[equity, judicial ignorance about - auction - Bagdad]

Espie v. Armytage and Hays

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 22 August 1837

Source: True Colonist, 25 August 1837

But to return to the Supreme Court. After some matter-of-course motions on bills of exchange, the Attorney General proceeded to open the argument in the case of Espie v. Armytage and Hays. We were a good deal amused with the embarrasment of both judges and counsel, arising from ignorance of the established rules of chancery practice on such occasions. The chief justice had an old book on chancery practice, and Mr. Horne a new one; from both of which they attempted to make out some course of proceeding in the case. Mr. Justice Montagu spoke of this ignorance of practice with a sort of cynical contempt, which ill became his seat, inasmuch as he himself was the most ignorant of the whole. Both his manner and expressions were remarked with any thing but approbation by the audience, as being very inconsistent with the respect due to the Chief Justice, who evidently felt for the conduct of his colleague.

The case which was a very important one, as defining the powers and duties of an auctioneer, was briefly this:-

Mr. W. Hays, of Bagdad, authorised Mr. J. C. Stracey, of Hobart Town to sell by auction a farm at Bagdad. The sale took place in the yard of Mr. Armytage’s licensed house. The bidders were Messrs. Espie, Armytage, Kimberley, and Forbes. During the course of the bidding, Mr. Armytage was requested to send for some refreshments, the servant whom he sent not returning, Mr. Armytage went into the house to hasten his return, his being the last bid when he went away, and having requested the auctioneer not to proceed in his absence; while he was gone the other parties became impatient and insisted on the sale proceeding. Hays, the vendor, forbad the auctioneer to proceed, saying that he knew Armytage to be a bidder. But just as Armytage made his appearance coming from the house, the farm was knocked down to Forbes for five pounds more than Armytage had then bid. Forbes paid the deposit by a cheque for fifty pounds and declared himself to be the agent of Espie, who was the real purchaser, and gave bills for the residue of the purchase. Hays refused to acknowledge the sale, first, because it had proceeded contrary to his express desire in the absence of Armytage; second, because his instructions were to sell for ready money; third, because Stracey had sold the crops with the farm, which Hay alleged was contrary to his instructions. Hayes afterwards sold the farm to Armytage for the same price as Espie had agreed to give for it, but reserving to himself the crops which were valued at £123. Espie filed his bill to compel Armytage and Hays to convey to him the farm, or Hays to pay him the £123. The Attorney General contended that before Armytage left the sale, he had declared that the farm was too dear, and that he would bid no more, and that on his return he thanked the auctioneer for having relieved him from a bad bargain, and wished Forbes luck of his purchase. The Solicitor General and Mr. Horne for the respondents objected, first that it was a mock auction, because there were only two bona fide bidders, viz. Espie and Armytage - Forbes and Kimberley being merely bidding for Espie who was present. Second, that Hays had revoked his authority for Stracey to sell, Third, because the sale was not for ready money, according to his instruction; there was a great mass of evidence on each side, and we understand very contradictory, but it was not read out in court; the judges and the parties agreeing that it should be considered as read, and a copy furnished to each of the judges to read at home, before hearing the arguments of the council upon it on Friday. We will give a very careful report of this case; which we consider of great importance, where the colonists have more to do with auctioneers than in any other part of the world.

Mr. Horne objected to Mr. Stacey’s evidence being received, he being an interested parry; and complained, we think very justly, that he had not been made a party to the bill.  We think that there is a great defect in the regulations regarding auctions in this colony; or rather a total want of any regulation, except the will of the auctioneer. In Scotland land is always sold at an auction by the running of a sand-glass, so that such a dispute as this could never occur there.