Dating my subordinate
In regard to matters of arms, the Lord Lyon has a ministerial power; and unless he invades the rights of others, this Court has no jurisdiction to review his proceedings. 3d, That "the badge of Nova Scotia on a canton" was not a mark of cadence, and that to assign it as the only difference in the coat of arms, was not a sufficient compliance with the statute.
There was never a case where the Court entertained an action of this nature, unless it was set forth that the act complained of was to the prejudice of the party bringing it. JOHN CUNYNGHAM of Caprington and Lambrughton was, in 1669, created a Baronet of Nova Scotia, by patent taken to the heirs-male of his body.
As to the arms to be given Mr Murray, when he applies for them it was time enough to answer this when he did so; and as to the illuminations, they are used for the better direction of painters, or carvers, many of whom are not sufficiently instructed in the science of heraldry without illuminations.
Upon advising the cause, the Lord Ordinary pronounced this interlocutor: 13th February 1776, "Finds, that it is admitted by the procurator-fiscal that William Murray, the raiser of the advocation, is the representative of the ancient family of Murray of Touchadam: Finds it proved, from the seals produced in process, that the Murrays of Touchadam, the predecessors of the said William Murray. Macdonell of Glengarry brought an action in the Court of Lyon, asking for annulment ("reduction") of a matriculation of arms to Macdonald of Clanranald.
The statutory basis for the jurisdiction of the Lyon King of Arms consists mainly of three Acts of the Scottish Parliament, of 1587, 15. (He grants them now to some who were: in possession of them of old.). Pleaded at discussing for the Lyon:the advocation is incompetent; his jurisdiction, as to arms, is privative and independent.
(The Act of the British Parliament of 1867 mainly reorganized the Court and set the salaries of the Scottish officers of arms). But the gentlemen answer, that Lords at the beginning, having been only Barons, and in regard of the considerable interest they hid in their respective shires, being commissionate from the small barons and freeholders to represent them in Parliament, they, because of that credit, got first the denomination of Lords, without any patent or creation; and, upon the matter, were nothing but Barons: and so what is due to them is also due to the other, they originally not differing from the rest by any essential or superior step of dignity. REPLIED, Whatever was their rise, the other Barons have clearly acknowledged a distinction now; in so far as they have renounced their privilege of coming to Parliaments by the 113 act in 1587; and the distinction being made, and their privileges renounced, by the small Barons in the Parliament 1427. See also Morison's Dictionary, 7656; Decisions of the Court of Session. But Lord Hailes, 30th November 1774, "Repelled the declinature, and sustained the jurisdiction of the Court of Session: Found the advocation competent in respect that the question at issue was a civil cause; neither is there any statute pointed out by the pursuer whereby the radical or consuetudinary jurisdiction of the Court of Session in matters of this sort, stands abolished;" and, 26th July 1775, the Lords adhered.
It was accordingly found, unanimously, "That the tailzier having, in his own life-time, raised the rent beyond £.1000 Sterling yearly, the clause restraining the heirs of entail from increasing the rent of the tailzied estate beyond that extent was thereby virtually revoked by the tailzier himself, and is now at an end." The entail likewise contained the following clause And that the heirs of tailzie foresaid, succeeding in virtue hereof, shall be bound to use the name and title of Moir of Leckie, and that alone, exclusive of every other name and title; and to carry the arms of Moir of Leckie, without any addition, diminution, or alteration of any kind." After the action came into Court, it was discovered that there were no arms of Moir of Leckie matriculated in the Lyon-office. As to the abstract principle, it is clear, that wherever there is a competition as to the right to armorial bearings, an appeal lies to this Court by advocation, and also by reduction, which is the proper remedy when the arms are already granted; or even if the Lyon refuse arms to a party entitled, this Court has jurisdiction to give redress. A clause in a private Act of Parliament bore"Whereas the senior heir of line of the family has succession to all their indivisible honours, and specially the right to bear and use their arms and supporters -Be it enacted, that the said rights and arms are hereby reserved entire to such senior heir of line and that the said D being a younger branch of said family, he and his heirsmale, in taking the name of C, shall do so with a difference or mark of cadence in the arms applicable to such younger branch." D was a baronet, and the heir-male of the family.
The pursuer being the heir, alioqui successurus only in one fourth of the estate, as representative of one of four heirs-portioners, it was likewise doubted, even if there had been such arms, whether they were assignable to heirs of entail, or whether they necessarily descended, jure sanguinis, to Mr. The following conclusion was therefore added to the summons: That the said pursuer, and the heirs of entail foresaid, are under no restraint with regard to the carrying of any particular arms, as the arms of Moirs of Leckie, and are exposed to no challenge for disregarding the clause in the entail ; or, at least, that the pursuer and each succeeding heir, shall be at liberty to obtain arms from the Lyon-office, and, whatever they may be, to wear and use them. On the other hand, it was stated for the pursuer, That he wished, as far possible, to comply with the entailer's intention; but that he was advised, that even where there were arms in a family, they could not descend to a tailzied succession, without certain distinctions. The Lyon Court is in fact just on the same footing as with other Inferior Courts. The Lord Lyon assigned to him the family arms and supporters, "with the badge of Nova Scotia on a canton," for a difference.
[sections 3 and 4 repealed by the Scottish Laws Revision Act of 1906] (5) ITEM Last that becaus the Jurisdictioun of the lyoun king of armez is nocht able to execute dew punishment vpoun all personis that salhappin to offend in the office of armezz Thairfoir our souerane lord with auise of his estaitis in parliament Ordanis and commandis all ciuile Magistratis as thay salbe requirit be the king of armez or ony vtheris in his Name To concur with him To sie the actis maid in his fauouris of his office put to dew executioun in thair iurisdictiounis As aslua To concur with him to the pvneisment and incarceratioun of all sic personis as sall vsurp the bearing of his Maiesties armes efter dew depriuatioun vnder the pane of rebellioun and putting of the disobeyaris to his hienes horne With certificatioun to thame and thay failye being requirit lettrez salbe direct simpliciter to put thame to the horne (italics indicate sections repealed by the Scottish Laws Revision Act of 1906) Our Soveraigne Lord Considering that albeit by the 125 Act of the 12 Parliament holdin by his Maiesties grandfather in the yeir 1592 the usurpation of Armes by any of his Maiesties leidges without the authority of the Lyon King of Armes is expressly discharged And that in order therto Power and Commission is granted to the Lyon King of Armes or his Deputes to visite the whole Armes of Noblemen Barrons and Gentlemen and to matriculate the same in their registers and to fine in One Hundreth pounds all others who shall unjustlie usurp Armes who should bear none and many of these who may in law bear have assumed to themselvis the Armes of their cheiff without distinctions or Armes which were not caried by them or their predicessors Therfore His Maiestie with advice and consent of his Estates of Parliament Ratifies and Approves the forsaid Act of Parliament And for the more vigorous prosecution therof Doth hereby Statute and Ordain that lettirs of publication of this present act be direct to be execute at the mercat cross of the heid Burghs of the Shires Stewartries Bailliaries of Royaltie and Regallitie and Royall Burrowghs chargeing all and sundry [Prelates] Noblemen Barons and Gentlemen who make use of any Armes or Signes armoriall within the space of one yeir aftir the said publication to bring or send an account of what Armes or Signes armoriall they are accustomed to use and whither they be descendants of any familie the Armes of which familie they bear and of what Brother of the ffamilie they are desended With Testificats from persones of Honour Noblemen or Gentlemen of qualitie anent the verity of their haveing and useing those Armes and of their descent as afoirsaid to be delivered either to the Clerk of the Jurisdiction where the persones duells or to the Lyon Clerk at his office in Edinburgh at the option of the party upon their receipts gratis without paying any thing therfore Which Receipt shall be a sufficient exoneration to them from being obleidged to produce again to the effect that the Lyon King of Armes may distinguish the saids Armes with congruent differences and may matriculat the same in his Bookes and Registers and may give Armes to vertuous and well deserving Persones and Extracts of all Armes expresssing the blasoning of the Armes undir his hand and seall of office [For which shall be payed to the Lyon the soume of Tuentie merkes by every Prelat and Nobleman, and Ten merks be every Knight and Baron, and Five merkes by every other persone bearing Armes, and noe more:] And his Maiestie hereby Dispensses with any penalties that may arise be this or any preceiding act for bearing Armes befor the Proclamation to be issued hereupon And it is Statute and Ordained with consent forsaid that the said Register shall be respected as the true and unrepeallable rule of all Armes and Bearings in Scotland to remain with the Lyon office as a publict Register of the Kingdome and to be transmitted to his Successors in all tyme comeing And that whosoevir shall use any other Armes any manner of way aftir the expireing of year and day from the date of the Proclamation to be issued hereupon in maner forsaid shall pay One Hundred pounds money toties quoties to the Lyon and shall likewayes escheat to his Maiestie all the moveable Goods and Geir upon which the saids Armes are engraven or otherwise represented And his Maiestie with consent forsaid Declaires that it is onlie allowed for Noblemen [and Bishopes] to subscrive by their titles And that all others shall subscrive their Christened names or the initiall letter therof with there Sirnames and may if they please adject the designations of their Lands prefixing the word Of to the saids designations And the Lyon King at Armes and his Brethren are required to be carefull of informeing themselvis of the contraveiners heirof [and that they acquaint his Maiesties Councill thewith, who are hereby impowered to punish them as persones disobedient to, and contraveiners of the Law:] It is likewise hereby Declaired that the Lyon and his Brethren Heraulds are Judges in all such causes concerning the Malversation of Messingers in their office and are to enjoy all other priviledges belonging to their Office which are secured to them by the Lawes of this Kingdome and according to former practice. The Gentlemen found on the Interdictum uti possidetis : the Lyon says, it is but vetustas erroris, and an usurpation. The tradition was, that most of the old records of arms were destroyed by fire ; there are, however, in the office several old manuscript books of heraldry which are of great use in matriculation.
The Lyon's reason is, because, by an express letter of his Majesty's, none underl the dignity of a Lord must use supporters. Mr Murray presented bill of advocation, which was past.
ABOUT the same time, in June, 1673, I heard of a process some Barons and Gentlemen had intended against my Lord Lyon, to hear and see it found and declared that he had done wrong in refusing to give them forth their coats of arms with supporters, whereof they and their predecessors had been in possession past all memory, and never quarrelled till now; and, therefore, that he might be decerned to immatriculate them so in his register, and give them forth an extract; conform, as is provided by the late act of Parliament in 1672. A summons before the Lyon Court having been brought at the instance of Procurator-Fiscal against Murray of Touchadam, concluding for payment of the statutory penalty for wearing arms though not matriculated, and for confiscation of the moveables upon which they were engraved; the Lyon Court gave decreet in terms of the libel.
Some of the Judges at first doubted, whether succeeding heirs could raise the rental above the sum it amounted to at George Moir's death ; but it was observed, That even if this had clearly been his intention, yet, as limitations on property were unfavourable, and as the clause did not contain that precise prohibition, it ought not to be inferred by implication. Lord Pitmilly A difficulty arises from the way in which the Lord Ordinary's interlocutor is framed, reserving all questions of title.
The entail contained no clause obliging the heirs in succession to diminish the rental ; and no heir in expectancy could have an interest to insist on his doing so. I apprehend, however, that the question of competency which we have to decide is not an abstract point; but whether the particular summons before us be competent.
20th December 1776, the Lords refused a reclaiming petition without answers, and adhered. The Laird of Dundas complained to the Lyon, That Dundas of Fingask had got from the Lyon's predecessor, in the year 1744, a grant of an armorial bearing, to which he and his predecessor had right many ages before. In 1791 he executed a deed, where, after making some alterations, but none on this clause, "he approves of the foresaid deed of entail, in all the other articles and clauses thereof." At the time, however, when he executed this last deed, the rental of the estate exceeded £. had thereby revoked the above-cited clause; and that, therefore, the pursuer should be at liberty to keep up and augment the rent of the entailed estate, as freely as if it had not been inserted. There is no conclusion in favour of his right to these arms; so that, were he to obtain decree in terms of his libel, he could take nothing under it.