JUSTICE'S Sale of personal or the performance of a contract or agreement, may be sold, in the hands of the pledgee, by virtue of an execution against property. The purchaser at the sale acquires all the right and interest of the judgment debtor, and is entitled to the possession of the property, on complying with the terms and conditions, upon which the judgment debtor could obtain possession thereof. This section does not apply to property, of which the judgment debtor is unconditionally entitled to the possession.(") [Id., § 20, amended by the addition of the concluding sentence; and also so as to extend somewhat its scope. The original provides only for the sale of the interest of "the person making such pledge", by virtue of an "execution against him". This section is so drawn, that the judgment debtor's interest may be sold, whether he or some other person was the pledgor, as where he has purchased the pledgor's interest; and so as otherwise to settle the construction of the provision, in accordance with its apparent intent, and a due regard for the rights of third persons. It was held, in Bakewell v. Ellsworth, 6 Hill, 484, that the sheriff must take the goods out of the pledgee's possession, and retain them until the sale; and that, after the sale, he must restore them to the pledgee, to whom the purchaser must look. In Stief v. Hart, 1 N. Y. (1 Comst.), 20, the court of appeals affirmed, upon an equal division, a judgment of the supreme court, to the same effect. The opinions delivered, in that case, by GARDINER, GRAY, and WRight, JJ., in favor of a reversal, appear to be quite conclusive, as to the intent of the statute, and the inconveniences and injustice resulting from the decision of the court below. It would also seem that Truslow v. Putnam, 1 Keyes, 568, is in accordance with these views, although the reasons, given in the prevailing opinion, are open to criticism. It has also been held, by the superior court of New-York, that the goods may be taken, by virtue of an execution against the pledgee. Saul v. Kruger, 9 How. Pr., 569. There is, therefore, an inconsistency, if not a conflict, in the adjudications, which furnishes an additional reason for the amendments made by this section.] § 1428.* Personal property must be offered for sale, in such lots property; and parcels, as are calculated to bring the highest price. Except where the officer is expressly authorized, by this article, to sell prop how made. erty not in his possession, personal property shall not be offered for sale, unless it is present, and within the view of those attending the sale.(*) [2 R. S., 367, Part 3, ch. 6, tit. 5, § 23 (3 R. S., 5th ed., 648; 2 Edm., 381), amended by adding the exception at the beginning of the second sentence. The lack of some equivalent expression formed one of the principal reasons, assigned for the ruling in Bakewell v. Ellsworth, 6 Hill, 484, mentioned in the note to § 1412, ante.]. 266 PART II. CHAPTER XIV. SPECIAL PROVISIONS REGULATING ACTIONS RE- TITLE I.-ACTIONS RELATING TO REAL PROPERTY. TITLE II.-ACTIONS RELATING TO CHATTELS. TITLE I. Actions relating to real property. ARTICLE EIGHTH. persons or holding over deemed ers. Ac against them. § 1664. A person in possession of real property, as guardian or Certain trustee for an infant, or having an estate determinable upon one more lives, who holds over and continues in possession, after the trespassdetermination of his trust or particular estate, without the express tion consent of the person then immediately entitled, is a trespasser. An action may be maintained against him, or his executor or administrator, by the person so entitled, or his executor or administrator, to recover the full value of the profits, received during the wrongful occupation. [1 R. S., 749, Part 2, ch. 1, tit. 5, § 7 (3 R. S., 5th ed., 39; 1 Edm., 700), condensed, but without substantial change. It was held in Livingston v. Tanner, 14 N. Y., 64, that this section changed the character of the person holding over from that of a tenant at sufferance to that of a trespasser, and that, therefore, no notice was necessary before bringing an action of ejectment.] sioner, maintain § 1665. A person, seized of an estate in remainder or rever- Reversion, may maintain an action founded upon an injury done to the etc., may inheritance, notwithstanding any intervening estate for life or for action. years. [Id,, 88, omitting the words, " of waste or trespass ", after "action", and substituting "founded upon " in place of "for"] JUSTICE'S Joint tenant, etc., may maintain action against his co-tenant. Action for cutting trees, etc. Id.; when treble damages may be recovered. § 1666. A joint tenant or a tenant in common of real property, or his executor or administrator, may maintain an action to recover his just proportion against his co-tenant, who has received more than his own just proportion, or against his executor or administrator. [Substituted for id., § 9, which reads as follows: "One joint tenant or tenant in common, and his executors or administrators, may maintain an action of account, or for money had and received, against his co-tenant for receiving more than his just proportion; and the like action may be maintained by them against the executors or administrators of such co-tenant." The abolition of distinctive forms of action rendered the reconstruction of this section unavoidable. In so doing, it was necessary to avoid disturbing the ruling in Woolever v. Knapp, 18 Barb., 265, and Wilcox v. Wilcox, 48 id., 327, to the effect that, in the absence of any agreement, or any demand to be allowed to enjoy the premises, one tenant in common could not recover against another for use and occupation. A provision that each should account to the other for more than his share of the "proceeds" of the land, would at least raise the question whether the ruling was not abrogated by the statute. It is impossible, however, to confine the right of action to the plaintiff's share of rents and profits received, for the co-tenant may have received money from various other sources; e. g., damages for a trespass, or compensation for land taken for public use. Brinckerhoff v. Wemple, 1 Wend., 470. This section, therefore, purposely refrains from defining the subject of the "just proportion "; leaving the courts to expound it in accordance with settled rules of law.] § 1667. If any person cuts down or carries off any wood, underwood, tree, or timber, or girdles or otherwise despoils a tree on the land of another, without the owner's leave; or on the common, or other land, of a city, village, or town, without having right or privilege in those lands, or license from the proper officer; an action may be maintained against him, by the owner, or the city, vil. lage, or town, as the case may be. [2 R. S., 338, Part 3, ch. 5, tit. 6, § 1 (3 R. S., 5th ed., 624; 2 Edm., 349), omitting the provision regulating the amount of damages, which is in the next section. The word, "owner," might raise a doubt, in some cases, who is the person entitled to bring the action; but as it has been used, in the same connection, since 1813 (1 R. L., 526), and the chief questions to which it gives rise have been settled in Van Deusen v. Young, 29 N. Y., 9, it has been retained.] § 1668. In an action brought as prescribed in the last section, the plaintiff may state in his complaint the amount of his damages, and demand judgment for treble the sum so stated. There upon, if the inquisition, or, where issues of fact are tried, the verdict, report, or decision, awards him any damages, he is entitled to judgment for treble the sum so awarded, except that in either of the following cases, judgment must be rendered for single damages only: 1. Where the verdict, report or decision finds affirmatively that the injury, for which the action was brought, was casual and involuntary; or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. 2. Where the defendant has pleaded, and the verdict, report or decision finds affirmatively, that the injury, for which the action was brought, was committed by taking timber, for the purpose of making or repairing a public road, or a public bridge; or by taking any wood, underwood, or tree, for a like purpose, by authority of a commissioner or overseer of highways. [Id., §§ 2 and 3, and the part omitted from § 1 in framing § 1667 ante; remodelled for the purpose of conforming it to the modern procedure, and by expressly requiring the defendant to establish, and the verdict, etc., to state the facts which entitle the plaintiff to a judgment for single damages only. It is believed that this amendment is in accordance with the true construction of the statute. Newcomb v. Butterfield, 8 Johns., 264; King v. Havens, 25 Wend., 420, Van Deusen v. Young, 9 Barb., 29, see p. 18. In this species of action single damages may be awarded, although the plaintiff relies upon the statute. Dubois v. Beaver, 25 N. Y., 123.] PART II. damages forcible entry or § 1669. If a person is disseized, ejected, or put out of real Treble property, in a forcible manner; or, after he has been put out, is for held and kept out, by force, or by putting him in fear of personal detainer. violence, he is entitled to recover treble damages, in an action therefor against the wrong-doer. [Id., § 4, amended by substituting the words, "by putting him in fear of personal violence", in place of "with strong hand". See Willard v. Warren, 17 Wend. 257. See Bliss v. Johnson, 73 N. Y., 529, cited fully in the note to § 2233.](*) 269 (a) Section 2233 is on page 826. JUSTICE'S TITLE II. Actions relating to chattels. ARTICLE 1. Action to recover a chattel. ARTICLE FIRST. ACTION TO RECOVER A CHATTEL. PRELIMINARY NOTE. Doubtless, the profession will welcome the restoration to the statute book of the familiar words, "replevy" and "replevin", after their banishment therefrom for more than a third of a century. Their awkward substitutes, "claim the immediate delivery", have never been able to supplant them; indeed, the use of the latter expression has been in practice restricted almost exclusively to the text of the former Code. But accuracy requires the application of the terms to be confined to the proceedings, whereby the officer takes possession of the property. It is no longer correct to speak of an action of replevin, since the action formerly described by that name is commenced by an ordinary summons, and may be maintained, without issuing any mandate to take the property in specie. But it is quite possible to abbreviate somewhat the expression, "an action to recover the possession of personal property"; and this has accordingly been done, in accordance with the language used in the Revised Statutes. 2 R. S., Part 3, ch. 8, tit. 12, §§ 1, 3, 37. The effect of the sections relating to this action, contained in the Code of Procedure, was to graft upon the copious provisions of the Revised Statutes, a few scanty but revolutionary regulations. In this instance, as in most others where a similar experiment was tried, the new enactments gave rise to various difficult questions affecting the right as well as the remedy. The chief question which arose respecting the right, was, whether the action could be maintained in any case, where the defendant had parted with the possession of the property. After much conflict of opinion, this question was settled in accordance with the former rule; and the general doctrine was established, that the provisions of the Code of Procedure effected no change in those provisions of the R. S., which prescribed the cases where the action may be maintained. Ross v. Cassidy, 27 How. Pr., 416; Ellis v. Lersner, 48 Barb., 539; Latimer v. Wheeler, 1 Keyes, 468; Dunham v. Troy, etc., Co., 3 id., 543; Nichols v. Michael, 23 N. Y., 264. These and other authorities also held, that the mode of proceeding was regulated by the R. S., in all the particulars with respect to which, they were not expressly or impliedly repealed by the Code of Procedure. See, also, |