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fee, 14 N. H. 215, 224; Seddel v. Wills, 20 N., New York, L. & W. Ry. Co., 11 N. E. 492, J. Law (Spencer) 223, 225; Van Middles- 495, 105 N. Y. 89, 59 Am. Rep. 478. worth v. Schenck, 8 N. J. Law (3 Halst.) 29, 41; Wurts' Ex’rs v. Page, 19 N. J. Eq. (4 C.
The text-books lay down the general rule E. Green) 365, 367; Buchanan v. Schulder that where a devise is to one and his heirs, man, 1 Pac. 899, 900, 11 Or. 150; Dumond v. with a devise over "if he die without issue," Stringham (N. Y.) 26 Barb. 104, 111; Mof. or “without having issue,” and with no exfat's Ex’rs v. Strong (N. Y.) 10 Johns. 12, 17; planatory words defining the time to which Anderson v. Jackson (N. Y.) 16 Johns. 382, this contingency is to apply, it will be con402, 8 Am. Dec. 330; Appeal of Fitzwater, strued to be a general failure of issue at 94 Pa. 141, 146; Strain v. Sweeny, 45 N. E. any time, however indefinite or remote, and 201, 202, 163 11. 603; Stone V. Bradlee which may not, therefore, happen for many (Mass.) 66 N. E. 708, 709, 183 Mass. 165.
generations. But the decisions upon this
subject are exceedingly arbitrary, and withThe words “die without issue” have been out much foundation in reason or common held to import an indefinite failure of issue, sense. Hence courts will seize hold of slight when applied to personalty as well as to circumstances to give to executory devises a realty. Chism's Adm'r v. Williams, 29 Mo. construction which regards the failure of is288, 292; Davies Adm'r v. Steel's Adm'r, sue as relating to a definite period of time. 38 N. J. Eq. (11 Stew.) 168, 170; Moody v. The construction of the words as importing Walker, 3 Ark. (3 Pike) 147, 198. But or- an indefinite failure of issue will give way dinarily they are construed to mean definite to any explanatory words in the context failure of issue, when so used. Forth v. which can be interpreted as ixing the time Chapman, 1 P. Wms. 663; Caulk's Lessee of the failure at the death of the first taker. v. Caulk (Del.) 52 Atl. 340, 345, 3 Pennewill, Strain v. Sweeny, 45 N. E. 201, 202, 103 Ill. 528; Kimball v. Penballow, 60 N. H. 448, 603, 451; Downing v. Wherrin, 19 N. H. 9, 86, 49 Am. Dec. 139; Hall v. Chaffee, 14 N. H.
It has been long settled that the words 215, 224; Pinkham v. Blair, 57 N. H. 226, occurring in a will referring to the death of 227; Patterson v. Madden, 33 Atl. 51; Appeal a person without issue, whether the terms be of Eachus, 91 Pa. 105, 108; Appeal of Myers, “if he die without issue,” or “if he have no 49 Pa. 111, 114; In re Francis' Estate, 4 Pa. issue,” or “If he die before he has issue,” or Dist. R. 694; In re McCoy's Estate (Pa.) 16 “for want of or in default of issue,” unexWkly. Notes Cas. 243; In re Duffy's Estate, plained by the context, and whether applied 36 Wkly. Notes Cas. 199; In re Moorhead's to real or personal estate, are construed to Estate, 36 Atl. 647, 648, 180 Pa. 119.
import a general indefinite failure of issue.
The rule, in the language of Lord RedesThe statutory definition of the phrase dale, is that technical words shall have their “dying without issue” is dying without heirs legal effect, unless from subsequent inconor descendants of the first taker surviving sistent words it is very clear that the testahim. 1 Rev. St. 724, § 22; Bowman v. Tall- tor meant otherwise, or unless, in the lanman, 25 N. Y. Super. Ct. (2 Rob.) 385, 401. guage of Lord Alvaney in Poole v. Poole, 3
Bos. & Pul. 620, the intent appears so plainA will executed in New York contained ly to the contrary that no one can misunthe following clause: “I direct that, in case derstand it. As to personalty, it seems the my daughter M. should die without issue, word “issue” yields more readily to expresthat my real and personal property should sions and circumstances in a will tending to be possessed and enjoyed by my husband, R. confine it to the restricted sense, than when P. W., and my sister, D. F., during their applied to real estate. Tinsley v. Jones (Va.) natural lives, and after their death the said 13 Grat. 289, 292. real and personal property to be divided equally between my brothers H., J., F., and In Kentucky and Ohio the term “die T., or their representatives, share and share without issue" is construed to import a defalike; the devise over to my husband, sister, inite failure, unless a contrary intention is and brothers to depend upon my daughter plainly expressed in the will, or is necessary M. dying without issue.” Held, that M. took to carry out its undoubted purpose. Daniel under her mother's will a base or conditional v. Thomson, 53 Ky. (14 B. Mon.) 662, 708; fee, defeasible by her dying without issue Lewis v. Shropshire, 68 S. W. 426, 427, 24 living at the time of her death, under the Ky. Law Rep. 331; Birney v. Richardson, 35 provisions of 1 Rev. St. 724, § 22, and that Ky. (5 Dana) 424, 427; Armstrong v. Armher issue, should she leave any, would take strong, 53 Ky. (14 B. Mon.) 333, 344; Moore by inheritance from her, but a conveyance v. Moore, 51 Ky. (12 B. Mon.) 651, 657; by her in her lifetime would be effectual as Brown's Heirs v. Brown's Devisees, 31 Ky. against them, and that an indefeasible title (1 Dana) 39, 41; McKay v. Merrifield, 53 Ky. in fee could be conveyed, and the contingent (14 B. Mon.) 322; Brashear v. Macey, 26 Ky. expectant estate, limited to the husband, sis- (3 J. J. Margh.) 89, 90; Lee v. Mumford, 44 ter, and brothers of the testatrix in the event S. W. 91, 19 Ky. Law Rep. 15, 85; Carter v. of M.'s dying without issue, cut off by their Reddish, 32 Ohio St. 1, 14; Parish's Heirs joining with her in a conveyance. In rev. Ferris, 6 Ohio St. 563, 574, 575. The Kentucky statutory provision is as follows: When the term “survivor" is used, fol. “Unless a different purpose be plainly ex- lowing the general phrase "dying without pressed in the instrument, every limitation issue,” and unaccompanied by other words in a deed or will contingent upon a person indicating a transferable interest to the heirs dying 'without heirs,' or without children' of the survivor, the term will always have or 'issue,' or other words of like import, the effect of controlling the generality of shall be construed a limitation to take effect this phrase, and of chang it from an indefiwhen such person shall die, unless the ob- nite failure, which it would mean when ject on wbich the contingency is made to de- standing alone, to a failure at a definite time, pend is then living, or, if a child of his to wit, the death of the first taker. Mendenbody, such child be born within ten months hall v. Mower, 16 S. C. 303, 312; Gray v. next thereafter.” Ky. St. 1903, § 2344. In Bridgeforth, 33 Miss. 312, 313; Kennedy v. Massachusetts there is a similar statute, Kennedy, 29 N. J. Law (5 Dutch.) 185, 188; which is as follows: "In a limitation of real Howell v. Howell, 20 N. J. Law (Spencer) or personal property by deed, will or other | 411, 415; Groves v. Cox, 40 N. J. Law (11 instrument in writing,
the words Vroom) 40, 44; Cutter v. Doughty (N. Y.) 23 'die without issue,' or 'die without leaving Wend. 513, 518; Lewis v. Claiborne, 13 issue,' or 'have no issue,' or 'die without heirs Tenn. (5 Yerg.) 369, 372, 26 Am. Dec. 270. of the body,' or other words importing either a want or failure of issue of any person in As within lifetime of testator. his lifetime or at the time of his death, or
The words "die without issue" are held an indefinite failure of his issue, shall, un- to refer to death within the lifetime of the less a contrary intention clearly appears by testator. Yocum v. Siler, 160 Mo. 281, 295, 61 the instrument creating such limitation, s. W. 208; Phelps v. Phelps, 11 Atl. 596, 598, mean a want or failure of issue in the life- 55 Conn. 359; Coe v. James, 9 Atl. 392, 54 time or at the time of the death of such Conn. 511; Lawlor v. Holoban, 38 Atl. 903, person, and not an indefinite failure of his 70 Conn. 87; Washbon v. Cope, 39 N. E. 388, issue." Rev. Laws Mass. 1902, p. 1268, c. 134, 392, 144 N. Y. 287; Coles v. Ayres, 27 Atl. § 5. And in Maryland there is also a stat. 375, 376, 156 Pa. 197; Appeal of Mickley, 92 utory provision: “In any deed of any real Pa. 514, 518; Stevenson v. Fox, 17 Atl. 480, or personal estate, the words 'die without is- 125 Pa. 568, 11 Am. St. Rep. 922; King v. sue,' or 'die without leaving issue,' or 'have Frick, 19 Atl. 951, 952, 135 Pa. 575, 20 Am. no issue,' or any other words which may im- St. Rep. 889; Fowler v. Dubme, 42 N. E. port either a want or a failure of issue of 623, 631, 143 Ind. 248; Teal v. Richardson, any person in his lifetime, or at the time of 66 N. E. 435, 160 Ind. 119. But when a conhis death, or an indefinite failure of his is- trary intent is indicated, they are not so limsue, shall be construed to mean a want or ited. Huston's Lessee v. Hamilton (Pa.) failure of issue in the lifetime, or at the 2 Bin. 387, 392; Vanderzee v. Slingerland, 8 time of the death of such person, and not an N. E. 247, 103 N. Y. 47, 57 Am. Rep. 701; indefinite failure of his issue, unless a con- Cooksey v. Hill, 50 S. W. 235, 237, 106 Ky. trary intention shall appear by the deed.” 297, 20 Ky. Law Rep. 1873, 1875. Pub. Gen. Laws Md. 1888, p. 275, art. 21, § 83.
When a future interest is limited by a
grant to take effect on the death of any perThe words “die without issue,” in a will son without heirs, or heirs of his body, or directing that a bequest shall be divided be without issue, or in equivalent words, such tween other beneficiaries if the first bene- words must be taken to mean successors or ficiary “die without issue,” are to be con- issue living at the death of the person named strued, in view of Acts 1862, c. 161, to mean as ancestor. Civ. Code Mont. 1895, $ 1475; a want or failure of issue in the lifetime or Rev. Codes N. D. 1899, 8 3526; Liston v. Jenat the time of the death of the person so kins, 2 W. Va. 62, 65. taking, unless a contrary intention appears from the will. Hutchins v. Pearce, 31 Atl.
As without having had issue. 501, 502, 80 Md. 434.
In a will creating a remainder in case “Die without issue,” as used in a will one of the devisees dies without issue, the devising property to testator's children, and words “dies without issue" mean if the devi. providing that, if they should "die without see dies without having had issue, not withissue,” his or her share should be equally out surviving issue. Field v. Peeples, 54 N. divided among the survivors, means death E. 304, 305, 180 III. 376; Chaplin v. Doty, 15 without issue in the lifetime of testator's Atl. 362, 365, 60 Vt 712. surviving children. Schively's Estate (Pa.) 42 Leg. Int. 100.
DIE WITHOUT ISSUE LIVING. A devise over in case the devisee “dies "Dying without issue living or surviving" before the age of 21 years and without is is always held to import a definite failure of sue” imports a definite failure of issue. issue. Granger v. Granger, 46 N. E. 80, 84, Dallam v. Dallam (Md.) 7 Har. & J. 220, 236. 147 Ind. 95, 36 L. R. A. 190 (citing Pells v.
Brown, Cro. Jac. 590); Glover v. Condell, 45, mainder, and not an executory devise. Perry N. E. 173, 179, 163 Ill. 566, 35 L. R. A. 360; v. Kline, 66 Mass. (12 Cush.) 118, 123. Vaughan v. Dickes, 20 Pa. (8 Harris) 509, 514.
The words “dying without leaving lawful Testator devised to his son a farm—to issue or descendants,” applied to a devise of him, bis heirs and assigns-provided he had leasehold property, mean a dying without isliving issue, but, if he should die leaving no sue living at the death of the first taker. Alissue living, then the said property to be lender v. Sussan, 33 Md. 11, 15, 3 Am. Rep. equally divided between his sisters. Held, 171. that the phrase "leaving no issue living" meant a failure of issue at the time of the DIE WITHOUT LEAVING CHILDREN. death of the devisee, and not an indefinite failure of issue. Wallington v. Taylor, 1 N. The words “leaving no child or children," J. Eq. (Saxt.) 314, 318.
in a devise of property directing that if the
beneficiary die, "leaving no child or children," "It is well settled that in gifts of per: the property shall pass to another, cannot be sonalty the phrase 'die without living issue' construed to denote an indefinite failure of means die without living issue living at the
issue. Hull v. Eddy, 14 N. J. Law (2 J. S. death of the person, the failure of whose is- Green) 169, 175. sue is spoken of.” Still v. Spear, 45 Pa. (9 Wright) 168, 171.
A devise over upon the death of a devisee
without leaving child or children does not DIE WITHOUT LAWFUL ISSUE.
mean a failure of issue at some indefinite fu
ture period, but dying without children at In a will, a limitation to T. and his the death of such devisee--a definite event. heirs, and, “in case of his death without Brooks v. Kip, 35 Atl. 658, 660, 54 N. J. Eq. lawful issue,” the estate to revert to R. and 462. his heirs, the words “in case of his death without lawful issue" qualify the general ex
As used in a will giving money to a cerpression "to T. and his heirs,” and point out tain person, and, if she should die leaving no the heirs intended to inherit, and confine children, the legacy should go in another, them to heirs of his body. Handy v. McKim, manner, "leaving" should be construed in the 4 Atl. 125, 129, 64 Md. 560.
sense of the words "having had," so that the
contingency contemplated was the death of A will devised real estate to children in the legatee without having had a child or fee, and then added the following devise
children. "If personal estate," said Mr. over: “But if any one or more of my said Hawkins (Hawkins' Wills, 216), “be given to children should die before they arrive at full the children of A., the shares to vest in them age or without lawful issue then his or her on attaining a given age or marriage, withshare shall devolve upon and be equally di-out reference to their surviving the parent, vided among the rest of my surviving chil. but there is a gift over on the death of A. dren.” Held, that the words "without lawful without leaving a child or children, the issue,” in such connection, meant issue living word 'leaving will be construed 'having or at the time of his death, and that the devise 'having had,' in order not to defeat the prior over was good by way of executory devise, vested interest.” In Theob. on Wills, 532, it and not too remote. Jackson v. Blansban (N. is said that the word "leaving,” under such Y.) 3 Johns. 292, 299, 3 Am. Dec. 485.
circumstances, will be taken as equivalent in Testator, after a devise of a life estate meaning to the words "without having had to his children, and the remainder to his children who take a vested interest." Male grandchildren, provided that, in case any of v. Williams, 21 Atl. 854, 855, 48 N. J. Eq. (3 his children should die without lawful issue, Dick.) 33. then the portion of his estate which would have gone to such issue should be equally di- DIE WITHOUT LEAVING ISSUE. vided among the survivors of his children or grandchildren. Held, that the devise to the The terms "die without issue," "die with. survivor or survivors after the death without out leaving issue,” and “die without beirs issue showed that the words "without lawful lawfully begotten" are synonymous. Moody issue” should be interpreted as though fol- v. Walker, 3 Ark. 147, 198; Paterson v. El. lowed by the words "living at the time of lis' Ex’rs (N. Y.) 11 Wend. 259, 282. his death," and that therefore the devise to
The expression "without leaving living the survivors was not void as a limitation on issue,” as used by a testator in a will making an indefinite failure of issue. Cutter v.
a gift over on the first taker dying without Doughty (N. Y.) 23 Wend. 513, 518.
leaving living issue, means lawful issue liv. The phrase "without legal issue" in a ing beyond the death of the first taker. A will providing for a legacy, should either of testator, after having used expressions which, testator's three sons die without legal issue, though containing no words of inheritance, refers to an indefinite failure of issue, and would, standing by themselves, have given a renders the gift over to the survivors a re- fee simple absolute to his two grandsons,
added a provision “that the property willed, the lifetime or at the time of the death of by me to the said grandchildren should be such person, and not an indefinite failure of held in common, and if either of them should bis issue unless a contrary intention shall apdepart this life without leaving living issue, pear by the deed. Pub. Gen. Laws Md. 1888, then in that case the survivor or the heirs of p. 275, art. 21, § 83. his body shall inherit all the property and estate devised to both of them.”. Held that erty by deed, will, or other instrument in
In a limitation of real or personal propthe latter words referred to a death either writing, the words “die without issue,” or before or after testator's death, and that each “die without leaving issue,” or “have no isgrandson took a base or determinable fee, defeasible by his death without living issue, sue,” or “die without heirs of the body," or leaving the other grandson surviving. First
other words importing either a want or failNat. Bank v. De Pauw (U. S.) 75 Fed. 775, at the time of his death, or an indefinite fail
ure of issue of any person in his lifetime or 777.
ure of his issue, shall, unless a contrary inThe words "without leaving issue,” as tention clearly appears by the instrument used in a will providing for the disposition creating such limitation, mean a want or failof property “in case of the death of my son
ure of issue in the lifetime or at the time of 8. without leaving issue,” mean without leav- the death of such person, and not an indening issue at the time of the death of the devi- nite failure of his issue. Rev. Laws Mass. see, and not at the time of the death of the 1902, p. 1268, c. 134, $ 5. devisor. Metzen v. Schopp, 67 N. E. 36, 39,
It was settled at common law that the 202 III. 275.
phrase "leaving no issue," or "without leavAs used in a will in which the testator, ing issue,” when applied to a devise of land, after giving the remainder of his property to meant an indefinite failure of issue, but, his two children, provided that, if either of when applied to a bequest of personalty, it them should die without leaving issue, the imported failure of issue at the time of the portion of such child should go to his or her death of the first legatee. Patterson v. Madissue in equal shares, is construed to mean den (N. J.) 33 Atl. 51. "dying without issue” in the testator's lifetime. Hence the children who survive the DIE WITHOUT LEAVING LAWFUL IStestator would take absolute estate.
SUE SURVIVING. Phelps v. Robbins, 40 Conn. 250, 264.
Die leaving no issue behind him, see
"Behind.” As indefinite failure of issue.
In the following cases the words “die There is a marked difference between a without leaving issue" have been held to im- gift over in a will, the first taker's dying port an indefinite failure of issue: Kay V. with lawful issue, and a gift over on his Scates, 37 Pa. (1 Wright) 31, 39, 78 Am. Dec. dying without leaving lawful issue surviving. 399; Middleswart's Adm'r v. Blackmore, 74 The latter, if it means anything, must mean Pa. (24 P. F. Smith) 414, 419; Parkhurst v. lawful issue living beyond the death of the Harrower, 21 Atl. 826, 142 Pa. 432, 24 Am. St. first taker. It is much more expressive than Rep. 507 (citing Taylor v. Taylor, 63 Pa. (13 the phrase "leaving no lawful issue behind P. F. Smith] 481, 3 Am. Rep. 565; Middle- him," which, in Porter v. Bradley, 3 Term R. worth's Adm'r v. Blackmore, 74 Pa. [24 P. F. 143, was held to denote a definite failure of Smith) 414); In re Miller's Estate, 22 Atl. issue. Nicholson v. Bettle, 57 Pa. (7 P. F. 1044, 145 Pa. 561; Moody v. Walker, 3 Ark. Smith) 384, 387. (3 Pike) 147, 148; Morehouse v. Cotheal, 21 N. J. Law (1 Zab.) 480, 490; Paterson v. El- DIE WITHOUT LEGAL ISSUE. lis' Ex'rs (N. Y.) 11 Wend. 259, 282. On the other hand, the following cases have held See "Die Without Lawful Issue." that they do not import an indefinite failure of issue. Atwell's Ex'rs v. Barney (Ga.) DIE WITHOUT LIVING HEIRS. Dud. 207, 208; Harris v. Smith, 16 Ga. 545, 548; Nicholson v. Bettle, 57 Pa. (7 P. F.
The words “death without living heirs," Smith) 384, 387 (citing Porter v. Bradley, 3 as used in a will providing that, in case of Term R. 143); Patterson v. Madden, 54 N. J. devisee's death without living heirs of his Eq. 714, 720, 36 Atl. 273, 274.
own, the whole shall revert to testator's
heirs, when given their natural meaning, can In any deed of any real or personal es- only be construed as referring to death at any tate, the words “die without issue,” or “die time, and not simply to death within the lifewithout leaving issue,” or “have no issue,” time of testator. Thomas v. Miller, 43 N. E. or any other words which may import either 848, 850, 161 Ill. 60. a want or a failure of issue of any person in his lifetime or at the time of his death, or
DIE WITHOUT LIVING ISSUE. an indefinite failure of his issue, shall be construed to mean a want or failure of issue in See “Die Without Issue Living."
clude mere failure of one to pay a debt owing
to another. Fravert v. Fesler, 53 Pac. 288. The civilians employed this term to de- 290, 11 Colo. App. 387. note days for legal purposes or judicial proceedings. Didsbury v. Van Tassel, 10 N. Y.
Rejection by an assured of an offer by Supp. 32, 33, 56 Hun, 423.
an insurance company of a certain amount in settlement of the damages to the insured
property constitutes a difference between the DIES NON.
parties, within the meaning of a condition in
the policy that any difference as to the “Dies non” is an abbreviation of the amount of loss shall be submitted to arbitraphrase “dies non juridicus,” universally used tion before action brought. Pioneer Mfg. Co. to denote nonjudicial days—days during v. Phoenix Assur. Co., 10 S. E. 1057, 1039, 106 which the courts do not transact any busi- N. C. 28. ness—as Sunday or the legal holidays. Havens v. Stiles (Idaho) 67 Pac. 919, 921, 56 L. Palpable abuse of judicial discretion is R. A. 736.
not beyond remedy, but "difference in judicial opinion” is not synonymous with "abuse
of judicial discretion.” Day v. Donohue, 41 DIES NON JURIDICUS.
Atl. 934, 935, 62 N. J. Law, 380. It is frequently said that Sunday is "dies non juridicus,” but this means only that pro- DIFFICULT. cess cannot ordinarily issue or be executed or returned, and that courts do not usually sit,
The term "difficult and extraordinary on that day. It does not mean that no judi- case,” in statutes providing for an extra alcial action can be had on that day. On the lowance in a difficult and extraordinary case, contrary, it is laid down in books of author- includes all cases of a difficult or extraordiity that warrants for treason, felony, and nary character, and includes a suit to forebreach of the peace may be issued and exe- close a mechanic's lien, if difficult or excuted on that day. State v. Ricketts, 74 N.
traordinary. Horgan v. McKenzie, 17 N. Y. C. 187, 193.
Supp. 174, 175. The term, as so used, should The term "dies non juridicus” was used be construed as synonymous with “litigated," by the civilians to designate the days in and hence all litigated cases are difficult. It which judicial proceedings were prohibited, should not mean simply a case where a but, with the exception of Sunday, we have party's debt was doubtful or unfounded, and no such days; and hence Laws 1881, c. 30, that, by the skill or ingenuity or the smartproviding that certain days, including Christ- ness of bis counsel, he had performed the difmas, shall be considered Sunday, for the pur- ficult task of obtaining a verdict contrary to pose of presenting and producing commercial evidence, for, while this would establish a paper, and for the purpose of transacting difficult as well as an extraordinary case, in business in a public office, does not diminish the literal acceptation of the term, it would the number of judicial days, and service of a
not be such in a legal acceptation thereof, summons on Christmas is valid. Didsbury v.
which is that defendant has forced plainVan Tassel, 10 N. Y. Supp. 32, 33, 56 Hun, tiff, the owner of a claim plainly and clearly 423.
just, to resort to trouble and expense in order to enforce payment thereof, and it is for
the reimbursement of such expenses that he DIETING.
is entitled to an extra allowance. Dyckman
v. McDonald (N. Y.) 5 How. Prac. 121, 122. “Dieting,” as used in Rev. St. c. 53, & 19, It means the opposite of “common and orproviding that the sheriff shall receive for dinary." Each case must be determined acdieting each prisoner such compensation, to cording to its own peculiar circumstances, cover the actual costs, as may be fixed by the and each judge must necessarily be guided county board, means providing and furnish
by his own individual experience as to what ing to the prisoners their daily food. Cook
actions and trials are difficult or extraordiCounty v. Gilbert, 33 N. E. 761, 762, 146 Ill.
nary. All litigated trials cannot be consid268.
ered difficult, within the statute, because such
a construction would completely nullify the DIFFERENCE.
words “difficult and extraordinary,” as used,
and contravene the plain intent of the Leg. In a contract providing that it is hereby | islature. “Difficult” should probably be apunderstood that should any difference arise plied to questions of law involved in the acin regard to the proper performance of the tion, while "extraordinary" may apply to contract, etc., then said difference shall be any other feature or circumstances distinleft to the arbitrators, "difference" means guishing the case from ordinary litigations. disagreement or dispute, and would not in- Fox v. Gould (N. Y.) 5 How. Prac. 278, 279.