text:
The Adventure of the Broken Mirror

HE uninspiring turquoise dress sat down. Mallare lighted a cigaret. They were on the balcony. Behind them the musicale spread its insistent boredom of lights, people, and noises.

At this period of his life Mallare had begun to crystallize. Literature and art had once preoccupied him. But his writing and painting had been no more than the decorative gestures of his ennui. Now at thirty-five he had rid himself of ambition. People said:

“Mallare? A most peculiar man. He has been everywhere, seen everything, done everything. But he never seems quite alive. He's too cynical.”

To look at Mallare was to think confusedly of evil. There was about him a precision of elegance, so that his clothes no less than the expression of his dark, sardonic face became part of a mask. Felicien Rops would have sketched him and captioned the drawing, “The Boulevard Satan.”

“He looks a bit too theatrical,” a vivacious young woman once complained. “He's fascinating but unsatisfactory, if you know what I mean. He makes love amazingly, but his kisses are like epigrams.”

Through a continual applause of comment and conjecture Mallare carried his pose like a man too letter-perfect in his part. He seemed languidly at peace with his destiny, ignorant of yesterdays and oblivious of to-morrows. A gleaming-eyed Paganini of phrases, he appeared intent upon nothing more than shrugging the hours gracefully away.

This evening was like other evenings except for an odd circumstance. He surveyed the girl on the balcony. During the early part of the evening's depressions, which had included the usual assaults upon Wagner, Chopin and Schubert, he had observed and inquired casually concerning her. The result had been a catalogue of adjectives including ugly, morbid, imbecilic and young. The odd circumstance attached to the evening, however, had been that he had felt an intangible lure about the creature. He had singled her out, talked to her and marveled gently at the inexplicable interest she appeared to arouse in him.

Now, as the summer night stirred a lace of sound through the garden below the balcony, he found an evasive amusement in her presence. He was aware that a number of tongues were wagging an obbligato of gossip to the boomings of Rabinoff, the most freely perspiring barytone in New York. They were concerned, these tongues, with the drollery of the scene on the balcony. Thus ... Fantazius Mallare, the Manhattan Mephistopheles, with a soul of spiderous ennui dripping his poisonous phrases for the enchantment of Rita Ramsey. And who but an oddity like Mallare could find any interest in snaring game such as that—a tongue-tied, trembling, little bag of skin and bones, an infantile nonentity, the despair of three leading dressmakers, and anathema to all toddlers, one-steppers, and surreptitious seducers east of the Alleghanies.

Mallare, smoking calmly in the late summer night, translated the chatterings of the room they had quitted into language more suited to his vanity. He found, as always a certain relish in supplying others with their opinions of him. He explained it:

“If I were dependent on the actual things people stutter about me, my pose would curl up and die. I have to invent my own criticism. It's part of the game. A stupid game, but what would you? We live in an inarticulate world. If I find a man who loathes me, I make haste to supply him with adjectives. If I find a woman who adores me, my vocabulary is at her disposal. As for people in general who stare at me as if I were a Goya crucifixion, I invent charming utterances for them and quote them to others. It would be immodest and unfair of me to sign all my own paradoxes.”

The girl on the balcony spoke.

“Mother told me you hunted lions.”

“Your mother is Mrs. Titus Ramsey?” Mallare looked down.

“Yes.”

“I think I did tell her that,” he sighed. “The woman with the red velvet? Yes, I always tell that to women who wear red velvet. Nevertheless, I don't hunt lions. In fact, I have no useless specialty at all except living.”

The girl nodded unintelligently. She raised her child's eyes to the sardonic features. Her lifeless face, offering itself like a death-mask to the infatuated moon, stirred an impulse in Mallare. He thought of her ... “a mask. A cross between a marionette and a sick macaw. An unconscious creature if there ever was one. Dead, I swear. A complete inanimation in blue silk.”

Aloud he said, “I'm thinking of you, do you mind? I would like to know you. I am, on the whole, tired of women.”

The girl's large eyes closed slowly. She sat empty of thought. From the room behind them Rabinoff's dissolving voice was informing Mrs. Winthrop's shamelessly inattentive guests....

The music brought a quaint distraction to Mallare. Through narrowed eyes he watched the serpentine bend of his cigaret smoke. He remained silently studying the wooden-looking body and pointed face of the girl. There was a thing there that sent an emotion through his veins—an emotion as fugitive as the tinsel of cigaret smoke under the moon.

E had picked up informations about her He pieced them together idly. Since her daughter's childhood, Mrs. Titus Ramsey had utilized this inverted reproduction of herself as an anvil for her surplus energies. A process of character obliteration, which the belligerent woman fondly identified as parental guidance, had begun when Rita was still in the nursery. Obviously, an impulse to make of Rita a sort of virtuous addenda to her own disordered life had inspired Mrs. Ramsey. And she had had, if anything, too apt a pupil. The unlovely child had submitted to the psychopathic domination of her mother with a curious passiveness. She had grown almost as if of her own volition into a stringy-bodied, feminine cipher. At eighteen she had come out and received her official launching into the midst of a number of men and women who went to bed nightly with the shamelessly naked word, “exclusiveness.” And now, a virgin In caricature, a pathetic cartoon of youth, she drifted through the scenes of her mother's triumphs like some social somnambulist. A creature verging piquantly upon the subnormal. But there was one discordant adjective about her. The omniscient gentleman on the balcony smiled. He had got a sense of this. Under the vacuous layer of her personality there lived a languorous bitterness—a yawn in embryo.

AALLARE waited for her to talk. He found himself idiotically eager for the sound of her voice. The girl, however, seemed to have lost even the parrot-like capacity for clichés which ordinarily she substituted for conversation.

A look of fear had entered her eyes and she sat staring at the bold moon, as if waiting for it to address her Mallare's thought busied itself with words she inspired ... “A thing to create. Nothing there but skin and bones and a bank account. Yet, one could introduce a soul. At least, the sort of soul one finds in women. What would she be like alive? Like the others, no doubt. A greedily amorous virgin. One of the pack of social grotesques who sin with their ankles and collect inhibitions. But one might try. An interesting transition—Galatea opening her eyes eh? Yes, her ugliness was an inspiration. Give it black instead of yellows and blues ... Such vacuity as hers needed no more than a hairdresser and three yards of black to transform it into an enigma....”

She had recovered her yesterday's clichés.

“Shall we return inside?” she asked. Mallare, arresting this train of thought, shook his head.

“Not yet. You are too diverting. And besides, you are truthful. You would never tell a lie, would you?”

“Oh, no.”

“Then what idea beside the supposition that I was a lion hunter have you had of me?”

“That's all mother told me,” Rita answered. Mallare smiled at the unbelievable naïveté.

“Very good,” he said. “Very good. Then you haven't heard of my deplorable career as a Don Juan.”

“Don Juan?” her voice repeated childishly.

“A gentleman of fiction who made love too well,” he went on. “You have never heard of him?”

“Oh, no,” she answered hastily.

“That makes it very charming,” he smiled. “So frequently a man is loved not for himself but for his past. Women always rush to the remnant counter. Have you read anything?” he persisted softly.

“N-no,” she said. “Only ... I forget what.”

“Marvelous,” he smiled. “And you must promise me not to read in the future. In case I should fall in love with you—”

She stared with a diverting blankness. He might have said, “In case I should want to cut your head off,” and the stare would have been the same. He repeated.

“In case I should fall in love with you, I would be terribly embarrassed to find that your mind was not as virginal as your body. You know, modern young women enter upon their first love affair as a sequel. They have already given their dreams to the book stores. With women, before marriage, literature takes the place of love. After marriage it takes the place of hope.”

She wasn't listening. He wondered. He had obviously never experienced so unqualified a listener. One might as well be talking with a Japanese lantern. Nevertheless he went on, lured by the inexplicable fascination the girl's wooden body and dead face seemed to have achieved over him.

“You inspire me to confessions,” he was saying, “there's something simple about you. I feel at ease and seem to be talking almost to myself. Odd ... You're the only woman whose interest in me hasn't struck me as an uninteresting deception. But I was saying, a woman vanishes with her clothes. Men make love to their clothes and the whole business of passion is a species of bewildered fetishism. I have made love to a green hat. To a yellow parasol. To a jade girdle. When I was young I once was marvelously in love. Then I grew marvelously bored. Then I fell marvelously in love with another one. I was careful that she should be the antithesis of the first. As I recall, she spoke even another language. I found out in a month, however, that the antithesis did not survive. It rubbed off. And the rest have been like that. If you have loved one woman you have loved all women. The overture to the play may vary. Thank God it does. But the overture ended, the curtain up, and you find the play is always the same.”

Mallare paused in his rambling monologue arrested by the fastidious inattentiveness of the girl. Her child's eyes were staring toward the lantern-pitted dark of the garden below.

“Would you like to walk there?” he asked. He watched her shiver as she answered, “Yes.”

N the garden Mallare allowed himself to succumb to the sentimental caress of the silences and scents. They walked arm in arm down the circuitous path. The girl seemed consumed by an inarticulate terror. He had made a resolve. He would bring her to life. He had intended starting before the week was over for a jaunt to London. But a jaunt to London was a jaunt to London, its diversions known in advance, its surprises already written down in the well-thumbed Baedeker of his soul. Whereas this curious one at his side ... He looked at her. Good! He was already experiencing the necessary hallucinations. A gentle vibration in his hands, a weak restlessness in his thought. He smiled. He flattered himself as a veteran of moods. He recognized with a graceful attentiveness the minor agitations the idiotic child beside him had brought into his head and veins. He continued to wonder, however, what there was about this inanimate, wooden-bodied creature that aroused him.

ES, he was already fancying something unusual in her silence. The word “elfin” occurred to him as he gazed at her stringy arms. Other hallucinations arrived, bowing themselves ironically into his heart. Very good. These were necessary and proper things—hallucinations. Without them women were impossible. With them even this Rita could become an enchantment, an elfin exotic dancing away with his heart.

“The cynical utilization of one's emotions,” this had always been a favorite sentence of his, “is man's only revenge against the incompetency of life.”

But to be ring-master in one's own heart one must first provide a troupe of performers. And the performers? They must be authentic and talented. Mallare knew their names—Desire, Sacrifice, Illusions of Unique Beauty, Charmingly Rouged Despairs. Walking beside the one he had called in his mind a cross between a marionette and a sick macaw, Mallare welcomed this excellent troupe with a self-Sadistic unction. He looked at Rita in the light of one of the swinging lanterns. She had withdrawn her fragile touch from his arm. The hallucination of charm filled him, charm as if the child-eyes looking up were argosies of dream. He remembered his first impressions with a shock.

He stood watching her, almost alarmed by the docility of her attitude. A delightful sense of having distracted this little wooden thing before him, of having brought a chaos into the placid emptiness of her mind, thrilled him.

“A man is never too bored to fall in love,” he muttered to himself, “but good Lord! Why this?” And he continued to look at the girl in astonishment of himself.

A murmur distracted. His eyes turned and saw the velveted figure of Mrs. Titus Ramsey moving meltingly beside a Vandyke. At the end of the path in the shadows the two figures paused. The white arms of the velveted one reached up and embraced the Vandyke. They remained riveted together for moments in the awkwardly convincing posture of sudden passion. Then they vanished again around the bend.

Mallare glanced hesitatingly at the daughter. Rita was still standing as if docilely entranced. Apparently the incident had escaped her.

But the girl's eyes had become too disturbingly fixed. He stared back with a mixture of cynicism and awe. Galatea awakening! She embraced him. His hands, startled by the abrupt intimacy, caressed her. He was conscious of shoulder blades and silk. “She saw her mother do that,” he thought. The hallucinations, however, had vanished with the contact. He kissed her perfunctorily and noticed that her lips were frigid. She remained in his arms like a wooden figure. There was no body to her, no warmth. A dead amorousness. He heard her whisper something unintelligible and she stepped away. He watched her without protest as she walked from him.

There was a stone bench and he sat down. Despite the amusement the girl's idiotic surrender had given him, he felt an inexplicable confusion in his thought.

“Now that she had left him he again thought of her as some one alluring. This disturbed. Perhaps it was an old creative impulse, the thing that used to keep him perspiring over his canvases and typewriter. The desire to animate her! Yes, that was it, of course. He desired to bring her to life, as one might desire to insert a vivifying adjective in a stupid sentence. Pygmalion. Svengali ... something like that. But he brushed the thing out of his mind. He was pleased to find himself with a diversion.

“I'll not go to London,” he smiled. “An excellent exercise in egoism—creating a soul in another.”

ALLARE walked feverishly through the electric tumult of Broadway. Four months had passed since Rita had embraced him in the garden the night of Mrs. Winthrop's musicale. And since that romantic event a terror had gradually taken possession of him.

His gleaming eyes started at the insanely illuminated buildings. A street of playing-cards, monstrous playing-cards. Kings and queens and jacks and aces scattering themselves out of an invisible sky. The scene aggravated the curious fear in his mind. The red, green and yellow hallelujahs bursting over the buildings were like some lunatic orchestration for the disorder in his thought.

He lowered his eyes stupidly to the little explosions of people on the pavements. Bah! A frightfully uninteresting spectacle—people. Then as he paused at a crossing he smiled unexpectedly. He would have to keep a hand on himself. Otherwise this fantastic business about Rita would knock him out. He would look up Marcia. In fact, he would make a very serious and very deliberate effort to bar this Rita obsession out of his mind. He shuddered at the memory of the pale thin creature.

Marcia was a soul in mild rebellion. Also very pretty. And, what was of arresting importance, sane. Mallare desired some one whose sanity no epigram could question. Marcia was beyond even epigram.

He climbed four flights of stairs. A door opened for him. Marcia's colorful face and bobbed hair reminded him pleasantly that there were a great many people in the world unlike him left—healthy-minded people full of polite deaths they identified as sanity.

“The diabolical Fantazius,” laughed Marcia. He entered the studio. Marcia was a photographer of distinction, so distinguished in fact that she signed her photographs in pencil. This was Broadway sanity.

“Dined?” he smiled, sinking onto an insidious couch. She struck him as unusually reserved. He recalled pensively that there had been a time when she would have flung herself at him. Drawing her to his side he tried to embrace her.

“Thanks, no,” she frowned. But I'll go eat with you.'

HALF-HOUR later they sat in a comparatively quiet corner of the Club Royale. Mallare regarded her face gloomily. Marcia's eyes were focused upon the effulgent scene. Here dining was an art seemingly independent of biology. Each of the tables offered itself as a glittering poster of prosperity. Mallare turned his back on the scene.

“Angry?” he inquired. She shrugged her white shoulders.

“Oh, no. I've heard all the scandal, of course. I was wondering when you would come around and give me a chance to check up.”

“Scandal?” he smiled with irritation. “Absurd, There is no scandal.”

“Oh! What's more, I've seen her.”

“Rita Ramsey?”

“Of course. You do remember their names, don't you. Well, my dear Don, I offer congratulations, and pass me the salt, please.”

Mallare sighed.

“Did you like her?”

“An unusual person,” Marcia answered, “quite unusual. I mean it. And, good Lord! How did you do it?”

“What?”

“Don't be ridiculous. Your silence is distinctly amateurish. After all, I have certain claims on your confidences, if not your loyalty.”

She regarded him with sudden bitterness.

“It does seem like an interesting alliance,” she murmured.

Mallare appeared to relax. The woman's jealousy warmed his frantic depression to a momentary lull. “It's not an alliance,” he said.

“You have positively collapsed, Fantazius. I never knew you so considerately banal about anybody before. Ah, it must be love.”

Mallare grinned and refused to carry the talk further. Their eating done, they left the place.

“I need excitement to-night,” he whispered to her, taking her arm. “Will you stick?” She nodded.

A performance at the theater dragged. Marcia studied the sardonic mask of her friend's face. Something had altered in it. She was aware that he was thinking. An intense preoccupation obliterated his usual smile. Several times during the performance his hand held her bare arm. His fingers gave her cool flesh the sense of an electric contact. He looked at her during the intermission and said softly: “I think I've gone somewhat mad.”

“A difficult pose to keep up,” she smiled. But she recalled the man's usual aplomb and grew nervous. Unquestionably something was preying on his mind.

Mallare led the way from the theater through the crowds. They walked in silence. Marcia's eyes watched him as her mind busied itself with conjectures She had heard the gossip concerning him and Rita. Particularly the girl. People were talking about the astounding change that had come over her and of her infatuation for Mallare.

“In here, what do you say?” Mallare asked suddenly. He had stopped in front of the Rendezvous, a supper-club where a segment of Manhattan came to exchange its gold for a surcease from ennui. They went inside and pushed up the stairs.

A tumult filled the compact room. Tables were crowded. Men and women were dancing. Women with banjo bodies and paper faces, women covered with scandals in silk and silver cloth, men and women like ornamental fragments of sin—these sipped at the cacophony of music and laughter with vacuous eyes. At the far end of the room in a little oasis of silence, Mallare and Marcia crowded in behind the backs of a group of sullen revelers.

“Do you like this?” he grinned. Marcia nodded.

“I like everything ... with you,” she said. “But, are you going to tell me about her? I'd forgotten for a moment my rôle.”

“Rita?” he said the name with a grimace of distaste.

A waiter took their order. He resumed,

'VE made up my mind to go away.”

“So you do love her,” she smiled.

“No, terror,” he said softly. “It should amuse you to see me terrified of a woman.”

“It does.”

“It's happened in four months,” he went on. “Suddenly, you see.”

“I should say that was plenty of time, Fantazius. Unless you've changed your technique.” He paid no attention.

“I met her at the Winthrops'. A miserable, colorless little mouse. Tongue-tied. Made out of wood.” “Yes, I know. Her mother brought her up once.”

“I must tell somebody,” Mallare muttered after a pause. He looked at her with an incongruous appeal in his ironic eyes. Then he laughed.

“I want you to go away with me, Marcia,” he said.

“Oh, thanks. As a love cure, I suppose?”

“No. Terror, I told you. If it were five hundred or a thousand years back, it would be intelligible. One could blame the devil. But as it is—”

“They blame you,” she supplied. “But there's not much difference in that.”

“I know,” Mallare nodded, “the thing actually gives me a morbid impression of myself. I wouldn't be surprised to wake up any morning with a cloven hoof.”

He drank out of his glass and regarded the crowded scene. An orchestra filled the excited room with snorting musical innuendos.

“I had an idea at first,” Mallare began to mumble, as if to himself. Marcia leaned forward, drawn by the unhumorous light in his eyes. “It was nothing definite. A vague idea about transforming her, creating her. Ugly people inspire one at times. One says, 'I could dress that creature and with a little training she would be beautiful.'”

The music ended.

CHANGED her,' whispered Mallare.

“Yes, Sir Satan, go on. I could see something had happened to her. She's a credit to you, now.”

“I changed her,” Mallare repeated, his voice grown dull. “Words at first. I talked to her for weeks. The poor thing listened.”

“And your words fell like rain upon parched soil,” Marcia taunted. “And a flower sprang up.”

“Please,” he looked at her, “will you go away with me?”

“It depends,” she smiled, “on many things. For instance, do you love me?”

Mallare shook his head.

“But you did once,” she whispered.

“Yes. And we could enjoy our memories.”

She laughed noisily.

“Go on about Rita,” she said. His eyes darkened. The name seemed to bring back a tautness of manner that had for a moment left him.

“It wasn't the words alone,” he continued. “I was a sort of god to her. I transformed her. What did she seem like to you?”

“Rather curious,” Marcia answered, “like a ...”

“Like a Black Mass by Debussy,” Mallare interrupted angrily. “Like a satanic virgin. A quaint little vampire.” His voice lowered. “A terrible mirror ...” A boisterous laugh came from him. “I'm full of similes, metaphors and awful comparisons,” he exclaimed. “Yes, she's very charming. Her little world is aghast. I changed her. I created her.”

“But why this collapse, Mr. God? I should think—”

“But you don't know the story,” he mumbled. “It turned out quite logically up to that point. But the thing that appals ...” He drank from the glass in front of him. “Yes, appals. I'm appalled.”

His eyes turned vaguely toward the fanfare of faces around them.

“The thing that appals,” he murmured and stopped. “Didn't you notice anything appalling about her?” he asked abruptly.

“Appalling?” Marcia repeated. “Why, no, It was rather uncanny, the change in her. She talked a bit like you.

He seized upon the answer.

“Exactly,” he cried. “She talks like me. She dreams like me. She walks like me. Everything about her is me. You see, now?

His hand gripped her nude arm and his eyes stared feveredly at her. His voice had become strident.

“That's flattering, of course,” Marcia managed to say quietly. “But I don't see anything else.”

“Flattering! Good God!” She grew confused under his burning eyes

“I've created myself in her,” Mallare went on talking, a wild note in his voice. “Myself. It's not that she mimics me. That would be droll. But she's got me. Something of me has gone to her. And I've become like a curious incompletion. When we're together, I feel that she and I are the same one. Do you understand? There's something terrible in that.”

E passed his hand over his head and his voice grew steadier.

“I knock around this filthy town trying to keep away from her and to straighten the thing out,” he resumed. “But there's something that draws me. A hideous obsession. A morbid necessity to see her. I must see her. I don't care for her. But she's become myself. I want to see myself. It's like vanity become a disease. I want to see her as a man might feel a terrible impulse to look continually into a mirror. That's it.”

Marcia stared at him.

“The pack are after her,” he was saying. “They dance around her as if she was some hellish magnet.”

“Oh, yes, Baron Montheim,” Marcia smiled, recovering a sense of reality. “He came up to my place, raving. He wants to marry her.”

Mallare nodded indignantly

“They all do.”

“And the whole trouble is,” she taunted in a matter-of-fact voice, “that you're consumed with jealousy.”

He smiled.

“You must believe me,” he said. “If she only would marry the pack of them, all of them, ten barons, I'd be saved. It's not that. But I'm ensnared. I've done a hideous thing. Or perhaps something has been done to me. As if one of me wasn't enough. Now there are two of me. You've got to come away. We'll go somewhere.”

“Come, Sir Satan,” she whispered, “you talk rather insanely.”

“And what is insanity?” he demanded angrily. “Merely the faculty of taking one's illusions seriously. You don't understand that when I look at her I see myself. Not some one like myself—but ... Fantazius Mallare. Ah, there's no reality to the thing. She's not a woman. It's repugnant even to touch her. You recall the legend of Narcissus. He stared at his image and fell in love with it. But he died when he sought to embrace it. Yes, I understand the legend in an ugly way. It would be death to embrace her. It would be ghastly. Yet she holds me as if I were a maniacal whim of hers. As if I were the reflection and she Narcissus.”

He paused and his eyes focused upon an animated group across the room. Marcia followed his stare and grew red.

“There she is,” Mallare whispered. They sat in silence and watched the black dress and white face of Rita Ramsey. Marcia's eyes grew calm and shrewd but a foreboding struck her at the first glimpse of the girl.

“I do understand,” she whispered at last. “She's become a little like you. Because you've dominated her. But the rest is sheer fancy. She's just a vivacious and rather striking looking child.”

Mallare seemed not to listen. His eyes were fastened upon the curious face of Rita.

“Good God! Can't you see?” he went on. “Eyes like panthers of disillusion. Can't you see? It's Mallare sitting there.”

He stood up. She noticed that Rita and her friends were also leaving. Holding his arm she followed through the press.

“It's no use,” he whispered in the street. “It's too late.”

Marcia stared frightenedly at his suddenly bloodshot eyes. He helped her into a cab.

“Excuse me,” he said, taking her hand, “I ...”

The cab door closed. Looking back out of the window Marcia caught a glimpse of Mallare moving quickly to the side of a thin, white-faced girl in a sable wrap.

'LL come in and talk for a while,” Mallare said. Their cab moved away and Rita nodded. They entered the marble lobby of the apartment building. He inquired after her mother as they mounted in the elevator.

“She's away,” said Rita. A light was burning in the large room. Mallare glanced at the elaborate incongruities which filled the chamber and gave it the air of a museum show-case. Rita had taken off her wrap. Mallare from behind his mask of wearied indifference studied her. It was an illusion, he told himself. A preposterous thing, a terror based entirely upon vanity. She was nothing but an idiotic child who had matured precociously under his guidance. This creature in soft black with the face of a perverse saint, with the gestures of some languid and melancholy siren, was an impossibility. She was watching him with a thin smile. He heard her say: “What was it you wanted to talk about?”

Her voice was caressing. It sounded in his ears like an echo in monotone, an echo of his own voice. A vivid sense of having spoken himself overcame him. He turned away.

“I don't know,” he muttered helplessly. “But I must tell you something.”

“Yes.”

He had fought against confession. As he stood now, memories of women he had known trooped like wordless wraiths through his thoughts. A blur of forgotten faces, forgotten passions.

“Rita,” he said quickly, “I must go away.”

“From me?” she smiled incredulously. “Oh, no. You mustn't.”

She approached him and placed her hands on his shoulders. A yielding amorousness warmed her manner.

“Don't,” he whispered.

“But you love me.”

“No.”

She shook her head and was silent till he looked at her. The wraiths in his thought vanished. Women he had known, women whose eyes had mirrored ecstasies and passions for him—she was like them. Another of them. He struggled to fix the idea in his mind. But it slipped away. He stared desperately into eyes that mirrored nothing. Instead he saw himself suddenly—a horrible shadow of himself leering abjectly toward him. And he heard words whose source became confused, words that were like unspoken thoughts dancing in his own head. But it was Rita talking.

OU lie about that,” she was saying. “Do you think I don't know? I know everything about you. You have made me this way. I think of no one, of nothing but you. The others whirl around in space. They have no outlines. Their words don't make sense. You are the only one who lives for me.”

Mallare shuddered. A fear that she would kiss him made him cold. Then the illusion of duality deepened into a terrifying emotion. His disordered eyes saw in the white face raised toward him his own features. It was a mirror held up and he was staring frantically into his eyes, eyes that seemed somehow to have a life of their own. And his own voice was whispering to him. He struggled to bring himself back to sanity, but an hysteria entered the spaces of his thought and twisted it out of his control.

Rita, a radiant smile lighting her pale face, raised her arms and embraced him. Her lips came to his and her thin body pressed itself passionately against him. Mallare stood for a moment with his eyes shut. He felt a coldness stiffening him. Then a grotesque elation shot a warm stream through his veins. Himself! The word was a violence in his mind. Why not? It was nothing but an idea, a distortion born of madness. She was in reality a woman. This other was his mind, a horrible fancy that he could play with a fever that had disordered his cynicism.

He threw his arms quickly around her. Why not? The query rang in his thought with a mocking temptation. What was there better than himself? He held the thing in his arms avidly and fought to open his eyes. A bewildering pain choked his heart. He was rising, rising on nightmare wings. The lips that were devouring him became a ghastly repulsiveness. Terrified he heard himself calling ... “Mallare ... Mallare...”

“Are you better now?” Rita was leaning over him. He looked up from the divan. Something had happened.

“You must have fainted,” she whispered. “You kept calling your own name and then you fell over and I put you here.”

“Thanks.” He sat up. A lassitude filled him. Perhaps the idiocy would end now. His head throbbed and his mind seemed crowded with a nausea.

“You will pardon me,” he muttered, lowering his eyes hurriedly. It was still there—the abominable mirror. “I'll go.”

“You mustn't,” she said, and sat down beside him. “There is something wrong. You must tell me what it is. You kept crying out your name and holding me so tightly I couldn't breathe or move. You never held me that way before. It made my head swim. But why did you keep saying 'Mallare ... Mallare'?”

He shook his head and sat up.

“Oh, I love you,” she whispered, and covered her face with her hands. “I think of you all the time.”

He stood up now and straightened himself. “I'll come again to-morrow,” he said

UTSIDE, he walked quickly. A cold December night. He would think about something, about Rita. If she allowed this melodramatic absurdity to gain a further hold, he would unquestionably end in an asylum. He had obviously become the victim of an overmastering egoism. His life had become haunted with an hallucination of his own manufacture. The thing was unnatural and ... unmodern. He smiled tiredly. Metaphysic nonsense. Yet it existed. It was eating into him. He would marry the creature. But to marry her would be to go completely mad. An abominable madness. The embrace and the elation were more than a warning They were the fact. He had thought Rita himself and in the moment of surrender he had thrown his arms about an image—an impossible image of himself. Mallare shivered in the cold. The city looked ugly.

“I mustn't run away from it,” his mind told him. “It's a sort of penalty. I've played too long with myself. A juggler of insincerities, indeed. Ha, there's something wrong with her, not with me. A case of hypnosis. Yes, hypnosis. I'll have to study it. I've colored her. She was an effigy I brought her to life. I must return her somehow to ... an effigy. How?”

He walked now as if he had a purpose. His mind said: “Bosh ... fiddlesticks. Come out of it. The thing's a miserable pose.”

There came to him the sense of a lie. He was lying to himself. He intended to do something, but was concealing it. He intended to rid himself of this ego incubus. But he was hiding; like a man plunging his head into darkness, he was hiding from thoughts that spread bat wings inside him and scurried in and out of his mind.

He walked along with a reiterative curse on his lips.

HERE were a number of people who wondered what the devil had become of Fantazius Mallare. They said among themselves, “The man's gone somewhere, hasn't he? But he let nobody know. He was always a queer fellow, though.”

Perhaps Rita Ramsey knew. One might ask her. But one had to be careful. What a girl! Here was a dark miracle, indeed. A summer ago a colorless little nobody. And then, presto! here she was—a Circe in black, a strange woman whose eyes ... What was it Mallare had said? One must go to Mallare for similes. Her eyes are like the panthers of disillusion. Fancy any one but Mallare getting away with a remark like that at a dinner table.

It was pointed out here and there, by people with an eye for such detail, that Rita Ramsey was something like Mallare. Quite so; when one thought of it, it became rather noticeable. Mallare had, of course, overshadowed the girl. But he was gone. Hunting lions in Africa or somewhere, said Mrs. Titus Ramsey. But whatever there had been between him and Rita, his going away had not retarded the girl. Nobody within the memory of the oldest society editor had ever witnessed such an ascent. Up like a skyrocket, and without being able to dance, sing, play the piano or recite. She could talk, of course. There was only one person who had ever been known to talk like that—Mallare. But since he had chosen to vanish, Rita was just as good. She had a way of snuffing out women infinitely more beautiful than herself. Her smile, stamped monotonously across the challenging pallor of her face, had a way of deflating the most effulgent gowns. She was loathed for this. And not only for this but women also resented her talk. It was difficult to manage one's little set pieces in the superior explosions and shell bursts of the insufferable Rita. She could stamp herself upon the consciousness of a room, draw eyes to herself and function generally as an obliterator.

One could blame it on her black attire. She tried to look like a satanic nun. The thing was in deplorable taste, as if she were continually fitted out for a masquerade. It was taking an unmannerly advantage. One dressed decently and humanly and appeared at some very ordinary human function to find the Ramsey creature rigged out in costume. Of course, the costume or masquerade never varied. But that helped nothing. In fact, it made it worse. This continually unchanging soft black became a pose, a uniform. It became a part of the mystery. Everybody else always tried to do the decent thing and appear now and then in new dresses. Rita took advantage of this as she did of everything. Her soft black gown, her unvarying coiffure, her challenging pallor and her curious eyes—these were like a chord, a never changing insistent chord, sounding a tom-tom motif through the empty arpeggios of her world.

It was a nuisance altogether, this ascent of Rita Ramsey. There was only one relieving thing. This was the spectacle of Mrs. Titus Ramsey. The spectacle of that dominant social Rabelaisian reduced suddenly to a silence, even a malicious silence, by the poor little thing whom she had brow-beaten for a decade afforded one some amusement. And there was no denying it, within the memory of man Rita had been the first to deflate her mother. How did one explain this? Mallare, of course. He had done something to the girl. Probably hypnotized her.

There was the night of the Winthrop musicale almost a year ago. He had met her then and for some impossible reason devoted himself to her. A mésalliance between a satyr and a wallflower it had been then, or seemed to be. Well, Mallare at least was over with. People who went away seldom came back. They melted, or dissolved, or collapsed, or did something equally absurd. There had been others. Cynics were always unreliable. They usually went bankrupt and faded out as automobile salesmen in the hinterland. Vale Mallare.

ND then Mallare returned. It was late spring. He appeared one evening at the Barings'. There was a houseful. Some one said excitedly, “Have you seen Mallare? He's back.”

And, marvel of marvels, he was! The Paganini of phrases had returned, precisely elegant as of old. One had to marvel at the man. He had unquestionably improved. That is, grown worse. The devil himself could have made no more effective a figure. He gave one a chill, a delightful chill. His return was entirely a sensation.

“Where have I been?” smiled Mallare. “Closeted with my soul. Contemplating the infinities of boredom yet in store for me. Strengthening my moral fiber.”

Later he said, “No, I have not seen Rita yet. Is that so? I'm very glad to hear. Ah, yes, it is always very charming to seem a symbol of evil. I remember her very well. So she still wears black. A Mænad in mourning. A very curious girl.”

Rita arrived in mid-evening. This should have been another sensation. Mrs. Baring's guests became unnecessarily animated. For nothing happened. Rita and Mallare shook hands, They stood and talked. Any one might listen. They stood smiling at each other in an almost identical fashion. Except that Mallare's smile seemed stronger.

It was to be seen also that Rita was amazingly in love with the man. She followed him about, not wistfully but shamelessly, like an overjoyed child. As for Mallare there was nothing to be deduced from his mask. He had changed somewhat in that way. His face wore a rigid expression of indifference, as impervious to scrutiny as his patent leather shoes. Late in the evening he suddenly affixed himself to the punch bowl and drank a terrific lot of wine. Nevertheless, barring a slight slowness that came over him, he remained untouched.

The return of Mallare became a commonplace item. He recaptured without effort his old place. He was to be seen frequently and usually in the company of Rita. His attitude toward her inspired doubt. He conducted himself like an automaton in her presence. But she, that was another matter. Shameless was the only word. She circled around the burning eyes of Mallare like a black moth, her words buzzing sardonically in his ears.

And then the night of Mrs. Winthrop's musicale occurred. This was an established function and not to be ignored.

ALLARE smiled quietly down at the seated figure.

“This,” he said, “is our balcony, if you remember.”

Rita nodded.

“And I think Rabinoff will sing later,” Mallare added. “Only it is colder than it was last year.”

“Many things are colder,” Rita sighed. “You, for instance. You don't love me”

Mallare shook his head wearily.

“Quite wrong,” he said.

“I don't understand then,” she said. Her white face turned towards him and she noticed a slight shiver in his eyes as he looked down at her. “You once told me that when a man has loved one woman he has loved all women. Perhaps that's why you chose to remain disinterested in your emotions toward me.”

“No.” Mallare grinned suddenly. His eyes blazed at the girl. “Would you like to try the garden again?” he asked.

They arose and passed through the music room. It was cool in the garden. Rita leaned against him as they moved among the shadows.

“You've been avoiding me,” she started. “We haven't talked together since you've come back. Since you went away that night. Tell me, please.”

Her gesture implored. They had halted at a stone bench.

“Yes,” he muttered. “Let's sit down. I'll tell you now. It's very simple. I've gone mad.”

Rita stared at him, a smile dying in her eyes,

“Oh, no,” she said.

He nodded. “It's quite true,” he went on. “I thought at first it was an unconscious pose. You know, that is one of the penalties the poseur must pay. One may lose oneself in platitudes and become an ass. And one may also lose oneself in insincerities and go mad. One forgets, then, who one is, what one is. That seems to have happened to me. I find myself unable to decide intelligently whether my madness is an egotistic pretence or an authentic malady. I went away to study the question. I shot two lions.”

He laughed humorously.

“I owed that to several ladies who affect red velvet,” he smiled.

“And you decided you were really mad?” Rita inquired with an effort at mockery.

“Yes,”

“And the kind of madness you have decided upon, that would be interesting, too?”

“Yes. My particular mania is based on the hallucination that there are two of me. That I am one. That you are the other.”

Rita nodded.

“I understand something like that,” she whispered. The mask that Mallare had worn seemed to slip from him. His voice grew disordered and his hands, as if released from some dominant restraint began to fumble.

“I've waited,” he spoke. “It grew worse away from you. But I gained a hand on myself. Then when I came back....”

He paused and Rita felt his body tremble beside her.

“I can't go on any longer,” he muttered. “Even now as I talk the obsession becomes violent. Too violent. You are Mallare. Your face and slender body are somehow a distorted image of Mallare. And your eyes are mine. I can see out of them as I look at you. Very curious, is it not?”

He laughed desperately.

“And when I talk to you, when I hear you talk.... Yes, there are two of me. I have read twenty volumes of metaphysics. Unconvincing. There is no science in hallucination. I have figured that out. It's all here.”

He pointed to his head and sank back against the stone of the bench.

“I'm two pieces, Rita,” he whispered. “At night I die of longing to be near you. The moments we're apart are a torture. I feel incomplete, As if I were terribly naked, amputated. As if I were half asleep. I must go to you. But when I see you it becomes worse.”

Her hand reached for his. He withdrew it.

“No,” he said, “Ah, poor child. You don't understand yet. Long ago I read of a curious mania that once afflicted men. There was Tiberius, the Roman. There are legends of the Black Sabbath. A horrible orgy it was supposed to be in which men, through the aid of drugs and magic, detached themselves into two individuals. Each became a man and woman. An interesting legend though a bit horrible. Tiberius himself is credited with having been able to transform himself into a man and woman—the woman a shadow twin of himself, whom he loved. I fancy he had a madness like mine. For since the night I embraced you in your home it has seemed to me you are this shadow twin of mine. And when I held you, there was such a horror in my heart I thought I must die. It has been that way since. I rush to you in thought as if I must make you a part of myself in order to be complete. But the memory of our embrace....”

His voice died away and he shuddered.

“It's like being in love with a mirror,” she said softly “But I love you....”

“Damned ... damned,” muttered Mallare. He drew a tiny bottle from his pocket. Rita stared at his hand.

“My head breaks,” he whispered. “And to go on....”

Rita's eyes still watched his hand. Her body had grown silent as if life had left her. Finally she spoke.

“Don't,” she said. She reached and removed the thing from his fingers.

“Your madness is only the thing I inspire in you,” she said softly. “And you are too wonderful to die if ... if there is some other way.”

“I adore you,” he muttered, “but it's impossible. I'm gone too far. It has eaten away every defense in me.” Music came into the garden.

“They are dancing,” murmured Rita. She took his arm.

“You will kiss me now,” she said, “and to-morrow you will be cured.”

Her voice had become radiant. An ecstatic clamor was in her eyes. She drew him to his feet and her arms encircled him. They remained together, their lips hungrily together. Moments passed. Rita felt him suddenly limp, She stumbled toward the stone seat and Mallare slipped down. He lay with his head hanging back and his eyes opened in an ugly stare. She leaned over him. His breathing had grown faint and his lips were parted rigidly. Her hands moved tenderly over his head.

“My own,” she whispered. She stood regarding him. She remembered that in the moment before he had fallen he had whispered his own name hysterically in her ear. She waited until his breathing grew stronger and then stooping she kissed the forehead of the unconscious figure and walked away.

They were dancing inside. Men hurried to her as she appeared. They had missed her. Ah, in the garden with Mallare? The lucky devil! But would she dance now? Yes. The music sent its dolorous rhythms through the large room, Laughters sparkled. Bodies glided ardently into a charming pattern of movement. She would dance! This was a melodrama gesture she must commit. Her eyes blazed.... The dance ended. Refreshments.

Rita detached herself from the insistent groups. They would prepare now for the singing. Her mind became occupied with meaningless trifles She watched men bringing chairs into the room. Turning, she walked slowly toward the balcony. It was deserted.

The singing started. Rabinoff, He would sing songs she remembered. Rita removed a tiny bottle from her bodice and her eyes looked blankly at it. Mallare had held it in his hand.

Now Rabinoff was singing. Her cold fingers removed the silver top of the tiny bottle. A pungent odor almost like a perfume came out of it,

She closed her eyes and raised the thing to her lips. Emptied, it fell to her dress and rolled down. The music came dreamily into the night. There was a moon that floated like a white mask... And Mallare. The song was ending and Mallare was coming to the balcony. Her eyes widened. There was something strange about Mallare. He was tall. He reached into the air and his face danced. His eyes blazed like two writhing bodies—two black bodies writhing under the strange noise of lights... He was coming to her, and his hands like monstrous talons were reaching...

A scream made the music room suddenly silent. Men jumped up. They scurried around and the women rose and looked frightenedly at each other.

The Baron Montheim, standing in the door of the balcony, cried, “Good God!”

Rita lay on the floor, her arms thrown out and her white face hidden in a tumble of hair. The Baron lifted her up quickly.

“Dead!” he exclaimed.

Mallare stood over the couch on which they had laid the slender figure. Eyes were furtively watching him. He leaned over and kissed the forehead of the girl and then straightened.

His face had again become a mask and he walked away with a curious spring in his step.

title: The Adventure of the Broken Mirror


text: Talk:The Adventure of the Broken Mirror

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:The Adventure of the Broken Mirror


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The following treatise „On Chronology and the Construction of the Calendar with special regard to the Chinese computation of time compared with the European" I have originally written for the instruction of Chinese students in the Peking Tung-wen College and afterwards enlarged so that it could be useful also for those occupied with Chinese litteratureliterature [sic] and Chinese affairesaffairs [sic].

The information on the Chinese Calendar I have mostly obtained from Chinese sources viz: Wan-nien-shu (Ten thousand year's Calendar), from Chinese Calendars for the last years, from astronomical Ephemerides of Sun, Moon and greater Planets and other publications of the Kin-tien-kien (the astronomical Board at Peking); further from Chinese star-maps of the heavenly sphere (published for instance in the great Chinese work Ta-tsin-hui-tien i.e. the dictionary of the Manchu dynasty) etc.

The comprehension of these sources has been rendered easier by the study of an excellent treative by the celebrated Chronologiste Ideler „Die Zeitrechnung der Chinesen".

The astronomical calculations are made partly from my own methodes, partly taken from other sources. The formulae for calculating the Lunar-eclipses are those, given by the astronomer Littrow, for calculating the Solar eclipses those of Gauss, communicated in the celebrated work of Professor Dr. A. Sarvitoch „Practische Astronomie"; and the formulae for calculating the places of the stars for remote times those of Professor Encke, communicated by Prof. Dr. Foerster in „Berliner Jahrbuch für 1866".

The chronological table of the Chinese dynasties and emperors has been arranged by W. Hagen Esq. of the Chinese Legation at St. Petersburg with assistance of Wang-pheng-Kiu Esq.

As it was impossible to procure types for the Chinese characters, occurring at many places of the text, I was put in the necessity, to publish this work by way of lithography, by which, to my regret, has somewhat suffered its appearance, but I hope that this circumstance will not diminish the real value of the work.

St. Petersburg, July 1886.


text: Index:Margaret Hamilton of Rockhall v Lord Lyon King of Arms.pdf


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[2019] CSOH 85

CA63/19

Introduction

Outline of dispute

[1] The present action concerns the parties' dispute as to the validity, proper meaning and effect of heads of agreements ("the Agreement") entered into in 2008 to settle extra-judicially prior litigation (in the form of a judicial review) between the parties. The Agreement was a composite agreement in that it also resolved a separate, second judicial review ("the Lindberg judicial review") brought at the same time by another individual, Dr Lindberg, who is not a party to these proceedings. In October 2017 the defender indicated an intention to alter his usage (to use a neutral word) in respect of the wording of


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 barony titles. The Disputed Wording is set out in paragraph [29]. The effect of the change is that the holder is no longer expressly recognised as "the baron of [x place]", or as "holder of" the barony of [x place]. The pursuer challenges the Disputed Wording as a breach of the Agreement. While that is the trigger for the dispute, as will be seen, these simple facts have given rise to a number of subsidiary legal issues. The matter came before the court for a three-day debate, at which both parties sought to challenge aspects of each other's pleadings.

Background

Subsistence of barony titles after the abolition of feudal land tenure

[2] The terms on which the Lord Lyon recognises the holder of a barony title and grants Letters Patent are at the heart of the dispute between the parties. Lyon Sellar described the history and nature of estates held in barony with considerable erudition in Sturzenegger, Petitioner (No 2) 2015 SLT (Lyon Ct) 2 at paragraphs 13–17 ("Sturzenegger"). Upon the coming into force on 28 November 2004 of the principal provisions of the Abolition of Feudal Tenure etc (Scotland) Act 2000 (asp 5) ("the 2000 Act"), the feudal system as a form of landholding was abolished and such estates ceased to exist as feudal estates: see section 63 of the 2000 Act. This ended any connection between ownership of land and the former feudal barony. However, the "dignity" of baron was unaffected. The term "dignity" included "any quality or precedence associated with, and any heraldic privilege incidental to, a dignity": section 63(4) of the 2000 Act. By virtue of section 62 of the 2000 Act, which provided that "nothing in this Act shall be taken to supersede or impair the jurisdiction or prerogative of the Lord Lyon King of Arms", it remains competent for the Lord Lyon to


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522 respects from Armstrong's original description. Kirk's V. obovata only differs in the more truly obovate leaves, and I have little doubt that it will ultimately be merged with that species.

36. V. Cockayniana, Cheesem. n. sp.—A small densely branched shrub 2–4 ft. high; branches rather stout, densely leafy above, conspicuously marked with the scars of the fallen leaves below; younger ones more or less bifariously pubescent. Leaves close-set, decussate, suberect or spreading, shortly petiolate, uniform in size and shape, ⅓–⅔ in. long, ¼–⅓ in. broad, oblong or elliptic-oblong or obovate-oblong, obtuse, flat or slightly concave, thick and coriaceous, often black on the upper surface when dry, glaucous beneath; midrib puberulous above, thick and prominent beneath; margins entire. Racemes 2–4 near the tips of the branches, rather longer than the leaves, ½–1 in. long, simple, usually lax-flowered; rhachis, pedicels, and bracts pubescent. Flowers white, ¼–⅓ in. diam. Calyx deeply 4-partite; segments ovate-oblong, obtuse; margins pale, membranous, ciholate. Corolla-tube short and broad, equalling the calyx or slightly longer; limb 4-lobed; lobes longer than the tube, broad, rounded, veined. Capsule ¼ in. long, ovate, acute, twice as long as the calyx.

37. V. buxifolia, Benth. in D.C. Prodr. x. 462.—A stout erect much or sparingly branched perfectly glabrous shrub 1–5 ft. high; branches strict, densely leafy, below closely ringed with the scars of the fallen leaves. Leaves closely imbricate, ⅙–⅓ in. long, ⅛–¼ in. broad, broadly oblong-obovate, obtuse or subacute, suddenly truncate or cordate above the very short thick petiole, concave, keeled by the prominent midrib, rigid, very coriaceous, dark-green and polished above, paler and usually minutely dotted beneath, quite glabrous, entire. Spikes in the axils of the upper leaves, ¼–1 in. long, dense-flowered, often very numerous and crowded, forming a corymbose head to the branches; rhachis puberulous; bracts large, ovate, concave, coriaceous, equalling the calyx or sometimes exceeding it. Flowers sessile, white, ¼–⅓ in. diam. Calyx 4-partite; segments coriaceous, oblong, obtuse, ciliolate. Corolla-tube equalling the calyx or rather longer than it; limb 4-lobed; dorsal and lateral lobes broad, rounded; anticous narrower and subacute. Capsule broadly oblong, obtuse, compressed, almost twice as long as the calyx.—''Hook. f. Fl. Nov. Zel. i. 194; Handb. N.Z. Fl. 210; Armstr. in Trans. N.Z. Inst. xiii. (1881) 350; Kirk in Trans. N.Z. Inst.'' xxviii. (1896) 523.


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 grant new arms to persons who own barony titles. The dignity of a barony title is a form of incorporeal heritable property.

The business of the firm of which the pursuer is a partner

[3] The pursuer is, together with her husband and her daughter, a partner of a partnership ("the firm") which markets and sells barony titles ("barony titles") to the public. The firm does not itself grant these titles but facilitates the grants of arms based on barony titles from the Lord Lyon King of Arms ("Lord Lyon") by letters patent in favour of their clients. However, none of the foregoing is the subject of averment by the pursuer. The pursuer does not sue qua partner of the firm. She sues in this action as an individual, which was the same capacity in which she entered into the Agreement.

Genesis of the current action: the change of wording to Letters Patent in October 2017

[4] The wording of the Letters Patent which the Lord Lyon grants has varied over time. In the pursuer's view, the effect of the change of wording proposed by the Lord Lyon in October 2017, ie the Disputed Wording, made the barony titles much less marketable or, more accurately, the value to the firm of the title sold was materially reduced. This is because the purchaser perceives that the desirability of a barony title resides in the territorial designation contained in the letters patent, thus: "[Name of purchasers], Baron of X" (where "X" is a Scottish place name). The market value of a barony title in the former style is said to be worth about £85,000, whereas the worth of a barony title containing the Disputed Wording is said be only about £10,000. This is said to have a material impact on the pursuer's own title, were she to dispose of it to a third party. The pursuer also asserted in


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 submissions that her interest to bring these proceedings is based on the diminution in her drawings qua partner of the firm. (The defender challenges that contention as having no foundation in the pleadings.)

[5] Central to this action is the pursuer's contention that the Agreement was a contract of compromise which is binding on the defender, and that the Disputed Wording breaches the Agreement. I set out the terms of the Agreement in the next paragraph.

The Agreement

[6] The Agreement was in the following terms:

 * 1. The decisions by Lyon (Blair) in the Dr Lindberg and Mrs Hamilton Petitions will be quashed, under reservation of the competency issue. There will be no expenses due to or by.

 * 2. Dr Lindberg and Mrs Hamilton will abandon their current petitions to the Lord Lyon and submit new Petitions seeking (1) recognition respectively as Baroness of Lag and Baron of Delvine and (2) a grant of arms with, in respect of Dr Lindberg a helmet befitting his degree, namely the helmet assigned to barons as specified in Scots Heraldry, and in respect of Mrs Hamilton, the right of her heirs in the dignity of baron to bear and use such a helmet.

 * 3. Lyon accepts that Dr Lindberg falls within the jurisdiction, and exercising his discretion, as a person who will require to bear arms in Scotland arising out of his ownership of the dignity of the Barony of Delvine.

 * 4. In respect of future Petitions for Grants of Arms by other persons owning a dignity of baron which has been acquired post the appointed day, provided that the Lord Lyon determines that the dignity of baron exists, that the petitioner is a virtuous and well deserving person and determines to exercise his discretion in their favour to grant arms the Lord Lyon will, (i) if so required, officially recognise the petitioner as '' and (2) grant them ensigns armorial with a helmet befitting their degree, namely the helmet assigned to the barons.

 * 5. Where a petitioner has no connection with Scotland that otherwise brings the petitioner within the jurisdiction of the Lord Lyon, Lyon accepts that subject


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 :to other relevant considerations he will accept the ownership of a dignity of a barony as sufficient to bring the petitioner within his discretionary jurisdiction to grant arms to that person as a person who will require to bear arms in Scotland by reason of his ownership of the dignity." (Emphasis added.)

I have numbered the individual paragraphs for ease of reference; the numbering internal to paragraphs 2 and 4 is in the original. The references to "petition" and "petitioner" in the foregoing mean, respectively, the form of the application for a grant of arms to the Lord Lyon and the person who brings such an application (as opposed to a petition by way of judicial review to these courts). The pursuer relies in particular on the words underlined in proviso (i) in paragraph 4.

The judicial review proceedings and the Lindberg judicial review

[7] In about 2006 the pursuer applied to the then Lord Lyon (Lyon Blair) to be recognised officially as the "Baroness of Lag" and to receive a grant of arms with baronial additaments appropriate to the Dignity of Baron in the Baronage of Scotland. On 15 May 2006 Lyon Blair determined to recognise the pursuer only as "Holder of the Barony of Lag" and to grant the pursuer a coat of arms without any baronial additaments. He issued a Warrant for Letters Patent dated 15 May 2006 ("the 2006 Warrant"). In 2006 the pursuer presented a petition for judicial review ("the Hamilton judicial review") challenging Lyon Blair's refusal, in effect, to recognise her as Baroness of Lag.

[8] In terms of the prayer, in the Hamilton judicial review she sought orders (i) for recognition in the name Margaret Hamilton of Rockhall, Baroness of Lag, and (ii) to authorise the Lyon Clerk to prepare Letters Patent granting her and her descendants such Ensigns Armorial, together with all additaments appropriate to the Dignity of Baron in the


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 Baronage of Scotland. The Lindberg judicial review was brought at the same time and it proceeded on broadly the same grounds. The two judicial review proceedings were settled extra-judicially in 2008 by a single agreement, namely the Agreement recorded above, at paragraph [6].

[9] The pursuer avers that the Agreement also resolved the Lindberg judicial review. As part of the settlement of the Hamilton judicial review, it was agreed that the 2006 Warrant be reduced. In due course, Lyon Blair recognised the pursuer as "the Baroness of Lag" with grant of arms with baronial additaments appropriate to the dignity of baron.

The office of Lord Lyon and the power to grant arms

[10] A number of arguments concern the office of the Lord Lyon, the nature of the powers he exercises in that role generally (eg administrative or judicial) and in the exercise of the royal prerogative, delegated to him, to grant arms. A further issue concerned the capacity of one Lord Lyon to bind a successor in office. Accordingly, it may assist to set out the background to these matters insofar as they were uncontroversial between the parties.

The Lord Lyon and his immediate predecessors

[11] The compearing defender in these proceedings is Dr Joseph J Morrow CBE, QC, LLD, the current holder of the office of Lord Lyon King of Arms, in relation to the grant of arms. The previous holder of the office was David Sellar MVO, MA, LLB, FRHistS, FSA, who was Lord Lyon at the time of the Agreement at issue in these proceedings. Lyon Blair was the Lord Lyon who granted the 2006 Warrant.


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Veronica.]

38. V. anomala, Armstr. in Trans. N.Z. Inst. iv. (1872) 291.—An erect perfectly glabrous much-branched shrub 3–5 ft. high; branches long, slender, fastigiate, leafy, purplish towards the tips. Leaves spreading, sessile or nearly so, ⅓–¾ in. long, ⅛–⅙ in. broad, linear-oblong or elliptic-lanceolate, subacute, keeled, coriaceous, dark-green and shining above, paler beneath, midrib obscure. Spikes crowded together at the tips of the branches, 5–10-flowered, forming a short terminal panicle; rhachis puberulous; bracts ovate, acute, coriaceous, as long as the calyx. Flowers sessile, white or pale-pink, ¼–⅓ in. diam. Calyx 3-partite with one of the segments broader and emarginate or 2-lobed, more rarely 4-partite; segments linear-oblong, obtuse. Corolla-tube slender, tubular, about twice as long as the calyx; limb either 3-lobed with the anticous lobe entirely suppressed, or 4-lobed with the anticous lobe small and narrow-linear; the dorsal and lateral lobes oblong, obtuse. Capsule ovate-oblong, obtuse, glabrous, half as long again as the calyx.—Trans. N.Z. Inst. xiii. (1881) 355; ''Hook. f. Bot. Mag.'' t. 7360.

39. V. decumbens, Armstr. in Trans. N.Z. Inst. xiii. (1881) 352.—A small decumbent much-branched shrub 1–3 ft. high; branches spreading, purplish-black, bifariously pubescent. Leaves


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 The Office of Lord Lyon

[12] The Lord Lyon King of Arms is an Officer of State. It has been observed that in his armorial jurisdiction, "Lyon stands in the place of the King.": per Report by Lyon-Depute Boswell (1796), Lyon Office Records, cited by Sir Thomas Innes of Learney, Lord Lyon King of Arms in Scots Heraldry (2nd Ed, 1956) at page 7 ("Scots Heraldry"). Sir Thomas Innes of Learney is the undoubted modern authority on the history of the Office of Lord Lyon.

[13] The Lyon King of Arms Act 1867 (30 & 31 Vict C 17, "the 1867 Act") provides inter alia:

"1. The jurisdiction of the Lyon Court in Scotland shall be exercised by the Lyon King of Arms, who shall have the same rights, duties, powers, privileges and dignities as have heretofore belonged to the Lyon King of Arms in Scotland, except in so far as these are herein-after altered or regulated.

2. The Lyon King of Arms shall be bound to discharge the duties of his office personally...."

The defender emphasised that section 2, which provided that the duties of Lord Lyon were non-delegable but were to be exercised personally, underscored the personal discretion vested in the Lord Lyon.

[14] Earlier statutes of the old Scottish Parliament include: The Officers of Arms Act 1587 (c 46); The Lyon King of Arms Act 1592; the Lyon King of Arms Act 1669 (c 95) and The Lyon King of Arms Act 1672 (c 47) ("the 1672 Act"). By virtue of inter alia the 1672 Act, the Lord Lyon is expressly authorized to grant arms to "virtuous and well deserving persons" (a phrase repeated in para 5 of the Agreement). In Scots Heraldry, Sir Thomas Innes records the following elaboration of those words and persons who are

"in all places of honour and worshipe among other noble men to be renouned [ie reknowned] reputed taken and accepted by shewing certain ensigns and demonstrations of honour and noblesse" (spelling in original),


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 which he describes as "persons deserving of being raised to the nobility" and who, by virtue of the grant of arms become root of a "noble stok" (ibid at p 85).

Personal appointment of the Lord Lyon by the Monarch

[15] The Lord Lyon is personally appointed by the Monarch in terms of letters patent. In relation to the grant of arms, the Lord Lyon exercises the royal prerogative on behalf of the Monarch. The powers and duties conferred on the holder of the office are exercisable by, and binding upon the holder of the office for the time being: see section 12 of the Interpretation Act 1978. However, unlike many other ministerial offices of offices of state, there is no statutory provision dealing with a vacancy in this Office of State, or providing that it shall be a corporation sole. (This may be contrasted with the statutory provisions made for Ministers of the Crown, as for example provided for in section 5 of the Crown Suits (Scotland) Act 1857; section 1(6) of the Public Registers and Records (Scotland) Act 1948; Ministers of the Crown Act 1975, Schedule 1, paragraph 5; or article 4 of the Secretary of State for Transport Order 1976 (SI 1976 No 1775).) The potential significance of this is that there is no presumed or imputed continuity of obligations as between one holder of the office of Lord Lyon and his predecessor, a point the defender relies on to argue that the Agreement was not binding on successor Lords Lyon.

The distinct jurisdictions exercised by the Lord Lyon

[16] The Lord Lyon has two distinct types of jurisdiction. It is helpful to note these two jurisdictions.


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 [ Maintenance, Advancement and Protective Trusts.

31.—(1) Where any property is held by trustees in trust for any person for any interest whatsoever, whether vested or contingent, then, subject to any prior interests or charges affecting that property—
 * (i) during the infancy of any such person, if his interest so long continues, the trustees may, at their sole discretion, pay to his parent or guardian, if any, or otherwise apply for or towards his maintenance, education, or benefit, the whole or such part, if any, of the income of that property as may, in all the circumstances, be reasonable, whether or not there is—
 * (a) any other fund applicable to the same purpose; or
 * (b) any person bound by law to provide for his maintenance or education; and
 * (ii) if such person on attaining the age of twenty-one years has not a vested interest in such income, the trustees shall thenceforth pay the income of that property and of any accretion thereto under subsection (2) of this section to him, until he either attains a vested interest therein or dies, or until failure of his interest:

Provided that, in deciding whether the whole or any part of the income of the property is during a minority to be paid or applied for the purposes aforesaid, the trustees shall have regard to the age of the infant and his requirements and generally to the circumstances of the case, and in particular to what other income, if any, is applicable for the same purposes; and where trustees have notice that the income of more than one fund is applicable for those purposes, then, so far as practicable, unless the entire income of the funds is paid or applied as aforesaid or the court otherwise directs, a proportionate part only of the income of each fund shall be so paid or applied.

(2) During the infancy of any such person, if his interest so long continues, the trustees shall accumulate all the residue of that income in the way of compound interest by investing the same and the resulting income

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 [15 thereof from time to time in authorised investments, and shall hold those accumulations as follows:—
 * (i) If any such person—
 * (a) attains the age of twenty-one years, or marries under that age, and his interest in such income during his infancy or until his marriage is a vested interest; or
 * (b) on attaining the age of twenty-one years or on marriage under that age becomes entitled to the property from which such income arose in fee simple, absolute or determinable, or absolutely, or for an entailed interest;
 * the trustees shall hold the accumulations in trust for such person absolutely, but without prejudice to any provision with respect thereto contained in any settlement by him made under any statutory powers during his infancy, and so that the receipt of such person after marriage, and though still an infant, shall be a good discharge; and
 * (ii) In any other case the trustees shall, notwithstanding that such person had a vested interest in such income, hold the accumulations as an accretion to the capital of the property from which such accumulations arose, and as one fund with such capital for all purposes, and so that, if such property is settled land, such accumulations shall be held upon the same trusts as if the same were capital money arising therefrom;

but the trustees may, at any time during the infancy of such person if his interest so long continues, apply those accumulations, or any part thereof, as if they were income arising in the then current year.

(3) This section applies in the case of a contingent interest only if the limitation or trust carries the intermediate income of the property, but it applies to a future or contingent legacy by the parent of, or a person standing in loco parentis to, the legatee, if and for such period as, under the general law, the legacy carries interest for the maintenance of the legatee, and in any such case as last aforesaid the rate of interest shall (if the income

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 The Lord Lyon's administrative or ministerial jurisdiction

[17] The first jurisdiction is a ministerial or an administrative jurisdiction, in which the Lord Lyon has a wide discretion in exercising the prerogative powers delegated to him: see Stair Memorial Encyclopedia (Reissue) "Courts and Competency" at paragraph 276; Kerr v Advocate General for Scotland 2010 SC 1 (Ex Div) ("Kerr") at paragraphs 6–7 per Lord Marnoch (delivering the Opinion of the Court). New grants of arms are made pursuant to claims not of right but of grace; the petitioner has no inherent right to a grant. See section 1 of the 1672 Act, which provided that the Lord Lyon

"may give Armes to vertuous and well deserving Persones and Extracts of all Armes expressing the blasoning of the Arms undir his hand and seall of office."

Thus, in petitions of the type mentioned in paragraphs 4 and 5 of the Agreement, it is for the Lord Lyon to decide (i) whether he has jurisdiction to make a grant of arms to the petitioner; (ii) whether the petitioner is a "vertuous and well deserving person"; and, in the event that the Lord Lyon decides to exercise his discretion under the royal prerogative to make a grant of arms, (iii) what form they should take. (The foregoing is averred in the defender's averments, and admitted by the pursuer.) Such ministerial and administrative functions are reserved matters: see paragraphs 1 and 2 of Schedule 5 to the Scotland Act 1998 ("the Scotland Act"); Part 1 of Schedule B to the 1867 Act and The Lyon Court and Office Fees (Variation) (Reserved Functions) Order 2016 (SI 2016 No 1138, with Explanatory Memorandum). This has the potential to affect the question of who is more properly called as defender, if not the current Lord Lyon, as the appropriate representative of the Monarch. (This argument only emerged at debate.) So, for example, if the power exercised concerns a reserved matter, the proper defender would be the Advocate General for Scotland.


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 Procedure for application of a new grant of arms

[18] An application for a new grant of arms is made by petition to the Lord Lyon King of Arms in the Court of the Lord Lyon. Where the petition is granted, the Lord Lyon's determination is set out in a Warrant for Letters Patent, by which the Lord Lyon authorises the Lyon Clerk (i) to prepare Letters Patent granting appropriate ensigns armorial and (ii) to matriculate the arms in the Public Register of All Arms and Bearings in Scotland. In due course, the Letters Patent are issued to the petitioner. The Letters Patent are a formal title deed from the Crown granting the arms. That is their function. Since the grant of arms is a matter for the Lord Lyon's "very wide discretion" in the exercise of the royal prerogative assigned to him by the 1867 Act, his determinations may only be reviewed by the Court of Session on traditional public law grounds: see Kerr at paragraph 7. The decision in Kerr also made clear the Lord Lyon's wide discretion, in particular, as to how to record or recognise the names of those petitioning for a grant of arms: see paragraphs 8 to 11. The defender notes that in Kerr, an Extra Division refused a challenge to the Lord Lyon's refusal to recognise the applicants in Letters Patent (and hence in the Public Register) in a name or style that incorporated a territorial designation.

Judicial functions of the Lord Lyon

[19] The second type of jurisdiction concerns the Lord Lyon's judicial functions in determining a claimant's entitlement in respect of legal rights. These are not reserved: see paragraphs 1 and 2 of Schedule 5 to the Scotland Act. Part 2 of Schedule B to the 1867 Act; and The Lyon Court and Office Fees (Variation) (Devolved Functions) Order 2016 (SI 2016 No 390, with Policy Note) ("the 2016 Devolved Functions Order"). The Lord Lyon also has


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 [ available is sufficient, and subject to any rules of court to the contrary) be five pounds per centum per annum.

(4) This section applies to a vested annuity in like manner as if the annuity were the income of property held by trustees in trust to pay the income thereof to the annuitant for the same period for which the annuity is payable, save that in any case accumulations made during the infancy of the annuitant shall be held in trust for the annuitant or his personal representatives absolutely.

(5) This section does not apply where the instrument, if any, under which the interest arises came into operation before the commencement of this Act.

32.—(1) Trustees may at any time or times pay or apply any capital money subject to a trust, for the advancement or benefit, in such manner as they may, in their absolute discretion, think fit, of any person entitled to the capital of the trust property or of any share thereof, whether absolutely or contingently on his attaining any specified age or on the occurrence of any other event, or subject to a gift over on his death under any specified age or on the occurrence of any other event, and whether in possession or in remainder or reversion, and such payment or application may be made notwithstanding that the interest of such person is liable to be defeated by the exercise of a power of appointment or revocation, or to be diminished by the increase of the class to which he belongs:

Provided that—
 * (a) the money so paid or applied for the advancement or benefit of any person shall not exceed altogether in amount one-half of the presumptive or vested share or interest of that person in the trust property; and
 * (b) if that person is or becomes absolutely and indefeasibly entitled to a share in the trust property the money so paid or applied shall be brought into account as part of such share; and
 * (c) no such payment or application shall be made so as to prejudice any person entitled to any prior life or other interest, whether vested or contingent, in the money paid or applied

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 [15 : unless such person is in existence and of full age and consents in writing to such payment or application.

(2) This section applies only where the trust property consists of money or securities or of property held upon trust for sale calling in and conversion, and such money or securities, or the proceeds of such sale calling in and conversion are not by statute or in equity considered as land, or applicable as capital money for the purposes of the Settled Land Act, 1925.

(3) This section does not apply to trusts constituted or created before the commencement of this Act.

33.—(1) Where any income, including an annuity or other periodical income payment, is directed to be held on protective trusts for the benefit of any person (in this section called “the principal beneficiary”) for the period of his life or for any less period, then, during that period (in this section called the “trust period”) the said income shall, without prejudice to any prior interest, be held on the following trusts, namely:—
 * (i) Upon trust for the principal beneficiary during the trust period or until he, whether before or after the termination of any prior interest, does or attempts to do or suffers any act or thing, or until any event happens, other than an advance under any statutory or express power, whereby, if the said income were payable during the trust period to the principal beneficiary absolutely during that period, he would be deprived of the right to receive the same or any part thereof, in any of which cases, as well as on the termination of the trust period, whichever first happens, this trust of the said income shall fail or determine;
 * (ii) If the trust aforesaid fails or determines during the subsistence of the trust period, then, during the residue of that period, the said income shall be held upon trust for the application thereof for the maintenance or support, or otherwise for the benefit, of all or any one or more exclusively of the other or others of the following persons (that is to say)—
 * (a) the principal beneficiary and his or her wife or husband, if any, and his or her children or more remote issue, if any; or

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 jurisdiction in the matter of change of surname: see the 2016 Devolved Functions Order just noted. In Scotland, persons may call themselves by any name, but if they wish a certificate regarding change of a surname they may apply to the Lord Lyon, who again, has a wide discretion in the matter: see Kerr at paragraphs 9–10.

The evolution of the Lord Lyon's practice and the wording for grants of letters patent

[20] The essential issue that divides the parties is whether paragraphs 4 and 5 of the Agreement were contractual (as the pursuer contends), and which gives rise to issues about the capacity of one Lord Lyon to bind his successor in such obligations, or whether they are no more than the articulation of Lyon Sellar's proposed policy or practice at the time made in the exercise of his ministerial discretion (as the defender contends), and which gives rise to issues about the width of that discretion and whether one Lord Lyon may permissibly fetter the discretion of a successor. In order better to understand parties' arguments about the nature of the ministerial power the Lord Lyon exercises, and which characterisation the defender supported by reference to examples of other earlier policies and their changes, it is helpful to set out the evolution of the Lord Lyon's practice in relation to the wording of grants of letters patent. While this narrative was not formally agreed by the parties, I did not understand Mr Lindsay QC, senior counsel for the pursuer, to dispute it. (In the following, I use "practice" or "policy" without prejudice to characterisation of the jurisdiction from which it flows.) Nor did I understand Mr Lindsay's final position to be to dispute that the exercise of the royal prerogative in the grant of arms involved a ministerial (as opposed to a judicial) jurisdiction.


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 [ ::(b) if there is no wife or husband or issue of the principal beneficiary in existence, the principal beneficiary and the persons who would, if he were actually dead, be entitled to the trust property or the income thereof or to the annuity fund, if any, or arrears of the annuity, as the case may be;
 * as the trustees in their absolute discretion, without being liable to account for the exercise of such discretion, think fit.

(2) This section does not apply to trusts coming into operation before the commencement of this Act, and has effect subject to any variation of the implied trusts aforesaid contained in the instrument creating the trust.

(3) Nothing in this section operates to validate any trust which would, if contained in the instrument creating the trust, be liable to be set aside.

34.—(1) Where, at the commencement of this Act, there are more than four trustees of a settlement of land, or more than four trustees holding land on trust for sale, no new trustees shall (except where as a result of the appointment the number is reduced to four or less) be capable of being appointed until the number is reduced to less than four, and thereafter the number shall not be increased beyond four.

(2) In the case of settlements and dispositions on trust for sale of land made or coming into operation after the commencement of this Act—
 * (a) the number of trustees thereof shall not in any case exceed four, and where more than four persons are named as such trustees, the four first named (who are able and willing to act) shall alone be the trustees, and the other persons named shall not be trustees unless appointed on the occurrence of a vacancy;
 * (b) the number of the trustees shall not be increased beyond four.

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 The Lord Lyon's practice prior to 28 November 2004

[21] The appointed day for the parts of the 2000 Act relevant to the issues in this case, under section 23 of the 2000 Act, was 28 November 2004 ("the appointed day"). An example of the Lord Lyon's practice prior to the appointed day was produced, in the form of the Letters Patent for Junaid Bhatti ("Mr Bhatti") subscribed by Lyon Blair on 27 July 2007. Mr Bhatti was named as "Baron of Ballencrieff". Towards the end of his letters patent there was what is known as a "nobility clause". The defender founds on the fact that such clauses have since been omitted from such deeds, without objection by the pursuer or the firm.

The practice between 28 November 2004 (ie the appointed day) and Agreement

[22] Although no example of Letters Patent issued in relation to this period was produced, it was a matter of averment and admission in the pleadings that various changes of wording were made, including the omission of the nobility clause in respect of grants made after 2007.

[23] Lyon Blair issued a detailed Note on 15 May 2006 ("Lyon Blair's Note") in connection with the present pursuer's original petition. At page 1 of Lyon Blair's Note he noted that the pursuer's petition (ie her application to the Lyon Court) was "the first Petition for a grant of Arms by a person claiming ownership of a barony which has come before me since the coming into force on [the appointed day]". In Lyon Blair's Note, Lyon Blair explained (at pages 1–2) why he was prepared to recognise the petitioner as holder of the Barony of Lag. Thereafter, Lyon Blair's Note explained why Lyon Blair was not willing to accept an entry in the Scottish Barony Register as evidence of ownership of a barony (pages 2–4). Finally, Lyon Blair's Note dealt with the question of baronial additaments (pages 4–9). (Baronial


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 [15 (3) This section only applies to settlements and dispositions of land, and the restrictions imposed on the number of trustees do not apply—
 * (a) in the case of land vested in trustees for charitable, ecclesiastical, or public purposes; or
 * (b) where the net proceeds of the sale of the land are held for like purposes; or
 * (c) to the trustees of a term of years absolute limited by a settlement on trusts for raising money, or of a like term created under the statutory remedies relating to annual sums charged on land.

35.—(1) Appointments of new trustees of conveyances on trust for sale on the one hand and of the settlement of the proceeds of sale on the other hand, shall, subject to any order of the court, be effected by separate instruments, but in such manner as to secure that the same persons shall become the trustees of the conveyance on trust for sale as become the trustees of the settlement of the proceeds of sale.

(2) Where new trustees of a settlement are appointed, a memorandum of the names and addresses of the persons who are for the time being the trustees thereof for the purposes of the Settled Land Act, 1925, shall be endorsed on or annexed to the last or only principal vesting instrument by or on behalf of the trustees of the settlement, and such vesting instrument shall, for that purpose, be produced by the person having the possession thereof to the trustees of the settlement when so required.

(3) Where new trustees of a conveyance on trust for sale relating to a legal estate are appointed, a memorandum of the persons who are for the time being the trustees for sale shall be endorsed on or annexed thereto by or on behalf of the trustees of the settlement of the proceeds of sale, and the conveyance shall, for that purpose, be produced by the person having the possession thereof to the last-mentioned trustees when so required.

Rh


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 [ (4) This section applies only to settlements and dispositions of land.

36.—(1) Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, or is an infant, then, subject to the restrictions imposed by this Act on the number of trustees,—
 * (a) the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or
 * (b) if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee;

may, by writing, appoint one or more other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the place of the trustee so deceased remaining out of the United Kingdom, desiring to be discharged, refusing, or being unfit or being incapable, or being an infant, as aforesaid.

(2) Where a trustee has been removed under a power contained in the instrument creating the trust, a new trustee or new trustees may be appointed in the place of the trustee who is removed, as if he were dead, or, in the case of a corporation, as if the corporation desired to be discharged from the trust, and the provisions of this section shall apply accordingly, but subject to the restrictions imposed by this Act on the number of trustees.

(3) Where a corporation being a trustee is or has been dissolved, either before or after the commencement of this Act, then, for the purposes of this section and of any enactment replaced thereby, the corporation shall be deemed to be and to have been from the date of the dissolution incapable of acting in the trusts or powers reposed in or conferred on the corporation.

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 "additaments" are symbols signifying a particular rank.) The policy set out in Lyon Blair's Note was reflected in the 2016 Warrant he issued on the same date. It would appear that Lyon Blair's Note accords with the practice adopted by Lyon Blair between the appointed day and the date that he vacated the office, in respect of persons whose claimed ownership commenced on or after the appointed day.

The practice following the Agreement

[24] Paragraphs 4 and 5 of the Agreement were published on the website of the Court of the Lord Lyon on 3 December 2008. Reference was made to an exchange of emails dated 3 December 2008 between the then Lyon Clerk and the solicitor then acting for the Lord Lyon in the Office of the Solicitor to the Advocate General for Scotland. The court was advised that the text (with one or two minor differences) was recorded for a time within the FAQs section of the website of the Lyon Court.

[25] An example of Lyon Sellar's policy is seen in the Letters Patent granted to Pier Felice Alberto Renato degli Uberti, dated 31 October 2012. Immediately below Mr Uberti's name, the text stated:

"baron of Cartsburn for aught yet seen", and later stated, under reference to an entry in the Scottish Barony Register, that

"the Petitioner did acquire for aught yet seen the barony of Cartsburn". It also stated that:

"We have (Primo) Officially Recognised as We do by These Presents Officially Recognise the Petitioner in the name Pier Felice Alberto Renato degli Uberti, baron of Cartsburn for aught yet seen". (Emphasis in bold added.)


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 [15 (4) The power of appointment given by subsection (1) of this section or any similar previous enactment to the personal representatives of a last surviving or continuing trustee shall be and shall be deemed always to have been exercisable by the executors for the time being (whether original or by representation) of such surviving or continuing trustee who have proved the will of their testator or by the administrators for the time being of such trustee without the concurrence of any executor who has renounced or has not proved.

(5) But a sole or last surviving executor intending to renounce, or all the executors where they all intend to renounce, shall have and shall be deemed always to have had power, at any time before renouncing probate, to exercise the power of appointment given by this section, or by any similar previous enactment, if willing to act for that purpose and without thereby accepting the office of executor.

(6) Where a sole trustee, other than a trust corporation, is or has been originally appointed to act in a trust, or where, in the case of any trust, there are not more than three trustees (none of them being a trust corporation) either original or substituted and whether appointed by the court or otherwise, then and in any such case—
 * (a) the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or
 * (b) if there is no such person, or no such person able and willing to act, then the trustee or trustees for the time being;

may, by writing, appoint another person or other persons to be an additional trustee or additional trustees, but it shall not be obligatory to appoint any additional trustee, unless the instrument, if any, creating the trust, or any statutory enactment provides to the contrary, nor shall the number of trustees be increased beyond four by virtue of any such appointment.

(7) Every new trustee appointed under this section as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respects act as if he had

Rh


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 [ been originally appointed a trustee by the instrument, if any, creating the trust.

(8) The provisions of this section relating to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.

(9) Where a lunatic or defective, being a trustee, is also entitled in possession to some beneficial interest in the trust property, no appointment of a new trustee in his place shall be made by the continuing trustees or trustee, under this section, unless leave has been given by the Judge or Master in Lunacy to make the appointment.

37.—(1) On the appointment of a trustee for the whole or any part of trust property—
 * (a) the number of trustees may, subject to the restrictions imposed by this Act on the number of trustees, be increased; and
 * (b) a separate set of trustees, not exceeding four, may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property, notwithstanding that no new trustees or trustee are or is to be appointed for other parts of the trust property, and any existing trustee may be appointed or remain one of such separate set of trustees, or, if only one trustee was originally appointed, then, save as herein- after provided, one separate trustee may be so appointed; and
 * (c) it shall not be obligatory, save as hereinafter provided, to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where more than two trustees were originally appointed, but, except where only one trustee was originally appointed, and a sole trustee when appointed will be able to give valid receipts for all capital money, a trustee shall not be discharged from his trust unless there will be either a trust corporation or at least two individuals to act as trustees to perform the trust; and

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 [15 :(d) any assurance or thing requisite for vesting the trust property, or any part thereof, in a sole trustee, or jointly in the persons who are the trustees, shall be executed or done.

(2) Nothing in this Act shall authorise the appointment of a sole trustee, not being a trust corporation, where the trustee, when appointed, would not be able to give valid receipts for all capital money arising under the trust.

38.—(1) A statement, contained in any instrument coming into operation after the commencement of this Act by which a new trustee is appointed for any purpose connected with land, to the effect that a trustee has remained out of the United Kingdom for more than twelve months or refuses or is unfit to act, or is incapable of acting, or that he is not entitled to a beneficial interest in the trust property in possession, shall, in favour of a purchaser of a legal estate, be conclusive evidence of the matter stated.

(2) In favour of such purchaser any appointment of a new trustee depending on that statement, and any vesting declaration, express or implied, consequent on the appointment, shall be valid.

39.—(1) Where a trustee is desirous of being discharged from the trust, and after his discharge there will be either a trust corporation or at least two individuals to act as trustees to perform the trust, then, if such new trustee as aforesaid by deed declares that he is desirous of being discharged from the trust, and if his co-trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place.

(2) Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done.

40.—(1) Where by a deed a new trustee is appointed to perform any trust, then—
 * (a) if the deed contains a declaration by the appointor to the effect that any estate or

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