiming the lien from showing the substantial compliance with 
the statutory form. Nobbs and Eastman v. C. P- P., 6 W. W. E. 
759, 27 W. L. E. 664. 

The' omission to register a mechanics' lien within the time speci- 
fied in the Land Eegistry Office is not cured by this section, and ;s 
fatal to the validity of the lien y even where it has heen registered 
within the prescribed time in the County Court Eegistry. Dale 
v. International Mining Syndicate, (1917) 2 W. W. E. 1031. 

As to certain irregularities in affidavits not rendering, the 
affidavits insufficient, see MacDonald v. Hartley, (1918) 3 W. W. 
E. 910. 

A rule of practice which provides that an affidavit shall not be 
sworn before the solicitor for the party on whose behalf it is to be 
used, applies to the affidavit required under the Lien Act. Col- 
umbia Bitulithic, Ltd. v. Vancouver Lumber Co., 21 D. L. E. 91 ; 
Braden v. Brown, (1917) 3 W. W. E. 906. 

As to powers of amendment of the court, see Isitt v. Merritt 
Collieries, Ltd., (1920) 1 W. W. E. 879. 

21. No lien to be filed for less than $20.— No lien shall be filed 
unless the claim or joined claims shall amount to or aggregate 
twenty dollars or more. 1910, c. 31, s. 21. 

22. Liens pass on death to legal representatives, or may be as- 
signed. — In the event of the death of the lien-holder, his lien shall 
pass to his personal representatives, and the right of a lienholder 
may be assigned by any instrument in writing, subject to the limita- 
tion contained in section 16 hereof. 1910, c. 31, s. 22. 



THEBKITISH COLUMBIA MECHANICS' LIEN ACT. 295 

The lien of an architect is assignable and then enforceable by 
the assignee. Sickler v. Spencer, (1911) 19 W. L. E. 557. 

Expibation, Cancellation and Dischakge. 

23. When a lien shall expire. — Every lien shall absolutely 
cease to exist after the expiration of thirty-one days after the filing 
of the affidavit mentioned in section 19 of this Act, unless the 
claimant in the meantime shall have instituted proceedings to 
realize his lien under the provisions of this .Act in the County 
Court registry in which the lien was filed, or unless in the mean- 
time the consent in writing, signed by the owner or party whose 
interest is charged, extending the existence of said lien for a period 
named in said consent, is filed in the County Court registry in 
which the lien was filed. Said consent may be in the form or to 
the effect of Schedule D to this Act. 1910, c. 31, s. 23. 

See Dunnv.Holbrook, (1900) 7 B.C.E. 503, and compare Neill 
v. Carroll (1880) 28 Gr. 34, 399; Bank of Montreal v. Haffner, 
(1884) 10 0. A. R. 592; and McNamara v. Kirkland, (1891) 18 
O. A. R. 270. 

24. Cancellation of lien. — (1) The County Court Registrar 
shall cancel any lien when the .amount due in respect thereof has 
been ascertained and paid into court in pursuance of an order of 
the court or judge, or the property has been sold to realize such 
lien, or such lien has been improperly filed or has otherwise ' 
ceased to exist, or on receiving a statement in writing, signed by 
the claimant or his agent, that the lien has been satisfied. 

(2), Upon such cancellation the County Court Registrar shall 
issue a certificate thereof to the owner, and the Registrar-General 
or District Registrar of Titles (as the case may be) shall, upon 
the production of such certificate of cancellation, cancel the regisr 
tration of such lien in the books of the Land Registry Office. 
1910, c. 31, s. 24. (Part new.) 

The certificate of action required by this section must be 
filed within the time therein limited, otherwise the lien ceases to 
exist. Dunn v. Holbrook, (1899) 7 B. C. R. 503. 



296 , THE LAW OF MECHANICS' LIENS IN CANADA. 

25. Summons to show cause why lien should not be cancelled. 

— Any person against whose property a lien has been registered 
under this Act may apply to the judge, on an affidavit setting 
forth registry of the same, and that hardship or inconvenience is 
experienced, or is likely to be experienced thereby, with the rea- 
sons for such statement, for a summons calling upon the opposite 
party to show cause why such lien should not be cancelled upon 
sufficient security being given. Such summons, together with a 
copy of the affidavit on which the same is granted, shall be served 
on the opposite party and made returnable in three days after the 
issuing thereof, or in such greater or less time, as the judge may 
direct. 1910, c. 31, s. 25.- 

26. Judge may order cancellation of lien. — On the return of 
such summons, the judge may order the cancellation of such lien, 
either in whole or in part, upon the giving of security by the party 
against whose property the said lien is registered to the opposite 
party, in an amount satisfactory to the judge, and upon such other 
terms (if any) as the judge may see fit to impose. 1910, c- 31, s. 
26. 

The giving of security is a condition precedent to the cancella- 
tion of the lien. Walsh v. Mason, (1914) 26 W. L. E. 942, 19 
B. C, E. 48. 

27. On judge's order, lien to be cancelled.-^-The County Court 
Eegistrar and the Eegistrar-General or District Eegistrar of Titles 
(as the case may be), in whose office the said lien is registered 
shall, on the production of such order, or an office copy thereof, file 
the same and cause the, said lien to be cancelled as to the property 
affected by the order. 1910, c. 31, s. 27. 

Enforcement. 

28. Consolidated liens. — Any number of lienholders may be 
joined in one suit, and all suits or proceedings brought by a lien- 
holder shall be taken to be brought on behalf of all lienholders 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 297 

who may 'be made parties to such suits or proceedings within the 
time mentioned in section 23 hereof: Provided that the moneys 
realized in such suit shall he distributed amongst the lienholders, 
parties to such suit or proceedings, in the order and manner pro- 
vided in section 36 of this Act. Any lienholder not originally 
joined may within the time mentioned in section 23 hereof, be 
made a party to such suit or proceedings by order of the judge, 
upon ex parte application, supported by an affidavit stating the 
particulars of the claim, and any lien-holder so joined in any 
such suit or proceedings shall be deemed to have complied with 
section 23 of thisiAet as fully as if he instituted a suit in his own 
behalf. 1910, c. 31, s. 28. 

29. Owner or contractor may apply to have suits consolidated. — 

If more than one suit is commenced in respect of the same con- 
tract, the owner or contractor shall apply to have the causes con- 
solidated, and failing to do so he shall pay the costs of such 1 
additional suit or suits. 1910, c. 31, s. 29. 

A bank holding an assignment of the balance of the contract 
price owing by the owner to the principal contractor has a sufficient 
interest to be added a party defendant. Dorrell v. Campbell, 22 
B. C. E. 584; 10 W. W! E. 492, 27 D. L. E. 425, 34 W. L. E. 367. 
See also 32 D. L. E. 44, 23 B. C. E. 500 (1917) 1 W. W. E. 500. 

30. Judge may order consolidation of actions. — If two or more 
actions are brought in respect of the same contract or work, the 
judge shall, by order, on the application of any person interested, 
consolidate all the actions, and may make such order as to costs 
as he shall think fit. 1910, c. 31, s. 30. 

See Coughlan v. National Construction Co., (1909) 14 B. C. E. 
339. 

31. Suits to be brought in County Court. — Whatever the 
amount of lien or. liens, proceedings to realize same may be taken 
before the judge, who is hereby authorized and empowered to pro- • 
ceed in a summary manner by summons and order, and he may 



298 THE LAW OP MECHANICS' LIENS IN CANADA. 

take accounts and make requisite inquiries, try issues, and in de- 
fault of payment may direct the sale of the estate or interest 
charged, and such further proceedings may foe taken for the pur- 
pose aforesaid as the judge may think proper in his discretion, and 
any conveyance under his seal shall be effectual to pass. the estate 
or interest sold. And, when not otherwise provided, the pro- 
ceedings shall he, as nearly as possible, according to the practice 
and procedure in force in the County Court; and when these are 
no guide, the practice and procedure used in the Supreme Court 
shall be followed. 1910, c. 31, s. 31. 

As to appeals see Champion v. World Building Co., (1914) 51 
C. L. J. 63. 

32. Leasehold property. 1 — If the property sold in any proceed- 
ings under this Act shall be a leasehold interest, the purchaser 
of any such sale, shall be deemed to be the assignee of such lease. 
1910, e. 31, s. 32. 

33. In certain cases owner or contractor to pay costs. — When 
it shall appear to the Judge in any proceedings to enforce a lien 
or liens under this Act that such proceedings have arisen from 
the failure of any owner or contractor, or both of them, to fulfil 
the terms of the contract or engagement for the work .in respect 
of which the liens, are sought to be enforced, or to comply with 
the provisions of this Act, the judge may order the said owner or 
contractor, or both of them, to pay all the costs of such proceed- 
ings, in addition to the amount of the contract or sub-contract, or 
wages due by him or them to any contractor, sub-contractor, or 
lahorer, and may order a final judgment against such contractor 
or owner, or 'both of them, for such costs. 1910, c. 31, s. 33. 

34] Judgment for amount of claim. — Upon the hearing of any 
claim for a lien, the court or judge may, so far as the parties before 
him, or any of them, are debtor and creditor, give judgment 
against the former in favor of the latter for any indebtedness or 
liability arising out of the claim, in the same manner as if such 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 299 

indebtedness or liability had been sued upon in the County 
Court in the ordinary way, without reference to this Act. 

And judgment may be given for the sum actually due, not- 
withstanding such sum may exceed the ordinary jurisdiction of 
the County Court. 1910, c. 31, s. 34. 

See Sayward v. Dunsmuvr, (1905) 11 B. C. E. 375. 

35. No appeal where action for less than $250. — In any action 
for a lien where the amount claimed to be owing is less than two 
hundred and fifty dollars, the judgment shall be final, binding, and 
without appeal ; but in any other action for a lien an appeal shall 
lie from any judgment or order of the judge in like manner as in 
ordinary cases. 1910, c. 31, s. 35. 

This provision applies only where a sum of money has been 
awarded and the existence of a valid lien is pre-supposed. Cough- 
Ian v. National Construction Co., (1909) 14 B. C. E. 339. 

Where the amount adjudged to be owing was only $172.05, an 
appeal from the judgment was dismissed. Gillies Supply Co. v. 
Allan, (1910) 15 B- C. E. 375 (C.A.) ; 14 W. L. R. 458. 

Though several lienholders may bring suit on their respective 
and distinct claims in one action and judgment may 'be entered 
.for the whole amount of said claims, yet for the purposes of ap- 
peal each' claim is deemed to be severable, and the adjudication 
thereon is a distinct one, and not appealable unless it amounts to 
$250. .Galriele y. Jackson Mines, 15 B. C. E. 373, 2 M. M. C. 399. 
The claims of several lien claimants, each one of which is under 
$250, cannot be joined together so as to bring the amount up to 
$250, and so permit of an appeal. Baker v. Uplands, (1913) 24 
W. L. E. 768. No appeal lies to the Supreme Court of Canada 
in an action to enforce a mechanic's lien. Champion & White v. 
The World Building Co., 50 Can. S. C. R. 382. 

36. Distribution of moneys realized under Act. — All moneys 
realized by proceedings under this Act shall be applied and dis- 
tributed in the following order : — 

(1) The costs of all the lienholders of and incidental to the 
proceedings and of registering and proving the liens ; 



300 THE LAW OF MECHANICS' LIENS IN CANADA. 

(2) Six weeks' wages (if so much be owing) of all laborers 
employed by the owner, contractor, and sub-contractor; 

(3) The several amounts owing for services rendered, work 
done (in excess of six weeks' wages), and material placed or 
furnished in respect of the works or improvements; 

(4) The amounts owing the sub-contractor and other persons 
employed by the owner and contractor ; 

(5) The amount owing the contractor. 

Each class of lienholders shall rank pari passu for their several 
amounts, and the portions of said moneys available for distribution 
shall he distributed among the lienholders pro rata according to 
their several classes and rights. 

Any balance of said moneys remaining after ' all the above 
amounts have been distributed shall be payable to the owner or 
other person legally entitled thereto. 1910, c. 31, s. 36. 

37. Mechanic's lien on chattels. — Every mechanic or other per- 
son who has bestowed money or skill and materials upon any chat- 
tel in the alteration and improvement of its properties, or increas- 
ing its value, so as thereby to become entitled to a lien upon such 
chattel or thing for the amount or value of the money, skill, or 
materials bestowed, shall, while such lien exists, but not afterwards, 
in case the amount to which he is entitled remains unpaid for three 
months after the same ought to have been paid, have power to 
sell the chattel in respect of which the lien exists, on giving two 
weeks' notice by advertisement in a newspaper published in the 
city, town, or county in which the work was done, or in case there 
is no newspaper published in such city, town, or county, then in a 
newspaper published nearest thereto, stating the name of the 
person indebted, the amount of his indebtedness, a description of 
the chattel to be sold, the time and place of sale; and after such 
sale such mechanic or other person shall apply the proceeds of such 
sale in payment of 1 the amount due to him, and the costs of ad- 
vertising and sale, and shall pay over the surplus (if any) to the 
person entitled thereto, on application being made to him there- 



THE BRITISH COLUMBIA MECHANICS' LIEN ' ACT. 301 

for, and a notice in writing of the result of the sale shall be left 
at or posted to the address of the owner at his last-known place of 
abode or business. 1910, c. 31, s. 37. 

See chapter entitled " Mechanics' Liens on Personalty," ante. 

38. Certain proceedings not to be deemed satisfaction or waiver 
of lien. — The taking of any security, or the acceptance or dis- 
counting of any promissory note, or cheque (which, on presenta- 
tion, is dishonored), for the claim, or the taking of any other 
acknowledgment of the claim, or the taking of any proceedings for 
the recovery of the claim, or the recovery ,of any personal judgment 
for the claim, shall not merge, waive, pay, satisfy, prejudice, or 
destroy any lien created by this Act, unless the lienholder agrees 
in writing that it shall have that effect : Provided, however, that 
a person who has extended the time for payment of any claim 
for which he has a lien under this Act, to obtain the benefit of, 
this section, shall institute proceedings to enforce such lien within 
the time limited by this Act, but no further proceedings shall be 
taken in the action until the expiration of such extension of time*: 
Provided further that notwithstanding such extension of time, such 
person may, where proceedings are instituted 'by any other person 
to enforce a lien against the same property, prove and obtain pay- 
ment of his claim in such suit or action as if no such extension 
had been given. 1910, c. 31, s. 38. 

A lien lost by taking a promissory note is not revived upon 
dishonor thereof. Edmonds v. Tiernan, (1891) 2 B. C. E. 82, 21 
Can. S. C. E. 406. See cases where this decision and the decisions 
in two Manitoba cases are distinguished or questioned. Swanson 
v. ThoUison, 6 W. L. E. 678; Clarice v. Moore, (1908) 1 Alta. L. E. 
49, 8 W. L. B. 405, 411; Gorman v. Archibald, (1908) 1 Alta. 
L. E. 524. 

Where promissory notes had been received and discounted by 
the. lienholder for the materials supplied, the lien was not thereby 
waived. Coughlan v. National Construction Co., (1909) 14 
B. C. E. 339. See particularly the judgment of Irving, J., at 350. 

39. Judges of County Court to make rules of court. — The 

judges of the County Courts, or any two of them, may make gen- 



302 THE LAW OF MECHANICS' LIENS IN CANADA. 

eral rules and regulations, not inconsistent with this Act, for ex- 
pediting and facilitating the business before such courts under this 
Act, and for the advancement of the interests of suitors therein. 
1910, c. 31, s. 40. 

Costs. 

40. Limit of fees in money or stamps. — No fees in stamps or 
money shall be payable to any judge or other officer in any action 
brought to realize a lien under this Act, nor on any filing, order, 
record, or judgment, or other proceedings in such action, excepting 
that every person, other than a wage-earner, shall, on filing his 
statement of claim where he is a plaintiff, or on filing his claim 
where he is not a plaintiff, pay in stamps one dollar on every one 
hundred dollars, or fraction of one hundred dollars, of the amount 
of his claim up to one thousand dollars. 1910, c. 3i, s. 41. 

41. Limit of costs to plaintiff. — The costs of the action under 
this Act awarded by the judge or officer trying the action to the 
plaintiffs and successful lienholders, exclusive of the costs of any 
appeal, shall not exceed in the aggregate an amount equal to 
twenty-five per cent, of the amount of the judgment, besides actual 
disbursements, and shall be in addition to the amount of the judg- 
ment, and shall be apportioned and borne in such proportion as 
the judge or other officer who tries the action may direct. 1910, 
c. 31, s. 42. 

42. Limit of costs to be awarded against plaintiff. — Where the 
costs are awarded against the plaintiff or other persons claiming 
the lien, such costs shall not exceed an amount in the aggregate 
equal to twenty-five per cent, of the claim of the plaintiff -and 
other claimants, besides actual disbursements, and shall be appor- 
tioned and borne as the judge or said other officer may direct. 
1910, e. 31, s. 43. 

43. Costs where least expensive course not taken.^-In case 
the least expensive course is not taken by a plaintiff under this 



THE BEITISH COLUMBIA MECHANICS' LIEN ACT. 303 

Act, the costs allowed to the s61icitor shall in no case exceed what 
would have 'been incurred if the least expensive course had been 
taken. 1910, c. 31, s. 44. 

A loan company forcing lienholders to go to trial to establish 
their rights and priorities were ordered to pay the costs of the 
trial. Palfrey v. Brown, 31 W. L. E. 535. 

44. Costs of vacating lien. — Where the lien is discharged or 
vacated under section 27 of this Act, or where in an action judg- 
ment is given in favor of or against a claim for a lien, in addition 
to the costs of an action, the judge or other officer may allow a 
reasonable sum for costs of drawing and registering the lien, or 
for vacating the registration of the lien. 1910, c. 31, s. 45. 

45. Costs not otherwise provided for. — The costs of and in- 
cidental to all applications and orders made under this Act and 
not otherwise provided for shall be in the discretion of the judge 
or officer to whom the application or by whom the order is made. 
1910, c. 31, s. 46. 



SCHEDULES. 



SCHEDULE A. 
To 

You are hereby notified that the undersigned will claim a lien 
under the. " Mechanics' Lien Act " for the price of [here give a 
general description of material] delivered on or about the 
day of ,19 , or delivered within ten days prior 

to this date, and to be delivered hereafter, to be used in the works 
or improvements on your premises, situate [description of the 
premises] , which said material was ordered by 
Amount due for material delivered to date, $ 
Dated this day of , 19 . 

1910, c. 31, Sch. A. 
1799. 



304 THE LAW OF MECHANICS 5 LIENS IN CANADA. 



SCHEDULE B. 



Pat Eolx. 





S3 

-.2 
'ft 

"a 


From 3rd Jan., 1910, to 10th 
Jan., 1910 (inclusive) 


T3 
'3 

a 

3 
O 

E 
< 


Date of 

payment 


p. 


Name 


. No. 
days em- 
ployed 


u 

0) 
Q. 

(ST3 


Total 
amount 
earned 


Amount 

due for 

material 

delivered 


■£.s 
Is 


R. Roe... 
S. Doe... 




Six days 


$3.50 


$21.00 


$25.00 


$21.00 
$25.00 


10th Jan., 

1910 
10th Jan., 

1910 


R. Roe... 
S. Doe... 















I hereby certify that the above statement is correct to the best 
of my knowledge and belief, and is made by me in compliance and 
in accordance with section 15 of the " Mechanics' Lien Act," on 
account of [my contract to or employment by, as the case may be], 
[here insert brief description of the work], for [owner's name], up 
to the day of , 19 

(Signed.), 

Contractor. 
Dated' this day of , 19 . 

1914, c. 31, Sch. B. 



SCHEDULE C. 

In the Matter of the " Mechanics' Lien Act," and in the Matter 
of a lien claimed by 
I, , of ■ , British Columbia, make 

oath and say: — 

1. That , of. , claim a mechanic's lien 
against the property or interest hereinafter mentioned, whereof 

is owner. 

2. That the particulars of the work done, services rendered, or 
material furnished are as follows : — 



THE BRITISH COLUMBIA MECHANICS' LIEN ACT. 305 

3. That the work, service or material was finished, discontinued, 
placed, or furnished, on or about the day of 

4. That the said was in the employment of , 
contractor for the work or service in respect of which the lien is 
claimed, for days after the above-mentioned date. 

5. That the sum of dollars is owing to in 
respect of the same, and was, or will be, due on the day 
of . 

6. That the description \of the property to be charged is as 
follows : — 

Sworn at , B.C., this day of ,19 , 

before me. 



1910, c. 31, Sch. C. 



SCHEDULE D. 

To the Registrar of the County Court of 

The undersigned hereby , consents to an extension of time until 
the day .of , 19 , for instituting proceedings under 

the " Mechanics' Lien Act" for work done and material placed or 
furnished by , amounting to , dollars, in respect 

of works or improvements on my premises situate 

Dated this day pf , 19 . 



1910, c. 31, Sch. D. 



CHAPTEE 40. 

An Act to Amend the " Mechanics' Lien Act." 

(Assented to, May 19, 1917.) 

XJIS MAJESTY, by and with the advice and consent of the 
Legislative Assembly of the Province of British Columbia, 
enacts as follows: — 

M.L.— 20 



306 THE LAW OF MECHANICS' LIENS IN CANADA. 

1. Short title. — This Act may be cited as the "Mechanics' 
Lien Act Amendment Act, 1917." 

2. Amends section S.^Section 9 of the " Mechanics' Lien Act," 
being chapter 154 of the "fievised Statutes of British Columbia, 
1911," is hereby amended by adding thereto the following pro- 
visoes : — 

" Provided always that in connection with work done in or 
about any mine or mineral claim, notwithstanding anything to the 
contrary in this or any other Act contained, a laborer's lien as 
provided for in section 6 hereof to the extent of twenty-five days* 
wages as salary, whether the employment in respect of which the 
same is payable is by the day, by the week, by the job or piece, or 
otherwise, shall be absolute, and shall to such extent, but no further 
or otherwise, be prior to any mortgage or other encumbrance what- 
soever ; 

" Provided further that the holder of any sueh mortgage or 
other encumbrance may, at his option, on default by the mortgagor 
or other encumbrancer, for a period of five days from the entry of 
the judgment establishing any such lien, to satisfy the game, pay 
the same, and may treat any money so paid as principal advanced 
on account of such mortgage or other encumbrance, and money 
so paid shall bear interest as from the date of such payment at the 
rate provided for on principal in such mortgage or other encum- 
brance." 

The effect of this section making a laborer's lien for work done 
in or about a mine, etc., to the extent specified, " absolute " and 
prior to any mortgage, etc., is io exclude, in favor of such laborer 
and to the extent aforesaid, all the conditions which might other- 
wise have to be satisfied before a lien could be impressed upon 
certain interests in the property. Isitt v. Merritt Collieries, Ltd., 
(1920) 1 W. W. E. 879. In deciding this case Swanson, Co.J., 
holds that the word "• absolute " in this amendment means " un- 
conditional." 



THE MECHANICS' AND WAGE-EARNERS' 
LIEN ACT OP MANITOBA. 

CHAPTER 125. 

An Act Respecting Liens of Mechanics, Wage-Earners and 

Others. 

TJ IS MAJESTY, by and with the advice arid consent of the 
Legislative Assembly of Manitoba, enacts as follows : — 

1. Short title. — This Act may be cited as " The Mechanics' and 
Wage Earners' Lien Act." R. S. M. c. 110, s. 1. 

2. Interpretation. — -In this Aet y unless the context otherwise 
requires, — 

(a) "Contractor.'' — The expression "(Contractor" means a 
person contracting with or employed directly by the owner or his 
agent for the doing of Work of placing or furnishing of materials 
for any of the purposes mentioned in this Act; 

( : b) " Sub-colitfactor.'' — The expression "sub-contractor " 
means a person not contracting with or employed directly by the 
owner or his agent for the purposes aforesaid, but contracting with 
or employed by a contractor^ or under him by another sub-con- 
tractor ; 

(c) "Owner."' — The expression "owner" extends to and in- 
cludes any person, firm, association, body corporate or politic,- in- 
cluding a municipal corporation, having any estate or interest in 
the lands upon or in respect of which the work or service is done, 
or materials are placed or furnished, at whose request and upon 
whose credit or on whose behalf or with whose privity or consent 
or for whose direct benefit any such work or service is performed 



308 THE LAW OF MECHANICS' LIMNS IN CANADA. 

or materials are placed or furnished, and all persons claiming under 
him or them whose rights are acquired after the work or service 
in respect of which the lien is claimed is commenced or the 
materials furnished have heen commenced to be furnished; 

(d) "Person." — The expression "person" extends to and in- 
cludes a body corporate or politic, a firm, partnership or association ; 

(e) "Material." — The expression "material" includes every 
kind of moveable property; 

(f ) " Registry Office." — The expression " registry office " in- 
cludes a land titles office ; 

(g) " Registrar." — The expression " registrar " includes a dis- 
trict registrar; 

(h) " Wages." — The expression " wages " means money earned 
by a mechanic or laborer for work done, whether by the day or as 
piece work; 

(i) , " Judge.'' — The expression " judge^ " means a judge of the 
County Court of the judicial division in which the property 
affected by a lien is situated. B. S. M. c. 110, s; 2; 3 Geo. 5, c. 32, 
s. 8. 

This section differs from the corresponding Ontario provi- 
sion (section .2), by omitting "railway company" from the defini- 
tion of owner. 

A foreign unlicensed corporation is entitled' to acquire a lien 
under this Act. See, Bank of Montreal v. Condon, (1896) 11 Man. 
'L. K. 366. 

Defendant mortgagees claiming through the owner have no 
better right to dispute the lien, or to make any charge of bad faith, 
than the owner. Brynjolfson v. Oddson, (1916) 27 Man. L. E. 
390. 

One who furnishes gravel and the use of a number of teams by 
agreement with a contractor is a " sub-contractor " and not a 
wage-earner, though he uses the term "wages" in his claim for 
the purpose of computing the amount of it. Wilks v. Leduc, 
(1916) 27 Man. L. E. 72. 



mechanics' lien act of manitoba. 309 

Origin and Nature of Liens. 

3. Contracts not to deprive third party of lien. — No agree- 
ment shall be held to deprive anyone otherwise entitled to a lien 
under this Act, and not a party to the agreement, of the benefit 
of the lien; but the lien shall attach, notwithstanding snch agree- 
ment. E. S. M. c. 110, s. 3. 

See Ont. Act, section 5. 

A contractor cannot bind any sub-contractor by any such agree- 
ment. Anley v. Holy Trinity Church, (1885) 2 Man. L. E. 248. 

A lien for materials only arises where the goods are supplied 
for the purpose of being used in the particular building on which 
the lien is claimed. Sprague v. Besant, (1885) 3 Man. L. E. 519. 
See Ont. Act, section 6 (e), "to be used." See also Dominion 
Radiator v. Cann, 27 N: S. E. 237. 

4. Nature of lien. — Unless he signs an express agreement to 
the contrary, any person who performs any work i or service upon 
or in respect of, or places or furnishes any materials to be used 
in the making, constructing, erecting, fitting, altering, improving or 
repairing of, any erection, building, land 1 , wharf, pier, bulkhead, 
bridge, trestle-work, vault, mine, well, excavation, sidewalk, paving, 
fountain, fishpond, drain^ sewer, aqueduct, roadbed or way, or the 
appurtenances to any of them for any owner, contractor or sub- 
contractor, shall by virtue thereof have a lien for the price of 
such work, service or materials upon the erection, building, land, 
wharf, pier, bulkhead, bridge, trestlework, vault, mine, well,, excava- 
tion, sidewalk, paving, fountain, fishpond, drain, sewer, aequeduct, 
roadbed, way, and appurtenances thereto, and the lands occupied 
thereby or enjoyed therewith, or upon or in respect of which the 
said work or service is performed, or upon which such materials 
are placed, or furnished to be used, limited, however, in amount 
to the sum justly due to the person entitled to the lien and to the 
sum justly owing (excepting as. herein provided) by the owner: 

No lien for sum under $20. — Provided that no such lien shall 
exist under this Act for any claim under the sum of twenty 
dollars. 



310 THE LAW OF MECHANICS' LIENS IN CANADA. 

(2) Commencement of lien. — Such lien, upon registration as 
hereinafter provided, shall arise and take effect from the date of 
the commencement of such work or service, or from the placing of 
such materials, as against purchasers, charges or mortgagees under 
instruments, registered or unregistered, E. S. M. c. 110, s. 4. 

This section omits the words " railway," " fence " and " fruit 
and ornamental trees," which are included" in the Ontario section. 

See Ont. Act, section 6. Sub-section (a) is not in the Ontario 
Act, which omits also the limitation of liens to claims for twenty 
dollars and upwards. 

A workman 1 for a materialman is not entitled to a lien. Allen 
v. Harrison, 9 W. L. E. 198. 

The lien arises and takes effect against the owner from the com- 
mencement of the work or service.: Merrick v. Campbell, (1914) 
24 Man. L. E. 446, 17 D-. L. E. 415. 

A _ contractor cannot enforce a lien for more than the amount 
actually due according to the contract. Brydon v. Lutes, (1891) 
9 Man. 463; McArthur v. Dewar, (1885) 3 Man. 72. 

Municipal buildings' have in Manitoba been held to be sub- 
ject to mechanics' liens. McArthur v. Dewar, (1885) 3 Man. 
72 ;. McLennan and Winnipeg, (1882) 3 Man. 74. 

Proceedings were taken to enforce a mechanics' lien by levy, • 
after winding-up order had been made. Held, that neither section 
16 (now section 22) nor 17 (now 23) of the Winding-up Act 
could be invoked against proceedings. Sections 62 (now sections- 
76, 77,' 78 and 79) and 66 (now 84), of that Act should be read 
together. The lien was not created by the proceedings but prior 
to that time; hence, section 66 (now 84) did not take it away. Re 
Empire Brewing & Malting Co., (1891) 8 Man. 424. See Re Good 
and Nepisiquit Lumber Co., (1911) 2 E. Jj. E. 252. 

In Moore v r Bradley, (1887) 5 Man- 49, Dubuc, J., held that a 
public school building was not exempt from the operation of, the 
mechanics' lien law, and while some decisions elsewhere are op- 
posed to this view it is now the prevailing view in' Canadian 
Courts. See Ontario Act, section 6 (h). An assignee of a mechanic 
is entitled to a lien and may make the affidavit necessary for regis- 
' tration. Kelly v. McKenzie, 1 Man. L. E. 169. See McAllister v. 
Des Rochers, 132 Mich. 381. 

The plaintiff's claim consisted of charges for different jobs, all 
in his line of business, but ordered at different times, and as to the 



MECHANICS' LIEN ACT OF MANITOBA. 311 

first gob, if considered separately, his lien was not filed within the 
time required by the statute. It was held that, in such circum- 
stances, a 'mechanic should not be required, in order to secure pay- 
ment, to file a lien after completing each piece of work, and that 
filing his lien after he has completed all of his work is sufficient. 
Carroll v. McVicar, 15 Man. L. B. 379. 

A subcontractor is entitled to a lien even though the contrac- 
tor under whom he claims has agreed with the owner that no 
workman shall be entitled to a lien. Anly v. Holy Trinity Church, 
(1885) 2 Man. 248. An assignee of the contract price for the 
erection of the building is not entitled to the money as against the 
lien of a sub-contractor, unless the owner has in good faith bound 
himself to pay the assignee. Anly v. Holy Trinity Church, 2 Man. 
L. E. 248. • 

As to lien of sub-contractor, see also Wasdell v. White, 4 
W. L. E. 562 ; McCauley v. Powell, 7 W. L. E. 443. 

In Robock v. Peters, (1900) 13 Man. 124, Killam, J., points 
out a difference in the phraseology of section 4 (a) and section 5 
(b), and says: "The difference is probably inadvertent, but liens 
are purely statutory and must be strictly followed as in derogation 
of ordinary rights." See Dunn v. Sedziqk, 17 Man. L. E. 484. 

The daim of a lien-holder is a preferential claim under The 
Dominion Winding-up Act (E. S. C. c.^144). Re Empire Brewing 
& Malting Co., (1891) 8 Man. 424. 

Under a former Act it was held that a lien had no existence 
until it was registered. ,Kievell v. Murray, (1884) 2 Man. 209. 

A lien for materials only arises where the goods are supplied 
for the purpose of being used in the particular building on which 
the lien is claimed. Sprague v. Besant, (1885) 3 Man. 519; but 
a materialman is not bound to show that his materials were used 
in the building ; delivery upon the ground for the purpose of being 
used is sufficient. McArthur v. Dewar, (1885) 3 Man. L. E. 72. 
See also Dominion Radiator Co. v. Cann, (1904) 37 N. S. B. 237. 
See Ontario cases and references to this question in chapter 
entitled, " The Lien of the Materialman," ante. 

The court has no jurisdiction to enforce a lien out of its 
territorial jurisdiction. Chadwick v. Hunter, (1884) 1 Man. 363. 
A mechanics' lien registered against two lots owned by different 
persons, in respect to work done upon two houses, one on each of • 



312 THE LAW OF MECHANICS' LIENS IN CANADA. 

the lots, on the order of one of the owners, and for an amount 
claimed to be due for -work on both houses, without apportioning 
the same, cannot be enforced, nor can effect be given to the lien as 
against one of the lots only for the proper amount. Fairclough v. 
Smith, (1901) 13 Man. L. E. 509. 

An agreement was made with plaintiffs to instal plumbing in 
two houses, one to be built on each lot. The work on A. was 
finished in July, and on B. in January following. While the 
plaintiffs were working on A. it was bought by H. who, 30 days 
after completion: of plaintiffs' work on A. paid the defendant the 
full purchase price, having no notice of any ^ien. Plaintiffs subse- 
quently registered a lien against both lots. Held, the contract 
was divisible, and that there was no lien against A. Lee v. Hill, 
11 W. L. E. 611. 

As to facts which would constitute separate sales of materials 
so as to. require separate registrations, see Stephens' Paint Go. v. 
Cottingham, (1916) 10 W. W. E. 627; Ohadwich v. Hunter, 1 Man. 
L. E. 39. 

/ This section prevents a waiver of the statute by the lien claim- 
ant except by an " express agreement." An estoppel in pais 
cannot prevent such lien. United States Construction Go. 
v. Bat Portage Lumber Co., Ltd., (1915) 25 Man. L. E. 793; 
Anderson v. Fort William Commercial Chambers, Ltd., (1915.) 
25 D. L. E. 319. While the retention of title is not incon- 
sistentwith the statutory right to a mechanics' lien, if a lien claim- 
ant invokes the provisions of the Mechanics' Lien Act to enforce ' 
his claim for materials furnished for and erected in a building, he 
should be taken to have elected to make them a part of the building 
and realty against which he claims the lien and to be thereafter 
estopped from claiming that the materials are his property, and that 
he has a right to remove them. United States Construction Com- 
pany v. The Bat Portage Lumber Co., (1915) 25 Man. L. E. 793. 

' If the .contractor agrees to assert no lien he will be bound by 
such agreement. Brydon v. Lutes, 9 Man. L. E. 463. 

Where it is agreed that all bills shall be paid by cheque of the 
contractor (Ritchie v. Grundy, 7 Man. L. E. 532) or that the eon- 
tractor shall satisfy all claims {Anly v. Holy Trinity Church, 2 
Man. L. E. 248), or that the building shall be delivered free from 
liens, the contractor's right to a lien will not be defeated. See 
Schmid v. Palm Garden Imp. Co., 162 Pa. 211. 



MECHANICS' LIEN ACT OF MANITOBA. 31.3 

Where payment under a building contract is conditioned on the 
completion of the work to the satisfaction of the engineer, and upon 
the strict compliance with all the provisions of the contract, the 
contractor cannot recover the contract price without asserting and 
proving strict compliance with all conditions precedent. Merriam, 
v. Public Paries Board, (1912), 2 D. L. B. 702, following Brydon 
v. Lutes, 9 Man. L. E. 463. See also Davidson v. Francis., 14 Man. 
L. E. 141. There is no presumption that a husband is acting as 
his wife's agent. Gillies v. Gibson, (1907) 7 W. L. E. 243. 

As to non-liability of company for contract made by promoter, 
see Desrochers v. Crump. (1911) 17 W. L. E. 47. 

The lien comes into existence as soon as the work begins, or any 
materials are delivered. McCauley v. Powell, (1908) 7 W. L. E. 
443. 

As to construction of word " claim," see Phelan v. Franklin, 
(1905) 2 W. L. E. 29. 

Although the lien may be registered before commencing or 
during the progress of the work, an action thereon cannot be begun 
before completion of the contract. Curtis v. \ Richardson, (1909) 18 
Man. L. E. 519. 

The defendant H. agreed to build a house for the defendant W. 
for $4,860.75. The plaintiffs supplied lumber to H. for the build- 
ing, and after they had delivered $1,075.68 worth of material on 
the premises and had not been paid anything for it, they, saw W. 
and made an arrangement with him, the terms of which were in 
dispute between them. It was held, upon the evidence, that W. did 
not undertake to pay the plaintiff for the deliveries then already 
made, but entered into a new agreement with the plaintiffs, whereby 
he agreed to take, on his own account, and pay for, the lumber he yet 
required. 

The plaintiffs having contended, as part of their case, that H. 
was released by themselves and W. from all liability to them, did 
not ask for judgment against H. It was held that the action should 
be dismissed as against H., but without costs. The plaintiffs did 
not press for judgment against the defendant company, mortgagees 
from W., and as against the company the action was also dismissed 
without costs. As against W., the plaintiffs were held entitled to 
judgment for the full price of the goods supplied by them after the 
new arrangement, and (by way of enforcing their mechanics' lien) 
for a proportion of the price of the goods supplied before 'that 



314 THE LAW OF MECHANICS' LIENS IN CANADA. 

arrangement, equal to 20 per cent, of the proportion which the 
value of the work executed and materials delivered at the time 
bore to the contract price. Rat Portage Lumber Co. v. Hewitt, 
(1912) 22 W. L. E. 249, 6 D. L. E. 871. 

If at the time of the abandonment by a contractor of his build- 
ing contract, there is, by the terms of it, nothing payable to him 
by the owner, a sub-contractor, whether for work or materials, can 
have no lien upon the property, for anything due him by the 
contractor. Wilhs v. Leduc, (1916) 27 Man. L. E. 72; (1917) 
1 W. W. E. 4. 

One lien" may be filed against two houses owned by two persons 
together, though they afterwards divide the houses between them. 
Poison v. Thomson, (1917) 26 Man. L. E. 410. 

When the owner of a number of lots in one locality makes a 
general arrangement with a materialman for the supply on credit 
of such materials as he deals in for all the houses to be built by 
him upon the different lots, and, in pursuance of such arrange- 
ment, the materialman delivers such materials as are ordered by 
such owner on the lots or at such place in the' vicinity as are 
designated by the owner, for the purpose of their being used in 
construction of houses on said lots, he is" entitled to file one lien 
against all the lots for the cost of all such materials so delivered. 
Poison v. Thomson, (1917) 26 Man. L. E. 410. 

The Act does not authorize the registration of -one. lien for one 
lump siim against the lands of different owners, although the work 
may have been done or the materials furnished under one con- 
tract for the building of houses on the lands of the different own- 
ers, unkss, perhaps, in a case where the lien claimant did not know 
and had no means of ascertaining before filing his lien, that the 
lands were owned by different persons. Builders Supply Co. v. 
Huddlestone, 25 Man. L. E. 718. 

5. Property upon which lien shall attach. — The lien shall 
attach upon the estate or interest of the owner as defined by this 
Act in the erection, building, land, wharf, .pier, bulkhead, bridge, 
trestlework, vault, mine, well, excavation, sidewalk, paving, foun- 
tain, fishpond, drain, sewer, aqueduct, roadbed or roadway, and the • 
appurtenances thereto, upon or in respect of which the work or 
service is .performed or the materials are placed or furnished to 
be used, and the lands occupied thereby or enjoyed therewith. 



MECHANICS' LIEN ACT OF MANITOBA. 315 

(2) Where estate charged is leasehold. — In cases where the 
estate or interest charged by the lien is leasehold, the fee simple 
may also, with the consent of the owner thereof, be subject to said 
lien, provided such consent is testified by the signature of suph 
owner upon the claim of the lien at the time of the registering 
thereof, and duly verified. 

(3) Mortgaged land. — If the land upon or in respect of which 
the work is done, or materials or machinery are placed, be encum- 
bered by a mortgage or other charge existing or created before the 
commencement of the work or of the placing of the materials or 
machinery upon the land, such mortgage or other charge shall 
have priority over a lien under this Act to the extent of the actual 
value of such land at the time the improvements were com- 
menced. E. S. M. c. 110, s. 5. 

Compare Ontario Act, section 8 (1), and see cases thereunder. 

S6e Flack v. Jeffrey, (1895) 10 Man. 514; and; In re Empire 
Brewing & Malting Co., (1891) 8 Man. 424. 

The lien attaches from the placing of the materials. Robock 
v. Peters, (1900) 13 Man. 124. See statement of this case under 
' section 20, post. 

It is probable that though the contract is never carried out the 
lienholder may assert his lien upon the increase in value against 
the vendor as if the relationship had been that of mortgagor and 
mortgagee. Hoffstrom v. Stanley, (1902) 14 Man. 227. 

In determining the value of a parcel of land upon which stands 
a portion of a house which has been, by mistake, built partly upon 
the parcel in question and partly on an adjoining lot owned by 
another person, for the purpose of adjudicating upon the respec- 
tive rights of a mortgagee and a lienholder, no regard can be had 
to the fact that such other person would, if applied to, have con- 
sented to the removal of the house off his lot, and the priority of a 
mortgage on the lot in question over the lien of a workman subse- 
quently arising, for the cost of removing the house so as to place 
it wholly on the -parcel in question, is limited to the actual value 
of such parcel with the part of the house upon it at the time he 
began the work, which value must be ascertained without reference 
to the. subsequent removal. 



316 THE LAW OF MECHANICS'" LIENS IN CANADA. 

Bule 603 of the King's Bench Act affords no relief to the 
mortgagee in such a case or any foundation for a contention that 
the value should be ascertained by deducting the cost of removal 
from the value after removal. Jack v. McKissock, (1917) 27 
Man. L. E. 548. 

Prior encumbrancers have priority over the mechanics-' liens 
only to the extent of the actual value of the premises' at the time 
the improvements are made, and the lienholders have priority as 
to the increase in value effected by the improvements; the rights 
of the latter cannot be worked out in an action for the foreclosure 
of a vendor's lien or mortgage, but can only be given effect to in 
an action brought to enforce their liens. Dure v. Roed, (1917) 27 
Man. L. E. 417, (1917) 1 W. W. E. 1395, 34 D. L. E. 38. 

When the plaintiff in an action to realize upon a mechanics' 
lien intends to dispute the right of a prior mortgagee to priority 
for more than the actual value of the land at the time the improve- 
ments were commenced, being the limit of such priority imposed by 
sub-section (3) of this section, it is not necessary to make the mort- 
gagee a party to the action in the first place, hut the notice of trial 
may, under section 35, be served upon the mortgagee and the 
question of priority, -and for what amount may be determined at 
the trial under section 37. Dominion Lumber & Fuel Go. v. Paskov, 
29 Man. L. E. 325, (1919) 1 W. W. E. 657. 

6. Application of insurance when lien attaches. — Where any 
of the property upon which a lien is given by this Act is wholly or 
partly destroyed by fire, any money received by reason of any 
insurance thereon by an owner or prior mortgagee or ehargee shall . 
take the place of the property so destroyed, and shall, after satisfy- 
ing any prior mortgage or charge in the manner and to the extent 
set out in sub-section (3) of the last preceding section, be subject 
to the claims of all persons for liens to the same extent as if such 
moneys were realized by a sale of such property in an action to 
enforce a lien. E. S. M. c. 110, s. 6. 

See Ont. Act, section 9, to the same effect. 

7. . Limit of amount of lien. — Save as herein provided, the lien 
shall not attach so as to make the owner liable for a greater sum 
than the sum payable by the owner to the contractor. E. S. M. c. 
,110, s'. 7. 

See Ont. Act, section 10, to the same effect. 



MECHANICS' LIEN ACT OF MANITOBA. 317 

The contractor cannot by release or assignment of his rights 
under his contract with the owner, defeat the registered lien of a 
sub-contractoT claiming under him. Anly v. Holy Trinity Church, 
(1885) 3 Man. L. E. 193, decided under a former Act, is no longer 
applicable, in view of the present section 4 (2). 

If at the time of the abandonment by a contractor of his build- 
ing contract, there is by the terms of it, nothing payable to him 
by the owner, a sub-contractor, whether for work or materials, can 
have no lien /upon the property for anything due him by the con- 
tractor, nor can he have any right to share in the percentage of the 
contract price or value of the work actually done by the contractor 
up to that time held back by the owner pursuant to section 9, 'post. 
Wilhs v. Leduc, (1916) .27 Man. L. B. 72. 

When the contractor has fulfilled his contract, the contract- 
price if not paid in cash is " owing " to the contractor, although in 
connection with some other transaction there was an old balance 
due by the contractor to the owner. Bennett v. Devitt, (1915) 25 
Man. L. E. 421. 

8. Limit of lien when claimed by some person other than con- 
tractor. — Save as herein provided, where the lien is "claimed by 
any other person than the contractor, the amount which may be 
claimed in respect thereof shall be limited to the amount owing 
to the contractor or sub-contractor or other person for whom the 
work or service has been done or the materials have been placed 
or furnished. E. S. M. c. 110, s. 8. 

See Ont. Act, section 11, to the same effect. See Black v. 
Wiebe, (1905) 1 W. L. E. 75; reported fully under section 12, 
post. 

9, Percentage to be deducted and retained by owner. — In all 

cases the person primarily liable upon any contract or by virtue of 
which a lien may arise under the provisions of this Act shall, as 
the work is done or materials are furnished under any contract, 
deduct from any payments to be made by him in respect of such 
contract, and retain for a period of thirty days after the completion 
or abandonment of the contract, twenty per cent, of the value of 
the work, service and materials actually done, placed or furnished, 
as- defined by section 4 of this Act, and such value shall be cal- 
culated on the basis of the price to he paid for the whole contract : 



318 THE LAW OF MECHANICS' LIENS IN CANADA. 

Provided that, when any contract exceeds fifteen thousand dol- 
lars, the amount to be retained shall be fifteen per cent., instead 
of twenty per cent. 

(2) The liens created by this Act shall, be a charge upon the 
amounts directed to be retained iby this section, in favor of sub- 
contractors whose liens are derived under persons to whom such 
moneys so 1 tfequired! to be retained are respectively payable^ 

(3) All payments, up to eighty per cent; (or eighty-five per 
cent, where the contract price exceeds fifteen thousand dollar's) 
of such value, made in good faith by an owner to a contractor, or 
by a contractor to a sub-contractor,- or by one sub-contractor to 
another sub-contractory before n'otice in writing, of such lien given 
by the person claiming the lien to the owner, contractor or sub- 
contractor; as the case may' fee, shall operate as a discharge pro 
tanto of the lien created by this Act. 

(4) Payment of the percentage required to be retained under 
this section may be validly made so as to discharge all liens or 
charges under' this Act in respect thereof after trie expiration of 
the said period of fiirfy days mentioned herein', unless in the 
meantime proceedings hate Commenced under this Act to enforce 
any lien or charge against such percentage as provided by section 
21 of thia Act. E. S. M. c. 110, g. 9'. 

Under this section a person who has delivered materials to the 
contractor -loses his lien therefor, as against the 20 per cent, of the 
contract price to be held back by the owner from' the contractor, 
unless he registers his lien within 30 days after the abandonment 
of the contract, if he had not supplied any materials to the con- 
tractor , after such abandonment, though he wa's not notified of it, 
and a delivery of some material's- for' Use in the building to the 
owner after such abandonment, in exchange for some of the ma- 
terials formerly supplied to the contractor, will not have the effect 
of extending the time for registering the lien for the materials 
supplied to the contractor. ' Brown v. Dunhill, 25 Man. L. E. 546. 

The owner of a building in course of erection, when the con- 
tract price exceeds $15,000, being required by this section to keep 
back 'fifteen per cent, of the amounts from time to time earned 



MECHANICS' LIEN ACT OF MANITOBA. 319 

by the contractor and retain such percentages until thirty days 
after the completion or abandonment of the contract for the 
benefit of sub-contractors who may become entitled to file liens, 
must reserve such percentages at his peril, and cannot afterwards, 
in an action by a person who has supplied materials, deduct there- 
from any payment he may have made under section 10 for wages or 
materials in order to prevent the filing of liens therefor, as section 
10 at the end says in effect that payments made under it are not 
to " affect the percentage to be retained by the owner as provided 
by " section 9. M cArthur v. Martinson, 16 Man.- L. E. 387. 

As to liability to sub-contractor of owner who fails to setain 
percentage, see .Carroll v, McVicar, 15 Man, L. E. 379. 

After bill filed and lis pendens registered another lienholder 
filed a bill and obtained decree first. The latteT claimed to have 
his Gosts added to his lien. The application Was defused. Section 
24, post, qualifies this section. Henry V. Boives; (1883) 3 C. L. T. 
606. 

See Smith Co. v. Sissiboo Co., 36 IS. S. R. 348. On appeal in 
this case (1904) 35 S. C. R. 93, Nesbiti, J., said in referring to sec- 
tion 8 of the Nova Scotia Act, which is similar to section 9 of the 
Manitoba Act : " The only ground upon which the plaintiffs can 
hope to maintain a lien as against the defendant company would 
be that section 8 of the Act applies, but we think that that section 
does not by its terms apply to a case where there Was no price 
specified or capable of being ascertained,, for the ejection of the 
building, but the contract price of the building was blended with 
considerations for other matters from which it could not be 
separated." 

As to retention of percentages, see Carroll v. McVicar, (1905) 
2 W. L. E. 2'5; 41 C. L. J, 668; Phelan v. Franklin, (1905) 2 W. 
L. E. 29. 

If at the time of the abandonment by a contractor of his build- 
ing contract there is, by the terms of it, nothing payable to him 
by the owner, a sub-contractor, whether for work or materials, can 
have no lien upon the property for anything due him by the con- 
tractor, nor can he have any right to share in the percentage of the 
contract price or value of the work actually done by the contractor 
up to that time held back by the owner pursuant to this section. 
Wilks v. Leduc, (1916) 27 Man. L. E. 72. 

The value of the work upon which, to the extent of eighty per 



■320 THE LAW OP MECHANICS' LIENS IN CANADA. _ 

cent, the owner may pay the contractor prior to receiving written 
notice of a sub-contractor's lien claim, is, in case of abandonment 
of the work while uncompleted by the principal contractor, the 
value of the work actually done and material furnished up to the 
date of abandonment, but such value is to be calculated on the 
basis of the price to be paid for the whole contract. Merrick v. 
Campbell (1914)- 24 Man. L. E. 446, 17 D. L. E. 415. 

The period of thirty days during which the owner is to retain 
twenty per cent, of the value from his contractor, for the protection 
of other lienholders is to be computed from the completion or 
abandonment of the contract by the principal contractor, butthe 
expiry of such period does not relieve the owner from his obliga- 
tion to protect the interests of a sub-contractor of whose right to 
register a lien the owner has notice ; and such obligation is enforce- 
able by a sub-contractor who was enabled to file his lien more than 
thirty days after the abandonment of the work by the principal 
contractor by having been permitted by the owner thereafter to go 
on and complete the sub-contract, and who had filed his lien 
within 30 days of completing his own work.' Merrick v. Campbell, 
(1914) 24 Man. L. E. 446, 17 D. L. E. 415. 

10. Payment made in good faith without notice of lien. — If 

an owner or contractor chooses to make payments to any persons 
referred to in section 4 of this Act for or on account of any debts 
justly due to them for work or service done or for materials placed 
or furnished to be used as therein mentioned, and within three 
days afterwards gives, by letter or otherwise, to the contractor or 
his agent, or to the sub-contractor or his agent, as the case may be,' 
written notice of such payments, such payments shall as between 
the owner and the contractor or as between the contractor and the 
sub-contractor, as the case may be, be deemed to be payments to 
the contractor or sub-contractor, as the case may be, on his con- 
tract generally, but not so as to affect the percentage to be retained 
by the owner, as provided by the last preceding section. E. S. M. 
c. 110, s. 10. 

See Ont. Act, section 13, to the same effect. 
See McArthur v. Martinson, 16 Man. L. E. 387, noted under 
section 9, supra. 



MECHANICS' LIEN" ACT OF MANITOBA. 321 

Notice in writing to the owner by the sub-contractor giving the 
particulars of the sub-contract and stating that the owner will be 
held liable therefor is sufficient as a notice in writing of the lien, 
and payments thereafter made by the owner to the principal con- 
tractor, even within the statutory eighty per cent., are not protected 
as against the sub-contractor's lien. Merrick v. Campbell, (1914) 
24 Man. L. E. 446, 17 D. L. B. 415. 

11. Priority of lien. — The lien created by this Act shall have 
priority over all judgments, executions, assignments, attachments, 
garnishments and receiving orders, recovered, issued or made after 
such lien arises, and over all payments or advances made on ac- 
count of any conveyance or mortgage after notice in writing of 
such lien to the person making such payments or after registration 
of such lien as hereinafter provided. 

(2) Agreements for purchase, part of purchase money unpaid. 

— In case of an agreement for the purchase of land, and the pur- 
chase money or part thereof being unpaid and no conveyance made 
to the purchaser, the purchaser shall, for the purposes of this Act 
and within the meaning thereof, be deemed a mortgagor and the 
seller a mortgagee. 

(3) Priority among lienholders. — Excepting where it is other- 
wise declared by this Act, no person entitled to a lien on any 
property or to a charge on any moneys under this Act shall be 
entitled to any priority or preference over another person of the 
same class entitled to a lien or charge on such property or moneys 
under this Act, and each class of lienholders, except where it is 
otherwise declared by this Act, shall rank pari passu for their 
several amounts, and the proceeds of any sale shall, subject, as 
aforesaid, be distributed among the lienholders pro rata, according 
to their several classes and rights. E. S. M. c. 110, s. 11. 

See Ont. Act, section 14, to the same effect. 

See also Eoffstrom v. Stanley, (1902) 14 Man. 227, 22 C. L. 
T. 357; Rat Portage Lumber Co. v. Hewitt, (1912) 22 W. L. E. 
249, 6 D. L. E..871. 

MX.— 21 . 



322 THE LAW OF MECHANICS' MENS IN CANADA. 

The Act does not authorize the registration of one lien for 
one lump sum against the land of different owners, although the 
work may have been done or the materials furnished under one 
contract for the building of houses on the lands of the different 
owners, unless, perhaps, in a case where the lien claimant did not 
know and had no means of ascertaining before filing his lien, that 
the lands were owned by different persons. Builders Supply Co. 
v. Huddlestone, (1915) 25 Man. L. E. 718. 

The representatives of the creditors of a building contractor 
who contracts with the owner to take over, as the nominee of the 
contractor, the work of completing the contract, and obtains from 
the owner a stipulation whereby all moneys earned or to be earned 
under the contract were to become payable to such representative 
in the place of the original contractor, is entitled to file a me- 
chanics' lien for the amount due on completion of the work in like 
manner as would the original contractor, notwithstanding that 
there was no express assignment in writing of the right to such 
lien from the latter. Alsip v. Mohkmwn, (1913) 22 Man. L. E. 
779, 9 D. L. E. 97. 

The nominee of the contractor's creditors who by agreement 
with the owner takes over the unfinished contract and completes 
the same on the contractor's default, with a stipulation, that he 
shall be entitled to the same amount as would be coming to such 
contractor had he himself completed the work, will not be held 
in an action brought by him to enforce a lien, to a strict com- 
pliance with a clause of the original contract requiring the con- 
tractor, before action brought, to supply evidence that no other 
undischarged liens than his own remain a charge on the property, 
if in fact there were no such liens and the owner raising such 
objection had knowledge that the creditors other than the plaintiff 
had agreed with the latter not to file mechanics' liens. Alsip v. 
Monkman, (1913) 22 Man. L. E. 779. 

12. Priority of lien for wages. — Every mechanic or laborer 
whose lien is for work done for wages shall, to the extent of thirty 
days' wages, have priority over all other liens derived through the 
same contractor or sub-contractor to the extent of and on the 
twenty per cent, or fifteen per cent., as the case may be, of the 
contract price directed by section 9 of this Act to be retained,- to 



. MECHANICS' LIEN ACT OE MANITOBA. 323 

which the contractor or sub-contractor through whom such lien is 
derived is entitled, and all such mechanics and laborers shall rank 
pari passu on said twenty per cent, or fifteen per cent., as the 
case may he. 

(2) Enforcing lien when contract not fulfilled. — Every wage- 
earner shall be entitled to enforce a lien in respect of a contract 
not completely fulfilled. 

(3) Calculating percentage in such case. — If the contract 
has not been completely fulfilled when the lien is claimed by wage- 
earners, the percentage aforesaid shall be calculated on the work 
done or materials furnished by the contractor or sub-contractor by 
whom such wage-earners are employed. 

(4) Percentage not to be otherwise applied. — Where the con- 
tractor or sub-contractor makes default in completing his contract 
the percentage aforesaid shall not, as against a wage-earner claim- 
ing lien under this Act, be applied to the completion of the contract 
or for any other purpose by the owner or contractor, nor to the 
payment of damages forjthe non-completion of the contract by the 
contractor or sub-contractor, nor in payment or satisfaction of any 
claim of any kind against the contractor or sub-contractor. 

(5) Devices to defeat priority of wage earners. — Every device 
by an owner, contractor or sub-contractor adopted to defeat the 
priority given to wage-earners for their wages by -this Act shall, as 
respects such wage-earners, be null and void. E. S. M. c. 110, 
s. 12. 

See Ont. Act, section 15, and section 2 (7). 

Defendant agreed to purchase land from D. & McC, price to 
be paid 15th August, 1901. In default D. & McC. could either 
cancel agreement forfeiting any payments made, or re-sell and 
recover any deficiency from defendant. Defendant made improve- 
ments on land and employed plaintiff as a carpenter. Plaintiff 
claims lien for 'wages. No part of purchase money was paid. 
Work went on after 15th August with concurrence of D. & McC. 



324 THE LAW OF MECHANICS' LIENS IN CANADA. 

Held, that parties must be regarded as mortgagor and mortgagee. 
D. & McC. having granted extension could not cancel without 
giving more time, hence agreement was still subsisting when 
plaintiff did the work. Plaintiff was entitled to the lien, subject 
to charge^ of D. & MaC. for unpaid purchase money and interest. 
Hoffstrom v. Stanley, (1902) 14 Man. 227, 22 C. L. T. 337. 

In Black v. Wiele, (1905) 1 W. L. E. 75, the facts were as 
follows: The defendants, Wiebe and Jardine, entered into an 
agreement with the defendant, Kate Hubert, to erect for her a 
house on land belonging to her on S. Avenue, Winnipeg. Th« 
agreement under which the work was to be done was contained in 
a written contract, to which the plans and specifications of the 
building were attached, forming a part of the agreement. The 
contract price was $2,600, payable $30 on the execution of the 
contract, $470 when the roof was covered in, $1,500 "on or before 
the completion of the building," and the balance as should be 
arranged between the 'parties. The $1,500_ was to be raised by a 
loan on the premises, the contractor to receive an order for the 
proceeds of the loan. The plaintiff supplied the lumber for the 
erection of the house and also for the erection of a barn upon the 
same lot. The lumber was supplied upon the order of the con- 
tractors and pursuant to an arrangement made between them and 
the plaintiffs. The house was never fully completed, but when 
partially finished was occupied by Mrs. Hubert. The specifications 
were departed from in certain particulars with the assent, as was 
alleged, of the proprietress. The quality of the work and material 
was not in accordance with the contract. Although it was alleged 
that a stone foundation had been put in as an extra, the evidence 
showed that the. building as it stood was, owing to defects, not 
worth more than $2,000. A mortgage for $1,000 was placed on 
the property and the proceeds applied on the contract. The plain- 
tiffs received a portion of these proceeds, and the balance remain- 
ing unpaid was $321.66. Part of the lumber supplied went 
into the construction of the barn. The plaintiffs' lien did not 
include the barn, but only referred to material used in the erection 
of the house. The value of the lumber used for the barn was $100, 
leaving $221.66 as the amount proved by the plaintiffs under the 
lien. Several other liens were filed by other parties. 

Perdue, J., having stated the above facts in his judgment, 
said : — 



MECHANICS' LIEN ACT OP MANITOBA. 325 

" It is urged on ^behalf of the owner that as the house has 
never been completed there is nothing due to the contractors, and 
that sub-contractors are, under section 8 of the Mechanics' and 
Wage-Earners' Li«n Act, limited to the amount owing to the con- 
tractors. Section 12 of the Act introduces special provisions for 
the protection of wage-earners and provides for the enforcement of 
the lien in their favor in respect to a contract not completely ful- 
filled. It also provides that in such cases the wage-earners may 
enforce their liens against the percentage required to be retained 
by the proprietor, and this percentage was, in the case of 1 a contract 
not completely fulfilled, to be calculated on the work done or 
materials furnished by the contractor. The insertion in the Act 
of the provisions contained in section 12 shows that the protection 
extended to the lienholder of giving him a right to enforce his lien 
derived through a contractor, where the contractor has not fulfilled 
the contract, is limited to claims for wages. Where, however, the 
money is payable under a contract by instalments as the work pro- 
gresses, the general lienholders may enforce their liens to the 
extent of the instalments earned in so far as the same remain 
unpaid in the hands of the proprietor. Brydon v. Lutes, (1891) 
9 Man. 463. 

It was urged on behalf of the plaintiffs that the owner had 
accepted the work by occupying the house and by mortgaging the 
same. It is clear that the mortgage was in pursuance of a term 
in the contract in order to raise money to pay the contractors, and 
that this was done during the progress of the construction. The 
giving of the mortgage could not, therefore, be taken as an accept- 
ance of the whole work. There is a wide difference between the 
receiving and retaining of a chattel and the occupation of a build- 
ing erected upon the land of the occupant, in respect of the in- 
ference of acceptance from the act of the party. This has been 
clearly pointed out in Pattison v. Luchley, L. E. 10 Ex. 330; 
Sumpter v. Hedges, (1898) 1 Q. B. 673, and other cases. The 
building, although .incomplete and unsatisfactory, is upon the 
owner's land and is, perhaps, partly paid for. The owner may, 
although protesting against its incomplete or unsatisfactory state, 
be compelled to use and occupy it, unless he abandoned his land 
until the dispute is settled. Occupation under these conditions 
should not be construed as an acceptance. The contract in the 
case provided that $30 should be paid on execution of the instru- 



326 THE LAW OF MECHANICS' LIENS IN CANADA. 

ment, and this payment has been made. A second payment of 
$470 was to be made when the roof was covered in. This payment 
became due and the contractors received on account of it the 
equivalent of $200, leaving the sum of $270 still due and available 
for lienholders. The proceeds of the mortgage were not applic- 
able on this, but on the $1,500, under the terms of the contract. The 
further sum of $1,500 was payable ' on or before the completion of 
the building.' As the owner had the option of paying this sum 
either before the completion of the building or upon its completion, 
it is manifest that she is not legally compellable to pay the amount 
until the longer period had elapsed, and that payment cannot be 
enforced until the building has been completed." 

For other cases, showing that mere occupation of the house 
does not constitute acceptance, see citations under s. 6 of the On- 
tario Act. 

Although at the time of the abandonment by a contractor of 
his building contract there is, by the terms of it, nothing payable 
to him by the owner, a wage-earner may, nevertheless, have a lien 
upon the percentage held back by the owner pursuant to section 9, 
ante, and a right to preferential payment, under sub-sec. 2, of the 
above section. Wilhs v. Leduc, (1916) 27 Man. L. R. 72. 

13. Attempting to remove material affected by lien. — During 
the continuance of a lien no portion of the materials affected 
thereby shall be removed to the prejudice of the lien, and any at- 
tempt at such removal may be restrained on application to a judge. 

(2) Costs. — The judge to whom any such application is made 
may make such order as to the costs of and incidental to the 
application and order as he deems just. 

(3) Goods furnished for certain purposes not to be subject to 
execution. — When' any material is actually brought upon any land 
to be used in connection with such land for any of the purposes 
enumerated in section A of this Act, the same shall be subject to a 
lien in favor of the person supplying the same until put in the 
building, erection or work. E. S. M. c. 110, s. 13; 3 Geo. V., c. 
32, ss. 2, 3. 

See Ont. Act, section 16, to the same effect as this section, with 
the exception of (6), which contains a substantial variation. 



mechanics' lien act oe manitoba. 327 

Kegistration of Lien. 

14. Where lien to be registered. — A claim for lien may be 
registered in the land titles office in which instruments or deal- 
ings affecting the lands affected or proposed to be affected thereby 
are to be registered, if such lands have been brought, or if applica- 
tion has been made to bring them, under the operation of " The 
Eeal Property Act ;" and if the lands have not been so brought nor 
application made therefor, then such statement shall be registered 
in the registry office or land titles office for the registration district 
or, land titles district in which such lands are situate. If the 
lands be partly under- the operation of the said Act and partly 
not, each portion shall be affected only by registration in the 
proper office. E. S. M. c. 110, s. 14. 

See Ont. Act, section 17, to the same effect. 

15. A claim for lien shall state, — 

(a) Contents of claim. — The name and residence of the person 
claiming the lien and of the owner of the property to be charged 
(or of the person whom the person claiming the lien, or his agent, 
believes to be the owner of the property to be charged) and of the 
person for whom and upon whose credit the work (or service) is 
done, or the materials are furnished or placed, and the time or 
period within which the same was, or was to be, done or furnished 
or placed; 

(b) a short description of the work (or service) done, or the 
materials furnished or placed, or to be furnished or placed; 

(c) the sum claimed as due or to become due; 

(d) a description of the land to be charged, sufficient for the 
purpose of registration; 

(e) the date of expiry of the period of credit (if any) agreed 
by the lienholder for payment for his work (or service) or mater- 
ials, where credit has been given. 

• (2) Form of claim. — The claim may be in one of the forms 
given in Schedule A to this Act, and shall be verified by the affi- 



328 THE LAW OF MECHANICS' LIENS IN CANADA. 

davit of the person claiming the lien or of his agent or assignee 
having a personal knowledge of the matters required to be verified, 
and the affidavit of the agent or assignee shall state that he has 
such knowledge. E. S. M. c. 110, s. 15. 

See Ont. Act, section 17 (a), to'the same effect, except that 
clause (3) of that Act, providing for the registration of liens 
against railway companies, is omitted here. 

The affidavit verifying the claim may be sworn before the 
claimant's solicitor. Poison v. Thompson, (1917) 26 Man. L. E. 
410. 

■The claim need not give details of the work and materials. 
See Form No. 1 in the Schedule, and Irwin v. Beynon, (1886) 4 
Man. 10. 

" Objection is taken to the description of the residence of the 
claimant, which should state in what part of the town of Minne- 
dosa he resides, but I hold that when he describes himself as of 
the town of Minnedosa, it is quite sufficient." Irwin v. Beynon, 
supra, per Dubuc, J. 

" It is also argued that the statement of claim does not suffi- 
ciently state who is the reputed owner, and also the person for 
whom the work was done. The statement of claim registered 
states that the plaintiff claims a lien upon the estate of G. W. 
Beynon, barrister-at-law. I think this is sufficient and it is also 
in accordance with the form given in the Ontario statute." Irwin 
v. Beynon, supra, per Dubuc, J. 

In Flack v. Jeffrey, (1895) 10 Man. 514, the lien as filed stated 
that the work was commenced on a" specified day and that it was 
finished " on or before " a certain other day. Held, following 
Truax v. Dixon, 17 0. E. 356, and in view of the Manitoba Inter- 
pretation Act, that the statement was sufficient. See Kelly v. 
McZenzie, (1884) 1 Man. 169. 

It is sufficient if the claim states the name of the person whom 
the claimant believes to be the " owner " of the property. Poison 
v. Thomson, (1917) 26 Man. L. E. 410. 

16. What may be included in claim. — A claim for lien may 
include claims against any number of properties, and any number 
of persons claiming liens upon the same property may unite therein, 



MECHANICS' LIEN ACT OF MANITOBA. 329 

but where more than one lien is included in one claim each lien 
shall be verified by affidavit as provided in the last preceding sec- 
tion. E. S. M. c. 110, s. 16. 

See Ont. Act, section 18, to the same eSect. See also Fair- 
dough y. Smith, (1901) 13 Man. 509, cited with the cases under 
section 6 of the Ontario Act. 

17. Claims not to be invalidated for informality. — A substan- 
tial compliance only* with the two last preceding sections shall be 
required, and no lien shall be invalidated by reason of failure to 
comply with any of the requisites of the said sections, unless in the 
opinion of a judge the owner, contractor or sub-contractor, mort- 
gagee or other person, as the case may be, is prejudiced thereby, 
and then only to the extent to which he is thereby prejudiced. 

(2) Liens must be registered. — Nothing in this section con- 
tained shall be construed as dispensing with registration of the 
lien required by this Act. E. S. M. c. 110, s. 17; 3 Geo. V./c. 32, 
s. 4. 

See Ont. Act, section 19 to the same effect. 

In Robock v. Peters, (1900) 13 Man. 124, the facts in which 
are stated under section 20, post, it was held that although " S.'s " 
claim was from 1st August to 27th October, he might claim for 
work done prior to 1st August unless some one were prejudiced 
and that the onus was on the person to show his being prejudiced. 

A substantial compliance with the terms of the statute as to 
the prescribed form of lien is sufficient to enable the lien to attach. 
Flack v. Jeffrey, 10 Man. L. E. 514. See Scratch v. Anderson, 
(1909) 2 Alta L. E. 109; Limoges v. Scratch, (1910) 44 Can. 
S. C. E. 86. 

It is not a fatal objection to a lien that it was registered against 
too much land, if there were no fraudulent intent and no one is 
prejudiced or injured thereby. Poison v. Thomson, (1917) 26 
Man. L. E. 410. 

18. Lien to be registered as an encumbrance. — The registrar, 
upon payment of his fee, shall register the claim, so that the same 
may appear as an encumbrance against the land therein described. 



330 THE LAW OF MECHANICS'" LIENS IN CANADA. 

(2) Fee for registration. — The fee for registration of a claim 
of lien for wages shall be twenty-five cents. E. S. M. c. 110; s. 18. 

See Ont. Act, section 20, to the same effect. 

19. Person registering a purchaser pro tanto. — Where a claim 
for lien is so registered, the person entitled to the lien shall be 
deemed a purchaser pro tanto, and within the provisions of " The 
Eegistry Act " ; but, except as herein otherwise provided, " The 
Eegistry Act " shall not apply to any lien arising under this Act. 
E. S. M. c. 110, s. 19. 

See Ont. Act, section 21, to the same effect. 

20. Claims for liens, when to be registered. — A claim for lien 
by a contractor or subcontractor may, in cases not otherwise pro- 
vided for, be registered before or during the performance of the 
contract or within thirty days after the completion thereof. 

(2) A claim for lien for materials may be registered before 
or during the furnishing or placing thereof or within thirty days 
after the furnishing or placing of the last material so furnished 
or placed. 

(3) A claim for lien for services may be registered at any time 
during the performance of the service or within thirty days after 
the completion of the service. 

(4) A claim for lien for wages may be registered at any time 
during the performance of the work for which such wages are 
claimed, or within thirty days after the last day's work for which 
the lien is claimed. E. S. M. c. 110, s. 20. 

See Ont. Act, section 22, to the same effect. 

"Completion" means "substantial completion." See Kelly 
V. McKenzie, (1884) 1 Man. 169; McLennan v. Winnipeg, (1882) 
3 Man. 474; Irwin v. Beynon, (1886) 4 Man. 10. See also notes 
under section 22, Ont. Act. 

The plaintiff quit work on an elevator, it being understood 
that he should return and finish his contract when the elevator 
was far enough advanced to allow him to test the machinery 
which he had placed in it. When the plaintiff's men returned 



MECHANICS'" LIEN ACT OF MANITOBA. 331 

to finish the contract they were stopped by the company. Then 
the plaintiff registered a mechanics' lien within thirty days from 
the attempt to finish his contract, but more than thirty days 
after his last work had been done on the elevator. It was held, 
upon the evidence, that the lien was registered in time and could 
be enforced. It was held, upon appeal, that the time limited 
for the registration of claims for liens by section 20 does not com- 
mence to run until there has been such performance of the con- 
tract as would entitle the contractor to maintain an action for 
the whole amount due thereunder. Bay v. Grown Grain Co., 
(1907) 39 Can. S. C. E. 258. See Whimster v. Crow's Nest Pass 
Coal Co., (1910) 13 W. L. E. 621. 

In Chadwick y. Hunter, (1884) 1 Man. 39, it was decided 
that where materials are supplied as required from time to time 
during the progress of the work, not under a contract covering 
the whole supply, each sale is a separate transaction and requires 
separate registration. But see Rooock y. Peters, (1900) 13 Man. 
124, in which this case is distinguished, and Morris v. Tharle, 
(1893) 24 O. E. 159, followed, and Kelly v. McKenzie, supra, 
held not applicable. In. Rooock v. Peters, supra, the- facts were 
as follows : In 1899 defendant bought land and paid part of pur- 
chase money. There was no conveyance. He made a contract 
with plaintiff to build a hotel and stable. Work began in July 
and finished on 5th of September. The. lien was registered on the 
22nd of September, and a certificate of lis pendens on the 2nd of 
November. There was no defence. Appointment and trial duly 
fixed. " S." consented to supply materials on credit and did so 
from time to time as they were ordered between 16th of June and 
27th of October. Defendant occupied the hotel from July and the 
work went on until after the 27th of October. " S." registered lien 
on the 25th of November and certificate of lis pendens on the 20th 
of January, 1900. Defendant obtained loan of $300 on the 5th of 
August, 1899, and took mortgage for $435. A deed to defendant 
was executed on the 18th of October when remaining $135 was 
advanced by " B." " B.'s " mortgage was registered on the 7th 
of November, 1899. Defendant mortgaged to loan company on 
the 3rd of October for $900. Eegistration of mortgage 20th of 
October, 1899. There was due on that mortgage only $22.75, 
for solicitor's fees. Defendant mortgaged to S. & D. to secure 
claims, dated 17th November, incumbrance registered 18th 



332 THE LAW OF MECHANICS' LIENS IN CANADA. 

November, 1899. Defendant conveyed to "W." on 30th January 
1900, registered 1st February, 1900. All these parties were 
brought in by notice of trial and appeared by counsel. 

Held, under sections 20 (2), 21, 28, 31, 32, 27 (1) and (2), 
that " S.'s " claim could be realized in this action, although he 
was not a party to it, and there was no binding contract to deliver 
the materials, the several orders being so linked together as to 
constitute one cause of action. The time ran from the supply 
of the last materials. 

Also, that incumbrancers other than lienholders might be 
dealt with in this action. Bank of Montreal v. Haffner, (1884) 
10 A. E. 592, and McVean v. Tiffin, (1885) 13 A. E. 1, modified by 
section 23 of Ontario Act. If the work is done in good faith, and 
in order to complete the building, and not colorably to revive the 
lien, the time begins to run from the completion of such work and 
from delivery of the last materials supplied in performing it. 
Sieinman v. Koscuk, (1906) 4 W. L. E, 514. 

The plaintiff's right to a lien depended on whether they were 
entitled to reckon the thirty days after the_ completion of their 
contract, from the doing of a small job of pointing some stonework 
at the request of the owner more than thirty days after the com- 
pletion of all the rest of the work. It was held that they were so 
entitled. Brynjolfsen v. Oddsen, (1916) 27 Man. L. E. 390. 

When materials are delivered to a contractor under one con- 
tract covering them all, the time for filing the lien for all runs 
from the last delivery and it is not necessary to -file separate liens 
for each lot delivered. Poison v. Thomson, (1917) 26 Man. L. E. 
410'. 

Under this provision enabling claims for liens by contractors 
or sub-contractors to be registered within thirty days after the 
completion of "the contract," a sub-contractor is to register his 
lien within thirty days after the completion of his contract with 
the principal or superior contractor. Merrick v. Campbell, 
(1914) 24 Man. L. E. 446, 17 D. L. E. 415. 

Deteemination of Lien. 

21. 'Liens to cease if not registered within time fixed by Act. — 

Every lien which is not duly registered under the provisions of 
this Act shall absolutely cease to exist on the expiration of the 



MECHANICS' LIEN ACT OF MANITOBA. 333 

iime hereinbefore limited for the registration thereof. E. S. M. 
c. 110, s. 21 ; 3 Geo. V., c. 32, s. 11. 

See Out. Act, section 23, to the same effect. 

See Davidson v. Campbell, (1888) 5 Man. L. E. 250, referred 
to under section 23 of the Ontario Act. 

Under a former Act the lien had no existence until registered 
(Kievell v. Murray, (1884) 2 Man. 209. 

22. When lien to cease if registered and not proceeded upon. — 

Every lien which has been duly registered under the provisions of 
this Act shall absolutely cease to exist after the expiration of 
ninety days after the work or service has been completed or ma- 
terials have been furnished or placed, or the expiry of the period 
of credit, where such period is mentioned in the claim of lien 
registered, unless in the meantime an action is commenced, to real- 
ize the claim under the provisions of! this Act or an action is com- 
menced in which the claim may be realized under the provisions of 
this Act, and a certificate of lis pendens in respect thereof, issued 
from the court in which the action is brought, according to form 
No.' 5 in the schedule hereto, is registered in the proper registry - 
office, or land titles office. E. S. M. c. 110, s. 22; 7-8 Ed. VII., c. 
28, s. 2. 

A certificate that some title or interest in the land is called in 
question, without any reference to a mechanics' lien, is not a suffi- 
cient compliance with the Act. Curtis v. Richardson, (1909) 18 
Man. L. E. 519. 

See Ont. Act, section 24 (1), to the same effect. 

An action to realize the lien, commenced in a judicial division 
other than that in which the property affected is situated, though 
within the ninety days, cannot be transferred to the County Court 
of the proper judicial division under sections 73 and 74 of the 
" County Courts Act " so as to confer upon it any jurisdiction to 
proceed with the realization of the lien. Meunier v. Hinman, 
(1916) 27 Man. L. E. 70. 

A claim, under this section, cannot be "realized" unless the 
person who is the registered owner of the land at the time of the 
commencement of the action is made a party to it, or unless there 



334 THE LAW OE MECHANICS'" LIENS IN CANADA. 

is some other action pending, to which such owner is a party, in 
which the claim may be "realized," and, in such case, although 
the lien has been duly registered within the time required by the 
Act, it absolutely ceases to exist unless some action to which the 
registered owner is a party has been commenced under the provi- 
sions of the Act, within the period of 90 days prescribed by the 
Act. Abramovitch v. Vrondressi, (1913) 23 Man. L. E. 383, 
11 D. L. E. 352. 

Transmission of Lien. 

23. Death of lienholder. — In the event of the death of a lien- 
holder his right of lien shall pass to his personal representatives; 
and the right of a lienholder may be assigned by any instrument 
in writing. E. S. M. c. 110. s. 23. ' 

See Ont. Act, section 26, to the same effect. 

Discharge of Lien. 

24. Discharge of lien.' — A lien may be discharged ,by a receipt 
signed by the claimant or his agent duly authorized in writing, 
acknowledging payment, and verified by affidavit and registered, 
the fees for such registration being the same as for registering a 
claim of lien. 

(2) Security or payment into court and vacating lien thereon. 

— Upon application a judge may receive security or payment into 
court in lieu of the amount of the claim, and may thereupon vacate 
the registration of the lien. 

(3) Vacating registration on other grounds. — The judge may 
vacate the said registration upon any other ground. E. S. M. c. 
110, s. 24, part; 7-8 Ed. VII., c. 28, s. 3; 3 Gteo. V., c. 32, ss. 5, 6. 

25. Certain acts not to prejudice right to enforce lien. — The 

taking of any security for, or "the acceptance of any promissory 
note for, or the taking of any other acknowledgment of, the claim, 
or the giving of time for the payment of the claim, or the taking 



MECHANICS' LIEN ACT OF MANITOBA. 335 

of any proceedings for the recovery of the claim or the recovery 
of any personal judgment for the claim, shall not merge, waive, 
pay, satisfy, prejudice or destroy any lien created by this Act, unless 
the lienholder agrees in writing that it shall have that effect. 

(2) The discounting or negotiation of any promissory note, or 
other security, taken or accepted as aforesaid, shall not waive, pay, 
satisfy, prejudice or destroy any lien created by this Act, but the 
lienholder taking or accepting such promissory note, or other 
security, shall retain his lien for the benefit of the holder of said 
promissory note or other security : 

Provided, however, that a person who has extended the time 
for payment of any claim for which he has a lien under this Act, 
shall, in order to obtain the benefit of this section, commence an 
action to enforce such lien within the time limited by this Act, 
and register a certificate as required by this Act, but no further 
proceedings shall be taken in the action until the expiration of 
such extension of time : 

Provided, further, that, notwithstanding such extension of 
time, such person may, where an action is commenced by any other 
persons to enforce a lien against the same property, prove and 
obtain payment of his claim in such action, as if no such extension 
had been given. R. S. M. c. 110, s. 24, part; 7-8 Ed. VII., c. 28, 
s. 1. 

The cases of Arbuthnot Co. v. Winnipeg M. Co., 16 Man. L. R. 
401, and National Supply Co. Y^Horrobin, 16 Man. L. E. 472, were 
decided under a former section. 

Discovert. 

26. Lienholders to be entitled to information from owners as 
to terms of contract. — Any lienholder or person entitled to a lien 
may at any time demand of the owner or his agent the terms of 
the contract or agreement with the contractor for and in respect of 
which the work, services or materials is or are performed or furn- 
ished or placed, and if such owner or his said agent shall not, at 



336 THE LAW OF MECHANICS' LIENS IN CANADA. 

the time of such demand or within a reasonable time thereafter, 
inform the person making such demand of the terms of such 
contract or agreement and the amount due and unpaid upon such 
contract or agreement, or shall intentionally or knowingly falsely 
state the terms of said contract or agreement or the amount due 
or unpaid thereon; and if the person claiming the lien sustain loss 
by reason of such refusal or neglect or false statement, said owner 
shall be liable to him in an action therefor to the amount <cf such 
loss. 

(2) Order for inspection of contract by lienholders. — A judge 
may on a summary application at any time before or after any 
action is commenced for the enforcement of such lien, make an 
order for the owner or. his agent to produce and allow any lien- 
holder to inspect any such contract, and may make such order as 
to the costs of such application and otherwise as may be just. 
E. S. M. c. 110, ss. 25, 26 ; 3 Geo. V. c. 32, s. 7. 

See Ont. Act, section 30, to the same effect. 

Enforcement of Lien. 

27. Liens to be realized in County Court. — A lien created by 
this Act, whatever the amount thereof, may be realized by action 
in the County Court of the judicial division in which the property 
affected by the lien is situated, according to the ordinary procedure 
of such court, except where the same is varied by this Act. 3 Geo. 
V., c. 32, s. 1 (27). 

See Meunier v. Hinman, (1916) '27 Man. L. R. 69, noted under 
section 22, ante. 

See Ont. Act, section 31 (1), (4), to the same effect. 

See Roboch v. Peters, (1900) 13 Man. 124, where parties 
were brought in by notice of trial. Under a former Act, where 
any material amendment to a bill was made, the amended bill 
had to be registered as a lis pendens within the time prescribed 
for registration, or the lien would cease. Thus in Davidson v. 
Campbell, (1888) 5 Man. 250, the bill alleged a contract with 
defendant " C." for the performance of certain work in the 



MECHANICS' LIEN ACT OF MANITOBA. 337 

erection of a building upon land of " C." By amendment made 
after the time for filing the bill had elapsed the plaintiffs alleged 
that their contract was with the defendants " K. and McD./' who 
had contracted with " C." for the erection of the whole building, 
thus changing their position from contractors to sub-contractors. 
No new certificate of -lis pendens was filed. Held, that the plaintiff 
could not rely upon the original bill and certificate of lis pendens. 
But an immaterial amendment did not necessitate re-registration. 
Irwin v. Beyrion, (1886) 4 Man. 10. 

An owner of property who employed a contractor to build a 
house and before the- filing of a lien by a sub-contractor against 
the contractor conveyed all his interest in the land to a purchaser, 
is neither a necessary nor a proper party to the action afterwards 
commenced to realize the lien, as the plaintiff could not have any 
relief against him. Although the plaintiff's claim would be lim- 
ited to the amount due by the original owner to the contractor, 
and he would have to prove what the indebtedness was, yet that 
would not justify making the original owner a party, as the plain- 
tiff could prove that indebtedness at the trial or -on a reference 
to the Master without having the original owner before the court. 
Christie v. McKay, 15 Man. L. E. 612, 2 W. L. E. 303. 

See Dominion Lumber & Fuel Go. v. Pashov, 29 Man. L. E. 325, 
(1919) 1 W.-W. E. 657, noted under section 5 ante. 

28. Statement of claim. — A writ of summons shall not be issued, 
but the action shall be commenced by filing in the office of the 
court a statement of claim, entitled in the court and cause, giving 
in plain and ordinary language the grounds and particulars of the 
claim. 3 Geo. V. c. 22, s. 1 (28). 

29. Notices of address, etc. — The statement of claim and every 
copy thereof served shall contain or have endorsed upon it a notice 
giving the name and address of the solicitor who issues the same 
or of the plaintiff, if issued by the plaintiff in person, and the 
office in which and the time within which the statement of defence 
is to be filed. 3 Geo. V., c. 32, s. 1 (29). 

30. Defence. — A defendant may, within sixteen days after be- 
ing served with the statement of claim, file in the office of the 

MX— 22 



338 THE LAW OF MECHANICS' LIEN'S 1ST CANADA. 

court a statement of defence, entitled in the court and cause, show- 
ing clearly and concisely the nature of his defence, and serve on 
the plaintiff or his solicitor a copy thereof, and if he fail to do 
so he shall, unless otherwise ordered by a judge, be precluded from 
disputing the plaintiffs claim and right to a lien, and the plaintiff 
shall have the right to sign interlocutory judgment against the 
defendant in a manner similar to the signing of such judgment in 
an action in the Court of King's Bench. 

(2) The defendant may, in a proper case, be allowed in to 
defend by order of the judge upon such terms as he shall think 
just. 3 Geo. V., c. 32, s. 1 (30). 

i 

31. Notice of address.' — The statement of defence, and the 

copy thereof served, shall contain or have endorsed upon it a notice 
giving the name and address of the solicitor who files the same, or 
of the defendant if filed by the defendant in person. 3 Geo. V., c. 
32, s. 1 (31). 

32. Action shall enure for benefit of all lienholders. — It shall 
not be necessary to make any lienholders parties defendant to the 
action, but all lienholders served with the notice of trial shall for 
all purposes be treated as if they were parties to the action. 3 Geo. 
V., c. 32, s. 1 (32). 

33. Lienholders may join in action. — Any number of lien- 
holders claiming liens on the same property may join in an action, 
and any action brought by a lienholder shall be taken to be -brought 
on behalf of all other lienholders on the property in question. 3 
Geo. V., c. 32, s. 1 (33). 

The expression " lienholder " in this section means a person 
having a lien which was valid at the time of commencing his 
action, so that when, in an action commenced by a lien claimant it 
is decided that he had no valid lien and no action was commenced 
within the time prescribed by section 22 of this Act by any other 
person claiming, a lien on the same property, all the liens upon it 
must fail., Builders Supply Co. v. Huddlestone, (1915) 25 Man. 
L. E. 718. 



MECHANICS' LIEN ACT 0¥ MANITOBA. 339 

34. Appointing day for trial. — After the filing and service of 
the statement of defence, or after the time for filing and serving the 
same, if none is filed and served, upon application to a judge by 
any party to the action, he shall give an appointment, fixing a 
time and place for the trial of the action, which -time may be the 
date of the ordinary sittings of the court or otherwise. 3 Geo. V., 
c. 32, s. 1 (34). 

See Humphrey y. Cleave, 15 Man. L. E. 23, also Dixon v. Boss, 
(1912) 1 D. L. E. 14.' 

35. Service of notice of trial. — The party obtaining such ap- 
pointment shall, at least eight clear days before the day fixed for 
the trial (unless the judge directs that a shorter notice may be 
given), serve a notice of trial, which may be according to form No. 
10 in Schedule A to this Act, upon the solicitors for the parties 
who appear by solicitors, and on all lienholders known to him who 
have registered their liens as required by this Act, and on all other 
persons having any registered charges, incumbrance or claims on 
the said lands, who are not parties or who, being parties, appear 
personally in the said action; and such service shall be personal, 
unless otherwise directed by the judge or local judge who is to try 
the case, who may, in lieu of personal service, direct in what man- 
ner the notice of trial may be served. 

See Ont. Act, section 37, to the same effect. 

36. Every lienholder not already a plaintiff in the action, shall 
within six days after being served with the notice of trial file in the 
office of the court a statement showing the grounds and particulars 
of his claim, and if he fail to do so, he shall, unless otherwise 
ordered by the judge, be precluded from asserting his lien. 

37. On the day fixed for the trial, or on such other day to 
which the trial may be adjourned, the judge shall proceed to try 
the action, and all questions which arise therein, or which are neces- 
sary to be tried, to completely dispose of the action, and to adjust 



340 THE LAW OF MECHANICS' LIENS IN CANADA. 

the rights and liabilities of the persons appearing before him, or 
upon whom the notice of trial has been served, and at the trial shall 
take all accounts, make all inquiries, and give all directions, and do 
all things necessary to try and otherwise finally dispose of the ac- 
tion and of all matters, questions and accounts arising in the action 
or at the trial, and to adjust the rights and liabilities of and give 
all necessary relief to all parties to the action, or which have been 
served with the notice of trial, and shall embody all the results in 
the judgment. 3 Geo. V., c. 32, s. 1 (37). 

When the, plaintiff in an action to realize upon a mechanics' 
lien intends to dispute the right of a prior , mortgagee to priority 
for more than the actual value of the land at the time the improve- 
ments were commenced, it is not necessary to make the mortgagee 
a party to the action in the first place, but the notice of trial may, 
under section 35, be served upon the mortgagee and the question 
of priority and for what amount may be determined at the trial. 
Dominion Lumber & Fuel Co. v. Paskov, 29 Man. L. E. 325, 
(1919) 1 W. W. E. 657. In this case the plaintiff- had joined the 
mortgagee as a defendant to the action and in his statement of 
claim had expressly conceded priority for the whole amount of the 
mortgage. It was held that unless the mortgagee could show that 
it had been induced to alter its position to its prejudice in conse- 
quence of that concession, the plaintiff should be permitted to 
amend. 

38. Sale may be ordered. — The judge may, in the judgment, 
order that the estate or interest charged with the lien may be sold, 
and may direct the sale to take place at any time after judgment, 
allowing, however, a reasonable time for advertising such sale. 

(2) The judge may also direct the sale of any materials and 
authorize the removal thereof. 3 Geo. V., c. 32, s. 1 (38). 

39. Report on sale. — When a sale is had, the moneys arising 
therefrom shall be paid into court to the credit of the action, and 
the judge shall make a report on sale and therein direct to whom 
the moneys in court shall be, paid, and may add to the claim of the 
person conducting the sale his actual disbursements incurred in 



MECHANICS' LIEN ACT OF MANITOBA. 341 

connection therewith ; and, where sufficient to satisfy the judgment 
and costs is not realized from the sale, he shall certify the total 
amount of the deficiency and the proportion thereof falling upon 
each person entitled to recover, and the persons by the judgment 
adjudged to pay the same. 

(2) Vesting order. — The judge may make all necessary orders 
for the completion of the sale, and for vesting the property in the 
purchaser. 3 Geo. V., c. 32, s. 1 (39). 

40. Deficiency recoverable by usual process. — All judgments in 
favor of lienholders shall adjudge that the person or persons per- 
sonally liable for the amount of the judgment shall pay any de- 
ficiency which may remain after sale of the property adjudged 
to be sold; and, whenever on such sale sufficient to satisfy the 
judgment and costs is not realized therefrom, the deficiency may be 
recovered against the property of sueh person or persons by the 
usual process of the eourt. 3 Geo. V., c. 32, s. 1 (40). 

See Ont. Act, section 48, to the same effect. 

41. Personal judgment when lien fails. — Whenever any claim- 
ant shall fail for any reason to establish a valid lien, he may never- 
theless recover in the action a personal judgment against the party 
or parties to the action for such sum or sums as may appear to be 
due to him and which he might recover in an action in contract 
against such party or parties. 3 Geo. V,, c. 32, s. 1 (41). 

See Ont. Act, section 49, to the same effect. 

42. Allowing claim to be proved after trial. — Any lienholder, 
who has not proved his claim at the trial, may, on application to 
the judge who tried the action and on such terms as to costs and 
otherwise as may be just, be let in to prove his claim at any time 
before the amount realized in the action has been distributed ; and, 
where sueh claim is proved and allowed, the judge shall amend the 
judgment so as to include such claim therein. 3 Geo. V., c. 32, 
s. 1 (42). 



342 THE LAW OF MECHANICS' LIENS IN CANADA. 

43. Consolidation of actions. — Where more than one action is 
brought to realize liens in respect of the same property, a judge 
may, on the application of any party to any one of such actions, or 
on the application of any other person interested, consolidate such 
actions into one action, and may give the conduct of the consoli- 
dated action to any plaintiff in his discretion. - . 3 Geo. V., c. 32, s. 
1 (43). 

44. Carriage of proceedings. — The judge, on the application of 
any lienholder entitled to the benefit of the action, may make an 
order giving such lienholder the carriage of the proceedings, and 
such lienholder shall thereafter for all purposes be deemed to be 
the plaintiff in the action. 3 Geo. V., c. 32, s. 1 (44) . 

45>. When judgment final. — In actions where the total amount 
of the claims of the plaintiff and all other persons claiming liens 
is one hundred dollars or less, the judgment at the trial shall be 
final, binding and without appeal, except that, upon application 
within fourteen days after .judgment is prondunced, the judge, who 
tried the action may grant a new trial. 3 Geo. V., c. 32, s. 1 (45). 

46. When appeal lies. — In actions where the total amount of 
the claims of the plaintiff and all other persons claiming liens 
exceeds one hundred dollars, any person affected by the judgment 
may appeal therefrom to the Court of Appeal, whose judgment 
shall be final and binding, and no appeal shall lie therefrom. The 
procedure on such appeal shall be the same as in ordinary cases of 
appeal from the County Court. 3 Geo. V., c. 32, s. 1 (46). 

See Crown Grain Co. v. Day, (19(18) A. C. 504, declaring the 
limitation of the right of appeal ultra vires. 

47. limit of costs to plaintiff.* — The costs of the action awarded 
by the judge trying the action shall not exceed in the aggregate an 
amount equal to twenty-five per cent, of the amount of the judg- 
ment, besides actual disbursements, and shall be in addition to the 
amount of the judgment, and shall be apportioned and borne as 
the judge may direct. 3 Geo. V., c. 32, s. 1 (47). 



MECHANICS' LIEN ACT OF MANITOBA. 343 

See McDonald Dure Lumber Co. v. Workman, 18 Man. L.' E. 
419 ; Humphreys v. Cleave, 15 Man. L. E. 23 ; Leibrock v. Adams, 
17 Man. L. E. 575. 

48. Limit of costs against plaintiff. — When the costs are 
awarded against the plaintiff or other persons claiming liens, 
such costs shall not exceed in the aggregate an amount equal to 
twenty-five per cent, of- the claim of the plaintiff and other claim- 
ants, besides actual disbursements, and shall be apportioned and 
borne as the judge may direct. 3 Geo. V., c. 32, s. 1 (48). 

49. Counsel fees. — Counsel fees shall not be deemed disburse- 
ments under the next two preceding sections. 3 Geo. V., c. 32, s. 
1 (49). 

50. least expensive course to be taken. — If the least expen- 
sive course is not taken by a party under this Act, the costs allowed 
to him shall in no case exceed what would have been incurred if 
the least expensive course had been taken. 3 Geo. V., c. 32, s. 1 
(50). 

51. Costs in discretion of judge. — The costs of and incidental 
to all applications and orders made under this Act, and not other- 
wise provided for, shall be in the discretion of the judge to whom 
the application, or by whom the order, is made. 3 Geo. V., c. 32, 
s. 1 (51). Eepealed. See c. 60 of the Statutes of 1914, post. 

52. Costs of vacating lien. — Where a lien is discharged or 
vacated under section 24 of this Act, or when in an action judg- 
ment is given in favor of or against a claim for a lien, the judge 
may allow a reasonable amount for costs of drawing and registering 
the lien or for vacating the registration thereof. 3 Geo. V., c. 32, 
s. 1 (52). 

53. Wo fees on payments out of court. — No fees shall be pay- 
able on any cheques or proceedings to pay money into court or 
obtain money out of court in respect of a claim of lien, but suffi- 
cient postage stamps to prepay a return registered letter . shall 



344 THE LAW OF MECHANICS' LIENS IN CANADA. 

be enclosed with every requisition for cheques. 3 Geo. V., c. 32, 
s. 1 (53). 

54. Winnipeg actions may be referred to referee of K.B. — In 

an action brought in the County Court of the judicial division of 
Winnipeg, a judge of the said court may refer the action to the 
referee in chambers of the Court of King's Bench, who thereupon 
shall have the same powers and jurisdiction to hear and dispose 
of the action and all matters and questions therein involved as a 
judge would have under this Act, and his judgment shall 'be sub- 
ject to the same right of appeal, but the action shall continue to be 
an action in the County Court, and the proceedings shall be in- 
tituled and taken therein, and in all other respects such proceed- 
ings shall be the same as if the action had not been so referred. 3 
Geo. V., c. 32, s. 1 (54). 

55. King's Bench practice to be adopted in certain cases.— In 

any case not satisfactorily covered by the procedure provided for 
by this Act or by the ordinary procedure of the County Court, 
the practice and procedure of the Court of King's Bench may be 
adopted and applied. 3 Geo. V., c. 32, s. 1 (55). 

Forms. 

56. Forms. — The forms in the schedule hereto, or forms similar 
or to the like effect, may be adopted in all proceedings under this 
Act. 3 Geo. V., e. 32, s. 1 (56) .. 



MECHANICS'' LIEN ACT OF MANITOBA. 345 



CHAPTEE 60. 

An Act to amend " The Mechanics' and Wage-eaenebs' Lien 

Act." 

(Assented to February 2nd, 1914.) 

HIS MAJESTY, by and with the advice and consent of the 
Legislative Assembly of Manitoba, enacts as follows: — 

1. Section 51 of " The Mechanics' and Wage-earners' Lien Act," 
being chapter 125 of the Eevised Statutes of Manitoba, 1913, is 
hereby repealed and the following substituted therefor: — 

51. Notwithstanding anything contained in "The County 
Courts Act," the costs of and incidental to all actions, applications 
and orders commenced or made under this Act shall be in the dis- 
cretion of the judge, subject always to the limitations provided 
for by sections 47, 48 and 49 of this Act. 

2. This Act shall come into force on the day it is assented to. 



SCHEDULE. 

The following is the schedule referred to in this Act: — 

Schedule A. 

Poem No. 1. — (Section 15.) 

Claim of Lien. 

A. B> (name of claimant), of (here state residence of claim- 
ant), (if so, as assignee of, stating name and residence of assignor), 
under the " Mechanics' and Wage Earners' Lien Act," claims a 
lien upon the estate of (here state the name and residence of owner 
of the land upon which the lien is claimed) in the undermentioned 
land in- respect of the "following work (service or materials), that is 
to say (here give a short description of the nature of the work done 
or materials furnished, and for which the lien is claimed), which 
work (or service) was (or is to be) done (or materials were fur- 
nished) for (here state the name and residence of the person upon 
whose credit the work is done or materials furnished) , on or before 
the day of , 19 . 



346 THE LAW OF MECHANICS' LIENS IN CANADA. 

The amount claimed as due (or to become due) is the sum 
of $ 

The following is a description of the land to be charged (here 
set out a concise description of the land to be charged sufficient for 
the purpose of registration). 

When credit has been given, insert: The said work was done 
(or materials were furnished) on credit, and the period of credit 
agreed to expired (or will expire) on the day of , 

19' . 

Dated at , this day of , 19 . 

(Signature of claimant.) 
E. S. M. c. 110, sch., form 1-. 



FoEm No. 2.^(Section 15.) 
Claim of Lien foe Wages. 

A. B. (name of claimant), of {here state residence of claim- 
ant), (if so, as assignee of, stating name and residence of assignor), 
under the " Mechanics' and Wage Earners' Lien Act," claims a lien 
upon the estate of (here state the name and residence of the owner 
of land upon which the' lien is claimed) in the undermentioned 
land, in respect of days' work performed while in the em- 

ployment of (here state the name and residence of the person upon 
whose credit the worle was done) on- or before the day- 

of , 19 . 

The amount claimed' as due is the sum of $ 

The following is the description of the land to be charged 
(here set out a concise description of the land to be charged suffi- 
cient for the purpose of registration). 

Dated at , this day of , 19 . 

(Signature of claimant.) • 
R. S. M. c. 110, sch., form 2. 



Foem No. 3. — (Section 15.) 

Claim of Lien foe Wages by Seveeal Claimants. 

The following persons, under the " Mechanics' and Wage Earn- 
ers' Lien Act," claim a lienupon the estate of (here state the name 



MECHANICS' LIEN ACT OP MANITOBA. 347 

and residence of the owner of land upon which the lien is claimed) 
in the undermentioned land in respect of wages for labor performed 
thereon while in the employment of (here state name and residence 
or names and residences of employers of the several persons claim- 
ing the liens). 

A. B. of (residence) $ for days' wages. 

C. D. of (residence) $ for days' wages. 

E. P. of (residence) $ for days' wages. 

-The following is the description of the land to be charged (here 
set out a concise description of the land to be charged sufficient for 
the purpose of registration) . 

Dated at , this day of , 19 . 

(Signatures of the several claimants.) 

E. S. M. c. 110, sch., form 3. 



Foem No. 4. — (Section 15.) 

Affidavit Verifying Claim. 

I, A. B., named in the above (or annexed) claim, do make oath 
that the said claim is true. 

Or, we, A. B., and C. D., named in the above (or annexed) 
claim, do make oath, and each for himself saith that the said claim, 
so far as relates to him, is true. 

[Where affidavit is made by agent or assignee, a clause must be 
added to the following effect: I have full knowledge of the facts set 
forth in the above (or annexed) claim.] 
Sworn before me at , in 

of , this day 

of , 19 . 

Or the said A. B. and C. D, were 
severally sworn before me at 
, in the of , this 

day of , 19 . 

Or the said A. B. was sworn before 
me at in the 

of this day of 

, 19 . 

E. S. M. c. 110, sch., form 4. 



348 THE LAW OF MECHANICS'" LIENS IN CANADA. 

(Fohm No. 5. — (Section 22.) 

Certificate of Lis Pendens. 

{Style of Court and Cause.) 

I certify that the above-named plaintiff has commenced an ac- 
tion in the above court to enforce against the following land 
{describing it) a. claim to a mechanics' lien for $ 

Dated at , this day of , 19 . 

f seal] E. S. M. c. 110, sch., form 6. 



Poem No. 6. — (Section 35.) 

Notice of Teial. 
{Style of Court and Cause.) 

Take notice that this action will be tried at the Court House in 
the of , on the day of , 

by a judge of this Court, and at such time and place the said 
judge will proceed to try this action and all questions which arise 
in or which are necessary to be tried to completely dispose of the 
same and to adjust the rights and liabilities of the persons appear- 
ing before him, or upon whom this notice of trial has been served, 
and at such trial he will take all accounts, make all inquiries and 
give all directions and do all things necessary to try and otherwise 
finally dispose of this action, and of all matters, questions and 
accounts arising therein, and will give all necessary relief to all 
parties. 

And further take notice that, if you do not appear at the trial 
and prove your claim (if any) or prove your defence (if any) to 
the action, the proceedings will be taken in your absence and you 
may be deprived of all benefit of the proceedings and your rights 
disposed of in your absence. 

This is a mechanics' lien action brought by the above-named 
plaintiff against the above-named defendants to enforce a 
mechanics' lien against the following lands: {set out description 
of lands) • 

This notice is served by, etc. 

E. S. M. c. 110, sch., form 10. 



REVISED STATUTES OF NEW BRUNSWICK. 

1903. 

CHAPTEK 147. 

Kespecting Mechanics' Lien. 

1. Short title. — This chapter may be cif"ed as " The Mechanics' 
Lien Act." 57 V. c. 23, s. 1. 

2. Interpretation. — Wherever the following words occur in 
this chapter or in the schedule thereto, they shall be construed 
in the manner hereinafter mentioned unless a contrary intention 
appears : 

(1) "Contractor." — "Contractor" shall mean a person con- 
tracting with or employed directly by the owner for the doing of 
work, or placing or furnishing of machinery or materials for any 
of the purposes mentioned in this chapter. 

(2) "Sub-contractor." — "Sub-contractor" shall mean a per- 
son not contracting with or employed directly by the owner for 
the purposes aforesaid, but contracting with or employed by the 
" contractor " or under him by a " sub-contractor." 

(3) " Owner." — " Owner " shall extend to and include a per- 
son having any estate or interest in the lands upon or in respect 
of which the work is done or materials or machinery are placed 
or furnished, at whose request and upon whose credit, or on 
whose behalf, or with whose privity or consent, or for whose 
direct benefit any such work is done, or materials or machinery 
placed or furnished, and all persons claiming under him whose 
rights are acquired after the work in respect of which the lien is 
claimed is commenced, or the materials or machinery furnished 
have been commenced to be furnished. 



350 THE LAW 01" MECHANICS' LIENS IN CANADA. 

(4) " Wage-earner." — " Wage-earner " shall mean any person 
performing labor for wages, by the day, week or month as the 
ease may be, and notby the job. 

(5) "County Court."' — "County Court" in this chapter shall 
mean the County Court of the county in which the lands sought 
to be affected by the lien are situate. 

(6) "Judge." — " Judge" shall mean the judge of the County 
Court of the county in which the lands sought to be affected by 
the lien are situate, or the judge of a County Court before whom 
proceedings may be taken in case of the said judge being inter- 
ested or related to any of the parties. 

(7) "Registrar." — "Kegistrar" shall mean the registrar of 
deeds of the county where the lands sought to be affected by the 
lien are situate. 

(8) "Registered." — "Kegistered" shall mean filed in the of- 
fice of the registrar of deeds of the county where the lands sought 
to be affected by the lien are situate. 57 V. c. 23, s. 2. 

See Ontario Act, section 2. The Ontario Act includes a muni- 
cipal corporation and a railway company under the definition of 
" owner." 

A person is not an " owner " within the meaning of sub-section 
3 jof section 2 so as to make his land liable to a lien for materials 
supplied under a contract with the tenant, for the purpose of 
adding to or improving an hotel upon the land in the possession of 
the tenant with an option to purchase, unless there is something 
in the nature of a direct dealing between the owner and the person 
furnishing the materials. Mere knowledge of, or consent to, the 
materials being supplied, is not enough; there must be a request, 
either express or by implication from circumstances, to give rise to 
the lien. Eddy Co. Ltd. v. Chamberlain, (1917) 45 1ST. B. E. 261. 

3. Agreement not to affect lien of person not a party thereto. — 

No agreement shall be held to deprive anyone otherwise entitled 
to a lien under this chapter, and not a party to the agreement, of 



REVISED STATUTES OF NEW BEUNSWICK. 351 

the benefit of the lien, but the lien shall attach notwithstanding 
such agreement. 57 V. c. 23, s. 3. 

See Ont. Act, section 5. 

4. Lien of mechanic, builder, laborer, contractor, etc., for 
work, materials, etc. — Unless he signs an express agreement to the 
contrary, every mechanic, machinist, builder, laborer, contractor 
or other person doing work upon or furnishing materials to be 
used in the construction, alteration or repair of any building or 
erection, or erecting, furnishing or placing machinery of any 
kind in, upon or in connection with any building, erection or 
mine, shall, 'by virtue of being so employed or furnishing, have 
a lien for the price of the work, machinery or materials upon the 
building, erection or mine and the lands occupied thereby or 
connected therewith. 57 V. e. 23, s. 4. 

See Ont. Act, section 6, and cases cited thereunder. A number 
of things mentioned in the Ontario Act as subject to the lien are 
not specified in "this section, but at least some of these would 
probably be held 4o be covered by the words, " building, erection 
or mine, and the lands occupied thereby or connected therewith." 
As to what constitutes a building or erection, see a large number of 
cases cited in Adamson v. Rogers, (1895), 22 0. A. E. 415. 

G. a builder, contracted to erect two houses for I\ in the city 
of Moncton, one on Birch Street and one on Union Street. 0., 
the claimant, claims to have been employed by G-., and at his 
request did carpenter work on the Birch Street house to the 
amount of $171,. and on the Union Street house to the amount of 
$21.75. After deducting credits he claims a general balance of 
$80.05, and filed a lien for such balance, covering both houses. It 
was held that the lien on these two houses should have been dis- 
charged, as a lien only attaches to the house upon or in respect to 
which work is performed, although the work is done for a con- 
tractor who had an entire contract with the owner for the erection 
of both houses. O'Brien v. Fraser, (1918) 45 N. B. R. 539; 
41 D. L. R. 324. 

Property held by trustees for school purposes under the pro- 
visions of the Schools' Act, C. S. 1903, c. 50, is not Crown pro- 
perty and therefore not exempt from the operation of the Mechanics' 



352 



THE LAW OF MECHANICS' LIENS IN CANADA. 



Lien Act, although such property is not liable to be sold ujider 
execution. An order for the payment of money under the Me- 
chanics' Lien Act can be enforced in the same way as a judgment 
by compelling the School Trustees to make an assessment. Trustees 
School Dist. No. 8 v. Gonnely, (1912) 41 N. B. R. 374. 

5. Lien to attach to building, etc. — The lien shall attach upon 
the estate and interest of the owner, as denned by this chapter, 
in the building, erection or mine upon or in respect of which the 
work is done or the materials or machinery placed qr furnished, 
and the land oceupied thereby or connected therewith. 57 V. 
c. 23, s. 5. 

See Ont. Act, section 8. 

6. (1) Lien for thirty days' wages. — Every wage-earner who 
performs labor for wages upon the construction, alteration or 
repairs of any building or erection, or in erecting or placing 
machinery of any kind in, upon, or in connection with any build- 
ing, erection or mine, shall, to the extent of the interest of the 
owner, have, upon the building, erection or mine, and the land 
occupied thereby or connected therewith, a lien for such wages, 
not exceeding the wages for thirty days, or a balance equal to his 
wages for thirty days. 

(2) Lien for wages on property of wife. — The lien for wages 
mentioned in this section shall attach, when the labor is in respect 
of a building, erection or mine on property belonging to the wife 
of the person at whose instance the work is done, upon the estate 
or interest of the wife in such property as well as upon that of her 
husband. 

(3) Device to defeat lien for wages to be void. — Every device 
by an owner or contractor which shall be adopted in order to 
defeat the lien of wage-earners under this chapter, shall, as 
respects such wage-earners, be null and void. 57 V. c. 23, s. 6. 

See Ont. Act, sections 7 and 15. 



REVISED STATUTES OF NEW BRUNSWICK. 353 

7. Reservation of percentage of price on completion of contract. 

— The owner shall, in the absence of a stipulation to the contrary, 
be entitled to retain, for a period of thirty days after the comple- 
tion of the contract — 

(a) Fifteen per centum of the price to be paid to the con- 
tractor when such price does not exceed $1,000. 

(b) Twelve and a half per centum of the price to be paid to 
the contractor when such price is more than $1,000, but does not 
exceed $5,000; and 

(c) In all other cases, ten per centum of the price to be paid 
to the contractor. 57 V. c. 23, s. 7. 

See Ont. Act, section 12. 

8. Limit to lien of sub-contractor. — In case the lien is claimed 
by a sub-contractor, the amount which may be claimed in respect 
thereof shall be limited to the amount payable to the contractor 
or sub-contractor (as the case may be) for whom the work has 
been done, or the materials or machinery haveibeen furnished or 
placed. 57 V. c. 23, s. 8. 

See Ont. Act, section 10. 

9. (1) Pro tanto discharge of lien by payments up to 90 per 
cent, of price made in good faith before notice of lien. — All pay- 
ments up to ninety per .centum of , the price to be paid for the 
work, machinery or materials, as defined by section 4 of this chap- 
ter, made in good faith by the owner to the contractor, or by the 
contractor to the sub-contractor, or by one sub-contractor to 
another sub-contractor, before notice in writing by the person 
claiming the lien has been given to such owner, contractor or 
sub-contractor (as the case may be) of the claim of such person, 
shall operate as a discharge pro tanto of the lien created by this 
chapter, but this section shall not apply to any payment made for 
the purpose of defeating or impairing a claim to a lien existing or 
arising under this chapter. 

M.L.— 23 



354 THE LAW OF MECHANICS' LIENS IN CANADA. 

(2) Lien on 10 per cent, of price for ten days after completion 
of work, etc., where no notice of lien given. — A lien shall, in 
addition to all other rights or remedies given by this chapter, 
also operate as a charge to the extent of ten per centum of the 
price to be paid by the owner for the work, machinery or mater- 
ials as defined by section 4 of this chapter, up to ten days after 
the completion of the work or of the delivery of the materials in 
respect of' which such lien exists, and no longer, unless such notice 
in writing be given as herein provided. 

(3) Priority of lien for wages on 10 per cent, of price to con- 
tractor. — A lien for wages for thirty days or for balance equal 
to the wages for thirty days, shall, to the extent of the said ten 
per centum ,of the price to be paid to the contractor, have priority 
over all other liens under this chapter, and over any claim by the 
owner against the contractor for or in consequence of the failure 
of the latter to complete his contract. 

(4) Increase of percentage where price does not exceed $1,000 
or where price between $1,000 and $5,000. — When the total price 
to be paid or contracted or agreed to be paid for the whole of the 
work, machinery or materials, as defined by section 4 of this 
chapter does not exceed $1,000, the three preceding sub-sections 
of this section shall be read as if the word " ninety " was omitted 
therefrom, and the word "eighty-five" inserted in lieu thereof, 
and if the word " ten " was omitted therefrom and the word 
" fifteen " inserted in lieu thereof ; and where the said total price 
exceeds $1,000, but does not exceed $5,000, the said first three 
sub-sections shall be read as if the word "ninety" was omitted 
.therefrom and the word " eighty-seven and a half " inserted in 
lieu thereof, and as if the word " ten " was omitted therefrom 
and the words " twelve and a half " inserted in lieu thereof. 57 
V. c. 23, s. 9. 

See Ont. Act, section 12. 

10. Owner not liable to sum greater than sum payable to con- 
tractor. — Save as herein provided the lien shall not attach so as 



REVISED STATUTES OF NEW BKUNSWICK. 355 

to make the owner liable to a greater sum than the sum payable 
by the owner to the contractor. 57 V. c. 23, s. 10. 
See Ont. Act, section 10. 

11. Lien for material or labor supplied to person having lien. — 

All persons furnishing material to or doing labor for the person 
having a lien under this chapter, in respect of the subject of 
such lien, who notified the owner of the premises sought to be 
affected thereby, within thirty days after such materials fur- 
nished or labor performed, of any unpaid account or demand 
against such lienholder for such material or labor^ shall be entitled, 
subject to the provisions of sections 6 and 9, to a charge therefor 
pro rata upon any amount payable by such owner under said lien, 
and if the owner thereupon pays the amount of such charge to the 
person furnishing material or doing labor as aforesaid, such pay- 
ment shall be deemed a satisfaction pro tanto of such lien. 57 V. 
c. 23, s. 11. 

See Ont. Act, section 12. 

12. Trial where dispute as to claim under preceding section. — 

In case of a dispute as to the validity or amount of an unpaid 
account or demand, of which notice is given to the owner under the 
preceding section, the same shall be first determined by action in 
the proper court in that behalf; and pending the proceedings to 
determine the dispute, so much of the amount of the lien as is in 
question therein may be withheld from the person claiming the lien, 
or the judge may order such amount paid into a bank to the credit 
of the cause. 57 V. c. 23, s. 12'. 

13. Payment of judgment or claim by owner where failure by 
primary debtor to pay. — In case the person primarily liable to the 
person giving such notice as mentioned in section 11, fails to pay 
the amount for which judgment is recovered within ten days after 
the judgment is obtained, the owner, contractor or sub-contractor 
may pay the amount out of any moneys due by him to the perspn 



356 THE LAW OF MECHANICS' LIEXS IX CAXADA. 

primarily liable as aforesaid, on account of the work done, or ma- 
terials or machinery furnished or placed in respect of which the' 
debt arose ; arid such payment if made after the judgment as afore- 
said (or if made without any action being previously brought or 
dispute existing, then, if the debt in fact existed, and to the extent 
thereof) shall operate as a discharge pro tanto of the moneys so due 
as aforesaid to the person primarily liable. 57 V. c. 23, s. 13. 

14. Property not to be removed while subject to lien. — Dur- 
ing the continuance of a lien, no portion of the property or mach- 
inery affected thereby shall be removed to the prejudice of the lien ; 
and any attempt at such removal may be restrained by application 
to the judge. Disobedience of the judge's order restraining such 
removal shall be punishable by attachment for contempt by the 
judge as in the Supreme Court for disobedience of an order of a 
judge of that court. 57 V. e. 23, s. 14. 

See Ont. Act, section 16. 

15. (1) Registration of claim of lien. — A claim of lien applic- 
able to the case may be registered in the office of the registrar, and 
shall state: 

(a) The name and residence of the claimant and of the owner 
of the property to be charged, and of the person for whom and upon 
whose credit the work is done or materials or machinery furnished, 
and the time or period (if any time is specified in the contract) 
within which the same was or was to be done or furnished ; 

(b) The work done or materials or machinery furnished; 

(c) The sum claimed; 

(d) The description of the land to be charged; 

(e) The date of expiry of the period of credit agreed to by the 
lienholder for payment for his work, materials or machinery,. where 
credit has been given. 

(2) Form of claim of lien for registration. — The claim may 
be in one of the forms (1), (2) and (3) given in the schedule to 
this chapter, and shall be verified by the affidavit of the claimant, 



REVISED STATUTES OF NEW BRUNSWICK. 357 

or his agent or assignee having full knowledge of • the matters 
required to be verified, and the affidavit of an agent or assignee 
shall state that he has such knowledge. 57 Y. c. 23, s. 15. 

See Ont. Act> section 17. 

16. Joinder of claims for wages. — A claim for wages may in- 
clude the claims of any number of wage-earners who may choose 
to unite therein. In such case each claimant shall verify his claim 
by his affidavit, but need not repeat the facts set out in the claim ; - 
and an affidavit substantially in accordance with form (4) of this 
chapter shall be sufficient. 57 V. c. 23, s. 16. 

See Ont. Act, section 18. 

17. (1) Duty of registrar to register claim of lien. — The regis- 
trar, upon payment of his fees, shall register the claim so that the 
same may appear as an incumbrance against, the land therein 
described, and the day, hour and minute when the same was regis- 
tered shall appear upon the registry. 

(2) Fee to registrar. — The fee for registration shall be twenty- 
five cents ;• if several parties join in one claim the registrar shall 
have a further fee of ten cents for every person after the first. 

(3) Claim to be entered in mechanics' lien book.; — The regis- 
trar shall not be bound to copy in any registry book any claim 
or affidavit, but he shall enter each claim in a book to be kept for 
that purpose, to be called " The Mechanics' Lien Book," and shall 
insert therein particulars of the claim, with a description of the 
property against which the lien is sought. 57 V. c. 23, s. 17. 

See Ont. Act, section 20. 

18. Effect of registration of claim of lien. — Where a claim is 
so registered the person entitled to the lien shall be deemed a 
purchaser pro tanto, and within the provisions of the Eegistry Act, 
chapter 151 of these Consolidated Statutes, but except as herein 
otherwise provided, the Eegistry Act shall not apply to any lien 
arising under this chapter. '57 V. c. 23, s. 18. 

See Ont. Act, section 21. 



358 THE LAW OF MECHANICS' LIENS IN CANADA. 

19. (1) When claim of lien for wages may be registered. — 

Where the lien is for wages under sections 6 or 9, the claim may be 
registered at any time within thirty days after the last day's labor 
for which the wages are payable. 

(2) Such lien shall not be entitled to the benefit of the provi- 
sions of sections 6 and 9, after the said period, unless the same is 
duly registered before the expiration of the said period so limited. 

(3) Priority of lien for wages. — Such lien shall have the same 
priority for all purposes after as' before registration. 57 V. c. 23, 
s. 19. 

See Ont. Act, section 22. 

20. Where other claims of lien may be registered. — In other 
cases the claim of lien may be registered before the commencement 
or during the progress of the work, or within thirty days from the 
completion thereof, or from the supplying or placing of the mach- 
inery. 57 V. c./23, s. 20. 

See Ont. Act, section 22. 

81. Effect of failure to register lien within limited time. — 

Every- lien which has not been duly registered under the provisions 
of this chapter, shall absolutely cease to exist on the expiration of 
the time hereinbefore limited for the registration thereof, unless in 
the meantime proceedings are instituted and are being prosecuted 
without delay to realize the claim under the provisions of this chap- 
ter, and a certificate of the pending of such proceedings (which may 
be granted by the judge), is duly registered. 57 V. c. 23, s. 21. 

See Ont. Act, section 23. 

22. (1) Within what time after registration of lien proceed- 
ings to realize claim to be instituted, etc. — Every lien which has 
been duly registered under the provisions of this chapter shall 
absolutely cease to exist after the expiration of ninety days after the 
work has been completed, or materials or machinery furnished, or 



REVISED STATUTES OF STEW BRUNSWICK. 359 

/ 

wages earned, or the expiry of the period of credit, where such 
period is mentioned in the claim of lien filed, unless in the mean- 
time proceedings are instituted and are being prosecuted without 
delay to realize the claim under the provisions of this chapter, and 
a certificate of such proceedings (which may be granted by the 
judge) is duly registered. 

(2) Renewal of registration where proceedings not instituted. 

- — The registration of a lien under this chapter shall cease to have 
any effect at the expiration of six months 'from the registration 
thereof, unless the lien shall be again registered within the same 
period, except in the meantime proceedings have been instituted 
to realize the claim and are being prosecuted without delay, and a 
certificate of the pendency of such proceedings as aforesaid has 
been duly registered as provided in the preceding sub-section. 57 
V. e. 23, s. 22. 

See Ont. Act, section 24. 

Where the question is whether an alleged lien is in existence, an 
order made by the trial Judge assuming to determine such question 
without taking the evidence thereon, will on appeal be vacated, if 
it appears that the lien was not prosecuted within the period pre- 
scribed by this section. Boucher v. Belle Isle, 14 D. L. E. 146, 
41 N. B. E. 509. 

23. Effect of failure to institute proceedings within 90 days 
after completion of work, etc., where no period of credit. — If there 
is no period of credit, or if the date of the expiry of the period of 
credit is not dated in the claim so filed, the lien shall cease to exist 
upon the expiration of ninety days after work has been completed 
or materials or machinery furnished, unless in the meantime pro- 
ceedings have been instituted pursuant to section 22 of this chap- 
ter and are being prosecuted without delay; and a certificate of the 
pendency of such proceedings as aforesaid has been duly regis- 
tered as provided in section 22. 57 V. c. 25, s. 23. 

See Ont. Act, section 25. 

24. Death of lienholder. — Assignment of right. — In the event 
of the death of a lienholder his right of lien shall pass to his per- 



360 THE LAW bF MECHANICS' LIENS IN CANADA. 

sonal representatives, and the right of a dienholder may be as- 
signed by an instrument in writing. 57 V. c. 23, s. 24. 

See Ont. Act, section 26. 

25. Discharge of lien. — A lien may be discharged by a re- 
ceipt signed by the claimant or, his agent, duly authorized in writ- 
ing, acknowledging payment and verified by affidavit, and-filed in 
the office of the registrar; such receipt shall be numbered and 
entered by the registrar in the mechanics' lien book. The fees 
shall be the same as for registering a claim for lien. 57 V. c. 23, 
s. 25. 

See Ont. Act, section 27. 

26. Contractor to bear cost of registering discharge of lien. — 

When there is a contract for the execution of the work as herein- 
before mentioned, the registration of all discharges of liens shall 
be at the cost of the contractor unless the judge otherwise orders. 
57 V. c. 23, s. 26. 

27. (1) Vacating registry on payment into court. — Upon ap- 
plication to the judge, he may receive security or payment into 
court in lieu of the amount claimed, and may thereupon vacate 
the registry of the lien. 

(2) The judge may annul the said registry upon any other 
ground. 57 V. c. 23, s. 27. 

See Ont. Act, section 27. 

28. (1) Lien for work, etc., on chattels. — Sale of chattel. — 

Every mechanic or other person who has bestowed money or skill 
or materials upon any chattel or thing in the alteration and im- 
provement in its properties, or which imparts an additional value 
to it, so as thereby to be entitled by law to a lien upon such chattel 
or thing for the amount or value of the money or skill and materi- 
als bestowed, shall, while such lien exists, but not afterwards, in 
case the amount' to which he is entitled remains unpaid for three 



REVISED STATUTES OF NEW BRUNSWICK. 361 

months after the same ought to have been paid, have the right, in 
addition to all other remedies provided by law, to sell the chattel 
or thing in respect of which the lien exists, on giving one week's 
notice by advertisement, by posters put up in three or more public 
places adjacent to the place of sale, stating the name of the person 
indebted, the amount of the debt, a description of the chattel or 
thing to be sold, the time and place of sale (which shall be a public 
place), and the name of the auctioneer, and leaving a notice in 
writing two weeks prior to the sale at the last or known place of 
'residence (if any) of the owner, if he be a resident of such county. 

(2) Application of proceeds of sale. — iSueh mechanic or other 
person shall apply the proceeds of the sale in payment of the 
amount due to him and the cost of advertising and sale, and shall, 
upon application, pay over any surplus to the person entitled 
thereto. 57 V. c. 23, s. 28. 

A special agreement does not of itself destroy the right to 
retain the chattel except where the agreement contains some term 
inconsistent With that right. Bathvrst Lumber Co. v. Nepisiguit 
Lumber Co., (1911) 41 N. B. E. 41. 

■See Chapter XIV., " Mechanics' Liens upon Personalty," 
ante. 

29. Voluntary payment by owner to mechanics, etc*, to be 
deemed a payment to contractor. — In case an owner chooses to 
make payments to the mechanics, laborers, or other persons re- 
ferred to in section 4, of this chapter, for or on account of, but not 
exceeding, the amount of the just debts due to them for work 
done or materials or machinery placed or furnished as therein 
mentioned, without the proceedings mentioned in section 12, and 
shall within three days afterwards give, by letter or otherwise, 
written notice of such payment to the contractor or his agent, 
such payment shall, as between the owner and the contractor, 
be deemed to be a payment to the contractor, on the contract 
generally, but not so as to affect the percentage to be retained 
by the owner as provided by sections 7 and 9. 57 V. c. 23, s. 29. 



362 THE LAW OF MECHANICS' LIENS IN CANADA. 

30. (1) Declaration by contractor. — Form of declaration. — 

Before the contractor for any work shall be entitled to receive 
a payment on his contract, it shall be his duty to produce to and 
leave with the owner or his agent an affidavit or a statutory de- 
claration by the contractor (or his agent, competent from per- 
sonal knowledge to speak to the facts), stating that all persons, 
who up to that time have been employed on the work and entitled 
to wages, have been paid in full up to and inclusive of the four- 
teenth day previous to such payment being made by the owner to 
the contractor. The said affidavit or statutory declaration may 
be to the 1 effect set forth in forms (5) and (6) in the schedule to 
this chapter. 

(2) Deduction from amount due contractor. — Or if it is ad- 
mitted, or otherwise appears that any wages are unpaid, the con- 
tractor shall not be entitled to receive the amount otherwise pay- 
able to him without there being deducted therefrom an amount 
sufficient to cover what is so unpaid to such wage-earners.' 

(3) Protection of owner making payment under declaration 
of contractor. — The said affidavit or statutory declaration shall 
be conclusive evidence in favor of the owner making the payment; 
unless at or before making the payment he had actual and express 
notice of the wages not having been paid. 

(4) Effect of payment made without declaration. — Any pay- 
ment made on the contract without the owner having received 
such affidavit, or statutory declaration, or with actual and express 
notice of unpaid wages, shall not be a valid payment as against 
persons whose wages are unpaid at the time of the payment on the 
contract. 

(5) Cases in which declaration not required.^The affidavit or 
statutory declaration aforesaid shall not be necessary when the 
architect's estimate for the month, in case the contract provides 
for such estimate, does not exceed $100, or when the payment made 



REVISED STATUTES OF NEW BEUNSWICK. 363 

in, good faith in respect of the progress of the work for the month 
(in case the contract does not provide for estimates) does not 
exceed $100. 

Sub-section 1 of this section does not apply to a claim of lien 
that is made after the contract has been completed, the section only 
applies where a contractor is getting advances during the progress 
of the work, that is where he is getting payment on progress esti- 
mates. Brown v. Bathurst Lumber Co., Ltd., (1915) 28 D. L. E. 
295. 

31. Lien of wage-earners not to be defeated by garnishment, 
execution, etc. — The' lien of wage-earners for thirty days' wages, 
or for a balance equal to thirty days' wages, provided for by sec- 
tions 6 and 9, shall not be defeated or impaired by any garnish- 
ment had subsequently to the contract, or by any execution sub- 
sequently issued, or by reason of the work contracted for being 
unfinished, or of the price, for that or any other reason, not being 
payable to the contractor. 57 V. c. 23, s. 31. 

32. (1) Calculation of percentage where contract not com- 
pleted. — In case of the contract not having been completely ful- 
filled when lien is claimed by wage-earners, the percentage afore- 
said shall be calculated on the work done or materials furnished 
by the contractor. 

(2) Lien on unfinished building. — Every wage-earner shall be 
entitled to enforce a lien in respect of an unfinished building to 
the same extent as if the building were finished. 

(3) Percentage not to be applied in completion of work by 
owner. — The percentage as aforesaid shall not, as against wage- 
earners, be applied to the completion of the work by the owner 
when the contractor makes default in completing the same, nor 
to the payment of damages for the non-completion thereof by the 
contractor. 57 V. c. 23, s. 32. . 

33. Priority of claims of mechanics, etc., to advances under 
mortgage during progress of work. — When a mortgage is given 



364 THE LAW OF, MECHANICS' LIENS IN CANADA. 

to secure an intended loan of money, which money is to be paid 
thereafter according or with reference to the progress of work 
done, or materials or machinery placed or furnished as aforesaid, 
on the land mortgaged, no advance thereafter made by the mort- 
gagee shall have priority over the claims of mechanics, laborers 
or other persons referred to in section 4 of this chapter as afore- 
said, if the mortgagee at or before the time of such advance has 
actual and express notice that there are any such claims as afore- 
said unpaid; nor unless at the time of such advance he shall re- 
quire and receive from the mortgagor or his contractor an affi- 
davit or statutory declaration, stating that all such persons as 
aforesaid have been paid in full up to the time of the advance. 
The said affidavit or statutory declaration may be to the effect set 
forth in form (7) in the schedule to this chapter. 57 V. c. 23, 
s. 33. 

34. Priority of claims of mechanics, etc., over purchaser or 
mortgagee of unfinished building. — In case of the sale or mort- 
gage of an unfinished house or building, if its being an unfinished 
house or building is such as to be apparent to an ordinary obser- 
ver, the purchaser, before paying his purchase money, or giving a 
mortgage or other value or security for any balance of such 
purchase money, or the mortgagee before advancing any money 
on the security of a mortgage or otherwise, shall require from 
the vendor (in the case of a sale, or from the mortgagor in the 
case of a mortgage) a similar affidavit or statutory declaration 
of the payment of all claims as is provided for in section 33 of 
this chapter, and the purchaser or mortgagee shall not be entitled 
to priority in respect to such claims, if at or before the time 
aforesaid he had actual and express notice that there were such 
claims as aforesaid unpaid; nor unless he shall have received 
such affidavit or statutory declaration aforesaid. 57 V. c. 23, s. 34. 

35. Where purchase money for land unpaid, vendor to be 
deemed a mortgagee, etc. — In cases where there is, an agreement 



REVISED STATUTES OF NEW BRUNSWICK. 365 

for the purchase of land, and the purchase money, or part there- 
of, is unpaid, and no conveyance is made to the purchaser, the 
purchaser shall for the purposes of this chapter, and within the 
meaning thereof, be deemed a mortgagor and the seller a mort- 
gagee. 57 V. c. 23, s. 35. 

36. Effect of proceedings to enforce a lien on rights of mort- 
gagee. — When any proceeding is taken to enforce a lien under 
this chapter, in case a mortgagee of the land is served with a 
written notice of such proceeding being had, he shall thereafter 
be entitled to attend the proceedings; and in case of being so 
served, he shall not thereafter, without 'the leave hereinafter 
mentioned, take any proceedings for sale or foreclosure, nor 
proceed to exercise any power of sale until the proceedings to 
enforce the lien have terminated; but he may without leave 
serve any notices required to be served in order to the due exer- 
cise of the power. The leave aforesaid may be granted by the 
judge, and shall only be granted by consent, or (if without 
consent) on a reasonable consideration of all the circumstances 
in view of what would be just to both parties. 57 V. c. 23, s. 36. 

37. Address for service with claim of lien.-^Every claim of 
lien shall give an address, at which all notices and, papers may 
be served, and service of any notice or paper may be effected 
by sending the same by registered letter to the address "so given. 
57 V. c. 23, s. 37. , 

38. Enforcement of lien. — Any person claiming a lien under 
this chapter may enforce the same by means of the proceedings 
hereinafter set forth. 57 V. c. 23, s. 38. 

39. Statement of claim. — No writ of summons shall be neces- 
sary, but the claimant may file a statement of claim with the 
judge. 57 V. c. 23, s. 39. 

See Ont. Act, section 31 (2). 

40. Affidavit with statement of claim. — Certificate by Judge. — 

Such statement of claim shall be verified by affidavit, Form (8) ; 



366 THE LAW OF MECHANICS' LIENS IN CANADA. 

upon the filing of such statement of claim and affidavit the judge 
shall issue a certificate in duplicate. 57 V. c. 23, s. 40. 

See Ont. Act, section 31 (2). 

41. [Registration of certificate. — Upon the registration of such 
certificate in the office of the registrar, the action shall be deemed 
to have been commenced as against the owner and all other par- 
ties against whom the lien is claimed. 57 V. c. 23, s. 41. 

See Ont. Act, section 31 (2). 

The certificate, under this section, read with ss. 22, 38, 39, 40, 
is the commencement of the lien proceedings against an owner. 
Boucher v. Belle Isle, 14 D. L. E. 146, 41 N. B. E. 509. 

42. Appointment of time and place for hearing claim. — Form 
of certificate and appointment. — The judge shall also in and by 

. such- certificate appoint a time and place at which he will inquire 
into the claim of the plaintiff and take all necessary accounts; 
such, certificate shall be issued in duplicate, and may be in the 
Form (9) set forth in the schedule hereto. 57 V. c. 23, s. 42. 
See Ont. Act, section 37. 

43. Service of certificate and appointment.— A copy of such 
certificate and appointment shall be served on the owner and 
all other proper 1 parties, at least fifteen days before the day 
therein named for taking the first proceedings thereunder. 57 
V. c. 23, s. 43. 

See Ont. Act, section 37. 

44. Notice disputing claim. — Within ten days after the ser- 
vices of such certificate and appointment any person served there- 
with may file with the judge a notice in the Form (10) in the 
schedule hereto disputing the plaintiff's right to a lien. 57 V. c. 
23, s. 44.' 

See Ont. Act, section 37. 

45. Hearing of dispute as to claim, and certificate of finding. — 

In ease a notice disputing the plaintiff's lien is filed, the judge 



REVISED STATUTES OF NEW BRUNSWICK. 367 

shall, before taking any further proceedings, determine the ques- 
tion raised by the notice, and if so required by any of the parties, 
may thereupon issue a certificate of his finding. 57 V. c. 23, s. 45. 

Where a notice disputing the lien is filed, the existence of the 
lien must, as a distinct preliminary proceeding, be first and sepa- 
rately determined by the court. Boucher v. Belle Isle, 14 D. L. E. 
146, 41N.0B. E. 509. 

46. Note instead of certificate of finding. — But if not required 
to issue such last named certificate, it shall suffice for the judge 
to enter in his book a note of his findings. 57 V. c. 23,' s. 46. 

47. Verified statement of account by owner where proceedings 
by sub-contractor. — Where no notice disputing the plaintiffs lien 
is filed as aforesaid, and the proceedings are instituted by a sub- 
contractor, the owner shall file with the judge a statement of 
account, Form (11), verified by affidavit, Form (12), showing 
what, if anything, he admits to be due for the satisfaction of the 
plaintiff's lien and all other liens of the same class as plaintiffs; 
such statement , shall be filed at least eight days before the day 
named in the certificate mentioned in section 42 for taking ac- 
counts, and in case the owner shall not file such statement, or shall 
file an untrue statement, he may be ordered by the judge to pay all 
costs incurred in establishing the true amount due and owing 
from him. 57 V. c. 23, s. 47. 

48. Verified statements of account by lien-holders. — All lien- 
holders of the same class served with the appointment, or who 
may claim to be entitled to the benefit of the- action, shall also 
within six days from the day named in the appointment for taking 
.ccounts, or within such further time as the judge may allow, file 
with the judge a statement of account, showing the just and true 
sum due to them respectively after giving credit for all sums in 
cash, merchandise, or otherwise, to which the debtor is entitled to 
credit on account of their respective claims, which account shall 



368 THE LAW OF MECHANICS' LIENS IN CANADA. 

be verified by affidavit, and such account and affidavit may be in 
the Forms (13) and (14) set out in the schedule hereto. 57 V. c. 

23, s. 48. 

49. Application by lienholder to prove claim where claim not 
filed within limited time.— A lienholder who has registered his 
lien, but has not filed his claim with the judge within the time 
limited by the next preceding section, may apply to the judge to 
be let in to prove his claim at any time before the amount realized 
by the proceedings for the satisfaction of liens has been distributed, 
and such application may be granted or refused, and upon such 
terms as to costs or otherwise as may appear just. 57 V. c. 23, s.'49. 

See Ont. Act, section 37 (6). 

50. Hearing and proceedings on taking accounts. — Directions 
to owner to pay money into bank. — Upon the return of the ap- 
pointment to take accounts, the judge shall proceed to take an 

, account of what is due from the owner and also what is due to the 
respective lienholders who have duly filed their claims and shall also 
tax to them respectively such costs as he may find them entitled to, 
and shall settle their priorities, and shall make all other inquiries, 
and take all necessary accounts for the adjustment of the rights of 
the various parties, and shall thereupon make a report of the result 
of such inquiries and accounts and shall direct that the money found 
due by the owner shall be paid into a bank to the credit of the ac- 
tion at the expiration of one month from the date of the report. 
57 V. c. 23, s. 5.0. 

See Ont. Act, section 37. 

51. Costs where dispute as to amount due by owner. — In case 
any dispute arises as to the amount due by the owner for the satis- 
faction of liens under this chapter, or as to the amount claimed to 
be due to any other lienholders, the costs occasioned by the dispute 
shall be in the discretion of the judge, and shall be borne and paid 
as he directs. 57 V. c. 23, s. 51. 

See Ont. Act, sections 41, 42, 43, 44, and 45, as to costs. 



REVISED STATUTES OF NEW BRUNSWICK. 369 

52. Order and certificate where finding in favor of owner. — 

If nothing is found due by the owner, the judge may make an 
order staying all further proceedings, and make such order as to 
costs as may be just, and at the expiration of fourteen days there- 
after may grant a certificate vacating the lien of the plaintiff, and 
all other liens of the same class as the plaintiffs. 57 V. c. 23, s. 52. 
See Ont. Act, sectibns 41, 42, 43, 44, and 45, as to costs. 

53. Certificate vacating lien where payment by owner into 
bank to credit of action. — Where anything is found due 'by the 
owner he may on, or at any time before the day appointed for 
payment, pay the amount found to be ■ due by him into a bank 
named by the judge to the credit of the action, and thereupon, 
upon the proof of such payment, the judge may grant ex parte a 
certificate in Form (16) in the schedule to this chapter, vacating 
the lien of the plaintiff, and all other liens of the same class as 
plaintiffs. 57 V. c. 23, s. 53. 

54. Costs on certificate vacating lien. — The judge may make 
such order as to the owner's costs of obtaining and registering any 
certificate vacating the lien as may be just. 57 V. c. 23, s. 54. 

See Ont. Act, sections 41, 42, 43, 44, and 45, as to costs. 

55. Effect of registration of certificate vacating lien. — Upon 
the registration of a certificate vacating any lien or liens, the same 
shall thereupon be vacated and discharged. 57 V. c. 23, s. 55. 

See Ont. Act, section 27. 

56. Payment out of bank. — Upon payment into a bank of 
the amount which may be found due by the owner, the same shall 
be (subject to the payment of any costs thereout, as may be or- 
dered) paid out to the parties found entitled thereto by the report 
of the judge. 57 V. c. 23,' s. 56. 

57. Judgment for sale of land on default of payment by owner. 

— In default of payment by the owner within the time directed 

M.L.— 24 



370 THE LAW OF MECHANICS' LIENS IN CANADA. 

by the report, 5 the plaintiff may apply to the said judge, who, upon 
due proof of the default, may grant an order or judgment for the 
sale of the land in question for the satisfaction of the lien of the 
plaintiff, and other liens of the same class. 57 V. c. 33, s. 57. 

See Ont. Act, section 37. 

58. Form of judgment for sale. — The judgment for sale may 
be in. Form (15), set forth in the schedule to this chapter. 57 V. 
c. 23, s. 58. 

59. Judgment to be entered with clerk of County Court. — 

Such judgment for sale shall be entered as other judgments are 
required to ^be entered in the office of the clerk of the County 
Court and shall have the same force or effect as a judgment in the 
ordinary case of an action between the said parties. 57 V. c. 23, 
s. 59. 

See Ont. Act, section 37. 

60. Sale i by sheriff. — The sale under said judgment shall be 
conducted by the sheriff who shall execute a deed to the purchaser ; 
the proceedings on such sale shall be in the manner prescribed by 
statute respecting sales of land made under writs of fieri facias. 
57 V. c. 23, s. 60. 

61. Report of sale by sheriff. — After the sale the sheriff shall 
pay the proceeds into a bank to the credit of the action and make 
a report upon the sale to the judge, who shall thereupon tax the 
costs of the sale to the party entitled thereto, and shall apportion 
the money realized among the parties entitled thereto, and may 
order the moneys realized to be paid out of the bank to the parties 
so found by him entitled thereto. 57 V. c. 23, s. 61. . 

62. (1) Plaintiff to represent all lienholders in proceedings 
for sale, etc. — For the proper proceedings to obtain an order for 
sale and carrying out of the sale, and the apportionment of the 
moneys realized thereunder, the plaintiff shall .be deemed suffici- 



REVISED STATUTES OF NEW BRUNSWICK. 371 

ently to represent all other lienholders entitled to the benefit of 
the action unless judge otherwise orders. 

(2) Lienholders of a class to rank pari passu. — Where there 
are several liens under this chapter against the same party each 
class of the lienholders shall,' subject to the provisions of sections 
6, 9 and 11, rank pari passu for the several amounts, and the pro- 
ceeds of any sale shall, subject as aforesaid, be distributed amongst; 
them pro rata according to' their several claims and rights. 

(3) Adding parties. — The judge shall have power from time 
to time to add any parties to the proceedings as he may deem 
necessary or advisable, and may direct as to service of notices on 
such new parties. 

(4) Death of owner, etc. — The death of an owner or any other 
defendant shall not cause the proceedings to abate, but they may 
be continued against the personal representatives of such owner or 
other defendant. 57 V. c. 23, s. 62. 

63. Carriage of proceedings. — Any lienholder entitled to the 
benefit of the action may apply for the carriage of the proceedings, 
and the judge may thereupon make such order as to costs and 
otherwise as may be just; and any lienholder who obtains the car- 
riage of the proceedings shall, in respect of all proceedings taken 
by him, be deemed to be the plaintiff in the action. 57 V. c. 23, 
s. 63. 

See Ont. Act, section 36. 

64. Dismissal of proceedings for want of prosecution. — Any 

person affected by the proceedings may apply to the judge to dis- 
miss the same for want of due prosecution, and the judge may 
make such order upon the application as to costs or 'otherwise as 
may be just. 57 V. c. 23, s. 64. 

65. Service on guardian of infant defendant. — Where any in- 
fants are named as defendants the . appointments referred to in 



372 THE LAW OF MECHANICS' LIENS IN CANADA. 

section 42 may be served upon the official guardian of such in- 
fants. If there is no official guardian, the judge may appoint a 
guardian ad litem. Such official guardian or guardian so ap- 
pointed shall thereupon become, and be the guardian ad litem for 
such infants in the proceedings, and it shall not be necessary to 
serve any such infant defendant with any further or other proceed- 
ings, and such infant shall be bound thereby. 57 V. c. 23, s. 65. 

66. (1) Costs; — Reduction of costs where in excess of ten per 
cent, of proceeds. — The fees and costs in all proceedings taken 
under this chapter shall be such as are payable in respect of simi- 
lar matters according to the ordinary procedure of the County 
Court, but where the taxed costs of proceedings to enforce any. 
lien are payable out of the amount realized by such proceedings 
for the satisfaction of the lien, and shall exceed ten per cent, of the 
amount realized, thereby for the satisfaction of the lien, such costs 
shall be reduced proportionately by the judge so as the same shall 
not in the aggregate exceed the said ten per cent., and no more 
costs than such reduced amount shall be recoverable between party 
and party or' solicitor and client. 

(2) Limit to costs. — In no case shall the costs taxed against 
any of the parties exceed ten per cent, of the amount in dispute 
between such party and the party to whom the costs are awarded. 
57 V. c. 23, s. 66. 

See Ont. Act, sections 41, 42, 43, 44, and 45, as to costs. See 
.also Z>o«aZ v. Segel, (1896) 32 C. L'.'J. 681. 

67. Certificate for balance of claim where lien not paid in -full. 

— After the amount of _ the lien shall be realized, any lienholder who 
has proved a claim may apply to the Said judge, -upon notice to his 
primary debtor, for judgment for the payment of any balance 
which may remain due after deducting the amount received or 
payable in respect of the lien, and thereupon the judge may grant 
or refuse the application upon such terms as to costs or otherwise 
as may be just; and in case he sees fit to grant the application he 



REVISED -STATUTES OF NEW BRUNSWICK. 373 

will grant a certificate of the amount for which he finds the appli- 
cant is entitled to judgment for debt and costs. 57 Y. c. 23, s. 67. 

68. Certificate to be enforced as a judgment of County Court. — 

Such certificate may be filed in the office of the clerk of the court., 
and the same, whether the amount awarded- exceeds the ordinary 
jurisdiction of the County Court or not, shall thereupon be entered 
in the judgment book and shall thereupon become a judgment of 
the_ court, and may be enforced in like manner as any other judg- 
ment for the payment of money is enforced in the said court. 57 
V. c. 23, s. 68, 

See Ont. Act, section 47. 

69. (1) Appeal. — Orders and certificates made by a judge 
under this chapter shall be appealable to the Supreme Court in 
like manner as any order or decision of a County Court judge in 
ordinary actions is appealable. 

(2) Stay of proceedings pending appeal.^In case of appeal 
from any such order or certificate, the proceedings upon such 
order or certificate may be stayed as in ordinary cases. 57 V. c. 
23, s. 69. 

See Ont. Act, section 40. 

70. Proceeding to be deemed an action. — A proceeding under 
this chapter shall be deemed to be an action. 57 V. c. 23, s. 70. 

71. (1) Joinder of lienholders. — Proceedings by lienholder 
deemed to be taken for whole class registering liens, etc. — Any 

number of lienholders may join in one action or proceeding; and 
any action or proceeding brought by a lienholder shall be taken to 
be brought on behalf of all the lienholders of the same class: who 
have registered their liens before or within fourteen days after the 
commencement of the action, or who shall within the said fourteen 
days, or within such further time as may be allowed for that pur- 
pose, file with the judge of the County Court of the county where 



374 THE LAW OF MECHANICS' LIENS IN CANADA. 

the proceedings have been brought, a statement, entitled in or 
referring to the said action, of their respective claims. 

(2) Consolidation of proceedings. — Where separate proceed- 
ings are instituted by lienholders, the judge may consolidate the 
proceedings and give all such directions as to carrying on the same, 
after consolidation, as he may deem necessary or desirable. 57 
V. c. 23, s. 71. 

See Ont. Act, section 35. , 

But although the Act allows any number of lienholders to be 
joined in one suit it does not enable a lienholder to consolidate 
liens against several different buildings. O'Brien v. Fraser, (1918) 
45 N. B. B. 539, 41 D. L. K. 324. 'Some decisions, hpwever, indi- 
cate that the lien may attach against several pieces of property as 
one individual claim. See Ontario Lime Assn. v. Grimwood, 22 
0. L. E. 17; Poison v. Thomson, (1916) 29 D. L. E. 395. 

72. Enlargement of time.— The judge may on good cause ex- 
tend the time within which any proceedings are to be taken under 
this chapter, upon application made either before or after the time 
for taking any such proceedings 'has expired. 57 V. c. 23, s. 72. 

73. Order by judge for payment out of money in bank. — 

Any money paid into a bank under this chapter shall be paid out 
by the order of the judge as he may direct. 57 V. c. 23, s. 73. 

74. Provision for other judge to act in case of interest. — 

In case the judge of the County Court in which the land, in respect 
of which the lien is claimed is situate, is interested in any pro- 
ceeding under this chapter, or related to any of the parties, the 
'proceedings may be taken before any judge of another County 
Court, who in so acting shall, for the purpose of such proceedings, 
be deemed to be a judge of the County Court of the county in 
which the lands in question are situate. 57 V. c. 23, s. 74. 

75. Before whom affidavit may be sworn. — Any affidavit re- 
quired under this chapter may be sworn before a justice of the 
peace or commissioner for taking affidavits. 57 V. c. 23, s. 75. 

See Ont. Act, section 17, note "j." 



REVISED STATUTES OF NEW BRUNSWICK. 375 

76. Application of chapter. — The provisions of this chapter 
shall not apply to contracts entered into prior to the first day of 
August, A.D., 1894. 57 V. c. 23, s. 76. 

See Ont. Act, section 50. 



SCHEDULE. 

Form 1 — Section 15. 
Claim of Lien. 

A. B. (name of claimant) of (here state residence of claim- 
ant) (if so, as assignee of ), (stating name and residence 
of assignor), under' the Mechanics' Lien Act, claims a lien upon 
the estate oi s (here state the name and residence of owner of 
the land upon which the lien is claimed), in the undermentioned 
land in respect of the following work (or materials), that is to 
say: (here give a short description of the nature of the work 
done or the materials furnished for which the lien is claimed), 
which work was (or is to be) done, (or materials were furnished), 
for (here state the name and residence of the person upon whose 
credit the work is done or materials furnished, on or before the 
day of . The amount claimed as due (or to 
become due) is the sum of $ 

( The following is a description of the 1 land to be charged: 
(here set out a concise description of the land to be charged, 
sufficient for the purpose of registration). (Where credit has been 
given, insert) : The said work was done (or materials were fur- 
nished) on credit, and the period of credit agreed to, expired (or 
will expire) on the day of , A.D., 19 • . 

Dated at , this day of , A.D., 19 . 

(Signature of claimant.) 
51 V. c. 23— Form (1). 



Form 2 — Section 15. 

Claim of Lien for Wages. 

A. B. (name of claimant) of (here state residence of claim- 
ant) (if so, as assignee of ), (stating name and residence 
of assignor) "under the Mechanics' Lien Act, claims a lien upon 



376 ( THE LAW OF MECHANICS' LIENS IN CANADA. 

the estate of (here state the name and residence of the owner of 
the land upon which the lien is claimed), in the undermentioned 
land in respect of days' work performed thereon while in, 

the employment of (here state the name and residence of the 
person upon whose credit the work was done), on or before the 
day of 
The amount claimed as due is the sum of $ 
The following is a description of the land to be charged: 
(here set out a concise description of the land to be charged, 
sufficient for the purpose of registration). i 

Dated at this day of , A.D., 19 . 

(Signature of claimant.) 
57 V. c. -23— Form '■ (2). 



-Form 3 — Section 15. 
Claim of Lien foe Wages by Several Claimants. 

The following persons under the Mechanics' Lien Act claim a 
lien upon the estate of (here state the name and residence of, the 
owner of the land upon which the lien is claimed) in the under- 
mentioned -lands in respect of wages for labor performed thereon, 
while in the employment of (here state name a"nd residence or 
names and residences of employers of the several persons claim- 
ing the lien). 

A. B., of (residence) $ , for days' wagBS. 

C- D., of (residence) $ , for days' wages. 

E. F., of (residence) $ , for days' wages. 

The following is a description of the land to be charged : — 

(Here set out a concise description of the land to be charged 
sufficient for the purpose of registration.) 

Dated at this day of , A.D., 19 . 

(Signature of claimants.) 
57 V. e. 23— Form (3). 



' Fohm 4 — Section 16. 

Affidavit Verifying Claim. 

I, A. B., named in the above (or annexed) claim, do make oath 
that the said claim is true (or that the said claim so far, as relates 
to me is true) or 



REVISED STATUTES OF NEW BRUNSWICK. 377 

We, A. B. and C. D., named in the above (or annexed) claim, 
do make oath, and each for himself, saith that the said claim so 
far as it relates to him is true. 

(Where the- affidavit is made by agent or assignee a clause 
must be added to the following effect) : — 

I have full knowledge of the facts set forth in the above (or 
annexed) claim. 
Sworn before me at in the 

County of ' this day of Signature.) 

, A.D., 19 . Or, > 

The said A. B. and C. D. were severally sworn 
before me at in the County 

of this day of , 

A.D., 19 . Or, 

The said E. D. was sworn before me at | 

, in the. County of this Y (Signature.) 

day of , A.D., 19 . ) ■' 

57 V. c. 23— Form (4). 



(Signature.) 



Fohm 5 — Section 30. 
i 

Contractor's Affidavit. 

I, A. B., contractor (or sub-contractor, as the case may be), 
for certain work on the land of , which may be known and 

described as follows: (here describe land briefly), make oath and 
say (or do solemnly declare) that I have paid all wages earned 
in respect to or on the said- work up to and inclusive of the 14th 
day preceding this day, that is to say, up to and inclusive of the 
day of 
Sworn (or declared), etc. 

57 V. c. 23— Form (5). 



Form 6— Section 30. 
Affidavit of Agent. 

I, A. B., agent for C D., contractor, (or sub-contractor, as the 
case may be) in respect of certain work on the land of , 



378 THE LAW OF MECHANICS' LIENS IN CANADA. 

which may be known and described as follows : (here describe land 
briefly), make oath and say (or do solemnly declare) ; 

That I know of my own personal knowledge, that all wages 
earned in respect to or on the said work up to and inclusive of 
the 14th day preceding this day, that is to say, up to and inclu- 
sive of the day. of , have been paid. 

Sworn to' (or declared), etc. 

57 V. c. 23— Form (5). 



Form 7 — Section 33. 
Affidavit of Mortgagor. 

I, A. B., the mortgagor named in a certain mortgage, bearing 
date the day of , made between myself of the 

first part and C. D., as mortgagee, and registered in the office of 
the Eegistrar of Deeds for the County of , as No. , 

make oath and say (or do solemnly declare) : — - 

That all claims of mechanics, laborers and other ' persons re- 
ferred to in the fourth section of the Mechanics' Lien Act, with 
reference to work done, or materials or machinery placed or fur- 
nished on the land included in the said mortgage have been paid 
in full. I further say that all wages earned in respect to, or on 
the said work, up to and inclusive of the 14th day preceding this 
day, that is to say, up to and inclusive of the day 

of , have been paid. 

Sworn (or declared), etc. 

57 V. c. 23— Form (7). 



Form 8 — Section 40. 

Affidavit Verifying Claim. 

(Title of Court and Clause.) 

I, make oath and say: that I have read (or heard 

read) the foregoing statement of claim, and I say that the facts 

therein set forth are, to the best of my knowledge and belief, true, 

and the amount claimed to be due to me in, respect of my lien is 

, the just and true amount due and owing to me, after giving credit 



REVISED STATUTES OF NEW BRUNSWICK. 379 

for all sums of money or goods or merchandise to which (naming 
the debtor) is entitled to credit as against me. 
Sworn, etc. 

57 V. c. 23— Form (8). 



Form 9 — Section 42. 

Certificate and Appointment by Judge. 

(Title of Court and Clause.) 

I certify that the above named plaintiff, claiming to be a 
contractor with the defendant (naming the owner), or a sub- 
contractor of the defendant, A. B. who is (or claims under C. D.) 
a contractor with (naming the owner), has filed with me a state- 
ment of his claim to enforce a mechanics' lien against (describe 
the lands) and take notice that I will, at my chambers at the 
of , in , proceed on , the day 

of , to determine whether the plaintiff is entitled to the 

lien in case his right thereto is disputed, and on the day 

of I will, in case his right is undisputed, or if disputed, 

is established before me, proceed and take all necessary accounts, 
and tax costs, for the purpose of enforcing such lien, and if you 
do not attend at the time and place appointed, and prove your 
claim, if any, the proceedings will be taken in your absence, and 
you may be deprived of all benefit of the proceedings. 
Dated the day of , A.D., 19 . 

Judge ■ of the - County Court. 

(Signature.) 
hi V. c. 23— Form (9). 



Form 10 — Section 44. . 

Notice Disputing Plaintiff's Eight of Lien. 
(Title of Court and Cause.) 

I dispute that the plaintiff is now entitled to a mechanics' lien 
on the following grounds (setting forth the grounds shortly) : 

(a) That the lien has not been prosecuted in due time, as 
required by statute; 



380 the law of mechanics' liens in canada. 

(b) That there is nothing due to plaintiff; 

(c) That plaintiff's lien has been vacated and discharged; 

(d) That there is nothing due by A. B. (the owner) for the 
satisfaction of the plaintiff's claim. 

(Signature of defendant, in person, or his solicitor.) 
This notice is. filed by me, -A. B., defendant, in person, and 
my address for service is (stating address within two miles of 
Chambers or judge) (or, this notice is, filed by X. Z., of , 

solicitor for the defendant, A. B.). 

57 V. c. 23— Form (10). 



Poem 11 — Section 47. 

Statement of Accounts to be Filed by Owner. 

(TitU of Court .and Cause.) 

Amount of contract price for work contracted to be 
performed (as plumber) on the lands in question 

herein $500.00 

Amount paid on account. 
1903. 

June 1. Paid E. F $200.00 

July 5. Paid G. H. and B. K., sub-contrac- 
tors of B. F 100.00 

Total $300.00 

Balance admitted to be due $200 . 00 

for satisfaction of lien of plaintiff and other lienholders of same 
class as plaintiff. 

57 V. c. 23— Form (11). 



Fokm 12 — Section 47. 

Affidavit of Owner Verifying Account. 

(Title of Court and Cause.) 

I, A. B., of , being the owner of the lands in ques- 

tion in this aetion, make oath and say: 



REVISED STATUTES OF NEW BRUNSWICK. 381 

That I have in the foregoing account (or, account now shown 
to me, marked "A") set forth a just and true account of the 
amount of the contract price agreed to be paid by me to E. F., for 
the work contracted to be done by him on the lands in question. 

I have also jusjtly and truly set forth the payments made by 
me on account thereof, and the persons (or person) to whom the 
same were made, and the balance of $200, appearing by such 
account to be still due and payable, is the just and true sum now 
due and owing by me in respect of my contract with the said E. F. 

Sworn, etc. , 57 V. c. 23— Form (12). 



Form 13 — .Section 48. 
Statement of Account by Lienholder. 

(Title of Court and Cause.) 

E. F. 

To G. H., 
1903. Dr. 

Jan. 1. To 12 dozen brackets $12.00 

Feb. 3. To 50 lbs. nails 5.00 

Oct. 3. To 40 sheets glass 40.00 

$57.00 
1903. Cr. 

Feb. 4. By cash $ 4.00 

, , June 1. By cash 20.00 24.00 



$33.00 
57 V. c. 23— Form (13). 



Form 14 — Section 48. 

Affidavit of Lienholder Verifying Claim. 

(Title of Court and Cause.) 

I, G. EL, of (address and occupation) make oath and say: — 
I have in the foregoing account (or, in the account now 
shown to me, marked "A") set forth a just and true account of 



382 



THE LAW OF MECHANICS' LIENS IN CANADA. 



the amount due and owing to me by E. H. (the owner) (or, by 
E. E.j who is a sub-contractor with the defendant L. G.) (the 
owner) of the lands in question, and I have in the said account 
given credit for all sums in cash or merchandise or otherwise, to 
which the said E. P. is justly entitled to credit in respect of the 
said account, and the sum of ($33) appearing by said account to 
be due to me as the amount (or balance) of such account, is now 
justly due and owing to me. 

Sworn, etc. (address of claimant or his solicitor fot service to 
be set forth as in Form (10)). 

57 V. c. 23— Form (14). 



Form 15 — Section 58. 
(Title of Court and Cauqe.) 
t)ate 

Upon motion of the. aforesaid plaintiff, and upon hearing read 
the statement, of claim, and the report made herein on the 
day of , it is ordered and adjudged that the land in 

question (describe the lands) be forthwith sold by the sheriff of 
the said County ; that the purchase money be paid 

into the bank of to the credit of this cause ; that the pro- 

ceeds of the said sale be paid by the court to the person who may 
be found entitled thereto by the judge pf the said court. 

Entered, this day of , A.D., 19 . 



Entered this 



(Signature.) 
Judge, etc. 
day of , A.D., 19 . 

(Signature.) 

Clerk. 
57 V. c. 23— Form (15). 



revised statutes of new brunswick. 383 

Form 16 — Section 53. 

Certificate Vacating Lien. 

, (Title of Court and Cause.) 

Date 

I certify that the defendant A. B. (the owner) has paid into 
the Bank of to the credit of this cause all moneys due 

and payable by him for the satisfaction of the liens of the plain- 
tiffs and E. F., G. H., J. K., and J. L., and their liens are hereby 
vacated and discharged so far as the same affect the following 
lands: (describe lands). 

(Signature.) 
Judge, etc. 

57 V. c. 23— Form (16). 



Form 17 — Section 52. 

Certificate Vacating Lien. 

(Title of Court and Cause.) 

Date 

I certify that I have enquired and find that the plaintiff is not 
entitled to any mechanics' Ken upon the lands of the defendant 
A. B. (the owner), and that his claim for lien is vacated and dis- 
charged so far as the same affects the following lands: (describe 
lands). 

(Signature.) 
Judge, etc. 

57 V. c. 23— Form (17). 



384 the law of mechanics' liens in' canada. 

Form 18 — .Section 67. 

Certificate for Judgment for Balance after Eealization. 

of Lien. 

(Title of Court and Cause.) 

, Date 

Upon the application of A. B., on due notice to C. B., I do 
certify that A. B. is entitled nnder the provisions of the Mechan- 
ics' Lien Act to recover against C. D. $ debt and $ 
costs, and that upon filing this certificate in the^ office of the clerk 
of this x c,ourt he is entitled to enforce the same as a judgment of the 
court. 

(Signature.) 
Judge, etc. 

57 V. c. 23— Form (18). 



NOVA SCOTIA MECHANICS' LIEN ACT. 



CHAPTEE 2. 



An Act to Amend, and Consolidate the Mechanics' Lien Act. 
(Passed the 15th day of April, A.D., 1915), 



Section. 

1. Title. 

2. Interpretation. 

(a) Contractor. 

(b) Material. 

(c) Owner. 

(d) Eegistrar. 

(e) Sub-contractor. 

(f) Wages. 

3. Act not applicable certain 



cases. 



4. (1) 



agreements 



Certain 
void. 
(2) Limitation. 

5. Agreement not defined party 

entitled to lien. 

6. When lien arises. 

7. Property married woman. 

8. (1) When it attaches. 

(2) Upon what lien at- 
taches. 

Provision respecting 
prior mortgage. 
Lien dates from regis- 
tration. 

9. When property destroyed by 

fire^ 
10. Amount lien limited. 
m.l. — 25 



(3) 

(4) 



Sections 

11. Amount in case of person 

other than contractor. 

12. (1) Deductions in favor of 

contractors, etc. 

(2) Amount to be retained. 

(3) Lien a charge. 

(4) Payments made befdre 
notice. 

13. Payments when allowed 

against contractor. 
1,4. Priority of lien. 

15. Lien of mechanic, for wages, 

priority of. 

16. Materials not to be removed. 
IT. Eegistration of lien. 

18. Contents and form of claim. 

19. Union of claims. 

20. Irregularity not to invali- 

date. 

21. Claim to be registered. 

22. Eegistry Act applies. 

23. Eegistration in "other cases. 

24. When lien expires unless ac- 

tion brought. 

25. When registered lien ex- 

pires. 

26. Lien ceases in certain cases 

in 90 days. 



386 



THE LAW OF MECHANICS' LIENS IN CANADA. 



Section. 

27. Lien assignable. 

28. Provisions respecting dis- 

charge and vacating 
lien. 

29. Taking security, etc., not to 

affect lien. 

30. Enforcement of lien where 

time extended. 

31. Lienholder may demand in- 

spection of contract. 

32. Provisions respecting liens 

on mining claims. 

33. Jurisdiction of Court and 

procedure. 
34.- Trial and powers of Court.. 



Section. 

35. Notice of Triad. 

36. Consolidation of actions. 

37. Carriage of action. 

38. Judgment in petty cases. 

39. Appeal. 

40. Costs. 

41. Law stamps. 

42. Deficiency after sale recover- 

able. 

43. Certificate vacating lien. 

44. Mechanics' lien on chattels. 

45. Personal judgment. 

46. .Forms. 

47. Acts repealed. 



Be it enacted by the Governor, Council, and Assembly, as 
follows :— 

Shokt Title. 

1. Title. — This Act may be cited as "The Mechanics' Lien 

Act." 

2. Interpretation. — In this Act — 

(a) " Contractor." — " Contractor," shall mean a person con- 
tracting with or employed directly by the owner or his agent 
for the doing of work or service or placing or furnishing 
materials for any of the purposes mentioned in this Act; 

Ob) " Material."—" Material " or " materials " ' shall in- 
clude every kind of movable property; 

(c) " Owner." — " Owner " shall extend to any person, body 
corporate or politic, including a municipal corporation and a 
railway company, having any estate or interest in the land 
upon or in respect of which the work or service is done, or 
materials are placed or furnished, at whose request and 



NOVA SCOTIA MECHANICS' LIEN ACT. 387 

(i) upon whose credit, or 
(ii) on whose behalf, or 
(iii) with whose privity and consent, or 
(iv) for whose direct benefit 

work or service is performed or materials are placed or fur- 
nished, and all persons claiming under him or them whose 
rights are acquired after the work or service in respect of which 
the lien is claimed is commenced or the materials furnished 
have been commenced to be furnished; 

(d) "Registrar." — "Registrar" means registrar of deeds; 

(e) " Sub-contractor." i— " Sub-contractor " shall mean a 
person not contracting with or employed directly by the owner 
or his agent for the purposes aforesaid, but contracting with 
or employed by a contractor, or under him by another sub- 
contractor ; 

(f) "Wages." — "Wages" shall mean money earned by a 
mechanic or laborer for work done, whether by the day or other 
time or as piece work. 

See Ont. Act, section 2, and notes thereunder. 

A foreign corporation would be entitled to acquire a lien under 
this Act. See Bank of Montreal v. Condon, (1896) 11 Man. L. E. 
366. 

3. Act not applicable to certain cases. — Nothing in this Act 
shall extend to any public street or highway, or to any work or 
improvement done or caused to be done by a municipal corporation 
thereon. 

4. (1) Certain agreements void. — Every agreement, verbal or 
written, expressed or implied, on the part of any workman, ser- 
vant, laborer, mechanic or other person employed in any kind of 
manual labor intended to be dealt with in this Act, that this Act 
shall not apply, or that the remedies provided by it shall not be 
available for the benefit of such person, shall be null and void. 



3.88 THE LAW OF MECHANICS' LIENS IN CANADA. 

(2) Limitation. — This section shall not apply to a manager, 
officer or foreman, or to any other person whose wages are more 
than $5.00 a day. 

5. Agreement not defined, party entitled to lien. — No agree- 
ment shall deprive any person otherwise entitled to a lien nnder 
this Act who is not a party to the agreement, of the benefit of the 
lien, but it shall attach, notwithstanding such agreement. 

6. When lien arises. — Unless he signs an express agreement to 
the contrary, and in that case subject to the provisions of section 
4, any person who performs any work or service upon or in respect 
of, or places or furnishes any material to be used in the making, 
constructing, erecting, fitting, altering, improving or repairing of 
any erection, building, railway, land, wharf, pier, bulkhead, bridge, 
tres'tlework, vault, mine, well, excavation, fence, sidewalk, pave- 
ment, fountain, fishpond, drain, sewer, aqueduct, roadbed, way, 
fruit or ornamental trees/or the appurtenances to any of them, for 
any. owner, contractor, or .sub-contractor, shall by virtue thereof 
have a lien for the price of such wor-k, service or materials upon 
the erection, building, railway, land, wharf, pier, bulkhead, bridge, 
trestlework, vault, mine, well, excavation, fence, sidewalk, paving, 
fountain, fishpond, drain, sewer, aqueduct, roadbed, way, fruit or 
ornamental' trees, and appurtenances, and the land occupied there- 
by or enjoyed therewith, or upon or in respect of which such work 
or service is performed, or upon which such materials are placed or 
furnished to be used, limited, however, in amountto the sum justly 
due to the person entitled to the lien and to the sum justly owing 
(except as 1 herein provided) by the owner. 

(The foregoing section is as amended by c. 72 of the Acts of 
1917). 

See Ont. Act, section 6, and cases cited. 

As to what constitutes a building or erection, see a large num- 
ber 7 of cases cited in A-damson v. Rogers, (1895) 22 0. A. K. 415. 

G. & W., who were awarded a contract to place heating appar- 
atus in a hotel building owned by the defendant D., ordered 
materials, required from plaintiffs in a letter stating: "We have 
secured contract for hotel which requires above goods." Held, 



NOVA SCOTIA MECHANICS' LIEN ACT. 389 

that these words sufficiently identified the building for which the 
goods were required. Dominion Radiator Co. v. Cann et al., 
(1904) 37 N. S. R. 237. 

The word " mine " used as affecting claims of others than 
laborers includes the areas and the deposit of ore, and the parcel 
of land on which such deposit is found ; and the word " appur- 
tenances" refers to articles of movable property in working the 
mine. Pelton v. Black Hawk Mining Co., (1903) 40 N. S. E. 
385. 

j Certain loads of gravel had been placed on the street in front 
of a sidewalk adjoining the building which was being repaired. 
As the gravel was not " placed on the land " it was held that it did 
not come within the terms of the Act. Materials placed near 
the land cannot be treated as within 'the terms of the section. 
Brookfield v. Hopgood, (1919) decision of Wallace, Co. J., Hali- 
fax, unreported. 

" It appears that the builder at first paid the sub-contractors 
promptly and then suddenly stopped paying them. Subsequently 
one of them called on him twice for money, but unsuccessfully. 
The last payment by the defendant to the builder was on the 10th 
June. The builder had then represented to the wife of the de- 
fendant, who was the active agent of the defendant, that the work 
was all finished. Obviously this was a deliberately false statement, 
and made for the purpose of getting payment from the owner. 
Soon after it was made the builder " left town/' having failed to 
pay any more money to the sub-contractor, or to do anything fur- 
ther in relation to the contract. There could scarcely be stronger 
evidence of an abandonment of a contract, unless the builder had 
given a formal written notice to the owner that he had abandoned 
the contract." Dooson v. Major, (1917) ; decision of Wallace, 
Co.J., Halifax, unreported. 

The hauling of the material to the land is essential to the 
construction, and is as much work done in respect to the construc- 
tion of a building as the labor of a hod-carrier who may at times 
be obliged to leave the building and procure bricks or mortar some 
distance from the land in question, and who nevertheless would 
have a lien for labor so performed. The charge for the teamster's 
work is, therefore, allowed. Falconer v. Harilen, (1920) ; Wallace, 
Co.J., Halifax, K.S. (unreported). 

7. Property married woman. — Where work or service is done 
or materials furnished upon or in respect of the land of a mar- 



390 THE LAW OF MECHANICS' LIENS IN CANADA. 

ried woman with the privity and consent of her husband he shall 
be deemed to be actjng as well for himself so as to bind his own 
interest, and also as her agent for the purpose of this Act, unless 
before doing such work or service or furnishing such materials the 
person doing or furnishing the same shall have had notice to the 

contrary. 

i 

8. (1) When it attaches. — The lien shall attach upon the 
estate or interest of the owner in the property mentioned in sec- 
tion 6. 

(2) Upon what lien attaches. — Where the estate or interest 
upon which the lien attaches is leasehold, the fee simple may also, 
with the consent of the owner thereof, be subject to the lien, pro- 
vided that such consent is testified by the signature of the owner 
upon the claim of lien at the time of the registering thereof, veri- 
fied by affidavit. 

(3) Provision respecting prior mortgage. — Where the land 
upon or in respect of which any work or service is performed, or 
materials are placed or furnished to be used, is incumbered by a 
prior mortgage or other charge; and 

(a) The selling value of the land is increased by the work 
or service, or by the furnishing or placing of the materials; 
and 

(b) The mortgagee consents to the performance .of such 
work or service or the furnishing, or placing of such materials ; 

the lien shall attach upon such increased value in priority to the 
mortgage or other charge. , 

(4) Lien dates from registration. — Such lien, upon registra- 
tion, as in this Act provided, shall attach and take effect from 
the date of the registration as against subsequent purchasers, mort-. 
gagees, or other incumbrancers. 



NOVA SCOTIA MECHANICS' LIEN ACT. 391 

9. When property destroyed by fire. — -Where any of the pro- 
perty upon which a lien attaches is wholly or partly destroyed by 
fire any money received by reason of any insurance thereon by an 
owner or prior -mortgagee or chargee shall take the place of the 
property so destroyed, and shall be subject to the claims of all per- 
sons for liens to the same extent as if such money was realized by 
a sale of such property in an action to enforce the lien. 

10. Amount of lien limited.— Save as herein otherwise pro-' 
vided, ' the lieri shall not attach so as to make the owner liable for 
a greater sum than the sum payable to the contractor. 

A sub-contractor cannot share in, the statutory percentage re^ 
■ tained or paid intp court, by the owner unless there is by the terms 
of the contract money payable by the owner to the contractor. 
The right of the sub-contractor, unlike the right of the wage-earner, 
is measured by the amount justly due by the owner to the con- 
tractor, and the owner would not be liable to the sub-contractor for' 
•j a greater sum than is payable to the contractor. Boyce v. Kennedy, 
(1919) ; Wallace, Co. J., Halifax, N.S. (unreported). 

11. Amount in case of person other than contractor. — Save as 
herein otherwise provided, where the lien is claimed by any person 
other than the contractor the amount which may be claimed in 
respect thereof shall be limited to the amount owing to the con- 
tractor or sub-contractor or other person for whom the work or 
service has been done or the materials placed or furnished. 

See amendment made by e. 43 of the Acts of 1920. 
See McDonald- v. Dominion Iron & Steel Co., (1903) 40 N. S. 
E. 465. 

12. (1) Deductions in favor of contraetors, etc. — In all cases 
the person primarily liable upon any contract under or by virtue 
of which a lien may arise shall, as the work is done or materials 
are furnished under the contract, deduct from any payments to 
be made by him in respect of the contract, and retain for a period 
of thirty days after the completion or abandonment of the con- 
tract, twenty per cent, of the value of the work, service and ma- 
terials actually done, placed or furnished as mentioned in section 



392 THE LAW OF MECHANICS' LIENS IN CANADA. 

6, and such value shall be calculated on the basis of the contract 
price, or if there is no specific contract price, then on the basis of 
the actual value of the work, service, or materials. 

(2) Amount to be retained. — Where the contract price or 
actual value exceeds $15,000,, the amount to be retained shall be 
fifteen per cent, instead of twenty per cent. 

(3) Lien a charge. — The lien shall be a charge upon the 
amount directed to be retained by this section in favor of sub- 
contractors whose liens are derived under persons to whom such 
moneys so required to be retained are respectively payable. 

(4) Payments made before notice.^All payments up to eighty 
per Cent, or eighty-five per cent, where the contract price or actual 
value exceeds $15,000, of such price or value made in good faith by 
an owner to a contractor, or by a contractor to a sub-contractor, or 
by one sub-contractor to another sub-contractor, before notice in 
writing of such lien given by the person claiming the lien" to him, 
shall operate as a discharge pro tanto of the lien. 

(5) Payment of the percentage required to be retained under 
sub-sections 1 and 2 may be validly made so as to discharge all 
liens or charges in respect thereof after the expiration of . the 
period of thirty days mentioned in sub-section 1, unless in the 
meantime proceedings have been commenced to enforce any lien 
or charge against such percentage as hereinafter provided. 

B. contracted with the defendant company to transfer to 
them a quantity of land, and to erect and equip a mill and to do 
other work, for an agreed sum in bonds and shares of the com- 
pany and other considerations. It was subsequently agreed, 
verbally, that a portion of the proceeds of the bonds and shares 
transferred to B. should be retained by a trust company as secur- 
ity for the performance by B- of his contract for the erection of 
the mill, to be paid out as the work progressed. In an action 
against the company by the sub-contractor by whom the machinery 
for the mill was supplied: — Held, that in the absence of notice, 
the company are not liable to plaintiff for failure to retain out of 



NOVA SCOTIA MECHANICS' LIEN ACT. 393 

the moneys paid to B. the percentage required to be retained under 
the provisions of the Act. Also that the transaction which took 
place when the title to the property was transferred to the com- 
pany, and the bonds and shares, the consideration therefor, were 
delivered to B., was not one within the provisions of section 8 of 
the Act and that the company was not required to retain anything 
on that date for the benefit of future contractors. Smith Co. v. 
Sissiboo, etc., Co., (1903) 36 N. S. E. 348. 

On appeal to the Supreme Court of Canada this judgment was 
affirmed, and it was held that section 8 which requires the owner 
to retain fifteen per cent, of the contract price until the work is 
completed did not apply,' as no price for building the mill was 
specified, but the price was associated with other considerations 
from which it could not be separated. Smith Co. v. Sissiboo, etc., 
Co., (1904) 35 S. C. K. 93. 

C. contracted with the owner of the Queen Hotel to do certain 
work in connection with the hotel for the sum of $7,200. A sub- 
contract was made by C. with M. to do certain work in connection 
with the heating system for the sum of $250. M. in turn made a 
sub-contract with plaintiff to do the latter work for the sum of 
$200. 

M. having assigned, plaintiff asserted a lien upon the hotel 
property for the amount of his contract, with the sum of $21.90 
for extras, making in all $221.90. It appeared that the balance 
due by C. to M. was $75. It was held by Wallace, Co. J., that 
under the circumstances in evidence plaintiff's lien was limited to 
the sum of $75. An appeal from this judgment was dismissed by 
the Supreme Court of Nova Scotia. Briggs v. Mclnnis, (1919) 
53 X. S. R. 417. 

" It is contended that under this section the phrase ' person 
primarily liable ' must refer to the owner. But it cannot have 
such a meaning in this section when dealing with contracts of sub- 
contractors made with the main' contractor, because the section in 
express terms requires the person primarily liable to make the 
deductions from any payments made by him in respect to such 
contract, that is to say, in this case, such sub-contract. But the 
owner in the present case was 'not required to make any payments 
to the sub-contractor, and, therefore, the ' person primarily 
liable ' in this ease must be the person with whom the sub-con trac- 
tor made his contract, — that is to say, the main contractor." 



394 THE LAW OF MECHANICS' LIENS IN CANADA. 

Briggs et al. v. Mclnnis et al, supra, per Wallace, Co. J., Halifax, 
KB. 

The above section has since been amended. See c. 43 of the 
K S. Acts of 1920. 

13. Payments, when allowed against contractor. — If an owner, 
contractor or sub-contractor makes a payment to any person en- 
titled to a lien, under section 6 for or on account of any debt justly 
due to him for work or service done or for materials placed or fur- 
nished to be used as therein mentioned, for which he is not prim- 
arily liable, and within three days afterwards gives, by letter or 
otherwise; written notice of such payment to the person primarily 
liable, or his agent, such, payment shall be deemed to be a pay- 
ment on his contract generally to the contractor or sub-contractor 
primarily liable, but not so as to affect the percentage to be re- 
tained by the owner as provided by section 12. 

14. (1) Priority of lien. — The lien shall have priority over 
all judgments, executions, assignments, attachments, garnish- 
ments and receiving orders recovered, issued or made after such 
lien arises, and over all payments or advances made on account of 
any conveyance or mortgage after notice in writing of such lien 
to the person making such payments or after registration of a 
claim for such lien as hereinafter provided. 

(2) Where there is an agreement for the purchase of land, 
and the purchase money or part thereof is unpaid, and no con- 
veyance has been made to the purchaser, he shall, for the pur- 
poses of this Act, be deemed a mortgagor and the seller a mort^ 
gagee. 

(3) Except where it is otherwise provided by this Act no 
person entitled to a lien on any property or money shall be en- 
titled to any priority or preference over another person of the 
same class entitled to a lien on such property or money, and each 
class of lienholders shall rank pari passu for their several amounts, 
and the proceeds of any sale shall be distributed among them pro 
rata according to their several classes and rights. 



NOVA SCOTIA MECHANICS' LIEN ACT. 395 

15. (1) lien of mechanics, etc., for wages, priority of. — 

Every mechanic or laborer whose lien is for wages shall, to the 
extent of thirty days' wages, have priority over all other liens de- 
rived through the same contractor or sub-contractor to the extent 
of and on the twenty per cent, or fifteen per cent., as the case may 
be, directed to be retained by section 12 to which the contractor or 
sub-contractor, through whom such lien is derived is entitled, and 
all such mechanics and laborers shall rank thereon pari passu. 

(2) Every wage-earner shall be entitled to enforce a lien in 
respect of a contract not completely fulfilled. 

(3) If the contract has not been completed when th& lien is 
claimed by a ,wage-earner, the percentage shall be calculated on 
the value of the work done or materials furnished by the contrac- 
tor or sub-contractor by whom such wage-earner is employed, hav- 
ing regard to the contract price, if any. 

(4) Where the contractor' or sub-contractor makes default in 
completing his contract the percentage shall not, as against a 
wage-earner claiming a lien, be applied by the owner or contractor 
to the completion of the contract or for 'any other purpose, nor to 
the payment of damages for the non-completion of the contract by 
the* contractor or sub-contractor, nor in payment or satisfaction 
of any claim against the contractor or sub-contractor. 

(5) Every device by an owner, contractor or sub-contractor to 
defeat the priority given to a wage-earner for his wages, and every 
payment made for the purpose of defeating or impairing a lien, 
shall be null and void. ' 

See McDonald v. Dominion Iron & Steel Co., (1903) 40 N. S. 
E. 465. 

Material. 

16. (1) Materials not to be removed. — During the continu- 
ance of a lien no part' of the material affected thereby shall be 
removed to the prejudice of the lien. 

(2) Material actually brought upon any land to be used in 
connection with such land for ' any of the purposes enumerated in 



396 THE LAW OF MECHANICS' MENS IN CANADA. 

section 6, shall be subject to a lien in favor of the persons furnish- 
ing it until placed in the building, erection or work, and shall not 
be subject to execution or other process to enforce any debt other 
than for the purchase thereof, due to the person furnishing the 
same. 

Eegisteation of Claim. 

17. Registration of lien.' — A claim for lien may be registered 
in the registry of deeds for the registration district in which the 
land is situated. 

18. (1) Contents and form of claim. — A claim for lien shall 
state— 

(a) the name and residence of the person claiming the 
lien, and of the owner of the property to be charged (or the 
person whom the person claiming the lien, or his agent, be- 
lieves to be the owner of the property proposed to be charged) 
and of the person for. whom and on whose credit the work or 
service was, or is to be, done, or materials furnished or placed, 
and the time within which the same was, or is to be done, or 
furnished or placed ; 

(b) a short description of the work or service done, or to 
be done, or materials furnished or placed, or to be furnished 
or placed; 

(c) the sum claimed as due or to become due; 

(d) a description of the land or property to be charged; 

(e) the date of expiry of the period of credit, if any, 
agreed upon by the lienholder for payment for his work or 
service or materials, where credit has been given. 

(2) The claim may be in one of the forms A or B in the 
schedule to this chapter, or to the like effect, and shall be verified 
by the affidavit (form C) of the person claiming the lien, or of his 
agent or assignee having a personal knowledge of the matters 



NOVA SCOTIA MECHANICS' LIEN ACT. 397 

required to be verified, and the affidavit of the agent or assignee 
shall state that he has such knowledge. 

(3) Where it is desired to register a claim for lien against the 
lands of a railway company, it shall be a sufficient description of 
such lands to describe them as the lands of such railway company, 
and every such claim for lien shall be registered in the registry of 
deeds for the registration district in which such lien is claimed to 
have arisen. 

Sub-section 1 (d) was substituted for former sub-section by c. 
72, s. 2, of the Acts of 19'17. 

As to error in designating owner, not being fatal to lien, where 
property can.be easily identified, see note to s. 23, post. 

19. Union of claims. — A claim for lien may include claims 
against any number of properties, and any number of persons 
claiming liens on the same property may unite therein (form D), 
but when more than one lien is included in one claim each lien 
shall be verified by affidavit (form C), as provided in the next 
preceding section of this Act. 

20. (1) Irregularity not to invalidate. — Substantial compli- 
ance only with the next two preceding sections of this Act shall be 
required, and no lien shall be invalidated by reason of the failure 
to comply with any of the requisites of such sections, unless in m the 
opinion of the court or judge who has power to try the action under 
this Act, the owner, contractor, or sub-contractor, or mortgagee or 
other person, as the case may be, is prejudiced thereby and then 
only to the extent to which he is thereby prejudiced. 

(2) Nothing in this section contained shall be construed as 
dispensing with the registration required by this Act. 

21. Claim to be registered. — The registrar, upon payment of 
a fee of twenty-five cents, shall register the claim so that the same 
may appear as an incumbrance against the land so described. 

22. Registry Act applies. — Where the claim for lien is so regis- 
tered the person entitled to such lien shall be deemed the purchaser 
pro tanto and within the provisions of "The Eegistry Act," but, 



398 THE LAW OF MECHANICS' LIENS IN CANADA. 

except as in this Act provided, "The Kegistry Act" shall not 
apply to any lien arising under this Act. 

23. (1) Registration in other cases. — A claim for lien by a 
contractor or sub-contractor, in cases not otherwise provided for, 
may be registered before or during the performance of the con- 
tract, or within thirty days after the completion or abandonment 
thereof. 

(2) A claim for lien for materials may be registered before 
or during the furnishing or placing thereof, or within thirty days 
after the furnishing or placing of the last material so furnished 
or placed. 

(3) A claim for lien for services may be registered at any time 
during the performance of the service or within thirty days after 
the completion of the service. 

(4) A claim for lien for wages may be registered at any time 
during the performance of the work for which such wages are 
claimed, or within thirty days after the last work is done for which 
the lien is claimed. 

(5) In the case of a contract which is under the supervision of 
an architect, engineer or other person upon whose certificate pay- 
ments are to be made, the claim for lien by a contractor may be 
registered' within the time mentioned in sub-section 1, or within 
seven days after the architect, engineer or other person has given, 
or has, upon application to him by the contractor, refused to give 
a final certificate. 

One Ehuland had a contract with Wright for the construction 
of some houses. Dempster & Co. were the sub-contractors and 
supplied Ehuland on his credit with materials for the work, the 
whole of which was delivered before the 28th April, 1900. On 
the 18th May, 1900, Dempster & Co. registered a lien against the 
property under the Mechanics' Lien Act, 1899, but no proceed- 
ings were instituted by them to realize the claim until 13th Au- 
gust, 1900. On an application to set aside Dempster's lien, Eitchie, 
J., delivered the following judgment : " I think the word ' con- 
tract' in the 20th section of the Act means the original contract 



NOVA SCOTIA MECHANICS' LIEN ACT. 399 

with the owner and not the contract between the contractor and a 
sub-contractor. If no claim has been registered, Dempster & Co. 
could, I think, have registered one at any time within thirty days 
after the completion of that contract. There seems to be no 
reference to the abandonment of the contract except in section 9, 
but in view of that section I am inclined to the opinion that an 
abandonment would be held as equivalent to a completion, and no 
claim could be registered after thirty days from the abandonment 
of a contract. In this case no period of credit is mentioned in the 
claim and Mr. Dempster has sworn in an affidavit attached to the 
claim that none was given nor is the lien claimed upon materials 
or machinery as provided by section 20, sub-section 2. The diffi- 
culty, I think, arises in construing the words ' after the work or 
service has been completed,' in the cases of sub-contractors. Does 
this mean after the original contract has been completed or after 
the completion of the sub-contract? Sub-sections 2 and 3 of sec- 
tion 22 of the Ontario Act have been omitted from the correspond- 
ing section (20) of our Act, and decisions on these sections, in- 
cluding Mall v. Hogg, 20 0. E. 15, are not, I think, applicable. 
Application dismissed. Dempster v. Wright, (1900) 21 0. L. T. 
88. 

Where a claim was erroneously made against a person who was 
assumed to be the owner of the property but the lien claimant evi- 
dently supposed that he was inserting the right name, and the 
property could be clearly identified by the description, and no one 
could be prejudiced by the mistake, an amendment, stating the 
name of the true owner was granted, notwithstanding that the 
statutory thirty days had expired. The claim is against the land and 
building instead of the person, and the name of the alleged owner 
is only a circumstance of description to give notice to purchasers. 
Entire accuracy in such matters is not essential. Noonan v. Gaiety, 
Limited, (1919). Decision of Wallace, Co. J., unreported. 

Where the plaintiff misconstrued the terms of his contract and 
assumed that he had completed it, and, therefore, removed his men 
and materials from the property, it was held there was no " aban- 
donment." The word " abandonment " would include such acts as 
■ flight, or a refusal to complete a contract on some specific ground, 
while admitting its non-completion, and would also include such 
deliberate neglect to continue the work, after due notice or request 
from the employer, as would be equivalent to refusal, but the word 



400 THE LAW OF MECHANICS'" LIENS IN CANADA. 

" abandonment '" in this section cannot mean ceasing to work 
under the belief that the contract is completed. Boyce v. Huxtable, 
(1919) ; Wallace, Co. J., unreported. 

Espihy and Discharge of Lien. 

24. When lien expires unless when action brought. — Every' 
lien for which a claim is not registered shall absolutely cease to 
exist on the expiration of the time hereinbefore limited for the 
registration thereof, unless in the meantime an action is com- 
menced to realize the claim or in which <the claim may be realized 
under the provisions of this Act, and a certificate thereof (form 
E) is registered in the registry office in which the claim for lien 
might have been registered. 

25. (1) Registered lien expires. — Every lien for which a claim 
has been registered shall absolutely cease to exist on the expiration 
of ninety days after the work or service has been completed or 
materials have been furnished or placed, or after the expiry of the 
period of credit, where such period is mentioned in the claim for 
lien registered, or in the cases provided for in sub-section 5 of sec- 
tion 23, on the expiration of thiffy days from the registration of 
claim, unless in the meantime an action is commenced to realize 
the claim or in which the claim may be realized under the provi- 
sions of this Act, and a certificate is registered as provided by the 
next preceding section. 

(2) Where the period of credit mentioned in the claim for lien 
registered, has not expired, it shall nevertheless cease to have any 
effect on the expiration of six months from the registration or any 
re-registration thereof if the claim Is not again registered within 
that period, linless in the meantime an action is commenced and a 
certificate thereof has been registered as provided by sub-section 1. 

26. Lien ceases in certain cases in 90 days. — If there is no 
period of credit, or if the date of the expiry of the period of credit 
is not stated in the claim so registered, the lien shall cease to exist 



NOVA, SCOTIA MECHANICS' LIEN ACT. 401 

upon the expiration of ninety days after the work or service has 
been completed or materials furnished or placed, unless in the 
meantime an action is commenced and a certificate thereof regis- 
teredi as provided by section -24. 

27. Lien assignable. — The right of a lienholder. may be as- 
signed by an instrument in writing and, if not assigned, upon his 
death shall pass to his personal representative. 

28. (1) Provisions respecting discharge and vacating lien. — 

A lien may be discharged by a receipt signed by the claimant, or 
his agent, duly authorized in writing, acknowledging payment, 
and verified by affidavit and registered. 

(2) The receipt shall be numbered and entered like other in- 
struments, but shall not be copied in any registry book, and there 
shall be entered against the entry of the lien to which the discharge 
relates the word " discharged " and the registration number of 
such discharge. ; 

(3) The fee shall be the same as for registering a claim. 

(4) Upon application, the court or judge having jurisdiction 
to try an action to realize a lien, may allow security for or payment 
into court of the amount of the claim, and may thereupon order 
that the registration of the lien be vacated or may vacate the regis- 
tration upon any other proper ground and a certificate of the order 
may be registered. 

(5) Where the certificate required by sections 24 and 25 has 
not been registered within the prescribed time, and an application 
is made to vacate the registration of a claim for lien afterthe time 
for registration of the certificate required by sections 24, 25 or 26, 
the order vacating the lien may be made ex parte upon production 
of the certificate of the registrar certifying the facts entitling the 
applicant to such order. 

Effect of Taking Secukitx oe Extending Time. 

29. (1) Taking security, etc., not to affect lien. — The taking 
of any security for, or the acceptance of any promissory note or 

3X.L.— 26 



. 402 THE LAW OF MECHANICS' LIENS IX CANADA. 

bill of exchange for, or the taking of any acknowledgment of the 
claim, or the giving of time for the payment thereof, or the taking 
of any proceedings for the recovery, or the recovery of a personal 
judgment for the claim, shall not merge, waive or pay, satisfy, 
prejudice or destroy the lien unless the claimant 1 agrees, in writ- 
ing, that it shall have that effect. 

(2) Where any, such promissory npte or bill of exchange has 
been negotiated, the Iienholder shall not thereby lose his lien if, 
at the time of bringing his action to enforce it, or where an action 
is brought by another Iienholder, he is, at the time of proving his 
claim in such action, the holder of such promissory note or bill 
of exchange. * 

(3) Nothing in sub-section 2 shall extend the time limited by 
this Act for bringing the action to enforce the lien. 

(4) A person who has extended the time for payment of a 
claim for which he has a lien, to obtain the benefit of this section, 
shall commence an action to enforce such lien within the time pre- 
scribed by this Act, and shall register a certificate as required by 
sections 24, 25 or 26, but no further proceedings shall be taken 
in the action, until the expiration of such extension of time. 

30. Enforcement of lien where time extended. — Where the 
period of credit in respect of a claim has not expired, or where 
there has been an extension of time for payment of the claim, the 
Iienholder may nevertheless, if an action is commenced by any 
other person to enforce a lien against the same property, prove 
and obtain payment of his claim in such action as if the period of 
credit or the extended time had expired. 

Lienholder's Eight to Information. 

31. (1) Lienholder may demand inspection of contract. — Any 
Iienholder may at any time demand of the owner or his agent the 
terms of the contract or agreement with the contractor for and in 
respect of. which the work, service or material is or is to be per- 
formed or furnished or placed, and if such owner 'or his agent 



NOVA SCOTIA MECHANICS' LIEN* ACT. 403 

does not, at the time of such demand or within reasonable time 
thereafter, inform the person making such demand of the terms of 
such contract or agreement, and the amount due and unpaid upon 
such contract or agreement, or if he knowingly falsely states the 
terms of the contract or agreement, or the amount due or unpaid 
thereon, and if the person claiming the lien sustains loss by reason 
of such refusal or neglect or false statement, the owner shall be 
liable to him in an action therefor for the amount of such loss. 

(2) The court, or judge having jurisdiction to try an action to 
realize a lien, may, on a summary application at' any time before 
or after an action is commenced for the enforcement of such lien, 
make an order requiring the owner or his agent to produce and 
allow any lienholder to inspect any such contract or agreement 
upon such terms as to costs as he may deem just. 

Liens on Mining Claims. 

32. (1) Provisions respecting liens on mining claims. — Every 
laborer or workman to whom wages is due by any person, firm or 
corporation for work or labor performed at a mine or in connection 
with mining operations carried on by such person, firm or corpora- 
tion, shall have a lien upon the property and mining leases or 
licenses in respect to which such work and labor has been per- 
formed to the extent of two months' wages. 

(2) Such lien shall have priority over all other liens, mort- 
gages or charges upon the said property and mining leases or 
licenses, whether the same are prior or subsequent to the perform- 
ing of such work and labor. 

(3) In the registration of such lien it shall not be necessary to 
describe the property and, mining leases affected' thereby, but it 
shall be ■ sufficient to designate such property and mining leases as 
the property and mining leases of such person or corporation. 

(4) Such lien shall be registered in the office of the Commis- 
sioner of Public "Works and Mines at Halifax, as well as at the 
registry of deeds, of the registration district in which the mine is 



4:04 THE LAW OF MECHANICS' LIENS IX CANADA. 

situate, and the provisions of this Act shall, in so far as the same 
are applicable, apply to registration in the office of said Commis- 
sioner. 

(5) Proceedings to enforce a lien created by this section may 
be taken at any time within six months from the registration 
thereof and shall be deemed to be taken on behalf of all persons 
holding such liens at the time such proceedings are commenced or 
within thirty days thereafter. 

(6) In this section the expression "mine" means a mine to 
which the Coal Mines Eegulation Act or the Metalliferous Mines 
Eegulation Act applies, and the expression " mining " shall have 
the same meaning as the expression "to mine" in the Mines Act. 

Eealizing Liens and Pbocedube. 

33. (1) Jurisdiction of court and procedure. — The liens 
created by this Act may be enforced by an action to be brought 
and tried in the County Court of the County Court District in 
which the lands are situated, whether the amount claimed is over 
$800.00 or not, and according to the ordinary procedure of- such 
court, except where the same is varied by this Act. 

(2) Without issuing a writ of summons an action under this 
Act shall be commenced by filing a statement of claim in the office 
of the clerk. 

(3) Any number of lienholders claiming liens on the same 
property may join in the action, and any action brought by a lien- 
holder shall be taken to be brought on behalf of all other lien- 
holders on the property in question. 

(4) It shall not be necessary to make any lienholders defen- 
dants to the action, but all lienholders served with a notice of 
trial shall, for all purposes, be treated as if they were parties to the 
action. 

(5) Every such lienholder who is not a party to the action 
shall file his claim, verified by affidavit. (Form 6). 

(6) The statement of claim shall be served within one month 
after it is filed, but the court or judge having power to try' the ac- 
tion may extend the time for service thereof. 



NOVA SCOTIA MECHANICS' LIEN ACT. 405 

(7) The statement of defence may be in one of the forms H 
or I. The time for delivering a statement of defence shall be the 
same as for' entering an appearance in an action in the Supreme' 
Court. 

(8) The service of all papers necessarily or usually served in 
the enforcement of this Act may be effected by any literate person. 
(This sub-section was added by c. 46, of the Acts of 1918). 

See McDonald v. Consolidated G. M. Co., (1901) 21 C. L. T. 
482, and Pennington v. Morley, (1902) 3 0. L. E. 514. 

Notice of taking an order for judgment should be given prior 
encumbrancers so as to protect their rights. Pelton v. Black 
Hawk .Mining Co., (1903) 40 N. S. E. 385. 

34. (1) Trial and powers of court.— After the delivery of. the 
statement of defence, where the plaintiff's claim is disputed, or after - 
the time for delivery of defence in all other cases, where it is desired 
to try the action otherwise than at the ordinary sittings of the court, 
either party may apply to a judge who has power to try the action 
to fix a day for the trial thereof, and the judge shall make an ap- 
pointment fixing the day and place of trial, and on the day ap- 
pointed, or on such other day to which the trial is adjourned, shall 
proceed to try the action and all questions which arise therein, 
or which are necessary to be tried to fully dispose of the action, 
and to, adjust the rights and liabilities of the persons appearing 
before him, or upon whom the notice of trial has been served, and 
at the trial shall take all accounts, make all inquiries, and give all 
directions, and do all things necessary to try and otherwise finally 
dispose of the action, and of all matters, questions and accounts 
arising in the action, or at the trial, and to adjust the rights and 
liabilities of, and give all necessary relief to, all parties to the 
action, or who have been served with the notice of trial, and shall 
embody all results in the judgment. (Form K) . 

(2) The judge who tries the action may order that the estate 
or interest charged with the lien be sold, and when by the judg- 
ment a sale of the estate or interest charged with the lien is or- 
dered, the judge who tries the action may direct the sale to take 



406 THE LAW OF MECHANICS' LIENS IN CANADA. 

place at any time after judgment, allowing, however, a reasonable 
time for advertising such sale. 

(3) The judge, who tries the action may also order the sale 
of any materials, and authorize the removal thereof. 

(4) Any lienholder who has not proved his claim at the trial 
of any action to enforce a lien, on application to the -judge who tried 
the action, upon such terms as 1 to Costs and otherwise as are just, 
may be let in to prove his claims at any time before the amount 
realized in the action for the satisfaction of liens has been distri- 

, buted, and where such claim is proved and allowed, the judge shall 
amend the judgment so as to include such claim therein. 

(5) Any lienholder for an amount not exceeding one hundred 
dollars, or any lienholder not a party to the action, may attend in 
person at th.6 trial of an action to enforce a lien, and on any pro- 
ceedings in such action, or may be represented thereat or thereon 
by a solicitor. 

(6) "Where a sale is had the moneys arising therefrom shall be 
paid into court to the credit of the action, and the judge upon 
whose order the lands were sold shall direct to whom such moneys 
shall be paid, and may add to the claim of the person conducting 
the sale his actual disbursements incurred in connection there- 
with; and where sufficient to satisfy the judgment and costs is 
not realized by the sale, he shall certify the amount of such de- 
ficiency, and the names of the persons, with the amounts, who are 
entitled to recover the same, and the persons by the judgment 
adjudged to pay the same, and such persons shall be entitled to 
enforce the same by execution or otherwise, as a judgment of the 
court. 

35. Notice of trial. — The party who obtains an appointment 
fixing the day and place of trial, shall, at least eight clear days 
before the day fixed for the trial, serve a notice of trial, which may 
be in the form L in the schedule, or to the like effect, upon the 
solicitors for the defendants who appear by solicitors, and upon 
all lienholders who have registered their liens as required by this 



NOVA SCOTIA MECHANICS' LIEN ACT. 407 

Act, and upon all other persons having any -registered charge or 
incumbrance or claim on the said lands who are not parties, or, 
who being parties, appear personally in the said action, and such 
service shall be personal unless otherwise directed by the court or 
judge who is to try the action, and the court or judge may, in lieu 
of personal service, direct in what manner the notice of trial shall 
be served. 

36. Consolidation of actions. — Where more than one action is 
brought to realize liens in respect to the same property, the court 
or judge having power to try such actions may, on the application 
of any party to any one of such actions, or on the application of 
any other person interested, consolidate all such actions into one 
action, and may give the conduct of the consolidated action to any 
plaintiff in his discretion. 

37. Carriage of action.— Any lienholder entitled to the benefit 
of the action may apply for the carriage of the proceedings, and 
the court or judge having power to try the action may thereupon 
make an order giving such lienholder the carriage of the proceed- 
ings, and such lienholder shall, for all purposes in the action, be 
the plaintiff in the action. 

38. Judgment in petty cases. — In any action where the total 
amount of the plaintiff and other persons claiming liens is one 
hundred dollars or less, the judgment of the court or judge having 
power to try such action shall be final, binding, and without ap- 
peal, except that upon application, within fourteen days after 
judgment is pronounced to the court or judge who tried the same, 
a new trial may be granted. 

39. Appeal. — In all actions where the total amount of the 
claim of the plaintiff and other persons claiming liens is more than 
one hundred dollars, any party affected thereby may appeal there- 
from to the Supreme Court, en banc, whose judgment shall be 
final and binding, and no appeal shall lie therefrom. The " Judi- 



408 THE LAW- OF MECHANICS' LIENS IX CANADA. 

cature Act " and the rules of the Supreme Court shall, so far as 
the same are applicable, apply to all appeals under this section. 

40. (1) Costs. — The costs of the action under this Act awarded 
to the plaintiffs and successful lienholders, shall not exceed in 
"the aggregate an amount equal to twenty-five per cent, of the 
amount of the judgment, besides actual disbursements, and shall be 
in addition to the amount of the judgment, and shall be appor- 
tioned and borne in such proportion as the judge who tries the 
action may direct. 

(2) Where the costs are awarded against the plaintiff or other 
persons claiming the lien, such costs shall not exceed an amount in 
the aggregate equal to twenty-five per cent, of the claims of the 
plaintiff and other claimants, besides actual disbursements, and 
shall be apportioned and borne as the judge may direct. 

(3) In case the least expensive course is not taken by a plain- 
tiff under this Act, -the costs allowed to the solicitor shall in no 
case exceed what would have been incurred if the least expensive 
course had been taken. 

(4) Where a lien is discharged or vacated under section 28 of 
this Act, or where in an action judgment is given in favor of or 
against a claim for a lien, in addition to the costs of an action, 
the judge may allow a reasonable amount for costs of drawing 
and registering the lien or for vacating the registration of the 
lien. 

(5) The costs of and incidental to all applications and orders 
made under this Act, and not otherwise provided for, shall be in 
the discretion of the judge. 

In mechanics' lien actions it is a sound rule that the owner is 
entitled ordinarily to his costs out of the fund. In the present case 
some of the costs incurred related to the contestation of the claim 
of the Starr Construction Company/ The owner, by retaining and 
subsequently paying into court the proper sum, had fulfilled the 
obligation imposed upon him by the statute, and as that amount 
was not accepted as correct, and an issue was thereby created, it 
seems just and reasonable that, on a trial of that issue, where the 1 



NOVA SCOTIA MECHANICS' LIEN ACT. 409 

owner (who is, in such case in a position analogous to a stake- 
holder) succeeds, he should be entitled to his costs out of the fund, 
before the fund is divided among the other parties whose claims 
have been established. Silliher & McMann v. Smith, (1920) ; 
Wallace, Co. J., Halifax, N.S., unreported. 

41. Law stamp. — Every statement of claim filed in the City of 
Halifax in an action to enforce a lien under this Act shall be 
accompanied by a fee of fifty cents, which shall be included in the 
costs, and paid, by law library stamp. 

42. Deficiency after sale recoverable. — All judgments in favor 
of lienholders shall adjudge that the person or persons personally 
liable for the amount of the judgment shall pay any deficiency 
which may remain after sale of the property adjudged to be sold, 
and whenever on a sale of any property to realize a lien undeT 
this Act sufficient to satisfy the judgment and costs is not realized 
therefrom, the deficiency may be recovered against the property of 
such person or persons by the usual process of the' court. ■ 

43. Certificate vacating lien. — A certificate vacating a lien 
may be in one of the forms M or N in the schedule, or to the like 
effect. 

Miscellaneous Peovisions. 

44. (1) Mechanics' lien on chattels. — Every mechanic or other 
person who has bestowed money, or skill and materials upon any 
chattel or thing in the alteration and improvement in its proper- 
ties, or for the purpose of imparting an additional value to it, so 
as thereby to be entitled to a lien upon such chattel or thing for 
the amount or value of the money, or skill and materials bestowed, 
shall, while such lien exists, but not afterwards, in case the amount 
to which he is entitled remains unpaid for three months after the 
same ought to have been paid, have the right, in addition to all 
other remedies provided by law, to sell by auction the chattel or 
thing in respect to which the lien exists, on giving one week's 
notice by advertisement in a newspaper published in the county in 



.410 THE LAW OF MECHANICS' LIENS IN CANADA. 

which the work, was done, or in case there is no newspaper pub- 
lished in such county, then in a newspaper circulating therein, 
stating the name of the person indebted, the amount of the debt, 
a description of the chattel or thing to be sold, the time and place 
of sale, and the name of the auctioneer, and leaving a like notice 
in writing at the last known place of residence (if -any) of the 
owner, if he is a resident of such county. 

(2) Such mechanic, or other person, shall apply the proceeds 
of the sale in payment of the amount due him, and the costs of 
advertising and sale, and shall upon application pay over any sur- 
plus to the person entitled thereto. 

See Chapter XIV., " Mechanics' Liens upon Personalty " and 
cases cited, including Nova Scotia cases. 

As to insufficiency of possession, see McKenzie v. Martinson, 
(1902) 40 K S. E'. 346. 

A shipwright who, under a contract for repairs in course of 
execution, has possession of the defendant ship at the time of her 
arrest at the suit of the plaintiffs, can claim priority in the distri- 
bution of the proceeds of the sale of the vessel under an order of 
the court, in respect to the claim for work in completing such 
repairs after the arrest, — the repairs being necessary and having 
been made in good faith, although without the sanction of the 
court. The award for such repairs was, in the circumstances, sub- 
ject-to this restriction^ — " so far as the selling value of the defend- 
ant ship was thereby increased." Halifax Shipyards, Limited, 
(Intervenors), and Montreal Dry Docks and Ship Repairing Com- 
pany, (Plaintiffs) v. The Ship " Westerian," (1919) 19 Can. Ex. 
C. E. 259, affirmed on appeal to the Supreme Court of Canada, 
(1920). 

The restricting clause quoted would not apply if the assent of 
the plaintiffs to the completion of the repairs had been expressly 
given or might fairly have been implied. Jowitt & Sons v. Union 
Gold Storage Co., (1913) 3 K. B. 1. 

The right of the plaintiffs who seized the vessel is in the value 
of the vessel at the date of the seizure, and not in the value subse- 
quently enhanced by the necessary work of the shipwright. 

45. Personal judgment. — When jn any action brought under 
the provisions of this Act, any claimant fails for any reason to 



NOVA SCOTIA MECHANICS' LIEN ACT. 411 

establish a' valid lien, he may nevertheless recover therein a per- 
sonal judgment against the party or parties to the action for such 
sum or sums of money as appear to be due him from such party 
or parties, and which he might recover in an action on the contract 
against such party or parties. 

' Where certain work done was done on property which could 
not be the subject of a lien there can be no recovery of a personal 
judgment for such work. Falconer v. Hartlen, (1920) ; Wallace, 
Oo. J., Halifax, K.S. (unreported). 

46. Forms. — The forms in the schedule hereto, or forms simi- 
lar thereto, or to the like effect, may be adopted in all proceedings 
under this Act. 

47. Acts repealed. — The Acts and parts of Acts in the 
schedule hereto are repealed to the extent in such schedule men- 
tioned. 



SCHEDULE. 

Form A.- — Section 18. 

Claim of Lien foe Eegisteation. 

A. B. (name of claimant) of (here state residence of claimant, 
and, if so, as assignee of, stating name and residence of assignor), 
under the " Mechanics' Lien Act," claim a lien upon the estate of 
(here state the name and residence of owner of land upon which 
the lien is claimed), in the undermentioned land in respect to the 
following work (service or materials), that is to say (here give a 
short description of the nature of the work done or materials fur- 
nished, and for which the lien is claimed), which work (or ser- 
vice) was (or is to be) done (or materials were furnished) for 
(here state the name and residence of the person upon whose credit 
the work is done or materials furnished), on or before the 
day of 

The amount claimed as due (or to become due) is the sum 
of $ . 



412 THE LAW OF MECHANICS' MUSTS IN CANADA. 

The following is a description of the land to be charged (here 
set out a concise description of the land to be charged sufficient 
for the purpose of registration). 

When credit has been given, insert: The said work was done 
(or materials were furnished) on credit, and 'the period of credit 
agreed to expired (or will expire) on the day of ,- 

19 . ■ > 

Dated at this day of , 19 . 

{Signature of Claimant.) 



Poem B.— Section 18. 
Claim of Lien foe Wages foe Begisteation. 

A. B. (name of claimant) of (here state the residence of claim- 
ant, and, if so, as assignee of, v stating name and residence of as- 
signor), under the "Mechanics' Lien Act," claims a lien upon the 
estate of (here state the name and residence of the owner of land 
upon which the lien is claimed) in the undermentioned land in 
respect, to days' work performed thereon while in the employ- 

ment of (here state the name and residence of the person upon 
whose credit the work was done) on or before the day 

of , 19. . 

The amount claimed as due is the sum of $ 

The following is the description of the land to be charged (here 
set out a concise description of the land to be charged sufficient 
for the purpose of registration). 

Dated at this day of , 19 . 

{Signature of Claimant.) 



Foem C. — Sections 18, 19. 
Affidavit Vieifying Claim. 

I, A. B., named in the above {or annexed) claim, make oath and 
say that the said claim is true. 

Or, We, A. B. and C. D., named in the above {or annexed) 
claim, make oath and say, and each for himself saith, that the said 
claim, as far as relates to him, is true. 



NOVA SCOTIA MECHANICS' LIEN ACT. 413 

(Where the affidavit' is made by agent or assignee, a clause must 
be added to the following effect.) I have full knowledge of the 
facts set forth in the above (or annexed) claim. 

Sworn before me at 
in the county of 
this day of 

19 . 

Or, the said A. B. and CD. were sever- ^ 

ally sworn before me at , 

in the county of , 

this day of , 19 . 

Or, the said A. B. was sworn before me 
at , in the county 

of , this day 

of , 19 . 



Form D. — Section 19. 
Claim oe Lien foe Wages by Several Claimants. 

The following persons under the " Mechanics' Lien Act/' claim 
a lien upon the estate of (here state the name and residence of the 
owner of the land upon which the lien is claimed) in the under- 
mentioned land, in respect to wages for labor performed thereon 
while in the employment of (here state name and residence or 
names and residences of employers of the several persons claiming 
the lien.) 



A. B., of (residence) $ 


for 


days' wages 


C. D., of (residence) $ 


for 


days' wages 


E. P., of (residence) $ 


for 


days' wages 



The following is the description of the land to be charged (here 
set out a concise description of the land to be charged sufficient for 
the purpose of registration). 

Dated at this day of , 19 . 

(Signatures of the several Claimants.) 



414 THE LAW OF MECHANICS' LIENS IN CANADA. 

Foem E — Section 24. 

Certificate op Lis Pendens. 

(Style of Court and Cause.) 

I certify that the above-named plaintiff has commenced an ac- 
tion in the above court to enforce against the following land (de- 
scribing it) a claim of mechanics' lien for $ 

Dated this day of , 19 . 



Prothonotary (or Clerk.) 



Foem G — Section 33. 

Affidavit of Lienholdee Verifying Claim. 

(Style of Court and Cause.) 

,1, G. H., of (address and occupation), make oath and say: 
I have in the foregoing account (or, in the account now shown 
to me, marked A), set forth a just and true account of the amount 
due and owing to me by B. H. (the owner), or by E. F., who is a 
contractor with the defendant, L. G. (the owner), of the lands in 
question, and I have in the said account given credit for all sums in 
cash, or merchandise, or otherwise, to which the said B. F. is justly 
entitled ,to credit in respect to the said account, and the sum of 
$ appearing by such account to be due to me as the amount 

(or balance) of such account is now justly due and owing to me. 
Sworn, eic. 



Foem H — Section 33. 

Defence. 

(Style of Court and Cause.) 

A. B. disputes that the plaintiff is now entitled 

to a mechanics' lien on the following grounds: (setting forth the 
grounds shortly.) 



NOVA SCOTIA MECHANICS' LIEN ACT. 415 

(a) That the lien has not been presented in due time, as re- 

quired by statute. , 

(b) That there is nothing due to the plaintiff. 

(c) That the plaintiff's lien has been vacated and discharged. 

(d) That there is nothing due by (owner's name) for the satis- 

faction of the plaintiff's claim. 

Delivered on the day of by A. B. in person, 

whose address for service is (stating address) or 

Delivered on the day of by Y. Z., solicitor 

for the said A. B. 

Note. — If the owner does not dispute the claim entirely, and 
only wishes to have the accounts taken, he may use the following 
form : — 



Form I — Section 33. 

Defence Where There are no Matters Disputed, or Where 
the Matters in Dispute are Matters oe Account. 

> (Style of Court and Cause.) 

A. B. admits that the plaintiff is entitled to a lien, 

and claims that the following is a just and true statement of the 
account in question: — 

Amount of contract price for work contracted to be 
performed by E. F., as plumber, on the lands in 
question herein , $500 00 

Amounts Paid on Account. 

June 1st, 1900, paid E. F $200 00 

June 1st, 1900, paid G. H. and I. K., sub- 
- contractors of E. F... 100 00 300 00 

Balance admitted to be due $200 00 

For satisfaction of the lien of plaintiff and other lienholders 
(as the case may be) A. B., before action, tendered to the plaintiff 
$ in payment of his claim, and now brings into court 

$ and submits that that account is sufficient to pay the 

plaintiff's claim and asks that this action be dismissed as against 
him, with costs'. 
Delivered, etc. 



416 THE LAW OP MECHANICS' £lENS IN CANADA. 

Form K — Section 34. 

Judgment. 

In the Court 

S.S. Plaintiff, 

Between and 

Defendant. 

This action coming on for trial before in 

at upon opening of . the matter and it appearing that- 

the following persons have been duly served with notice of trial 
herein (set put the names of all persons served with notice of trial) 
and all such persons (or as the case may be) appearing at the trial 
(if so,) and the following persons not having appeared, (set out the 
names of non-appearing persons), and upon hearing the evidence 
adduced and what was alleged by counsel for the plaintiff and for 
G. D. and E. F. and the defendant (if so) (and by A. C. appearing 
in person). 

1- This court doth declare that the plaintiff and the several per- 
sons mentioned in the first schedule hereto are respectively entitled 
to a lien under " The Mechanics' Lien Act," upon the lands de- 
scribed in the second schedule hereto, for the amounts set opposite 
their respective names in the first, second and third cojumns of the 
first schedule, and the persons primarily liable for such claims 
respectively are set forth in the fourth column of such schedule. 

2. (If so.) And this court doth further declare that the several 
persons mentioned in the third schedule hereto are also entitled to 
some lien, charge or incumbrance upon the said lands for the 
amounts set opposite their respective names in the fourth column 
of the third schedule. 

3. And this court doth further order and adjudge that upon the 
defendant (A. B., the owner) paying into court to the credit of this 
action the sum of- (gross amount of liens in the first 
and third schedules for which the owner is liable) on or before the 

day of next that the said liens in the said first 

schedule mentioned be and the same are hereby discharged, (and 
the several persons in the third schedule mentioned shall release and 
discharge their said claims and assign and convey the said prem- 
ises to the defendant (owner) and deliver up all documents on oath 
to the said defendant (owner) or to such person as he appoints and 
the said moneys so paid into court shall be paid out in payment of 
the claims of the said lienholders ({/ so, and incumbrancers). 



NOVA SCOTIA MECHANICS LIEN ACT. 



417 



4. But if the said defendant (owner) makes default in payment 
of the said moneys into court as aforesaid, this court doth order and 
adjudge that the said lands be sold with the approbation of 

of this court at , and that the purchase money be paid 

into court to the credit of this action, and all proper' parties do join 
in the conveyances as the said directs, 

5. And this court dofh order and adjudge that the said purchase 
money be applied in or towards payment of the several claims in the 
said first (and third) schedule (s), mentioned as the said 
directs, with subsequent interest and subsequent costs to be com- 
puted and taxed. 

6. And this court doth further order and adjudge that if the 
purchase money is insufficient to pay in full the claims of the sev- 
eral persons mentioned in the first schedule, the persons primarily 
liable for such claims as shown in such schedule do pay to the per- 
sons to whom they are respectively primarily liable the amounts 
remaining due to such persons forthwith after the same have been 
ascertained by 'the said ' . 

7. (If so,) and this court doth declare that have 
not proved any lien under " The Mechanics' Lien Act," and that 
they are hot entitled to any such lien, and this court doth' order and 
adjudge that the claims of lien respectively registered by them 
against the lands mentioned in the second schedule be and the same 
are hereby discharged. 

Dated ' the day of , 19 . . : ; 

SCHEDULE 1. 



Names of lien holders 

entitled to 

Mechanics' Liens 



Amount of 

debt and 

interest (if 

any) 



Costs 



Total 



Names of primary 
debtors 



SCHEDULE 2. 



The lands in question in this matter are (set out description- 
sufficient for registration purposes. ) 

K.L- 27 



418 THE LAW OF MECHANICS' LIENS IN CANADA. 

SCHEDULE 3. 



Names of persons entitled 
to encumbrances 

other than 
Mechanics' Liens 



Amount of debt 

and interest 

(if any) 



Costs 



Total 



Form L — Section 35. 

Notice of Thial. 

(Style of Court and Cause.) 

Take notice that this action will be tried at the court house at 
on the day of by and at such 

time and place the will proceed to try the action and all 

questions which arise in or which are necessary to be tried to com- 
pletely dispose of the action, and to adjust the rights and liabilities 
of the persons appearing before him, or upon whom this notice of 
trial has been served, and at such trial he will take all accounts, 
make all enquiries, and give all directions, and do all things neces- 
sary to try and otherwise finally dispose of this action, and of all 
matters, questions, and accounts arising in such action, and will 
give all necessary relief to all parties. 

And further take notice, that if you do not appear at the trial 
and prove your claim, if any, or prove your defence, if any, to the 
action, the proceedings will be taken in your absence, and you may 
be deprived of all benefit of the proceedings, and your rights dis- 
posed of in your absence. 

This is a Mechanics' Lien action brought by the above named 
plaintiff against the above named defendants to enforce a mechan- 
ics' lien against the following lands : (set put description of lands.) 

This notice is served by, etc. 



NOVA SCOTIA MECHANICS' LIEN ACT. 419 

Form M — Section 43. 

Certificate Vacating Lien. 

(Style of Court and Cause.) 

I certify that the defendant, A. B. (the owner) has under an 
order made herein by and dated the day of 

paid into court to the credit of this cause all money due and payable 
by him for the satisfaction of the liens of the plaintiff and E. F., 
G. H., I. J., and K. L., and their liens are hereby vacated and dis- 
charged so far as the same affect the following lands: (describe 
lands). 

Dated at the day of 19 . 

Prothonotary (or Clerk.) 



Form N— tSection 43. 

Certificate Vacating Lien. 

(Style of Court and Cause.) 

I certify that I have inquired and find that the plaintiff is not 
entitled to any Mechanics' Lien upon the lands of the defendant 
A. B. (the owner) and that his claim of lien is hereby vacated and 
discharged so far as the same affects the following lands: (describe 
lands. ) 

Dated at the day of 19 . 

Referee. 



ACTS EEPEALED. 


EXTENT OF REPEAL. ' 


Revised Statutes, 


1900, 


The Whole Chapter. 


c. 171. 




The Whole Act. 


Acts 1902, c. 27. 




Section 3. 


Acts 1903, c. 68. 




The Whole Act. 


Acts 1904, c. 25. 




The Whole Act. 


Acts 1905, c. 31. 




The Whole Act. 


Acts 1909, c. 40. 




The Whole Act. 


Acts 1914, c. 40. 







ONTARIO MECHANICS' LIEN ACT. 

CHAPTEK 140. 

An Act Kespecting Liens of Mechanics, Wage-earners and 

Others. 

HIS MAJESTY,' by and with the advice and consent of the 
Legislative Assembly of the Province of Ontario, enacts 
as follows: — < 

1. Short title.— This Act may be cited as Jhe Mechanics' and 
Wage-earners' Lien Act. 10 Edw. VII. c. 69, s. 1. 

2. Interpretation. — In this Act : — 

(a) " Contractor." — " Contractor " 'shall mean a person 
contracting with or employed directly by the owner or his agent 
for the doing of work Or servide or placing or furnishing 
materials for any of the purposes mentioned in this Act; 

(b) " Material."— " Material " or "materials" shall in- 
clude every kind of movable property; 

(c) " Owner." — " Owner " shall extend to any person, body 
corporate or politic, including a municipal corporation and a 
railway company, haying any estate or interest in the land upon 
which or in respect of which the work or service is done, or 
materials are placed or furnished, at whose request and 

(i)' upon whose credit, or 

(ii) on whose behalf, or 

(iii) with whos,e privity and consent, or 

(iv) for whose direct benefit, 
work or service is performed or materials are placed or fur- 
nished, and all persons claiming under him or them whose 



ONTARIO MECHANICS' LIEN ACT. 421 

rights are acquired after the work or service in respect of which 
the lien is claimed is commenced or the materials furnished 
have been commenced to b.e furnished. 

(d) " Registrar." — " Eegistrar " shall include Master of 
Titles and Local Master of Titles; 

(e) "Registry office." — "Eegistry office" shall include 
i Land Titles Office; 

(f ) " Sub-contractor." — " Sub-contractor " shall mean a 
person not contracting with or employed directly by the owner 
or his agent for the purposes aforesaid, but contracting with or 
employed by a "contractor, or under him by another sub-con- 
tractor; 

(g) "Wages." — "Wages" shall mean money earned by a 
mechanic or laborer for work done, whether by the day or 
other time or as piece work. 10 Edw. VII. c. 69, s. 2. 

An unpaid vendor who advances funds to the purchaser to build 
upon the land is not an " owner," so as to subject the land to 
mechanics' lien for work done and materials furnished under con- 
tracts with the purchaser but by virtue of section 14 (2) is deemed 
" mortgagee." Marshall Brick Co. v. York Farmers' Colonization 
Co., (1917) 54 Can. S. C. B. 569, 36 D. L. E. 420. 

(a) " Contractor." — Any person contracting directly with the 
" owner " is a contractor. The nature and extent of the lien of 
contractor are dealt with in the chapter . entitled "Who may ac- 
quire a lien," ante. The architect is a " contractor." Read v. 
Whitney, (1919) 45 0. L. E. 377. 

(b) "Sub-contractor." — The lien of the sub-contractor is con- 
sidered in the chapter entitled, " Who may acquire a lien," ante. 

As ordinarily there would be no obligation on the part of an 
owner to pay the contractor's debts, the sub-contractor in a claim 
against the 1 " owner " must show that this liability was created by 
the statute and that his claim as sub-contractor comes within its 
terms. Reeve v. Elmendorf, 38 N. J. L. 125. 

(c) "Owner." — Municipal corporations are now within the 
definition of " owner " given in this section. In General Contract- 



422 THE LAW OF MECHANICS' LIENS IN CANADA. 

ing Co. v. Ottawa, (1909) 16 0. W. E. 479, the court considered 
that the language of some of the. sections of the Act seemed to 
imply an intention to include some classes of municipal property. 
The question whether existing Mechanics' Lien Acts in Canada 
create a lien against property held by a municipal corporation is 
discussed in the chapter entitled, " Property which may be subject 
to lien," ante. 

Work contracted by a sub-lessee in pursuance of an agree- 
ment with his lessor authorizing him to build upon the land, con- 
stituted a " request," Orr v. Robertson, 23 D. L, E. 17; 34 0. L. E. 
147, but although the lien' given attaches to the estate or interest 
of the " owner " it does not include -a purchaser of land whereon 
improvements were made prior to his taking possession without his 
request, express or implied. Cut-rate Plate Glass. Co. v. Solodmshi, 
25 D. L. E. 533, 34 0. L. E. 604. See also Sterling Lumber Co. v. 
Jones, 29 D. L. E. 288, 36 0. L. B. 153. 

As to mechanics' liens on trust property see Pond, Extrx. v. 
Harrison, L. E. A. 1916, B. and annotations. 

The contract should be sufficiently definite to enable the amount 
to be determined with reasonable certainty. Wilder v. French, 75 
Mass. 395 ; Eisendrather v. Gebhardt, 124 111. App. 325, affirmed, 
222 111. 113 ; Merritt v. Crane Co., 225 111. 181. One member of a 
partnership can make a contract involving a lien. Wahlstrom y. 
Trulson, 165 Mass. 429. 

A railway company is also within the definition of " owner " in 
this section. The constitutionality and scope of this and similar 
provisions as applicable to railway companies are discussed in the 
chapter entitled, " Property which may be subject to lien," ante. 

See cases cited under chapter, " The Owner and his Interest," 
ante. 

(d) " Or service." — These words would probably be construed 
as enlarging the scope of the section so as to clearly include profes- 
sional services rendered by engineers and architects in respect to 
the building, in addition to superintendence. 

(e) " With whose privity or consent." — To create a lien 
against the interest of an " owner " there must be something in the 
nature of direct dealing between the contractor and the " owner " 
or person whose estate is sought to be charged. Where an 
" owner " merely has knowledge that the work is being done or 
that the material is being furnished, and silently assents to and 



ONTARIO MECHANICS WEN ACT. 



423 



benefits by the furnishing of such work or materials a lien is not 
thereby created against his interest. See Gearing V. Robinson, 
(1900) 27 A. E. 364, and cases cited under chapter entitled, 
" Consent of Owner," ante. 

(f ) An architect has been held to be a " contractor " under sec- 
tion 2 (a), contracting with the owner for the "doing of work or 
service," and the assistant architect is a " sub-contractor " under 
section 2 (f), employed by the "contractor." Read. v. Whitney, 
(1919) 45 0. L. B. 377. 

A homestead entrant is an "owner." Beaver Lumber Co. v. 
Miller, (1917) 32 D. L, E. 428 (Sask.). 

Actual possession under a grant from the Crown, coupled with 
a statutory right to register the grant, and thereupon to become 
the owner in fee, creates an estate or interest upon which a 
mechanics' lien may attach. Dorrell v. Campbell, (1917) 1 W. W. 
E. 500, 23 B. C. E. 500, 32 D. L. E. 44. 

Public school buildings and the lands upon which they are 
erected are subject to the provisions of the Mechanics' and Wage- 
earners' Lien Act. Benson v. Smith & Sons, (1916) 37 O. L. E. 
257, 31 D. L. E. 416. See Hazel v. Lund, 25 D. L. E. 204 (B.C.) ; 
Connely v. Haveloch School Trustees, 9 D. L. E, 875 (NB.). 

Eoads laid out by private persons cannot be regarded as public 
highways before dedication. Vannatta v. Uplands Limited, (1913) 
25 W. L. E. 85. 

A workman is entitled to a lien upon the part of a sewer ex- 
tending below water mark in,to the ocean, upon which he worked. 
Baker v. Uplands, (1913) 24 W. L. E. 768. 

Public school buildings and the lands upon which they are 
erected are subject to the provisions of this Act. Benson v. Smith, 
37 0. L. E. 257, 31 D. L. E. 416; but a lien cannot be enforced 
under this Act against a'railway company incorporated under Do- 
minion Act. Johnson v. C. N. R. Co., 44 O. L. B. 533, 47 D. L. E. 
75. 

A ' person who has delivered material ' to be used in the con- • 
struction and improvement of a place, although the place of de- 
livery is upon the land, is not a person who has done work or ser- 
vice upon the premises within the meaning of section 6 of the 
British Columbia Act, and is not entitled to a lien. Vannatta v. 
Uplands 'Limited (1913) 25 W. L. E. 85. This section as worded 
differs from the corresponding section in Mechanics' Lien Acts 



424 THE LAW OE MECHANICS* LIINS IN CANADA. 

in other provinces, which has been construed to give a lien for 
haulage of materials. 

Where claimants supplied teams of horses, wagons and drivers 
to the contractor for hauling sand, gravel and earth upon the 
property, for which they were paid so much per day, and these 
teams, wagons and drivers were subject to the contractors' fore- 
man and did only what work he required of them, it was held that 
these claims were covered by the words of the British Columbia 
Act, section 6,— -" every person who does work or service or causes 
work or service to be done upon," etc., and should be allowed. 
Vannattav. Uplands Limited, (1913) 25 W. L. E.-85. 

As to lien claim where building is partly on two parcels of 
land, see Sheppard v. Davidovitch, (1916) 10 O...W.-K 159. 

A purchaser of an unfinished building whose deed is registered 
prior to the registration of any mechanics' liens without actual 
notice thereof, thereby acquires a priority by virtue of the Kegistry 
Act (E. S. 0. 1914, c. 124) and takes the property free of the liens. 
Mere knowledge that building was going on upon the land does 
not amount to actual notice; nor can the purchaser be deemed an 
■ " owner " within the meaning of this section. Sterling Lumber 
Co. v. Jones, (1916) 36 0. L. E. 153, 29 D. L. E. 288. See also 
Cool v. Koldofshy, 35 0. L. E. 555, 28 D. L. E. 346 ; Marshall 
Brick Co. v. York Farmers Colonization Co. (1917) 54 Can. S. 
C. E. 569, 36 D. L. E. 420; Cut-Rate Plate Glass Co. v. Solodin- 
ski, 34 0. L. E. 604, 25 D. L. E. 533 ; Orr v. Robertson, 23 D. L. 
E. 17, 34 0. L. E. 147. 

A lien which appears to be for work done at the instance of., 
other persons, without indicating that the work was done for the 
" owner " of the property to be charged, is incurably defective, 
and the owner's subsequent undertaking to assume such lien is not 
binding on him. Northern Plumbing & Keating Co. v. Greene, 
(1916) 27 D. L. E. 410, 34 W. L. E. 293 (Sask.). 

A contractor's offer to build a pair of semi-detached houses on 
two adjoining lots, owned by different persons, naming separate 
terms for each house but addressed to both owners together, 
implies a distinct acceptance by each of them, and the acceptance 
by one does not create a joint contract binding on both as subject- 
ing both lots to a mechanics' lien for plumbing materials fur- 
nished for both houses ; nor can the interest of the accepting owner 
be charged for materials furnished on the adjoining lot not at " his 



ONTARIO MECHANICS' LIEN ACT. 425 

request or for his direct benefit." Compaigne v. Carver, (1916) 
35 0. L. E. 232, 27 D. L. E. 76. 

The lien may also attach against several pieces of property as 
one individual claim; the fact that the houses are subsequently 
divided between different owners cannot impair the lien, which 
becomes effective from the time of the commencement of the work. 
Poison v. Thomson, (1916) 26 Man. L. E. 410, 29 D. L. E. 395, 
34 W. L. E. 7*5. 

Under the Saskatchewan Act it has been held that a material- 
man is not entitled to register as one individual claim, a lien for 
the amount due for materials supplied by him to the contractor, 
against all the lands jointly of the owners of different parcels, who 
had made separate contracts with the contractor for the erection 
of houses on their respective parcels ; nor do they have such inter- 
est in one another's land as " owners " so as to charge the other's 
land for materials furnished at the owner's request o,r benefit. 
Security Lumber Go. v. Plested, (1916) 9 Sask. L. E. 183, 27 
D. L. E. 441, 34 W. L. E. 352. 

Actual ppssession under a Crown grant coupled with the statu- 
tory right to register same, and thereupon to become the owner 
in fee, creates an estate or interest upon which a mechanics' lien 
can attach. Dorrell v. Campbell, (1916) 32 D. L. E. 44, 35 W. 
L. E. 500, 22 B. C. E. 584. 

Where a squatter on Crown land accepts work and materials 
applied to the erection of a building thereon he will be considered 
an "owner." Macdonald v. Hartley, (1918) 3 W. W. E. 910 
(B.C.). 

To create a lien against the interest of an " owner for work 
done and materials furnished with his privity and consent," there 1 
must be something in the nature of a direct dealing -between the 
contractor and the owner or person whose estate is to be charged; 
when the latter merely has knowledge that the work is being done 
or materials furnished, and silently assents thereto and benefits 
thereby, a lien is not thereby created against his interest. Such 
lien is not created for wprk done and materials furnished under 
a contract exclusively with a lessee of the property. Eddy Co v. 
Chamberlain and Landry, 37 D. L. E. 711 (1ST.B.). 

An agreement for the sale of land which contains a covenant 
binding the purchaser to erect certain works on the land at a cer- 
tain cost and contains a covenant by the vendor, the owner, to 



426 THE LAW OF MECHANICS' LIENS IN CANADA. 

remit a specified amount from the purchase price on the comple- 
tion of said undertaking, is such a request in -writing as gives a 
mechanics' lien arising from the erection of the said works gen- 
eral application under section 6 of the British Columbia Mechan- 
ics' Lien Act, and therefore the Jien is not restricted to the increase 
in value of the premises by reason of such works. British Colum- 
bia Granitoid Oo. v. Dominion Shipbuilding Engineering and 
Dry Dock Co., (1918) 2 W. W. E. 919 (B.C.). 

3. Exception of streets or highways. — Nothing in this Act 
shall extend to any public street or highway, or to any work or 
improvement d6ne or caused to be done by a municipal corpora- 
tion thereon. 10 Bdw. VII. c. 69, s. 3. 

The lien for work done in clearing a townsite, consistingof sev- 
eral tracts, extends to the whole land benefited by the work, except 
whatever may be excluded from it by being "a public street or 
highway." Beseloff, v. White Rock Resort Dev. Co., 23 D. L. R. 676. 

4. (1) Contracts waiving application of Act to be void. — Every 
agreement, verbal or written, express or implied, on the part of 
any workman, servant, laborer, mechanic or other person em- 
ployed in any kind of manual labor intended to 1 be dealt with in 
this Act, that this Act shall not apply, or that the remedies pro- 
vided by it shall not be available for the benefit of such person, 
shall be null and void. 

(2) Exception as to certain employees. — This seetion shall not 
apply to a manager, officer or foreman, or to any other person 
whose wages are more than $5 a day. 10 Edw. VII. c. 69, s. 4. 

(a) "Shall be null and void." — This section is intended to 
protect those who do the manual labor, and the effect of the whole 
section is to limit its application to that class. 

5. Effect upon third party of agreement waiving lien. — _ No 

agreement shall deprive any person otherwise entitled to a lien 
under this Act who is not a party to the. agreement, of the benefit 
of the lien, but it shall attach notwithstanding such agreement. 
10 Edw. VII. c. 29, s. 5. 



ONTARIO MECHANICS' UEN ACT. 427 

(a) "No agreement." — This section is to be read in connec- 
tion with sections 10, 11, 12 and 15, post. 

Unless by the agreement the ' contractor forfeits all claim to 
payment in the event of a mechanics' lien heing claimed or regis- 
tered, it is difficult to understand how such an agreement could 
affect any persons but the parties to it and their representatives 
and assignees. The section in terms only applies to persons 
"otherwise entitled to a lien under the Act." By sections 6 and 
ll the lien is limited to the sum payable by the owner to the con- 
tractor subject to the provisions of sections 12 and 15 as to per- 
centage to be retained. If, then, there is nothing due by the 
owner to the contractor there can be no lien and this section will 
not help the sub-contractor, unless it is held to mean that any 
such agreement, viz., that provides that nothing shall be due until 
completion, or that the right to payment shall be forfeited }f 
any mechanics' lien is claimed or registered or otherwise takes 
away the contractor's right to payment, shall not deprive the sub- 
contractor of the benefit of the lien. Such a construction would 
in effect be extending the provisions of the Act creating the lien, 
which this section does not purport to do. It is probable that the 
section does not go further than to preserve to sub-contractors and 
others not parties to the agreement the right to enforce their liens 
against the owner to the extent at least of the percentage to be 
retained, even though the owner has attempted to protect himself 
against liens by his agreement with the contractor. 

Special provision is made in section 15 for wage-earners, and 
section 4, supra, enacts that any such agreement made by a " work- 
man, servant, laborer, mechanic or other person employed in any 
kind of manual labor, intended to be dealt with in this Act," and 
who receives not more than five dollars a day, shall be mill and 
void and of no effect. 

In a building contract for the erection of a church the con- 
tractor agreed with the building committee to settle with all 
other persons doing work upon or furnishing materials for the 
construction thereof, and stipulated that , neither he nor they' 
should have any lien upon the building for their work or mater- 
ials. Held binding on the sub-contractors, though made without 
their knowledge or assent. It was also stipulated that twenty per 
cent, of the contract price should not be payable until thirty days 
after the architect should have accepted the work and that the 



428 THE LAW OF MECHANICS' LIENS IN CANADA. 

balance of. the contract price so to be retained should not be pay- 
able until all sub-contractors were fully paid and settled with. 
Held, that no trust was thereby created in favor of the sub- 
contractors, as to the sum agreed to be retained; and, the contractor 
having assigned his interest in the contract to a third party, and 
the committee having waived their right to insist that the sub- 
contractors should be paid, that the assignee was entitled to receive 
the twenty per cent, retained, to the exclusion of the sub-contrac- 
tors. F-orhan v. Lalonde, (1880) 27 Gr. 600. See 47 Vic. c. 18, 
s. 1 ; 59 Vic. c. 35, s. 4. 

6. General right of workman or materialman to a lien. — 

Unless he signs an express agreement to the contrary, and in that 
case subject to the provisions of section 4, any person who performs 
any work or service upon or in respect of, or places or furnishes any 
materials to be used in the making, constructing, erecting, fitting, 
altering, improving or repairing of any erection, building, railway, 
land, wharf, pier, bulkhead, bridge, trestlework, vault, mine,* well, 
excavation, fence, sidewalk, pavement, , fountain, fishpond, drain, 
sewer, aqueduct, roadbed, way, fruit or ornamental trees, or the, ap- 
purtenances to, any of them, for any owner, contractor or sub-eon- 
tractor, shall by virtue thereof have a lien for the price of such 
work, service or materials upon the erection, building, railway, 
land, wharf, pier, bulkhead, bridge, trestlework, vault, mine, well, 
excavation, fence, sidewalk, paving 1 , fountain, fishpond, drain, 
sewer, aqueduct, roadbed, way, fruit or ornamental trees, and 
appurtenances, and the land occupied thereby or enjoyed there- 
with, or upon or in respect of which such work or service is per- 
formed, or upon which such materials are placed or furnished to 
be used, limited however, in amount to the sum justly due to the 
person entitled to the lien and to the sum justly owing, except as 
herein provided, by the owner. 10 Edw. VII. c. 69, s. 6. By 8 
Geo. V. c. 29, this section was amended by adding after the word 
"upon" in the eighteenth line thereof, the words "or adjacent 
to." 

(a) "Any person." — See cases cited in chapter entitled, 
"Who may acquire a lien," ante. 



ONTARIO MECHANICS' UEN ACT. 429 

(b) "Performs any work or service." — A blacksmith em- 
ployed for sharpening and repairing tools at a mine is entitled 
to a lien ; a cook is not. Work on tools is work on a mine ; cooking 
is not. Davis v. Grown Point M. Co., (1901) 3 0. L. K. 69. But 
a materialman is not entitled to a lien for tools furnished the con- 
tractor with which to work on the building. Evans v. Lower, 
(1904) 58 Atl. Eep. 294. 

To create a lien there must be something in the nature of direct 
dealing between the contractor and the person whose estate .is 
sought to be ( charged. Mere knowledge that the work is being 
done or the materials furnished is not enough, nor is silent assent. 

The lien claimant to succeed must have been employed to do • 
the work or furnish the materials by some one having either an 
interest in the land or an interest in a contract made with the 
owner. The person with whom the contract wag made must be 
an " owner " or else some relation of the parties must have ex- 
isted which would give a right of lien. Gearing v. Rbbinson, 
(1900) 27 A. B. 364;. Webo v. Gage, (1902) 1 O. W. E. 327; 
Flack v. Jeffrey, (1895) 10 Man. 514; Blight v. Ray, (1893) 23 
O. E. 415; Graham v. Williams, (1884) 8 O. E. 478; 9 0. E. 458; 
Sampson v. Dalrymple, (1852) 11 Cush. 308; Batchelder v. 
Hutchinson, (1894) 161 Mass. 462, 464. See also Garing v. 
Bunt, (1895) 27 0, E. 149; Cornell v. Barney, (1884) 33 Sup. 
Ct. N.Y. 134; 94 N". Y. 394, and cases cited in Ch. VIII. and Ch. 
IX., ante. 

To create a lien in favor of the materialman, there must be a 
request of the owner and the furnishing of the materials in pur- 
suance of that request, either upon the owner's credit or on his 
behalf or with his privity or consent or for his direct benefit. See 
Slattery v. Lillis, 10 0. L. E. 697. '• 

The section is to be read distributively. Brooks-Sandford Co. 
v. Theodore TeXier Const. Co., (1910) 22 0. L. E. 176. 

The contractor is not entitled to a lien merely because he has 
performed work or service; such work or service must be per- 
formed under a definite contract. If, therefore, a contractor is 
wrongfully prevented by the owner from fully performing his 
contract he has no lien for damages caused thereby, although he 
has a right of action for such damages. In like manner, if the 
contract is rescinded, the contractor cannot claim a lien for work 
or materials furnished afterwards; nor can the contractor recover 



430 THE LAW OF MECHANICS' LIENS IN CANADA. 

unless he shows that the person with whom he made the contract 
had some interest in the land and was not a mere occupant with- 
out title. Gearing v. Robinson, (1900) 27 A. E. 364; Webb v: 
Gage, (1902) 1 0. W. E. 327; Stevens v. Lincoln, (1874) 114 
Mass. 476. 

A contractor cannot recover in an action for damages for 
wrongful dismissal and breach of contract and for declaration of 
lien already registered. A motion was granted to cancel regis- 
tration and strike out statement of claim as the claim disclosed 
no reasonable cause of action. On appeal the Divisional Court 
varied the order by omitting the part which directed the vacating 
of the lien, without prejudice to the right of plaintiff to file a new 
statement of claim for damages for wrongful dismissal. Beveridge 
v. Hwwes, (1903) 3 O. W. E. 619. 

A sub-contractor who has performed labor or furnished 
materials may file a lien therefor before the completion of the 
building. Baldridge v. Morgan, (1910) 24 Am. & Eng. Ann. 
Oas. 337. When the sub-contractor has performed labor or fur- 
nished materials his contract is executed. The building might be 
still in construction or 1 it might never be completed, and when by 
force of the statute a privity of contract exists between the owner 
and a sub-contractor without reference to the original contract 
there is no good reason that the sub-contractor should be com- 
pelled to wait the happening of an event which neither fixes nor 
affects his rights and which he cannot control. lb. 

It is essential before the lien can arise that the material 
should be furnished and placed upon the land upon which the lien 
is claimed. Ludlam-Ainslie Lumber Co. v. Fallis, (1909) 19 O. 
L. E. 419. Proximity to the land is not enough. Milton Pressed 
Brick Co. v. Whalley, 42 D. L. E. 395, 42 O..L. E. 369. (But the 
Ontario Act has since been amended so as to include materials 
placed " adjacent to " the land to be affected. See 8 Geo. V. c. 29, 
s. 1, Oht.). As to whether it is essential to the lien that the ma- 
terials should be incorporated in the building, see the chapter en- 
titled, " The Lien of the Materialman," ante. 

An action was brought by a materialman who supplied mater- 
ials to the contractor for the work done by him for the owner. The 
work was done by the contractor, the defendant Bishop, under an. 
agreement with the owner (the appellant) and the work contracted 
for was the erection and completion of two brick houses. By the 



ONTARIO MECHANICS' LIEN ACT. 431 

terms of the agreement the work was to be completed on, or before, 
the 14th August, 1902. The contractor proceeded with the work, 
but only a comparatively small part had been done on that date. 
The owner entered into new contracts with other tradesmen for 
the completion of the work, and it was completed by them at his 
expense. The official referee decided that -the owner was not en- 
titled to set-off against the value of the work done by the contrac- 
tor the difference between the actual cost to the owner of the work 
and the price he had agreed to pay to the contractor. On appeal it 
was held that it was a proper conclusion from the evidence that 
there was an unqualified and absolute refusal by the defendant 
Bishop to go on with and complete the work > on his contract, after 
he had been more than once requested to do so, which evidenced 
an intention no longer to be bound by the contract and justified 
the appellant in proceeding to complete; and the appellant was, 
therefore entitled to recover the damages sustained by him owing 
to the default of defendant Bishop in the performance of his agree- 
ment. These damages exceeded the amount found due to the de- 
fendant Bishop. 

The appeal was allowed with costs, and the judgment appealed 
from was set aside so far as it affected the appellant and the 
action as to him was dismissed with costs. Ontario Paving Brick 
Go. v. Bishop, (1904) 2 0. W. E. 1063, 4 0. W. E. 34. 

The creation of the lien is contemporaneous with the commence- 
ment of the work (McNamara v. Eirkland, 18 0. A. E. 2116), but 
the right to a lien may be waived by the contractor for a sufficient 
consideration during the pendency of the work. Kelly v. Johnson, 
(1911), 215 111. 135. 

An infant can plead infancy and defeat the lien. Price v. 
Jennings, 62 Ind. Ill; Alvey v. Reed, 115 Ind. 148. 

The burden is on the claimant to show that there is a debt due 
and to establish all essential facts. Merritt v. Crane Co., 126 111. 
App. 337; Brant v. City of New York, 186 1ST. Y. 599; Bradley Co. 
v. Qagham, 208 Pa. 511. 

Tearing down a building to erect a new one will create a lien, 
but the mere demolition or removal of a building may not give a 
lien. Thompson-Starrett Co. v. Brooklyn Heights Realty Co., Ill 
App. Div. (N.Y.) 358. 

Where work is done on a foundation, but the building is not 
proceeded with, the workmen are entitled to a lien against the land. 
Baker v. Waldron, 92 Me. 17. 



432 THE LAW OF MECHANICS' LIENS IN CANADA. 

A lien may be enforced upon a quantum meruit {Fuller v. 
Beach, (1912) 21 W. L. B. 391), unless the contract is entire and 
there is no default of owner. Kelly v. Tourist Hotel Co., (1910) 
20 0. L. E. 267. See Craigholme v. Southwicke, (1916) 21 0. W. 
E. 445. 

Under some statutes the knowledge of the owner and his fail- 
ure to give the statutory notice of non-responsibility will subject 
the owner's interest to the lien. Limoges v. Scratch, (1910) 44 
S. C. E. 86. See High River Trading Co. v. Anderson, (1909) 10 
W. L. E. 126. 

As to trade fixtures, see Hanson v. News -Pub. Co., 97 Me. 102. 

As to unreasonable and arbitrary refusal of architect's certi- 
ficate, see Blome v. Wahl-Hennis Institute, (1909) 150 111. App. 
164; Thaler Bros. v. Greisser, (1911) 229 Pa. 512, and cases cited 
ante, page 77. 

As to completion to satisfaction of inspector being a condition 
precedent, see Schultz v. Faber, (1912) 21 W. L. E. 163, and 
eases cited ante, at page 77. 

' (c) " In respect of," etc. As to the construction of this phrase 
in a statute, see Brett v. Rogers, (1897) 1 Q. B. 525; Anlil v. 
Godwin, (1899) 15 Times Eep. 462. See also remarks of Mac- 
Mahon, J., in Davis v. Crown Point Milling Co., (1901) 3 O. L. E., 
at p. 69 ; Woodruff v. Oswego Starch Factory, 74 1ST, Y. Supp. 961, 
963, 70 App, Div. 481 ; Muzzey r. Reardon, 57 N. H. 378. 

(d) " Places or furnishes any materials." — See cases cited in 
chapter, entitled^ " The Lien of the Materialman." See also Fried- 
man v. County of Hampden, (1910) 204 Mass. 494. 

(e) "To be used." — A materialman is not bound to show that 
his materials were used in the building; delivery upon the ground 
for the purpose of being used is sufficient (McArthur v. Dewar, 
(1885) 3 Man. 72), but a materialman has no lien unless the 
materials were supplied for the purpose of being used in the 
particular building upon which he claims to have a lien. Pollock 
y. Morrison, 177 Mass. 412; Sprague v. Besant, (1885) 3 Man. 
519. In the latter case, Taylor, J., said: "It will be observed 
the words are not 'material used' or 'materials which have been 
used,' but ' materials to be used,' plainly implying that to give a 
lien to the person furnishing the material he must have supplied it 
for the purpose of being used in the particular building upon which 
he claims to have the lien." See, also, Dominion Radiator Co. v. 



ONTARIO MECHANICS' WEN ACT. 433 

Cann, (1904) 37 N. S. E. 237. It is not necessary that the mater- 
ials should actually have formed- part of the structure. It is suffi- 
cient if their use was necessary and they were consumed in the 
making of the improvements. Bepauno Chemical Co. v. Green- 
field, 59 Mo. App. 6; Hercules Powder Co. v. Knoxville L. & J. B. 
Co., (1904) 67 L. E. A. 487. The test is whether such materials 
were necessary to the work of erection under the contract. 

See chapter, " The Lien of the Materialman," ante. The 
material must at least he placed upon the land. In Ludlam & 
Ainslie Lumber Co. v. F edits, (1909) 19 0. L. E.' 419, it would 
seem that the court concluded that the lien would have attached 
if the material had been placed upon the landj under the control 
of the owner, within the statutory time, even although not incor- 
porated in the building. This is now the prevailing view in Canada. 

Whether the transaction was really materials furnished for a 
building or merely a sale of a chattel is mainly a question of fact. 
If it is shown that such chattels are so attached as to become part 
of the structure, and it was contemplated by the parties that they 
should be furnished, a lien may be enforced by furnishing them, 
or for work performed for attaching them. La Qrill v. Mallard, 90 
Cal. 373; General Fire Extinguisher Co. v. Chaplin, (1903) 183 
Mass. 375. See Bunting v. Bell, (1876) 23 Gr. 588; The Scottish 
American Investment Co. v. Sexton, (1894) 26 O. E. 77'. 

There is no lien for unsuitable or unnecessary materials furn- 
ished, but not used. Hunter v. Blanchard, 18 111. 318; Boyd v. 
Mole, 9 Phila. 118. 

One merely guaranteeing- payment for material is not one who 
furnishes material arid is not entitled to a lien. Bounds v. Bash- 
man, 116 Me. 199. 

Where one owner^ enters into an entire contract for the supply 
of material to be used in seyeral buildings the materialman can 
ask to have his lien follow the form of the contraot, and that it be 
for an entire sum upon all the buildings. If the owner desires to 
invoke the statute to the extent of having the lien upon any 
building confined to the value of the material going into that 
building, the onus is upon him to show the facts, and, if the facts 
cannot be ascertained, less violence will be done to the statute by 
construing it as indicated than by rendering it nugatory in many 
instances • in which the legislature apparently intended a lien to 
exist. Ontario Lime Association v. Grimwood, (1910) 22 O. L. E. 

MX— 28 



434 THE LAW OF MECHANICS' LIENS IN CANADA. 

17. Poison v. Thomson, (1916) 29 D. L. E. 395. In Indiana 
it has been held that it is not sufficient for the enforcement 
of a materialman's lien to show that the materials were furn- 
ished to the contractor and were in fact used in the building, 
and that the contractor purchased them for that purpose ; it must 
further appear that they were furnished by the materialman for 
use in the particular building on which it is sought to hold a lien. 
Topp v. Standard Metal Co., (1910) 47 Ind. App. 483. But the 
terms of the contract must be considered. 

Where a materialman furnishes material to an owner of cer- 
tain land ostensibly for the construction of a building on that 
land the materialman is entitled to a lien on that land, even if the 
materials were not actually incorporated in the building. Canadian 
Lumber Yards, Limited v. Ferguson et al., (1920) 1 W. W. R. 
266. See also Kalbfleisch v. Hurley, 34 0. L. R. 268, 25 D. L. R. 
469. 

1 ' (f ) " In the making, construction, etc." — Making slight changes 
in a building, which work is merely incidental to the putting in of 
machinery which is personal property, will not give rise to a 
mechanics' lien, even under statutes allowing a lien for alterations 
and repairs. Curnew v. Lee, (1886) 143 Mass. 105. 

Defendant employed contractor under a written contract to 
clear land for cultivation purposes. A laborer who worked for the 
contractor in clearing the land was held not entitled to a lien under 
s. 4 of the British Columbia Act, as amended. Black v. Hughes, 
(1902) 22 C. L. T. 220. 

The lien is given for labor furnished, as well as for labor per- 
formed (Wera v. Bowerman, 171 Mass. 458), but under some 
statutes where a person contracts to furnish completed articles his 
employees have no lien. Monroe v. Ciarke, (1912) 107 Me. 134. 

Where the owner dismisses the contractor and arranges with a 
sub-contractor of the original " contractor" to finish the work, the 
sub-contractor is entitled to a lien as a " contractor " in respect 
to all work done after such arrangement. Petrie v. Hunter, 2 
O. R. 233; 10 A. R. 127. 

The lien does not extend to unliquidated damages due to the 
contractor from the owner on account of the violation of the terms 
of the contract. Hoyt v. Miner, 7 Hill (N.Y.) 525. 

A provision that a certain portion of the money shall be held 
by the owner is imperative, and the owner neglects it at his peril. 



ONTARIO MECHANICS' LIEN ACT. 435 

Torrance v. Cratchley, 31 0. E. 546 ; Green Lumber Co. v. Nutri- 
ment Co., 113 111. App. 635. 

There can 'be no doubt that filling in and grading the earth 
about buildings already erected would be work giving a lien under 
this section. Even under a statute not so comprehensive in its 
terms it has been held that a mechanics' lien may exist for grading 
a lot, the test being whether it was reasonably necessary for the 
proper construction and occupation of a house. Reid v. Berry, 
(1901) 178 Mass. 260. See also Perry v. Potashinshi, (1897) 169 
Mass 351. 

Whether grading a lot on which a house is afterwards built, 
is done as part of the work of construction, so as to constitute a 
commencement of the building, is a question of fact depending on 
the circumstances of each particular case. Boisot, s. 57, citing 
Kelly v. Posenstock, 45 Md. 389. 

The lien given for labor and materials furnished in respect to 
any structure or land includes hauling the materials there. Fowler 
v. Pompelly, (1903) 76 S. W. 173; McClainY. Hutton, 131 Cal. 
132; Hill v. Newman, (1861) 80 Am. Dec. 473. 

Pumping water which an independent contractor caused to 
flood the basement is properly allowed as an extra expense in a 
suit to enforce a mechanic's lien (Vaughan v. Ford, (1910) 162 
Mich. 37) ; but items for street car tickets and meals for the sup- 
erintendent of the work are not proper items in a claim of lien. 
Haas Electric & Mfg. Oo. v. Springfield Amusement Park Co., 
(1908) 236 111. 452. 

A contractor who has built two separate buildings on the same 
lot under two distinct contracts does not acquire a lien on the 
entire property for his entire account. Currier v. Friedrick, 
(1875) 22 Gr. 243. See Oldfield v. Barbour, 12 Pr. Eep.554; 
Fairclough v. Smith, (1901) 13 Man. 509. 

Commenting on the decision in Currier v. Friedrick, supra, 
Boisot says (s. 174) : " The reason, given for the decisions from 
Massachusetts, Minnesota and Canada is that a mechanic cannot 
have a lien on one building for work done on another. But, as 
we have seen, this rule does not apply where both buildings are 
erected on the same lot, for the same owner, under one contract. It 
seems difficult to see why the fact that the work was done under 
two or more contracts between the same parties should make any 
difference." But it would be an extension of the terms of the 
statute to impose an incumbrance upon one property for work 



436 THE LAW OE MECHANICS' LIENS IN CANADA. 

done upon another. Where there are two contracts they must be 
separated. See O'Brien v. Fraser, 41 D. L. J. at, p. 327, where 
McKeown, C. J., says, " I think the law is correctly stated in Wal- 
lace's Mechanics' Lien Laws in Canada. 

In Fairclough v. Smith, supra, the lien was registered against 
two lots of land owned by different persons in respect to work 
done upon two houses, one on each of the lots, on the order of one 
of the owners and for an amount claimed to be due for the work 
on both houses, without apportioning the amount- as between the 
I two. Killam, C.J., said : " I regret that I can devise no method to 
give effect to the claims asserted in this suit. It is impossible to 
find that the registered claims were sufficient to bind both lots held 
severally, and it seems equally impossible to give effect to them 
against one of the lots only for the proper amount. To choose 
' one or the other to be bound would be wholly arbitrary." See also 
Booth v. Booth, (1902) 3 0. L. E. 294, cited, post', and Orr v. 
Fuller, (1899) 172 Mass. 597, referred to under s. 17, post. 

The Act does not give a lien upon property owned by one per- 
son for materials furnished in respect of another property owned 
by another person. Dunn v. McCallum, (1907) 14 0. L. B. 249. 
See Ontario Lime Association v. Grimwood, 22 0. L. E. 17; Build- 
ers' Supply Co. v. Huddlestone, 25 Man. L. E. 718. 

Where there is an entire contract for labor and materials and 
the claim for materials was disallowed, it was held that the plain- 
tiff, a sub-contractor,, could nevertheless recover for the labor, 
under the terms of the British Columbia Act. Brown v. Allan, 
(1913) 25 W. L. E. 128; Iruin v. Victoria Home Cons. Co., fol- 
lowed. 

Where the terms of the contract were "15 per cent, time and 
materials," and defendant bought and supplied' some bricks, the 
plaintiffs were held to be entitled to the 15 per cent, conrmis- 
sion on the materials furnished by the, defendant. Thomas v. 
Roelofson, (1917) 13 0. W. K. 201. Plaintiffs under a contract 
to do extensive repairs, were to be paid by the owner on the basis 
of 15 per cent, on the cost of the work. Plaintiffs engaged a firm 
of plasterers as sub-contractors to do the plastering. It was con- 
tended by defendant that he should not' be required to pay this 
sub-contractor's bill, involving a fair profit to the sub-contractor, 
and also pay to the plaintiffs 15 per cent, profit on the charge 
made by the sub-contractor. It appeared, however, from the evi- 
dence that this method of getting the plastering done, including 
the sub-contractor's profit, was at least as cheap as if the plaintiffs 



ONTAEIO MECHANICS' UEN ACT. 437 

had directly supervised the* work, and as this work cost the plain- 
tiffs the amount of the plasterer's bill, the 15 per cent, was 
properly chargeable. Falconer v. Ilartlen, (Wallace Co. J.), unre- 
ported (N.S.). 

(g) " Altering, improving or repairing." — See. Curnew v. Lee, 
143 Mass. 105, as to certain work on a building not constituting 
an alteration within the statute. See also construction of the word 
"repaired" as used in Workmen's Compensation Act, 1897. Dredge 
V. Conway, 70 L. J. K. B. 494, (1901) 2 K. B. 42, 84 L. T. 345. 

(h.)" Shall by virtue thereof have a 'lien." — There are conflict- 
ing decisions upon the question whether a right to a lien arises 
where the work has been done on public buildings, such as school- 
houses, which are not liable to sale, in execution. The question is 
dealt with in the chapter entitled, " Property which may be sub- 
ject to lien," ante. 

, (i) "Upon the erection, building, etc., and the lands occupied 
thereby, or enjoyed therewith." It has been held in Pennsylvania 
(Presbyterian Church v. Stetler, 26 Penn. 246), that a .destruction 
of the building for which the work has been done or the materials 
furnished, by fire, or otherwise, discharges the lien. Lewis, C.J., 
in delivering the opinion of the Court in that case, said : " The 
equity of a mechanics' lien -upon a building is founded upon the 
labor and materials furnished by him in constructing it. Attach- 
ing itself to the building, and depending upon it for existence, the 
lien must, necessarily, share the fate of the building'. So, if the 
building, after erection, should be destroyed by accident, before 
the ground on which it stood passed to a purchaser, the lien would 
be gone. The reason for binding the land is gone, with the build- 
ing." See also Coddington v. Dry Dock Co., (1863) 31 N. J. L. 
477. But a recent decision in Missouri (Hooven v. Featherstone, 

(1901) 49 C. C. A. 229), holds that the lien continues attached to 
the real estate, notwithstanding the 1 destruction of the building. 
See also to the same effect, Armigo v. Mountain Electric Co., 

(1902) 67 Pac. Eep. 726; Smith v. Neubauer, (1895) 33 L. E. A. 
685. Under the lien Acts existing in Canada, it would probably 
be held that after the lien is acquired it will continue attached to 
the entire freehold, and the destruction of the building will not 
defeat it. 

Where a lien on a mine was claimed in British Columbia, it ap- 
peared that none of the work was done and none of the materials 



438 THE LAW OF MECHANICS' LIENS IN CANADA. 

were furnished on mining locations Nos. 128 and 129, but these 
were " enjoyed " with No. 258, on which the work was done, and 
it was held that the former locations were therefore subject to the 
lien. Davies v. Grown Point M. Co., (1901) 3 0. L. E. 69. 

As to the area of land subject to the lien, Fuller, C.J., in 
Springer Land Association v. Ford, (1897) 168 IT. S. 513, said: 
" The truth is that what area of land is subject to lien in a given 
case largely depends on the character of the improvement. The 
extent of ground proper and necessary to the- enjoyment of a build- 
ing, a wall or a fence, would not be the same as that required for 
or appertaining to an irrigation system, but the principle of deter- 
mination is the same." 

" In one sense lands cannot be said to be ' enjoyed with ' a 
building until it has been erected, but, as the lien may be regis- 
tered before the execution of the work, and may expire before the 
land has become occupied, the words dq