Grounds of va- move the Court designated in such submission, to vacate the same, upon either of the following grounds: cating award. 10 Wend., 589. Cowen, 425. 3 McLean, 509. 4 Denio, 194. Grounds of cor- Motions to vacate or modify award. 1 Paige, 293. Proceedings by Court thereon. 1. That such award was procured by corruption, fraud, or other undue means; 2. That there was evident partiality or corruption in the arbitrators, or either of them; 3. That the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear any evidence, pertinent and material to the controversy, or any other misbehavior by which the rights of any party shall have been prejudiced; 4. That the arbitrators exceeded their powers, or that they so imperfectly executed them, that a mutual, final and definite award on the subject matter submitted, was not made. (5163.) SEC. 10. Any party to such submission, may also move the Court designated therein to modify or correct such award, in the following cases: 1. Where there is an evident miscalculation of figures, or an evident 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. (5164.) SEC. 11. Every such application to vacate or modify an award, shall be made to the Court designated in the submission, at the next term after the publication of such award, upon due notice to the adverse 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. (5165.) SEC. 12. On such application, the Court may vacate 1 Cushing, 289. such award in any of the cases hereinbefore specified, and may, in their discretion, direct a rehearing 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. (5166.) SEC. 13. Upon such award being confirmed or Judgment. modified, the Court 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. 4 Denio, 250. (5167.) SEC. 14. The costs of the proceedings shall be taxed Costs.. as in suits, 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. ment. (5168.) SEC. 15. A record of such judgment shall be made, Record of judg commencing with a memorandum reciting the submission; then stating the hearing 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. ment; Execution. (5169.) SEC. 16. Such record shall be filed and docketed, Effect of judg as records of judgments in other cases; shall have the same force and effect in all 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. (5170.) SEC. 17. When any writ of error shall be brought Writ of error on on any such judgment rendered in a Circuit Court, certified' copies of the original affidavits 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. judgment, etc. 5 Pick., 213. judgments (5171.) SEC. 18. When by such judgment, any party shall Enforcing certain 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 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 award. may be proceeded against in the manner provided by law in such cases. Costs on vacating (5172.) 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 Writ of Error on order vacating award. Proceedings on reversal. Construction of this Chapter. can revoke sub consent, etc. cases. (5173.) SEC. 20. Upon every such order vacating an award, made by any 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. (5174.) 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. (5175.) 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. Neither party (5176.) SEC. 23. Neither party shall have power to revoke mission without any submission 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. ges may be fore (5177.) SECTION 1. Every mortgage of real estate, containing Certain Mortga therein a power of sale, upon default being made in any con- closed by adver dition of such mortgage, may be foreclosed by advertisement, 1840, p. 145. in the cases and in the manner hereinafter specified. tisement. 1844, p. 38. title party to fore (5178.) SEC. 2. To entitle any party to give a notice as Requisites to enhereinafter prescribed, and to make such foreclosure, it shall closure. 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. (a) For prior Statutes relative to the Foreclosure of Mortgages by advertisement, see Revision of 1827, p. 273; Laws of 1831, 33; 1832, 36; Revision of 1833, 283; Laws of 1837, 143, 315; R. S. of 1838, 499; Laws of 1839, 227, 228; 1840, 145; 1841, 45, 134, 150, 175; 1842, 29, 135; 1843, 155; 1844, 38. Instalments to be considered as ges, etc. 217. instituted, that the same has been discontinued, or that an execution upon the judgment 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; 4. In cases of mortgages given to secure the payment of separate Mortga money by instalments, each of the instalments mentioned in 1 Doug. Mich. R., such mortgage after the first, shall be taken and deemed to be a separate and independent mortgage, and such mortgage for each of such instalments may be 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 of Mort- 7 do 46. What notice to specify. Sale, how and where made, and by whom. 1 Mich. Rep., 338. (5179.) SEC. 3. Notice that said mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given by publishing the same for twelve successive weeks, at least once in each week, in a newspaper printed in the county where the premises included in the mortgage and 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 nearest thereto. (b) (5180.) 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. (5181.) 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 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 pur (b) As Amended by "An Act to Amend Section Three, Chapter One Hundred and Thirty, Title Twenty Four of the Revised Statutes, relative to the Foreclosure of Mortgages by advertisement' Approved and in force March 22, 1851. Laws of 1851, p. 44. |