IN RE SOMERS-COCKS. touch the point here, except for what was said by Lord Justice Mellish about it in Miles v. Harrison (3), when he was dealing with an entirely different will. Lord Justice Mellish says the will in that case and the will in Wills v. Bourne (2) are really the same if you cut out the words "and which shall be reserved by my trustees or trustee for the time being for that purpose." That gives, no doubt, a force to Wills v. Bourne (2) which it would not otherwise have had-I mean with reference to the case in hand. But cut out those words from the will in Miles v. Harrison (3), you still leave a direction there that certain legacies should be respectively paid and satisfied "out of such parts of my personal estate as can lawfully be applied to the payment thereof"; and those words might very well be construed, as they were construed, as giving a direction for marshalling. But you have not got those words here. Instead of there. being a direction to marshal, all you have is an exception of some part of the residue given to charity. I make the same remark on the case of In re Arnold; Ravenscroft v. Workman (4). There was an entire difference of words, and the words used were perhaps even more according to common form than in either of the other cases: "I direct that the foregoing charitable legacies shall be paid exclusively out of such part of my pure personal estate as is legally applicable to that purpose." I take it that what the other cases decided really, on this point, was that the language of the wills there under consideration was equivalent to the language used in the will in In re Arnold (4). The construction, as I understand the cases (the will is not precisely the same in each case of course), is this: The Court finds ⚫ words to which effect must be given; the Court does not favour the charity; the Court does not favour anybody—it is pure construction; but the Court finds words to which effect must be given, and says: "We cannot give full effect to that except by the process of marshalling, therefore you must marshal; it is not because the testatrix directed marshalling, but because it is the only way by which you can give effect to the direction which the testatrix has given." Here, I repeat, it seems to me that you can give full effect to what

the testatrix has directed without an marshalling at all; nay, more-my own opinion is that you would not be giving effect to that direction in the will if yo marshalled. I think you would be doing just what the testatrix says is not to b done. I repeat what I have said, tha the charity is to take the residue of he estate after payment of her debts an testamentary expenses and one legacy with an exception which she specifies That exception is undisposed of. I thin all the costs ought to come out of th

Will-Construction-Gift to A if should have Issue Living at Death of BChild" en ventre sa mère."

A testator by his will gave real and per sonal estate to his wife for life, and afte her death one-half of the same to hi daughter Mrs. C. absolutely, in case sh had issue living at the death of his wife Mrs. C.'s first child was born one day after the death of the testator's wife :-Held, tha Mrs. C's child en ventre sa mère was issue living at the date of the testator's wife and that Mrs. C. took absolutely.

Dictum of LORD ELDON in Thellusson v. Woodford (11 Ves. 112, p. 149) adopted and Blasson v. Blasson (2 De Gex, J. & S. 665; 34 Law J. Rep. Chanc. 18) distinguished.

J. V. Burrows, by his will made in October, 1893, gave all his real and personal estate to his trustees and executors upon trust to pay the rents and annual income to his wife for life, and after her death he gave one-half of his real and personal estate to his married daughter Mrs. Cleghorn, for her absolute use and benefit in case she had issue living at the death of his wife, but in case she had no issue

IN RE BURROWS.

then living he directed his trustees to pay the income only of such half share to her during her life, and after her death gave the half share to the persons therein mentioned.

The testator died in November, 1894. The testator's wife died on the 9th of March, 1895. On the 10th of March, 1895, Mrs. Cleghorn's first child was born. The question arose whether the condition on which the gift absolute to Mrs. Cleghorn depended was satisfied by the child being en ventre sa mère at the death of the testator's wife and born afterwards.

J. Mulligan, for Mrs. Cleghorn, in support of a gift absolute.-Mrs. C.'s child en ventre sa mère was "issue living" at the death of the testator's wife-Doe v. Clarke (1) and Thellusson v. Woodford (2).

C. Gurdon, for those entitled to take under the gift over.-The word "issue" implies separate existence, and does not include children en ventre at the date of the testator's wife's death-Blasson v. Blasson (3). That was a case where the child en ventre had no interest in the gift. All the other cases are those where the child was interested. The distinction taken by the text-writers is that a child en ventre will be regarded as existing for the purpose of receiving a benefit, but not for any other purpose-Theobald on Wills (4th ed. 1895), p. 259, and Jarman on Wills (5th ed. 1893), p. 1042. The passage relied on in Thellusson v. Woodford (2) is at the most but a dictum.

J. Mulligan, in reply.-The words in Blasson v. Blasson (3) were "born and living," and Doe v. Clarke (1) was not referred to in the judgment, although cited in the argument-see 34 Law J. Rep. Chanc. 19.

CHITTY, J., after stating the facts, continued: The child was en ventre sa mère at the time of the death of its grandmother, and was plainly then living, so as to bring it within the words of the will,

(1) 2 H. Black. 399; s. c. sub nom. Clarke v. Blake, 2 Bro. C.C. 320; 2 Ves. jun. 673.

(2) 11 Ves. 112, per Lord Eldon at p. 149. (3) 2 De Gex, J. & S. 665; 31 Law J. Rep. Chanc. 18.

"in case she has issue living." But then it is said that the word "issue" imports more than the word "child," and that it means that there must be a child born at the period when the mother is to take; but this is in my opinion too refined a distinction. I think the word "issue" was used as meaning merely descendants of every degree. Then it was said that the rule is that the child en ventre sa mère is not deemed to be living except where there is a benefit passing directly to the child; and as the mother and not the child in this case takes the benefit, the gift over takes effect. The ground for this proposition appears to be contained in the text-books, but I think that the question is covered by authority to the contrary, and that the contrary is in accordance with good sense.

I have the great authority of Lord Eldon in Thellusson v. Woodford (2), where, after referring to the case of Gulliver v. Wickett (4), he says (p. 149), "The devise was to a child en ventre sa mère, and to go over if that child should die under the age of twenty-one leaving no issue. In the construction of that limitation expressly to a child en ventre sa mère, suppose that child had, at the age of twenty, married, and died six months afterwards, leaving his wife enceinte, that property absolutely given to him would. not be devested merely because the child was not born till three months after his death. In fair reasoning, therefore, that is the construction of the words." The hypothetical case put by Lord Eldon is exactly this present case, for in the case put the second child en ventre sa mère was not to take for his own benefit, but the circumstance of his being living was to be for the benefit of his own father. Lord Eldon puts the case as one of “leaving no issue," and his opinion extends to the very case before me, where I have to deal with a very similar expression.

In Thellusson v. Woodford (2) the unanimous opinion of the Judges was pronounced by Chief Baron Macdonald, and Gulliver v. Wickett (4), as well as Doe v. Clarke (1), was referred to. Chief Justice Eyre's opinion in Doe v. Clarke (1) is cor

(4) 1 Wils. 105.

IN RE BURROWS. rectly stated by Chief Baron Macdonald (at p. 140) as follows: "In Doe v. Clarke (1) Lord Chief Justice Eyre holds that, independent of intention, an infant en ventre sa mère by the course and order of nature is then living and comes clearly within the description of a child living at the parent's decease; and he professes not to accede to the distinction between the cases in which a provision has been made for children generally, and where the testator has been supposed to mark a personal affection for children who happened to be actually born at the time of his death." Chief Justice Eyre, at the conclusion of the judgment in Doe v. Clarke (1), p. 401, added, almost in the terms stated in Thellusson v. Woodford (2), "The two classes of cases in equity proceed on a distinction which has always appeared to me extremely unsatisfactory and unfit to be the ground of any decision whatever." It is right that I should notice the case of Blasson v. Blasson (3), which has been cited. The question there was on the words "born and living," words which seem to shew that the testator contrasted birth with life. It was necessary there that the child should be both born and living, and the judgment. of the Lord Chancellor is, in my opinion, directed solely to the word "born," and the passages cited by him from the Digest and Voet relate to born and unborn children, and not to unborn children as living or not. That case, therefore, is clearly distinguishable from the present. If in Blasson v. Blasson (3) it had been a mere question whether a child was living for the purpose of conferring a benefit on the mother, I take it that as a matter of course Doe v. Clarke and Clarke v. Blake (1) would have been referred to by the Lord Chancellor. I hold, therefore, that the testator's daughter Mrs. Cleghorn had issue living at the death of her mother, and that she is therefore absolutely entitled to the moiety given her by the will.

Solicitor-Wm. Morley, agent for E. Dale, Leeds, for all parties.

[Reported by R. B. Schomberg, Esq., Barrister-at-Law.

Appeal by the plaintiffs from a refusal by Kekewich, J., to order a transfer of the action to the Queen's Bench Division for trial as a commercial cause.

The action was brought against the defendants for alleged breaches of duty by them while acting as mercantile agents for the plaintiffs. The questions raised were admitted to be of great complexity, and involved the construction of various mercantile documents and a long mercantile correspondence.

On the 27th of May, 1895, the plaintiffs applied for a transfer of the cause to the Queen's Bench Division for trial by the Judge charged with commercial business, in accordance with the notice given by the Judges of that division in 1895.

The defendants opposed the application, and Kekewich, J., refused to order the

transfer.

Sir R. E. Webster, Q.C., and T. M. Whitehouse, for the appellants. R. M. Bray and W. D. Rawlins, for the respondents.

T. M. Whitehouse, in reply.

LINDLEY, L.J.-This case is one of very considerable importance, and, after this

BAERLEIN & Co. v. CHARTERED BANK discussion, I am not sorry that we gave leave to appeal, as it gives us an opportunity of considering the principles upon which commercial cases should be transferred from one division to another.

In the first place, I hope that nothing I may say will be supposed to be based upon the superiority of one Judge to another. It is not a question between Judges. The only question we have to consider is how this case (the nature of which I will allude to presently) can be tried in the cheapest and best way for both parties.

With respect to the Commercial Court, there is no Act of Parliament establishing such a Court; it is a mere piece of convenience in the arrangement of business. The Commercial Court has no more power to dispense with strict evidence or to depart from the administration of the law in the ordinary way than any other Judge or Court. The power to dispense with strict evidence depends entirely upon the Judicature Act of 1894 (57 & 58 Vict. c. 16), and the rules which have been made under one of the sections of that Act. The important section is section 3, which does not specially relate to the Commercial Court. "It is hereby declared that the power to make rules conferred by the Judicature Acts, 1873 to 1891 "that means conferred on the rule committee-" includes power to make rules for regulating the means by which particular facts may be proved, and the mode in which evidence thereof may be given: (a) on any application in any matter or proceeding relating to the distribution of any fund or property, whether in Court or not; and (b) on any application upon summons for directions pursuant to such rules." Under the power given to the rule committee by that Act of Parliament certain rules have been made, which are embodied in Order XXX. relating to summonses for directions. Summonses for directions may be taken out before any Judge of the High Court. Rule 7, made under the power to which I have first referred, is this: "On the hearing of the summons "—that is, a summons for directions-"the Court or a Judge "—that is, any Judge of the High Court or any

OF INDIA, LONDON, AND CHINA, App. Divisional Court-" may order that evidence of any particular fact to be specified in the order shall be given by statement on oath of information and belief, or by production of documents or entries in books, or by copies of documents or entries, or otherwise as the Court or Judge may direct." The object of that is, under the powers of the Act of 1894, to dispense to a certain limited extent with the technical rules of evidence. The rules and regulations contained in the notice issued with reference to the Commercial Court are nothing more than a statement for the guidance of the practitioners in that Court; and they do not go any further than the rule which I have mentioned. It is true that rule 6 of these commercial regulations, as I will call them, is a little differently worded; it runs thus: " Applications may be made to such Judge' that is, the Judge of the Commercial Court-" under the provisions of the Judicature Act, 1894, and the rules thereunder, or by consent, to dispense with the technical rules of evidence for the avoidance of expense and delay which might arise from commissions to take evidence and otherwise." That does not give to the Judge of the Commercial Court any power to do what another Judge of the High Court cannot do. They can all do precisely the same thing under the power conferred by the Judicature Act, 1894, and the rules; and, of course, by consent (where all parties are competent) the technical rules of evidence can be dispensed with.

Having made these preliminary remarks, I proceed to consider the real question in this case-namely, what is the best method of trying the present case, having regard to the new practice which has sprung up as to the trial of commercial cases. I certainly am not prepared to say that every commercial cause ought to be transferred from the Chancery Division to the Queen's Bench Division of the High Court. If in a particular case the Court is satisfied that the Judge's having peculiar knowledge of commercial matters, and habitual practice in dealing with commercial documents and correspondence between commercial men, will greatly