Pierce against Parks
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1685 |
| Date | 01 January 1685 |
| Court | Court of the King's Bench |
English Reports Citation: 83 E.R. 1282
IN THE COURT OF KING'S BENCH
59. pierce against parks. Ante 846, pi. 41. Administrator. 2 Roll. 303. Debt for rent due in the intestates life time ; the defendant pleads sentence of revocation of the plaintiff's administration in bar. The plaintiff replyeth that was-void, he being brother, &c. and that there is still an appeal pendant of the first sentence; to which the defendant demurred. Paulet for the plaintiff, that the action is maintainable, 1. Because the revocation is void ; for at common law the Ordinary had only an authority to keep or distribute the goods, and grant letters ad colligendum,. Dyer 255 b. 256, but no interest till 31 Ed. 3, cap. 11, to grant administration to any; and hereby he hath only commission to grant to the next of kin capacitated by law, and then the interest is vested in the committee ; and 21 H. 8, cap. 5, is but an explanation and direction of the former, which being but bare authority in the Ordinary, and well executed, cannot be repealed ; which rule is as true in publick as-private authorities, and in judicial as ministerial powers, as 5 Co. 40, and Prin's case on the Act of Corporations, and what Judges do, that is not within their jurisdiction or authority, is coram non judice, as the Marshalsea is a Court for all causes, but 9 Co. 76 confined to persons del hostel, and others, are coram non judice there ; so the Ordinary is restrained to the next of kin, and otherways his commission is void; but not pleadable here, for his authority remains, and Anderson 303, he may revoke it without any process ; but here his authority is well executed, and so not revocable without [855] cause, 1 Cr. 62 & 201, as letters ad colligendum might be at common law; and in Betsworths case, 22 Car. 1, this point was obiter resolved, but he relyed on Sir George Sands's case. I agree, when a caveat is entred by two in equali gradu, 1KEBLE.W. HILL. 16 AND 17 CAR. II. B. B. 1283 43 EHz. Lady Willoughbies case, Goldab. 119, Administration granted to one may by appeal be revoked, or where there is some disability by attainder, which is perpetual, the Ordinary may grant new administration ; contra on excommunication or utlawry in trespass, which are but temporary, for there, as 34 H. 6, 14, he can only gratit a concurrent administration quousque the disability be removed, which are in nature of servants to the first, as administration during minority; but in our case there is no cause appears. 3. Here the repeal may be pleaded in bar, in regard the Ordinary hath a general jurisdiction of the thing, contra of coram non judice. 4. Also by the appeal, the first action is still pendent. Wallop for the defendant, It must be supposed that the Ordinary hath revoked for cause being said done debito modo; but however, the...
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