1900. diction belonging to a foreign corporation that is being Judgment. wound up.

BAIN, J.

I think that it should be held, therefore, that the bene ficial interest in Congdon's indebtedness had been taken out of the defendants before the plaintiffs began their actions, and that the indebtedness was then trust property to be dealt with as the law of the State of New York directed. Then, as the debt had ceased to be beneficially the property of the company, it had ceased to be liable to be attached by the execution creditors of the company: (In re Oriental Steam Co., supra; Hancock v. Smith, 41 Ch. D. 456); and so it was not assets of the defendants in this Province within the meaning of Rule 196.

I think the judgment of Mr. Justice Dubuc, dismissing the actions, should be affirmed, and the appeals dismissed with costs.

RICHARDS, J., concurred.

Appeals dismissed with costs.

ROBOCK V. PETERS.

Before KILLAM, C.J.

Mechanics' Lien-Mechanics' and Wage-Earners' Lien Act, 1898.
Priorities between lienholders and mortgagees

Notice of lien

Subrogation to rights of unpaid vendor in favor of mortgagee paying him off Practice Defects in the statement of lien regis

tered-Costs-Counsel fees as disbursements.

At the trial of an action under The Mechanics' and Wage-Earners' Lien Act, 1898, 61 Vic., c. 29, which was not defended by the debtor, it became necessary to determine the respective rights and priorities as between the plaintiff whose claim was for work and la

bor, another lienholder whose claim was for lumber and other materials supplied at different dates, and several mortgagees. These parties had been served pursuant to section 32 and section 27 (2) of the Act with notice of the trial, but had not been otherwise made parties to the action.

The following points arising under various provisions of the Act were decided :—

1. Although an account for materials supplied may consist of items for different lots supplied at different dates on separate and distinct orders, the lien filed within the required time after the delivery of the last lot will be good to cover all the orders if given in pursuance of a general arrangement previously entered into. Morris v. Tharle, (1893) 24 O. R. 159, followed.

Chadwick v. Hunter, (1884) 1 M. R. 39, distinguished.

2. The claims of subsequent incumbrancers and other lienholders may be disposed of at the trial without their being made parties to the action, and although the notice of trial has been served after the time limited for bringing the action: Cole v. Hall, (1889) 13 P. R. 100.

3. The lienholder who registers his lien in time has priority from the date of the commencement of the work or from the placing of the materials over every conveyance, mortgage or charge made thereafter, although registered first, and such priority is not affected by section 11 of the Act, which applies only to payments or advances made subsequently to the taking effect of the lien under conveyances or mortgages otherwise having priority.

4. The effect of section 17 of the Act is that only substantial compli-
ance with the directions as to the contents of the claim and the re-
gistration of it is required, and no failure in such compliance, in
however substantial a degree, is to invalidate the lien unless some
other party is prejudiced thereby, and then only to the extent to
which he is thereby prejudiced.

5. The lien for materials supplied as against a mortgage has priority
Over the mortgage only to the extent of the materials
placed on the ground before the mortgage money was advanced.
6. Under section 11, if a mortgagee has notice in writing of the fact
that there is an indebtedness for which a lien may be claimed, that
is prima facie notice of the lien itself, and he cannot claim priority
for moneys advanced after such notice.

7. 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 defendant owner, and having thus

1900.

1900.

Statement.

secured the title to the property, claimed to be entitled to be subrogated to the position of the original 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, following Parry v. Wright, (1823) 1 Sim. & St. 369, 5 Russ. 142, it was held that he could not have priority over either lienholder for such advance.

Brown v. McLean, (1889) 18 O. R. 533, and Abell v. Morrison, (1890) 19 O. R. 672, distinguished.

Counsel fees actually paid are to be included among the "actual disbursements" referred to in section 37 of the Act whether the counsel is a solicitor or a partner of a solicitor in the cause or another barrister: Magurn v. Magurn, (1883) 10 P. R. 570.

ARGUED 21st February, 1900.

DECIDED. 11th April, 1900.

THIS action was brought to enforce a lien claimed by the plaintiff, upon land of which the defendant was alleged to be the owner, for work done and materials provided by the plaintiff in putting tin roofing, furnace, water-tanks and pumps upon and in a building erected by the defendant, and for which the defendant contracted to pay the plaintiff the lump sum of $400.

In the summer of 1899 the defendant was the vendee of some lots in a village site known as Lowe farm, under a contract of sale, upon which he had paid only a portion of the purchase money. Before obtaining a conveyance of the land he proceeded to erect thereon buildings for use as a hotel and a stable. He made a contract with the plaintiff, under which the latter was to do the work just mentioned. The plaintiff's work was begun in July and finished on or about the 5th September. On the 22nd September the plaintiff registered his claim to a lien in the proper registry office. He began his action on the 31st October and registered a certificate of lis pendens on the 2nd November. The defendant put in no defence, and the plaintiff obtained an appointment, under section 31 of The Mechanics' and Wage Earners' Lien Act, 1898, 61 Vic., c. 29, for the trial of the action before a Judge

1900.

of this Court, and served notice of trial upon the original defendant, and also upon Duncan Stewart, Henry R. Statement. Whitworth, The Western Co-operative Loan and Investment Co., Arnold W. Bowen, Andrew Strang and Edward L. Drewry. All of these parties appeared by counsel upon the trial, when it appeared that Stewart claimed a lien upon the property for lumber and other materials supplied by him to the original defendant, Peters, for use in the erection of the hotel and stable, that Whitworth claimed as grantee from Peters under a conveyance absolute in form but admittedly given by way of security only, and that the other parties claimed to be mertgagees of the land from Peters.

About the beginning of June, 1899, Peters applied to Stewart to furnish the lumber and other materials for the woodwork of the buildings upon credit, which Stewart consented to do. Peters ordered and obtained lumber, etc., from Stewart from time to time, in small parcels, as he required them. In some cases Stewart could not fill the orders, and Peters obtained the goods elsewhere upon his own credit. Stewart began to supply his materials on the 16th June, and continued to do so, as ordered, until the 27th October. The dates and prices of the last three parcels supplied were: 25th September, $5.26; 18th October, $2.00; 27th October, $2.76. The total amount of the account, after crediting some articles returned, was $516.67, which included some materials used for crib work in a well, the claim for which is not pressed.

The hotel was sufficiently completed for occupation, and the defendant moved into and used it in July or August, but there still remained work to be done upon it, and workmen were engaged there until after the 27th October, and the materials supplied in September and October were used in finishing up the buildings. Some changes were made in the interior of the hotel, and an addition

1900.

was made to the stable after the latter had been completed Statement. according to the original intention, and some of the materials supplied by Stewart were used in effecting these changes and in the addition, though it does not appear that Stewart knew of these changes or that the material was wanted for this purpose.

On the 25th November, Stewart registered a claim to a lien, giving merely aggregate quantities of the different kinds of materials, stating that they were supplied be tween the 1st August and the 27th October, 1899, naming Peters alone as the reputed owner, and claiming $526.67.

On the 20th January, 1900, Stewart commenced an action against Peters to enforce his alleged lien, in which he claimed the sum of $436.67, and he registered a certificate of lis pendens on the same day. The difference in amount was made by crediting some siding returned, a cash payment and a board bill of Stewart's son, agreed to be applied on the account.

On the 5th August, 1899, Peters obtained from Arnold. W. Bowen a loan of $300, and executed a mortgage of the land in fee to Bowen, to secure payment of $435. The remaining $135 were to be advanced by Bowen in payment of the balance of the purchase money of the land. Subsequently the land was conveyed by his vendor to Peters by deed dated the 4th October, 1899, upon which was indorsed an affidavit of execution dated 18th October, 1899. A few days after this latter date Bowen paid over the $135 to the vendor. He did not register his mortgage until the 7th November.

Bowen was the local solicitor at Morden of The West ern Co-operative Loan and Investment Co., to which Peters applied for a loan of $1,500 on the security of the land and buildings in question. This loan appeared to have been contemplated when Bowen made his first advance, but the first definite step towards it was made by