Charge to the Jury. day of Your charge is to inquire what goods and chattels (except oxen and beasts of the plough) C. D. was possessed of on the A.D. 18-a or at any time afterwards in my bailiwick and the value thereof; your charge also is to inquire what lands tenements rectories tithes rents and hereditaments including lands and hereditaments of copyhold or customary tenure C. D. or any one in trust for him was seised or possessed of on the day of A.D. or at any time afterwards or over which the said C. D. on that day or at any time afterwards had any disposing power which he might without the assent of any other person exercise for his own benefit and also to inquire and say what is the yearly value thereof that the same may at a reasonable price and extent be delivered to A. B. to hold the said goods and chattels as his own proper goods and chattels and to hold the said lands tenements rectories tithes rents and hereditaments respectively according to the nature and tenure thereof to him and his assigns until the said sum of £ther with interest as aforesaid shall have been levied. Juryman's Oath and Affirmation.c day of toge You shall well and truly try what goods and chattels (except his oxen and beasts of the plough) C. D. was possessed of on the A.D. 18-a or at any time afterwards in my bailiwick and the value thereof. You shall also well and truly try what lands tenements rectories tithes rents and hereditaments including lands and hereditaments of copyhold or customary tenure C. D. or any one in trust for him was seised or possessed of on the day of A.D. 18-b or at any time afterwards or over which the said C. D. on that day or at any time afterwards had any disposing power which he might without the assent of any other person exercise for his own benefit and the yearly value thereof and a true verdict give according to the evidence. So help you God. Now let us see what is extendible. The Stat. of Westm. the What ex2nd uses the word catalla, not bona et catalla. However, as tendible. already observed,d the distinction is one well nigh without a difference. It should also be observed that the Stat. of 1 & 2 Vict. c. 110, s. 12, which gives the Sheriff power to seize bank notes, bills of exchange and the like, applies only to a fieri facias. Independently, therefore, of the consideration that a fi. fa. is executed by sale, and an elegit by appraisement and delivery only, a fi. fa. should, for many reasons, be first resorted to.e But let us suppose an elegit sued out in the first instance; what is extendible under it, and what not? a The day when the writ was delivered to him or his deputy for execution. b The day of the entry of judgment, or date of order, decree, &c. For Quaker's affirmation and witness's oath or affirmation, see ante, p. 69, 70. d Ante, p. 173. e There are authorities which seem to show, that if the Sheriff delivers to the plaintiff a term at a value in gross, the property is altered by the delivery, and The answer is, all the goods and chattels of the debtor, not being bona ecclesiastica (except oxen and beasts of the plough): if these be sufficient the lands are not to be extended." The legal import of these words, bona et catalla, has been already defined. The whole of his real property (except the benefice, including the glebe, of a parson or vicar), whether in fee, in tail, in severalty, joint tenancy, tenancy in common, coparcenary, for life, for years, copyhold, customary, or in reversion; whether tenements, rectories, tithes, rents or hereditaments, legally vested in him or of which any other person in trust for him shall have been seised or possessed of at the time of entering up the judgment or at any time afterwards, or over which such person shall at the time of entering up such judgment or at any time afterwards have any disposing power which he might without the assent of any other person exercise for his own benefit. So may the wife's lands, which the husband has during coverture. Land, says Blackstone,f "comprehends all things of a permanent substantial nature; being a word of a very extensive signification. Tenement is a word of still greater extent, and though, in its vulgar acceptation, it is only applied to houses and other buildings, yet in its original, proper, and legal sense, it signifies everything that may be holden, provided it be of a permanent nature; whether it be of a substantial, and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, frank tenement or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like: and, as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements. But hereditament, says Sir Edward Coke, is the largest and most comprehensive expression: for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. Thus an heir-loom, or implement of furniture, which by custom descends to the heir, together with an house, is neither land nor tenement, but a mere moveable: yet being inheritable, is comprised under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also a hereditament. Hereditaments, then, to use the largest expression, are of two kinds, corporeal, and incorporeal. Corporeal consist of such as affect the senses; such as may be seen, and handled, by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. Corporeal hereditaments consist wholly of substantial and permanent a 2 Inst. 395; Vin. Ab. Exec. (M). b See p. 173. c See a most valuable note in Tidd's Pr. Forms, 8th edit. 385 n. d 1 & 2 Vict. c. 110, s. 11; Burton's Real Prop. s. 874. e Dalt. 136. f 2 Bl. Com. 16. See also Sheph. Touch., edit. Preston, p. 91; Burton's Real Prop. s. 1, &c. objects; all which may be comprehended under the general denomination of land only. For land, says Sir Edward Coke, comprehendeth in its legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includes also all castles, houses, and other buildings: for they consist of two things; land, which is the foundation, and structure thereupon; so that if I convey the land or ground, the structure or building passes with it. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law and I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, for so many cubical yards; or, by superficial measure, for twenty acres of water; or, by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable and therefore in this I may have a certain substantial property, of which the law will take notice, and not of the other. Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad cœlum, is the maxim of the law upwards; therefore, no man may erect any building, or the like, to overhang another's land: and downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word 'land' includes not only the face of earth, but everything under it or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing: but the capital distinction is this, that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, everything terrestrial will pass." The judgment binds the lands, &c., at and from the time of entering up the judgment; therefore, if the defendant alien them, they may, after such alienation, be extended in the hands of the alienee. If there be several alienations, the judgment equally binds them all, and all must be equally contributory; the execution ought not to be laid on one only. If the b a Ante, p. 157. b If he omit any, the elegit may be avoided on an audita querelâ or on motion; 2 Inst. 395; Harbert's ca. 3 Co. 11. What not defendant alien a part only of the lands, the plaintiff may extend what remains in his hands, without going to the lands of the alienee. If there be judgment against two, the lands of one may be extended, and that will be a satisfactory execution. If a person, charged in execution, die, his lands, tenements and hereditaments may be extended, after his death, just as if he had never been charged in execution, except lands, tenements, and hereditaments, bona fide sold, after judgment, for the benefit of a creditor, and paid by him, or secured to be paid, to any of his creditors, with their privity and consent.b Let us now inquire into what cannot be extended. The best geneextendible. ral rule, in respect of goods and chattels, seems to be, that whatever may or may not, at common law, be levied upon under a fieri facias, may or may not be delivered under an elegit. Money, bank notes, cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money, are made subject to a fieri facias by the 1 & 2 Vict. c. 110, s. 12, but the stat. does not apply to an elegit; and, therefore, such things cannot be extended under it. Nor is a mere chose in action extendible; nor it seems a bare rent, as a rent seck;d nor anything which cannot be granted and assigned, as the office of filacer, the half pay of an officer, or the like.e So a trust, created by a defendant in favour of himself, and another person, was held to be a trust not within 29 Car. 2, c. 3, s. 10; that clause being confined to cases where the trustees are seised or possessed in trust for a defendant alone, and not jointly with another person. Bona ecclesiastica are not extendible under this writ ; nor an advowson in gross ; nor the glebe belonging to the parsonage or vicarage, nor to the churchyard. Nor a term, in right of the wife as administratrix, for the debt of the husband. Again, if a man be disseised, against whom judgment is recovered, the lands in the hands of the disseisor shall not be liable; for though the disseisee has the right of possession, yet they are not his until recovered. So, if a feoffment be upon condition, and the feoffee acknowledge a statute, and the condition be broken, the feoffee shall enter into the lands freed of the charge of the statute, because he comes in by a prior title, and the feoffee hath no right to the lands, not having performed the condition upon which the lands were given him.m Legal pos f The Sheriff delivers legal possession, leaving the plaintiff to resession only cover actual possession. It is said that the plaintiff may assert his right of entry without ejectment, provided he can do so without such acts of violence as will subject him to a criminal prose given. a Gilb. 41, 52; 1 Roll. Abr. 896 (F). Sharp v. Key, 8 M. & W. 379. e Dyer, 7. f Doe d. Hull v. Greenhill, 4 B. & A. 684 see also Harris v. Booker, 4 Bing. 99. See Tidd's Prac. Forms, 8th edit. 385 n. h Gilb. 39; Vin. Ab. Exec. (M). i Gilb. 40; 3 B. & P. 327. Ridler v. Punter, Cro. Eliz. 292. 1 Vin. Ab. Exec. (M); Gilb. 42. m Gilb. 42. cution. The rule, perhaps, may be more correctly stated thus:When the debtor himself is in possession, the Sheriff may give actual possession, or the plaintiff may enter, if he can do so peaceably; but where there exists an elder title, as where the land is under a previous demise, then he would be a trespasser, if he attempted to disturb it by actual entry. The elegit and inquisition must be returned and filed when Writ must land is extended, otherwise the tenant by elegit has no title.b Return of Nihil. The within-named C. D. had not nor hath any goods or chattels in my bailiwick nor had nor hath he or any person in trust for him any land tenement rectory tithe rent or hereditament in my bailiwick nor any disposing power over any such land [&c.] in my bailiwick which I can cause to be delivered to the said A. B. by a reasonable price and extent as within I am commanded. The answer of Delivery of Goods and no Lands. High Sheriff. By virtue of this writ to me directed I have caused to be delivered to the within named A. B. all the goods and chattels of the within-named C. D. in my bailiwick (except his oxen and beasts of the plough) at the price of £- to hold the said goods and chattels as his proper goods and chattels in part satisfaction of the sum and interest within mentioned: And I do further certify and return that the said C. D. had not nor hath he nor had nor hath he or any person in trust for him any land tenement rectory tithe rent or hereditament in my bailiwick nor any disposing power over any such land [&c.] in my bailiwick which I can cause to be delivered to the said A. B. for the residue of the said sum and interest or any part thereof as within I am commanded. The answer &c. be returned. Where Lands are delivered. By virtue of this writ to me directed I have caused to be delivered to the withinnamed A. B. at a reasonable extent all the lands which the said C. D. hath in my bailiwick. And I do further certify and return that the said C. D. had not nor hath any goods or chattels within my bailiwick nor any tenements &c. [as_before] which I can cause to be delivered to the said A. B. as within I am commanded. The answer &c. The execution of this writ appears in the inquisition hereunto annexed. The answer &c. Inquisition. W. to wit. An inquisition indented taken at in the county of W. the day of A.D. 18-before me Sheriff of the county aforesaid by virtue of the writ of our lady the Queen to this inquisition annexed by the oath of J. B. [&c.] twelve honest and lawful men of the county aforesaid who being duly impannelled drawn by ballot and sworn say upon their oaths that the said C. D. on the a Jayson v. Rash, 1 Salk. 209; Taylor v. Cole, 3 T. R. 295; Rogers v. Pitcher, 6 Taunt. 202: see also Newton v. Harland, 1 Sc. N. C. 474; 2 Wms. Saund. 69 f; ante, p. 183. b 2 Wms. Saund. 69 e; and the de fendant may compel the plaintiff to enter The inquisition need not be remitted |