CHAPTER 129. 1. Where there is an evident miscalculation of figures, or an evi- TITLE XXIV. dent mistake in the description of any person, thing or property referred to in such award: 2. Where the arbitrators shall have awarded upon some matter not submitted to them, not affecting the merits of the decision upon the matters submitted: 3. When the award shall be imperfect in some matter of form, not affecting the merits of the controversy; and where, if it had been a verdict, such defect could have been amended or disregarded by the court, according to the provisions of law. SEC. 11. Every such application to vacate or modify an award, Motions to vacate shall be made to the court designated in the submission, at the next or modify award. term after the publication of such award, upon due notice to the ad- 1 Paige, 293. verse party as in other cases of special motions, if there be time for that purpose; and if there be not time, such court, or any judge thereof, may, upon good cause shown, order a stay of proceedings on such award, either absolutely, or upon such terms as shall appear just, until the term of the court next after such first term. court. SEC. 12. On such application, the court may vacate such award in Proceedings by any of the cases herein before specified, and may, in their discretion, direct a re-hearing by the same arbitrators; and in the cases herein specified, the court may modify and correct such award, so as to effect the intent thereof, and to promote justice between the parties. SEC. 13. Upon such award being confirmed or modified, the court Judgment. shall render judgment in favor of the party to whom any sum of money or damages shall have been awarded, that he recover the same; and if the award shall have ordered any act to be done by either party, judgment shall be entered that such act be done according to such order. SEC. 14. The costs of the proceedings shall be taxed as in suits, Costs. and if no provision for the fees and expenses of the arbitrators shall have been made in the award, the court shall make the same allowance as provided by law, in cases of references. SEC. 15. A record of such judgment shall be made, commencing Record of judg with a memorandum reciting the submission; then stating the hearing ment. before the arbitrators; their award; the proceedings of the court thereupon, in modifying or confirming such award; and the judgment of the court for the recovery of the debt or damages awarded, and that the parties perform the acts ordered by the award, and for the recovery of the costs allowed. SEC. 16. Such record shall be filed and docketed, as records of Effect of judg judgments in other cases; shall have the same force and effect in all ment; execution respects; be subject to all the provisions of law in relation to judgments in actions; and may in like manner, be removed and reversed by writ of error; and execution shall issue thereupon against the property or person of any party against whom a recovery shall be had, in all respects as upon other judgments. SEC. 17. When any writ of error shall be brought on any such judg- Writ of error on ment rendered in a circuit court, certified copies of the original affidavits judgment, &c. upon which any application in relation to such award was founded, and of all other affidavits and papers relating to such application, shall be annexed to, form a part of, and be returned with the record of the judgment; and the court to which such writ shall be returned, shall reverse, modify or amend, or affirm such judgment, or any part thereof, according to justice. TITLE XXIV. CHAPTER 130. Enforcing cer SEC. 18. When by such judgment, any party shall be required to perform any act, other than the payment of money, the court rendering such judgment, shall enforce the same by rule; and the party retain judgments. fusing 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 provided by law in such cases. Costs on vacating award. Error on order SEC. 19. If upon any application made pursuant to the foregoing provisions, the court shall vacate and set aside any award of arbitrators, costs may, in the discretion of the court be awarded to the prevailing party; and the payment thereof may be enforced by rule of the court, as in other cases. SEC. 20. Upon every such order vacating an award, made by any vacating award. circuit court, the party aggrieved 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 chapter. Neither party can revoke sub consent, &c. SEC. 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 to modify or confirm the award, and to render judgment thereon, in the same manner, and with the like effect, as if such court had been designated in the submission. SEC. 22. Nothing contained in this chapter shall be construed to impair, diminish, or in any manner to affect the power and authority of any 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 an award. SEC. 23. Neither party shall have power to revoke any submission mission, without made as provided in this chapter, without the consent of the other party; and if either party shall neglect to appear before the arbitrators after due notice, the arbitrators may nevertheless proceed to hear and determine the matters submitted to them, upon the evidence produced by the other party. Certain mortga Requisites to en CHAPTER 130. OF THE FORECLOSURE OF MORTGAGES BY ADVERTISEMENT. SECTION 1. Every mortgage of real estate, containing therein a power of sale, upon default being made in any condition of such mortgage, may be foreclosed by advertisement, in the cases and in the manner hereinafter specified. SEC. 2. To entitle any party to give a notice as hereinafter prescrititle party to fore bed, and to make such foreclosure, it shall be requisite, close. 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 TITLE XXIV. same has been discontinued, or that an execution upon the judgment CHAPTER 130. rendered therein has been returned unsatisfied, in whole or in part: and, 3. That the mortgage containing such power of sale has been duly recorded; and if it shall have been assigned, that all the assignments thereof shall have been recorded: Instalments to be ges, &c. 4. In cases of mortgages given to secure the payment of money by considered as instalments, each of the instalments mentioned in such mortgage after separate mortga the first, shall be taken and deemed to be, a separate and independent i Doug. Mich. mortgage, and such mortgage for each of such instalments may be R. 217. foreclosed in the same manner, and with the like effect, as if such separate mortgages were given for each of such subsequent instalments, and a redemption of any such sale by the mortgagor shall have the like effect as if the sale for such instalments had been made upon an independent prior mortgage. Notice, how giv. SEC. 3. Notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given by pub- en lishing the same for twelve successive weeks, at least once in each week, in a newspaper printed in the county where the premises intended to be sold, or some part of them are situated, if there be one; and if no newspaper be printed in such county, then such notice shall be published in a paper published at the seat of government. SEC. 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 when recorded: 3. The amount claimed to be due thereon at the date of the notice: and, 4. A description of the mortgaged premises, conforming substantially with that contained in the mortgage. What to specify Sale, how and SEC. 5. The sale shall be at public vendue, between the hour of nine o'clock in the forenoon, and the setting of the sun, at the place where made. of holding the circuit court within the county in which the premises to be sold, or some part of them, are situated, and shall be made by the person appointed for that purpose in the mortgage, or by the sheriff, under-sheriff, or a deputy sheriff of the county, to the highest bidder. SEC. 6. Such sale may be postponed from time to time, by insert- How postponed. ing 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, at the expense of the party requesting such postpone ment. separately. SEC. 7. If the mortgaged premises consist of distinct farms, tracts, Distinct tracts, or lots, they shall be sold separately, and no more farms, tracts or &c., to be sold lots shall be sold, than shall be necessary to satisfy the amount due on such mortgage, at the date of the notice of sale, with interest, and the costs and expenses allowed by law. SEC. 8. The mortgagee, his assigns, or his or their legal representa- Mortgagee, &c. tives, may, fairly and in good faith, purchase the premises so adverti- may purchase. sed, or any part thereof, at such sale. 1841, p. 175. SEC. 9. The officer or person making the sale, shall forthwith exe- 1 Paige, 52. cute and deliver to the purchaser a deed of each part of the premi- Deed to purchases separately sold, specifying therein as the consideration of such thereon, ser, indorsement TITLE XXIV. CHAPTER 130. Effect of deed, if premises not redeemed. How lands re deemed. Proceedings up. deed, the precise amount for which such parcel was sold, and shall endorse thereon the time when such deed will become operative, in case the premises are not redeemed according to law, and shall deposite the same with the register of deeds of the county in which the land is situated. SEC. 10. Unless the premises described in such deed shall be redeemed within the time limited for such redemption, as hereinafter provided, such deed shall thereupon become operative, and may be recorded, and shall vest in the grantee therein named, his heirs or assigns, all the right, title and interest which the mortgagor had at the time of the execution of the mortgage, or at any time thereafter; but no person having any valid subsisting lien upon the mortgaged premises or any part thereof, created before the lien of such mortgage took effect, shall be prejudiced by any such sale, nor shall his rights or interests be in any way affected thereby. SEC. 11. If the mortgagor, his heirs, executors, administrators, or any person lawfully claiming from or under him or them, shall, within one year from the time of such sale, redeem the premises sold, or any distinct lot or parcel thereof separately sold, by paying to the purchaser, his executors, administrators or assigns, or to the register of deeds in whose office such deed is deposited, for the benefit of such purchaser, the sum which was bid therefor, with interest from the time of the sale, at the rate of ten per cent. per annum; then such deed shall be void and of no effect. SEC. 12. Upon the payment of the sum bid for any parcel at such on redemption. sale, and interest thereon as aforesaid, to the register in whose office the deed therefor shall have been deposited; or upon delivering to such register a certificate signed and acknowledged by the person entitled to receive the same, and certified by some officer authorized to take the acknowledgment of deeds, setting forth that such sum, with interest, has been paid to such person, such register shall thereupon destroy such deed, and shall enter in the margin of the record of such mortgage, if the same shall have been recorded in his office, a memorandum that such mortgage is satisfied, in whole or in part, as the case may be. Damages for refusing to execute certificate of pay. ment, Payment of surplus to mortga or, &c. How evidence of sale perpetuated. .SEC. 13. If any person entitled to receive such redemption moneys, shall, upon payment or tender thereof to him, refuse to make and acknowledge such certificate of payment, he shall be liable to the person aggrieved thereby, in the sum of one hundred dollars damages, over and above all the actual damages sustained, to be recovered in an action on the case. SEC. 14. If, after any sale of real estate made as herein prescribed, there shall remain in the hands of the officer or other person making the sale, any surplus money, after satisfying the mortgage on which such real estate was sold; and payment of the costs and expenses of such foreclosure and sale, the surplus shall be paid over by such officer or other person, on demand, to the mortgagor, his legal representatives or assigns. SEC. 15. Any party desiring to perpetuate the evidence of any sale made in pursuance of the provisions of this chapter, may pro cure, 1. An affidavit of the publication of the notice of sale, and of any notice of postponement, to be made by the printer of the newspaper in which the same was inserted, or by some person in his employ knowing the facts: and, 2. An affidavit of the fact of any sale pursuant to such notice, to be made by the person who acted as auctioneer at the sale, stating the time and place at which the same took place, the sum bid, and the name of the purchaser. TITLE XXIV. CHAPTER 131. SEC. 16. The affidavits specified in the last preceding section, may Before whom af fidavits may be, be taken and certified by any officer authorized by law to administer taken. oaths. SEC. 17. Such affidavits shall be recorded at length by the register Affidavits to be of deeds of the county in which the premises are situated, in a book recorded. kept for the record of mortgages; and such original affidavits, the record thereof, and certified copies of such record, shall be presumptive evidence of the facts therein contained. of mortgage. SEC. 18. A note referring to the page and book where the evidence Reference in of any sale having been made under a mortgage, is recorded, shall be margin of record made by the register recording such evidence, in the margin of the record of such mortgage, if such record be in his office. CHAPTER 131. OF THE DRAINING OF SWAMPS AND OTHER LOW LANDS. board. 1839, p. 153. SECTION 1. Any person owning or possessing any swamp, marsh or other low land, who shall desire to drain such land, and who shall owner of swamp &c, may apply deem it necessary, in order thereto, that a ditch or ditches should be to township 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, he may make application in writing to the township board of the township where such marsh, swamp or other low lands shall be situated, to inquire and determine whether such marsh, swamp or other lands are a source of disease to the inhabitants, and whether the public health will be promoted by draining the same. board, and appli mons. SEC. 2. Upon such application being made to the township board, Determination, they or a majority of them shall inquire and determine and certify certificate of under their hands, whether the marsh, swamp or other low lands are cation for suma source of disease, and whether the public health will be promoted by draining the same, and if they shall certify that the same are a source of disease, and that the public health will be promoted by draining the same, the person or persons making such application may file such certificate with any justice of the peace of the township in which the lands are situated, through which any such ditch is proposed to be opened, and apply for such summons as is hereinafter specified. SEC. 3. The justice to whom such application shall be made, shall Summons to be thereupon issue a summons, directed to the sheriff or any constable of issued by justice. the same county, requiring him to summon nine reputable freeholders of such county, 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 sum |