20th December 1776, the Lords refused a reclaiming petition without answers, and adhered. 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. 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 £. 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. 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.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. The matter was brought before the Lords by an advocation at the instance of Fingask. 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. 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.
The fees, no doubt, are fixed by the Act 1672, but Lord President thought that, as in other regulations of fees about that period, practice and change of times had introduced an alteration ; so this might be the case here, and therefore he proposed to remit that point to the Ordinary to hear further; which was agreed to. Moir augmented it, without any regard to this clause. without including any rent for 150 acres in his natural possession. Robert Moir succeeded him, under the entail, and brought an action against the substitutes, concluding, that the said George Moir having increased the rental above the sum of £.1000. The pursuer had his own arms matriculated in 1797, and he does not say that they are erroneous; nor does h set forth in his summons that he is the true chieftain or that he has right to the arms of the defender.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. 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.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. That, at all events, this Court undoubtedly had jurisdiction in all competitions of arms, as they in reality raised questions of patrimonial interest. 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.The complainers are the Lairds of Dundas, Halton, Polmais, &,c. The matriculations, since the year 1672, are all contained in one very large folio, in manuscript, on vellum ; and from the institution of said register to the present time the entries are regular, only until of late they did not mention dates. PROCURATOR-FISCAL of the LYON-COURT against MURRAY of TOUCHADAM.