Whether Negligence in preserving the Subject infers Irritancy. - Whether Irritancy takes place where the Condition becomes imprestable. - Irritancy not a Voidance of the Right, making it voidable only.
Ccckburn v. -
1592.
June. Case No. No 33.
Lands were mortified to a convent, on condition of saying masses for the soul of the donor. Although such masses came to be prohibited by law, the irritancy took place.
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Cockburn, foirgranschir to the Laird of Clerkington, having a bond of the umquhile Grey-friars of Haddington, bearing, that the Friars and their succescessors were bound and obliged to the pursuer's heirs and successors, to say so many masses, for the souls of the said Laird and his predecessors; and, in case they fail thereof, they should renounce and quit all claim, right, and interest, they had to a piece of land, the Friar-croft; and so pursued the title and right made by the friars, to some indwellers and burgesses of Haddington, to be reduced, and the Laird of Clerkington repute as heir to his foirgrandschir, according to the tenor of the said bond. It was excepted against the reason of the summons, That the cause of the fulfilling of the said bond, which was to say so many masses, stood not by them, by reason of the alteration of the religion, qui fuit casus fortuitus et ad quod nemo tenetur de jure; and as the Papist's religion was abrogated by the laws of the country; and the sincere and true religion planted; and as the hail kirklands were annexed to the Crown by act of Parliament; therefore the same being done ex vi et necessitate legis, the fulfilling of the said bond, by saying and singing of mass, could not be put to the defenders' charges.———-The Lords found, that the reason of the summons was relevant, and repelled the exception; albeit the defenders alleged thereafter that they had other titles, and verification of the said croft to the said friars.
