words covering moneys payable not to the insured only, but to any one entitled to them under the terms of the policy. Nor do I agree that the money which the appellants contracted to pay constituted a trust fund in the hands of the appellants in the sense in which that expression was used by Mr. McClemont. D. C. 1908 ATKINSON v. DOMINION OF CANADA AND ACCIDENT Co. The appellants do not hold the money in trust for the beneficiary, GUARANTEE but their liability to pay money to her is a contractual one, and is to pay it only on the terms and subject to the conditions of the policy, and the objection as to the action not being brought in time Meredith, C. J. is not a defence under a statute of limitations, but taking the benefit of a term of the contract, which is a condition precedent to the right of the beneficiary as well as the insured to recover. The result is that the appeal must be allowed without costs, and the judgment of my brother Clute, including his order extending the time for bringing the action, reversed, and judgment entered dismissing the action without costs. TEETZEL, J.:-I agree with the conclusion that the case was properly left to the jury and that their findings and the finding of the learned trial Judge on the issue as to settlement should not be set aside; and I also agree with my Lord the Chief Justice that what took place at the trial amounted to a waiver by the appellants of the condition as to furnishing proofs of death; and I have no doubt that the words "the event insured against" in R.S.O. ch. 203, sec. 148, have reference to the death of the person insured, and not to the accident which caused his death, and consequently that the time within which this action should be brought began to run at the date of Atkinson's death, June 5th, 1905, and not at the date of the accident, April 12th, 1905. Sub-section 2 of sec. 148 applies to "every contract of insurance of the person," whether such contract is an ordinary life insurance policy in which it may be said that "the event insured against" is the death of the insured from any cause, or under an accident policy such as this in which one "event insured against" is death resulting from accident. The provision of the policy in favour of the plaintiff is that "if death results from such injuries independent of all other causes within ninety days, it (the company) will pay the full principal sum D. C. 1908 ATKINSON V. DOMINION OF CANADA GUARANTEE AND ACCIDENT Co. Teetzel, J. assured (that is, $1,000) to his wife Margretta Atkinson if surviving," etc. The event in respect of which the contract of indemnity is applicable is not merely the accident which produces the injuries, but the death of Atkinson from those injuries within ninety days. Assuming the correctness of this interpretation of the contract, and the statute, the question remains as to whether the plaintiff has lost her rights by reason of non-observance of the provision of sub-sec. 2 in beginning her action.. The one year and the further term of six months expired on 5th December, 1906. The action was commenced on 31st October, 1906, without the leave of a Judge or the Master in Chambers, as provided for, and no application was made for leave nunc pro tunc until the trial on January 14th, 1907. Whether such leave might have been granted nunc pro tunc if applied for before the expiration of the one year and six months it is not necessary to decide. In Laming v. Gee (1878), 10 Ch.D. 715, an application was granted at the hearing for leave which should have been obtained before the action was brought, but it does not appear in that case that it would have been too late to begin a fresh action when the application was made. I can find no case where leave has been granted nunc pro tunc after the time has expired within which, with leave, a proceeding might have been taken. The principle of the Glengarry Controverted Election Case (1888), 14 S.C.R. 453, is against such a proposition. When the learned trial Judge assumed to grant leave nunc pro tunc it would have been beyond his authority to give leave to issue a new writ, and therefore I think it was not competent for him then to ratify the issue of a writ which had been issued without leave. As I construe the section, both the issue of the writ and the leave of the Judge must be granted "within the further term of six months." This is accentuated by the provision of the amending Act, which prohibits the commencing of any action after the expiration of the year and six months. The appeal, therefore, should be allowed without costs, and the action dismissed without costs. G. G. [DIVISIONAL COURT.] BARRINGTON V. MARTIN. Mechanics' Lien-Statement of Claimant's Residence and Description of Goods A claim for a lien under the Mechanics' Lien and Wage Earners Act, R.S.O. Held (1), that the claimant's residence was sufficiently designated; (2) that the claim against the contractor was sufficient, the Act merely requiring it to be made against the owner or person believed to be the owner; (3) that it was not necessary to give the date of the commencement of the lien; and (4) that while the statement "materials supplied" was not a substantial compliance with the Act, yet under sec. 19 it did not invalidate the lien, no prejudice being occasioned thereby; and that the lien was therefore valid. Judgment of the Master in Chambers reversed. THIS was an appeal by the claimants, W. Spanner & Co., from an order of J. S. Cartwright, K.C., acting as an official referee, disallowing a claim for a lien filed by them in an action brought by one Barrington to enforce a lien filed by him. The facts, so far as material, are set out in the judgment of RIDDELL, J. On June 17th, 1908, the appeal was heard before FALCONBRIDGE, C.J.K.B., MACMAHON and RIDDELL, JJ. R. Mackay, for the claimants. John Jennings, for the plaintiff. June 18. The judgment of the Court was delivered by RIDDELL, J.:-The facts of this matter are: The defendants, the McBrides, are the owners of certain land in Toronto; the defendant Martin was erecting a dwelling-house on the said lands, and failed to pay those who worked for him and those who supplied him with materials. A number of claims of "mechanics' liens" were registered amongst others, by the plaintiff and by the appellants. The matter came on for trial before Mr. Cartwright, Official Referee, and he disallowed the claim of the appellants. We have not the D. C. 1908 June 18. D. C. 1908 advantage of a written memorandum of the reasons of the learned referee, but we are informed that he was influenced by certain BARRINGTON decisions in the New York courts to hold that the claim of lien of the appellants, Spanner & Co., was not sufficient. v. MARTIN. Riddell, J. The claim is as follows: "The Mechanics' and Wage Earners' Lien Act. "Spanner & Co., of Toronto, under the 'Mechanics' and Wage Earners' Lien Act,' claims a lien upon the estate of James A. Martin in the undermentioned land, in respect of the following materials, that is to say: "To amount due for materials supplied, $272.09, which materials were furnished for James A. Martin on or before the 28th day of December, 1907." [Here in the printed form are the words: "And since the day of with the pen.] 190 "; but these are struck through "The amount claimed as due (or to become due) is the sum of $272.09 and $7.00 for this lien. "The following is a description of the land to be charged. [Here follows a description of the land, not complained of.] "Dated at Toronto, this 27th day of January, A.D. 1908. The affidavit is made by "W. J. Spanner, of the city of Toronto, manager of claimant's company," and the jurat is "at the city of Toronto, in the county of York." No less than six objections are taken by counsel to this claim: 1. The residence of the claimant is not given, as required by sec. 17 (1) (c) of the Act-some more particular address should be given. We are not told if it would be sufficient to name the street, or whether the number should not also be given. The statute, however, does not require any such particularity; it is enough to give the residence at Toronto. The objection is based upon a misunderstanding of the case of Crerar v. Canadian Pacific R.W. Co. (1903), 5 O.L.R. 383, in which it is argued by Mr. Jennings that the Chancellor laid down, or at least suggested, a rule that the street or house number should be given in cities and towns. No such rule was laid down. The D. C. 1908 whole discussion was as to the particularity necessary under an order of the Judge that a statement of claim be amended by endorsing thereon "the particulars of the plaintiff's residence as re- BARRINGTON quired by the rules in that behalf." 2. Then it is said that the name of the owner of the property to be charged should be given. And the owners were the defendants the McBrides, and not the defendant Martin, whose name is given. But the statute requires the name of the owner, or of the person whom the claimant or his agent believes to be the owner. Spanner was examined before the referee, and no evidence was given that he did not believe Martin to be the owner of the property. This will be considered more at length when we come to consider the fifth objection. 3. Next it is argued that "the time or period within which the" materials were "furnished" should appear, and the claim gives only the end, and not the beginning, of the period. If there were any substance in this objection otherwise, it would be quite removed by a consideration of the statute itself. Section 17 (2) provides that "the claim may be in one of the forms given in the schedule to this Act," as does sec. 49; and the form given in the schedule is precisely that adopted by the claimant. He even goes so far as to decline to adopt the form provided by the law stationer. It is true that in one case our Courts have declared a form given in an English statute wrong, as not in accordance with our statute: Bain v. McKay (1871), 5 P. R. 471; cf. England v. Cowley (1873), L.R. 8 Ex. 126, at p. 128; but we have never gone so far as to say that a form may not be used which the Legislature has said may be used; and we cannot begin now. This objection is very strenuously urged, because of the supposed rule that nothing can be claimed in such a proceeding as this for material furnished more than a month before the registration of the claim. This contention is based upon such cases as Hall v. Hogg (1890), 20 O.R. 13; and Morris v. Thrale (1893), 24 O.R. 159. These cases, however, are upon the statute as it was before 1896, and interpreted R.S.O. 1887, ch. 126, sec. 21, which provided that in cases other than for wages "the claim of lien may be registered before or during the progress of the work or within 30 days from 42-VOL. XVI. O.L.R. v. MARTIN, Riddell, J. |