case NUTTON against crow if a assumpsit on several count be bring by a  executor one a promise make to the testator and as to this count the plaintiff  enter a remittitur financial loss and obtain judgement on the other the  defendant can show in arrest of judgement that it appear in the declaration  that the probate be grant before the promise be make this be a indebitatus  assumpsit upon three promise bring by the plaintiff as executor to b as to the  two first promise the declaration stand thus that crow on the twentysecond of  January in vita testator be indebt c and upon the defendant crave oyer of the  letter testamentary a probate be recite as make four month before the time of  the promise modern report the three promise be a promise to the executor  himself upon the state of the account between the executor and defendant touch  only the deal between the testator and he the plaintiff enter a remittitur  financial loss upon the two first promise give and obtain judgement upon the  three in the court of common plea upon error bring two thing be chief insist  upon first that it appear of the plaintiff own show that this will be prove in  the lifetime of the testator and so be a void probate and it be say that this  be a objection that go to all the three promise and therefore be not help by  the remittitur for a void probate be no probate at all and though a executor  may release before a probate yet he can bring a action     light b Plowd Com  roll Abr say non allocatur for it be as natural to say that the time allege  for make the promise be mistake and then the probate may be good as to say v  ice line the promise be well set forth and the probate void especial when the  party have by enter a remittitur yield the promise to be nought second that  here be promise make to the testator and a promise make to the executor all  join in one action which ought not to be it be own that there be a difference  take between action bring by and action bring against a executor or  administrator b lev b that a executor may join in one action a debt owe he in  ibis own right and a debt owe he as executor but a executor can not be sue in  one and the same action for a debt due from he as executor and a debt due from  he on his own account and the reason assign for this difference be that in the  first case the judgement remain modern report still the same notwithstanding  the join the two debt whereas in the other the judgement must be different  videlicet in the one case de good testator and in the other de good not common  with others but then it be say by way of answer to this case that the reason  give to support the difference have no weight for though indeed in the first  case the judgement must be the same yet the effect of that judgement be very  different for the one debt be recover to his own use modern report er p the  other debt when recover will be asset and then the case of Beamond v long a  cro car a and of Roger v cook b show b contradict this case a case in Hobart  be own a strong case against they but they endeavour to oppose it by other  authority as Hutton lev and it be strong insist upon that the nature of the  action be change at least a new remedy give by the take of this account it be  argue for the defendant in error that action upon the case come in the place  of action of debt upon simple contract and be introduce mere to avoid the  defendant wage his law and therefore both sort of action be to be govern by  the same reason and the same rule that the nature of the action be not change  by the account appear from the nature of the thing for the debt after the  account as well as before be due to he jure reprsentationis c see the yearbook  Henry and Henry pl c it be say that the law have a great regard to the  original of a debt cro Elizabeth Savile cro Lutw be all of they authority  wherein it be resolve that from a consideration have to the first rise and  original of the debt the action must be bring in the to hold off lane and  Hobart be strong rely upon the court be of opinion that the promise may very  well be join in one action that the take of the modern report account do not  at all vary the nature of the debt that the plaintiff lie under a necessity to  introduce the cause of action of name himself executor that the plead be here  the same judgement the same and the effect of the judgement the same as it  will have be in separate action there can be no reason give for divide they  but multiply action which the law abhor and against great Charta no one to say  no no one to carry apart c Hobart be hold to be a strong authority for the  defendant in error but it be agree by the court that a executor can not be sue  for debt due from the testator and himself in one and the same action because  the judgement be different Adjournatur d a count for money have and receive by  the defendant to the use of the executor as such may be join to a count for  money have and receive to the use of the testator but a count for a debt due  to the executor in his own right can Petrie executor of Keble v hannay term  Rep nor can a count on a promise make by the defendant as administrator to pay  money receive by he as such to the plaintiff use be join with other count on  promise make by the intestate Jennings v Newman administrator term Rep d