WIGHT v FORMAN, Trustee on the Sequestrated Estate of William Foote (Court of Session)

In 1825, Mr Wight applied for a sequestration against Foote, in security of the current rent, and thus attached all the stock and property belonging to Foote in the distillery for the amount of the rent. Foote having then become bankrupt, his estate was sequestrated; and Forman, who was appointed judicial trustee, proceeded to take steps to sell all the utensils of the distillery, upon the understanding that the proceeds should be applied, in the first place, to pay Mr Wight any sum to which he should be found to have acquired a legal preference in consequence of the sequestration used by him.

The price of the utensils purchased by Mr Wight at the excise sale in 1822, and assigned by him, by the above missive, to his sub-tenant, had not yet been paid by Foote, although he had continued to possess them, and to occupy the distillery subsequent to the term of Martinmas 1824.

The suspender reclaimed ; and the Court altered the interlocutor, suspended the letters, and made the interdict perpetual.

Lord Alloway .—I feel some difficulty as to the terms used in the missive of 10th February 1823, particularly the last clause of it, upon the construction of which the decision of this question must entirely depend. But I think that no sale was made at the time, nor intended by the parties to take place till the price should be paid; and the trustee on the bankrupt estate, who is only the judicial assignee of Foote, cannot take the property without complying with the condition of the missive, by paying the stipulated price.

Lord Glenlee .—The Lord Ordinary has intimated his opinion that there was no immediate sale effected at the date of the missive, and that if there had, the stipulation for 8 per cent. would have been usurious; but he thinks that although there was no sale then completed, there was a valid contract of sale entered into, by which the transference of the property was to take place at Martinmas 1824; and the question is, whether the obligation to pay the price was stipulated as a condition suspensive of the sale. This is attended with considerable difficulty.