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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.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.
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.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.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. 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.The complainers are the Lairds of Dundas, Halton, Polmais, &,c. The matriculations, since the year 1672, are all contained in one very large folio, in manuscript, on vellum ; and from the institution of said register to the present time the entries are regular, only until of late they did not mention dates.This lady was married to Sir William Cunyngham, second baronet of Caprington.
Their eldest son succeeded to the title of Caprington, and transmitted the estates to his ion, Sir William Cunyngham, fourth baronet of Caprington, at whose death, in 1829, the line of the eldest son of the marriage be tween Sir William Cunyngham and Janet Dick determined.
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.
But, as to matriculation, in consequence of the Act 1672, that was requisite in every case, and is so found by the Ordinary in this case. Among others, it contained the following condition: "Nor shall it be in the power of the heirs-male of my body, or other heirs foresaid, substituted to them, to increase the rental above £.1000 Sterling per including kain and casualties, so as the rents may be always well and regularly paid ; but without prejudice to the heir in possession to take grassums for any lease he may grant, not exceeding 19 years, of any part of said lands." The rental of the estate, at the date of the entail, was £.895 Sterling ; and when the leases expired, Mr. But a question remains behind, whether the summons in the present case is so conceived, that it could be entertained by any Court.
It is on the competency of this particular action that we are to judge; and I entertain great doubts of its competency, as it does not sufficiently set forth that what the Lord Lyon has done is to the prejudice of the pursuer. SIR ROBERT KEITH DICK CUNYNGHAM, BART., Respondent. 2d, That under the Act of Parliament the heir of line alone was entitled to supporters, and it was incompetent in the Lord Lyon to grant them to the heir-male.
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.
[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.