Enforcing ments. TITLE 14. $ 18. Where by such judgment any party shall be required to perform any act, other than the payment of money, the court rendering certain judg- such judgment shall enforce the same by rule; and the party refusing or neglecting to perform and execute such act, or any part thereof, shall be subject to all the penalties of contemning an order of such court, and may be proceeded against in the manner prescribed in the thirteenth Title of this Chapter." Costs on vacating award. Error on order vacating $ 19. If upon any application made pursuant to the foregoing provisions, the court shall vacate and set aside any award of arbitrators, costs shall be awarded to the prevailing party; and the payment thereof may be enforced by rule of the court, as in other cases. $20. Upon every such order vacating an award, the party ag award. grieved may bring a writ of error, as upon any other judgment of such court; to which writ shall be returned certified copies of such order, and of all affidavits and papers used on such application; and the court to which such writ shall be returned, shall proceed to confirm or reverse such order, as shall be just. Proceedings on reversal. Construction of this Title. Revocation of submission, &c. Action for revoking. $ 21. If such order be reversed, the proceedings shall be remitted to the court from which they were removed, to proceed thereon; or the court to which such proceedings shall have been returned, may proceed thereon, after due notice to the party complaining of such award, to modify or confirm the same, in the same manner, and with the like effect, as if application for that purpose had been originally made to such court. $ 22. Nothing contained in this Title, shall be construed to impair, diminish, or in any way affect the power and authority of the court of chancery over arbitrators, awards, or the parties thereto; nor to impair or affect any action upon any award, or upon any bond or other engagement to abide by an award. $ 23. Whenever any submission to arbitration shall be revoked by a party thereto, before the publication of an award, the party so revoking, shall be liable to an action by the adverse party, to recover all the costs, expenses and damages which he may have incurred in preparing for such arbitration. But neither party shall have power to revoke the powers of the arbitrators, after the cause shall have been finally submitted to them, upon a hearing of the parties, for their decision. S24. If the submission so revoked, was contained in the condition of any bond, the obligee in such bond shall be entitled to prosecute the same, in the same manner as other bonds with conditions other than for the payment of money, and to assign such revocation as a breach thereof; and for such breach, he shall recover as damages, the costs and expense incurred, and the damages sustained by him in preparing for such arbitration. (7) 1 R. L. p. 125, § 1. $ 25. No other sum, penalty, forfeiture or damages shall be re- TITLE 15. covered for any revocation of a submission to arbitration, than such Damages. as are prescribed in the two last sections; notwithstanding any stipulated damages, penalty, or forfeiture, contained in such submission, or m any other instrument, or agreement collateral thereto. TITLE XV. OF THE FORECLOSURE OF MORTGAGES BY ADVERTISEMENT. SEC. 1. What mortgages may be foreclosed by advertisement. 2. Requisites to entitle mortgagee to foreclose. 4. Contents of such notice. 5. Sale how postponed. 6. Sale how to be made; how much to be raised. 7. Mortgagee, &c. may purchase premises. 8. Effect of sale. 9. Affidavit of sale, by whom made; its contents. 10. Affidavit of publishing and affixing notice of sale, &c. 12. To be recorded; effect as evidence. 13. Place of recording to be noted in record of mortgage. 15. Certain provisions respecting state mortgages, not affected. $1. Every mortgage of real estate, heretofore executed by any What mortperson being at the time more than twenty-five years of age, or here- gages may be after executed by any person over the age of twenty-one years, containing therein a power to the mortgagee or any other person, to sell the mortgaged premises, upon default being made in any condition of such mortgage, may be foreclosed by advertisement, in the cases and in the manner herein after specified. $2. To entitle any party to give a notice as herein after prescrib- Requisites to ed, and to make such foreclosure, it shall be requisite, 1. That some default in a condition of such mortgage shall have occurred, by which the power to sell became operative: 2. That no suit or proceeding shall have been instituted at law, to recover the debt then remaining secured by such mortgage, or any part thereof; or if any suit or proceeding has been instituted, that the same has been discontinued, or that an execution upon the judgment rendered thereon, has been returned unsatisfied in whole or in part: and, 8. That such power of sale has been duly registered, or the mortgage containing the same has been duly recorded. foreclosure. notice of $3. Notice that such mortgage will be foreclosed by a sale of the Publishing mortgaged premises, or some part of them, shall be given as follows: foreclosure. 1. By publishing the same for twenty-four weeks, successively, at least once in each week, in a newspaper printed in the county, TITLE 13 where the premises intended to be sold shall be situated; or if such premises be situated in two or more counties, in a newspaper printed in either of them: Contents of such notice. Postponing sale. Sale; how much to be raised. Mortgagee, 2. By affixing a copy of such notice, at least twenty-four weeks prior to the time therein specified for the sale, on the outward door of the building where the county courts are directed to be held, in the county where the premises are situated; or if there be two or more such buildings, then on the outward door of that which shall be nearest to the premises." $ 4. Every such notice shall specify, 1. The names of the mortgagor and of the mortgagee, and the assignee of the mortgage, if any : 2. The date of the mortgage and where recorded, or where the power of sale is registered: 3. The amount claimed to be due thereon, at the time of the first publication of such notice: and, 4. A description of the mortgaged premises, conforming substantially with that contained in the mortgage. $5. Such sale may be postponed from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publication until the time to which the sale shall be postponed. and no $6. Such sale shall be at public auction, in the day time, in the county where the mortgaged premises, or some part of them, are situated; except in sales on mortgages to the people of this state, in which case the sale may be made at the Capitol. If the premises consist of distinct farms, tracts or lots, they shall be sold separately; more farms, tracts or lots shall be sold, than shall be necessary to satisfy the amount due on such mortgage, at the time of the first publication of notice of sale, with interest, and the costs and expenses allowed by law. 19 $7. The mortgagee, his assigns and his or their legal representadomy pur- tives, may fairly and in good faith, purchase the premises so advertised, or any part thereof, at such sale."1 chase. Effect of sale. § 8. Every sale, pursuant to a power as aforesaid, and conducted as herein prescribed, made to a purchaser in good faith, shall be equivalent to a foreclosure and sale, under the decree of a court of equity, so far only, as to be an entire bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of all persons claiming under him or them, by virtue of any title subsequent to such mortgage; but no mortgagee of the same premises, or any part of, whose title accrued prior to such sale, nor any creditor to whom the mortgaged premises, or any part thereof, were bound before such sale, by any judgment at law or decree in equity, shall be prejudiced there (9) 1 R. L. p. 873, § 6. (10) Ib. and act of 1822, p. 262. (11) 1 R. L. p. 375, § 10. by any such sale, nor shall their rights or interests be in any way af- TITLE 15. fected thereby.12 sale. $9. An affidavit of the fact of any sale pursuant to such notice, Affidavit of may be made by the person who officiated as auctioneer at such sale, stating the time and place at which the same took place, the sum bid, and the name of the purchaser, and shall be annexed to a printed copy of the notice of sale.13 ing, &c. no $ 10. An affidavit of the publication of such notice of sale, and of of publishe any notice of postponement, may be made by the printer of the news- tice. paper in which the same was inserted, or by his foreman or principal clerk; and an affidavit of the affixing a copy of such notice on the outward door of the court-house, may be made by the person who affixed the same, or by any other person who saw such notice so posted, during the time required. 13 filing affida vita $11. The affidavit specified in the two last sections, may be taken Taking and and certified by any judge of a court of record, any supreme court commissioner, or any commissioner of deeds, and may be filed in the office of the clerk of the county where such sale took place. 19 ed; their ef $ 12. Such affidavits shall be recorded at length by such clerk, in To be recorda book kept for the record of mortgages; and such original affidavits, foci." the record thereof, and certified copies of such record, shall be presumptive evidence of the facts therein contained.10. $13. A note referring to the page and book where the evidence of Note of reany sale having been made under a mortgage, is recorded, shall be cording. made by the clerk recording such evidence, in the margin of the re cord of such mortgage, if such record be in his office. purchase by &o. $ 14. When the mortgaged premises, or any part of them, shall Evidence of have been purchased at such sale by the mortgagee, his legal repre- mortgagee, sentatives, or his or their assigns, as herein before provided, the affidavits of the publication and affixing notice of sale, and of the circumstances of such sale, shall be evidence of the sale, and of the foreclosure of the equity of redemption, as herein specified, without any conveyance being executed, in the same manner and with the like effect, as a conveyance executed by a mortgagee upon such sale, to a third person. $15. Nothing contained in this Title shall affect the provisions (See vol. 1, contained in Title sixth of Chapter ninth of the First Part of the Re-P.211.) vised Statutes, in relation to the foreclosure of mortgages to the people of this state, so far as the same are contrary to the provisions of this Title. (12) 1 R. L. p. 873, § 6. (13) Ib. § 7, 8 & 9 TITLE 10. Who to apply for sum mons. Jury how summoned; owner. TITLE XVI. OF PROCEEDINGS FOR THE DRAINING OF SWAMPS, MARSHES, AND SEC. 1. By whom application for summons to be made. 2. Summons for jury, contents; notice to owner of land. 8. Duty of constable; return by him. 4. When jury to be sworn; contents of oath. 5 & 6. Proceedings before and by jury; their inquisition. 7. When applicant may enter and cut ditch on lands designated. 8. May also enter afterwards to clear out ditch. 9. Penalty for obstructing or injuring ditch. 10. Justice to file map and inquisition in town clerk's office. § 1. Any person owning or possessing any swamp, bog, meadow or other low land, lying in any county within this state, except the county of Orange, who shall be desirous to drain such land, and who shall deem it necessary, in order thereto, that a ditch or ditches should be opened through lands belonging to other persons, in case the owners of any such lands shall refuse to permit the opening of such ditch or ditches through the same, may apply to any justice of the peace residing in the town where such lands shall lie, for such summons as is herein specified.14 S2. The justice to whom such application shall be made, shall noticed thereupon issue a summons directed to any constable of the said town, requiring him to summon twelve reputable freeholders, who are not interested in the said lands, nor in any of them, nor in any wise of kin to either of the parties, to be and appear on the premises, at a certain time to be specified in such summons, not less than ten, nor more than twenty days from the date thereof. The summons shall also direct the constable to give at least six days' notice to the owner of such lands, of the time at which such jury are to appear.14 Duty of constablo. Oath of Jurora, &c. Proceedings S3. The constable to whom such summons shall be delivered, shall execute the same by summoning such jurors, in the same manner and with the like authority, as upon venires issued in causes pending before justices of the peace, and shall, in like manner, make return thereof, and of the fact of his having given the notice therein required. S4. The justice shall attend at the time and place specified in the summons, and if it appear that due notice has been given, as required in the summons, and if twelve freeholders, as above specified, shall then and there appear, he shall administer to each of them an oath or affirmation, well and truly to examine and certify, in regard to the benefits or damages which will result from the opening of the said ditch or ditches, 15 $5. The person applying to have such ditch or ditches opened, before jury. shall then deliver to the jury a map of the land through which the same are to be opened, on which map the plan, length, width and depth of such ditch or ditches, shall be particularly designated. The (14) Laws of 1816, p. 158, § 1. (15) Ib. § 2. |