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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.the state of the register of the Lyon-office, as set forth by the Procurator-fiscal himself, finds, That the said register affords not sufficient evidence as to what armorial bearings have been matriculated by the Lyon, and what not:1mo, Because the register is so framed that any chasms therein cannot ex facie be discerned ; 2do, Because it is admitted that the armorial bearings of certain persons matriculated did not appear. That the act 1672 neither made the jurisdiction of the Lyon Court privative, nor took away the power of reviewing all the proceedings of the Lord Lyon; 3.therein till of late: that the present Lord Lyon has become more attentive to the duties of his office than his predecessors ; and, therefore, finds, That it is not proved whether the armorial bearings of. That, at all events, this Court undoubtedly had jurisdiction in all competitions of arms, as they in reality raised questions of patrimonial interest. The question taken to report is merely in regard to the jurisdiction of this Court, in determining which it is necessary to consider the nature of the Lord Lyon's powers.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.But, as to the former parts of the process concerning Mr Murray's right to arms, and the jurisdiction of the Lyon, they thought them unjustifiable, and that the Lyon was liable in the expenses incurred on that account; and, 9th July 1778, they refused a reclaiming petition without answers, and adhered. Indeed, supposing he had not made such a deed, there would have been no room for that presumption. The Lords " found it incumbent on the pursuer, and the other heirs of entail, to follow out the tailzier's appointment, in carrying the name and arms of Moir of Leckie ; and, for that purpose, to obtain from the Lyon-office arms of that description, descendible to the heirs of entail of Leckie." Lord Reporter, Justice-Clerk. The only question, therefore, properly before us, is the general one, whether this Court is competent to entertain an action as to the right to armorial bearings; and we cannot go into the other defences, that the pursuer has no title or interest, or that his libel is not properly laid.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.
The patent to the baronetcy of Prestonfield, and the entail of that estate (which was in favour of heirs-male), were so conceived as to exclude from the succession the eldest son who succeeded to Caprington.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.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.