the enactment than for a Court to have declared any different meaning, if any different meaning was intended.

S. H. BRADford.

WILLS COMMORIENTES AND SURVIVORSHIP-BURDEN OF PROOF. -In In re McCabe,' the question arose as to the proper devolution of an estate of which the testator (a father) and the sole beneficiary (his son) had been the victims of a cyclone which demolished the shack in which they lived and scattered its pieces over the prairie. The father was old and bed-ridden, the son was a young man in good health, but with artificial feet. On the facts, the learned judge was unable to determine the order of the deaths, and the contest arose between the father's heir and next-of-kin, and the creditors of the son, whose estate was insolvent. The Court held that there was no presumption that one of them survived the other, that the burden. of proof was on the son's representatives to show that he had survived his father, and that since they were unable to do this, the father's representatives were entitled to the property.

In the Roman Law, as in the modern French Code and Continental law generally, there are elaborate presumptions of survivorship. The Code Napoleon, the relevant sections of which are embodied in the Quebec Civil Code, art. 603 to 605, provides for a series of presumptions with the two ages of fifteen and sixty and the sex of the parties as its focal points. Had the present case arisen in Quebec, it would seem that the result would have been just the opposite of what it was in Saskatchewan, for the presumption would have been that the son under sixty years of age had survived his father who was over that age. It is interesting to note, also, that the Mohamedan law of India presumes that all commorientes die at the same time, and this was also, it is said, the old Danish law. There is some early English authority for a presumption similar to that of French law: Colvin v. Procurator General. There are also a number of cases deciding that all are presumed to have died simultaneously. Both lines of cases, however, must be taken to be overruled by Underwood v. Wing, Wing, the principle of which was adopted and applied in Wing v. Angraves

1 (1922) 16 Sask. L.R. 109.

2

3 (1827) 1 Hagg. Ec. 92.

a case arising

Wright V. Netherwood, 2 Salk 593, n. a.; Taylor v. Diplock, (1815) 2 Philli. 280: Goods of Selwyn, (1831) 3 Hagg Ec. 748; Statterthwaite v. Powell, (1838) 1 Curteis Ec. 705.

(1855) 4 DeG., M. & G. 633, 660.

out of the same facts, but not, as the McCabe case mistakenly suggests, the same case on appeal. The rule there laid down is that the order of the deaths is a pure question of fact, and if the evidence on the point is insufficient, it remains unascertainable. There is no presumption either of survivorship or of simultaneous death. "We may guess, or imagine or fancy," says the Lord Chancellor, "but the law of England requires evidence."

In the McCabe case, the evidence, as has been said, did not show which person survived, and it is clear therefore that the party on whom the burden of proving survivorship lay must lose. It is well to remember, of course, that each side has a burden of proof, the real question is what he has to prove to discharge that burden. The principle governing the present case is found in its simplest form in In re Green's Settlement, on which the Court here relies. In that case, the husband was dead and there was a resulting trust to the wife's estate, the survivorship between the wife and her child was undetermined, and the contest was between the next-of-kin of the mother and that of her child. As in the principal case, it was held that the former was entitled to the property. All that claimant had to prove was the death of the mother, and he thereupon had made out a prima facie case and was entitled to the property. On the other hand, the child's next-of-kin in order to establish his case, was bound to show that the child had become entitled, that is, that it had survived its mother, and as he was unable to do this, the other claimant's prima facie case stood unanswered. The mother's next-of-kin, of course, did not need to disprove that the child had survived. So in the present case, the father's representative need only prove the father's death, and his own relationship. He was then prima facie entitled. To defeat this chain of title, the son's creditors must show that the son became entitled under the will, that is, that he survived his father, which they were unable to do. As Wood, V.C., said in Green's case, must show not a person claiming under such a title

66

only that the person through whom he claims would have been entitled if he survived, but that he actually was entitled, or, in other words, that he did survive."

Beside the questions of the presumption of survivorship and burden of proof, the Wing case already cited raised a debatable point of construction which has occasioned sharp comment from Dean Wigmore, and which has such practical importance that it may pardonably be referred to here, even though not strictly relevant to the above (18C5) L.R. 1 Eq. 288.

6

discussion. In those cases Wing was claimant to the property of a husband and wife who had been drowned by the same wave off a transatlantic ship. The spouses had made similar wills; the husband had exercised a power of appointment in favour of his wife, but if she died in his lifetime, then in favour of Wing; the wife had made. a similar appointment in favour of her husband, but if he died in her lifetime, then in favour of Wing. Wing claimed the estates of both, and argued that it was immaterial which died first, in either event, he was entitled to both estates as the property of the survivor. The House of Lords, however, by a majority decision, denied his claim, on the ground that both appointments to Wing were conditional, the first on the wife's dying in her husband's lifetime, and the second on the husband's dying in the wife's lifetime, and since Wing could not prove the occurrence of either of these conditions, his case failed. If the Court's construction of the will be admitted, the case follows the rules already laid down in this note. Campbell, L.C., however, dissented, an the ground that the condition should not be taken literally, and that the intentions of the testator and testatrix should be gathered from the wills as a whole. It was clear that the spouses wished Wing to have the property in the event of either of them failing to take it, but the only case that occurred to them on which such a contingency would arise was the death of either in the lifetime of the other, and literally this was the only condition they provided for. It is submitted that Lord Campbell's opinion is the preferable one, and it has the support of the United States Supreme Court on facts involving the same question: Y.M.C.H. v. French. The majority decision, however, is binding on Canadian Courts, and Dean Wigmore has suggested that "In view of these sinister possibilities of judicial decision, and of the contingencies created by the transmarine voyage annually taken by thousands of families, it may be suggested that the only safe form of will, for a married pair having identical testamentary wishes, must consist in a devise to a trustee, in trust, first, to accumulate the income for six months, next, to transfer the estate to the wife (or husband) if living at the expiration of six months, and next, if not then appearing to be living, to the desired secondary devisees."

For an elaborate discussion of the questions involved in these and similar cases, see Prof. C. B. Whittier: "Problems of Survivorship." J. T. H.

PROCEEDINGS IN FORMA PAUPERIS.-In Paul v. Chandler and Fisher, Limited, a British subject, non-resident in Manitoba, but residing in another province of the Dominion, was, on a proper case being shewn, granted leave to prosecute an action in forma pauperis in Manitoba.

The case settles two points never previously raised in a Canadian court; first, that a poor litigant is entitled to proceed in forma pauperis in the absence of legislation authorizing such procedure, and second, that such indulgence will be granted to a non-resident British subject. If a statute, or Rules of Court promulgated under the authority of a statute, provides for actions in forma pauperis, there is of course no difficulty. But in several of the provinces, as in Manitoba, there is no such express provision. In those provinces, therefore, the present case is of persuasive authority.

The short ground on which the, case is decided is that by common law and statute in England in 1870, a pauper could sue without liability to pay costs, and that since the law of England of that date relating to property and civil rights was introduced into and is part of the law of Manitoba, the right still remains. It may be noted that the early English law had no system of costs, and that so far as they played any part, costs were included in the damages, or assessed in the arbitrary discretion of the judge. It is true that suitors had to pay for their writs, but the poor could have their writs for nothing.3 "Before the Statute of Gloucester no person was entitled to recover any costs of suit either in plea, real, personal or mixed." With this statute, the system of fixed costs begins, but the right to sue in forma pauperis continued to exist at common law: Brunt v. Wardle, and by the time of Henry VIII. this right was amply safeguarded by statute. First, the statute 11 Henry VII. c. 12, entitled "A mean to help and speed poor persons in their suits," provided that a pauper might, at the discretion of the then Chancellor, have writs and subpoenas without fee, and counsel assigned to him gratis; then the statute 23 Henry VIII. c. 15 carried this right to sue in forma pauperis to its logical conclusion by providing that a poor plaintiff should be exempt from the payment of costs if he failed to obtain a verdict or was nonsuited, though it also added that he might be punished in the judge's discretion. And there are statements in some old cases that in case a pauper was non-suited, he should have the option of paying taxed

1

1 (1924) 2 W.W.R. 577 (Court of Appeal, Manitoba).

3 Pollock & Maitland, 1 History of English Law, 174.

46 Edward I., cap. 1.

5 Hullock, ubi supra.

3 Man. & G. 534, 542.

costs or of being whipped in the market-place. Blackstone states that this latter practice was in disuse in his time, and Tidd seems to say that this punishment never was in fact inflicted, and as early as 1697, Lord Holt denied a motion to have a non-suited pauper whipped, and he added that the court had no officer for that purpose and that he had never known it to be done.10 These statutes of Henry VII. and Henry VIII. continued in England until repealed by the Statute Law and Civil Procedure Act (46 & 47 Vic. c. 49), and nothing was put in their place. But as the proceeding in forma pauperis, was, as has already been stated, part of the common law, the courts still had the inherent right to make rules to regulate it if they saw fit, and in 1913, the Judges of the High Court promulgated Order XVI., Rules 22 to 31 with this object in view. These remained in force until 1921, when a new set of rules replaced them, and finally, these were amended in 1922.

In Canada, it is clear, as the principal case holds, that since the procedure in forma pauperis was part of the common law, and that it was regulated by the two early statutes above cited, and that in view of the fact that either by colonization or by statute, the English common law and the English statutes insofar as applicable or not inapplicable were introduced into all the common law provinces, the procedure in forma pauperis and the early statutes governing it are in force in all those provinces. In the United States, where the same reasoning ought to apply, the decisions have been conflicting on the few occasions on which the question has come up. The courts of Indiana and Wisconsin have held that proceedings in forma pauperis can be had only when expressly authorized by state statute.11 The California Court has held, on the other hand, that such proceedings are inherent in a common law court of record, and that consequently it exists unless expressly taken away by statute.12 It will be seen that the Manitoba case is in accord with the latter view, and it is submitted that this is clearly right.

On the second point, as to the right of a foreigner or alien to take advantage of the proceedings in forma pauperis, the majority of the court seem to think that there might be cases where this would be permitted; but in any event, in the present case, the plaintiff being a

1 Sid. 261, 2 Salk. 507, 7 Mod. 114.

83 Bl. Comm. 400.

1 Tidd., Pr. 8th Ed. 93.

10 Anon. 2 Salk. 507.

11 Hoey v. McCarthy, 124 Ind. 464; Campbell v. Chicago R. Co., 23 Wis. 490.

12 Martin v. Superior Court, San Francisco Recorder, Oct. 18, 1917.