Anunded 189347. 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. may A guardian partition execute 795. (§ 307.) The general guardian of an infant, and the guardian entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, who releases. 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. 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. Costs of partition a lion upon the shares of the parceners. The Court, by consent, 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 referee. single this Chapter; and the single referee, when thus appointed, has all the powers and may perform all the duties required of the three referees. 798. If it appears to the Court that other actions or proceedings have been prosecuted or defended by 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. NOTE. This section was added by Act of April 1, 1872. 799. If it appears to the Court that it was neces sary to have made an abstract of the title to the prop erty 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, 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. NOTE. This section was added by Act of April 1, 1872. 800. The abstract mentioned in the last preceding Same. 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. NOTE. This section was added by Act of April 1, 1872. 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. NOTE. This section was added by Act of April 1, 1872. Interest on ments. disburse 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 Certain writs SECTION 805. Judgment may determine the rights of both incumbent and claimant. 802. 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. The writ of scire facias, the writ of quo warabolished. ranto, and proceedings by information in the nature of 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 office or 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 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. NOTE.-1. OBJECT OF THE ACTION-Is to prevent the usurpation of an office, franchise, or liberty.-Ex Parte Attorney General, 1 Cal., p. 87; People vs. Olds, 3 Cal., p. 175. 2. WHEN IT CAN BE MAINTAINED TO TRY TITLE TO AN OFFICE.-People vs. Scannel, 7 Cal., p. 439. To test the right of an appointee of the Board of Pilot Commissioners.-Palmer vs. Woodbury, 14 Cal., p. 43. Against one in possession of an office to which he has not been duly elected, but who holds a certificate of election.-People vs. Jones, 20 Cal., p. 50. 3. CERTIFICATE OF ELECTION.-One holding a certificate, without the legal title to the office, is an intruder within the meaning of this section, for the right to the office comes from the will of the voters as expressed at the election. If the office was, in fact, given by the voters to another, the possession by the defendant of the certificate affords him, at most, but a color of title, and does not invest him with the right 4. GENERALLY.-The use of an abbreviated cor- 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. NOTE.-An allegation that the defendant is in possession of the office without authority, is a sufficient allegation of intrusion or usurpation. Any defects in the complaint in this respect must be reached by de87-VOL. I. |