against the interlocutor so far as it dealt with the question of signature. That, I presume, your Lordships will dismiss, and you will say whether you do or do not dismiss it with costs. LORD WESTBURY.-My Lords, I feel that the whole question is so much one with regard to the future, that I should be very glad if the parties would permit the cross appeal to be merged in the general consideration applying to the whole of the proceedings-namely, without weighing in very nice scales the right or the wrong in the conduct of an individual, to let the whole expense of the proceedings in the Court below be paid out of the partnership funds. Sir Roundell Palmer.-I have not a word to say against that. LORD CHANCELLOR.-Then the cross appeal will be dismissed, and the costs of all parties in the cross appeal will be added to the costs of the original appeal. The following judgment was pronounced:-" It is ordered and adjudged that the said interlocutor of the Lords of Session in Scotland of the Second Division, of the 20th of July 1869, complained of in the original appeal, so far as it finds that any writings which the defender Robert Beveridge may have occasion to subscribe, as manager of or acting for the company, must be signed by him with his own name, as such manager, or as acting as aforesaid, be varied, by substituting for the words 'have occasion,' the words 'be entitled': And it is further ordered and adjudged, that the said interlocutor of the 20th of July 1869, so far as it finds that Robert Beveridge acted within his powers as manager in the purchase of power-looms for the use of the company, and in the displacement of hand-looms, in order to the putting up of such power-looms within the works of the company, be, and the same is, hereby reversed; and, instead thereof, it is hereby declared, that the said Robert Beveridge had no power or authority, against the remonstrances of the pursuer, James Adamson Beveridge, to make purchases of new and additional power-looms, or other machinery, on account of the copartnership, or to remove from the partnership premises the hand-looms, or other machinery previously used therein, in order to the reception of such new and additional power-looms or machinery, or to alter or adapt the factory for the reception of any machinery of a different character from that placed under the care of the defender, Robert Beveridge, as manager of the works: And it is further ordered and adjudged that the said interlocutor of the 20th of July 1869, so far as it finds that the said Robert Beveridge acted properly, and within his powers, in fixing the salaries and emoluments of the persons in the employment of the said company, and so far as it assoilzies the defenders from the conclusions of the libel, declaratory and petitory, in reference to the said purchases, and in reference to the salaries and emoluments aforesaid, and quoad ultra dismisses the action-and also so far as it modifies the expenses to which the pursuer, James Adamson Beveridge, is found entitled to the extent of one-fourth of the taxed amount, be, and the same is, hereby also reversed: And it is hereby further declared, that the defender [12] Robert Beveridge has not, apart from his co-trustees, the right to act as a partner of the firm of Erskine Beveridge and Company, and that the rights of the pursuer, James Adamson Beveridge, as such partner, are not superseded or in any respect impaired by the appointment of the said Robert Beveridge as general manager thereof, and that the said Robert Beveridge had no right, power, or authority to enter into any written or other contracts or agreements with the managers, heads of departments, or clerks of the said copartnership, which the firm, or the pursuer, James Adamson Beveridge, as a partner therein, disapprove or object to, and that the said Robert Beveridge is bound to accept, and that the other defenders, as trustees and partners with the pursuer, the said James Adamson Beveridge, are bound to join with the said pursuer in granting to the said Robert Beveridge a written procuration, mandate, or authority, authorising him to sign writs and documents as manager for and on behalf of the copartnership, and specifying the mode in which he shall sign them-the terms of such procuration, mandate, or authority to be adjusted by the Court of Session in case of difference between the parties: And it is further ordered and adjudged that it be remitted to the Court of Session to give effect to the above declarations, and to grant interdict restraining the defender, Robert Beveridge, from doing any act contrary thereto And it is further ordered and adjudged that the said cross appeal be and the same is hereby dismissed this House: And it is further declared that, under the special circumstances of this case, it appears to this House to be right that the expenses of both parties of the proceedings in the Court of Session, and also the costs of both parties-(appellants and respondents)-of both the appeals to this House, should be paid out of the estate of the copartnership now subsisting; and it is hereby directed accordingly ;" and cause remitted. SIMSON & WAKEFORD, London-WOTHERSPOON & MACK, S.S.C.-WILLIAM ROBERTSON, London-T. J. GORDON, W.S. No. 2. X. MACPHERSON H.L. 12. 1 March 1872. House of Lords.— Lord Chancellor (Hatherley); Lord Chelmsford; Lord Westbury. MRS. MARY MACKENZIE CATTON AND ALFRED ROBERT CATTON (Pursuers), KENNETH MACKENZIE (Defender), Respondent.-Lord-Adv. Young- Entail-Limitation-Provisions- Rutherfurd Act, 11 & 12 Vict. c. 36.-A deed of entail, after prohibitions against altering the order of succession, alienation, and contracting debt, proceeded thus,-" But with and under this exception, that it shall be lawful to " the institute and to the heirs of tailzie," notwithstanding the limitations before written, to provide their younger children with three years free rent of the lands"; "but declaring that, where such power has been exercised, it shall not be lawful or in the power of any subsequent heir of tailzie to burden the lands and estate with new provisions until the former provisions are satisfied"; and declaring further, that no adjudication or other legal execution shall lie or be competent against the fee or property of the said lands and estate, or any part thereof, for payment of such provisions to younger children; nor shall it be lawful to nor in the power of any of the said heirs of tailzie to sell or dispone the said lands and estate, or any part thereof, for payment of the said children's provisions." The validity of the entail having been challenged, on the ground that the exception from the fetters, to the extent of making provisions to children, left an heir of entail to that extent a fee-simple proprietor able to burden the estate, and that the declaration [13] that the estate should not be adjudgeable was ineffectual to stay diligence to recover debt, held that the entail was valid. (In the Court of Session, 19th July 1870, ante, vol. viii. p. 1049.) On 14th July 1838 the late Murdo Mackenzie, formerly of Ardross, then fee-simple proprietor of Dundonnell, in the county of Ross, executed a deed of entail in the form of a procuratory of resignation, whereby he granted procuratory for resigning the lands of Dundonnell and others into the hands of his immediate lawful superiors for new infeftment of the same, to be granted to Hugh Mackenzie, his eldest son, as institute, and the heirs whomsoever of his body; whom failing, to Kenneth Mackenzie, his second son (the respondent in this appeal) and the heirs whomsoever of his body; whom failing, to certain other persons. This deed was recorded in the Register of Taillies on the 8th of December 1838, being several years before the death of the maker, Murdo Mackenzie, which occurred on 9th May 1845. On this event his eldest son, Hugh Mackenzie, succeeded under the procuratory to the lands of Dundonnell and others, and completed a title thereto, by infeftment, conform to instrument of sasine dated 15th, and recorded in the General Register of Sasines at Edinburgh 23d May 1845. Besides the lands of Dundonnell and others, which he possessed under the procuratory, Hugh Mackenzie was, in and prior to the year 1854, likewise in possession of the lands of Strathnashalg and Mungusdale, also situated in the county of Ross, under fee-simple titles. On 4th July 1854 Hugh Mackenzie executed a trust-disposition and settlement, whereby he appointed W. F. Skene, W.S., Edinburgh, and Mary Mackenzie, his (Mr. Mackenzie's) daughter, now Mrs. Catton, one of the appellants, as his trustees, and conveyed to them (1) the said lands of Strathnashalg and Mungusdale nominatim; as also (2) "all and sundry lands and heritages, goods and gear, debts and sums of money, and in general the whole estate and effects, heritable and moveable, real and personal, of what kind or nature soever, or wheresoever situated, presently belonging, or which shall pertain and belong " to him at the time of his death, for the uses and purposes therein set forth. These purposes were (1) for payment of debts, (2) that the trustees should hold the residue of his whole heritable and moveable estate, particularly and generally conveyed to them, in trust for behoof of the appellant, Mrs. Catton, until she reached twenty-five years of age or was married, and (3) on the occurrence of either of these events the trustees were directed to convey to her, exclusive of the jus mariti of any husband she might marry, the residue of the whole heritable and moveable trust-estate. Hugh Mackenzie died on 30th July 1869. In December 1869 the appellants, Mrs. Catton and her husband, raised the present action, concluding for declarator (1) that the deed of entail of 1838 "is not a valid deed of entail in terms of the Act 1685, c. 22, but is invalid and ineffectual in regard to all and each or one or other of the prohibitions against altering the order of succession, against sales and alienations, and against the contraction of debt, therein contained; Or, otherwise, that the prohibitory, irritant, and resolutive clauses contained in the said deed of entail are not, or one or other of them is not, directed against, and were not or was not binding upon the said Hugh Mackenzie, the institute or disponee under the said deed of entail, and that, in either event, in virtue of the Act 11 & 12 Vict. c. 36, he, the said Hugh Mackenzie, at and from the date thereof, viz. the 14th day of August 1848, held the said lands and estate of Dundonnell and others free from one and all of the said prohibitions, and clauses irritant and resolutive, and [14] subject to his deeds and debts; (2) that the said Hugh Mackenzie did, by his foresaid trust-disposition and settlement, validly and effectually dispone and convey to his testamentary trustees the foresaid lands of Dundonnell and Aultchonier." The other conclusions of the summons were subsidiary. The procuratory of resignation which constituted the deed of entail, after narrating the resignation to be made of the lands of Dundonnell in favour of Hugh Mackenzie, as institute, and the heirs substituted to him, declares that this was to be " with and under the restrictions and limitations under-written: viz. with and under this special limitation and restriction, that it shall be nowise lawful to, or in the power of, the said Hugh Mackenzie or his heirs, nor any of the heirs and substitutes above specified, to innovate, alter, or infringe this present tailzie, or the order of succession hereby established, or to do or grant any other act or deed that may infer any alteration, innovation, or change of the same, directly or indirectly. . . . And with and under this limitation and restriction also, that it shall not be lawful to, nor in the power of, the said Hugh Mackenzie, or the heirs of entail above specified, or any of them, to sell, dispone, alienate, burden, dilapidate, or put away the lands and others above-written, or any part thereof, either irredeemably or under reversion, or to contract debts, grant bonds or any other securities, or to do any act, civil or criminal, that shall be the ground of any adjudication, eviction, or forfeiture of the aforesaid lands and estate, or any part thereof, or anyways to affect or burden the same; nor shall the said lands and estate, nor any part thereof, be affectable or subject to any terce to the wife of the said Hugh Mackenzie, or to the wives of the heirs and substitutes above written, or any of them; but with and under this exception from the foresaid limitations, that it shall be lawful to and in the power of the said Hugh Mackenzie, and the heirs of tailzie before specified, as they come in course to succeed to the said estate, to provide their wives in a liferent locality of any part of the lands and estate before written, not exceeding one third part of the free yearly rent of the said lands and estate, after payment of all public burdens, liferent provisions, and the yearly amount of other burdens of whatsoever nature affecting the same, and provided the said wives shall not be anyways infeft and secured in any yearly interest or annuities to be uplifted furth of the said estate, or any part thereof, in lieu or consideration of the liferent provisions hereby allowed to be granted, but shall be infeft in the said lands themselves by way of locality, so as that the liferenters may uplift and receive the rents, and the succeeding heirs of tailzie may not be bound for payment thereof, or the fee and property of the said lands and estate afterwards affected therewith; but declaring that it shall be noways lawful to include or comprehend. in such liferents the mansion-house of Dundonnell, or enclosures adjacent thereto; and with and under this farther exception, that it shall be lawful to the said Hugh Mackenzie, and to the heirs of tailzie above specified, notwithstanding the limitations before written, to provide their younger children with three years' free rent of the said lands and estate; but declaring that, where such power has been exercised, it shall not be lawful or in the power of any subsequent heir of tailzie to burden the lands and estate with new provisions until the former provisions are satisfied and paid, and in case a part thereof shall be paid, then it shall be lawful to the said heirs of tailzie to provide their younger children in so far as the prior provisions are extinguished, so that the lands and estate shall at no time be burdened with provisions to younger children to the extent of more than three years' free rent thereof, after deduction of all other burdens; and declaring further, as it is hereby ex-[15]-pressly provided and declared, that no adjudication or other legal execution shall lie or be competent against the fee or property of the said lands and estate, or of any part thereof, for payment of such provisions to younger children, nor shall it be lawful to nor in the power of any of the said heirs of tailzie to sell or dispone the said lands and estate, or any part thereof, for payment of the said children's provisions." The pursuers (appellants) maintained-1. That upon a sound construction of these clauses it followed "(1) that, consistently with the provisions of the entail, the institute and the heirs-substitute respectively might contract debt, by way of provisions to younger children, to an extent at least equal in amount to three years' free rent of the estate; (2) that, consistently with the provisions of the entail, the institute and heirs-substitute respectively might burden the estate with such provision debt; (3) that, consistently with the provisions of the entail, the creditor in right of such debt might, under the powers of sale in his bond, sell the estate, or part thereof, for payment of such debt; (4) that, consistently with the provisions of the entail, the creditor in right of such debt might adjudge the estate for payment thereof, or, at all events, that the creditor in right of such debt contracted by the institute might do so; and (5) that, consistently with the provisions of the entail, the institute might himself sell the estate, in whole or in part, for payment of such debt." * 2. The pursuers further maintained that the resolutive clause was not directed against Hugh Mackenzie, the institute, in respect that the word "person" therein could not be held to include him, seeing that the right to the estate was declared to devolve upon "the next heir of tailzie,"-words which could not apply to the first substitute. 3. The irritant clause was objected to on the ground that the words "debts and deeds " therein did not include or apply to alterations of the order of succession. The pursuers pleaded;-(5) The said procuratory or deed of entail being an invalid and ineffectual entail, the lands therein contained were, in terms of the 11th & 12th Vict. c. 36, liable to the deeds and debts of the said Hugh Mackenzie. (7) In virtue of the directions and clause or clauses of conveyance contained in the said trust-disposition and settlement, the pursuers are entitled to decree in terms of the second, third, and fourth conclusions of the libel. Defences were lodged for Kenneth Mackenzie (the respondent), in which he pleaded that he was entitled to absolvitor, in respect (1) That the deed of taillie of 1838 was a valid and effectual strict entail. (2) That even on the assumption that the entail was defective, as alleged by the pursuers, the trust disposition and settlement of the late Mr. Mackenzie did not operate as a conveyance of these estates, or interfere with the taillied destination thereof. (3) That Mr. Mackenzie did not intend to convey the estate of Dundonnell by the said trust-disposition and settlement, and that he did not thereby convey that estate. On 7th June 1870 the Lord Ordinary (Mackenzie) pronounced this interlocutor:--"The Lord Ordinary having heard parties' procurators, and considered the closed record, and deed of entail libelled on, Repels the pleas in law for the pursuers, assoilzies the defender from the whole conclusions of the summons, and decerns: Finds the Lindsey v. Oswald, ante, vol. iii. H. of L. p. 17; Hay Newton v. Hay Newton, May 9, 1870, ante, vol. viii. H. of L. p. 75; Earl of Kintore v. Lord Inverury, April 16, 1863, ante, vol. i. H. of L. p. 33; Martin v. Kelso, 1857, 2 Macq. 556; Cathcart v. Cathcart, 1831, 5 W. and S. p. 344; 11 & 12 Vict. c. 36; Howden v. Rocheid, July 16, 1869, ante, vol. vii. H. of L. p. 110. pursuers liable in ex-[16]-penses, of which allows an account to be given in, and remits the same, when lodged, to the Auditor to tax and to report." [17] The pursuers having reclaimed, the First Division being of opinion that it was desirable to avoid the question of the validity of the entail, in which [18] substitute * 66 NOTE.-The pursuer, Mrs. Mary Mackenzie Catton, and her husband, have raised the present action to have it found and declared that the deed of entail under which the deceased Hugh Mackenzie, the institute, was infeft in and held the lands and estate of Dundonnell, is invalid and ineffectual, and that the said lands and estate were conveyed and carried by Mr. Mackenzie's trust-disposition and settlement, under which Mrs. Catton is now the sole beneficiary. 66 The pursuers maintain that no limitation was imposed by the deed of entail on Hugh Mackenzie, the institute, as to the mode in which, or the time when, he might have granted and made payable the provisions to younger children mentioned in the entail, and that the said Hugh Mackenzie, the institute, was not prohibited from contracting, but was permitted to contract debt for children's provisions, for which the entailed estate of Dundonnell might be adjudged during his life or after his death. And further, that the said Hugh Mackenzie was permitted by the entail to sell the said estate for payment of such children's provisions. "The prohibitory clause is directed both against the institute, Hugh Mackenzie, and the heirs and substitutes of tailzie, and prohibits in full and distinct terms alteration of the order of succession, sale, alienation, contraction of debt, the doing of any act which shall be the ground of any adjudication, eviction, or forfeiture of the estate, and the affecting or burdening the same in any way. This is not disputed by the pursuers. But they maintain that these prohibitions are inserted in the entail with and under the exception therefrom that it shall be lawful to the said Hugh Mackenzie, and to the heirs of tailzie above specified, notwithstanding the limitations before-written, to provide their younger children with three years' free rent of the said lands and estate,' and that while there is a declaration in the deed of entail directed against the heirs of tailzie, there is no declaration directed against Hugh Mackenzie, the institute, that it should not be lawful to sell or dispone the entailed estate, or any part thereof, for payment of the said children's provisions. The pursuers contend that this clause with reference to younger children's provisions derogates from the prohibitory clause, and that it was competent to Hugh Mackenzie, the institute under it, to have granted provisions to his younger children, payable not only on his death, but during his lifetime, and to have burdened the entailed estate with these provisions, and also to have sold it for payment of them. 66 The Lord Ordinary can see no sufficient grounds on which the construction of the clause as to children's provisions contended for by the pursuers can be maintained. He considers that this clause merely conferred power upon the institute and heir of entail to grant provisions of three years' free rent to those of his children who at his death should occupy the position of younger children. The term 'younger children' in such a clause excludes, he thinks, the interpretation that such provisions could be granted so as to be prestable during the life of the institute. These words, according to their ordinary construction, mean children who do not take the entailed estate, whether their position in the family be older or younger than that of the heir succeeding thereto. The term 'younger children,' according to its true construction in the deed of entail, therefore applies, and can only apply, to those who answer the description at the death of the institute or heir in possession-Dickson, 12th June 1854, 1 Macq. 729. A power to grant provisions to younger children of so many years' free rent is an ordinary clause in deeds of entail. The mode of exercising the same is also well known. The provisions made in virtue of it are invariably prestable only upon and after the granter's death. The institute, or heir in possession, could do with the rents accruing during his life as he pleased. No empowering clause was required to enable him to do so. But at his death all right as proprietor under the deed of entail ceased, and in order to enable him to provide for his younger children out of the rents falling due after his death an express power in the deed of entail was required prior to the passing of the Aberdeen [17] Act. The clause in the deed of entail in question is a clause conferring such power. Indeed the clause expressly speaks of the right conferred as a 'power'; and its whole tenor |