shall be committed to prison until discharged in due course of law. Such special bail shall be liable for the principal, and shall have a right to arrest and deliver him up as in other cases; and the defendant may give other bail. (666.)

1181. When discharged. 731. Instead of giving special bail, as above provided, the defendant shall be entitled to his discharge from custody, if he will secure the performance of the contract to the satisfaction of the Court. (667.)

1182. Who may have writ. 732. This proceeding may be had in favor of any surety or other person jointly bound with the defendant. It may also be prosecuted by the person in whose favor the contract exists against any one or more of the persons bound thereby, upon filing such affidavit, when the co-contractors are non-residents or probably insolvent, or at the request of any one of them, when they are residents and solvent. (668.)

1183. Habeas corpus. 733. The defendant may have the same remedy by writ of habeas corpus as in other cases of arrest and bail. (669.) 1184. Before Justices. 734. The proceedings may be had before Justices of the Peace in all cases within their jurisdiction. (670.)

1185. Jurisdiction. 735. The affidavit and written undertaking may be filed, and proceedings had in any county where the defendant may be found. (671.)

1196. Report, how made.

SEC.

1198. Report, how set aside- New Commission.

1199.

ers.

Land indivisible-Sale-Appraisement.
Effect of partial partition.

Commissioner to sell - Bond.
Commissioner's deed.

Proceeds, how distributed.

1200.

1201.

1202.

1203.

Commissioners can not purchase.

1204.

1205.

Two Commissioners may act.

Vacancy -Successor's acts valid.

1207.

Pay of Commissioners.

Costs, how apportioned.

1195. Minors, parties -Commissioners may plat 1206. into lots.

1197. Confirmation - Judgment.

1208.

1209. Proceedings, when opened and reviewed.

[1881 S., p. 579. In force September 19, 1881.]

1186. Who may compel. 1. Any person holding lands as jointtenant or tenant in common, whether in his own right or as executor or trustee, may compel partition thereof, in the manner provided in this Act. An administrator or executor may also compel partition as a tenant in common or joint-tenant may do, whenever, in the discharge of his duties as such, it shall be necessary for him to sell the estate of the decedent therein. Trustees, administrators and executors may also be made defendants in actions for the partition of real estate to answer as to any interest they may have in the same. [As amended, 1897 S., p. 125. In force April 15, 1897.

1. A judgment in partition acts only on existing rights, not on those subsequently acquired.-Avery v. Adkins, 74 Ind. 283. 2. No effort to divide by agreement need precede suit for partition.- Lake v. Jarrett, 12 Ind. 395.. 3. Partition cannot be adjudged between remainder-men during the continuance of a life estate in the same premises.- Nicholson v. Caress, 59 Ind. 39; Coon v. Bean, 69 id. 474.

4. General creditors of the ancestor are not proper parties in partition,-Gregory v. High, 29 Ind. 527.

5. A parol partition of lands is valid, where possession is taken and held by the parties pursuant thereto. - Moore v. Kerr, 46 Ind. 468. In this section, "holding means owning or having title ," and does not necessarily imply actual occupancy.-Godfrey v. Godfrey, 17 Ind. 6; Nicholson v. Caress, 59 id. 39; Coon v. Bean, 69 id. 474.

to.

[2 R. S. 1852, p. 329. In force May 6, 1853.] 1187. Petition-Contents-Jurisdiction. 2. Any such tenant may apply to the Circuit Court, or Court having probate jurisdiction of the county in which the lands or any part thereof may lie, by petition, setting forth a description of the premises and the rights and titles therein of the parties interested.

I. Partition can not be made of two tracts of land in the same suit, unless both belong to the same persons.-- Kitchen v. Sheets, I Ind. 138.

2. Twenty years is not a bar to an action for the partition of lands held by tenants in common.-Jenkins v. Dalton, 27 Ind. 78.

3. At common law, actual possession in a plaintiff holding legal title was not necessary to support partition, if he had not been legally disseized.-Foust . Moorman, 2 Ind. 17.

4. The death of one of the coparceners, pending the suit, may be set up by way of counter-claim, and must be considered in the subsequent proceedings.- Harness v. Harness, 63 Ind. 1.

5. As to facts to be alleged in the petition, see Shaw 7. Parker, 6 Blackf. 345; Mauck v. Milton, 64 Ind. 414; Dye v. Davis, 65 id. 474; McCarthy v. McCarthy, 66 id. 128; Blakely v. Baruff, 71 id. 93.

6. Lien-holders upon undivided shares should be made parties in partition.-- Milligan v. Poole, 35 Ind. 64; Applegate v. Edwards. 45 id. 329.

7. When the lands lie in two or more counties, the Circuit Court of either of such counties has jurisdiction in partition.— Hyatt v. Cochran, 69 Ind. 436.

[1881 S., p. 579. In force September 19, 1881.]

1188. Proceedings as in civil cases. 5. The proceedings, practice, and pleadings shall be the same as in civil suits, except as otherwise provided in this Act.

1. As to the facts constituting a good answer, see Finch v. Jackson, 30 Ind. 387; Davis v. Davis, 43 id. 561; Moore v. Kerr, 46 id. 468.

2. This section does not change the rights of tenants in common as they existed before its passage.— Martindale v. Alexander, 26 Ind. 104.

3. Clerical mistakes in the proceedings may be corrected at any time before final judgment. Doe v. Smith, 1 Ind. 451; Boyd v. Doty, 8 id. 370; Winship. Crothers, 20 id. 455.

4. The legal and equitable_rights of parties may both be adjusted in partition.— Martindale v. Alexander, 26 Ind. 104.

[1869 S., p. 88. In force August 16, 1869.]

1189. Interlocutory judgment-Sale when. 9. If upon trial of any issue, or upon default, or by consent of parties, it shall appear that partition ought to be made, the Court shall award an interlocutory judgment that partition be made to parties who may desire the same, specifying therein the share assigned to each, and taking into consideration advancements to heirs of a person dying intestate; and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition. But if upon trial of any issue, or upon default, or by confession or consent of parties, it shall appear that the lands of which partition is demanded, can not be divided without damage to the owners, then, and in that case, the Court in its discretion may order the whole or any such part of the premises to be sold as provided for in section eighteen of this Act [§ 1199]. 1. As to the decree, see Lease v. Carr, 5 Blackf. 353; Amory v. Carpenter, 8 id. 280; Milligan v. Poole, 35 Ind. 64.

2. In making partition, regard should be had to the value, not to the quality, of the lands divided.-Dilman v. Čox, 23 Ind. 440.

3. Advancements must be taken into account in partition.- Kepler v. Kepler, a Ind. 363; Dyer v. Armstrong, 5 id. 437; Dille v. Webb, 61 id. 85.

4. Also, claims for improvements made by one of the tenants in common.- Martindale v. Alexander, 26 Ind. 104, Stafford » Ńutt, 35 id. 39.

5. An appeal will not lie from an order of partition until after the return and confirmation of the report. Davis v. Davis, 36 Ind. 160; Kern v. Maginnis, 41 id. 398: Fouty v. Morrison, 73 id. 333.

[2 R. S. 1852, p. 329. In force May 6, 1853.]

1190. Testator's intention governs. 10. Such Court shall not order or affirm partition of any real estate contrary to the intention of a testator, expressed in his will.

1. For construction hereof, see Brown v. Brown, 43 Ind. 474.

1191. Commissioners. 11. Upon judgment of partition, the Court. shall appoint three disinterested resident freeholders of the county in which such Court is held, not of kin to any of the parties, who shall make partition of such lands, in pursuance of the judgment of the Court.

1192. Oath. 12. Before proceeding to discharge their duties, such Commissioners shall take an oath faithfully to perform the duties of their trust; which oath, if taken in open Court, shall be entered in their orderbook, and, if not, shall be indorsed on the warrant issued to them to make such partition.

1193. Shares, when set off together. 13. Two or more persons may, if they choose, have their shares set off together.

1194. Guardians act for wards. 14. In all 'proceedings under this Act, guardians may act for their wards as their wards might have acted, being of age.

1. Infants have the right to sue for partition.- Schee v. McQuilken, 59 Ind, 269. [1859, p. 159. In force March 4, 1859.]

1.

1195. Minors, parties-Commissioners may plat into lots. In all cases where proceedings are now pending or may hereafter be commenced in any of the Courts of this State, for the partition of real estate in which any minor is a party in interest, the Commissioners appointed to make such partition are hereby authorized to lay off into lots or out-lots, streets, and alleys any lands included in such partition, and to make a plat thereof, which shall be reported to the Court for approval or rejection. If confirmed by the Court, such plat shall be acknowledged by such Commissioners in open Court, and shall be recorded as other plats of like nature are recorded, and shall have the same validity in law as if made by a legal proprietor of such lands, of full age. It shall be the duty of the Court to determine, in such cases, upon the return of such plats by said Commissioners, whether it will be for the interest of the parties that such land should be laid off into lots or out-lots, streets, and alleys; and if so, then partition may be made thereof by said Commissioners as in other cases, if practicable, without detriment to the parties interested; and if the same shall not be susceptible of partition, then said lots or out-lots may be sold by order of the Court, as in other cases.

[1881 S., p. 579. In force September 19, 1881.]

1196. Report, how made. 15. The Commissioners shall make to the Court, and acknowledge in open Court, their report, or shall sign and swear to their report before some person authorized to administer oaths; which report shall specify, by divisions or lots, or metes and bounds, or by plats, the shares assigned to each party.

1. Commissioners may, in their repon, core any misdescription of the land in the pleadings, interlocutory orders, or warrant; and the Court can direct corresponding amendments to be made therein.- Randles 7. Randles, 63 Ind. 93.

2. If objections be made to the report or the conduct of the Commissioners therein, the proper practice is to move to set it aside; and, if the motion do not prevail, to except and, by bill of exceptions, show the motion, grounds, proof, and ruling, and then assign that for error.- Clark v. Stephenson, 73 Ind. 489.

3. A report of Commissioners in partition is sufficiently certain, if it can be made certain by survey. Boyd v. Doty, 8 Ind. 370.

4. The report of the Commissioners is a quasi verdict, and ought not to be disturbed or set aside, except for causes similar to those which would set aside a verdict.— Lucas v. Peters, 45 Ind. 313; Patterson v. Blake, 12 id. 436; Hollett v. Evans, 28 id. 61.

[2 R. S. 1852, p. 329. In force May 6, 1853.]

1197. Confirmation - Judgment. 16. Such report, if confirmed by the Court, shall be spread upon the order-book, and judgment of partition be rendered accordingly.

1. The only effect of an appeal is to stay execution for costs. During its pendency, the parties to whom the several tracts have been allotted are entitled to the possession thereof.-Randles v. Randles, 67 Ind. 434.

1198. Report, how set aside New Commissioners.

Court, before confirmation, may set aside such return for good cause shown, and commit the duty of partition anew to the same or other Commissioners, to be appointed and qualified as aforesaid; whereupon the same proceedings shall be had as are before directed.

1. For practice in case of setting aside or refusing to set aside report under this section, see Kern v. Maginnis, 55 Ind. 459; Clark v. Stephenson, 73 id. 489.

1199. Land indivisible Sale - Appraisement. 18. When such commissioner shall report to the court that the whole or part of the lands of which partition is demanded can not be divided without damage to the owners, the court, in its discretion, may order the whole or such part of the premises to be sold at public or private sale, on such terms and conditions as it may prescribe: Provided, that if the court does not order such sale to be made for cash, a cash payment of not less than one-third of the purchase money shall be required by the court to be made to said commissioner by the purchaser of such land at the time of the sale: And, provided, also, that at public sale such land shall sell for at least two-thirds of its appraised value, and at private sale, at not less than its appraised value, to be ascertained as in cases of sales of land on execution, and, if a part only be sold, the remainder may be partitioned, subject to the rules hereinbefore provided. And, provided, further, that in all cases where lands by the court ordered to be sold at private sale do not exceed one thousand dollars in value, the same may, in the discretion of the court, be sold without any notice of sale being had or given. [As amended, 1889 S., p. 395. In force May 10, 1889. 2. When a partition can not be made, a sale of the property as indivisible, and a distribution of the proceeds, is legal.- Shull v. Kennon, 12 Ind. 34.

3. If one or more shares can be set off, and the residue be indivisible, the residue should only be sold.— Lake v. Jarrett, 12 Ind. 395; Lucas v. Peters, 45 id. 313. 4. An appeal will lie from an order of sale made upon report that the lands are indivisible.- Hunter v. Miller, 17 Ind. 88; Rennick v. Chandler, 59 id. 354.

1200. Effect of partial partition. 19. If under such partial partition. duly confirmed, the shares assigned be full shares, the residue reserved for sale shall be discharged from all title or claim of the parties so receiving assignment of their shares.

1201. Commissioner to sell - Bond. 20. Such sale shall be made by a Commissioner to be appointed by the Court, other than one of the Commissioners to make partition; and such Commissioner shall file a bond payable to the State of Indiana in such penalty as the Court may direct, conditioned for the faithful discharge of the duties of his trust.

1202. Commissioner's deed. § 21. Whenever it shall appear to the court that such lands are sold for cash, or in case a partial credit is given that the first or cash payment of the purchase money is paid, the court shall order such commissioner, or some other person, to execute a conveyance to the purchaser, which shall bar all claims of such owners to such lands as effectually as if they themselves had executed the same; but in case partial credit is given for such lands, the court shall, at the time said conveyance is so ordered to be made, also order and direct that, concurrently with the execution of said conveyance, the purchaser shall execute to such commissioner a mortgage upon such lands to secure the deferred payments of the purchase money thereof, which mortgage when so executed shall be by said commissioner placed upon record as required by law. [As amended, 1889 S., p. 396. In force May 10, 1889.

1203. Commissioners can not purchase. 22. Commissioners to make partition or to sell shall not become purchasers of said land.

1204. Proceeds, how distributed. 23. The moneys arising from such sale after payment of just costs and expenses, shall be paid by such Commissioner to the persons entitled thereto, according to their respective shares, under the direction of the Court.

1205. Two Commissioners may act. 24. Any two of the persons named as Commissioners to make partition may perform the duties required by this Act; and vacancies may be filled by the Court.

1. Two of the Commissioners may make a valid report, either over the objection or in the absence of the other.- Griffy v. Enders, 60 Ind. 23.

1206. Vacancy - Successor's acts valid. 25. The occurrence of a vacancy shall not invalidate the previous acts of the Commissioners; and a successor shall take up and continue the proceedings, which shall be as valid as if the same had been done by the Commissioners first appointed. 1207. Pay of Commissioners. 27. Such Court shall make such allowance to the Commissioners for their services, and for surveying, marking, chaining, platting, and the execution of the necessary conveyances as to such Court shall seem reasonable.

28. All costs and necessary

1208. Costs, how apportioned. expenses, including reasonable counsel fees for plaintiff's counsel, the amount thereof to be determined by the Court, shall be awarded and enforced in favor of those entitled thereto against the partitioners, and in such proportions against each and according to equity as the Court may determine, having regard to their relative interests in the lands or proceeds aparted [apportioned]. [As amended, 1893 S., p. 315. In force May 18, 1893.

1209. Proceedings, when reviewed. 29. Upon showing sufficient cause, any person not served with summons may, within one year after such partition is confirmed, appear and open the proceedings, and obtain a review thereof; and also any person of unsound mind, or any infant whose guardian did not attend and approve such partition, may, within one year after the removal of his disability, have a review of such partition.

1. The guardian of an infant-defendant is not authorized hereunder to maintain proceedings in review.-Brown v. Keyser, 53 Ind. 85; Bundy v. Hall, 60 id. 177

[1881 S., p. 240. In force September 19, 1881.]

1210. Notice to creditor. 736. Any person bound as surety upon any contract in writing for the payment of money or the performance of any