Real Estate. (5155.) SEC. 2. No such submission shall be made respecting What claims to the claim of any person to any estate, in fee or for life, in real 5 Metcalf, 363. estate; but any claim to an interest for a term of years, or for one year or less, in real estate, and controversies respecting the partition of lands between joint tenants or tenants in common, or concerning the boundaries of lands, or concerning the admeasurement of dower, may be so submitted to arbitration. acknowledged. (5156.) SEC. 3. Every such submission shall be acknow-Subreission to be ledged by the parties signing the same, before some officer 1 Doug. Mich., authorized to take the acknowledgment of deeds, who shall certify such acknowledgment thereon. 106. hearing. (5157.) SEC. 4. The arbitrators so selected shall appoint a Time, etc., of time and place for the hearing, and shall adjourn the same from time to time, as may be necessary; and on the application of either party, and for good cause, they may postpone such hearing to any time not extending beyond the day fixed in such submission for rendering their award. tors, etc. (5158.) SEC. 5. Before proceeding to hear any testimony, Oath of Arbitrathe arbitrators shall be sworn faithfully and fairly to hear and examine the matters in controversy submitted to them, and to make a just award thereon according to the best of their understanding, and either of such arbitrators shall have power to administer all necessary oaths to witnesses examined before them. compelled to appear and testify. (5159.) SEC. 6. Witnesses may be compelled to appear before witnesses may be such arbitrators, by subpoenas, to be issued by any Justice of the Peace, in the same manner and with the like effect, and subject to the same penalties for disobedience, or for refusing to be sworn or to testify, as in cases of trials before Justices of the Peace. meet; majority 1 Gilman, 102. (5160.) SEC. 7. All the arbitrators must meet together, and Arbitrators all to hear the proofs and allegations of the parties; but an award may award. by a majority of them shall be valid, unless the concurrence of all the arbitrators be expressly required in the submission. (5161.) SEC. 8. Upon such submission, and the award made confirming in pursuance thereof, being filed with the Clerk of the Court 5 Wend., 402. designated in such submission, within one year after the Metcalf, 287. making of the award, such Court shall, by rule in open Court, confirm such award, unless the same be vacated or modified, or a decision thereon be postponed, as herein provided. (5162.) SEC. 9. Any party complaining of such award, may award. 6 do., 520. 7 do. 316. 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. 5 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, 389. 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. judgment, etc. (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 6 Pick., 213. 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 judg ment; 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. 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 Costs on vacating award. Writ of Error on order vacating award. Proceedings on reversal. Construction of this Chapter. can revoke sub consent, etc. may be proceeded against in the manner provided by law in such cases. (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 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 tisement. 1844, p. 38. (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. (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 title party to fore (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 1538, 499; Laws of 1839, 227, 228; 1840, 145; 1841, 45, 134, 150, 175; 1842, 29, 135; 1843, 155; 1844, 38. |