place, why he has not done so; and that he then and there
return the writ with his certificate of having done as he is
commanded. The peremptory writ
The peremptory writ must be in a similar

form, except that the words

requiring the defendant to show cause why he has not done as commanded, must be

omitted.

SEC. 654. When the right to require the performance valid excuse. of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases the alternative writ must be first issued.

made.

SEC. 655. The motion for the writ must be made upon Motion, how affidavit, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.

SEC. 656. The allowance of the writ must be indorsed thereon, signed by the judge of the court granting it, and the writ must be served personally upon the defendant; if the defendant, personally served, neglect to return the same, he shall be proceeded against as for a contempt.

SEC. 657. On the return day of the alternative writ, or such further day as the court may allow, the party on whom the writ shall have been served, may show cause by answer made in the same manner as an answer to a petition in a civil action.

SEC. 658. If no answer be made, a peremptory mandamus must be allowed against the defendant; if answer be made containing new matter, the same shall not, in any respect, conclude the plaintiff, who may, on the trial or other proceeding, avail himself of any valid objections to sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.

Indorsement.

Show cause.

Peremptory.

Writ and an

SEC. 659. No other pleading or written allegation is swer. allowed than the writ and answer; these are the pleadings in the case, and have the same effect, and are to be construed and may be amended in the same manner as pleadings in a civil action; and the issues thereby joined must be tried,

Judgment.

Bar.

Refusal and

noglect.

and the further proceedings thereon had, in the same manner as in a civil action.

SEC. 660. If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in a civil action, and costs; and a peremptory mandamus shall, also, be granted to him without delay.

SEC. 661. A recovery of damages by virtue of this title, against a party who shall have made a return to a writ of mandamus, is a bar to any other action against the same party for the making of such return.

SEC. 662. Whenever a peremptory mandamus is directed to any public officer, body or board, commanding the performance of any public duty, specially enjoined by law, if it appear to the court that such officer or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine, not exceeding five hundred dollars, upon every such officer or member of such body or board. Such fine, when collected, shall be paid into the treasury of the county where the duty ought to have been performed; and the payment thereof is a bar to an action for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined.

Partition.

Number of shares.

TITLE XXVII.

Partition.

SEC. 663. When the object of the action is to effect a partition of real property among several joint owners, the petition must describe the property and the respective interests of the several owners thereof if known.

SEC. 664. If the number of shares or interests is known, but the owners thereof are unknown, or if there are or are supposed to be, any interests which are unknown, contingent or doubtful, these facts must be set forth in the petition with reasonable certainty.

SEC. 665.

Creditors having a specific or general lien Specific lien.

upon all or any portion of the property may or may not be made parties at the option of the plaintiff.

SEC. 666. If the lien is upon one or more undivided interests of any of the parties it shall, after partition or sale, remain a charge upon those particular interests or the proceeds thereof. But the due proportion of costs is a charge upon those interests paramount to all other liens.

SEC. 667. The answers of the defendants must state among other things, the amount and nature of their respective interests. They may deny the interests of any of the plaintiffs, and by supplemental pleading, if necessary, may deny the interests of any of the other defendants.

Undivided interests.

Denial.

SEC. 668. When there are two or more plaintiffs they Joint reply. may reply jointly, or either of them may reply to any or all the answers of the defendants.

sues.

SEC. 669. Issues may, thereupon, be joined and tried Joinder of inbetween any of the contesting parties, the question of costs on such issues being regulated between the contestants agreeably to the principles applicable to other cases.

SEC. 670. Each of the parties appearing, whether as plaintiff or defendant, must exhibit his documentary proof of title, if he has any, and must file the same, or copies thereof, with the clerk.

SEC. 671. If the statements in the petitions and answers are not contradicted in the manner aforesaid, or by the documentary proof exhibited as above required, they shall be taken as true.

SEC. 672. After all the shares and interests of the parties have been settled in any of the methods aforesaid, judgment shall be rendered confirming those shares and interests, and directing partition to be made accordingly.

SEC. 673. Upon entering such judgment, the court shall appoint referees to make partition into the requisite number of shares.

SEC. 674. For good and sufficient reasons appearing to the court, the referees may be directed to allot particular portions of the land to particular individuals. In other

Documentary

proof.

Contradiction.

Judgment.

Referees.

Allotments.

Prejudice.

Terms of saie.

Eecurity.

Notice of sale.

Report.

Incumbrance.

Referees report.

Five days no

tice.

Proof.

Proceeds of

sale.

cases, the shares must be made as nearly as possible of equal value. :

SEC. 675. If it appears to the referees that partition cannot be made without great prejudice to the owners, they shall so report to the court.

SEC. 676. I satisfied with such report, the court shall cause an order to be entered, directing the referees to sell the premises so situated, and shall also fix the terms of the sale.

SEC. 677. Before proceeding to sell, the referees shall each give security, to be approved by the court or judge thereof, conditioned for the faithful discharge of his duties. At any time thereafter, the court may require further and better security.

SEC. 678. The same notice of sale shall be given as when lands are sold on execution by the sheriff, and the sale shall be conducted in like manner.

SEC. 679. After completing said sale, the referees must report their proceedings to the court with a description of the different parcels of land sold to each purchaser, and the price bid therefor, which report shall be filed with the clerk.

SEC. 680. After making the order of sale as aforesaid, the court shall direct the clerk to report whether there be any general incumbrance by mortgage, judgment or otherwise, upon any portion of the property.

SEC. 681. If deemed advisable, the court may appoint a referee to inquire into the nature and amount of incumbrances, and report accordingly. From that report an appeal lies to the court.

SEC. 682. The referee shall give the parties interested at least five days notice of the time and place when he will receive proof of the amount of such incumbrances.

SEC. 683. In taking such proof he may receive, with other evidence, the affidavit of the parties interested.

SEC. 684. If any incumbrance be ascertained to exist, the proceeds of the sale of that portion, after the payment

of costs, or so much thereof as necessary, shall if the owner consent, be paid over to the incumbrancer.

SEC. 685. If the owner object to the paymert of such Final action. incumbrance, the money shall be retained or invested by order of the court to await final action in relation to its disposition, and notice thereof shall be forthwith given to the incumbrancer, unless he has already been made a party.

rights.

SEC. 686. The court may direct an issue to be made Respectivo up between the incumbrancer and owner, which issue, when determined, shall be decisive of their respective rights.

SEC. 687. If an estate for life or years be found to exist as an incumbrance upon any part of said property, and if the parties connot agree upon the sum in gross which they will consider an equivalent for such an estate, the court shall direct the avails of the incumbered property to be invested, and the proceeds to be paid to the incumbrancer during the existence of the incumbrance.

Estate for life.

SEC. 688. The proceedings in relation to the incum- Distribution. brances shall not delay the distribution of the proceeds of other shares in respect to which no difficulties exist.

SEC. 689. The court, in its discretion, may require all serity. or any of the parties, before they receive the moneys arising from any sale authorized in this title, to give satisfactory security to refund such moneys and interest, in case it afterwards appears that such parties were not entitled thereto.

SEC. 690. If the sale aforesaid be approved and Orders. confirmed by the court, an order shall he entered, directing the referees, or any two of them, to execute conveyances pursuant to such sales. But no conveyance can be made until all the money is paid, without receiving from the purchaser a mortgage of the land so sold or other equivalent security.

Subsequent

SEC. 691. Such conveyances SO executed, being recorded in the county where the premises are situate, shall purchasers. be valid against all subsequent purchasers, and also against all persons interested at the time, who were made parties to

the proceedings in the mode pointed out by law.