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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.
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.
(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.
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.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.They passed to Alexander Cuninghame, afterwards Sir Alexander Dick, Bart.$ and, at his death, to his eldest son, Sir William Dick.blazoning, in terms of the art, but also with a painting in water colours and other ornaments, these being things which the Lord Lyon is not bound by law to provide without a suitable remuneration." The Lords, on advising a reclaiming petition and answers, 4th December 1776, adhered to the interlocutor of the Ordinary, and refused the petition, except as to the fees exigible on matriculations; as to which, remitted to the Ordinary to hear parties further, and to do as he should see cause. The power of granting ensigns armorial is part of the royal prerogative, but every thing belonging to that power has been given by sundry statutes to the Lord Lyon's grant.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.