Blackborough v Davis
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 92 E.R. 979
COURT OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
See S. C. 1 Ld. Raym. 684; 91 E. R. 1355 (with note).
[96] de terming pasch. 13 will. III. in B. R. case 65. blackborough vers. davis. [See S. C. 1 Ld. Raym. 684; 91 E. R. 1355 (with note).] A mandamus does not lie to the Spiritual Court after administration granted. 1 Salk. 38, 251, S. C. 12 Mod. 615, S. C. Holt 43, S. C. 1 Ld. Raym. 684, S. C. 1 P. Wms. 41, S. C. 2 Bac. Abr. 381. Gibs. Cod. 479, 482. 4 Burn's E. L. 357, 361. Infra, p. 108. A motion was made for a mandamus to the Spiritual Court, after an administration granted to the grandmother, that another administration should be granted to the aunt, for by the statute of 21 H. 8, c. 5, s. 3, the Spiritual Court ought to grant it to the next of kin ; and if it is granted to another, the grant is void, and this Court hath power to direct and command it to be granted to the person who by our law is next of kin, and she is the aunt and not the grandmother; as to the objection, that there may be an appeal, that is no cause why a mandamus shall not go to the Spiritual Court; for if the Temporal Court will not grant one, after an administration is granted there, the statute will be eluded, for an administration will be granted [on. an appeal] before a motion can be made for a mandamus. But the Court was of a contrary opinion, for by the statute of 31 Edw. 3, c. 11, administration shall be granted to such person as the Ordinary pleases; then the statute of 21 H. 8, c. 5, requires to make grant of the administration to the wife or to the next of kin who requires it; but if the Ordinary does not grant it to the next of kin, but to a mere stranger, yet the administration is not void, but was good upon the Statute of 31 Edw. 3, and therefore if an administration be repealed upon a citation (a)1, the acts by the first administration are...
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