case jenkins and his wife against plombe if a wife be make executrix and  husband and wife bring a action as executor for money bad and receive to their  use in right of the wife as executrix yet they shall pay cost on be nonsuit  for the receipt be since the death of the testator the cause of action arise  in their own time and it be not necessary in this case to name the wife  executrix S c post S c salk S c salk S c holt S c Mod Indebitatus by husband  and wife executrix declare quod cum the defendant be indebt to they as  executor of I S for so much money receive by he to their use as executor and  that he promise to pay it c the defendant plead non assumpsit and at trial the  plaintiff be nonsuit the question be whether they shall pay cost upon the  statute of Henry c darnel sergeant they shall pay cost for this action be  bring by they in their own right and upon a modern contract with themselves  videlicet the receipt of the money to their use and in which they ought not at  least they need not to name themselves executor and the name the plaintiff  executor when it be not of necessity shall not exempt he from pay costsSee  latch Hutton a and for a foundation to this distinction he rely on the  yearbook of Henry the seven Henry pl b where the difference be take between a  action bring upon the executor own possession and where upon the possession of  his testator and upon this he will reconcile the case of bull v palmer lev c  mason v Jackson lev d and gale v till lev SC Mod e if all executor bring  trover for a trover and conversion in the time of his testator or upon a  trover in the time of his testator and a conversion in his own timeSee the  case of cockerel and his wife executrix of moody v Knyaston in easter term Geo  in trover for good the first count state the trover and conversion to have be  in the lifetime of the testator the second count state the trover in the  lifetime of the testator and the conversion afterward and the three count be  for a trover and conversion after the death of the testator and at the trial  the plaintiff be nonsuit the only evidence at the trial be applicable to the  first count and the court hold that the plaintiff in this case be not liable  to cost term Rep g he shall not pay modern er p cost so upon a accuse  computasset with the executor for debt due to the testator the executor shall  not pay cost holt chief justice if the receipt be since the testator death and  by appointment or consent of the executor there the action must have be bring  by he not as a executor for the receipt by his appointment be a receipt by  himself then if the receipt be without the executor previous appointment yet  the bring of this action be a assent to the receipt and make it a receipt in  his own right so that in either case the debt ought to be look upon as a new  debt contract since the death of the testator and this receipt must be intend  to have be in the executor own time because the receipt be lie to have be to  the executor use and he conclude that there be no room for the executor here  to declare as executor if there be a receipt by the appointment of a executor  it be immediate asset in the executor hand and by bring this action it be so  in the same manner if a executor or a administrator bring trover upon their  own possession they shall pay cost yet there if the administrator call himself  administrator and it be so enter on the record and he have judgement and  afterward the administration be repeal the defendant will be relieve by  hearing complaint Bac Abr b because it will appear on the face of the  declaration that he have be sue under that now repeal administration and the  name himself executor here be not of necessity any far than to show how the  original right come if a executor account with the testator debtor indeed  thereby a new action accrue but still it be in the right of the testator and  no new contract be make but only a ascertain of what be due before if  judgement and execution be in the testator life and a escape in the executor  time upon a nonsuit in ail action by the executor for this escape he shall not  pay cost but if he have judgement and execution in his own time and a escape  have happen for which he have bring a action and be nonsuit he shall have pay  cost Powell justice where the thing sue for be asset in the executor or  administrator before recovery there they shall pay cost upon the nonsuit or  when the entire cause of action arise in his own time and it be agree to have  be adjudge that in a action for rend accrueing in modern a executor own time  if the executor be nonsuit he shall pay cost so also that in a action on a  covenant with the testator and a breach in the time of the executor he shall  pay cost on be nonsuit Qure per I if there be any difference upon this account  between covenant for rend upon a covenant make with testator and debt for rend  upon a lease with he and it be agree by the whole court that the statute do  not by the word thereof distinguish the case of a executor from any other case  but that it be by a equitable construction resolve so by the judge for this  reason because the nature or cause of action do not lie in their privity or  knowledge and holt chief justice say that it have be hold that if the  plaintiff declaration be so bad that the plaintiff in case he obtain a verdict  can not have judgement there if he be nonsuit he shall pay no cost and  therefore this action be by husband and wife upon the possession of the  husband only so as if there have be a verdict he can not have have judgement  he can have no cost but be say the contrary have be resolvedHob cro a the case  be move again today the case of elwis v Mocato salk Mod b in this court in  easter term in the second year of queen whether be quote for the plaintiff  which be several count by a plaintiff executor one whereof be a accuse  computasset and on be nonsuit the court hold that he be not liable to cost  which case be now again agree because there be no new cause of action but a  new action upon a ascertain of a ancient cause which ascertain leaves it still  a debt of the testatorsSee marsh v Jennedy and and Goldthwayte v Petrie term  Rep where this case be deny to be law c modern er p it be agree now by the  court that the case in the yearbook of Henry the seven Henry pl d be a good  foundation for this case for there it be agree that a feme executrix can give  the good of her testator away without the consent of her husband and if he  consent to it then it be be that give they so the wife here can appoint one to  receive this money but if the husband consent then it be his appointment and  if a executor appoint another to receive a debt of his testator and he receive  it it be now the same thing as if he have actual receive it himself and will  be asset in his hand and by consequence appoint another to receive who will  not repay be a devastavit holt chief justice strong incline that the bring of  this action be such a subsequent agreement as will make it asset in his hand  from that time by the rule of all men approval retro to draw et order seu  freedom equiparatur   light     Plowden and wingate maxim e but be agree that  no more will be asset in his hand than he recover and not as much as be  receive or declare for and even for that he will not be liable until after  judgement but immediate after judgement and before execution he be liable  whereas where one sue as executor though he have judgement yet until execution  the thing recover be not asset in his hand and as if the husband have actual  appoint the defendant to receive be alone ought to bring the action in his own  name so here the ratihabition amount to a appointment he ought to bring it  alone as if a man enter into my land and take the profit thereof I may if I  please modern charge he in account as my bailiff though there never be any  privity between we until the action bring and where it be object that if the  bring of the action shall amount to a appointment then by bring the action the  whole will be asset in his hand before any recovery he answer that will not  follow for they be nonsuit the matter be set at large again and he have  liberty to sue the original debtor but if he have have judgement and no  execution or ever like to have any yet his bring the action and have judgement  will discharge the first debtor and by consequence be a devastavit in he for  by the judgement be make the defendant his debtor who never owe any thing to  the testator and he quote the case of Norden v levit easter term car in the  king bench Freem S c Eq Abr S c Jones S c keb SC lev a which be this a  executor bring trover for a conversion in the life of his testator and the  party be arrest and insolvent he take a covenant from he for the payment of so  much money in satisfaction and it be hold that forasmuch as this extinguish  the original cause of action it be a immediate devastavit which judgement be  affirm by the house of lord a strong the extinguish of the original debt by  judgement against the present defendant will in this case be a devastavit and  upon judgement give not the administrator de good non but the administrator of  the executor shall sue execution if a executor lose the testator good out of  his possession and declare that he be possess of so much good as the executor  to I S and upon the evidence it appear that they be his own proper good he  shall be nonsuit and pay cost Hutton b if one as administrator bring trover  upon his own possession and be nonsuit he be condemned in cost but after  administration be revoke be shall by hearing complaint be relieve against the  cost and this be the case of turner v Davis Mod S c sand S c keb c in the  sixteenth year of Charles the second and it be lie down for a rule that where  a executor bring a action in which he need not name himself executor there if  he be nonsuit be shall pay cost cro James d but Powell and gold justice seem  contra for this be a action to make asset and not for the recovery of what be  so already and immediate after the receipt there be no asset accrue to the  executor but holt chief justice say that in the case peacock v steer report in  croak cro car e modern er p to be three against one as it be in Hutton hut f  be two to two however he be of opinion that there ought to be no cost for the  ware never come to the actual possession of the executor and can not therefore  be asset in he as if a testator good be take and convert after the death of  the testator before they come to the actual possession of the executor they be  not asset and therefore if he be nonsuit in trover for they it be hard to make  he pay cost et Adjournatur the court after take time to consider be unanimous  of opinion that in this case the defendant ought to have cost S c post and see  cockerel v Knyaston term Rep and Goldthwayte and his wife v Petrie term Rep a