791. (§ 303.) The Clerk in whose name a security is 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 Clerk's office, free for inspection by all persons, of investments and moneys received by him thereon, and the disposition thereof.

792. (§ 304.) When it appears that partition cannot be made equal between the parties, according to their respective rights, without prejudice to the rights and interests 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, nor by an infant, unless it appears that such infant 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.

793. (§ 305.) When the share of an infant is sold, the proceeds of the sale may be paid by the referee making the 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.

Duties of

the Clerk

making in

vestments.

When partition

unequal

is ordered, compensa

tion may be in certain

adjudged

casos.

The share may be guardian.

of an infant

paid to his

The

guardian of

an insane receive the

person may

proceeds of such

794. (§ 306.) The guardian who may be entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, whose interest in real prop- party's erty has been sold, may receive, in behalf of such person, his share of the proceeds of such real property

interest.

A guardian

may consent to partition without

execute

releases.

from the referees, on executing, with sufficient sureties, an undertaking approved by a Judge of the Court, or by a County Judge, 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.

795. (§ 307.) The general guardian of an infant, and the guardian entitled to the custody and manageaction, and ment of the 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 partition without action, and agree upon the share to be set off to such infant 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.

Costs of partition a lien upon the shares of the

parceners.

The Court, by consent,

may appoint a single

referee.

796. ($308.) The costs of partition, including reasonable counsel fees, expended by the plaintiff for the common benefit, fees of referees and 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, a litigation arises between some of the parties only, the Court may require the expense of such litigation to be paid by the parties thereto, or any

of them.

797. (§ 309.) 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.

ment of

fees and expenses.

798. If it appears to the Court that other actions Apportionor proceedings have been prosecuted or defended by counsel any of the tenants in common, for the protection, confirmation, or perfecting of the title, or settling the boundary, or making a survey or surveys of the estate partitioned, the Court must allow to the parties who have paid the expense of such necessary litigation, or other proceedings, all the expenses necessarily so incurred therein, which shall have accrued to the common benefit of the other tenants in common, with interest thereon from the date of making the expenditures; and the same must be allowed and taxed, and included in the final judgment as costs are allowed, taxed, and included in the judgment.

of title.

799. If it appears to the Court that it was neces- Abstract sary 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 afterwards 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 produced 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,

Same.

Interest on disbursements.

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.

800. 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 direction of the Court.

801. Whenever, during the progress of the action for partition, any disbursements 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 disbursements.

CHAPTER V.

ACTIONS FOR THE USURPATION OF AN OFFICE OR FRANCHISE.

SECTION 802. Certain writs abolished.

803. Action may be brought against any party usurping,

etc., any office or franchise.

804. Name of person entitled to office may be set forth in the complaint. If fees have been received by the usurper, he may be arrested.

805. Judgment may determine the rights of both incumbent

and claimant.

806. When rendered in favor of applicant.

807. Damages may be recovered by successful applicant. 808. When several persons claim the same office their rights may be determined by a single action.

809. If defendant found guilty, what judgment to be rendered against him.

writs

802. The writ of scire facias, the writ of quo war- Certain ranto, and proceedings by information in the nature of abolished. quo warranto, are abolished. The remedies obtainable in these forms may hereafter be obtained by civil actions, under the provisions of this Chapter.

Action may against

be brought

any party usurping, etc, any office or

franchise.

803. (§ 310.) An action may be brought by the Attorney General, in the name of the people of this State, upon his own information, or upon the complaint ring of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this State. And the Attorney General must bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the Governor.

804. (§ 311.) Whenever such action is brought, the Attorney General, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightly entitled to the office, 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 his usurpation thereof, an order may be granted by a Justice of the Supreme Court, or a District Judge, 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.

Name of entitled to be set forth

person

office may

in the complaint.

If fees received

have been

by the usurper,

he may be

arrested.

Judgment may

the rights

of both

805. (§ 312.) In every such action judgment may determine be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, claimant.

incumbent and