Macdonald v. Mackintosh [1905] ScotLR 42_622 (09 June 1905)

The pursuer failed to aver a relevant and sufficient case of abandonment; general averments and lapse of time are not enough. The action is irrelevant and must be dismissed.

Citation: [1905] ScotLR 42_622
Parties: Pursuer: Donald Macdonald; Defender: John Mackintosh
Jurisdiction: Scotland
Judgment Date: 09 June 1905
Procedural Posture: Action of Count, Reckoning, and Payment / Reclaiming Motion After Dismissal at First Instance
Outcome: action dismissed
Legal Topics: Discharge of Trustee, Abandonment of Asset, Ranking of Creditors, Relevancy of Averment

Bankruptcy Trust Law Discharge of Trustee Abandonment of Asset Ranking of Creditors Relevancy of Averment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 4 Party arguments 2 Amounts and remedies 3

Parties

Donald Macdonald

Pursuer

John Mackintosh

Defender

Procedural Posture

Action of Count, Reckoning, and Payment / Reclaiming Motion After Dismissal at First Instance

Legal Issues

1 Whether the pursuer has relevantly averred abandonment by creditors of an asset
2 Whether the pursuer's claim is excluded by the defender's ranking as a creditor in the sequestration

Ratio Decidendi

The pursuer failed to aver a relevant and sufficient case of abandonment; general averments and lapse of time are not enough. The action is irrelevant and must be dismissed.

Court Disposition

action dismissed

Orders

sustained second plea-in-law for defender
dismissed action with expenses