case io THIRKETTLE against reeve and edward tie and mary his wife easter term  Elizabeth the certainty of a declaration shall not he impeach by a collateral  allegation in the plea Bac Abr ld raym in a action against two as executor it  be not error though one of they be not executor Cowp debt upon two obligation  each of they of against reeve executor of rob Thirke ttle and Edward tie and  mary his wife executor of the say rob Thirkettle and declare upon two several  obligation make Julyj and Elizabeth the defendant reeve plead two ne unques  executor ne unques administer come executor and upon this they be at issue the  other defendant Edward tie and mary his wife demand oyer of the obligation and  of the condition the condition of one be that whereas Agnes the mother of the  testator have devise to the plaintiff forty pound upon condition to be perform  by the plaintiff if the say Rohert pay it to he after the performance of the  condition and within one year after the death of Agnes that then c the  condition of the other obligation be if he pay ten pound after the performance  of the condition and within two year after the death of Agnes that then c the  defendant plead that the say Agnes July elizi make her will and devise the say  forty pound to the plaintiff upon condition in the say will that he shall  release to the say r Thirkettleall action c except the say forty pound devise  to he and they allege in facto that the say r Thirkettle require he to make  the say release and that he refuse to make it c and allege the death of the  say Agnes Aug Elizabeth croak Elizabeth notam the declaration in this action  be mich Elizabeth so within two year after the death of Agnes the plaintiff  say he be not require to make the release and upon this they be at issue and  also be at issue if reeve be executor it be find that reeve be not executor  and that the plaintiff be not require to make a release it be afterward allege  in arrest of judgement that the plaintiff have bring his action upon two  obligation whereas one be not due for it be bring within two year after the  death of Agnes and damage be give for both entire and he have no cause to  recover upon one he can recover no part but the court hold that this be but  the allegation of the defendant and it appear not if Agnes then die or not and  the defendant have not rest upon it but plead another plea videlicet a request  to make a release which be a collateral matter and issue take upon it and so  have relinquish the other matter and judgement be give for the plaintiff notam  that afterward the defendant upon this bring a writ of error in the  exchequerchamber and this be assign for error and another error be assign that  the plaintiff have sue one as executor joint with the true executor who be not  executor and so have fail in his suit but all the justice hold neither of they  to he error for to the name one executor who be not this be not in abatement  of the bill or writ but only that he shall he bar against he and it will he a  great mischief when diverse be make executor and one refuse if the name of he  shall abate the writ and to the other matter they hold it no error for it be  only a matter allege by the defendant and it appear not whether it he true or  false and it be waive by the issue and thereupon they all resolve the  judgement to he affirm croak Elizabeth er p