M'NEILL v LITTLEDALE (Court of Session)

In 1804, Mr M'Neill, the pursuer, purchased the estate of Colonsay from Colonel Archibald M'Neill, under the condition that he was to retain in his hands a sufficient part of the price to relieve the estate of all the incumbrances and debts which affected it. The lands were at that time burdened with an heritable bond for L.2000 to Joseph Littledale, the brother of the claimant, which was completed by infeftment in his favour.

In 1808, William Broderick, a pretended creditor of Joseph Littledale, who was then dead, charged the claimant in the present action to enter heir to his deceased brother, and instituted a process of constitution against him, in which he obtained decree in absence for upwards of L.2270, with interest and expenses.

Broderick, having obtained this decree, raised letters of special charge against Isaac Littledale to enter heir to his brother in the annualrent and lands contained in the heritable bond over the estate of Colonsay; and thereupon took decree of adjudication likewise in absence. A charter of adjudication was obtained from Mr M'Neill, the purchaser, upon this decree, under a reservation of his right to challenge the grounds and vouchers of his debt; and the right was completed by infeftment, but no possession followed.

Broderick then constituted his debt by decree against Mr M'Neill the purchaser, and the trustees of Colonel Archibald M'Neill, and thereupon charged the purchaser to pay up the sum contained in the heritable bond.

Mr M'Neill presented a bill of suspension; and the charge was suspended, on the ground that the account, on which the claim against Joseph Littledale was founded, was totally unvouched; and Broderick afterwards abandoned the action, paying Mr M'Neill's expenses.