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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.Upon advising the cause, the Lord Ordinary pronounced this interlocutor: 13th February 1776, "Finds, that it is admitted by the procurator-fiscal that William Murray, the raiser of the advocation, is the representative of the ancient family of Murray of Touchadam: Finds it proved, from the seals produced in process, that the Murrays of Touchadam, the predecessors of the said William Murray. Macdonell of Glengarry brought an action in the Court of Lyon, asking for annulment ("reduction") of a matriculation of arms to Macdonald of Clanranald.Now there is no sufficient allegation to this effect here, and I hold that to be essential to the question of jurisdiction. In 1707, James Dick of Prestonfield was created a Baronet of Nova Scotia, by patent taken to the heirs-male of his body; whom failing, to the heirs-male of his daughter and sole heiress, Janet Dick.This lady was married to Sir William Cunyngham, second baronet of Caprington.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.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. 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. 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.

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

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.

By taking a higher rent himself, he exercised the right of an unlimited proprietor; but did nothing which was inconsistent with his intention of circumscribing the powers of his successors. In the case of Murray it was found that the Lyon's jurisdiction was not privative, and this implies that the Court of Session has such a jurisdiction; that a question of this nature, while depending in the Lyon Court, may be brought here by advocation, or, after the thing is done, by reduction; and this I hold to be a well-founded doctrine.

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.

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