Coppin v Hurnard
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 849
COURT OF KING'S BENCH
[127] 23. coppin versus hurnard. Hil. 21 & 22 Car. II. Regis, Rot. 1251. Suffolk, to mt. - Be it remembered that heretofore, to wit, in the term of St. Michael last past, before our lord the King at Westminster came Thomas Coppin by Edward Nelson his attorney, and brought here into the Court for our said lord the King then there his certain bill against William Hurnard gent, in custody of the marshal of a plea of debt, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit : Suffolk to wit, Thomas Coppin complains of William Hurnard gent, being in the custody of the marshal of the Marshalsea of our lord the King before the King himself, of a plea that he render to him 91. of lawful money of England, which he owes to, and unjustly detains from him, for this, to wit, that whereas on the 12th day of September in the 19th year of the reign of our Lord Charles the 2d, now King of England, &c. certain suits and controversies were moved, had and depending, between the said Thomas and William,(l) for the pacifying and determining of which said suits and controversies, the said Thomas and William (1) See ante, 61, Hodsden v. Harridge, note (1). 850 COPPIN V. HURNABD 2 WMS. SAUND. 138. cm the said 12th day of September in the 19th year aforesaid, at Halesworth in the county aforesaid, submitted (2) themselves to stand to the award, [128] order, and judgment of one William Gary gent, and one Edward Nelson gent, arbitrators indifferently chosen between them, so as the said award should be made by the said arbitrators of and upon the premises before the last day of Michaelmas term then next following, if they could, and if they could nob, then to the award and final determination of one Richard Coke Esq. an umpire indifferently chosen between the said Thomas and William Hurnard, so aa that award should be made of and upon the premises before the said last day of Michaelmas term. And the said Thomas in fact says, that the said William Gary and Edward Nelson did not make any award, nor could they make any award, between the said parties, of arid upon the premises, before the said Isst day of Michaelmas term; and the said Eichard Coke having notice thereof, and having taken upon himself the burthen of the said award afterwards, and before the said last day of Michaelmas term aforesaid, to wit, on the 27th day of November in the aforesaid 19th year of the reign of our said lord the King, at Halesworth aforesaid, awarded between the said Thomas and William Hurnard of and upon the premises (3) in form following, that is to say, that the said William Hurnard on the 24th day of December then next following, should pay to the said Thomas Coppin 91. aa well for money due from the said William Hurnard to the said Thomas, as for the costs and charges of the said Thomas in and about the prosecuting and defending of the said several suits, and that on payment of the said 91., the said Thomas and William should give to each other general acquittances; (4) whereby an action has accrued to the said Thomas to demand and have from the said William Hurnard the aforesaid 91. Yet the said William (although often required) has not yet paid the said 91. to the said Thomas, but to pay the same to him has hitherto altogether refused and still refuses, to the damage of the said Thomas of 101. and therefore he brings suit, &c.(5) And now at this day, to wit, on Saturday next after the octave of St. Hilary in this same terra, until which day the said William Hurnard had leave to impavl to the said bill, and theti to answer, &c. before our lord the King at Westminster, comas aa well the said Thomas Coppin by his attorney aforesaid, as the said William by William Gary his attorney. And the said William Huruard defends the wrong and injury when, &c. and says that the said Thomas ought not to have or maintain his said action thereof against him, because he says that the declaration aforesaid, and the matter in the same contained, are not sufficient in law for the said Thomas to have his aforesaid action thereof maintained against him the said William Hurnard, to which said declaration he the said William Hurnard has no necessity, nor is he bound by the law of the land in anywise to answer. And this he is ready to verify ; wherefore for want of a sufficient declaration in this behalf, he [129] the said William Hurnard prays judgment, and that the said Thomas may be barred from having his said action thereof against him the said William,(6) &c. And the said Thomas says, that he, by any thing by the said William Hurnard above in pleading alleged ought not to ba barred from having his aforesaid action thereof against the said William Hurnard, because he says, that the declaration aforesaid, and the matter in the same contained, are good and sufficient in law for him the said Thomas to have his aforesaid action thereof maintained against the said William Hurnard, which said declaration and the matter in the same contained, he (2) Ib. note (2). (3) Ante, 62, note (3). (4) 16. note (4). (5) Ib. note (5). (6) See 5 Mod. 131, Leaves v. Bernard, where it is holden, that if a plea is ever so informal, beginning and ending in abatement, and indeed partaking very little of the usual form of a demurrer, but is nevertheless meant to be, and in substance is, a demurrer, it is good.(a) (aj [It is a rule that there can be no demurrer upon a demurrer. Stephen on Pleaa. Ch. ii. s. i. r. iii.] 2 WMS. BAUND. 129. PASCH. 22 CAR. II. REGIS 851 the said Thomas is ready to verify and prove, as the Court, &c. and because the said William Hurnard does not answer the said deelaration, nor has hitherto in any wise denied the same, the said Thomas prays judgment, and his debt aforesaid, together with his damages on occasion of the detention of the said debt, to be adjudged to him, &c. But because the Court of our said lord the King now here is not yet advised what judgment to give of and upon the premises, a day therefore is given to the parties aforesaid, before our lord the King at Westminster, until day next after to hear their judgment of and upon the premises, because the Court of our said lord the King here is thereof not yet, &c.
English Reports Citation: 85 E.R. 851
COURT OF KING'S BENCH
[129] 23. coppin versus hurnard. Hil. 21 & 22 Car. II. Regis, Eot. 1251. S. C. 1 Sid. 428, 455. Sir T. Raym. 187. 1 Lev. 285. 1 Mod. 15. 2 Keb. 562, 619. If a submission be to arbitrators, and if they disagree, then to an umpire, and the award and umpirage are limited to the name day, the power of the umpire is void, unless the arbitrators disagreed and declared they would not intermeddle any more; and the plaintiff, in such case, must shew, in his declaration, the cause why ilie arbitrators could not make their award. Debt upon an award by Coppin against Hurnard, the plaintiff, declares that whereas there were divers suits and controversies depending between the plaintiff and defendant, for the determining of which, the plaintiff and defendant, on the 12th of September in the 19th year of the reign of the now King, submitted themselves to stand to the award of William Gary, and Edward Nelson, arbitrators indifferently chosen between them, so as the said award should be made by the said arbitrators of and upon the premises before the last day of Michaelmas term then next following, if they could, and if they could not, then to the award and final determination of one Richard Coke, Esq. an umpire indifferently chosen between the parties, so as the said umpirage should be made of and upon the premises before the said last day of Michaelmas term aforesaid. And the plaintiff in fact says, that the arbitrators did not make, nor could they make, any award between the parties aforesaid of and upon the premises before the said last day of Michaelmas term, whereof the said umpire, having notice, and having taken on himself the burden of the award, afterwards, and before the said last day of Michaelmas term, to wit, on the 27th of November in the [130] 19th year aforesaid, made his umpirage on the premises between the parties, namely, that the said defendant at Christmas following should pay to the plaintiff 91. for money due to the plaintiff, and also for the costs of several suits at law; and that on payment of that money both parties should give general acquittances to each other. And the plaintiff avers non-payment of the money, whereby an action has accrued, &c. to which declaration the defendant demurred in law. And it was argued by Jones for the defendant, that the umpirage was void, because the umpire has made his award within the time limited for the arbitrators to make their award. For the arbitrators have power to make their award at any time before the last day of Michaelmas term following; and the umpire has no power to make his award, but only in case the arbitrators cannot make their award. But it does not appear here that the arbitrators could not make their award; for although it is averred in the declaration that the arbitrators could not make their award, yet this avails nothing, unless a special cause be shewn why they could not make their award. For suppose that, after the umpire has made bis award, the arbitrators had also made their award, which of them ii the defendant bound to perform? Certainly he is bound to perform the award of the arbitrators; wherefore it follows that the umpire has made his award sooner than he ought, and therefore the umpirage is void in law. And he cited Barber and Giles's case, 1 Roll. Abr. 261,* where the submission was to arbitrators, and if they disagreed then to the umpirage of J. S., so as the award, or umpirage, be made before the first day of May; in this case the umpire cannot make any award before the arbitrators * S. C. cited 2 Vent. 115. 852 COPPIN V. HURNARD 2 WMB...
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