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.
D of Lenox v. Houston
Date: 29 January 1628 Case No. No 35.
Removing was attempted of a kindly tenant of a house, because he had allowed it to fall into decay. Assoilzied.
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In a removing by the Duke of Lenox against Houston, for removing from the house and yards of Inchinnan, pertaining to the Duke, the Lords found a rental made by umquhile Lodovick Duke of Lenox to this defender, whereby he was rentalled kindly tenant to the Duke of Lenox and his heirs in some acres of land, and also in the keeping of the said house of Inchinnan, to be a sufficient title to exclude the pursuer from this action of removing of him from the said house, wherein he was rentalled keeper as said is; and the exception founded upon the said rental was sustained, albeit it was replied, that the same rental was no title to exclude the master from the use of his own house, neither was a rental of that tenor, viz. appointing one to be keeper of the house, of that force as to give a warrant to the receiver, to keep the same longer than the granter pleased; seeing rights to keep castles and houses are constituted by securities of another nature, and more valid in law than such rentals can be of; likeas he replied, that the house and yards are all decayed, by the neglect and abuse of this defender, whereby he had fallen from the benefit of the rental; all which was repelled, and the exception sustained. See Tack.
Act. Hope et Burnet.Alt. ———.Clerk, Hay.
Fol. Dic. v. 1. p. 485. Durie, p. 334.
