RANALD ALASDAIR MacDONALD of KEPPOCH v. THE LORD ADVOCATE FOR CONFIRMATION OF ARMS
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord President Lord Macfadyen Lord Nimmo Smith | XA22/03 OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL FROM THE COURT OF THE LORD LYON in PETITION AND OBJECTIONS of RANALD ALASDAIR MacDONALD OF KEPPOCH,- Petitioner and Appellant; against THE LORD ADVOCATE,- Respondent; for Confirmation of Arms |
Act: Sir Crispin Agnew of Lochnaw, Q.C.; Fraser Brooks & Co. (for David A. Brittain)
(Petitioner and Appellant)
30 January 2004
Introduction
[1]In these proceedings the petitioner seeks (1) recognition in the name Ranald Alasdair MacDonald of Keppoch, Chief of the Name and Arms of MacDonald of Keppoch, and of the Honourable Clanranald of Keppoch, Mac-'ic-Raonuill, and (2) warrant for the preparation of Letters Patent confirming to him and his heirs male such arms for MacDonald of Keppoch as may be found suitable and according to the law of arms. After sundry procedure the Lord Lyon, by interlocutor dated 10 December 2002, refused the petition. The petitioner has appealed to this court.
The procedural history
[2]The petition was presented in 1986. Objections were eventually lodged by the Lord Advocate, and the matter came before Lord Lyon Innes of Edingight for proof in April 1990. Both the petitioner and the Lord Advocate were represented at the proof. The Lord Lyon thereafter in due course pronounced an interlocutor dated 27 August 1990 in which he made a number of findings-in-fact, found in law that the petitioner was not entitled to be recognised in the name Ranald Alasdair MacDonald of Keppoch, Chief of the Name and Arms of MacDonald of Keppoch, and was not entitled to Letters Patent confirming to him and his heirs male the undifferenced Armorial Bearings of MacDonald of Keppoch, and refused the prayer of the petition. Although the words "in hoc statu" do not appear in the interlocutor as it is printed in the Appeal Print, they do appear in it as it is reported (MacDonald of Keppoch, Petitioner (No. 2) 1994 SLT (Lyon Ct) 2 at 4), and it is clear from the last two paragraphs of the Note appended to the interlocutor (at 11-12), and from the course of subsequent proceedings, that the Lord Lyon's intention was that the refusal of the petition should be qualified by those words.
[3]In 1995, on the petitioner's unopposed motion, the Lord Lyon allowed further evidence to be led in the Proof "in respect of the descent of Donald MacDonell in Leanachan Beg from Donald Gorm of Inverrary [sic]". No proof took place at that stage and nothing more appears to have happened until April 2002 when, on the petitioner's motion, amendment of his pleadings was allowed, and further proof was allowed "in relation to the descent of Ranald Macdonald, Raonuill, Crofter in Brackletter [No. 83] from Donald Gorm of Inverory [sic]". By that stage the Advocate General for Scotland had taken over from the Lord Advocate the function of representing the public interest in such matters. The Advocate General decided not to be represented at the further proof, but did not withdraw the objections originally lodged by the Lord Advocate.
[4]The further proof took place before Lord Lyon Blair. The evidence was presented in the form of affidavits sworn by a number of witness, and the submissions for the petitioner were made in written form. At the request of the Lord Lyon, an informal hearing took place, attended by the petitioner, his solicitor and counsel, and certain of the witnesses, for the purpose of discussing questions arising from the affidavits and submissions. Thereafter the Lord Lyon, on 10 December 2002, pronounced an interlocutor refusing the prayer of the petition.
The pedigree chart
[5]In order to understand the scope of the issue with which the further proof was concerned, it is convenient to refer to a pedigree chart which was appended to the consolidated report presented by the petitioner's expert witness, Hugh Millar Peskett, in the original proof before Lord Lyon Innes of Edingight. The chart forms Appendix IV in the appeal. It sets out Mr Peskett's understanding of the pedigree of the descendents of Ranald Mor, the seventh chief of Clanranald of Keppoch, who was beheaded in 1547. The chart conveniently assigns a number to each of the principal persons who appear in it, and we shall use these numbers thus - "Ranald Mor [1]" - as a means of consistent reference to persons named in the chart.
[6]It is sufficient, so far as the direct line of descent from Ranald Mor [1] is concerned, to note that it led to the twenty-first chief, Chichester [46], who died in 1848 without male heirs. The line of descent by which the petitioner [105] claims to be entitled to be recognised as chief begins with Alexander Buy [10], the fourteenth chief. The claimed line runs through Alexander Buy's son Donald Gorm of Inverroy Mor [20], Donald Gorm's son Alexander of Inverroy Mor [70], Alexander's son Donald [74], Donald's son Ranald [79], Ranald's son Donald [82], Donald's son Ranald [83], Ranald's son Alexander (Alasdair Raonuill) [85], Alexander's son Collin [88], Collin's eldest son Alexander [99], Collin's third son Huntly [101] who was nominated by his brother Alexander as his heir, and Collin's fourth son Donald [102] who was nominated by his brother Huntly as his heir, to Donald's son, the petitioner [105].
Lord Lyon Innes of Edingight's findings-in-fact
[7]The findings-in-fact made by Lord Lyon Innes of Edingight in his interlocutor of 27 August 1990 record that substantial parts of the petitioner's case were established at that stage. In the first place, findings (1) to (8), taken together, hold it established that, in the manner he claims, the petitioner is the heir male of his great-great-great-grandfather, Donald [82]. Secondly, findings (9) and (10), taken together, hold it established that Alexander of Inverroy Mor [70] was the elder son of Donald Gorm of Inverroy Mor [20], who was the fourth son of Alexander Buy [10], the fourteenth chief. Thirdly, in finding (11) it was held that no heirs male of the body exist of Allan [17], Archibald [18] and Alexander [19], the first, second and third sons of Alexander Buy [10]. These findings leave, as the only unproven element of the pedigree which the petitioner requires to establish to make out his claim, the descent from Alexander of Inverroy Mor [70] to Donald [82], which, according to the chart, passed through Donald [74] and Ranald [79].
[8]Lord Lyon Innes of Edingight further defined the outstanding issue by a number of negative findings-in-fact. He held in finding (12) that it had not been proved that Donald [82] was the son and heir male of Ranald [79], in finding (13) that it had not been proved that Ranald [79] was the son and heir male of Donald [74], and in finding (14) that it had not been proved that Donald [74] was the son and heir male of Alexander of Inverroy Mor [70].
The sloinneadh
[9]A sloinneadh is, or was, a traditional Gaelic patronymic genealogy of the male line. It was handed down orally from generation to generation. The petitioner relies on a sloinneadh as the principal adminicle of evidence to establish that part of his pedigree which, in 1990, Lord Lyon Innes of Edingight held had not been proved. The sloinneadh in question was that of Donald MacDonald [86], who was referred to as Domhnaill an Drobhair, which has been rendered in English as "Donald the Drover", but probably ought to be translated as "Donald (the son) of the Drover" (see Professor Gillies's further Affidavit, page 2, paragraph (2)(a), Appendix I, page 30). His father, who evidently was indeed a drover, was Alexander [84], who was the younger brother of Ranald [83] and the younger son of Donald [82]. Donald [82] is thus the nearest common ancestor of the petitioner and Donald the Drover [86]. Donald the Drover's sloinneadh, in so far as it deals with Donald [82] and his ancestors, thus deals also with the ancestors of the petitioner.
[10]A handwritten note (Appendix III, page 18) of Donald the Drover's sloinneadh was given to Mr Peskett by Mrs Ann MacDonell [104], the wife of John MacDonell [103], the grandson of Donald the Drover. We shall require to return to the evidence about the sloinneadh in more detail in due course, but for present purposes it is sufficient to note that its terms were as follows:
"Domhnall mac Alasdair, mhic Dhomhnaill, mhic Raonnuill, mhic Dhomhnaill, mhic Dhomhnaill Ghuirm",
or, translated into English:
"Donald [the Drover], son of Alexander, son of Donald, son of Ranald, son of Donald, son of Donald Gorm".
[11]The principal difficulty which attached to the use of the sloinneadh in support of the petitioner's claim was that it contained no reference to Alexander of Inverroy Mor [70], who was shown by other evidence to have been the son and heir of Donald Gorm. There was also some uncertainty in Mrs MacDonell's evidence about the third Donald mentioned in the sloinneadh. She said that some people went straight from Ranald to Donald Gorm.
Lord Lyon Innes of Edingight's Note
[12]In his Note to the interlocutor of 27 August 1990 (MacDonald of Keppoch, Petitioner (No. 2) 1994 SLT (Lyon Ct) 2 at 6A), Lord Lyon Innes of Edingight said:
"This court has always taken due cognisance of Gaelic genealogies derived from oral and traditional sources but it must be said that where it has been shown that such a traditional genealogy requires adjustment or amendment in any part the weight to be given to it may be considerably lessened."
[13]Dealing particularly with the sloinneadh relied upon by the petitioner, the Lord Lyon said (at 11J):
"With regard to the sloinneadh it has not been established that it was kept in correct form without emendation, and in view of the length of time it was purportedly kept I am of the opinion that if it is to be of any significant weight it must have been kept in correct form and in a form that required no emendation. ... More cogent evidence is required than is provided by the sloinneadh. There is no documentary evidence to prove that Donald [82] was the son of Ranald [79] or that Ranald was the son of Donald [74] or that Donald was the son of Alexander of Inverroy Mor [70] ... The petitioner has been unable to produce any evidence with regard to evidence of the possession of a house or land by any member of these three generations. I am of opinion that on the balance of probabilities the evidence of the petitioner is not sufficient to establish that Donald MacDonald [82] was the son and heir male of Ranald MacDonald [79], that Ranald MacDonald was the son and heir male of Donald [74], and that Donald was the son and heir male of Alexander MacDonald of Inverroy Mor [70]" (chart numbers added).
[14]It seems reasonably clear that Lord Lyon Innes of Edingight rejected the sloinneadh as sufficient evidence of the line of descent from Alexander of Inverroy Mor [70], through Donald [74] and Ranald [79], to Donald [82], because it was not "kept in correct form without emendation". He appears to have proceeded on the basis that its weight was "considerably lessened" because it had to be adjusted or amended to take account of Alexander of Inverroy Mor [70], whose existence as the son of Donald Gorm [20] was independently established, but who was not mentioned in it. He appears, in the latter part of the passage quoted in paragraph [13] above, to have contemplated that the deficiency might be cured by other evidence, independent of the sloinneadh, which supported the succession from Alexander [70] to Donald [74] to Ranald [79] to Donald [82].
The further proof
[15]In the event, the approach adopted by the petitioner at the second proof was not to seek to adduce further evidence, independent of the sloinneadh, in support of the controversial part of his pedigree, but rather to lead evidence to show that Lord Lyon Innes of Edingight had been wrong to regard the omission of Alexander [70] from the sloinneadh as ground for regarding it as unreliable. Although Mr Peskett gave evidence about research which he had carried out in the United States to support an inference that the generations in question may have left no trace in Scotland because they emigrated to America, that line of evidence was inconclusive. The main thrust of the new evidence was that it was a commonplace feature of sloinnidhean that, while the key name of the person at the "top" of the genealogy remains, other names just below the top name may be omitted.
[16]Lord Lyon Blair appears to have accepted that line of argument, supported as it was by the expert evidence of Professor William Gillies (Appendix I, pages 29 - 37) and WDH Sellar, Bute Pursuivant of Arms (Appendix I, page 26). He recorded (Appeal Print, page 66) that:
"It was Professor Gillies' view that the slionneadh [sic] in this case was perfectly credible and that the omission of one or more names would not prejudice the validity of the slionneadh [sic] as recalled by Mrs Ann MacDonell";
and that Bute Pursuivant had given evidence that:
"In his experience it was rare for a sloinneadh to run to more than eight or nine generations. Beyond that there would always be a contraction to keep within this length."
He concluded (Appeal Print, page 67):
"The evidence which has been presented to me has focused on the question of whether a possible omission in a sloinneadh weakens its credibility. I am satisfied that omissions are commonly found and that an omission should not, of itself, invalidate or prejudice the accuracy of the sloinneadh as a whole."
The need for evidence that a sloinneadh has been kept in correct form
[17]Notwithstanding his acceptance of the proposition that an omission from a sloinneadh of a person just below the "top" did not invalidate or prejudice its accuracy as a whole, Lord Lyon Blair concluded that, before a sloinneadh could be relied upon it was necessary that there should be evidence that it had been kept in "correct form". At page 66 of the Appeal Print he said:
"It has always been the practice that evidence was required to adduce [sic] that the sloinneadh had been kept in the correct form."
After referring to the case papers in the Morrison of Ruchdi case and in "other cases where oral genealogies have been referred to", the Lord Lyon said (at page 66):
"It is clear that successive Lord Lyons have followed a consistent practice of requiring to be satisfied that the oral genealogy was, in each case, kept in proper form and that there was no dubiety through possible emendation about its content."
The Lord Lyon then went on to identify the question before him as being:
"whether there is sufficient evidence now before me to enable me to decide that the sloinneadh has been kept in proper form and without emendation".
[18]Sir Crispin Agnew of Lochnaw, who appeared for the petitioner, submitted that in these passages Lord Lyon Blair had misdirected himself. In our opinion that submission is well founded. The references to a sloinneadh being "in correct form" and "without emendation" appear to be derived from the passage in Lord Lyon Innes of Edingight's Note quoted in paragraph [13] above. In our opinion, it is reasonably clear that in that passage the Lord Lyon was concerned with the inconsistency of the sloinneadh with the other evidence before him as to the existence of Alexander of Inverroy Mor [70]. Without the benefit of the expert evidence led in the further proof, he regarded that inconsistency as casting doubt on the reliability of the sloinneadh. He was not, however, in our opinion, laying down a general rule that in all cases, if a sloinneadh was to be founded on, there required to be independent evidence of its having been maintained in correct form. In the result, we are of opinion that Lord Lyon Blair misdirected himself in regarding it as necessary in all cases in which reliance is placed on a sloinneadh to have evidence that it has been kept in correct form. Where the reliability of the sloinneadh is in issue for some good reason, then plainly evidence from another source that it has been properly maintained may remove the doubt as to its reliability. But where the challenge to its reliability can be answered satisfactorily in another way, there is in our opinion no absolute requirement for separate evidence that it has been properly kept. Lord Lyon Blair's misdirection lies in his having elevated to the status of an absolute requirement something which is truly no more than a cross-check on the reliability of the sloinneadh, which might be useful in certain circumstances, but which is unnecessary in the circumstances of this particular case.
[19]Lord Lyon Blair appears to have based his view of the need for evidence to support the keeping of the sloinneadh in correct form on his reading of the correspondence and papers in the Morrison of Ruchdi case, and in certain other cases. Unfortunately, we do not know for certain where, in the correspondence or case papers in the Morrison of Ruchdi case, the Lord Lyon found the material on which he relied, nor has it proved possible for him, in response to a request from this court, to identify the other cases to which he referred. Sir Crispin placed before us certain of the case papers from the Morrison of Ruchdi case (Appendix VI), and informed us that the excerpts produced included all the material that was possibly relevant to the issue. The Morrison of Ruchdi case had originally been referred to because, unusually, the matriculation narrated a sloinneadh. The matriculation referred to the grandfather of the petitioner in that case, whose genealogy:
"which was in Highland manner and ceremony handed down in the line of Morrisons in Ruchdi, gives the lineal descent as 'mhic Alasdair mhor, mhic Rhuaridh, mhic Alasdair, mhic Rhuaridh, mhic Dhonnaichidh, mhic Rhuaridh, mhic Mhurchadh, with three further generations not now certainly memorised and believed to be generations of ancestors in Harris".
That sloinneadh was relied upon by the present petitioner as an example of the Lord Lyon (Innes of Learney) accepting an incompletely remembered sloinneadh.
[20]The papers disclose that information about the Morrison sloinneadh, which it appears was known to the Morrison petitioner himself, had been provided by Mrs W. S. Morrison, his sister-in-law. A note from her indicated that it was "in the traditional form as related by [her husband's] Aunt Jane the seannachie of the family", and that "as related by her it went much further back and also gave the generations in the various islands, back through the Brieves of Lewis". In a letter dated 7 July 1959, the Lord Lyon said, with reference to the sloinneadh:
"This is most interesting, and vigorous efforts should be made amongst the rest of the family to see whether (a) corroborative; (b) extended, detail cannot be got as to the earlier part back to the Brieves of the Lewes, as recited by Aunt Jane. If proper corroborative evidence and deposition is given, Lyon would be prepared to receive such an authentically handed down pedigree as evidence for succession to West Highland arms, and even Headship of a duly authenticated House.
One must remember such accounts were inculcated to Highland children in a formal manner, in which they were compelled to learn it word perfect. In communities which had little, if any, writing, a genealogy so handed down is one, subject, of course, to recording that it is such an oral pedigree, that is receivable, providing the nature, provenance and handing down is itself properly sworn to. Lyon has to be most particular about that."
[21]It is evident from other parts of that letter, and a letter of 20 July 1959, that Lord Lyon Innes of Learney was greatly excited at the prospect that the Morrisons might establish a pedigree going back to the Brieves of Lewis. It seems to us that it is in that context that his requests for further evidence must be read. Moreover, he was writing at a time, before the Civil Evidence (Scotland) Act 1988, when corroboration was still required in civil matters. We do not consider that these extra-judicial writings ought properly to be construed as laying down a rule that a sloinneadh could not be accepted as evidence without extrinsic evidence that it had been properly kept. The papers disclose no further evidence made available before the sloinneadh was recited in the Morrison matriculation.
[22]Sir Crispin submitted that the evidence of the keeping of the sloinneadh in the present case was of a quality similar to that available in the Morrison of Ruchdi case. In the present case the initial source of the information about the sloinneadh, Mrs Ann MacDonell [104], attributed it to her husband John's [103] sister Frances, who had in turn attributed it to John's uncle Allan [95] (who, according to Mrs MacDonell (Appendix V, page 25) "claimed to be Chief to the day he died"). At the time of Allan, the sloinneadh had been written down at the suggestion of Father Andrew MacDonell, who was an expert genealogist, although not specifically an expert on the McDonalds of Keppoch. There was thus evidence identifying the sloinneadh as such, identifying members of the family who knew it, and supporting the fact that it had been perceived by an expert genealogist to be important, and had been written down on that account.
[23]Lord Lyon Blair expressed the view, at page 67 of the Appeal Print, that the evidence which he had on the maintenance of the sloinneadh was "very limited indeed". He discussed the evidence of Mrs Clementine McArthur, whose affidavit was part of the material before Lord Lyon Innes of Edingight in 1990. He examined that evidence, however, to see what assistance it afforded on the question of the manner in which the sloinneadh had been kept. In approaching that evidence in that way, he overlooked, in our view, its true role, not as evidence of how the sloinneadh had been kept, but as independent evidence pointing to the truth of the sloinneadh. We shall return to that aspect of that evidence in due course. It seems to us, however, that in regarding that evidence as the only evidence which bore on the way in which the sloinneadh had been kept, he overlooked the evidence of Mrs MacDonnell summarised in paragraph [22] above.
The evidential value of the sloinneadh
[24]In our opinion, a sloinneadh is relevant evidence of its content. Before the court can treat a sloinneadh as such evidence, there must be evidence identifying the material put forward as a sloinneadh as truly being a sloinneadh. In our opinion, the evidence of Mrs MacDonell is sufficient for that purpose. The sloinneadh of Donald the Drover is therefore in our opinion relevant evidence of the pedigree which it narrates. Beyond the evidence identifying the material as truly being a sloinneadh, it is not, in our view, necessary that there be in every case evidence that it was properly kept. Of course, if there were reason to doubt its reliability (as was thought to be the case when the matter was before Lord Lyon Innes of Edingight), it would be necessary to see if there was other evidence to support its reliability. But the only ground on which the reliability of the sloinneadh of Donald the Drover was doubted by Lord Lyon Innes of Edingight was that it omitted reference to the proven son of Donald Gorm [20], Alexander of Inverroy Mor [70]. That doubt was, as Lord Lyon Blair accepted, eliminated by the evidence of Professor Gillies and Bute Pursuivant. The result, in our opinion, is that Lord Lyon Blair misdirected himself in holding that the sloinneadh could not be accepted as evidence of its contents in the absence of separate evidence that it had been properly kept. That misdirection opens up the issue for reconsideration by us. In our opinion, the sloinneadh of Donald the Drover was adequately set up as such by the evidence of Mrs MacDonell [104], is not to be regarded as undermined by the omission of reference to Alexander of Inverroy Mor [70], and is therefore acceptable evidence that Donald [82] was the son of Ranald [79], who was the son of Donald [74], who was descended from Donald Gorm [20].
The presumption
[25]A sloinneadh is concerned simply with a line of descent, and does not deal with the question of seniority. The sloinneadh of Donald the Drover thus constitutes evidence of his descent from Donald Gorm [20], but does not per se constitute evidence that Donald [74] was the heir male of Alexander of Inverroy Mor [70], or that Ranald [79] was the heir male of Donald [74], or that Donald [82] was the heir male of Ranald [79].
[26]In order to make good that deficiency in the evidential effect of the sloinneadh, the petitioner relies on a presumption that a proven line is the senior one. In support of the existence of a presumption to that effect, Sir Crispin relied on Stair's Institutions of the Law of Scotland, III, v, 35 - "Yea, any degree being presumed to be the nearest degree, unless a nearer degree be instructed". Sir Crispin also relied on the presumption that those who do not appear to dispute a claim do not exist (Macnab of Macnab 1957 SLT (Lyon Ct) 2, per Lord Lyon Innes of Learney at 4). In Macnab the presumption was expressed in a brocard "non apparentibus non existentibus praesumuntur", attributed, without further specification, to "the late Sheriff Macphail" (see also Sir Crispin's article on "Heraldry" in the Stair Memorial Encyclopaedia: The Laws of Scotland, Vol 11, paragraph 1623; c.f. the brocard de non apparentibus et non existentibus eadem est ratio, Trayner's Latin Maxims, 148, to which passing reference is made in Handyside v Lord Advocate 1909 1 SLT 268, per Lord Skerrington at 269, and McCarroll v McKinstery 1926 SC (HL) 1, per Lord Sumner at 12). Sir Crispin submitted, echoing the terms of the passage in his article cited above, that these presumptions are acceptable in this context because a wrongfully excluded senior stirps can reduce the matriculation within the prescriptive period.
[27]In our opinion these presumptions are sufficient to exclude, at least for aught yet seen, the existence of any better claim derived from other descendents of Alexander of Inverroy Mor [70], Donald [74], Ranald [79] or Donald [82].
Other evidence
[28]The petitioner's claim does not depend solely on the sloinneadh of Donald the Drover. Three other pieces of evidence require, in our view, to be taken into account. They are (1) the evidence of Mrs Clementine MacArthur, (2) evidence derived from the Collected Works of George Borrow; and (3) evidence about the use of the patronymic "Raonuill" by Alexander [85] and his eldest son, Archibald [87]. Since we have held that Lord Lyon Blair misdirected himself as to the need for evidence that the sloinneadh was kept in proper form, and the whole issue of whether the petitioner has filled the gap which remained in his case in 1990 is therefore before us for consideration of new, it is appropriate that we should consider those matters.
[29]Mrs MacArthur gave evidence that her aunt, Kate Cameron, and the bard John Macdonald said repeatedly that Alasdair Raonuill [85] was the heir to Keppoch. Lord Lyon Blair treated that evidence as being potentially relevant to the question of whether the sloinneach of Donald the Drover was properly kept, but found that it was of no assistance in that connection. It seems to us, however, that the relevance of that evidence lies in the support which it provides, not for the proposition that the sloinneadh was properly kept, but for the proposition that the sloinneadh was a true genealogy. In our view it derives strong support from the evidence of Bute Pursuivant (Appendix I, page 27) that John Macdonald of Highbridge ("John the Bard"), to whom Mrs MacArthur's evidence refers, was acknowledged on all hands as one of the last great tradition bearers of Lochaber. We see no reason to reject Bute Pursuivant's expert opinion that John Macdonald's view (attributed to him by Mrs MacArthur) that Alexander [85] was the heir to Keppoch is highly significant. That evidence in our view affords significant support for the conclusion that Alexander [85] was of the chiefly line, and that the petitioner's claim is therefore well founded.
[30]We are much less impressed by the evidence derived from the writings of George Borrow (The Collected Works of George Borrow, A Tour of Scotland (1924) at 562, (Appendix III, page 20)). There, in an account of a tour of Scotland in 1858, he describes meeting at Roy Bridge "an athletic young man with red beard" whose name was Macdonell, and who "said that his uncle was the proper Cean Cinne or chief of the Macdonells, that he was an old man and lived far off". In her evidence at the original proof (Appendix V, pages 13-14), Mrs MacDonell spoke to her inference that the red-bearded young man was Donald the Drover (who was said to be red-haired), and that the uncle to whom he referred was Ranald [83] (who would in 1858 have been about 77 years of age, and thus reasonably described as "an old man"). In our opinion that conclusion is speculative, and Borrow's anecdote provides no real support for the petitioner's claim.
[31]Professor Gillies gave evidence about the significance of the use of the patronymic "Raonuill" by Alexander [85] (see his Affidavit of 21 April 1992, paragraph (5), Appendix I, pages 40-41). In Alexander's case there are two possible explanations for his use of that patronymic. One is that it reflected the mere fact that his father [83] was called Ranald. The other is that it expressed a claim to be of the chiefly line of the MacDonalds of Keppoch, Mac-'ic-Raonuill. Because of the existence of the former explanation, Professor Gillies was originally left in doubt as to the family's claim that the latter was the true explanation. However, Mr Peskett drew to his attention the fact that Alexander's eldest son, Archibald [87], was referred to as Erchie Raonuill. In his case, since his father was Alexander, not Ranald, the usage was not that of a simple patronymic. In light of that information Professor Gillies came to be disposed to accept that the use of the description Raonuill by Alexander [85] and Archibald [87] was an indicator that their line was generally recognised in Keppoch as being the heirs and successors of Ranald Mor [1]. Lord Lyon Blair took the view that that evidence did not reinforce the soionneadh to a material degree. He regarded the fact that Professor Gillies's earlier view had been "coloured by comments to him by the petitioner" served to weaken the impact of his evidence. In addition, he observed that the Professor's view did not assist in resolving the doubt about the identity of the individuals in the generations between Donald Gorm [20] and Alexander [83]. In our opinion, the first of these two observations does Professor Gillies less than justice. The additional information which led him to change his view came not from the petitioner, but from Mr Peskett, and it is in our view perfectly proper for an expert witness to review his opinion in light of additional information. The reference to Erchie Raonuill, of which Professor Gillies had not previously been aware, seems to us to be a cogent basis for his revised view. Lord Lyon Blair was, of course, right that that aspect of the evidence does not cast light on the identities of the individuals in the generations between Donald Gorm [20] and Alexander [83], and therefore does not reinforce the sloinneadh as such, but in our view it does provide support for the more general point, also evidenced in part by the sloinneadh, namely that Donald [82], who was the grandfather of Alasdair Raonuill [85], was descended from Alexander Buy [10].
The reference to case papers
[32]Before we express our conclusion on the appeal, it is appropriate to deal briefly with the petitioner's fifth ground of appeal. The proposition on which it is based is that in relying on his own researches in the correspondence and papers in the Morrison of Ruchdi case and the papers in other unspecified cases, without affording the petitioner an opportunity to comment on that material, which is not publicly available, the Lord Lyon failed to adhere to the rules of natural justice. We understand why the Lord Lyon wished to look behind the public register to see if there was in the papers in Morrison of Ruchdi an explanation for the unusual feature of that case, that the sloinneadh was recited in the body of the matriculation. We take the view, however, that it would have been appropriate for the Lord Lyon, before relying on that material in his decision, to have drawn it to the attention of the petitioner and afforded him an opportunity of responding to it.
Conclusion
[33]In summary, we conclude (1) that Lord Lyon Blair was right to regard the additional evidence submitted to him as showing that the omission of a generation from the sloinneadh did not invalidate it or render it unreliable; (2) that he misdirected himself in taking the view that the sloinneadh could only be relied upon if it was separately proved to have been kept in proper form; (3) that the sloinneadh can be relied upon as evidence of its contents if there was evidence identifying it as a traditional oral genealogy kept in the family; (4) that the evidence of Mrs MacDonell did so identify the sloinneadh of Donald the Drover; (5) that the sloinneadh is therefore acceptable evidence that Donald [82] was descended from Donald Gorm [20] through Donald [74] and Ranald [79]; (6) that that line is to be presumed to have been the heirs of the chief of the MacDonalds of Keppoch; and (7) that the petitioner's descent from Alexander Buy [10] is further supported by the evidence of Mrs MacArthur in the way discussed in paragraph [29] above and by the evidence of Professor Gillies in the way discussed in paragraph [31] above.
[34]We shall therefore make a finding-in-fact that Donald MacDonald [82] was descended from and was heir male of the body of Alexander of Inverroy Mor [70] through two intervening generations recorded in the sloinneadh of Donald the Drover as Donald [74] and Ranald [79]. That finding, taken with findings (1) to (11) contained in the interlocutor of Lord Lyon Innes of Edingight dated 27 August 1990, completes the petitioner's pedigree as the heir of Alexander Buy [10], the fourteenth chief of the MacDonalds of Keppoch. Since our conclusion depends in part on the presumptions discussed in paragraphs [25] to [27] above, it is in our view appropriate that the petitioner's entitlement should be recognised "for aught yet seen".
[35]We shall accordingly (1) sustain the petitioner's first plea-in-law and grant the prayer of the petition, to the extent only of recognising the petitioner for aught yet seen in the name Ranald Alasdair MacDonald of Keppoch, Chief of the Name and Arms of MacDonald of Keppoch, and of the Honourable Clanranald of Keppoch, Mac-'ic-Raonuill, and (2) remit the process to the Lord Lyon to proceed as accords in respect of the petitioner's claim for confirmation of arms.