erty of the judgment debtor a sum of money contingently awarded against him, must contain, in addition to the other matters prescribed by law, the following directions: 1. Where the judgment is rendered in favor of the defendant in a case specified in section ten hundred and seventy-eight of this code, the execution must require the sheriff to deliver possession of the chattel to the defendant, unless the plaintiff, before the delivery, pays to him the sum of money awarded to the defendant, with interest and the sheriff's fees; and in case the chattel cannot be found within his county, then to satisfy that sum out of the property of the plaintiff. 2. In any other case, where the judgment awards a sum of money, if possession of the chattel is not delivered to the prevailing party, the execution must require the sheriff, if the chattel cannot be found within his county, to satisfy the sum so awarded, with interest and his fees, out of the property of the party against whom the judgment is rendered. A direction to satisfy a sum of money out of property, as prescribed in this section, must be in the form required by law for a like direction where an execution against property is issued upon a judgment for a sum of money. [Code, § 1731, without change.] § 1083. Sheriff's power to take chattel.-For the purpose of taking possession of a chattel by virtue of such an execution, the powers of the sheriff are the same as where he is required to replevy a chattel. [Code, § 1732, without change.] § 1084. Action on undertaking.-A plaintiff, who has recovered a final judgment, cannot maintain an action against the sureties in an undertaking given in behalf of the defendant to procure a return of the chattel, or against the bail of a defendant who has been arrested, until after the return wholly or partly unsatisfied or unexecuted, of an execution in his favor for the delivery of the possession of the chattel, or to satisfy a sum of money out of the property of the defendant, or for both purposes, as the case requires. A defendant who has recovered a final judgment, cannot maintain an action against the sureties in the plaintiff's undertaking given to procure a replevin, until after a like return of a similar execution against the plaintiff. [Code, § 1733, without change.] § 1085. Sheriff's return evidence therein.-In such an action against the sureties, the sheriff's return to the execution is presumptive evidence of a failure to deliver, or to return a chattel, or to pay a sum of money, according to the terms of the undertaking. [Code, § 1734, without change.] § 1086. Injury, no defence.-It is not a defence to such an action. that the chattel was injured or destroyed, after it was replevied, unless the injury or destruction was effected by the act, or with the consent of the plaintiff in the action, or occurred after the chattel was taken by virtue of the execution. [Code, § 1735, without change.] § 1087. Abatement and revival of action.-In an action to recover a chattel, the cause of action survives or continues, notwithstanding the death of either party, in favor of or against his executor or administrator. Where the court makes an order directing the abatement of such an action, as prescribed in section twenty-one hundred and forty-six of this code, an action may be maintained on an undertaking given for the purpose of procuring a delivery or return of a chattel, as if final judgment awarding to the adverse party possession thereof had been rendered in the first action, and an execution thereupon had been returned unexecuted and unsatisfied, except that damages cannot be recovered therein for a wrongful taking, withholding, or detention. An action to recover the chattel cannot be maintained after an action has been commenced upon an undertaking as prescribed in this section. [Code, § 1736, without change.] ARTICLE XXIV. EJECTMENT. Section 1100. Definition. 1101. Plaintiff may recover damages with the land. 1104. Action cannot be maintained for dower. 1105. Separate action by joint tenant or tenant in com mon. 1106. Grantee of lands held adversely may maintain action. 1107. Who must be defendants. 1108. Who may be joined as defendants. 1109. When action may be brought for non-payment of rent. 1110. Action, when right of re-entry is reserved. 1111. Action against tenant. 1112. Amount of rent in arrear to be stated in judgment. 1113. When possession to be restored to defendant. 1114. Person making payment may have order for possession. 1115. Use of property when set-off against rent. 1116. Property; how described in complaint. 1117. Motion for plaintiff's attorney to produce his author ity. 1118. Order thereon. 1119. Evidence of authority. 1120. When ouster to be proved. 1121. Rule when there are distinct occupants. Section 1122. The last section qualified. 1123. Recovery against one defendant, subject to rights of others. 1124. Verdict, to state nature of plaintiff's estate. 1125. Expiration of plaintiff's title before trial. 1127. Division of action on division of interests. 1128. When action divided on devolution of interest. 1129. Effect of judgment rendered after trial of issue of fact. 1130. New trial. 1131. Effect of judgment by default. 1132. Exception in case of disability. 1133. The last three sections qualified. 1134. When possession not affected by vacating judgment. 1135. Evidence on new trial. 1136. Damages recoverable set-off by defendant. Section 1100. Definition.-Ejectment is an action brought to recover real property or the possession thereof, either with or with out damages for withholding the property. [New.] § 1101. Plaintiff may recover damages with the land.-In an action to recover real property or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for withholding the property. [Code, § 1496, without change.] PROPOSED ALTERNATIVE SECTION. § 1101. Plaintiff may recover damages with the land. In eject. ment the plaintiff may demand in his complaint and in a proper case recover damages for withholding the property. § 1102. Rents and profits to be included in damages.-Those damages include the rents and profits or the value of the use and occupation of the property, where either can legally be recovered by the plaintiff. [Code, § 1497, without change.] § 1103. Mortgagee cannot maintain action.-A mortgagee or his assignee or other representative cannot maintain such an action to recover the mortgaged premises. [Code, § 1498, PROPOSED ALTERNATIVE SECTION. § 1103. Mortgagee cannot maintain action.-A mortgagee or his assignee or other representative cannot maintain ejectment to recover the mortgaged premises. § 1104. Action cannot be maintained for dower.-Such an action cannot be maintained in a case where an action for dower may be maintained as prescribed in article twenty-six of this code. [Code, § 1499. The amendment made by ch. 517 of L. 1898, is omitted as temporary. Rights acquired under it are saved by § 2400.] § 1105. Separate action by joint tenant or tenant in common.Where two or more persons are entitled to the possession of real property, as joint tenants or tenants in common, one or more of them may maintain such an action to recover his or their undivided shares in the property, in any case where such an action might be maintained by all. [Code, § 1500, without change.] PROPOSED ALTERNATIVE SECTION. § 1105. Separate action by joint tenant or tenant in common.Where two or more persons are entitled to the possession of real property, as joint tenants or tenants in common, one or more of |