entitled to the immediate, possession of the property. 3. That the property is wrongfully detained by the defendant. 4. That it was not taken in execution or any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement, assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process issued against the plaintiff.
Same.Sect. 173. The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein.
Return day of order.Sect. 174. The return day of the order of delivery, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it issued.
Order, how executed.Sect. 175. The sheriff shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detention of the property, or leave such copy at his usual place of residence.
Property delivered, when.Sect. 176. The sheriff or other officer shall not deliver to the plaintiff, his agent or attorney, the property so taken, until there has been executed by one or more sufficient sureties of the plaintiff, a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him. The undertaking shall be returned with the order.
Value, how ascertained.Sect. 177. For the purpose of fixing the amount of the undertaking, the value of the property taken shall be ascertained by the oath of two or more responsible persons, whom the sheriff or other officer shall swear truly to assess the value thereof.
If undertaking not given.Sect. 178. If the undertaking, required by section one hundred and seventy-six, be not given within twenty-four hours from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant. And if the sheriff or other officer deliver any property so taken to the plaintiff, his agent or attorney, or