give the reversion after the limitations in the settlement were determined; and therefore the failure of issue referred to was a failure of the issue comprised in those limitations: and he then, by way of an obiter dictum, continued: "But suppose there had been no reference, if a man limits £10,000 on failure of issue of the body of husband and wife to any other person in tail, the remainder would have been void as an executory devise, being too remote, as it is upon a dying without issue generally of the husband and wife; but here, as was justly observed in the cause, all the limitations by the testator are for life; therefore it is a reasonable construction, to confine it to a failure of issue during the lives in being, which has been held, in the case of executory devises, to be a reasonable construction, if it falls within the compass of ever so many lives in being at the same time."

I find that this case was commented upon by Sir W. Grant in Boehm v. Clarke (9 Ves. 582) with some dissatisfaction, on the ground that the mere circumstance of an estate for life being limited over would not alone be a sufficient indication of an intention to confine the failure of issue to the life of the person to whom the subject is given over, as of course it would [86] not, because nothing is more common than to limit life-estates after estates tail. In Barlow v. Salter (17 Ves. 483) Sir W. Grant corrected himself, observing that he did not notice on the former occasion that all the estates limited over were life-estates, and therefore it was not considered that an indefinite failure of issue was contemplated; and he recognised the rule in Barlow v. Salter (Ibid. 479), where the gift over was to Catherine and several other persons, "Catherine's part only for life, and her part to be divided between the survivors," by saying "How can the circumstance of giving her a life-estate in her part shew an intention to use the words 'dying without issue' in any restricted sense? Where nothing but a life interest is given over, the failure of issue must necessarily be intended a failure within the compass of that life; but where the entire interest is given over, the mere circumstance that one taker is confined to a life interest furnishes no indication of an intention to make the whole bequest depend upon the existence of that person, at the time when the event happens on which the limitation over is to take effect. When a remainder for life has been limited after an estate tail, it never was argued that an estate tail could not really be meant to be given, because of the improbability of intending a personal provision for one person after the indefinite failure of issue of another. The failure may happen during the life, and that chance is what is given to the remainder-man for life. So here, if Catherine shall be living when the issue fails, she will take a life interest; but the bequest over is still to take place when the failure of issue shall happen, whether Catherine shall be then living or not. If there is any case which has ascribed to the circumstance of a devise over for life the effect here contended for, I must beg leave to doubt the soundness of the decision : " and then he explains Trafford v. Boehm (3 Atk. 440) [87] by saying, it must be taken to have been decided on the principle of nothing but life interests being given.

There is also the case of Murray v. Addenbrook (4 Russ. 407), in which an annuity was given, on the death of the first annuitant, "for the use and benefit of the eldest surviving son lawfully begotten of Sir John Murray, and failing the male issue lawfully begotten of the said Sir John Murray, to the daughters lawfully begotten of the said Sir John Murray living at the demise of such male issue, in equal proportions." Lord Lyndhurst, in that case, having relied on other indications in the will, as proving that there was no intention to point to an indefinite failure of issue, observed: "Besides, the gift is to the daughters living at the demise of such male issue. The testator contemplated, therefore, that the daughters would be living at the time when the failure of male issue, which was present to his mind, was to take place; he contemplated that the failure of which he spoke would take place in the lifetime of the daughters. It is not reasonable, therefore, to suppose that he contemplated a general failure of issue." Those observations apply also to the case now before me. The testator here contemplated that some of the legatees would be living at the time when the failure of issue, to which he referred, should take place; and, therefore, it is not reasonable to suppose that he intended to refer to a general failure of issue.

In some of the cases on this subject the limitation over was for life only; in others the limitation has been of the whole interest to such persons only as should be surviving at the death of the previous taker and the failure of his issue. And whenever

there is a clear intention to benefit the ultimate devisees personally, the same rule is observed for it is unreasonable to hold that the words "dying with-[88]-out issue" in such cases can mean that the ultimate devisees are only to take after a general failure of issue, because then, in many instances, it would be impossible that they could live long enough to take anything.

If that be the rule in cases of a far weaker character than this with regard to the first limitations in the will, I am entitled to call in aid the clear gift in fee in this case, the question being not whether I am to hold that there is a gift for life to this person with a gift over to his issue by implication, but whether I am to cut down the clear gift in fee to him, by holding that the testator contemplated an indefinite failure of issue, and so reduced the estate in fee which he had previously given him to an estate tail. I think that this case is stronger than the other cases which have been cited. In Candy v. Campbell (2 Cl. & F. 421) the question was not whether the limitation over implied an indefinite failure of issue, but the first taker having clearly an absolute interest given to her, with a direction to have it settled, and a gift over of this kind, the question was whether the gift over was void for remoteness; and it was held to be so, and necessarily, because it would be within the rule against perpetuities; for the gift over was, in default of issue, to the nephews and nieces of the testator who should be living at the time, which might have suspended the estate for more than the period of a life in being and twenty-one years after, for the testator had brothers and sisters living who might have children born more than twenty-one years after his death, and thus the failure of issue contemplated might take place at a period beyond the legal limit. The question whether or not the estate is to be turned into an estate tail is very different from the question whether or not the first gift is to take effect absolutely on [89] the ground of the limitation over being void. Suppose that a testator has given a clear estate in fee-simple, and has provided that, if the devisee in fee should die without issue twenty-five years afterwards, the property should go over, it would be difficult to say that such a gift over would cut down the previous limitation to an estate tail, although the limitation over would be void; for it would be strange to hold that the words "dying without issue" would there mean an indefinite failure of issue, the testator having himself said that it was to be within twenty-five

years.

In this case the failure of issue mentioned in the gift over points to a period plainly within the legal limits. It is to "the then surviving legatees, share and share alike.' All of these are persons then living and named in the will.

The true construction is a gift to John Verdon, the son, in fee-simple, and if he die without issue during the period of the lives of the legatees, or any of them, to such surviving legatees. I think that, under these circumstances, it is not reasonable to hold that the testator intended a general failure of issue.

There is one case, Wright v. Pearson (1 Eden, 119), which offers some difficulty. In that case there was a limitation over on failure of issue to the testator's five grandchildren, or such of them as should be then living, which is exceedingly near to this case; but though the Lord Keeper seems to have thought that this conferred an estate tail on the first taker, with remainder to the grandchildren in fee, the case did uot turn upon that. And another construction was possible, namely, that if any grandchildren or grandchild should be living at the termination of the estate tail there [90] was a gift to the survivors in fee; but if none should be then surviving there was a gift to all in fee.

The answer to this special case must be that, under the will of John Verdon, John Verdon, the son, took an estate in fee-simple, subject to be defeated by an executory devise in the event of his dying without issue living at the death of the last surviving legatee, and there being issue living at that period, the estate in fee became absolute.

[90] In the Matter of WILLIAM HIND LORD. In the Matter of THE SPECIAL ACT OF THE GOVERNOR AND COMPANY OF COPPER MINERS IN ENGLAND. And in the Matter of THE COMPANIES CLAUSES CONSOLIDATION ACT, 1845. Nov. 25, 1854.

[S. C. 3 Eq. R. 197; 24 L. J. Ch. 145; 3 W. R. 86. See In re Anglo-Italian Bank and De Rosay, 1867, L. R. 2 Q. B. 452; De Rosay v. Anglo-Italian Bank, 1869, L. R. 4 Q. B. 471; Ex parte M'Bryde, 1876, 4 Ch. D. 204. See also Arbitration Act 1889 (52 & 53 Vict. c. 49), s. 24.]

Common Law Procedure Act, 1854, s. 12. Arbitration. Umpire.

The 12th section of the Common Law Procedure Act, 1854, authorises the Court to appoint an umpire in an arbitration which was commenced before the passing of the Act. The 3d clause of that section applies to references to arbitration not only made by any "document," but also otherwise, as by Act of Parliament or by parol.

In 1851 an Act was passed for the purpose of facilitating the settlement of the affairs of the Governor and Company of Copper Miners in England.

The 13th section of this Act provided that the question of the claim of William Hind Lord on the Governor and Company of Copper Miners in England, to compensation for services rendered by him in instituting a suit in defence of the interests of himself and the other shareholders in the said company, to prevent the irrecoverable loss of the company's property, should be "referred to arbitration in manner provided by the Companies Clauses Consolidation Act, 1845."

[91] Arbitrators were accordingly appointed, and in July 1854 the submission to arbitration was made an order of the Court of Chancery.

The arbitrators, in accordance with the directions of the 130th section of the Companies Clauses Act, before they entered upon the matters referred to them, met to appoint an umpire; but they disagreed as to the class from which the umpire should be selected, and this difference proved to be irreconcileable; and the power given by the 131st section of the Companies Clauses Act to the Board of Trade to appoint an umpire applies only to cases of railway companies.

On the 24th October last, the day on which the Common Law Procedure Act, 1854,(1) came into operation, as the arbitrators could not agree upon their award,

(1) The material sections of that Act are as follows:

Sect. 5. Authorises the arbitrator to state a special case "upon any compulsory reference under this Act, or upon any reference by consent of parties where the submission is or may be made a rule or order of the Superior Courts of law or Equity at Westminster."

Sect. 11. "Whenever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them, shall agree that any existing or future differences between them or any of them shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them shall nevertheless commence any action at law or suit in equity against the other party or parties or any of them, or against any person or persons claiming through or under him or them in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the Court in which such action or suit is brought, or a Judge thereof, on application by the Defendant or Defendants or any of them, after appearance and before plea or answer, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration, according to such agreement as aforesaid, and that the Defendant was at the time of the bringing of such action or suit and still is ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in such action or suit, on such terms, as to costs and otherwise, as to such Court or Judge may seem fit, provided always that

Mr. Lord, under the 12th section of that Act, served them with a [92] written notice to appoint an umpire within seven clear days after such notice; and that if no such umpire was then appointed he should apply to the Court of Chancery to appoint one. No umpire was appointed by the arbitrators, and therefore a summons was taken out for the Vice-Chancellor to appoint one, according to the statute.

On the return of the summons the Vice-Chancellor, doubting, first, whether the Common Law Procedure Act, 1854, was intended to have that retrospective operation which was involved in the construction sought to be put on it by [93] Mr. Lord's solicitor; and, secondly, whether the matter being referred to arbitration by a Special Act of Parliament, which enacted that the arbitration should be conducted according to the Companies Clauses Act, that direction could be modified or regulated by another and subsequent statute, adjourned the summons to be argued in Court.

Mr. Rolt, Q.C., and Mr. Bovill, for Mr. Lord, argued that the provisions of the Common Law Procedure Act, 1854, were applicable to this case, not as being retrospective in their operation, but as offering facilities of procedure which may be used in a pending arbitration, if the necessity exists there, just as in any proceeding commenced after the passing of the Act. Thus, in Freeman v. Moyes (1 A. & E. 338), under the 3 & 4 Will. 4, c. 42, s. 31, executors were held liable to costs if non-suited, or the verdict was given against them in actions commenced before the statute came into operation and tried after that period.

Then this case was within the 12th section of the Common Law Procedure Act, for the Special Act directing the arbitration might well be called a "document" within the meaning of that section; but if not, the clause of that section referring to the appointment of an umpire when the parties omit to do so was distinct, and did not allude to the manner of the reference being by document or otherwise. The Special Act could not have designedly directed an arbitration which it would be impossible to carry out; and its object would be defeated unless the Common Law Procedure Act did apply to this case, and the parties would be without remedy. [THE VICE-CHANCELLOR. You might have had a mandamus to compel the arbitrators to appoint an umpire before they made their award.] But they might have resigned if that course had been adopted.

[94] Mr. Willcock, Q.C., for the company, argued that the Common Law Procedure Act was not retrospective; that the Special Act in this case was not a "document" within the terms of the 12th section; that the provisions in the Companies Clauses Act were entirely inapplicable; and that, as the proceeding in this any such rule or order may at any time afterwards be discharged or varied, as justice may require."

Sect. 12. "If in any case of arbitration the document authorising the reference provide that the reference shall be to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator, or if any appointed arbitrator refuse to act or become incapable of acting, or die, and the terms of such document do not shew that it was intended that such vacancy should not be supplied and the parties do not concur in appointing a new one, or if where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not appoint an umpire or third arbitrator, or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorising the reference do not shew that it was intended that such a vacancy should not be supplied, and the parties or arbitrators respectively do not appoint a new one, then, and in every such instance, any party may serve the remaining parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire or third arbitrator, respectively, and if within seven clear days after such notice shall have been served no arbitrator, umpire or third arbitrator be appointed, it shall be lawful for any Judge of any of the Superior Courts of law or Equity at Westminster, upon summons to be taken out by the party having served such notice as aforesaid, to appoint any arbitrator, umpire or third arbitrator, as the case may be, and such arbitrator, umpire or third arbitrator, respectively, shall have the power to act in the reference and make an award, as if he had been appointed by consent of all parties."

case was directed by a Special Act, no omission could be supplied under the provisions of another statute.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I entertained considerable doubt upon this case when it was before me in Chambers, and am not now entirely free from it; but I have come to the conclusion that I am authorised, under the Common Law Procedure Act, 1854, to appoint an umpire in this arbitration.

The first difficulty was whether the statute was intended to have a retrospective effect, and upon this point the case which has been cited bears very strongly; but that decision was not altogether approved in Pinhorn v. Sonster (16 Jur. 1001), in which Parke, B., dissented from it, referring to the rule laid down by Lord Bacon, "Nova constitutio futuris formam imponere debet non præteritis." But the distinction is that there is, as it has been argued, a wide difference for this purpose between provisions for regulating the form of procedure and provisions affecting the substance of a contract between the parties. That is one broad principle on which to construe such statutes. This is a remedial Act for regulating the course of procedure in various instances; and there can be no question that such an Act, not inflicting penalties in the way of costs, as in the Act in question in the case which has been cited, but simply amending the course of procedure, must be held, like the new Chancery Procedure Act, 15 & 16 Vict. c. 86, to apply to all cases pending at the time of its passing. [95] The Legislature seems to have thought it necessary to interfere with the course of proceeding in arbitrations, and the clauses relating to this seem partly retrospective, partly prospective; and there are some provisions, such as the clause now in question, which are not expressly one or the other. I find on one side of the 12th section of the statute the 5th and 11th sections speaking prospectively, and on the other side of it there are sections which seem rather retrospective; and I think the 12th section is intended to apply either prospectively or retrospectively to arbitration proceedings for the purpose of correcting defects in the practice in such proceedings. There are some remarkable points in this section, which shew how highly remedial the Act is intended to be for the benefit of those who resort to arbitration; and that nothing is to prevent the remedy being applied even where some of the parties themselves object to that course. By the early part of the 12th section, in case of an arbitrator refusing to act or dying, or becoming incapable of acting, the powers of the Act are to operate only if the document authorising the reference fail to shew that it was intended that such vacancy should not be supplied. So, in a subsequent clause of this section, if an arbitrator or umpire refuse to act, the powers of the statute apply in case the document authorising the reference does not shew that it was intended that the vacancy should not be supplied and not else. But in the intermediate clause the Legislature interferes in the particular case, when the parties or two arbitrators are at liberty to appoint an umpire and do not appoint one, without any such qualification: and it seems to be here intended that an umpire should be appointed, even although there appear to be a contrary intention on the face of the document authorising the reference. Therefore, regarding this statute as a means of remedying defects which impede the course of justice, in conformity with the predominating object of the parties that the matter should be settled by arbitration, I think [96] that I am not infringing the rule laid down by Lord Bacon in saying that, this being a remedial Act, I will give the benefit of it to all parties as far as possible.

Then, the next difficulty suggested in argument was that the Special Act in this case has effectually provided for this particular reference, that is, it has enacted that the reference to arbitration shall be "in manner provided by the Companies Clauses Act, 1845." If that statute had contained no provisions for arbitration at all, so that there was a clear mistake of the Legislature, I must then have rejected that part of the section, or have found some other way out of the difficulty.

However, the Companies Clauses Consolidation Act does contain provisions for proceedings by arbitration up to the appointment of an umpire, which are applicable to this case. The arbitrators, by s. 130 of that Act, are ordered to appoint an umpire before they commence their proceedings, and if they do not, then, in the case of railway companies, the Board of Trade is to do so. I, therefore, find perfect machinery as far as it goes, which only does not go far enough to meet this case.

It