case Howard against pit and other if judgement be give against five and pen a  writ of error one die and the year expire a capias may be take against  survivor without to know facias or remittitur SC salk SC holt SC Carth  trespass and in Michaelmas verdict and judgement against sir John Laurence sir  William Pritchard sir b Newland sir Edward Abney George Pitt Esq and James  Smitheby for fifteen hundred and fifteen pound damage and cost the defendant  bring a writ of error and the record be certify into the exchequer Chamber  Smitheby die and the survive defendant fear the writ of error be abate by his  death bring another writ in the name of the five survivor and the writ allow  and bail put in and no nonprocess nor affirmation of the judgement nor any  remittitur of the record upon the writ on which it be certify but sir John  Laurence be dead the plaintiff bring a action and arrest Mr Pitt on a bill of  Middlesex with a ac etian bill for fifteen hundred and fifteen pound debt and  after five hour imprisonment charge he with a execution sue out only against  four of the defendant but never remove the judgement by to know facias  hereupon it be move for Mr Pitt to discharge this execution as irregular and  erroneous for these three reason first that there ought to have be a to know  facias in regard the judgement be three year old and not affirm on the writ of  error second that no execution ought to have issue until the second be remit  back out of the exchequer Chamber three that the judgement be against six  person and some die execution ought not to have go against the rest without a  to know facias shower KB as to the first it be true the bring of a writ of  error prevent the need of a to know facias but that be only on a affirmance of  the judgement because there be a new judgement and so they may sue out  execution within the year after that without to know facias but not where it  be only abate or discontinue but per curian the case of Bellasis v Hanford cro  James be error discontinue and no affirmance and yet the party pray in  execution after the year without to know facias as it be in roll Rep a  distinction be make where actual in custodian mareschalli and where not but  croak take no notice of any such distinction Yelv cro Elizabeth second there  ought to be a remittitur the Act of parliament that erect the court say the  record shall be send thither and afterward remit that so process and execution  may be do thereupon and the constant practice be to remit it and to join a  record of all the proceed there to the plearoll of this court and there be  reason for it the record be certify this court ought to be apprise of somewhat  before they award execution their hand be once close what be there that  warrant a liberty to sue execution but they say for the plaintiff that there  must be a remittitur upon a affirmance and so when the plaintiff in the error  be nonsuit or the writ of error discontinue but not when abate by death we  answer that the abatement ought as well to appear by remittitur as any other  proceed the resolution in palmer Rep be general that the writ of error close  the hand of this court so that they can award execution until it be discuss  and when c vide Henry pl and the case of wildman v north Trin car rot mention  in Keble that property in another may be plead in bar or abatement for that he  can plead non to take in hand for he take the cattle though not svan but in  all other case he must avow and make title for to have a return No bind but  pledge in replevin Brownl though the course be to take bind No inquiry of  damage can be without avowry keb and not on car c in inferior court keb vide  Inst where a second deliverance lie note to the former edition shower KB er p  it be determine there they remit the transcript hither it be to know facias  quare execution non be to be bring there and then the plaintiff to be nonsuit  and then a remittitur which shall be a authority to award execution here this  court can take notice of a abatement or other end of that writ but upon a  remittitur there be always a remittitur upon a reversal for otherwise this  court can not give a new judgement here as they ought to do the case of latch  Jones of crouch v Hayn be of error in parliament abate by dissolution of  parliament by demise of the king which this court must take notice of  otherwise here beside the statute require a remittitur general Bellasiss case  cro James be for we in this particular for there it be say by man execution  without to know facias upon remand so that by he a remittitur be necessary  there three here be one deal here be a alteration of the party the nature of  the execution be change for they ought to pursue their judgement every  execution ought to follow the record and the writ must agree with it otherwise  it be illegal and so be shower KB all the book vicar v okey keb side and keb  in Inst no execution if the party be alter without to know facias whether on  the plaintiff or defendant part n b Isteds case cro Elizabeth if two recover  and one die a to know facias be necessary the same reason e content the case  of Noy be deny for law in cart though there Bridgeman incline against we the  print precedent be with we thesaurus narrow places Brownl Judicial writ to  know facias sue in this case here the judgement be joint the execution ought  to be so they may have bring a to know facias and then we shall have have  liberty to answer suppose the party surmise dead in their capias be not dead  what then Thompson and squibb e contra there needs no remittitur nor to know  facias execution may have issue against they all without take notice of any  man death and then the mention of the death of one sure can be no harm to the  rest if one of the defendant die after judgement no abatement of any judicial  process no need of to know facias but where the party be alter and so that  they be not here one plaintiff die the survivor may take out execution more  Noy in elegit it must be against all here each be liable in case of verdict  against four and one die I may there allege one dead and pray judgement  against the rest and it be well and there need no to know facias beside it be  a discretionary thing in the court to supersede a execution in this case they  may bring their writ of error in act of assignment performance holt chief  justice why shall there not be a remittitur in case of a abatement as well as  in case of a nonsuit or discontinuance which be equal within the word of the  statute for neither of they be express there there you may have have judgement  on a to know facias quare execution non but to have prosecution immediate  without any notice to we of what be become of the writ of error I do not  understand I think you can have a execution after the year without a to know  facias or a remittitur a here be a year expire pray how do they happen to stop  upon the death of one of the plaintiff if they take notice of it they ought to  remit it for that cause and of that mind be all the court but for the  execution against one the other die after judgement if a to know facias be  needful the practice have be different suppose two plaintiff and one die there  must be a to know facias but here you know your remedy you must bring a writ  of error tam in reddition judgment how in adjudication performance and a  supersedeas be a discretionary act the court will shower KB not relieve we  upon motion nor declare any opinion upon the last quere and Mr Pitt pay the  money c vide Leon not law roll Abr Henry a salk will ld ray dougl shower KB er  p