case Blackborough against davis see S c Peer wms e r with note if  administration be grant to the grandmother of a intestate the court will not  grant a mandamus on the application of a aunt of the decease in order that  administration may be grant to her although she be near of kin and although  the spiritual court be bind to calculate proximity of blood by the rule of the  commonlaw and not by those of the canon law for they will presume the  administration right grant but the next of kin may bring a citation to repeal  the letter of administration S c salk S c holt S c ld ray S c Peer wms S c  comy Rep the niece die intestate and administration be commit to the  grandmother and now Broderick in behalf of a aunt move for a mandamus to the  spiritual court to grant it to her as be as be pretend next of kin videlicet a  degree near than the grandmother and he urge that in all case except where  there be many in equal degree where the ordinary may choose to which of they  to commit he be bind by the statute to grant it to the next of kin and that if  he grant it to any other he go beyond his authority and his grant be void and  he may without any repeal of such grant commit it to the right person and for  this he quote Owen and brown and if there be any present impediment in the  next of kin as if he be attaint non compos c in respect of which  administration maybe well grant to the next after he yet upon removal of such  incapacity the ordinary of right be to repeal the administration and that  without any appeal to a superior judge and grant it to the right person side  so if he to who it be commit become non compos or otherwise incapable be may  repeal in like manner and grant they to the next of kin after cro Goldsb die  so since now by the statute of Henry c it be the duty of the ordinary to grant  modern report er p the administration to the next of kin and who such next of  kin be shall be determine by the commonlaw and not by their law below a and if  he do not duly execute modern report his duty the only remedy for the party  grieve be to apply for aid to the temporal court for the king writ to command  he to execute his authority as he ought to do accord to the statute and it can  be object that such a mandamus will in effect be to command a judge to act  contrary to his judgement for it be no more than to command they to execute  the statute and it be one of the point in the case in side that the ordinary  may repeal or revoke a administration and grant it anew sir b shower contra  they be judge below of the proximity of degree for it be absurd to make they  judge of the matter and not to allow they to judge it accord to their own law  and there be no precedent that ever a mandamus go to command they to commit  administration when they have already grant it and to say that administration  once commit can in any case be mere void be direct against packman case b and  to grant a mandamus here will be to determine the right of a three person  without his privity for if a mandamus shall go and the judge below will not  return the truth here will be a three person oust of his right without a  opportunity of show it holt chief justice offley case in siderfin be a  administration commit to one in equal degree pen a caveat without notice of he  who have enter the caveat and a appeal be bring to repeal it for that cause  and they below hold that a good cause of repeal and this be suggest for a  prohibition here and on demurrer the court be divide two hold that it be grant  to one next of kin the ordinary have execute his authority well but the other  two though he have grant it to the right person yet it be undue so it do not  affect this case one way or other but here you seem to be too late for a  mandamus it be true the construction of the statute upon the proximity of  degree must be accord to the commonlaw and if they will go against it your way  will be to come and suggest that they be go to grant it to one more remote and  then move for a prohibition to hinder they from so do and then you may have a  mandamus to make they grant it to the next of kin nor be it unusual to oblige  they to construe act of parliament which concern even thing of pare  ecclesiastical conusance accord to commonlaw or to prohibit they for if they  shall libel to divorce two for kindred who modern report be out of the degree  it be very frequent to prohibit they and yet nothing be more mere within their  jurisdiction than marriage yet because there be a Act of parliament in the  case the construction whereof belong to the king temporal judge we prohibit  they in such case now the grant of administration in its nature be of civil  conusance but allow to they by the custom of England and by that custom they  have a discretionary power to grant to who they will and to recall it at will  but here come a Act of parliament which take away this discretionary power and  if they do not confine themselves to that Act they ought to be prohibit but  now you be too late for that for since they have grant it we will give so much  credit to they as to believe they have do it right and if they have not do so  it must be undo by repeal for since the statute of Edward c the administrator  have as absolute a property in the good as a executor who be in by the very  will of the testator and your authority to the contrary be not law for by the  statute of Edward c the ordinary be to grant the administration to the most  foyal and loyal friend of the intestate and nothing be say of the next of kin  till the statute of Henry c and that command he to grant it to the next of kin  require the same but neither statute do incapacitate he to grant it to any  other only command he to grant it to next of kin c and if the statute have  deprive he of the power of grant to any other than to next of kin then the  grant to any other will be mere void and consequent trover will lie against  vendee of such administrator by the next of kin after administration grant to  he and that it do not the authority of packman case be in point suppose the  next of a see Bl Com Prec Chan b   modern report er p kin do not ask for it  must not the ordinary commit it to another or to the principal creditor and if  after the next of kin ask it and the administration commit to the principal  creditor be repeal and grant to the next of kin the principal creditor may  retain any debt in equal degree and all the disposition make by he before the  repeal shall stand but if one who have no jurisdiction commit administration  it be void and sale under such administration alter no property but it be  utter void but there be no manner of authority but here be one though limit  and since you stay till administration commit your way be to appeal and that  will have let you in but now you have pass the fourteen day you have lapse  your time and here at last modern report the court direct they to bring a  citation below to repeal the administration and if judgement be give against  you in that you may appeal but still such appeal suspend only the sentence  upon the citation and still the administration remain in force and the  administrator may by virtue thereof dispose of all the good in the mean time  and so per gold justice it be adjudge in a case of sims v sims in hale time  and per all men there be no colour for a mandamus till something be pen below  and that now can only be by citation and if the nature of the thing will bear  it it may then be grant and it be say by the chief justice that after  administration commit in no case can the ordinary compel distribution and for  that the statute of distribution be make and since the statute of Edward c the  ordinary be not answerable for any misdemeanour of the administrator as he be  before that statute which show be be no more his servant and have no more to  do with he and that administration commit to one more remote in kindred be not  avoidable but by repeal vide Hetly but if the ordinary without repeal of the  first shall grant it to another and then the first be repeal from  thenceforward the second be good sir John nedham case a and they all hold that  if there be two in equal degree the ordinary have his election who to grant  administration to and holt chief justice remember sir George sand case b who  take out administration for his son and afterward a woman pretend to be the  son wife will have it repeal and there upon motion for prohibition here it be  hold the ordinary by commit it to the father have execute his authority for he  have election which of they to grant it to as also the case of Duncomb v Lacy  c which be after it in the common plea a feme covert have several debt due to  her before marriage which the law do not give to her husband she die and her  next of kin come and take out administration the husband sue to have it repeal  and a prohibition be move for and grant and all this appear on the declaration  it be hold the prohibition shall not stand but the husband ought to have the  administration and sir George sand case be hold to be good law for it differ  from this for by the statute of Edward c the husband ought to have  administration preferable to anybody and be not within the statute of Henry c  because the husband be the best friend the wife can have and it be also hold  that a residuary legatee be to have administration before the next modern  report of kin because it appear that the intestate by make he residuary  legatee take he to be his best friend but the reason why the wife shall not  have administration of her husband preferable to his father be because she may  marry and so put herself and the good in the power of another and as to the  main point they all agree at another day when the case be move again and a  citation pen below that there be no room for a mandamus to prefer the aunt and  that she can by no mean be say near of kin than the grandmother and suppose  they in equal degree one be in the right line ought to be prefer to the other  be in the collateral per holt chief justice and per ill the relation between  granddaughter and grandmother and niece and a   b side ray salk c Duncombe v  mason as cite S c ld ray modern report er p aunt be equal and all the  difference be that one be lineal and the other collateral and they be likewise  mutual relation and in plead if the son will make himself heir to the uncle he  must show comment and make the father a medium that be that inheritance  descend to he ut kinsman et hredi videlicet son of such a one who be brother  and heir to the uncle and so in case of descent from the grandfather you must  do it in like manner by the father that it descend to he ut kinsman et hredi  videlicet as son and heir to the father who be son and heir to the grandfather  but brother and sister be in a immediate degree to one another and for that  need not mention the father in make title to each other and for this he quote  the great case of foster v Ramsey a in the exchequer two son of a alien bear  in England one of they die the other shall be his heir and make title he need  not mention the father but though brother be in the same degree among  themselves they be not so as to a three person for if so in case  administration have be commit to the aunt it shall not be revoke to have it  grant to the mother this be all in easter and Trinity term last in Michaelmas  term they move for a mandamus to have distribution and to have it Broderick  urge the word of the statute which ordain a distribution to the next of kin to  the intestate in equal degree and they will not controvert but the aunt and  grandmother be in equal degree to the niece and it be plain they do not go  accord to the civil law for by the Nov of Justin there ought to be  distribution between the father and brother and sister of intestate and they  never allow of any before the statute modern report and we be but two degree  remove from the intestate and so distant be the grandmother to which it be  object first by sir b shower and Cheshire commonlaw counsel that the statute  of distribution be only make to quiet the ordinary in his right of order a  distribution which undoubted do belong to he and be exercise by he before the  statute of Edward and which he do continual claim and accord to the opinion of  some eminent commonlawyers remain in he notwithstanding the statute and since  before the statute they be the sole judge who ought to have the distribution  and the new statute empower they to order a distribution it seem very plain  the statute leaves it to they to judge who ought to have distribution for ft  say it shall be accord to the law in that case use and that must be the law  which they below do use to go by and by their law the grandmother be near of  kin than the aunt or if it be not so and it be adjudge so the remedy be by  appeal to a superior court for the distribution of intestate estate be always  of ecclesiastical conusance before Edward c whereby the property of the  administrator be become absolute subject to debt in their degree but exempt  accord to the general opinion of the commonlawyers of any distribution and the  new statute make they liable to distribution do only restore thing as they be  and a mandamus to grant distribution to the aunt be express to oust the judge  below of the jurisdiction the statute entrust he with videlicet that of judge  who be entitle to distribution that be of judge what be the next degree and  next who be in those degree the reason of a mandamus be that this court in  respect of its superintendency over all other inferior jurisdiction be to see  that they execute that jurisdiction that they be entrust with and therefore a  mandamus to grant distribution to the next of kin general perhaps may lie but  never to do this or that particular thing for that will direct oust they of  the conusance and right of judge whether the party be entitle to the thing or  not for if they shall judge not and make that return to a mandamus then the  party may bring his action of false return against they and the subject matter  of their judgement below will be determine incidental here above and if it  shall be judge contrary to the judgement here above a peremptory mandamus will  go and so farewell their power of judge modern report and since the statute of  distribution administrator and next of kin be like executor and legatee or  rather they be executor and legatee in law if therefore they shall judge who  be make legatee in a will and direct how a legacy a Collingwood v pace side  vent lev keb Vaughan Jones keb carter side vent Eq Abr lev modern report er p  shall be pay without any particular mandamus of this court why may they not a  acquire judge who shall come in under the description of next akin and if the  mandamus shall go and they return that the grandmother be near of kin than the  aunt will a attachment go against they for not obey the writ contrary to their  judgement ground upon their law which alone they be to be guide by as know no  other and it never be hear of that a judge entrust with any judicial power be  command to eat up his word and proceed against his judgement there be  multitude of precedent of appeal in such case but not one of either mandamus  or prohibition and that be evidence that hitherto appeal have be think the  sole remedy and by the civil law the ascend and descend line be always hold  near than collateral and this absurdity that will follow to make judge  pronounce against their own judgement be the reason that upon a writ of error  the superior court do reverse judgement of inferior court and give new  judgement if the nature of the thing require it indeed if they will proceed  below to award distribution to one not entitle there may be some colour for a  prohibition but where a judge below be to give judgement and it be not yet  know which way he will judge to command he beforehand to do his duty be very  odd and dr lane a civilian say that if the father and mother of the intestate  be live they will be in equal degree and by the civil law upon death of father  the grandfather become father in his stead and the computation of degree  accord to the canon law be never receive in England in respect to succession  but only in respect to degree of marriage and be agree that accord to the  canon law the aunt and niece be in the second degree as well as the  grandmother and niece and the reason be say be because the clergy who make the  canon consider the gain of dispense with marriage within the four degree take  care to make people as near akin as they can and so contract the degree but  that accord to the civil law the aunt and niece be in the three degree and the  grandmother and niece but in the second degree and before the novel of Justin  Nov modern report the mother be to be prefer before brother or sister and so  shall the grandmother if the mother be dead because she then be in loco parent  but the severity of that law be correct by those novel and the brother and  sister let in in concurrence with the mother and if the grandmother be in the  second degree sure the grandmother daughter must be a degree far and he say  here in England the ancient civil law be plant by the Roman and the novel of  Justinian not be find in the west till the thirteenth century they never  obtain in England and the statute say pro his whoever it be jure and what law  be that certain it be the law by which we judge in point of succession and  that be the old civil law and by the civil law brother be in the second degree  for there be a ascent to the parent of one side and a descent from he to the  brother so here there will be a ascent from the niece to her mother and that  be one degree and from the mother to the grandmother a second degree and from  the grandmother to the aunt three degree before the statute of James c if  there be father and mother have many child and the old of the child have die  intestate the father or mother shall have have administration and run away  with all the estate and leave the brother and sister nothing but now by that  statute the brother and sister be let into a distribution with the mother but  not with the father for he shall even at this day run away with all holt chief  justice by our law administration be to be commit to father or mother of the  intestate before his brother or sister and that be the reason of Ratcliff case  and it be because the child proceed immediate from the parent and be otherwise  of no kin to brother and sister than as they proceed from the parent and if  then the mother be near of kin than the sister by Henry c she ought to have  the preference of administration and by the same reason that the mother be  near than the sister the grandmother be near to the mother than her own sister  the grandmother must be near to the niece than the aunt and the word next of  kin in the statute of James c shall be construe in like manner as in that of  Henry c before Edward c the ordinary be universal administrator of all the  intestates of his diocese and then they do distribute to the friend of the  intestate as they think convenient and some to holy church and modern report  er p though since that statute they have frequent claim such a right yet they  be constant prohibit modern report and he say that sure the brother and sister  of the decease must come in before the grandmother and the aunt before the  greatgrandmother and if administration be grant to the aunt and they go about  to repeal it below in order to grant it to the greatgrandmother it be fit to  prohibit they for by the statute they be bind to confine themselves to degree  and there be no precedent of distribution grant beyond child of brother or  sister and neither civil nor canon law as such be of any authority in England  but what give they force be their be receive and acquiesce under here and  sometime in the ecclesiastical court they practice against the civil law as in  suit against parishioner to repair the church for of common right and by the  civil law the parson ought to do it and now this term he deliver the opinion  of the court thus we all hold it clear law that this point must be determine  by the law of the realm and not by any civil or canon law whatsoever so we  shall go upon the ancient law and custom of England and in order to that we  must consider what the ancient law and custom of England be before and at the  time of the Conquest and it appear that by the law then use in England all the  descendant of a person die intestate have preference not only in personal but  also ill real estate for if a man have die have three son and a daughter they  all equal inherit his real estate and this appear in Seld eadm lamb Saxon law  siquis having made no will to go away unconstrained he hreditatem as dividunt  but after the Conquest the kingdom and constitution be to be new model and  this alteration be make in the time of Henry the first and then the daughter  be exclude if there be male and it be by the thirtysixth law of Henry the  first vide lamb and then the male do inherit all alike especial all the common  socage man but even then if one have die without issue and have a father or  mother the land shall not go to any collateral but to his father or mother and  this appear by the law of Henry the first lamb where above siquis without book  to go away to stand open or mater in hreditatem to go below well frater or  sister si to stand open et mater stop so the collateral be not to come ill but  upon failure of father or mother and where Inst a this be take notice of as  all explode opinion but coke have not see the law of Henry the first then and  the red book in the Chequer that modern report he contradict be very ancient  and of great authority in law but this law do not continue long but be alter  between the reign of Henry the first and Henry the second and the father and  mother altogether exclude and then the law come to be adjudge as it be to this  day that land shall not ascend to father or mother but rather go to collateral  and this appear by Glanville lib c but this alteration be only make as to real  estate and personal estate be leave as they be and father and mother as to  that have preference to brother or sister of the intestates and all other  relation whatever except the descendant of he and it be plain that this remain  so still for that nothing appear in the book of any alteration make in this  point so the law be so then and not be alter since but only as to inheritance  it must consequent remain so stilt and therefore the father and mother of the  intestate be to be prefer before brother and sister and by same parity of  reason the grandfather and grandmother be to be prefer before uncle and aunt  now as to the Authenticks of Justinian Nov c that the brother and sister shall  come in for distribution with the father of the intestate it be true such a  law be make in the latter end of justinian reign and introduce and establish  pursuant to the practice in the Praetorian court and the law there be that if  one shall die intestate his estate shall go to his parent exclude all other  except brother and sister ex to both places parent but if there be no such  brother or sister then that it shall go altogether to the father or mother and  by that law only brother and sister come in for a distribution but by the  express word of it all other be exclude and the grandfather and all those  above shall come in before any in the collateral line but I believe it will be  hard to maintain that doctrine now because the statute of distribution give it  to next akin and the greatgrandfather be not so near as uncle but sure the  grandfather and grandmother be near because the uncle and nephew or aunt and  nephew or niece be not otherwise akin but as they derive their relation from  grandfather and grandmother and modern report er p per quod unumquodque be  tale mock be to greater extent tale and therefore they be not now ill equal  degree and there be something of great difference between they than the one be  lineal and the other collateral modern report it may be say that this be  against the rule give to the Israelite in the that chapter of Numb for where  it be direct that if a man die have no son his daughter be his heir if there  shall be no daughter his brother if no brother his father brother so one will  think the father be leave out on purpose but in fact it be quite otherwise for  notwithstanding any omission there if one have die have no issue but have a  brother and a father the father shall inherit to his son and so be Selden de  successionibus at hebraeos c and it be true there be no mention in that law of  the father but by the constant practice the father come in before his brother  but the mother by that law never come in and this case be not within the  reason of justinian novel beforementioned and admit it be nothing of the civil  law be admit or Obligatory here in England quatenus it be the civil law but if  it be of any force here it be because it be ancient receive here in England  and this law can not be receive here ancient the book of Justinian be make  between five or six hundred year after Christ and be receive for law during  forty year after their make and practice in all the eastern empire his pandect  be ill Latin as the Roman law be but the Authenticks be in Greek and after  Justinian the second and Maurice the emperor they be reject for two hundred  year till basilick the emperor who lie they altogether aside and make a new  book of his own call the basilick from his own name which be in force till the  take of Constantinople by mahomet the great so that till the year they be  neglect in the eastern empire in the year they be find by Lothaire the second  at the siege of Amalcarr and till then be not hear of in the western empire  nor be it possible they can for it be for all that time overrun with the Goth  and vandals and present after they be find at Amalcarr they be send to the  university of Boulogne to be teach vide Seld and his note upon fortescue and  dr duck use of the civil law lib c so that Henry the first beginning his reign  in England in the year and these law be find in the year can not be of force  in England in his time but this seem ground upon the Jewish law though the say  twentyseventh of number may seem somewhat to the contrary but in the case  there put the father and grandfather be dead so that since there have be such  a old practice to let in the father and grandmother preferable modern report  to uncle or aunt and that this be ground upon ancient authority which be more  apparent by book print of late year as sir Roger Twisdens law of Henry the  first and the ten writer it be fit there shall be no diversity in this case et  such at the first nod mortal remains cur it be rule that no mandamus shall go