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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.
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.
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.
as the arms of the Moirs of Leckie; and if used, without addition, diminution, or alteration of any kind, by the pursuer and the said heirs, that this shall be held sufficient implement of the provision relating to the arms in the entail." The defender contended, That it was a lawful condition in a tailzie to a stranger that he should bear the granter's arms ; and quoted Sir George Mackenzie's Essay on Heraldry, p. But this opinion does not affect the present action, which is not competent, as the pursuer does not claim the arms given to the defender. I found it impossible to form a satisfactory opinion without looking to the summons; and I deny the power of a Lord Ordinary to ask the Court for an opinion on an abstract question of law, without reference to the action before him. Held, 1st, That it was not competent for the Lord Lyon to enquire whether the heir of line or the heir-male was entitled to the heraldic honours of the family,that question being, in this ease, decided by the Act of Parliament.
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.
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.
The fees, no doubt, are fixed by the Act 1672, but Lord President thought that, as in other regulations of fees about that period, practice and change of times had introduced an alteration ; so this might be the case here, and therefore he proposed to remit that point to the Ordinary to hear further; which was agreed to. Moir augmented it, without any regard to this clause. without including any rent for 150 acres in his natural possession. Robert Moir succeeded him, under the entail, and brought an action against the substitutes, concluding, that the said George Moir having increased the rental above the sum of £.1000. The pursuer had his own arms matriculated in 1797, and he does not say that they are erroneous; nor does h set forth in his summons that he is the true chieftain or that he has right to the arms of the defender.
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.