turn for services performed at her request, or in the alternative to recover that amount on quantum meruit for such services, being $12 a month for 75 months from 1st March, 1898, to 3rd June, 1904. CARTWRIGHT, MASTER. DECEMBER 28TH, 1905. CHAMBERS. HALL v. BARCLAY. Summary Judgment - Recovery of Possession of LandAction by Assignee of Mortgagee-Unconditional Leave to Defend. Motion by plaintiff for summary judgment for possession of land in the town of Whitby. W. E. Middleton, for plaintiff. THE MASTER:-The land was purchased by defendant from one Thompson (since deceased) by agreement dated 2nd April, 1903. A few days later, defendant made the down payment of $175, and went into possession. The price was $3,075, out of which 3 existing incumbrances were to be paid. They amounted to over $4,200. The first of these mortgages was for $2,000 to the Union Trust Company, which was largely in arrear. The second was to one Helen Henry to secure $1,100, and the third was to one Reinhardt to secure $1,100. These two last named covered other property. Thompson said he could have them all satisfied out of the purchase money, and discharges were actually prepared and sent for inspection to defendant's husband and agent. For some reason matters hung fire, and in May an action to enforce the agreement of purchase was commenced, but Thompson died in July, and nothing has been done since. Subsequently the gentleman who had acted as Thompson's solicitor in the matter arranged to take an assignment of Mrs. Henry's mortgage to plaintiff, who is his stenographer, as trustee for the person advancing the money. And this mortgage being overdue both as to principal and interest at the date of the assignment, a fresh action was begun to recover possession. In this way defendant would be obliged either to complete the purchase or else lose the down payment of $175. It is objected that plaintiff's affidavit does not state that in her belief there is no defence to the action, as the Rule requires though it does say "under the terms of the said. mortgage I am entitled to possession of the said lands." This affidavit is misleading. Any one reading it would suppose that plaintiff was the person who had paid the money, and was speaking of facts within her own knowledge. But this is far from the fact, as is made evident by the affidavit in answer of defendant's husband, to which the solicitor makes affidavit in reply, and to which defendant's husband makes a further reply. Both of these two last affidavits were made without any leave first had. But if one is received, the other should be also. The defence is not set out quite so clearly as it might have been. But what is alleged is that the present action is only an attempt, in the interests of Thompson's estate, to get over the difficulty caused by his death and the necessity of appointing a personal representative; that it is, in truth, Thompson's action, in another form and under another name; and that there are defences as against him which should not be excluded in this way. The name of the person for whom plaintiff is trustee is not disclosed. Her original affidavit gave no hint of her true character, and her statements as to the amounts due on the mortgage were only hearsay as far as she was concerned, and the source of her information was not disclosed, as the Rules require. I notice also that the assignment under which plaintiff brings her action has apparently not been registered, as there is no certificate of registration on it. Taking everything into consideration, I think the motion should be dismissed, with costs in the cause. The statement of defence should be filed in the usual time notwithstanding vacation. If no satisfactory defence is set up by it, plaintiff will be at liberty to move against it in such manner and on such grounds as she may be advised. But, in my opinion, defendant should be permitted at least to submit her contention; and in all probability the action will then have to stand to be tried at the coming Whitby assizes. VOL. VI O.W.R. NO. 25-69 FALCONBRIDGE, C.J. TRIAL. DECEMBER 29TH, 1905. COUNTY OF GREY v. VILLAGE OF MARKDALE. Municipal Corporations-By-law of Village-Supply of Electric Light to County House of Refuge-Necessity for Submission to Electors-Extraordinary Expenditure. Action by the county corporation against the village corporation to enforce an agreement of defendants, pursuant to their by-law, to furnish electric lighting for a House of Refuge erected by plaintiffs in the village. A. G. MacKay, K.C., for plaintiffs. W. H. Wright, Markdale, for defendants. FALCONBRIDGE, C.J.:-The evidence is, viewed from the standpoint of morality, entirely devoid of merits, but it is one to which as a matter of law I am obliged to give effect. Under the authorities the by-law in question is one clearly within sec. 389, sub-sec. 1, of the Municipal Act (R. S. O. 1897 ch. 223), which section requires that every by-law for raising money upon the credit of the municipality, not required for its ordinary expenditure and not payable within the same municipal year, shall be submitted to the electors of the municipality. The by-law assumes to create a liability or debt on the village for 10 years from the installation or the first supplying of electric current. The corporation of Markdale are not now and never have been owners of an electric light plant, nor have they ever purchased the same, and no provísion was made by the municipal council of the village in their estimates for the years 1902, 1903, and 1904, for the expenditure of any moneys to supply electric light or electric current for the purpose of supplying the House of Refuge at the said village of Markdale. It is strange that people occupying public or fiduciary positions are frequently found to apply a standard of morality to their dealings as trustees different from that which would be adopted by themselves as private individuals if they aimed to be of good repute in the community. It would have been more to the credit of these defendants if they had made some effort to procure validation of their by-law by legislation or otherwise. While I am obliged to dismiss the action, I do so without imposing the penalty of costs upon the defendants. Action dismissed without costs. DECEMBER 29TH, 1905. DIVISIONAL COURT. BOAKE MANUFACTURING CO. v. MCCRIMMON. Mechanics' Liens-Lien-holders-Mortgagees-Priority — Increased Selling Value of Land-Agreement-Construction. Appeal by certain lien-holders from a report of the Master in Ordinary dated 9th October, 1905. The lien-holders claim to be entitled against the respondents, who were mortgagees of the land in question, to priority over their mortgagees on the increased selling value given to the land by the works and services performed by them: R. S. O. 1897 ch. 153, sec. 7 (3). W. E. Middleton, for appellants. A. C. McMaster, for the respondents. The judgment of the Court (MEREDITH, C.J., STREET, J., TEETZEL, J.), was delivered by MEREDITH, C.J.:-The doing of the work and the furnishing of the materials in respect of which the liens are claimed were begun before the registration of the respondents' mortgages, but the liens, not having been registered, became, as incumbrances on the lands at all events, postponed to the mortgages. The respondents' mortgages were two in number, and bear date respectively 1st August, 1901, and 2nd September, 1901. Each was for $3,200, but the mortgage money was not advanced when the mortgages were made, and $4,800 of it only had been advanced between 30th August, 1901, and 31st October following. Various mechanics' liens were registered between 7th November, 1901, and 20th December following, and amongst others those of the appellants. It would appear that the respondents, after the registration of these liens or some of them, declined to make any further advances on account of the mortgage money, probably because having been registered their further advances would or might be postponed to these liens (R. S. O. ch. 153, sec. 13, sub-sec. 1), and the buildings which were in course of erection were not completed. In this position of matters an arrangement was come to between the owner of the land, Cassie McCrimmon, the registered lien-holders, Addison, a subsequent incumbrancer, and the mortgagees' predecessors in title, the Ontario Permanent Building and Loan Association, which resulted in the association making further advances for the completion of the buildings. An instrument in writing evidencing the terms of this arrangement was executed by all the parties to it, except the association. It bears date 13th December, 1901, but probably was not executed until some time later, as the first of the advances under its provisions was not made until 26th March, 1902. The total amount of the advances was $2,900, and they were made between 26th March, 1092, and 24th October following. The instrument contains recitals as to the advance of $1,800 having been made by the association on the mortgages to it, and that there remained to be advanced $1,600; as to the "filing" of the liens against the lands; as to the value of the materials furnished and work performed by the lienholders; that the buildings were in an incomplete state and would suffer damage if not completed at as early a date as possible; that the owner had conveyed the lands to Addison as security for an indebtedness of $770, with interest from 14th October, 1901; and that the lien-holders, who are called "contractors," and Addison had agreed that the association should be at liberty to advance the $1,600 and any further moneys in order to complete the buildings. The instrument witnesses that the parties to it " agree one with the other as follows: the said association shall notwithstanding the said claims of lien be at liberty to advance the balance of the said mortgage moneys, namely, the sum of $1,600 and any further moneys necessary to complete, the |