Judgment of the Court
J.-We are all of opinion that this appeal should be dismissed. In the first place the lien was waived by taking the promissory note from the contractor and by its negotiation, inasmuch as, under ordinary circumstances, that would have been at least a suspension of the debt, and therefore the lien, for the time being, was as if it had never existed.
The statute does not give the lien but only a potential right of creating it, and during the thirty days the note was running it having been discounted it was impossible that the lien could have been created and the potentiality of creating it was, therefore, gone. It is quite clear that when a statute gives a privilege in favour of a creditor the creditor must bring himself strictly within its terms, and there is nothing in the statute in question here which provides that if a lien has once been abandoned it is to be considered as being abandoned merely for a time. If we should hold that it was to be so considered we should be adding a clause to the act.
It follows, that if the evidence was that only $500 of the $1,100 was paid by the respondent to the contractor during the currency of the note, and whilst it was outstanding in the hands of a bona fide indorsee for value, the lien would be absolutely gone. I am satisfied, however, that the whole amount was paid during that time.
Had the note not been negotiated by the appellant different considerations might have prevailed.
The appeal must be dismissed with costs.
Appeal dismissed with costs.