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By taking a higher rent himself, he exercised the right of an unlimited proprietor; but did nothing which was inconsistent with his intention of circumscribing the powers of his successors. In the case of Murray it was found that the Lyon's jurisdiction was not privative, and this implies that the Court of Session has such a jurisdiction; that a question of this nature, while depending in the Lyon Court, may be brought here by advocation, or, after the thing is done, by reduction; and this I hold to be a well-founded doctrine.
The surplus rent, which he himself stipulated, may no doubt be levied by the Pursuer; but were he to renew the current leases, without confining the rent of the whole estate to £.1000, as he would then, by a voluntary act of his own, be violating the terms of the entail he would be guilty of an act of contravention. After a good deal of reasoning, the Court came to be of opinion, That the clause was to be held as discharged by the entailer, rebus ipsis et factis. We ought therefore to repel the defence so far as founded on defect of jurisdiction, and remit to the Ordinary [Lyon] to hear on the objections to the title and libel.
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. 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.
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. 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.
Some of the Judges at first doubted, whether succeeding heirs could raise the rental above the sum it amounted to at George Moir's death ; but it was observed, That even if this had clearly been his intention, yet, as limitations on property were unfavourable, and as the clause did not contain that precise prohibition, it ought not to be inferred by implication. Lord Pitmilly A difficulty arises from the way in which the Lord Ordinary's interlocutor is framed, reserving all questions of title.
The 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. 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. 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 where there were arms in a family, they could not descend to a tailzied succession, without certain distinctions. The Lyon Court is in fact just on the same footing as with other Inferior Courts. The Lord Lyon assigned to him the family arms and supporters, "with the badge of Nova Scotia on a canton," for a difference.Now there is no sufficient allegation to this effect here, and I hold that to be essential to the question of jurisdiction. In 1707, James Dick of Prestonfield was created a Baronet of Nova Scotia, by patent taken to the heirs-male of his body; whom failing, to the heirs-male of his daughter and sole heiress, Janet Dick.