Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JURISDICTION OF THE LYON COURT - FEES OF MATRICULATION.

Procurator-Fiscal of the Lyon Court
v.
William Murray of Touchadam

Date: 4 December 1776

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[Faculty Collection, VII. 36; Supp. V. 490, Dictionary, 7656.]

Gardenston. As this is an action for recovering penalties, it is necessary that the offence be proved. Mr Murray pleads, on the one side, that the records have not been regularly kept, so that it cannot be said that he is not matriculated; and, on the other side, that he and his predecessors have possessed for ages. Immemorial use establishes right in matters of more consequence than the present subject of debate.

Alva. In cases of this kind old possession must imply a right. Of this right we have the best evidence that the nature of the thing can admit of.

President. I am no favourer of the jurisdictions which may tend to oppress the subjects. Here Mr Murray's plate, equipage, &c., are forfeited, because he had borne arms which his predecessors have borne for 300 years. The Act 1672 is calculated against the usurpers of arms, and it declares that arms once matriculated must not be changed, but must remain the rule of bearings for ever. But I deny that the not being matriculated in the Lyon register implies a forfeiture. The Lyon was not inclined to carry the law to its utmost rigour, for he neglected to force matriculation. Would it not be strange that his neglect should imply a forfeiture? If immemorial possession is not sufficient here, I know not what can be sufficient? Independent of possession, which implies a grant from the Crown, Mr Murray, as a baron, has right to carry ensignsarmorial: I will therefore presume his right. There is no doubt that, in 1672, the Lyon would have been bound to matriculate this very coat-armorial. Possession, for an additional century, cannot make the right of Mr Murray worse. As to the register, it is of no authority, for it is no complete record. As to the extent of the fees, I have doubts. The Act of Parliament indeed is express, but practice may have departed from that rule: the fees however must not be arbitrary.

On the 4th December 1776, “The Lords, in substance, assoilyied Mr Murray adhering to Lord Hailes's interlocutor, (vide printed papers,) but remitted to Ordinary as to the article of the extent of fees. 20th December 1776, “adhered.”

Act. J. Boswell, A. Murray. Alt. D. Rae.