Documents on the Lord Lyon

This page gathers documents on the powers and practice of Lord Lyon and his Court.
 

Contents

• Acts on Authority
• Act of 1587
• Act of 1592
• Act of 1672
• Act of 1867
• Court Cases
• Sundry Barons v. Lord Lyon, June 1673
• Procurator-fiscal of the Lyon Court v. Murray of Touchadam (1778),
• Dun of Dundas v. Dundas of Fingask, 22nd January, 1762
• Moir v. Graham, 5th February, 1794
• MacDonnell v. MacDonald (1826) 3 S 371
• Cuninghame v. Cunyngham (1849) 11 D 1139
• Hunter v. Weston.  Noticed in Stevenson: Heraldry in Scotland, pages 74-76.
• Petition MacRae, 22nd April, 1909. Lyon Court, unreported. (Printed in Stevenson: Heraldry in Scotland, ii, pp.467).
• Royal College of Surgeons of Edinburgh v. the Royal College Physicians of Edinburgh 1911 S.C. 1054
• Stewart Mackenzie v. Fraser-Mackenzie 1922 S.C. (H.L.) 39
• Maclean of Ardgour v. Maclean (1941) S.C. 613
• Patents and Grant of Arms

Acts on Authority

The statutory basis for the jurisdiction of the Lyon King of Arms consists mainly of three Acts of the Scottish Parliament, of 1587, 1592 and 1672. (The Act of the British Parliament of 1867 mainly reorganized the Court and set the salaries of the Scottish officers of arms).

The Officers of Arms Act of 1587

Act for reformation of the extraordiner nowmer and monyfauld abuses of officiaris of Armes (1587 cap. 46)

The Lyon King of Arms Act of 1592

Act concerning the office of lyoun king of armes and his brether herauldis (1592 cap. 127)

[section 2 repealed by the Scottish Laws Revision Act of 1906]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 ...

[sections 3 and 4 repealed by the Scottish Laws Revision Act of 1906]

(5) ITEM Last that becaus the Jurisdictioun of the lyoun king of armez is nocht able to execute dew punishment vpoun all personis that salhappin to offend in the office of armezz Thairfoir our souerane lord with auise of his estaitis in parliament Ordanis and commandis all ciuile Magistratis as thay salbe requirit be the king of armez or ony vtheris in his Name To concur with him To sie the actis maid in his fauouris of his office put to dew executioun in thair iurisdictiounis As aslua To concur with him to the pvneisment and incarceratioun of all sic personis as sall vsurp the bearing of his Maiesties armes efter dew depriuatioun vnder the pane of rebellioun and putting of the disobeyaris to his hienes horne With certificatioun to thame and thay failye being requirit lettrez salbe direct simpliciter to put thame to the horne

The Lyon King of Arms Act 1672

Act concerning the priviledges of the Office of Lyon King at Armes (1672 cap. 47)

Our Soveraigne Lord Considering that albeit by the 125 Act of the 12 Parliament holdin by his Maiesties grandfather in the yeir 1592 the usurpation of Armes by any of his Maiesties leidges without the authority of the Lyon King of Armes is expressly discharged And that in order therto Power and Commission is granted to the Lyon King of Armes or his Deputes to visite the whole Armes of Noblemen Barrons and Gentlemen and to matriculate the same in their registers and to fine in One Hundreth pounds all others who shall unjustlie usurp Armes who should bear none and many of these who may in law bear have assumed to themselvis the Armes of their cheiff without distinctions or Armes which were not caried by them or their predicessors Therfore His Maiestie with advice and consent of his Estates of Parliament Ratifies and Approves the forsaid Act of Parliament And for the more vigorous prosecution therof Doth hereby Statute and Ordain that lettirs of publication of this present act be direct to be execute at the mercat cross of the heid Burghs of the Shires Stewartries Bailliaries of Royaltie and Regallitie and Royall Burrowghs chargeing all and sundry [Prelates] Noblemen Barons and Gentlemen who make use of any Armes or Signes armoriall within the space of one yeir aftir the said publication to bring or send an account of what Armes or Signes armoriall they are accustomed to use and whither they be descendants of any familie the Armes of which familie they bear and of what Brother of the ffamilie they are desended With Testificats from persones of Honour Noblemen or Gentlemen of qualitie anent the verity of their haveing and useing those Armes and of their descent as afoirsaid to be delivered either to the Clerk of the Jurisdiction where the persones duells or to the Lyon Clerk at his office in Edinburgh at the option of the party upon their receipts gratis without paying any thing therfore Which Receipt shall be a sufficient exoneration to them from being obleidged to produce again to the effect that the Lyon King of Armes may distinguish the saids Armes with congruent differences and may matriculat the same in his Bookes and Registers and may give Armes to vertuous and well deserving Persones and Extracts of all Armes expresssing the blasoning of the Armes undir his hand and seall of office [For which shall be payed to the Lyon the soume of Tuentie merkes by every Prelat and Nobleman, and Ten merks be every Knight and Baron, and Five merkes by every other persone bearing Armes, and noe more:] And his Maiestie hereby Dispensses with any penalties that may arise be this or any preceiding act for bearing Armes befor the Proclamation to be issued hereupon And it is Statute and Ordained with consent forsaid that the said Register shall be respected as the true and unrepeallable rule of all Armes and Bearings in Scotland to remain with the Lyon office as a publict Register of the Kingdome and to be transmitted to his Successors in all tyme comeing And that whosoevir shall use any other Armes any manner of way aftir the expireing of year and day from the date of the Proclamation to be issued hereupon in maner forsaid shall pay One Hundred pounds money toties quoties to the Lyon and shall likewayes escheat to his Maiestie all the moveable Goods and Geir upon which the saids Armes are engraven or otherwise represented And his Maiestie with consent forsaid Declaires that it is onlie allowed for Noblemen [and Bishopes] to subscrive by their titles And that all others shall subscrive their Christened names or the initiall letter therof with there Sirnames and may if they please adject the designations of their Lands prefixing the word Of to the saids designations And the Lyon King at Armes and his Brethren are required to be carefull of informeing themselvis of the contraveiners heirof [and that they acquaint his Maiesties Councill thewith, who are hereby impowered to punish them as persones disobedient to, and contraveiners of the Law:]  It is likewise hereby Declaired that the Lyon and his Brethren Heraulds are Judges in all such causes concerning the Malversation of Messingers in their office and are to enjoy all other priviledges belonging to their Office which are secured to them by the Lawes of this Kingdome and according to former practice.

Court Cases

Sundry Barons v. Lord Lyon, June, 1673

1673. June.         Sundry BARONS, &c. against The LORD LYON.

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. The Lyon's reason is, because, by an express letter of his Majesty's, none underl the dignity of a Lord must use supporters. (He grants them now to some who were: in possession of them of old.).  [7] 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. So Craig, pages 78 and 79.—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. 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. The Gentlemen found on the Interdictum uti possidetis : the Lyon says, it is but vetustas erroris, and an usurpation.

The complainers are the Lairds of Dundas, Halton, Polmais, &,c.

Advocates' MS.  No. 393, folio 216.
 

Procurator-fiscal of the Lyon Court v. Murray of Touchadam

1776 6. December 20. PROCURATOR-FISCAL of the LYON-COURT against MURRAY of TOUCHADAM.
 

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 [491] gave decreet in terms of the libel.  Mr Murray presented bill of advocation, which was past.  Pleaded at discussing for the  Lyon:—the advocation is incompetent; his jurisdiction, as to arms, is privative  and independent. 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.  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. The tradition was, that most of the old records of arms were destroyed by fire ; there are, however, in the office several old manuscript books of heraldry which are of great use in matriculation.

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. 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 [492] in process, that the Murrays of Touchadam, the predecessors of the said William Murray. were in public possession of a coat armorial in 1511 and 1568, 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 1592 and 1672, for the armorial bearings whereof William Murray of Touchadam, raiser of the advocation, is in possession. 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. 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. 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. Murray of Touchadam have been actually matriculated in the Lyon register or not : that William Murray was not in mala fide to continue the use of the armorial bearings which his predecessors enjoyed ; and that there is no sufficient warrant for the penal conclusions of the original summons: and upon the whole assoilyies the said William Murray, and decerns; reserving always to the Procurator-fiscal to charge the said William Murray to matriculate his armorial bearings in the registers of the Lyon Court, in terms of the statute 1672, and to pay the fees exigible from a baron, and no more, as the statute bears: and also reserving to the officers of Court to exact whatever further sum may be judged reasonable, in case the said William Murray shall incline to be furnished, not only with a. 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."
[493]
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.

In reasoning, the Lords made a distinction betwixt a right to wear arms and matriculation. 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. 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. 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.

20th December 1776, the Lords refused a reclaiming petition without answers, and adhered.

And again, 25th June 1778, the Lords, on report of Lord Hailes, found that the Lyon can exact no higher fees for Mr Murray of Touchadam's arms than ten merks, being the fees exigible by the statute 1672 from a baron; and found the Lyon liable in the expense of process prior to the last remit, and of the whole extract of the decreet. 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. 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.

Dun of Dundas v. Dundas of Fingask, 22nd January, 1762

1762. January 22. DUNDAS. of DUNDAS against DUNDAS of FINGASK.

The Laird of Dundas complained to the Lyon, That Dundas of Fingask had got from the Lyon's predecessor, in the year 1744, a grant of an armorial bearing, to which he and his predecessor had right many ages before. The matter was brought before the Lords by an advocation at the instance of Fingask. 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 or[494]dain 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.

And to this interlocutor the Lords adhered.

Moir v. Graham, 5th February, 1794

1794. February 5.

DR. ROBERT MOIR against DR. CHARLES ALEXANDER GRAHAM and Others.

George Moir, in 1787, executed an entail of the estate of Leckie, with strict irritant and resolutive clauses. 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. Moir augmented it, without any regard to this clause.

In 1791 he executed a deed, where, after making some alterations, but none on this clause, "he approves of the foresaid deed of entail, in all the other articles and clauses thereof."

At the time, however, when he executed this last deed, the rental of the estate exceeded £. 1000; and at his death, in 1792, it amounted to £. 1123 6s. without including any rent for 150 acres in his natural possession.

Dr. 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. had thereby revoked the above-cited clause; and that, therefore, the pursuer should be at liberty to keep up and augment the rent of the entailed estate, as freely as if it had not been inserted. In support of this conclusion he

Pleaded: As the clause in question has been so far infringed by the entailer himself that it cannot be complied with in terminis, it must be wholly at an end. 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.

Answered : The deed of alteration executed by Mr. 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. Indeed, supposing he had not made such a deed, there would have been no room for that presumption. 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. 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, [15538] be violating the terms of the entail he would be guilty of an act of contravention.

The Lord Ordinary reported the cause on memorials.

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. 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. 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.

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. 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. Moir's heir of line.

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. 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. 70. as supporting this opinion.

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 [15539] where  there were arms in a family, they could not descend to a tailzied succession, without certain distinctions. And he quoted the case put in L. 27. D. De  Condit. et demonstrat. (Lib. M. Tit. 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.

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. Act. Maconochie. Alt. Bell.  Clerk, Gordon.
R. D.                                                                     Fac. Coll. No. 101. p. 224.

Macdonnell v. Macdonald 
3 Shaw and Dunlop 371

Macdonell of Glengarry brought an action in the Court of Lyon, asking for annulment ("reduction") of a matriculation of arms to Macdonald of Clanranald. It was pleaded in limine that the action was incompetent before the Court.

The Lord Ordinary (i.e. 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. 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 proceedings[372] of the Lord Lyon;—
2. 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. That, at all events, this Court undoubtedly had jurisdiction in all competitions of arms, as they in reality raised questions of patrimonial interest.
On the other hand, it was maintained for the defender,
That the act 1672, by declaring that the Lyon record should "be respected ass the true and unrepealable rule of all arms and bearings in Scotland," conferred a privative jurisdiction in such matters on the Lord Lyon; and that even if this Court had jurisdiction in competition of arms, the pursuer did not set forth his right to those matriculated by the defender.

The Court dismissed the action as incompetent.

Lord Robertson.—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. These relate to two separate and distinct matters,—one regarding messengers, and the other, which we have to do with here, relating to armorial bearings. 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. His power to new armorial bearings is merely discretionary and ministerial, and with that this Court cannot interfere. 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. But a question remains behind, whether the summons in the present case is so conceived, that it could be entertained by any Court. 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. There is no conclusion in favour of his right to these arms; so that, were he to obtain decree in terms of his libel, he could take nothing under it. Popular actions are unknown in our law, and no one can bring an action to take from another what he himself has no right to. 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.
Lord Glenlee.—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 only question, therefore, properly before us, is the [373] 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 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. 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.
Lord Pitmilly—A difficulty arises from the way in which the Lord Ordinary's interlocutor is framed, reserving all questions of title. 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 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. The Lyon Court is in fact just on the same footing as with other Inferior Courts. 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.
Lord Justice-Clerk.—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. 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. 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. There was never a case where the Court entertained an action of this nature, unless it was set forth that the act complained of was to the prejudice of the party bringing it. Now there is no sufficient allegation to this effect here, and I hold that to be essential to the question of jurisdiction.

Cuninghame v. Cunyngham 
(11 Dunlop 1139)

No. 187

THOMAS SMITH CUNINGHAME, Advocator. — Mark Napier.
SIR ROBERT KEITH DICK CUNYNGHAM, BART., Respondent. — Innes.

Process.—Advocation.—Lyon.—The judgments of the Lord Lyon in matters of heraldry may he reviewed by this Court.
Statute.—Clause.—Lyon.—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 Lord Lyon assigned to him the family arms and supporters, "with the badge of Nova Scotia on a canton," for a difference. —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. 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. 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.

JOHN CUNYNGHAM of Caprington and Lambrughton was, in 1669, created a Baronet of Nova Scotia, by patent taken to the heirs-male of his body. 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. Their eldest son succeeded to the title of Caprington, and transmitted the estates to his ion, Sir William Cunyngham, fourth baronet of Caprington, [1140] at whose death, in 1829, the line of the eldest son of the marriage be tween Sir William Cunyngham and Janet Dick determined.

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. Sir William Dick died in 1796, leaving only female issue. His title and estates, therefore, passed to his brother and heir-male, Sir Robert Keith Dick, who was also heir-male of the marriage between Janet Dick and Sir William Cunyngham.

On the death of the last baronet of Caprington, in 1829, the title passed to Sir Robert Keith Dick as heir-male of the united families, but the estates, which were unfettered, transmitted to Sir Robert's nieces, the daughters and co-heiresses of his elder brother, Sir William Dick. The eldest, who inherited the mansion-house and manorial rights of Caprington, married John Smith, Esq. ; and their son, Thomas Smith Cuninghame of Caprington, became heir of line of the marriage between Sir William Cunyngham and Janet Dick.

The family of Cunyngham of Caprington never used or enjoyed armorial supporters.

The patent of the baronetcy of Prestonfield authorized the Lord Lyon to give and prescribe such additions to the arms of Sir James Dick as should seem suitable. No advantage was taken of this permission till 1771, when a patent was issued by the Lord Lyon, granting to Sir Alex. ander Dick, then baronet of Prestonfield, the common ancestor of Sir R. K. Dick and Mr Smith Cuninghame, "for supporters, two white horses at liberty, maned and hoofed." These supporters were used by the succeeding baronets of Prestonfield, and were assumed by Sir R. K. Dick on his succession to the title.

In 1829, on his succession to the estate of Caprington, in right of his wife, Mr John Smith Cuninghame applied to the Lord Lyon for liberty to use and bear the plain arms of the families of Cuninghame of Caprington and Dick of Prestonfield, with supporters, as being the head and representative of both families. The Lord Lyon granted permission to him "to bear the plain arms of both families quarterly," but refused his prayer for supporters, "as being founded on a misapprehension of the rules of heraldry, and the practice of the Lyon Court." In a note appended to that decision, the Lord Lyon stated, "that the right to such distinction passes, not to the heir of line, but to the nearest heir-male of the family, even though a distant collateral, provided he can establish his descent."

The entail of Prestonfield contained a prohibition to alienate, and an obligation on the heir to bear the name and arms of Dick. Sir R. K. Dick, being desirous to feu a portion of his estate, applied to Parliament [1141] for the necessary powers. He took that opportunity of applying for Parliamentary sanction to his bearing the name of Cunyngham of Lambrughton and Caprington, the older baronetcy. The bill introduced by Sir R. K. Dick was opposed by Mr Smith Cuninghame, in so far as it sanctioned the assumption of the name of Cunyngham; but he withdrew his opposition on obtaining the insertion of the following clause, which stands sect. 21 of the Act 8 & 9 Vict., c. 23 :—" And whereas the senior heir of line of Sir John Cunyngham Baronet of Lambrughton, and of Sir  James Dick, Baronet of Prestonfield," (the common roots and chiefs of the Lambrughton and Prestonfield families,) "has succession to all their indivisible, heritable rights, not carried from him by entail or settlement, and specially has right to use and bear the arms and supporters of his said ancestors— Be it therefore enacted, that the said rights and arms are hereby reserved, entire to such senior heir of line; and that the said Sir Robert Keith Dick, being a younger branch of the said families, he and his heirs-male, in taking the name of Cunyngham and arms of Cunyngham of Lambrughton shall do so with the difference, or mark of cadence, in the arms applicable to such junior branch."

Sir R. K. Dick Cunyngham presented a petition to the Lord Lyon founding on the Act of Parliament and praying for permission to bear the arms of Cunyngham of Lambrughton, along with the arms and. supporters of Dick of Prestonfield.

Mr Smith Cuninghame opposed the petition, and craved the Lord Lyon to refuse it, de plano, in so far as regarded the supporters; and in any matriculation that might be given to the petitioner of arms, to give the same strictly in terms of the 21st section of the Act of Parliament, with the proper mark of cadence (or heraldic inferiority), and without supporters, as prescribed by that section.

Mr Smith Cuninghame also petitioned the Lord Lyon for permission to use and bear the arms and supporters of both families, reserved to him as senior heir of line by the Act of Parliament.

In the petition for Sir R. K. Dick Cunyngham the Lyon-depute pronounced the following interlocutor:-" Finds that the petitioner, as head and chief in the male line of the families of Cunyngham of Lambrughton and Dick of Prestonfield, would by the heraldic usage of Scotland, and the practice of the Lyon Court, have been entitled to carry the arms of those families quarterly, without brisure or mark of cadency; but in respect of the enacting portion of the 21st section of the statute referred to in the pleadings, and of consent of the petitioner, appoints the said arms to he used and borne by the petitioner, with the difference aftermentioned, thereby distinguishing them from the arms authorized to be borne by John Smith Cuninghame, Esq., the father of the respondent and objector, and his heirs, by the Lord Lyon's patent in his favour: Accordingly authorizes and appoints the Lyon-clerk to prepare a patent of arms [1142] in favour of the petitioner and his heirs, with the blazon underwritten, viz. :-First and fourth, argent, a sheaf fork sable within a bordure ermine g second and third ermine, a fess azure, betwixt two mollets in chief, and a hare's head erased in base, attired with ten tynes gules; and for difference, on a canton the badge of Nova Scotia: Further, finds that the supporters used and borne by Sir Alexander Dick, the petitioner's father, and after his decease, by Sir William Dick, his brother, maternal grandfather of the respondent, have now, by failure of male descendants of the said Sir Wil. liam Dick, devolved upon the petitioner as heir-male of the family; and accordingly authorizes the Lyon-clerk to add the said supporters to the arms of the petitioner above described ; the destination of the said sup porters being to the petitioner and his heirs-male."

The petition of Mr Smith Cuninghame was simpliciter refused.

Mr Smith Cuninghame advocated both interlocutors.

The respondent pleaded in limine;—

The advocation is incompetent. The Court of Session cannot entertain discussions as to the proper blazoning and differencing of arms, a]. though it has in rare instances asserted a right to interfere, where a party alleges that a coat of arms to which he was entitled has been re. fused to him, or granted to another in his prejudice; but that is not alleged here.

 The Lord Ordinary repelled the objection; and having conjoined the advocations, he pronounced the following interlocutor:—" Finds that the advocator is served and retoured is heir of line, to 1st, Sir John Cunyngham  of Lambrughton and Caprington, the first baronet of that family; to 2d, Sir William Cunyngham, the second baronet of that family; to 3d, Sir James Dick of Prestonfield, the first baronet of that family; 4th, to Dame Janet Dick, only child of the said Sir James, and wife of Sir William Cunyngham, second baronet of Caprington; and 5th, to Sir Alexander Dick of Prestonfield, fourth son of the said Sir William Cunyngham and the said Dame Janet Dick. 2d, Finds, that by the 21st section of the 8 & 9 Vict., c. 23, it is enacted," (quotes Act is on p. 1141, supra.) "3d, Finds that the advocator has right to use and bear the arms and supporters of his said ancestors, and that, as senior heir of line of the said families of Cunyngham of Lambrughton, and Dick of Prestonfield, he has right to the arms and supporters of the said families. 4th, Finds that
the respondent, as declared a younger branch of the said families by the foresaid enactment, has no right to use and bear the supporters thereof; and that, in taking the name and arms of Cunyngham of Lambrughton, he is bound to do so with the difference, or mark of cadence, in the arms applicable to a junior branch. 5th, Finds that the condition in the award of the Lyon-depute, to the respondent, of the arms of Cunyngham of Lambrughton, of, ' for difference on a canton the badge of Nova Scottia,' does not, according to heraldic usage, denote the difference or mark [1143] of cadence applicable to a junior branch; and, consequently, that the  arms awarded to the respondent have not been awarded with the difference or mark of cadence enjoined by the said enactment; therefore alters the interlocutors complained of, and remits to the Lyon Court, with instructions to award to the advocator, in the matriculation of his arms, the arms and sup porters of the families of Cunyngham, of Lambrughton and Dick of Preston-. field, as the head or senior heir of these houses; and in matriculating the arms of the respondenN to deny to him the- supporters of the said families, and also to recall the award of arms to him, with the difference 'of the badge of Nova Scotia in a canton only, and to award the said arms, with such difference as may suitably and properly, according to the usage. of heraldry, denote the difference or mark of cadence in the arms appli cable to a junior branch, and decorate: Finds the advocator entitled to. the expenses incurred both in this Court and in the Inferior Court, and remits the account thereof, when lodged, to the auditor, to tax and report." *

NOTE.—I. The competency of the present proceedings has been finally settled. To many the subject in dispute may appear trivial ; or, on the other hand, in the eyes of the parties, or others who take interest in such matters, it may have acquired undue importance. It is enough for the ' Lord Ordinary to be satisfied, that the subject of the wearing of coats-of-arms is matter of legal right; and this being once settled, the dispute must be considered and determined with a due regard to the interest of the parties, just as much as if it involved largo patrimonial

There are two grounds of complaint made by the advocator :-One, that the respondent has been awarded supporters, which belong to the advocator; and the other, that the arms of the respondent have not been distinguished, as they ought to have been front those of the advocator, by the difference or mark of cadence applicable to a junior branch. In substance, the complaint therefore is, that the arms awarded to the respondent by the Lyon-depute, are legally the arms of the advocator ; and, on the grounds stated in the note to the interlocutor of 16th February 1847, repelling the objection to the competency, and now' acquiesced in, it seems to be indisputable, that into such alleged wrong this .Court is bound to inquire.

II. The advocator is heir of line of the family of Cunyngham of Lambrughton and Caprington. The respondent is the heir-male of that family. The first baronet of the family was Sir John Cunyngham. The second baronet, his eldest son, Sir William, married Janet Dick, heiress of Sir James Dick of Prestonfield. His eldest son, Sir John, was the third baronet, who again was succeeded by his eldest son, Sir William, the fourth baronet, who died in 1829. The succession then opened to Alexander Cunyngham, afterwards Sir Alexander Dick, fourth son of Sir William Cunyngham and Janet Dick, and which Alexander Cunyngham, afterwards Sir Alexander Dick, is the common ancestor of the competing parties.

The respondent is the third son of this Sir Alexander Cunyngham, or Dick, and has undoubtedly both baronetcies. The advocator, on the other hand, is the eldest son of Anne Dick, the eldest daughter of Sir William, who was the eldest son of the said Alexander Cunyngham, afterwards Sir Alexander Dick, the common ancestor.

" The advocator has been served heir of line---1st, To Sir John Cunyngham, the first baronet; 2d,  To Sir William Cunyngham, the second baronet; 3d, To [1144]

Sir James Dick, the first baronet of Prestonfield, and the father of Janet Dick; 4th, To the said ])ante Janet Dick, who married Sir William Cunyngham, the second baronet of Caprington ; and, 5th,  To their fourth son, Alexander Cunyngham, afterwards Sir Alexander Dick, the said common ancestor.

A question arose between the present parties m to which of them is entitled to the full arms and supporters, or, in other words, which is to be considered the head of the family, and which is bound to bear the arms, with a difference or mark of cadence denoting the junior branch. This point, as an abstract question of heraldic succession, is largely discussed in these very learned and interesting pipers. On the one hand, the advocator maintains, that the respondent only represents as heri-male his grandmother, Janet  Dick, and that he is her youngest grandson, while the advocator represents the eldest grandson, and consequently that his female descent, through the eldest grandson, makes him head of the house, and the representative, as to arms at least, in preference to the respondent. This abstract question of the legal succession to heraldic honours is argued by the advocator, in the concluding part of his case, with great force and much learning, and, so far as he is qualified to judge of such matters, the Lord Ordinary is inclined to go along with that argument. On the other hand, the respondent contends, that no heraldic honours can descend through a female, to the exclusion of the heir-male of the family, and he points out various instances which apparently support his views. The matter may be attended with much difficulty, and the impression of the Lord Ordinary may be totally erroneous. It is a great satisfaction to him, however, that he does not feel called on to determine this heraldic dispute, because—

III. He considers it quite clear, that the matter has been settled by Act of Parliament. By the entail of Prestonfield, the respondent was bound to carry the name and arms of Dick of Prestonfield only. But, in the year 1845, he applied to Parliament for liberty to feu portions of the estate of Prestonfield, and also to bear the name and arms of Cunyngham of Lambrughton -along with those of Dick of Prestonfield. The matter of right as to the arms was thus raised between the parties, and seems to have been the subject of anxious discussion. By the 20th section of the Act, permission was given to the respondent and the heirs of entail of Prestonfield, to bear 'the surname of Cunyngham  and arms  of 'Cunyngham  of Lambrughton,' in addition to, 'and along with, the surname  and arms  of ' Dick' and title of 'Prestonfield', without 'incurring any forfeiture or irritancy.'  But this was guarded by the following anxious reservation in the 21st section:—, 'And whereas the senior heir of line of Sir John Cunyngham, Baronet of Lambrughton, and of Sir James Dick, Baronet  of Prestonfield,   has succession to all their indivisible heritable rights not carried from him by entail or settlement, and specially has right to use and bear the arms and supporters of his said ancestors—Be it  therefore  enacted, that the said  rights and arms are hereby reserved entire to such senior heir of line, and that the said Sir Robert Keith Dick, being a younger branch of the said families, he and his heirs-male, in taking the name of Cunyngham; and arms of Cunyngham of Lambrughton, shall do so with the difference or mark of cadence in the arms applicable to such junior branch.'

Now, there can be no question that the advocator is the senior heir of line here described, both of Sir John, Cunyngham and of Sir James Dick, and  the
Act affirms, as matter of law and also of fact, not only that he has succession to  all their indivisible heritable rights, not carried from him by entail or settlement, but specially that he has right to use and beat. the arms and supporters of his said ancestors.  Unless this had been conceded to the advocator it is presumed that the statute would  not have passed.   It is said  that this statute en[1145]joins bad heraldic law, and that the law of heraldry cannot be changed by Parliament-and consequently, that despite the statute, by the unchangeable law of arms, the heir male must be the head of the house. The Lord Ordinary is by no means satisfied that there is any such law of heraldry. But even if it were the common usage to give the arms and supporters to the heir male, in preference to the heir of line, the reverse has been declared by this statute as applicable to this particular case. For the Act, upon the distinct assertion that the advocator has  succession to the indivisible heritable rights, and specially has right to the arms and supporters of his ancestor, enacts, that 'the said rights and arms are hereby reserved entire to such senior heir of line.' But the complaint here is, in the first place, that the arms and supporters, in place of being reserved entire to the advocator, have been awarded to the respondent.

The statute, however, contains the further enactment, that the said Sir Robert Keith Dick, being a younger branch of the said families, he and his heirs male, in taking the name of Cunyngham; and arms of Cunyngham of Lambrughton, shall do so with the difference or mark of cadence in the arms applicable to such junior branch.' Here again it is argued that there is more bad heraldry, and that the heir male cannot be a younger branch, but must be head of the house, and an elder branch to the senior heir of line. The Lord Ordinary does not think this established by any authorities on heraldry, so far as he can judge of the matter. But if the enactment could be shown to be inconsistent with the usage of heraldry, still it has been so declared by the highest authority as the law affecting the rights of the parties in this particular case. The respondent would not have obtained the Act of Parliament without the declaration, that lie is to he considered the younger branch of the families, and he would not have been permitted to take the name and arms of Cunyngham; of Lambrughton, otherwise than with the difference or mark of cadence, in the arms applicable to such junior branch. Effect, therefore, must be given to the Act of Parliament, and no heraldic difficulty has been pointed out, which renders it impossible to obey that Act in the case in hand.

IV.  Such being the rights of the advocator under the statute, it is said that neither Sir John Cunyngham nor Sir James Dick had supporters, and that as it is only to the arms and supporters of these ancestors that the heir of line is declared to have succession, he cannot claim them. But it is plain, that whether either of the two baronets named actually used supporters or not (and certainly there are no supporters in the emblazonment of the arms of Sir James Dick in 1687), the right of the heir of line is not made dependent on the use of supporters, or of arms, by any of his individual ancestors. It is, on the contrary acknowledged and declared to be in him, as licit. of line of the families; and the Act declares that he has right to the full arms and supporters of these families. That there are supporters is not disputed; for the respondent himself claims them, and they have been awarded by the Lyondepute to hint, wrongfully, as the Lord Ordinary thinks, because the statute has given them to the advocator. The interlocutor of the Lyon-depute gives to the respondent the supporters of Dick of Prestonfield, and that specially on the finding, that as head and chief in the male line of Cunyngham, of Lambrughton, and Dick of Prestonfield, he would have been entitled to the full arms but for the Act of Parliament. That Act of Parliament, however, took away any right that he had, or might have claimed, to supporters, and gave them to the heir of line of both families, just as much as it rendered it imperative on the respondent, in
wearing the arms of Cunyngham of Lambrughton, to do so with the difference or mark of   of a. younger branch. The interlocutor, with regard to the
supporters,  appears to be  in the face of the Act of Parliament, and gives to the respondent, those  supporters which that Act gives to the advocator.

[1146]
Nor can the Lord Ordinary fail to observe, that if supporters belong to the head of the house, which h(,, understands to be admitted, it seems very strange that the same party to whom these supporters are awarded, as such head, should, at the same time, wear a difference, denoting that he is a junior branch of the very house of which he is head. Yet such is the heraldic anomaly which the Lyondepute appears to have created.

It humbly appears to the Lord Ordinary, that the Lyon-depute has gone equally far wrong  as to the mark of difference which lie has assigned to the arms
of the respondent. The full arms have been awarded, with this condition, "for  difference  on a canton the badge of Nova Scotia." Now, without any great knowledge of heraldry, it would appear strange, that the badge of an honourable order, which, as a baronet of that order, the respondent is entitled to wear, should be the difference or mark of cadence applicable to a junior branch of a family. But what is still more remarkable, the emblazonment of the arms of Sir James Dick of Prestonfield in 1687 (to whom, among others, the advocator is served heir of line, and whose arms he is entitled to bear in full, in terms of the statute), While undoubtedly it bears no supporters-in consequence of which the respondent maintains that the advocator is excluded from claiming supporters-bears on a canton the badge of' Nova Scotia, the. very thing awarded to till* respondent as a difference. The result is, that the Lyon-depute, in order to make a difference between the two arms, has, in the first place, ,;elected the identical badge in a canton to be the same in both, and has thus identified the two things, as to which he purposes to make a difference. In the second place, he has taken the badge of a baronetcy, which is an honourable distinction,  or augmentation of the arms, to be the mark of cadence of a junior branch, for which no reason or authority can be shown. The badge of Nova Scotia would mark that the wearer of the arms was a Nova Scotia baronet. It would do go in the case of the respondent, as it did in the case of Sir James Dick, the first baronet of Prestonfield. But it never could mark either the one, or the other as a junior branch; and it is not said that Sir James the first baronet, wall a junior branch of either house. To the Lord  Ordinary, therefore, this award of the Lyon-depute appears to be an evasion of, and not a compliance with the Act of Parliament.

The heraldry enacted by the legislature, applicable to this case, in short, so far as the Lord Ordinary can judge, is more consistent and intelligible than that of the Lyon-depute. There could, at all events, have been no difficulty in carrying the Act of Parliament into effect, and denoting the junior branch by a crescent or mullet, according to what is explained to he the usual form. But as the Act can practically be carried into execution, it is satisfactory to decide the case upon the statute, which is binding both in this Court and in the Lyon Court. The Lord Ordinary begs it to be explicitly understood, that his judgment proceeds on this view of the statute; and although he. has ventured to express his impressions on the argument which has been adduced on the argument which has been adduced on the heraldic branch of the subject,  he does so without any confidence, and without resting the grounds of his opinion upon these impressions.
 

[1144]
Sir R. H. Dick Cunyngham reclaimed, and pleaded;

 1. The Court of Session not being the proper Court for questions as to [1145] the law of arms and practice of heraldry, will not interfere with the Lord-Lyon's discharge of his duty, of matriculating arms, whether exercised in [1146] virtue of his general powers, or under the authority of a special Act of Parliament. 2. The Act of Parliament founded on was not intended to give, and did not give to the senior heir of line, any thing of heraldic or family honours that were not legally his before. The narrative or preamble of the clause founded on is not of the nature of an enactment. The Lord-Lyon has assigned to the respondent the arms, as required by the enacting part of the Act.(1)

(1) Ersk. 1. 1, 49.

3. By the custom of the heralds of Scotland, the respondent, as the [1147] only surviving son and heir-male of Sir Alexander Dick of Prestonfield is entitled to use and bear the arms and supporters of that family,   in  preference, and to the exclusion of the heirs of line, being females.(1)

The advocator pleaded;—
The advocation was competent before the Court of Session, as the supreme jurisdiction  possessing power to review a decision of the Court of Arms, as well as other inferior judicatories; and above all, as bound to enforce the terms of an Act of Parliament.(2) 2. Under the terms of the Act of .Parliament, section 21, it was incompetent for the Lyon COurt to. grant to any other than the senior heir of line the arms of the families, without mark of cadency. 3. The senior heir of line is the party entitled by the rules and practice of heraldry to bear the plain arms of the family.(3) 4. It is not consistent with the usages of heraldry to grant supporters to a party who bears in his arms a mark of cadence. 5. The law of heraldry does not recognize "the badge of Nova Scotia in a canton" as a mark of cadence, that being a mark of distinction; and it was an evasion of the Act of Parliament to make no other difference.

(1) Mackenzie, ii., p. 520, 619; Guillim, sect. 6, p. 456; Nisbet, ii. 20; Cruise on Dignities, c. 5, sect. 86; Dugdale's Ancient Usage of Arms, p. 16; Nisbet on Exterior Ornaments, p. 63; Cases of the Marquis of Queensberry, Anstruther of that Ilk, M'Leod of M'Leod, Munro of Foulis, M'Pherson of Cluny; all in Lyon Records, passim.

(2) Ersk. 1., 4, 32, 33; Lyon Court v. Murray, 1778, M. 7656; Barons v. Lord Lyon, 1703, Br. Sup., 36; Macdonell v. Macdonald, Jan. 20, 1826, 4 S. & D., 371 ; Dundas v. Dundas, 1762, Br. Sup., 5, 493; Report of Parliamentary Commissioners, March 3, 1823.

(3) Dugdale, p. 76; Nisbet, Her., ii., p. 33; Sir David Lindsay's Heraldry; Cases of the Earl of Buchan. 1604, Countess of Sutherland, Baroness Sampill, Baroness Grey of Ruthyn, Napier of Merchiston, Mowbray of Barnbougal, L'Amy of DUnkenny Farquharson of Invereauld, Rattray of Craighall, GibsonCraig of Ricearton, Maitland Heriot of Ramornie Lyon Records, passim.

LORD PRESIDENT—This case raises a question of very unusual occurence in this Court, and has been argued most ably by the counsel on both sides.  I must confess that I am not particularly versant with the rules and usages of heraldry, nor have I any great skill in heraldic terms. But such knowledge does not seem to me to be at all necessary to the right determination of this case; for, upon the statute I have no difficulty in making up my mind that the interlocutor of the Lord Ordinary should be adhered to. The Lord Ordinary, although he rests his judgment on the Act of Parliament, has intimated all opinion upon the abstract question of heraldic right, and inclines to the view maintained by the heir of line. I am not prepared to go into that abstract question, and on it I give no opinion. I will not go a step beyond the statute.

The first question is the competency of the advocation. There is no special plea before us that raises this question; but even if there were, when I consider the statements contained in Mr Cuninghame's petition, and the interlocutor of the Lord Lyon, I am of opinion that Mr Cuninghame did instruct rights, imaginary [1148] they may be, and trival in the opinion of many, but well known to and recognised by the law, with which the interlocutor of the Lord Lyon interfered. On such an invasion of rights, I would have no difficulty in holding an appeal to this Court competent, even were the case of Glengarry not on the books. That case fully established the competency of this Court to review the judgments of the Lord Lyon; and we have here an additional ground to go upon, for we are called on to see that the provisions of an Act of Parliament have been complied with.

From the first perusal of the statute, I felt no doubt as to the question raised touching the advocator's right to the supporters- [Reads section 21]. I cannot adopt the interpretation that the expression, "his said ancestors," refers solely to the two baronets who are mentioned nominatim, and who, so far as appears, did riot use supporters, to the exclusion of the intermediate ancestors, to whom also the advocator has been served heir of line. These two persons are named as the leading ancestors of the two families of which Mr Smith Cuninghame is the heir of line. This proviso seems to me to put his right to these arms and supporters beyond the reach of cavil or doubt. No doubt, when the preliminaries of the Act were formerly before us, this clause did not appear in the draft, and no such question as the present was brought under our consideration ; but the question arose when the advocator appeared in Parliament to oppose the bill. When the bill was in the House of Lords, the insertion of this clause was agreed to; and the advocator having thereupon withdrawn his opposition, the Act, as it now stands, received the Royal Assent. There was nothing illegal in the advocator's opposition ; and every thing done in Parliament must be held to be solemniter actum. We must assume that Lord Shaftesbury and the legal officers of the House of Lords were perfectly cognisant of the whole matter and had maturely considered this enactment before it was suffered to pass. The Arms part of this clause, no doubt, has the appearance of being a preamble merely; but the whole section must be read is connected together, and forming one enactment. Then we find that the first part of the section contains a statement of fact, which, with what follows, makes the whole enactment clear and explicit. It was argued by the respondent that Parliament had no power to confer heraldic honours; but we cannot for a moment assume that they have done anything illegal or ultra vires. In this state of matters Parliament having declared the right of the heir of line to the indivisible honours of the family, and inter alia to the supporters, it follows that the advocator is clearly entitled to the supporters under the statute ; and this right he is to have entire-unencroached upon by the respondent.

The enactment of the statute is express, "that the said Sir R. K. Dick, being a younger branch of the said families, in taking the name of Cunyngham, and  arm of Cunyngham  of Lambrughton, shall do so with the difference and mark of cadence in such cases applicable to a younger branch." This is a provision which must be strictly enforced; and the question is, Has the Lord-Lyon, An introducing into the arms, for a difference, "on a canton, the badge of Nova Scotia," sufficiently complied with the terms of the statute ? Without going into, the heraldic dispute we have here a very important question on the statute. I am not satisfied that he has done so, for, without any deep knowledge of heraldry I can see that what has been assigned as the difference, is not a mark of cadence [1149] at all. From the emblazonment of the coats-of-arms of the chiefs of these families, produced in process, I find that they bear the badge of Nova Scotia on a  canton, as an honourable distinction, in the very same place where the Lord- Lyon has put it as a mark of cadence, denoting a younger branch. What difference is to be introduced, so as to comply with the statute, it is not for me but for the Lord-Lyon to determine ; but this is clear, that the badge of Nova Scotia is not a mark of cadence. I hold that the difference assigned by the Lord-Lyon is not a compliance with the Act of Parliament, and I am therefore for adhering.

LORD MACKENZIE.— I  am of the same opinion. On a review of the interlocuter of the Lord-Lyon, I cannot hold that he has implemented the Act of Par liament.

The decision of the Lord Ordinary consists of two parts: The first alters the  interlocutor of the Lord-Lyon, and "remits to the Lyon Court, with instructions to award to the advocator, in the matriculation of his arms, the arms. and supporters of the families of Cunyngham of Lambrughton and Dick of Preston. field, as the senior heir of these houses." It is not disputed that the advocator is the senior heir of line of these houses, but it is contended that the respondent, as the heir-male, is the head of the house, and entitled to use the family arms and supporters. I give no opinion on the merits of that question at common law, but, at any rate, under the Act of Parliament, the decision of the Lord Ordinary, as between the present parties, is perfectly right. We must adhere to the Act, and it expressly gives the supporters of the family to the advocator. It seems to be argued by the respondent, that because neither of the remote ancestors, named in the Act of Parliament, used supporters, therefore no right to supporters was conceded to the advocator. But I do not limit to Sir John Cunyngham and Sir James Dick the reference in the Act to '"his said ancestors." 1 think it embraces all the intermediate ancestors of the advocator, one of whom, Sir Alexander Dick, obtained a grant of supporters, produced and founded on by the respondent himself. We must interpret the clause of the Act m referring to this Sir Alexander, just as much as to any of the other ancestors to whom the advocator is served is heir of line. I do not know whether these original ancestors of the family had supporters or not. It is not proved by either of the parties that they had ; but the advocator founds on the grant in the patent to Sir Alexander Dick in 1771. He argues, that this patent was not a grant de novo, but merely a regrant of those originally belonging to the family. But whether the original use was founded on right or sufferance, and in whatever way the present question would have been settled by the rules of common law-whether in  favour of the heir of line or the heir-male—there can be no doubt that now die matter is fairly settled under the Act of Parliament. The advocator has right to the indivisible honours, and specially has right to the supporters ; and this right is reserved to him, entire.

On the second point, I am equally clear that the Lord Ordinary is right. The statute-and it is not merely a statute, but a contract between the parties—expressly enacts, that the difference and mark of cadence introduced into the arms shall be applicable to a younger branch. It appears to me that the badge of Nova Scotia is no mark of cadence. It is a mark of honour. Its introduction into the coat of arms merely indicates that the bearer is a baronet of Nova Scotia. It does not at all show that the bearer is a cadet, and not the head of [1150] the house. I agree with the advocator's counsel, in the impropriety of introducing any thing that contains the royal arms as a mark of cadence. But what chiefly moves me, is, that this is truly no difference at all. The badge of Nova Scotia may be borne by a baronet, whether he is the head of the house or a cadet ; and the instances produced by the advocator were quite irresistible, when he showed that the chiefs of this very family, who happened to be baronets, bore this badge on a canton, in the place where it is assigned by the Lord Lyon difference. They so bore it, because it was a mark not of cadence, but distinction.

LORD FULLERTON. —There is here raised a question which would have been much better submitted to another tribunal. It is one involving no patrimonial interest, and merely relating to heraldic honours. As these are presumed to be the creations of the Crown, I should have thought any competition regarding them might have been left to the determination of an official specially apppointed for that purpose, rather than made the subject of discussion before a court of law.

But I am afraid we cannot avoid the inquiry on that ground. It is fixed by decision, that the raising of such questions before us is competent ; and we must determine it as we best can, guided by the lights which have been afforded ion' by the elaborate arguments we have heard.

I must say, however, that it is rather a relief to consider, that the question here is limited to the construction of a statute. For if we had been obliged to enter into the wider field, embracing the descent of heraldic honours at common law, if such an expression is allowable, I ant by no means prepared to assent to the proposition so broadly laid down by the advocator, that in every cam which the holder of such honours dies, leaving a collateral heir-male, and daughter or daughters, his heirs of line, the honours will go to the daughters an& their descendants, and that the heir-male will take them only under a brisure cc mark of cadency. Speaking with all due diffidence on such a mystery, I must say that the cases put and referred to by the advocator, do not by ally bear out that proposition. He has put the case of a peerage going to a female, the heir of line, or of the descent of a territorial possession on a female, the heir' of flue, and asks whether, in such circumstances the heraldic distinction would not go to the heir of line, though a female, to the exclusion of the heir-male? think it is quite possible, that in such cases the Lyon Court would award armorial distinctions to the heir of line; and the cases of that being done, and acquiesced in by the heir-male.

But to test the general principle so broadly laid down, one must vary the circumstances and suppose that the peerage, or family territorial possession went to the heir-male. Could it be maintained, that in that case the Lyon Court was  bound to award, and did in practice award, the armorial bearing to the heirs female, the heirs of line, and grant them only under a mark of cadency to heir-male, practically the representative of the family? And this is the proposition which, but for the statute, it would be indispensable for the advocator to make out. Certainly, in the matter of the supporters, that is the case.  is no evidence that those supporters were borne by any of the family before Sir Alexander Dick, the father of the respondent, and grandfather of the advocator. They are contained in the patent granted by the Lord Lyon to him, as Dick of [1151] Prestonfield. They have no relation to the arms of Cunyngham, but are attached, to the arms of Dick of Prestonfield. The territorial possession of Prestonfield has gone to the respondent m heir-male; and at this moment the advocator has no connection whatever with that territorial possession. Now whether, in these circumstances, the arms and supporters of Dick of Prestonfield ought to go, not to Dick of Prestonfield, but to one who is not, and does not, pretend to be, Dick of Prestonfield, but only the heir-female and of line of the former Dick of Prestonfield, is a question which I should be, as at present advised, not disposed to decide in favour of the advocator.

But I agree with the Lord Ordinary in thinking that there is enough in the statute to guide our decision. Whatever may be the general effect of a private Act of this kind, as fixing the law in relation to the rights of other parties, it may be safely assumed to fix the law of this case between the advocator and respondent, by the arrangement between whom it was obtained in the terms it now bears.

The recital is, that the senior heir of line of Sir John Cunyngham and Sir James Dick (unquestionably the advocator), " has succession to all their indivi sible rights not carried from him by entail or settlement; and specially has right to bear and use the arms and supporters of his said ancestors." And though the supporters do not seem to have been borne by Sir John Dick, but were given to Sir Alexander, still, being rights belonging to an ancestor, and not expressly carried by entail or settlement from the advocator, they must, according to the law as laid down in that recital, which must be hold as the joint act of both parties, go to the advocator as the senior heir of line; and accordingly, the enacting clause is, "that the said rights and arms are hereby reserved entire to such senior heir of line."

The enactment as to the arms of Cunyngham. is still clearer-" that the said Sir Robert Dick, being a younger branch of the said families, he and his heirs male, in taking the arms of Cunyngham, shall do so with the difference or mark of  cadency in the arms applicable to such junior branch."

Now, the pretended difference given by the Lyon-depute is truly no differslice nor mark of cadency at all. It is the badge of the knighthood of Nova Scotia, borne as an addition to the family arms by any one, oven the chief of the family, who happens to hold that dignity. Accordingly, it appears, from the blazonings now produced, to have been so borne by Sir John Cunyngham, Sir James and Sir Alexander Dick. It seems impossible to view this as a difference or mark of cadency, in the sense contemplated by the statute. Therefore I think that upon this, as well as the matter of the supporters, the interlocutor of the Lord Ordinary is well founded.

LORD  JEFFREY.—  I  concur with your Lordships, and particularly on that point which we must all feel to be a great relief-that we can rest our judgment on the construction of the statute, and need not go into the question which we would have been called upon to decide, had the statute not existed, upon the common law of heraldry. Wec do not adjudicate that question of common law. It certainly is a novel and curious question ; and I confess, that if it had arisen in the abstract form, it would have very much embarrassed me. The respondent said that the plain common-sense view of the matter was in favour of the right of the heir male. If I may be permitted to take a common-sense view, I should say [1152] that there is neither an inflexible rule nor a uniform practice in the matter.  There may be cases in which the heir of line will exclude the heir male, and there may be cases where the converse will be held. In my opinion the common sense rule is, that the chief armorial dignities should follow the more substantial rights and dignities of the family If the heir male succeed to the title and estates, I think it reasonable that he should also succeed to the armorial bearings of the head of the house.' I would think it a very difficult proposition to establish that the heir of line, when denuded of every thing else, was still entitled to retain the barren honours of heraldry. But I give no opinion upon  that point. I think the right to supporters in this case rests upon the Act of  Parliament. And I cannot but hold, with Lord Mackenzie, that the Act passed after a compromise or contract between the parties, by which the one agreed to withdrawall opposition to the bill then before Parliament, provided the other would recognise his right to the supporters and other insignia of the head of the house.  The respondent, who now objects to the Parliamentary adjustment of these armorial rights, has told us that Parliament usurped the jurisdiction of the Lord-Lyon.   But even if Parliament had no jurisdiction in itself to declare the rights of parties in reference to heraldic honours, was there not a prorogation of that jurisdiction by consent of parties ? Are their months not closed by their own act, in that they  went before Parliament and asked for an adjudication of the matter? Esto  then that the common law of arms would favour the view of the respondent, this statute must stand in his way. But I do not assent to the argument that Parliament cannot grant arms ; that is hardly a correct expression. It may be indecent to suppose that Parliament would go so far out of its way as to make a grant of arms or to make a bishop ; but we cannot enter upon that consideration in giving judgment on an Act which was passed on the consent of parties, first, because of that consent, and, second, because this is a statute of the realm, to which, as a Court, we must give effect. The question, therefore, comes to be, what is the construction of the Act? I think that it amounts to a recognition of the heir of line, not the heir-male, as the head of both families, and of his right as holding that position to all their indivisible heritable rights, and to the arms, including the supporters-if not absolutely, at all events in a question between the present parties. There is no dispute that the advocator is the heir of  line, and the 21st section seems to have been most anxiously framed with a view to reserve to him entire the right to bear the arms and supporters of his "said ancestors." I cannot adopt the view that the terms, "his said ancestors'' refer exclusively to the two heads of the respective families who are named as such in the Act of Parliament. It was never meant to exclude intermediate links, not mentioned but to whom the advocator stood in precisely the same position, as heir of line served and retoured. It is said that these older ancestors never used supporters. That is not proved, but left in doubt. At any events, it is proved that Sir Alexander Dick had a right to supporters, and  I hold that the Act covers the right to these supporters. At all events, it is clear from the enacting clause, that the respondent, who is therein declared to be a younger branch of the Lambrughton and Prestonfield families, has no right to use and bear these supporters.  He is subordinated to his chief; and that being the case,  I have no doubt that Mr Cuninghame has the right to supporters.

Then, is to the sufficiency or the mark of cadence I agree, with the Lord Ordi[1153]nary in rejecting it as a perversion  of the terms of the Act, I am not moved by the argument, that this is a case in which the Court cannot interfere.  The Court is bound to see that the provisions of the Act are not evaded; and if the Lord Lyon has invaded the rights of the advocator under the statute, the Court are entitled to see that justice is done him. Under the statute his rights have been reserved to him entire, and he has, therefore, a right to be satisfied that the mark of cadence assigned by the Lord Lyon is truly such. The Act says c expressly, that the arms of the respondent shall be taken with the difference or mark of cadence applicable to a younger branch. Even setting aside the Act of Parliament, there is here such a manifest infringement of the ordinary rules of heraldry, as would entitle us to take up the case. 1 am not sufficiently skilled in these rules, and it is not my province to say what will be a proper mark of cadence; but it must be such as will show to all, the inferiority, or cadetcy, of the respondent's branch of the family. The badge of the baronets of Nova Scotia, in whatever part of the shield it may be placed, cannot possibly be understood m a difference in the heraldic sense. It is a mark of dignity-an honourable addition. While the baronetcy remained with the chiefs of these families, we find that this badge formed the compliment of their arms. How, then, can it mark inferiority ? I think these grounds are quite clear of any invasion of the Lyon's province of determining what is a proper difference. I cannot lay any weight on the single case cited by the respondent, where a crozier was incorporated in the shield as a difference. If the badge of Nova Scotia can be borne as such, so might a ducal crown. The respondent is bound to assume a mark of minority, inferiority, or cadency, clearly indicating that there is a higher branch of the family than himself, and which can be read as such by all persons conversant in the most recent form of this hieroglyphic type. Most assuredly that cannot be understood as a mark of inferiority, which was borne in the same corner of their shields by no less than four heads of this family as a badge of honour.

For these reasons, I hold that the Lord Ordinary has found well on all the points.

THE COURT adhered.

ALEXANDER SMITH W.S. --- SCOTT  & GILLESPIE,  W.S.----Agents.

Petition MacRae, 22nd April 1909.  Lyon Court, unreported.

John MacRae-Gilstrap, major of the 3rd Battalion of the Black Watch, who had previously lodged a caveat, appeared and lodged answers, stating that he was the second son of the late Duncan MacRae, who was head of the family of MacRae of Conchra. He denied that the Petitioner, or any of his ancestors whom he represented, was Chief of the Clan Macrae, or used arms as such ; and he denied that the petition was competent in so far as it asked Lyon to recognize the Petitioner as Chief of the Clan Macrae.

The Petitioner objected that the Respondent had no locus standi; that he represented no one but himself ; that his elder brother, who was head of his family, was aware of the Petition, and was making no objection; that the Respondent claimed and could claim nothing that the Petitioner was claiming (Macdonell v. Macdonald, 20th January, 1826, 4 Shaw, 371). The Respondent argued that he had an interest to object to any person being put over him as his Chief. The Petitioner explained that the Court was not asked to come to any judgement that the Petitioner was Chief of the Clan.

The Court sustained the Respondent's locus 'in so far as his right to be heard on the question of the existence of the clan Macrae and its chiefship.'

On the merits the Petitioner produced a declaration of his chiefship signed by a number of persons of the surname of Macrae, which he stated represented the vast majority of the Clan. He also produced other evidence of his accepted position, and to prove that in the past Macrae of Inverinate was the chief or head (Ceann) of the clan (Fine or Cinnidh), being called in Gaelic Ceann Fine and Ceann Cinnidh, both titles meaning that he was chief of a clan ; and, separatim, that he was head of the chief family of the name Macrae. To prove the nature of the arms of Macrae, and their use before 1672, he pointed to the Porteous manuscript in Lyon Office, in which they occur, and argued that the arms of Macrae, without any qualification) were necessarily the arms of the Chief of the name.

The Respondent led evidence to show that the opinion of the Petitioner's chiefship was not unanimous; and that Clan Macrae in the past was notoriously a clan which had no chief other than Seaforth ; and argued that Clan Macrae was a clan only in a popular sense.

Lyon pronounced judgement as follows: 'The Lord Lyon King of Arms having taken the proof and beard Counsel for the parties thereon, Finds that the Petitioner has failed to prove user of arms or supporters previous to the passing of the Act,' concerning the privileges of the Office of Lyon King-at-Arms, '1672, cap. 217, Refuses the prayer of the Petition, and Decerns.' His Lordship's Note accompanying the judgement is as follows:

Note. This is a petition for a matriculation of arms by Sir Colin Macrae, representing the old family of Inverinate. The term 'matriculation of arms' is used in the ordinary practice of the Lyon Court to denote (a) the registration, by a cadet, of a coat of arms which has been already recorded by an ancestor in his own name with a suitable difference, if necessary, or (b) the registration in the present Lyon Register of a coat which has been used by the family of the applicant previous to 1672, but which has not been recorded in terms of the Act of that year, which required all persons who claimed arms to give the same in to the Lyon, in order that they might be recorded in his books. The only other way of recording arms is by applying for a new grant or patent, which the Lyon is bound to give to all 'virtuous and well deserving persons.' As the Petitioner does not aver that he is a cadet, but, on the contrary, that he represents the senior line of the Macrae family or clan, it is evident that he can only ask for a matriculation on the ground of user of arms before 1672.

The question of arms is the first point which I must take into consideration, because under the terms of the Petition it is not a matter of pedigree which is primarily involved, still less is it one of the Chiefship of a clan with which this Court is concerned only so far as it might be the warrant for a matriculation of supporters. It is a singular fact that this question of arms, the most important, so far as I am concerned, should have been relegated to a very minor place both in the proof itself and in the speeches of Counsel. But it forms the only reason why parties can appear before me at all, and it is, therefore, obvious that it must be considered first. The Petitioner, according to the rules of this Court, must prove user of arms before 1672 by his direct ancestors. In support of his claim he produces an entry of arms in an armorial MS. in the Lyon Office, originally compiled by Porteous, who was Snowdoun Herald in 1661. The entry is for Macreach (or perhaps Macreath), Argent, a fess between three mullets in chief and a lion rampant in base gules. It is not assigned to any particular individual, but, like several other entries in the same MS., has a more general name attached. I may take it, however, that Porteous was satisfied that in his day these arms were borne by some one of the name of Macrae (I do not attach any weight to the contention for the Respondent that Macreach meant anything else than Macrae), though it is a singular circumstance that it is only in this armorial MS. that any mention of such arms can be found before 1672. The coat, of which the blazon is given above, 15 somewhat suggestive. It is not in the least like any arms borne by other West Highland clans. But in the course of the proof it was shown, and I have no reason to doubt the accuracy of the assertion, that the Macracs came originally from Clunes, a place a little to the west of Inverness. Now this is just the part of the country where .armorial bearings having stars or mullets as their chief charge might be expected to appear. The great house of Moray bore azure three stars argent, while that of Innes reversed the tinctures and bore argent three stars azure. The Dallas family, too, who were inhabitants of the neighbouring district, bore stars in some form or other on their shield, and the coat assigned by Lyon to General Sir Thomas Dallas, K.C.B., in 1815 bears a close resemblance to that of Macrae as given by Porteous, argent a fess between five mullets of six points, three in chief and two in base gules. This is exactly the Macrae coat, save that a lion rampant has been substituted for the mullets in base. The presumption, therefore, is that some person of the name of Macrae bore that coat before the family left Clunes, and this shows (as indeed is admitted by both parties) that the date of 1200 given for the migration of the Macraes from Clunes to Kintail by the Rev. John MacCra must be much too early, as armorial bearings were at that time entirely unknown in the Highlands. By whom these arms were originally borne has not come out in the evidence; the first person of the name of Macrae who assumed them was probably a vassal of some of the great families who bore somewhat similar charges on their arms. It was quite a common practice for the arms of verse,ls to be founded on those of their superiors, even though there was no blood connection whatever.

Accepting Porteous's blazon of the arms as that of a coat to which some Macrae had a right or had assumed, I may point out that before the Petitioner can prove his right to it, he must show that it belonged to a person of whom he is now the senior male representative. He cannot come here and say : 'This is a Macrae coat or the Macrae coat, and in virtue of my being the chief of the clan, I claim to have recorded in my name.' There is no such thing, strictly speaking, in Scottish Heraldry as a 'family' coat of arms, that is, a coat which may be used indiscriminately by the members of one family or clan. The head of a house bears a certain coat of arms  but all younger sons can only bear these arms of their ancestor with a certain difference, such differences being assigned by the Lyon. And further differences must ,he assigned to younger sons of younger sons in all generations. This indicates how jealous the statutory armorial law of Scotland has always been of any infringement the rights of the main line of the family. Such being the case, I cannot find that the Petitioner has proved, or even attempted to prove, that any of his ancestors, representatives of the house of Inverinate, have ever borne the arms given by Porteous, or indeed any other, except in comparatively recent times. Had they done so it is almost inconceivable that some relic denoting such use should not have survived to present. No seal, no tombstone, no article of domestic use, is known to exist with these arms upon them. The only things of the kind that have been produce belonging to the Inverinate family are two seals, the one bearing the arms as given by Porteous with the crest of a cubit arm holding a scimitar and the motto Fortitudine, the other has some remarkable features,-the arms on the shield are the same, but the fess is charged with a thistle slipped the crest is a unicorn trippant : there are two mottos. that above the crest being Libertas et Honor,' and that below the shield 'Trust in God and fear nought.' But the most important feature of difference in the second achievement is the presence of supporters in the shape of two Highlanders with drawn swords in their hands. But these seals are evidently modern ; from the style of their execution I should say that they date from the early part of last century. They show, in the first place, that the Macraes of Inverinate were not certain at that period what exactly their arms were. It may also be presumed that the seal without the supporters is probably the older of the two ; the other one was evidently assumed as that of chief of the clan. Unfortunately, however, for the sake of heraldic accuracy the one without the supporters would connote the older family of the two, because the fess is uncharged. In the seal with supporters it is charged with a thistle, which at once suggests, from a heraldic point of view, that the arms are those of a junior branch) which is quite inconsistent with the presence of supporters. It is significant too, that this seal is almost certainly of a later date than 1815, which was the date of the death of the last Earl of Seaforth. It is not stated who executed either of the seals in process : I should have thought them the work of Alexander Deuchar but for a reason to be mentioned presently ; he was a well-known seal engraver who flourished in Edinburgh in the early part of last century. He did not hesitate to please his clients, and he readily invented arms for any one who came to him, and as he had considerable knowledge of heraldry, he generally composed them on better lines than is usually done by the ordinary seal engraver. He made large collections, which have been much scattered since his death, but some of them are in the Lyon office, and in a volume which was compiled 1807-12, there are several so-called Macrae coats given.  The arms of John Macrae of Inverinate appear exactly as given on the first seal mentioned above, with the exception that there are only two mullets instead of three. This version is what Mr. Horatio Macrae gives as the 'Macrae Arms' in his letter to Major Macrae-Gilstrap of 19th January, 1886 (No. 39 of Process). Exactly the same arms are given in this collection for a George MICrie, but in his case the crest is Dot a cubit arm, but an arm embowed. Other Macraes appear in Deuchar's collection ; James M'Cree hits a similar coat to Inverinate, but has the fess blue, and he is the only one of the name to whom Deuchar gives three mullets in chief. Andrew Macrae has also the fess blue, but has only two stars in chief. Archibald M'Cray has two stars in chief, but has the fess gules, and charged with another star argent.

It does not seem necessary to go further into the question of the coat of arms itself I regret I cannot find in the proceedings evidence to show that any arms were born, by persons whom the Petitioner has proved to be ancestors of his. But besides the arms there is the question of supporters ; under the terms of the Petition, of course, if the Petitioner is not found entitled to arms, he cannot be entitled to supporters, which are only what Nisbet calls 'exterior additaments' to a coat of arms. The prayer of the Petition is that I should 'matriculate ' in the Lyon Register in name of the Petitioner as Chief of the Clan Macrae the ensigns armorial indicated in the Petition. As a matter of fact, however, there are no specific arms mentioned there ; all that is said is that certain armorial bearings were borne by the Petitioner and his ancestors long anterior to 1672, the passing of the Act regulating the registration of arms. No attempt has been made in the whole course of this case to show that any of the petitioner's ancestors ever bore supporters, and supposing he had been successful in proving his hereditary right to arms, and in consequence to have these ' matriculated,' it would have been necessary for him, supposing he had established the fact that he was Chief of the Clan Macrae, to Petition not for a mere matriculation of supporters, because something which is not at present on record, and the existence of which previous to 1672 is riot proved, cannot be made the subject of matriculation, but for a new grant of supporters.

Under the terms of the present Petition, it does not appear to me to be necessary to go into the further points in this case which have been raised during its discussion, but as the Petitioner would be quite entitled to present a new Petition praying for a grant of arms and supporters as the Chief of the Clan Macrae, it may he convenient to allude to the question of supporters in relation to that of the Chiefship. It is an accepted fact in Scottish armorial law that Chiefs of Highland Clans are entitled to add supporters to their arms. The other classes of persons who are in right of such adjuncts are (a) Peers, and (h) lawful heirs male of the bodies of Minor Barons who held their lands from the King under a Barony title previous to 1587, when they sat in Parliament as Barons-after that date they were relieved from attendance and a system of representation established. But as Mr. Tait, the then Lyon Depute, remarked to a Commission in 1821, 'persons having right on this ground will almost always have it established by ancient usage and the want of usage is a strong presumption against it.' Cases, however, have occurred within recent years in which supporters have been granted to such representatives. As to Highland Chiefs, Sir George Mackenzie in his Treatise on Heraldry remarks, 'I crave liberty to assert that all our chiefs of families and old Barons may use supporters,' thus including in the privilege not only Chiefs of Clans, but the heads of any considerable families, and he goes on to quote specific instances. such as the Haliburtons, Fotheringhams, Irvines, etc. But Sir George seems to found their right more on ancient custom than anything else ; 'these Chiefs have prescribed a right to use supporters and that such a right may be prescribed I have proved formerly, and what warrant is there for most of our rules in Heraldry but in aged custom ?' Mr. Tait says in the above mentioned report regarding the right of Chiefs of Clans to supporters, that they have generally such a right either as Barons (great or small) or by ancient usage. c When any new claim is set up on such a ground, it may be viewed with suspicion . . . it is very difficult to conceive a case in which a new claim of that kind could be admitted.' Now in this case there is not an attempt to prove any ancient user of supporters. All that need now he asked would be a new grant of such, but to enable me to make this, I should require clearer proof of the existence of a chiefship than has been produced. There is no doubt a certain amount of popular belief in the district that the representative of the Inverinate branch is the Chief of the Clan Macrae) but there is a great want of definite evidence to show what this belief was founded on. Professor Mackinnon was examined as to a Gaelic Lament on the death of Farquhar Ban of Inverinate, who is said to be there described as 'Chief.' The words used in the original were Ceann Fine. It is apparently the only known instance of Fine being employed to denote a Chief, it being generally used as an expression for a Clan. There was much discussion as to difference in meaning between Ceann Cinnidh, Ceann Fine, and Ceann Tighe, but it is not necessary to go into them here. Had the Petitioner instead of coming to the Lyon Court gone to the Court of Session and asked for a Declarator that he was the Chief of the Clan Macrae, all this would have been much more to the point. But as he only asks for a matriculation of arms on the ground that his ancestors used them before 1672, and as I have found that he has not proved this, it does not appear to me that it is necessary for me to go into the question of Chiefship, in detail.

Royal College of Surgeons of Edinburgh v. the Royal College Physicians of Edinburgh 
(1911 S.C. 1054)

Background

In Feburary 1911 the RCP presented through the Secretary a petition to the King asking for precedence over the RCS. Almost simultaneously, the RCS presented a petition in the Court of Lyon King of Arms asking him to "find, decern and declare that the petitioners are entitled in all time coming to precedency" over the RCP "or to grant unto the petitioners such precedency." After some correspondence, the Secretary for Scotland advised Lyon King to decline jurisdiction, which he did by an interlocutor of March 9, 1911. The petitioners (the RCS) appealed, and the case was called before the First Division of the Court of Session on march 14; the court allowed respondents (the RCP) to amend their answers by adding a statement to the effect that Lyon has no jurisdiction to deal with the question raised in the petition. On April 12, Lyon issued an interlocutor, finding that "he has jurisdiction so far as concerns a claim to a right of precedence" (and appending a note reproduced in full in the source). The RCP appealed, and the case was heard before the First Division of the Court of Session on May 18.

The source summarizes the arguments for the appellants (RCP): that in questions of precedence there was no matter of legal right involved which could be submitted for the determination of a Court of law; and in any event the Lyon King has no jurisdiction to determine such a question. The respondents (RCS) replied that questions of precedence were questions of legal right; and that Lyon had jurisdiction to deal with them.

Advising took place on June 20, 1911, I quote in full the statements by the Lords.

[1059]
[...] At advising on 20th June 1911,—

Lord President.—This case originated by a petition presented in the Court of the Lord Lyon King of Arms by the Royal College of Surgeons, in which they ask for a decree from the Lord Lyon decerning and declaring that the petitioners are entitled in all time coming, on all public or ceremonial occasions, to precedency over the Royal College of Physicians.

The case was before your Lordships before, and parties were allowed to amend the pleadings that they had made; and, accordingly, in the amended pleadings and the answers for the Royal College of Physicians, they plead that the Lord Lyon King of Arms has no jurisdiction to deal with the question raised in the petition. The Lyon King of Arms has pronounced an interlocutor that he has jurisdiction, and continuing the case for further procedure, and it is against that interlocutor that this appeal is taken before your Lordships.

[1060]
Now, your Lordships will have already noticed that this petition is presented as a petition to the Lyon King of Arms in his capacity as a Judge in one of the inferior judicatories of Scotland. From that inferior judicatory an appeal lies to your Lordships' Courts, and your Lordships have to determine upon the merits such things as come from that Court by appeal. And I think it is a corollary of that that your Lordships would enforce any decree, which was pronounced, by the usual methods by which the Court enforces its decrees.

Now, having said that, the next observation I make is this, that there is no trace in the statutes which deal with the office of the Lyon of any jurisdiction being given in the matter of precedency. There is no authority for it in any text writer—because the note that was quoted of a very learned editor of "Erskine" is not an authority—and there is admittedly no recorded instance of a decision of such a matter.

I think it is enough to dispose of the case; and I only say further that so far from the terms of the royal warrant of 1905, which is referred to in the note which the Lyon has appended to his interlocutor, substantiating his jurisdiction, as he thinks they do, they seem to me to act in exactly the opposite way. The royal warrant of 1905 established a scale of social precedence in Scotland. It did not, as a matter of fact, deal with the College of Physicians or Surgeons, but that is immaterial. It went on—and this is the point upon which the Lord Lyon based his view—"Our will and pleasure therefore is, that Lord Lyon King of Arms, to whom the cognisance of matters of this nature in Scotland doth properly belong, do see this order observed and kept." That seems to me, upon the face of it, an absolutely ministerial injunction, and nothing more. It might be, I think, a very difficult constitutional question whether it was within the prerogative in 1905 to create a jurisdiction which did not exist before. But I do not think it is at all necessary to go into that. It certainly might acknowledge one that existed before, but upon the terms of it I think it is plainly an injunction to Lyon that lays upon him certain ministerial duties; and that he has a ministerial office in seeing that such precedence as is enjoined by the King in a warrant is observed in any procession or ceremonial "whereof Lyon hath the management," I have no doubt.

Upon these very simple grounds I think that the interlocutor must be recalled, and the petition dismissed.

I really cannot imagine how the question of a supposed precedence between the one body and the other could be a matter which we, sitting as a Court of law as we do in reviewing the judgment of the Lyon, could possibly propose to carry out by interdict, and the sanctions of interdict, imprisonment, and so on. But while I say this, I may also say that if people are not dealing with a question of law, not going, as here, by means of a petition to ask a decree, but going to a person to settle a dispute between them, I could not imagine any more proper person to go to than the Lyon. And if these two bodies chose to agree between themselves that they will abide by his decision, I see no reason why—not sitting in his Court, but simply as a high authority on such questions—he should not decide such a dispute. No more proper person, I think, could be found. But I think there is neither precedent, nor authority, nor principle for making [1061] it a matter of litigation in the Courts of law; and, accordingly, I propose that we should deal with the petition as I have said.

Lord Kinnear.—I am of the same opinion. I think it enough for the decision of this case that the supposed jurisdiction of the Lyon Court in this matter certainly rests upon no Act of Parliament, and upon no such continuous and accepted practice as should enable the Court to presume a legal and constitutional origin. There is no instance before us of the supposed jurisdiction having been exercised, and, as I have said, there is no statutory foundation for it.

I also agree with your Lordship's observation that if bodies of this kind resolve to submit any dispute about the precedence to anybody, the Lyon is a most appropriate, probably the most appropriate, person to whom they could go. But although the Lyon Court is a statutory tribunal with undoubted jurisdiction on other matters, the Lyon's decision upon a submission of that kind would be the decision of an arbiter, and not the decision of one of the Courts of the realm.

Lord Johnston.—It seems not to be contested that the Lyon King of Arms has certain executive functions in relation to precedence. And if so, it does not seem to be unreasonable that he should have jurisdiction to inquire into and determine questions of precedence solely in order to enable him to exercise the functions of his office, and so as in no way to usurp any higher authority in this matter. If he has to deal executively with questions of precedence, it would seem more appropriate that he should determine such ab ante and after hearing claimants, rather than summarily and in course of the execution of his office. Whether he has or has not such limited jurisdiction I do not know, and I would not wish to prejudge. But I think it is clear, first, that so far as this case goes, there has not been at all clearly made out to this Court what are the functions of the Lyon's office which require that he should determine, even ad hoc, questions of precedence; and second, that prima facie at least, there does not seem to be any precedent.

I state the case thus, because the present question must be disposed of without a full examination into the history of the matter, which might adduce information which is not before us at present.

But I have examined the Scots Acts of Parliament, which throw a good deal of light both on the office of Lyon and on the question of precedence, and I am able to say that I find nothing, at any rate, in them, and in the Rolls of Parliament in which they are embedded, as printed in Thomson's Acts, to support the case for the Lyon's jurisdiction.

The Lyon appears at first on Thomson's page in the position of a herald merely. But in the middle of the sixteenth century he had become responsible for the exercise of their duties by messenger-at-arms. In 1567, cap. 80, provision is made for re-formation of the office of arms, in terms evidently pointing to irregularities both in the appointment and in the actings of messengers-at-arms, and, to that end, for definition of the Lyon's duties thereanent. This led to the Act 1587, cap. 30, which, as [1062] far as I can find, first establishes the Lyon Court. The Act reduces the number of messengers, places, or, at least, recognises their appointment as in the hands of the Lyon King, and directs him to hold two Courts in the year to inquire into complaints against them for malversation of office. This Court is made a Court of record. There are several confirmatory Acts—e.g., that of 1669, cap. 95.

Then in 1592, cap. 29, there is found what appears to be the origin of another branch of the Lyon's functions and jurisdiction. He may have had some such powers by prior usage, but this is the first recognition thereof by Parliament, and it has all the appearance of a new departure. I need not dwell on the matter in detail. It is sufficient to say that this Act originates the jurisdiction of the Lyon King in the matter of bearing arms. Duties of an inquisitorial nature are imposed upon him and his subordinates, and power to determine the right to bear arms and "to distinguish and decern them with congruent differences, and thereafter to matriculate them in their books and register." This Act is also confirmed in later Acts, as, for instance, 1672, cap. 47. The Lyon's jurisdiction in this matter was partly quasi-judicial and partly ministerial. But it seems to spring from statutory authority.

But there is another phase in Parliamentary history which brings the Lyon King somewhat nearer to the question of precedence. In the last two centuries of the sitting of the Scots Parliament there is constant evidence in the proceedings in Parliament of questions of precedence. But these are questions of Parliamentary precedence—of precedence in what was termed the "riding"—that is, in the cavalcade which was in use to escort the king or his commissioner from the Palace of Holyrood House to the Parliament House, and of precedence in voting in Parliament, where the votes apparently were taken by calling the roll. I think the first instance of legislation on the subject is found in 1587, cap. 17, where an Act was passed against the disputations occurring about precedency of place and voting in Parliament, which were described as frequently leading to unseemly breaches of the peace on the floor of the House. This led to the Act 1587, cap. 18, which appointed a commission to inquire into and determine the proper order of precedence. In this commission the Lyon King of the day was included, but the president and sine quo non was the Earl Marshal. Subsequent Acts renewed the commission, but nothing seems to have been done until 1606, when King James, after his accession to the throne of England, made a remit to a commission of his Privy Council to the same effect. This resulted in the decree of ranking of 1606, of which I understand copies only are extant, and which contained this curious saving clause, reserving the right of all persons finding themselves prejudiced by the ranking, "to the recourse to the ordinare remede of law be a reduction before the Lords of Council and Session of this present decreet, for recovery of their own due place and rank be production of mair antient and authentic rights, nor has been used in the contrare of this process, and summoning thereto all such persons as they shall think wrongously ranked and placed before them." The sequel of this decree of ranking was, inter alia, the litigation which proceeded in the Court of Session between the Earls of Glencairn and Eglinton, and was still pending as late as 1649.

[1063]
There are other instances of this question of Parliamentary precedence in the disputes between the burghs, which in 1579 and 1581 were referred to the Convention of the Burghs. Yet, notwithstanding a decree of the Convention, there is evidence in this proceedings of Parliament that in 1584 the Earl Marshal had displaced Perth in favor of Dundee by the king's command. Similarly, questions of precedence between high officers of state—as the Lord Register and the Lord Advocate—were frequent in the latter end of the seventeenth century, and in 1685 there is a unique instance of a reference by Parliament to the king to settle the question of precedence between the Earl of Roxburghe and the Earl of Lothian. Again in 1625 there is found a petition by the lesser barons of Scotland against the precedence granted by the royal warrant to baronets of Nova Scotia.

I have stated these details with a view of showing that the matter of precedence was not one in which the Lyon King had any original function of jurisdiction, although he was called in expressly to assist, where commissions to inquire and to determine a ranking were issued. This appears to me to be entirely against the contention of the Lyon King and the respondents. But the considerations I have adduced are, I think, useful also in enabling one to understand the bearing of the terms used in the final paragraph of the recent royal warrant of 1905 regarding precedence in Scotland, which at first sight occasion some difficulty. His Majesty intimates his royal will and pleasure that the Lyon King of Arms do see this order observed and kept, and he does so on the ground that to the Lyon King " the cognisance of matters of this nature in Scotland doth properly belong," This makes it clear that the Lyon King has some functions in the matter, but precisely what I have failed to ascertain, or how his intervention is made effectual. There is, however, a side-light on the point to be found in a copy of "the method and manner of riding the Parliament, with the orders and rules appointed thereanent," of date 1703, which is to be found in certain ancient heraldic and antiquarian tracts, published in 1837 from MSS. in the hands of the Faculty of Advocates by, I think, Mr Maidment. The Lyon King, "to whose charge the order of the riding is committed," is to ride in his vestments with certain attendants. It would rather appear, therefore, that the Lyon King's function is to see that established order of precedence is complied with in state ceremonials. For the exercise of his functions it may therefore conceivably be that he requires to ascertain what is the established order of precedence. For even the table of precedence of 1905 does not cover all question. But that is a very different thing from his judicially establishing such order of precedence on a permanent basis as he is asked to do here. While I do not think that this judgment is based on sufficient inquiry to foreclose the question as I stated it at the outset, I agree with your Lordships that the above considerations require that this appeal be sustained and the petition dismissed, as its prayer is of no limited character, but craves a decerniture that the petitioners are entitled in al