case wither against harris see SC ante Mod e r if judgement be recover in  ejectment and execution stay upon term until a year afterward a to know facias  must revive the judgement before the to have facias possession can be issue SC  ante SC salk SC salk SC salk SC holt SC ld ray SC Danv Abr judgement be give  in ejectment upon term that there shall not be execution until such a time  which be a year and a half after the sole question be whether this judgement  can be execute without a to know facias Montague it can for in all case both  of real and personal action if the plaintiff take not execution within the  year and day the plaintiff be put to have his to know facias a year and a day  be the time limit by law for many purpose for prosecute his right as to bring  a appeal to make claim on a fine by commonlaw and at commonlaw in a real  action after judgement if the party do not sue execution within a year he be  put to a to know facias in a personal action he be put to a new action upon  the judgement until the statute of Westminster the second give a to know  facias and the reason be because in that time several thing may happen which  will be a good bar of execution if the defendant bad opportunity to plead they  which opportunity be now allow by the to know facias but nothing be pleadable  to a writ of execution   light a b a the reason why a to know facias lie at  commonlaw be for that in a real action one can have no other advantage of his  judgement but in a personal action where a action will lie on the judgement no  to know facias lie in that case and be say that no reasonable diversity can be  make between the case of to have facias seisinam and this process in this  respect for if a defendant in ejectment have any matter pleadable in bar of  execution in one case why shall it not be so in the other and he say there be  but one case that be can find that afford the least ground for such  distinction and that be the case of Oakley v vicar side keb b it be a  judgement in ejectment in the common plea and record bring hither by error  within the year modern and day say the book but the court take it to be after  the year the plaintiff in error die and the plaintiff in ejectment take out  execution without a to know facias and a supersedeas be pray and the court say  that though after the year there ought to be a to know facias to have  execution of the damage yet there needs nolle to have possession of the land  and the book take notice that it be say at the bar that the like judgement  have be before give in another cause but this be a cause where the defendant  himself have bring a writ of error and after within a year he die so that it  be not the fault of the plaintiff that execution be not sue soon and upon writ  of error bring if the plaintiff in error discontinue his writ or it abate or  judgement be affirm though in the mean time above a year pass yet the  plaintiff in ejectment shall not there be put to a to know facias but where  the plaintiff himself delay for a year be shall be put to a to know faciasCro  Elizabeth   a in Gernons case in debt upon a escape in which the plaintiff  declare on a judgement have by he against a in the month of June before and  that be bad proceed against he until be bad outlaw he the defendant bring a  writ of error and the judgement be affirm in the king bench and within the  year the defendant a be take by a capias utlagatum and the sheriff suffer he  to escape and judge that the action do lie and that he be in execution at the  suit of the plaintiff immediate upon his be take upon the copy utlagatum  without any prayer because there be no laches in he but if there have be  laches in the plaintiff there he have not be in execution without a particular  prayer make by he to have he so in execution as in case of judgement in debt  where there be a fine likewise for the king if the defendant be take upon a  capias pro five after the year he shall not be in execution for the plaintiff  without a prayer for that purpose because he have pass his time of a year and  a day without modern er p take out execution but if he have be so take within  the year he will be in execution at his suit present and the reason of these  case govern the case before quote out of siderfin for the writ of error be by  the defendant which suspend the execution until after the year and day the  plaintiff shall not thereby be put to his to know facias there be no laches in  he and he quote cro Elizabeth Ro ab cro James Henry modern peer William contra  first he agree that if the plaintiff will recover his damage he ought to bring  a to know facias before execution of the damage after the year for the day he  say be not material for the damage be mere personal and therefore no execution  can be of they in this case without a to know facias as well as in judgement  in debt second he hold that the plaintiff may go by way of to know facias if  he please but contend that it be not necessary to do so he say the question in  the case in siderfin before quote be whether a to know facias do lie but it be  allow to be well with out it see coal case keb b and he say a to have facias  possession lie at commonlaw after the year without a to know facias for in all  case where a man S writ be determine by a judgement though he have pass a year  and a day before execution yet he have some benefit of his judgement and  therefore if it be in debt he have his action upon the judgement be matter of  high nature than his first cause of action if the action be real he have a to  know facias but in this case of ejectment if after the year he can not have  ail to have facias possession he be without remedy for it be a personal action  a to know facias do not lie before the statute and he can not have a new  action upon his judgement so he have no manner of advantage of his judgement  if he have pass the year and day which be very absurd and the reason of a to  know facias in a real action at the commonlaw be for that the party may have a  release or other matter to plead and it be think hard in such case to suffer  execution to be without a opportunity of plead because thereby the freehold be  not only divest but the party put to n action of a high nature which sometime  the nature of his case do not allow of but that reason hold not in ejectment  for the worst that can be be to bring a new ejectment which be determine  within the halfyear at most he say it be a common course of mortgage for the  more speedy get possession to give judgement in ejectment yet if after the  year he shall be put to his to know facias upon such judgement it can be of no  great use to he and he say that after judgement one may enter and execute his  own judgement and that the assistance of the sheriff be only to keep the peace  side Ro Rep Noy palm modern holt chief justice as to the take of judgement in  ejectment by a mortgagee it be a thing not to be much encourage and I never  know anybody use it but one and what difference can there be between this and  a real action for quoad the term and possession it be real at commonlaw if ono  have a term of twenty year to come and be turn out his remedy be ejectment as  assize or writ of right be for a seize of the feesimple or freehold so  ejectment be his remedy when oust of his term and a recovery in ejectment bind  the term and right of it for if there be a recovery by a against b it bind  hire and he can not falsify it but the recovery make he a good title and so in  ejectment a recovery make a good title and neither the party against who it be  road nor his heir can falsify it now if the recovery be in a real action you  can sue execution until after the year without a to know facias and why not so  in a ejectment for if you have a judgement and you let it lie still a year and  a day and it be not hinder by a writ of error for in such case if the  plaintiff be nonsuit or the writ abate or judgement be affirm he may have  execution without a to know facias you shall not execute it after the year  without a to know facias and as to the statute of Westminster the second he  say he be not satisfy with coke inference from it that no to know facias do  lie upon a judgement in a personal action for that do not seem to have be so  for the statute begin with its enumeration where it give a to know facias  first of record before such as have power to take such record as recognizance  and then fine executory sive shrinking sive assembly sive obligation sive the  condition of a slave or custom modern er p recognita sive alian whoever  irrotulata c vide I   and many other book by coke own rule where one begin a  graduate enumeration of particular and conclude with these general word et  alian the general word shall comprehend nothing but what be of a inferior  nature to the first degree or particular of his enumeration and here to bring  in a judgement have in the court above under the et alian will be contrary to  that rule but without doubt it lie at commonlaw in real action and why shall  the law differ in the case of ejectment from any other case I can find no  reason for it the party have delay himself by not sue execution in time and  the right of a term be as much bind by a judgement in ejectment as the right  of land be in a judgement in a real action modern concern the freehold or  inheritance and none can falsify such recovery or recovery in a real action  but the issue in tail by the statute de gift and that only indirect as by say  that it be by default if the truth be so but be can direct falsify it in the  point try as that there be a faint title and no evidence but a stranger to a  recovery in a real action may falsify and so he may in ejectment and I see no  inconvenience to put they to a to know facias and I do believe it be not usual  for either the party take execution present within the year or be be delay by  writ of error if the Iatter be may have execution after the year or he have  sue execution within the year and continue it by a sheriff non to cause to go  breve if there be two plaintiff in a personal action and one of they die that  shall not put the other to a to know facias or if one of the defendant die  therefore likewise a to know facias be not necessary because the same party  still remain on record and this have be late adjudge upon solemn debate here  see more Carth ld ray salk Mod show and Tidds practice a I doubt whether if  there be a real action and judgement thereupon and the tenant die within the  year whether there can be execution there without a to know facias though it  be within the year and I do not know any authority in point of it in personal  action he shall not because execution be have against the party defendant and  you say in the writ become facias de good et catallis of the defendant which  can be after his death or capias his body which can also be after his death a  elegit be de terris property good et catallis of the defendant but in real  action you say nothing but to have facias seisinam therefore it seem to I that  execution may be there have within the year though tenant die without a to  know facias and therefore you see shelly case where the tenant die in the  morning the common recovery be bad but that case do not come up to my purpose  because there the writ of execution may be test of that day if in personal  action execution be sue out the death of the defendant shall not bar the  execution of it but if it be not out there must be a to know facias but if  demandant die within the year and day there must be a to know facias because  they be other party who sue the execution and whether in ejectment after death  of defendant within a year you can sue execution without a to know facias be  the question but it seem you may because in the writ of to have facias  possession you do not say against who the execution be to be bad but it be  only to modern have the possession but after a year and day there ought to be  a to know facias not only against the defendant but also against the  terretenants Powell justice agree that there ought to be a to know facias and  that there be no difference between this and other case but as to coke opinion  upon the statute of Westminster the second that before the statute it do not  lie in personal action he say the law have be so take ever since and be say  the judgement in ejectment be not of the possession but of the term and it be  the high writ a lessee for year can have and in a writ of annuity there must  be a to know facias after the year at commonlaw but he agree that if a writ of  error be bring and supersede or the plaintiff be nonsuit or it abate and  judgement be affirm there after the year a plaintiff shall not be put to a to  know facias to have execution and he say that in the common plea they never  take possession upon a judgement in ejectment without a to know facias after  the year and be say where one take judgement in ejectment for security of his  mortgage he may secure his execution after the year by take modern er p  execution out within the year and enter sheriff non to cause to go breve and  this be say be my lady Allibons case of this opinion be the other two judge  holt chief justice declare that he submit to coke opinion though he see no  reason for it and he say that a writ of error do not supersede the possession  or binder the party of his entry if it be lawful before it do indeed lie upon  the hand of the court that they can award execution but the party may enter if  he will and that have be late resolve in the case of badger v Lloyd holt and  see tailor v coal term Rep b the execution be set aside as irregular and  restitution grant see S c post c