Offly against Best
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1685 |
| Date | 01 January 1685 |
| Court | Court of the King's Bench |
English Reports Citation: 84 E.R. 130
COURTS OF KINGS BENCH
47. offly against best. mich. 18 car. 2, rot. 169. Ante. Administration. In an attachment sur prohib' Baldwin pro defendant, that no prohibition ought to be granted to the Delegates, because 1. Since the statute 21 H. 8, cap. 5, administration granted to the next of kin may be revoked for good cause, for at common-law it will be admitted, that the Ordinary was so entrusted, that Com. 277, he might have granted to whom he would, and revoked when he will, and this power is supposed by Westminster 2, cap. 19, and this statute that gives debt against the Ordinary, 2 Insfc. 397, and 9 Co. 39, was but an affirmance of common-law, 31 Ed. 3, cap. is the first statute that abridgeth the power of the Ordinary, yet this being bat an affirmative Act without negative words, therefore, as 4 H. 7, 14, per Tremayle, the Ordinary may revoke when he will, the administration being but a deputation, and then the statute 21 H. 8, giveth liberty to the Ordinary to grant it to whom he will, in case of equality of kindred, but here are no negative words that take away the Ordinary's ancient power of revoking, and that he shall grant administration, is no more, but that he shall depute in the former statute, and the Judges, since this statute, have in some cases, as Philcox against Hold, 1 Leoncl. 240, pi. 40, and Moor 87 I, Stoner against Gibbons granted administration against the express words of the statute (but per Curiam the former is but an exploded opinion of Noy, and in the latter case, the husband was next of kin) also Mich. 21 Car. 1, Brown against Poyns adjudg'd that residuary legatee should have administration, notwithstanding it was before executed :o the next of kin, which Twisden denied, but the reason why there the administration was repealable, was, because it was granted to the sister of the half bloud, and her husband, and not duly committed at first: [209] also where the next of kin is an idiot, or suppresseth a will, as Latch. 67, Maya's case, his administration may be revoked, and 3 Cr. 163, by Anderson is in this point, so Owen 50, Newman against Beaumond, and Fotherby's case, 1 Cr. 62, and Levans's case, 1 Cr. 201, make rather this way, because that this is not duly granted, and for cause he may revoke. Therefore 2. The plaintiff having enter'tl a caveat within four days, that no administration be granted without notice to him, or his proctor, which was the 14th of and the...
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