case faucet against charter a promise make by a testator to redeliver a bind  or to do any collateral act survive against his executor ante SC Jones roll  Rep Poph palm queen if judgement can be reverse in the exchequer unless six of  the judge agree error in the exchequerchamber of a judgement in the king bench  in assumpsit against executor on a promise of their testator videlicet that he  shall redeliver such a bind deliver for such a thing and because the testator  do not deliver the say bind the action be bring against the executor croak  throw after verdict and judgement for the plaintiff error be now assign that  this be a mere collateral promise make by the testator and break by he there  lie not any action against the executor Tanfield chief baron be of that  opinion he say he know it have be oftentimes so adjudge and the difference be  between a promise to do a collateral act and where it be a promise to pay a  sum of money which be a duty certain by the testator for the not do whereof a  action lie against the executor but a collateral promise be not any duty nor  performable by the executor and therefore a action lie not against the  executor for the nonperformance thereof but Lord Hobart and all the other  justice of the common bench and baron of the exchequer hold that there be not  any difference betwixt the case but in either of they the action be  maintainable against the executor upon a promise of their testator and so it  have be oftentimes adjudge in this king time but they say true it be that such  a opinion be conceive in the time of queen Elizabeth and diverse judgement  reverse for this cause but now of late the opinion of both court be reconcile  and resolve that the action lie against the executor as well in the one case  as in the other wherefore the judgement be affirm against the opinion of  Tanfield and here on the first day when the debate be Jones be absent and it  be much argue whether this judgement shall be affirm or reverse because the  opinion of five of they be against it and Tanfield and winch for it who say  that by the precise word of the statute Elizabeth c there ought to be six  agree to affirm or reverse a judgement but this question they resolve not for  Jones come and agree with the five whereupon the judgement be affirm croak  James er p