1900. written application upon a printed form of the company, dated 31st August, 1899. The form contained a number Statement. of printed questions, to which answers were written in. It showed that the buildings were in course of construction. To the question: "Have all bills been paid for work and materials used in buildings and improvements?" the answer was "No." To the question: "If not, what amounts are owing and to whom?" the answer was: "$500 at the most to lumber merchants, Whitworth & Stewart." To the question: "Are there any mortgages, liens, judgments or other incumbrances against this property?" the answer was No." To the question: "If this loan is granted, for what purpose do you intend using the money?" the answer was, "Paying off what is owing on building." The application contained a clause by which the applicant promised to pay "the expenses of examination and transmitting of papers, recording of all papers, solicitors' and valuators', and all other expenses in connection with this loan." Peters stated in evidence that he signed a paper asking for a loan of $1,500-presumably this application—and left it with Bowen. On the back of the application was a certificate purporting to be signed by members of the local board of directors of the company at Morden, recom mending a loan of $1,200. One of the signatures to this certificate is that of "Arnold W. Bowen," which was, apparently, in the same handwriting as the name "A. W. Bowen" on the back of the company's mortgage, which as Bowen stated, was prepared by his clerk. Oral evidence was given by Peters and Bowen upon the question of notice to Bowen of the liens of Stewart and the plaintiff. The mortgage to the company was drawn up to secure $900 only. It bore date the 3rd October, 1899, and was registered 20th October, 1899. No money was advanced 1900. upon it, but the company claimed to hold it as security Statement. for $22.75, solicitors' fees and disbursements and other expenses of the loan. The conveyance to Peters was produced by the company, subject to a claim of a lien upon it for these expenses. Strang and Drewry sold to Peters, separately, goods for use in his business as a hotelkeeper. Being indebted to Strang in the sum of $412, and to Drewry in the sum of $222.87, he executed a mortgage of the land in question to Strang and Drewry jointly to secure payment of $612.00 and interest, with a covenant in the short statutory form to insure the buildings for not less than $500. The mortgage was really given to secure the separate claims of Strang and Drewry. It was dated the 17th November, 1899, and registered the 18th November. Strang effected insurance on the buildings to the amount of $650, paying therefor a premium of $22.75. The conveyance from Peters to Whitworth bore date the 30th January, 1900, and was registered on the 1st February, 1900. II. E. Crawford, Q. C., for plaintiff. Bowen's mortgage was registered on 17th November. Plaintiff's lien was registered on 22nd September. The legal effect of the registration was to give priority as and from the middle of July. s. 4, s-s. 2. Prior registration prevails under section 11. The lien was registered before the second advance on Bowen's mortgage: s. 11, s-s. 1. Bowen had notice of plaintiff's lien. He knew the loan was to pay off the parties. A. N. McPherson for Bowen and Western Co-operative Loan Company. The company is entitled to hold their mortgage for expenses. Bowen's mortgage was to secure two sums, one of $300 advanced on 5th August, 1899, and one of $135 advanced about 18th October, 1899, the last 1900. advance being to pay the purchase price of the land and procure deed. There was no notice of plaintiff's lien be- Argument fore the mortgage was made. By section 11, sub-section 2, the unpaid purchase money has priority. Bowen can claim vendor's position: Locke v. Locke, 32 C. L. J. 332. Netice of work going on was not notice of any lien. By section 11 (1) notice of lien must be in writing or else lien must be registered. Bowen had no notice of Stewart's claim when he received his mortgage; he had no written notice. The application for a loan refers only to claims of about $500, and these amounts were to be paid out of the loan applied for. Advances on mortgage without notice of unregistered lien, give priority to mortgage: Cook v. Belshaw, 23 O. R. 545. F. H. Phippen for D. Stewart. The lien was registered within thirty days after the supply of material: Hall v. Hogg, 20 O. R. 13; Morris v. Tharle, 24 O. R. 159; Chadwick v. Hunter, 1 M. R. 363. Any payments should be appropriated to the earliest items of the account. An error in date is unimportant under section 17. By the form in the Act it is not necessary to state the period within which materials were furnished. This form is sufficient under s. 15, s-s. (2); s. 45. By section 21, as this action was begun by the holder of a duly registered lien before the time had expired for Stewart to register his lien, and as Stewart was properly made a party to this suit, registration is unimportant. When one lienholder commences an action registration by other lienholders rendered unnecessary. Bowen's mortgage and the Western Co-operative Company's mortgage were taken before the registration period had expired. Drewry and Strang gave no new credit and were therefore not misled by any defective registration of lien. As to priorities: The Registry Act applies only to a limited extent. The lien arises as material is supplied, from the very fact of sup 1900. ply. A prior registered mortgage under which money is Argument. advanced has priority, except as to increased value of property by action of lienholder. If money not all advanced for material, a man, to retain priority, must give notice in writing. But as to mortgages, &c., after lien arises, though before registration, notice of lien is unnecessary to preserve priority. Compare the present Act, section 4, sub-section 2, with the Registry Act: Kievell v. Murray, 2 M. R. 209; Makins v. Robinson, 6 O. R. 1. By section 28, Stewart is entitled to the benefit of this action, although not commenced by him, and has priority over all who acquired interests after this action brought. No advance was made under Drewry-Strang mortgage within section 11. Bowen had notice of Stewart's lien. Bowen should be declared subsequent to Stewart, at least as to materials supplied before the different advances. T. Robinson for Drewry and Strang. The lien is purely statutory and claimant must comply with the Act: Trask v. Searle, 121 Mass. 229; Haggerty v. Grant, 2 B. C. R. 176. The new Act assumes to give greater benefits than the old. Stricter compliance should be required. Section 4 gives a material man a lien by furnishing materials. This is qualified by sub-section 2 and by section 11. Sub-section 2 requires registration to give effect to a lien as against mortgagees: McVean v. Tiffin, 13 A. R. 1; Wanty v. Robins, 15 O. R. 474; Reinhart v. Schutt, 15 O. R. 325. Work must be done according to contract: Clayton v. McConnell, 14 O. R. 608. The time of practical completion is important, which means the substantial completion as originally agreed upon: Kelly v. McKenzie, 1 M. R. 169; McLennan v. Winnipeg, 3 M. R. 474; Summers v. Beard, 24 O. R. 641. The original agreement was to supply material for building hotel and stable. No license can issue until after inspec tion: R. S. M., c. 90, ss. 37, 44. As to Irwin v. Bey owner. 1900. non, 4 M. R. 10, the extension was due to the fault of the Great importance is attached by the Act to regis- Argument. tration. The claim is defective as to the period within which the work was done. "Shall," in section 15, is imperative. As to the time of filing: Flack v. Jeffrey, 10 M. R. 514. What is substantial compliance with sections 15 and 16: Makins v. Robins, 6 O.R. 1. The real issue there was as to whether the owner had been properly described. The building was substantially completed at the end of September. The last supplied was cribbing for the well and moulding. Only the latter was used in the building: Neill v. Carroll, 28 Gr. 34; Summers v. Beard, 24 O. R. 641. As to notice being required: Moffatt v. Coulson, 19 U.C.R. 341;McVean v. Tiffin, 13 A.R. 1. As to lien being for past debt: Gooderham v. Hutchison, 5 U.C.C.P. 248; Evans v. Morley, 21 U.C.R. 547. Notice of work going on is not actual notice of lien: Douglas v. Chamberlain, 25 Gr. 288; Richards v. Chamberlain, 25 Gr. 402. There was no continuous supply. J. T. Huggard for H. R. Whitworth. As to substantial compliance: Irwin v. Beynon, 4 M. R. 17;Commonwealth v. Wentworth, 118 Mass. 441 Century Dictionary, "substantial." Parties against whom relief is sought should be defendants. Drewry and Strang should have been parties to Stewart's action: Dufton v. Horning, 26 O. R. 252; Bank of Montreal v. Haffner, 29 Gr. 319. The prayer for relief is not against the mortgagees. The words "last material" in section 20, sub-section (2), make no real change in the statute. The last substantial delivery was in September, and the time for filing lien expired then. The onus was on the lienholder to show no one was prejudiced by mistakes. KILLAM, C. J.-This action raises several questions of considerable importance relating to liens under The Me |