The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCLXXII. Paramour and Tho. Robinson's Case. Trin. 30 Eliz. In the Exchequer.

THe Case was, George Robinson Lessee for years of the Mannor of Drayton-Basset, the Reversion to the King, devised his Term to his Wife, as long as she should keep her self a Widow, the remainder over, if she married; and died, and made his Wife and William his Son his Executors, the said William being with∣in age; And therefore Administration was committed to the Wife alone, and she only proved the Will: And afterwards the Wife granted all her Interest to the said William, and died.

Cook, Nothing passeth by the Grant, for William had the Term before; for every Executor hath an entire Interest.

Popham, Contrary; for at the time of that Grant, the Son was within age, and had not administred, nor proved the Will; there∣fore in effect the Wife was sole Executrix.

Egerton, Sollicitor, If during the sole Executorship of the Wife, one committeth a Trespass upon the Land, the Wife alone shall have the Action of Trespass without naming her Co-executor: Which Cook denyed. And he cited the Case, 16 H. 7. 4. If two Executors be, and one of them only is possessed of the Goods of the Testator, and a stranger takes them out of his possession, to whom the other Executor doth release; and afterwards the Executor out of whose possession the Goods were taken, brings an Action of Tres∣pass against the Trespassor, who pleads the Release of the other Executor; It was holden a good Plea; for the possession of the one, was the possession of the other. The Case was further, That Tho. Robinson the Defendant in pleading had shewed, That George Robinson was possessed, and devised the same to his Wife, who grant∣ed the same to William, who devised the same to the Defendant. On the other side, it was shewed, That Tho. Robinson the Defendant granted the said Term to Paramour the Plaintiff; upon which they were at Issue. And the Question now was, If Tho. against his own pleading might give in Evidence, That Thomas did not grant; For if the gift by the Wife to William was void, and he had the Term as Executor, Then he could not Devise it. And it was shewed also, That Thomas granted it by Indenture to Paramour: And now, If against that Indenture, he might give in Evidence such special matter, was the doubt. And, If the party shall be concluded if the Iury shall be concluded ad dicendum veritatem?

And by Popham and Egerton, As well the Iurors as the parties are concluded by the confession of the parties in the Record. For here, Thomas confesseth, That William devised to him; virtute cujus,* 1.1 he was possessed.

To that the Queens Attorny said, That it is true, that Thomas Robinson was possessed; but it is further said, That Thomas grant∣ed it to Paramour, and so the Interest of Thomas is confessed on both sides, and therefore the Iury shall not be received to say the contrary.

But the Opinion of Manwood, Chief Baron, was, That if the parties do admit a thing per nient dedire, the Iury is not bound by it; but where, upon the pleading a special matter is confessed, there the Iury shall be bound by it. And afterwards, the Issue was found against Robinson the Defendant.

Notes

• * 1.1

  2 Co. 4.