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The most inaterial change which will be observed, is in section 186 and 187, which provide a means for the defendant's retaining the property, on giving an undertaking equal to that which the plaintiff has given. This seems but just. The defendant being in possession, is presumed to be rightfully so, until the contrary is proved ; and if he is willing to give as good security as the plaintiff, he should be allowed to relain the property, during the litigation.
$ 181. The plaintiff, in an action to recover the possession of personal property, may, at the time of commencing the action, claim the immediate delivery of such property, as provided in this chapter.
§ 182. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing,
1. That the plaintiff is the owner of the property claimed, (particularly describing it,) or is lawfully entitled to the possession thereof, by virtue of a special property therein; the facts in respect to which shall be set forth:
2. That the property is wrongfully detained by the defendant :
3. The alleged cause of the detention thereof, according to his best knowledge, information and belief :
4. That the same has not been taken for a tax, assessment or fine, pursuant to a statute ; or seized under an execution or attachment against the property of the plaintiff; or if so seized, that it is, by statute, exempt from such seizure ; and
5. The actual value of the property.
$ 183. The plaintiff may, thereupon, by an endorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant, and deliver it to the plaintiff.
§ 184. Upon the receipt of the affidavit and notice, with a written undertaking, executed by one or more sufficient sureties, approved by the sheriff, to the effect that they are bound, in double the value of the property as stated in the affidavit, for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the
payment to him of such sum as may, for any cause, be recovered against the plaintiff, the sheriff shall forth with take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall, also, without delay, serve on the defendant, a copy of the affidavit, notice and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose possession the property is taken; or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion; with a notice in writing, that the sureties will justify before a judge of the court, or a county judge, at a time and place therein named; the time to be not less than four nor more than eight days thereafter.
§ 185. If the sureties do not justify, according to the notice, the sheriff shall forthwith deliver the property to the defendant. If they justify, he shall deliver it to the plaintiff, unless the defendant shall entitle himself thereto, as provided by the next two sections.
§ 186. At any time before the delivery of the
property to the plaintiff, the defendant may require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound, in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum, as may, for any cause, be recovered against the defendant.
§ 187. The defendant's sureties, upon a notice to the plaintiff, of not less than four, nor more than eight days, shall justify before a judge, in the same manner as the sureties given by the plaintiff; and upon such justification, the sheriff shall deliver the property to the defendant.
§ 188. The qualifications of sureties, and their justification, shall be as are prescribed by sections 169 and 170, in respect to bail upon an order of arrest.
§ 189. If the property or any part thereof be concealed in a building or enclosure, the sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the building or enclosure to be broken open, and take the property into his possession; and if necessary, he may call to his aid the power of his county.
§ 190. When the sheriff shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping, the same.
SECTION 191. Writ of injunction abolished, and order substituted.
192. Injunction, in what cases granted.
According to the present practice in cases of injunction, an order for it is first made, and then the writ issues. Both are not necessary. The command of the court may be communicated to the defendant by the order, as well as by the writ. We therefore abolished the writ, and retained the order.
We have defined the cases in which the injunction may be granted, and prescribed the practice respecting it,
§ 191. The writ of injunction is abolished; and an injunction, by order, is substituted therefor. The order may be made by a judge of the court in which the action is brought, or by a county judge, in the cases provided in the next section.
§ 192. Where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act of the defendant, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff; or where, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, some act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted, to restrain such act.
§ 193. The injunction may be granted at the time of commencing the action, or at any time afterwards, before judgment, upon its appearing satisfactorily to the judge by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction.
§ 194. An injunction shall not be allowed, after the defendant shall have answered, unless upon notice, or upon an order to show cause; but in such case, the defendant may be restrained, until the decision of the judge, granting or refusing the injunction.
§ 195. Where no provision is made by statute, as to security upon an injunction, the judge shall require a written undertaking, on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined, such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise, as the court shall direct.
Ş 196. If the judge deem it proper that the defendant or any of several defendants, should be heard before granting the injunction, he may, by an order, require cause to be shown, at a specified time and place, why the injunction should not be granted; and he may in the mean time, restrain the defendant.