SPRAGUE v. BESANT. (IN EQUITY.) Mechanic's lien.-Material used in a building but not sold for that purpose. A material man has no lien unless the goods were supplied for the purpose of being used in the particular building upon which he claims to have a lien. H. M. Howell, Q.C., and J. S. Hough for plaintiff. [8th June, 1885.] TAYLOR, J.-This is a bill filed against Caleb Besant, to enforce a mechanic's lien for $167.58, the price of lumber sold by the plaintiff for the erection of a stable upon River Lot 615, in the Parish of St. Agathe. The defendant denies that he purchased any of this lumber, and says that he made a contract with his father to furnish the material for and erect a stable for $400. He denies that his father was his agent in purchasing the lumber, and says he had paid him the full $400 before he had any notice of the lien. In my judgment, the evidence is not sufficient to establish the agency of William Besant, or to prove that the use of the father's name as purchaser was merely a cloak to relieve Caleb from liability. The other point taken by Mr. Hagel for the defendant, that the plaintiff can have no lien because the lumber was sold on a general order and not for use this particular building, must also be decided in his favor. The plaintiff was not himself at home when the order was given and the lumber supplied, and he knows nothing of the transaction beyond finding the charge in his books. His foreman, who was examined, proved nothing beyond the fact that the lumber was delivered to the parties whose names appear on the various receipts. These are all signed either by Frederick Besant or Frank Besant, two sons of William Besant. The words of the statute 46 & 47 Vic. c. 32, s. 31, in force at the time this lumber was delivered, are, "Unless he shall have agreed to the contrary, every mechanic, machinist, builder, miner, laborer or other person doing work upon or furnishing materials to be used in the construction, alteration or repair of any buildings, erection or erecting furnishing or placing machinery of any kind in or upon or in connection with any building, erection or mine, shall, by virtue of being so employed or furnishing, have a lien or charge for the price of such work, machinery or materials upon such building, erection or mine," &c. It will be observed the words are not "materials 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. Mr. Phillips in his work on Mechanic's Lien takes this view of the law, citing numerous American cases in support of it. He says that while it is not essential to its creation that the parties should have in immediate view the right of lien, the law contemplates a contract or agreement more specific than the mere purchase of materials in the ordinary course of trade. The parties should mutually understand that they are to be used, and are furnished to be used, about the erection or repair of a building. "So," he says, at p. 212, "if a material man sell his materials with no understanding, express or implied, as to their application, he can assert no lien on the building in which they may be placed. He trusts to the responsibility of the buyer alone, and takes no security. He sells, not for the special purpose named in the statute construction,' but for any purpose that may seem best to the buyer-" And again, at p. 214, “It should have been sold for the building, with the intention and understanding that it should be used in constructing it." In the present case there is no evidence that when the plaintiff's foreman took the order for this lumber and supplied it he knew for what purpose it was required, or that he ever heard of the building of the stable by William Besant. I must, on the evidence, hold that the lumber was sold to him on his credit generally, and not sold to him as agent of Caleb Besant, or for use in this building. The bill should be dismissed with costs. THE MANITOBA & N. W. LOAN Co. v. ROUTLEY. Sheriff's fees.-Poundage, &c. A sheriff having made a seizure, and a claim having been made to the goods, an interpleader issue was directed. Security not having been given the sheriff sold the goods. Before trial the plaintiff abandoned and an order was made for payment by the plaintiffs to the claimant, and the sheriff, of "their costs occasioned by said interpleader order and interpleader issue." This order was amended and the plaintiffs were further directed to pay the sheriff's possession money and other expenses occasioned by the sale, and the costs of the sale. Upon appeal from the settlement of the sheriff's account. Held. I. That the sheriff was not entitled to poundage. 2. That the sheriff was entitled to possession money and other expenses by the terms of the orders, which had not been appealed. 3. That under the circumstances the charge for possession money was not unreasonable; nor was $2 a day too much to pay to a man for keeping possession. 4. A charge of $2.40 for taking a man out of possession was disallowed. 5. Adjournments of sale allowed at fifty cents each. W. H. Culver and G. G. Mills for plaintiffs. J. Denovan for sheriff. G. Davis for claimant. [ist September, 1886.] TAYLOR, J.—Under an execution, issued by the plaintiffs, the sheriff of the Central Judicial District seized the goods and chattels of the defendant. Several persons thereupon served notices upon the sheriff claiming the goods he had seized. The seizure was made on the 25th of February, 1885, and on the 14th of March the sheriff obtained the usual interpleader summons returnable on the 16th of that month. After several enlargements, an order was made on the 7th of April by which the plaintiffs abandoned or were barred as to the goods claimed except 900 bushels of wheat and 400 bushels of oats, part of those claimed by Thomas Prout, and as to these an interpleader issue was directed. Prout not having given security or paid money into court within the time limited by the order, the wheat and oats were on the 9th of May sold by the sheriff. On the 31st of October following, the plaintiffs on their own exparte application obtained an order barring them and ordering them to pay to Prout and the sheriff "their costs occasioned by said interpleader order and interpleader issue forthwith after taxation thereof." This order was afterwards on the application of Prout, varied by ordering the plaintiffs, in addition to the costs provided for in the order of 31st of October, to pay to the claimant his costs on the application of the sheriff for the interpleader order and consequent thereon, his costs, if any, of the interpleader issue, directed to be tried, also the costs of the sheriff on the application for the interpleader order and consequent thereon and also the sheriff's possession money and other expenses occasioned by the sale of the goods and chattels seized and the costs of the sale. See 3 Man. L. R. 296. These costs of the sheriff were by the order to be included in the claimant's bill and the sheriff on payment of his bill was to pay over to the claimant the full amount of the proceeds of the sale. This being a suit on the equity side of the court, the bills of costs have been taxed and the sheriff's claim for possession money disposed of by the master. He has made his certificate taxing the sheriff's bill of costs at $337.55. From the bill carried in by the sheriff it appears that the goods and chattels sold produced $515.14, which includes a sum of $5.45 for hay to which Prout made no claim. From this certificate the plaintiffs now appeal. The first ground of appeal is that the master has allowed the sheriff his costs and possession money for seizing upon and retaining possession of a quantity of hay. The items in connection with this are two of mileage, to seize hay 4 miles south of Portage la Prairie and to seize hay to the north, each 85 cents, then $16 part of an item of $22 for a man in possession of the hay, also $98 part of an item of $142 paid to a man for 49 days possession of the hay, making in all $115.70.' The hay so kept possession of sold for $5.45 and Prout had nothing whatever to do with it. The result of bringing these items into the present account is to make Prout pay the sheriff or allow him to retain out of the proceeds of the wheat and oats which belonged to Prout $110.25 in respect of the hay to which he made no claim, leaving him to recover it from the plaintiffs if he can. Then the order under which the master was acting can refer only to the wheat and oats. All the other matters were disposed of by the order first made. This ground of appeal must be allowed. The second ground of appeal is that the master has allowed the sheriff poundage on the whole amount realized by the sale instead of only on the amount to be paid over. A further ground was afterwards taken by leave, that no poundage should be allowed at all, because the money realized was so by a sale under the interpleader order and not by a sale under the plaintiff's execution and was in no way beneficial to the plaintiffs and did not satisfy any portion of the plaintiff's execution. For the sheriff it was contended that the seizure was sufficient to entitle him to poundage and possession money, and that he is entitled to poundage on the whole amount realized. For the sheriff's right to have poundage on the whole amount realized, two cases were relied on, Gore v. Goston 1 Stra. 643 and Davies v. Edmonds 12 M. &. W. 31. The In Gore v. Goston, upon an execution against the defendant, the court was moved on behalf of his landlord for a rule on the sheriff to levy and pay him a year's rent, and the question was whether the sheriff should have his poundage and from whom. A rule was granted for payment to the landlord without any deduction. The court inclined to the opinion this was in the nature of a further execution and that the sheriff was entitled to his poundage, but from whom they expressed no opinion, it not being before them except as to the case of the landlord. statute as to a landlord's claim for rent is the 8 Anne c. 14, which provides by section 1 that no goods etc. shall be taken in execution unless the party before removal of the goods etc. pay the landlord the rent due provided it amounts to no more than one year's rent. The statute then goes on to say, that on the party at whose suit the execution is sued out paying the landlord he may proceed to execute his judgment, "and the sheriff or other officer is hereby empowered and required to levy and pay to the plaintiff as well the money so paid for rent as the execution money." Davies v. Edmonds, was also a case in which the |