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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.
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.
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.
PROCURATOR-FISCAL of the LYON-COURT against MURRAY of TOUCHADAM.
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.