Duties of mak agreement and receipt must be returned and filed with the clerk. SEC. 674. The recorder in whose name a security is ing investments. taken, or by whom an investment is made, and his successors in office, must receive the interest and principal as it becomes due, and apply and invest the same as the court may direct, and must deposit with the county treasurer all securities taken, and keep an account in a book provided and kept for that purpose, in the recorder's office, free for inspection by all persons, of investments and moneys received by him thereon, and the disposition thereof. When unequal partition is ordered. SEC. 675. When it appears that partition cannot be made equally between the parties according to their respective rights, without prejudice to the rights and interest of some of them, and a partition be ordered, the court may adjudge compensation to be made by one party to another, on account of the inequality; but such compensation shall not be required to be made to others by owners unknown, may be adjudged nor by a minor, unless it appears that such minor has personal property sufficient for that purpose, and that his interest will be promoted thereby. And in all cases the court has power to make compensatory adjustment between the respective parties, according to the ordinary principles of equity. Compensation in certain cases. infant may be SEC. 676. When the share of a minor is sold, the The share of an proceeds of the sale may be paid by the referee making the paid to his guar- sale to his general guardian, or the special guardian appointed for him in the action, upon giving the security required by law or directed by order of the court. dian. The guardian of may receive the party's interest. SEC. 677. The guardian who may be entitled to the an insane person custody and management of the estate of an insane person, proceeds of such or other person adjudged incapable of conducting his own affairs, whose interest in real property has been sold, may receive, in behalf of such person, his share of the proceeds of such real property, from the referees, on executing with sufficient sureties an undertaking approved by the judge of the court, that he will faithfully discharge the trust reposed in him, and will render a true and just account to the person entitled, or to his legal representative. A guardian may consent to partítion without cute releases. SEC. 678. The general guardian of a minor, and the guardian entitled to the custody and management of the action, and exe- estate of an insane person, or other person adjudged incapable of conducting his own affairs, who is interested in real estate held in joint tenancy, or in common, or in any other manner so as to authorize his being made a party to an action for the partition thereof, may consent to a par tition without action, and agree upon the share to be set off to such minor, or other person entitled, and may execute a release in his behalf to the owners of the shares of the parts to which they may be respectively entitled, upon an order of the court. parceners. SEC. 679. The costs of partition, including reason- Costs of partition able counsel fees, expended by the plaintiff or either of the a lien upon the defendants, for the common benefit, fees of referees and shares of the other disbursements, must be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment. In that case they shall be a lien on the several shares, and the judgment may be enforced by execution against such shares, and against other property held by the respective parties. When, however, litigation arises between some of the parties only, the court may require the expenses of such litigation to be paid by the parties thereto, or any of them. SEC. 680. The court with the consent of the parties, may appoint a single referee, instead of three referees, in the proceedings under the provisions of this Chapter, and the single referee, when thus appointed, has all the powers and may perform all the duties required of the three referees. The court by consent may ap point a single referee. of tenants in penses, etc. SEC. 681. If it appear that other actions or proceed- In actions by one ings have been necessarily prosecuted or defended by any common, court one of the tenants in common, for the protection, confirm- may allow exation, or perfecting of the title, or setting the boundaries, or making a survey or surveys of the estate partitioned, the court shall allow to the parties of the action who have paid the expenses of such litigation or other proceedings, all the expenses necessarily incurred therein, including counsel fees, which shall have accrued to the common benefit of the other tenants in common, with interest thereon from the date of making the said expenditures, and the same must be pleaded and allowed by the court and included in the final judgment, and shall be a lien upon the share of each tenant, respectively, in proportion to his interest, and shall be enforced in the same manner as taxable costs of partition are taxed and collected. SEC. 682. If it appear to the court that it was Abstract of title. necessary to have made an abstract of the title to the property to be partitioned, and such abstract shall have been procured by the plaintiff, or if the plaintiff shall have failed to have the same made before the commencement of the action, and any one of the defendants shall have had such abstract Who may mike abstract, Interest to be allowed on disbursements. afterward 'made, the cost of the abstract with interest thereon from the time the same is subject to the inspection of the respective parties to the action, must be allowed and taxed. Whenever such abstract is procured by the plaintiff before the commencement of the action, he must file with his complaint a notice that an abstract of the title has been made, and is subject to the inspection and use of all the parties to the action, designating therein where the abstract will be kept for inspection. But if the plaintiff shall have failed to procure such abstract before commencing the action, and any defendant shall procure the same to be made, he shall, as soon as he has directed it to be made, file a notice thereof in the action with the clerk of the court, stating who is making the same and where it will be kept when finished. The court, or the judge thereof, may direct, from time to time, during the progress of the action, who shall have the custody of the abstract. SEC. 683. The abstract mentioned in the last preceding section may be made by any competent searcher of records, and need not be certified by the recorder or other. officer, but instead thereof, it must be verified by the affidavit of the person making it, to the effect that he believes it to be correct; but the same may be corrected, from time to time, if found incorrect, under the directions of the court. SEC. 684. Whenever, during the progress of the action for partition, any disbursement shall have been made, under the direction of the court, or the judge thereof, by a party thereto, interest must be allowed thereon from the time of making such disbursement. Action may be brought against any office or franchise. CHAPTER V. Action for the Usurpation of an Office or Franchise. SEC. 691. An action may be brought in the name of the people of this Territory against any person who usurps, party usurping, intrudes into, holds or exercises any office or franchise, tance real or pretended, within this Territory, without authority of law. Such action shall be brought by the prosecuting attorney of the proper county, when the office or franchise relates to a county, precinct or city, and when such office or franchise relates to the Territory, by the United States dis trict attorney; and it shall be the duty of the proper officer, upon proper showing, to bring such action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, held or exercised without authority of law. Any person rightfully entitled to an office or franchise may bring an action in his own name against the person who has usurped, intruded into, or who holds or exercises the same. may be set forth SEC. 692. Whenever such action is brought in the Name of person name of the people of the Territory, the prosecuting officer entitled to off ce at the request of the person entitled to the office or fran- in the complaint chise, in addition to the cause of action in behalf of the people of the Territory, may set forth the name of the person so entitled, with a statement of his right thereto, and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of usurpation thereof, an order may be granted by the judge, or court wherein the case is pending, for the arrest of such defendant, and holding him to bail; and thereupon he may be arrested and held to bail, in the same manner and with the same effect, and subject to the same rights, and liabilities, as in other civil actions where the defendant is subject to arrest. may be ren Judgment may rights of both in SEC. 693. In such case judgment every dered upon the right of the defendant, and also upon the determine the right of the party so alleged to be entitled, or only upon cumbent and the right of the defendant, as the form of the action and claimant. justice may require. cant. SEC. 694. If the judgment be rendered upon the When rendered right of the person so alleged to be entitled, and the same in favor of applibe in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office. successful appli SEC. 695. If judgment be rendered upon the right Damages may be of the person so alleged to be entitled, in favor of such recovered by person, he may recover, by action, the damages which he cant. may have sustained by reason of the usurpation of the office by the defendant. When several the same office, SEC. 696. When several persons claim to be entitled to the same office or franchise, one action may be brought persons claim against all such persons, in order to try their respective etc. rights to such office or franchise. found guilty. SEC. 697. When a defendant, against whom such If defendant action has been brought, is adjudged guilty of usurping what judgment or intruding into, or unlawfully holding any office, fran- against him. to be rendered Undertaking chise or privilege, judgment must be rendered that such defendant be excluded from the office, franchise or privilege, and that he pay costs of the action. The court may also, in its discretion, in actions to which the people of the Territory are a party, impose upon the defendant a fine not exceeding five thousand dollars, which fine, when collected must be paid into the treasury of the Territory. SEC. 698. When the action is brought upon the information or application of a private party, the prosecuting officer may require such party to enter into an undertakwhen required in ing, with sureties to be a proved by the said officer, conditioned that such party or the sureties will pay any judgment for costs or damages recovered against the plaintiff, and all the costs and expenses incurred in the prosecution of the action. actions for usur pation. TITLE XI. OF PROCEEDINGS IN JUSTICES' COURTS. Actions, when may be commenced. CHAPTER I. Place of Trial of Actions in Justices' Courts. SEC. 701. Actions in justices' courts must be commenced subject to the right to change the place of trial, as in this Chapter provided, and must be tried: 1. If there is no justice's court for the precinct or city in which the defendant resides, in any city or precinct of the county in which he resides; 2. When two or more persons are jointly, or jointly and severally bound in any debt or contract, or otherwise |