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Murray of Touchadam have been actually matriculated in the Lyon register or not : that William Murray was not in mala fide to continue the use of the armorial bearings which his predecessors enjoyed ; and that there is no sufficient warrant for the penal conclusions of the original summons: and upon the whole assoilyies the said William Murray, and decerns; reserving always to the Procurator-fiscal to charge the said William Murray to matriculate his armorial bearings in the registers of the Lyon Court, in terms of the statute 1672, and to pay the fees exigible from a baron, and no more, as the statute bears: and also reserving to the officers of Court to exact whatever further sum may be judged reasonable, in case the said William Murray shall incline to be furnished, not only with a. On the other hand, it was maintained for the defender, That the act 1672, by declaring that the Lyon record should "be respected ass the true and unrepealable rule of all arms and bearings in Scotland," conferred a privative jurisdiction in such matters on the Lord Lyon; and that even if this Court had jurisdiction in competition of arms, the pursuer did not set forth his right to those matriculated by the defender. These relate to two separate and distinct matters,one regarding messengers, and the other, which we have to do with here, relating to armorial bearings.
blazoning, in terms of the art, but also with a painting in water colours and other ornaments, these being things which the Lord Lyon is not bound by law to provide without a suitable remuneration." The Lords, on advising a reclaiming petition and answers, 4th December 1776, adhered to the interlocutor of the Ordinary, and refused the petition, except as to the fees exigible on matriculations; as to which, remitted to the Ordinary to hear parties further, and to do as he should see cause. The power of granting ensigns armorial is part of the royal prerogative, but every thing belonging to that power has been given by sundry statutes to the Lord Lyon's grant.
In reasoning, the Lords made a distinction betwixt a right to wear arms and matriculation. His power to new armorial bearings is merely discretionary and ministerial, and with that this Court cannot interfere.
in the first, immemorial possession would presume a grant even from the Sovereign himself to wear them; and many families in Scotland had right to arms before the Act 1592 ; so did not derive right to wear them from the Lyon in virtue of that Act of Parliament. George Moir, in 1787, executed an entail of the estate of Leckie, with strict irritant and resolutive clauses. But if the Lord Lyon should grant to one person arms which another is entitled to bear, and should refuse to give redress, there could be no doubt of the jurisdiction of this Court to entertain an action at the instance of the party to have his right declared, as this would involve a question of property, which a right to bear particular ensigns armorial undoubtedly is.
They passed to Alexander Cuninghame, afterwards Sir Alexander Dick, Bart.$ and, at his death, to his eldest son, Sir William Dick.
The surplus rent, which he himself stipulated, may no doubt be levied by the Pursuer; but were he to renew the current leases, without confining the rent of the whole estate to £.1000, as he would then, by a voluntary act of his own, be violating the terms of the entail he would be guilty of an act of contravention. After a good deal of reasoning, the Court came to be of opinion, That the clause was to be held as discharged by the entailer, rebus ipsis et factis. We ought therefore to repel the defence so far as founded on defect of jurisdiction, and remit to the Ordinary [Lyon] to hear on the objections to the title and libel.
were in public possession of a coat armorial in 15, long prior to the Act of Parliament 1592: finds that this public possession has been continued in the family of the Murrays of Touchadam unto the present times, with respect to charge, as well as with respect to field: finds, that it must be presumed, since no evidence is offered to the contrary, that the colours of field and charge were the same anciently as now: finds it proved, by the evidence produced, or referred to, and not contradicted, that, ever since the year 1660, the family of Murray of Touchadam has been wont to give or bear the supporters, crest, and device which the said William Murray now gives or bears: finds, that such long possession infers an antecedent right, or excludes all challenge on account of defect of such antecedent right : finds,that although the Procurator-fiscal has been called upon, by an interlocutor of the Ordinary, specially to set forth whether it is proposed to matriculate the arms of William Murray of Touchadam as of one entitled to bear arms on matriculation, or to give arms to him as a well-deserving person, in terms of the Act 1672; and of the former, is proposed, what are the arms which Murray of Touchadam ought to bear on matriculation ;yet that he refuses to make any answer to this question, which is plain, and can be answered by any one, versant in the science of heraldry : Therefore, and upon the whole, finds, That the representative of the family of Touchadam was entitled to be matriculated, in terms of the statute 15, for the armorial bearings whereof William Murray of Touchadam, raiser of the advocation, is in possession. It was pleaded in limine that the action was incompetent before the Court. Lyon), before answer as to the pursuer's title, made avizandum with the cause to the Lords of the Second Division of the Court, and ordained parties' procurators to prepare informations thereon as to the competency of the action in this Court." Informations were accordingly lodged, in which the pursuer pleaded, 1.
And having considered the original precept or summons at the instance of the Lord Lyon and the Procurator-fiscal of Court against the said William Murray, finds, That the conclusions thereof are altogether penal ; and having considered. that prior to 1672, the Lyon had no jurisdiction in matters of arms, the cognisance of which belonged solely to the Privy Council, and the Supreme Civil Court, which had also the power of reviewing all the proceedingsof the Lord Lyon; 2.
Oure Souerane Lord and thrie estaitis of Parliament Considering how of late yeiris thair is enterit in the office of armes sindry extraordinar masseris and pursevantis and a verie greit nowmer of messingeris throw importune suit of diuerse pairtijs in sic a confusit and incertane maner that it is becum doubtfoull quha ar admittit and how and quha deprived or not or quhidder thair cautioneris be levand or depairtit this lyff And seing thair wes alwayes in tymes of best governament a certane nowmer of officiaris of armes IT is thairfoir thocht expedient statute and ordanit That in tyme cuming thair salbe onlie tua hundreth personis weirand and beirand our souerane lordis armes in the haill boundis of the realme of scotland In quhilk nowmer lyoun king of armes and his brether the ordiner herauldis masseris and pursevantis salbe comprehendit being in nowmer xvij personis and the remanent to be diuidit amangis the remanent schirefdomes of the realme in maner efterfollowing That is to say within the schirefdome of orknay and zetland iiij within the schirefdome of Inuernes and cromartie x within the schirefdome of Narne ij within the schirefdome of elgin and foress v within the schirefdome of Banff iiij within the schirefdome of aberdene xij within the schirefdome of kincardin iiij within the schirefdome of forfare x within the schirefdome of fyff x within the schirefdome of kinross j within the schirefddome of clkamannan ij within the schirefdome of perth and stewartries of menteyth and stratherne xij within the schirefdome of striuiling v within the schirefdome of Dunbartane iiij within the schirefdome of lynlythgw iiij within the schirefdome of Edinburgh principall xxiiij within the schirefdome ofedinburgh and constabularie of hadingtoun iiij within the schirefdome of berwick iiij wi within the schirefdome of Roxburght viij within the schirefdome of selkirk ij within the schirefdome of peibles iij within the schirefdome of lanerk x within the schirefdome of renfrew iiij within the schirefdome of Ergile and tarbert iiij within the schirefdome of bute ij within the Schirrefdome of air xij within the schirefdome of wigtoun iiij within the schirefdome of Dumfries and stewartries of kirkcudbricht and annerdaill xij And to the effect that the ordour now appoyntit may tak the better effect Oranis and commandis lioun king of armes That he onnawyse ressaue ony maner of personis to the office of messingerie in tyme cuming except it be in the place of ane of the personis that salbe thocht meit to be retenit efter the first day of nouember nixtocum to be his deceise or deprivatioun Notwithstanding ony precept or warrand gevin or to be gevin in the contrair Quhairin gif he failye he sall incur the indigniatioun of our souerane lord and the persoun saa admittit salhave na place to vse and exerce the said office nor his executionis quhatsumeuer sall nawyse be valide in Judment or outwith .... for all complaintes to be maid to lyoun king of armes vpoun the defaultis of officaris in tyme cuming he sall sett twa peremptour [Courtes] in the yeir to be haldin in Edinburgh vpoun the sext day of maij and the sext day of november gif thai be lauchfull and failyeing thairof the nixt lauchfull dayes and sall summound the pairtie complenit vpoun be his precept conteneand the cause of the complaint relevantlie libellit and cause summound the personis accusit and his cautioner on xv dayes warning and deliver thame copies Concluidand incaise the officiar be fund culpable not onlie his deprivatioun fra the office Bot his cautioner to Incur the pane quhairof the thrid pairt sall appertune to the said lyoun king of armes for his laubouris And that his actis and decreitis be formally writtin and registrat and patent to all our souerane lordis lieges havand interesse and siclike lettres conforme to pas thairvpoun as vpoun the decreitis of quhatsumeuer Juges ordiner within this realme (1) Oure souerane Lord and estaitis of this present parliament Considdering the greit abuse that hes bene amongis the leigis of this realme in thair bearing of armes vsurpand to thame selffis sic armes as belangis nocht vpon thame Sua that it can nocht be distinguischit be thair armes quha ar gentlemen of blude be thair antecessouris Nor yit may it be decernit quhat gentlemen ar descendit of noble stok and linage ffor remeid quhairof his hienes with aduise of the saidis estaitis hes evin and grantit and be this present act gevis and grantis full power and commissioun to lyoun king of armes and his brether herauldis To visite the haill armes of noblemen baronis and gentlemen borne and vsit within this realme And to distinguische and discerne thame with congruent differences and thaireftir to matriculate thame in thair buikis and Registeris And to put inhibitioun to all the commoun sort of people nocht worthie be the law of armes to beir ony signes armoriallis That nane of thame presume or tak vpoun hand to bear or vse ony armes in tyme cuming vpoun ony thair insicht or houshald geir vnder the pane of the escheating of the guidis and geir sa oft as thay salbe fund contravenand this present act quhaireuir the same armes salbe found grawin and paintit to our souerane lordis vse And lykwayis vnder the pane of ane hundreth pundis to the vse of the said lyoun and his brether herauldis And failyeing of payment thairof That thay be incarcerat in the narrest prissone Thairin to remane vpoun thair awin chargis during the plesur of the said Lyoun [section 2 repealed by the Scottish Laws Revision Act of 1906] (3) ITEM In consideratioun of the greit abuse of messingeris and officiaris of armez within this realme quhilkis for the maist pairt ar nocht qualifiet for vsing of the said office Being admittit be extraordinar and Inoportune suittis Be quhais abuse the leigis of this realme ar heavelie trublit and opprest Thairfoir It is statute and ordanit that the said king of armez be aduise of the loris of counsaill and sessioun deprive and discharge all sic officiaris and messingeris of armes as he sall find vnworthie of the office and tak sicker souirtie of the remanent for thair obseruatioun of thair Iniunctionis in tyme cuming With power to the said king of armez with aduise of the saidis lordis to enjoyne further necessar Iniunctionis to the saidis messingeris for keping of guid ordour in thair offices ... DUPLIED, that act is introduced in their favours, and nowise -debars them ; but allenarly dispenses with their absence, and the penalty they incurred thereby, &c. And, by interlocutor of date 30th November 1774, the Lord Hailes, Ordinary, "Ordained, the pursuer to set forth,1mo, Whether there are, in the Lyon Office, any register or authentic books of armorial bearings, of a date prior to the statute 1672 ; 2do, Whether there is in the Lyon Office a connected series of registers from 1672 unto this present day ; and, if not, what chasms there are in the register, and whether there is evidence that any volume of such register is lost or amissing; 3tio, To set forth whether it is proposed to matriculate the arms of the defender, as of one entitled to bear arms in matriculation, or to give arms to him as a well-deserving person, in terms of the Act 1672 ; and, if the former is proposed, what are the arms which Murray of Touchadam ought to bear on a matriculation: And, whereas it is said for, the pursuer, that one reason for demanding larger fees from a gentleman than the sum of ten merks, specified in the statute 1672, is, that an expense must be incurred for illuminating the arms on the margin of the instrument of matriculation ; the Lord Ordinary requires the pursuer, 4to, To explain the use and intention of such illumination, when it is considered that the science of heraldry has its own terms of art, precise and fixed, and which may serve as a certain directory to all painters, engravers, and others, for properly delineating the arms of every family respectively, on wheel-carriages, plate, and household furniture: Moreover, the Lord Ordinary appoints the defender to lodge, in the hands of the clerk to the process, the most ancient seals, impressions of seals, or other evidence that he is possessed of, or can procure, for proving, that, before the 1592, or before the 1672, the Murrays of Touchadam did actually bear ensigns armorial." In answer to these questions the pursuer did set forth, that there was no public authentic record of arms in the Lyon office prior to the year 1672.
[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.
They thought the plea, so far as concerned the matriculation-fees, not improper; as the statute was so ancient, and the practice for at least twenty years against it, though not uniform. Dundas disputed the competency; but this plea was soon abandoned, and on the merits the Lords, 22d January 1762 pronounced this interlocutor: " Finds, That George Dundas of Dundas, heir-male of James Dundas of that ilk, who was forfeited in the year 1449, but afterwards rehabilitate, has the sole right to use and bear the coat of arms belonging to Dundas of that ilk, as matriculated in the register, authenticated by the subscription of Sir James Balfour then Lord Lyon ; and find, That the coat of arms obtained in the 1744, by Thomas Dundas, defender, from the late Lord Lyon,, was obtained by obreption, and that he has no right to use the same; and therefore ordain the said coat of arms to be recalled and expunged from the Lord Lyon's books, reserving to the said Thomas Dundas to apply for a new coat of arms, as accords: Find the defender Thomas Dundas of Fingask, and Thomas Dundas of Quanal, liable to the pursuer in the expense of the complaint before the Lord Lyon's court, and in the expense of this process of advocation," &c. It does not prohibit the entailer from maintaining the rental as he found it ; and it would not be the prohibition in the entail, but a new and a different one, which would restrain the heir in possession from increasing it still farther, at the expiration of the current leases. Moir, revoking certain clauses of his entail, and approving of all the others, at a period when he had raised his rental to above £.1000, precludes any presumption that he meant to recal the condition in question. I.) as analogous to the present; and as suggesting, the condition in question should be so modified by the Court as to make it consistent with the law of the land. I also doubt whether this Court has any original jurisdiction in matters of this kind, and whether it was not necessary for the pursuer to have applied to the Lord Lyon for redress, and on that being refused, to bring the judgment under review of this Court. There are in this case separate defences as to the competency and as to the title, and the Lord Ordinary's interlocutor is before answer as to the title.