Supreme Court can say what shall be done with the costs of such reference incurred after the judgment of this Court and before the stay was granted.

In arriving at the above conclusion, I have been somewhat influenced by the fact that the loss to the defendant, if refused an appeal in a case where if allowed to appeal he would succeed, is much greater than the comparatively small loss that the plaintiff will be put to if he succeeds before the Supreme Court.

PERDUE, J.A., concurred.

CAMERON, J.A.:-In this case an application is made for a new trial or for an extension of time to appeal to the Supreme Court, on the ground of the discovery of new evidence. Attached to one of the exhibits filed at the trial, the same being a transfer of mortgage from the plaintiff to the Western Canada Loan and Savings Company, is a declaration made on the 25th March, 1897. This transfer, with the declaration attached, was referred to in the plaintiff's affidavit on production and filed at the trial, on the 6th February, 1908, and the plaintiff was examined to some extent with reference to it. Judgment was delivered by the trial Judge, on the 5th March, 1908, and on appeal to this Court that judgment was affirmed, on the 11th May, 1910. The evidence taken at the trial comprised 170 pages of typewriting, and the argument before this Court was very full and exhaustive. An account was taken in the Master's office pursuant to the judgment, and it was while this was being done, on the 25th November, 1910, that, as the defendant says in his affidavit filed on this motion, the declaration above mentioned first came to his attention.

He says he was present throughout the trial and during the argument of the appeal, and that he believes this declaration was not brought before the Court in either case. He further says that he has inquired of counsel who represented him at the trial and on the appeal, and he is informed by his counsel "that, according to his recollection, he is unable to say whether the said declaration was observed, argued, or discussed at this action or at the hearing of the said appeal."

Now, it is not alleged, nor even suggested, that there was any attempt at concealment of this declaration by the

plaintiff. It was produced by the plaintiff and filed in Court, and, therefore, was open for inspection. The defendant says that his counsel is unable to say whether it was "observed, argued, or discussed." But that is surely evidence of the weakest character, if, indeed, it can be called evidence at all. What would be said on this present motion if the defendant were here represented by the same counsel who acted for him previously? And I cannot see that the change of counsel can alter the defendant's position or the position of the parties in the slightest. It cannot be that the change of counsel gives the defendant rights he would not otherwise have. To speak of this as the discovery of new evidence, to my mind, is to do violence to the language used. The plaintiff has now a vested interest in the judgment, the time for appealing therefrom having expired. A long investigation has been held in the Master's office pursuant to that judgment. At some period there must be an end to this litigation. I am clearly of the opinion that no sufficient ground has been shewn to justify our interference in this matter by extending the time for appealing to the Supreme Court. A new trial is, to my mind, out of the question.

In an action to enforce a mechanics' lien, the plaintiff alleged that the defendant F. C. was the owner of the land upon which the work was done and for which the materials were supplied, and that the defendants F. C., P. A. C., and T. H. C. employed the plaintiff to do the work and supply the materials for building on the land owned by the defendant F. C. The trial Judge held that the defendants F. C. and P. A. C. were not liable, because they had not entered into any contract with the plaintiff; but he held the defendant T. H. C. liable because he was the promoter of a company for which the work was done. The work was done under a written agreement purporting to be between the plaintiff and the defendant P. A. C., but not signed by the latter. The company was incorporated before the agreement was made; the 3 defendants were among the incorporators; and the company was created for the

purpose of building a theatre on the land owned by the defendant F. C.:

Held, that there was nothing in the evidence to support the finding that the defendant T. H. C. employed the plaintiff to do this work for the company. No such case was made in the statement of claim. If T. II. C. was liable at all, it was because the company pretended to employ the plaintiff and because T. II. C. represented that he was the agent of the company; but no such case was made out by the evidence or by the pleading.

Appeal by the defendants from the judgment of the trial Judge in favour of the plaintiff, in an action to recover moneys expended in building and to enforce a mechanic's lien.

The appeal was heard by HOWELL, C.J.A., RICHARDS, PERDUE, and CAMERON, JJ.A.

D. A. Stackpool, L. J. Elliott, and H. J. Symington, for the defendants.

E. J. McMurray and J. F. Davidson, for the plaintiff.

The judgment of the Court was delivered by

HOWELL, C.J.A.:-The statement of claim is an ordinary one for a mechanic's lien, and alleges that the defendant Florence Crump is the owner in fee simple of the land upon which the work was done and for which the materials were supplied. In the third paragraph of the statement of claim it is alleged that the defendants, being the said Florence Crump, P. A. Crump, and Thomas H. Crotty, employed the plaintiff to do the work and supply the materials for a building on the land owned by Mrs. Crump. The rest of the statement of claim is the ordinary claim for a mechanic's lien, and asks for payment against all the defendants and for the usual declaration in mechanics' lien cases against the land. There is no allegation in the statement of claim that the other defendants were agents for the owner of the land.

At the conclusion of the trial, the learned trial Judge held that the "defendants Florence Crump and P. A. Crump were not liable, as they were not in any way parties to the transaction creating the cause of action, nor promoters of the proposed company for which the work was to be done, and against whom the action was dismissed."

It will be seen, then, that the trial Judge held that neither of the Crumps had entered into any contract with the plaintiff.

After reserving judgment as against the defendant Crotty, the learned Judge found him liable because he was the promoter of a company for which the work was done. No such case as that was made out or hinted at in the statement of claim. In the lien, a copy of which is set out in the statement of claim, the plaintiff gives a detailed statement of the work he has done and the materials he has provided, and follows that up with this language, “which work or service was done and materials were furnished for P. A. Crump, of the city of Lakeside," and this statement was verified by the plaintiff's affidavit. Amongst the exhibits put in at the trial, was a written agreement under which this work was done, and that agreement is made between the plaintiff and P. A. Crump, and signed by the plaintiff, but not signed by any of the defendants.

The plaintiff was called as a witness at the trial and gave evidence, of which the following are extracts:—

Q. Who were you to do the work for? A. Mr. P. A. Crump

His Lordship: Told by whom? A. By the architects, and the tender was called for the same name, for P. A. Crump.

Mr. McMurray: When did you go to work? A. The next day after the contract was signed by me.

Q. Did you make any inquiries to find out who you really were doing the work for, any further inquiries? A. Well, of course, I knew by the contract, and I didn't inquire, because I knew Mr. Crump was perfectly good.

Q. Did Crotty tell you anything about the defendants Crump in connection with the building of this theatre? A. No, we didn't exchange no words about that, me and Crotty.

It is plain, then, that the plaintiff intended to work for the Crumps. The contract was not drawn up by Crotty, but it was prepared and the execution of it procured by the architects, and not by the defendant Crotty.

The company referred to by the learned trial Judge and in the evidence was a company incorporated by letters.

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patent a couple of months before the contract was entered into. The incorporators of the company were Crump, Crotty, one of the architects, and other persons, and it was for the purpose of building a theatre on the land owned by Mrs. Crump, and there was a verbal agreement by her that she would take stock in the proposed company for a considerable amount.

From the evidence, I have no doubt that it was intended by all parties that the proposed incorporated company should do this work, but I can see nothing in the evidence to support the finding that the defendant Crotty employed the plaintiff to do this work for the company. No such case as that is made out in the statement of claim. The company was a fully incorporated one long before the contract was entered into, and, if Crotty employed any one to do that work for the company, he is not liable unless he misrepresented his position. If he represented that he was agent of the company, and was not agent, then he is liable, not as the man for whom the work was done, but for breach of warranty or fraud. The plaintiff says by his pleadings, by the agreement, and by his evidence, that he was working for Crump, and the learned trial Judge does not find that Crotty was Crump's agent or representated that he was Crump's agent, and thus made himself liable. If Crotty is liable at all, it is because the company pretended to employ the plaintiff and because Crotty represented that he was the agent of the company; but no such case is made out either by the evidence or by the pleading. If the architects made a mistake in employing the plaintiff to work for the Crumps, instead of the company, it is their fault.

In no way that I can see can this judgment be maintained. It is necessarily a matter of great regret that the plaintiff has put work and material upon the property of the Crumps.

I think the appeal must be allowed with costs. The verdict will be set aside and entered for the defendants, and I regret that I can see no reason why the plaintiff should not be ordered to pay the costs of the trial and the costs of the appeal

There will be judgment accordingly.