case mordant against Thorold Hilary term William and mary roll a executor of  tenant in dower can bring a to know facias on a recognizance to pay mean  profit on affirmance of judgement SC Mod SC lev SC salk SC Carth SC holt to  know facias by the executor of a tenant in dower on a recognizance accord to  car c to pay the mean profit if judgement be affirm demurrer Pemberton the  exception be that this be a personalty and go with the person I say it be  become a duty and the recognizance make it such and ascertain it be such  though there be a to know facias requisite to adjust the quantum this be like  a covenant to pay all the profit that shall be incur during the suit the to  know facias be but ancillary and help to assist the execution of the  recognizance the case of ayleway v Robert will not come up to this for that be  in point of tort and not of duty levins e contra in all action of tort it  matter not whether plaintiff or defendant die all be go will the put in a  recognizance alter the nature of damage by the commonlaw that be to make they  recoverable where they be not as here be a see Geo c S a SC W Jones b the  court be unanimous of opinion that a innkeeper be not a trader within the  statute of bankrupt and therefore give judgement for the plaintiff post shower  KB er p none there be a death in the case beside this be not a to know facias  upon the statute but at commonlaw for to have the damage ascertain and the  statute give the recognizance only for what damage be recoverable before but  by Pemberton the statute go further it give damage from the time of the  judgement till the affirmance holt chief justice there can be no suit on this  recognizance till there be a judgement for these damage and consequent the  recognizance do not any way alter it the to know facias to ascertain the  damage must be as at commonlaw and the commonlaw rule be action personal  noritur cum mask why shall not a executor have a action of waste but only the  reason of the common shower KB law that it die with the party a we can award  nothing after the party death because it do arise ex fault and no interest  vest till they be assess judgement for the defendant nil to take in hand per  breve