TITLE 15. 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 Umended 1531. P 144 Postponing Sale; how 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.9 $ 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. $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; and no 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.10 $7. The mortgagee, his assigns and his or their legal representako may pur- tives, may fairly and in good faith, purchase the premises so advertised, or any part thereof, at such sale.1 Effect of salo. 11 § 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 thereof, 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 (9) 1 R. L. p. 373, § 6. (10) Ib. and act of 1822, p. 262. (11) 1 R. L. p. 375, § 10. by any sale. $ 9. An affidavit of the fact of any sale pursuant to such notice, Afidavit 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 publish 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 vits $ 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.13 ed; their of $ 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, fect." the record thereof, and certified copies of such record, shall be presumptive evidence of the facts therein contained. 13 $ 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 record 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- mortgage, 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 Ŕ. L. p. 373, § 6. (13) Ib. § 7, 8 & 9. TITLE 16. Who to apply for sum mons. Jury how summoned ; notice to owner. Duty of constable. Oath of jurors, &c. Proceedings 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. 3. 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. S1. 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 $2. The justice to whom such application shall be made, shall 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 $3. 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. $ 4. 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. jury shall personally examine the premises, and hear any reasons that TITLE 16. may be offered, in regard to the question submitted to them; and they may, if they think proper, vary the plan or dimensions of any ditch so proposed to be opened; but in such case, they shall designate on the said map, the alterations made by them.16 sition. $ 6. If, after taking all the circumstances into consideration, the Their inquijury shall be satisfied that the opening of such ditch or ditches is necessary and proper, they shall so certify by inquisition in writing; and if so satisfied, they shall further certify by such inquisition, that the benefits which will accrue to the owner of the lands, from the opening of such ditch or ditches, will or will not be equal to any damages that he will sustain thereby; and if such benefits shall be certified not to be equal to the damages, the jury shall assess the damages, which, in their judgment, will be sustained therefrom by such owner, and certify the same, in like manner. Every such inquisition shall be signed by all the jurors, and delivered to the justice.16 when to enter $7. Upon payment of the damages assessed by the jury, and the Applicant costs of such assessment, or if no damages shall have been found by on lands. them, upon payment of the costs of the proceedings, and the delivery of the certificate of the jury to the justice, it shall be lawful for the person applying for such summons, to enter, with his servants, teams, carriages, and other necessary implements, upon such lands, and then and there to cut and open such ditch or ditches as were designated on the said map, according to the plan and dimensions therein specified and adopted by the jury, not deviating materially from such dimensions.17 ditch. S8. After such ditch or ditches shall have been opened, it shall b. to clear be lawful for the said applicant, his heirs and assigns forever thereafter, from time to time, as it shall become necessary, to enter upon the lands through which such ditch or ditches shall have been opened, for the purpose of clearing out and scouring the same; and then and there to clear out and scour such ditch or ditches, in such manner as to preserve the original length, depth, and width thereof.18 injuring $ 9. Any person who shall dam up, obstruct, or in any way injure Penalty for any ditch or ditches so opened, shall be liable to pay to the person itch. owning or possessing the swamp, bog, meadow, or other low land, for the draining of which such ditch or ditches shall have been opened, double the damages that shall be assessed by the jury for such injury; and in case of a second offence by the same person, treble such damages, 19 $10. The justice before whom any proceedings shall be had under Map, &c. to this Title, shall cause the map delivered by the applicant, and the inquisition of the jury which he shall certify to have been taken before (16) Laws of 1816, p. 158, § 2. (17) Ib. § 3. (18) Ib. § 4. (19) Ib. § 5. TITLE 17. him, to be filed in the clerk's office of the town wherein the premises shall be situated, to be kept in the said office as a record of the proceedings between the parties.20 Saing, &c. in name of another. TITLE XVII. GENERAL MISCELLANEOUS PROVISIONS CONCERNING SUITS AND SEC. 1. Penalty for suing in name of another without consent. 2. Jurors and officers not to be disqualified in certain cases. 3. Fine on sheriffs, &c. for not executing process in special proceedings. 4. When fines may be imposed on jurors for default. 5. Sheriffs and other officers to attend certain juries, &c.; fine for neglect. 6. Notice of fine to be given to person fined. 7. When delinquency and fine to be certified to common pleas. 8. Proceedings to collect fine. 9. Officers empowered to take bail, &c. may administer oaths. 15. Detinue and outlawry in civil cases, abolished. 16. Trespass on the case may be brought for certain trespasses. 17. Copy of certain suggestions to be served on adverse party. 18. Truth of suggestion how to be tried, &c. 19. Party making suggestion may be non-suited, &c. 20. Cases when defendant may tender debt or damages. 21 & 22. Effect of tender, if found sufficient. 23. Tender when accepted, to be deducted from recovery, &c. 24 & 25. Proceedings to compel testimony on motions in supremecourt. 26. Discharging juries of inquiry, &c. in special cases, &c. 27. Majority of officers, &c. may act upon meeting of all. 28, 29 & 30. Proceedings to collect surplus arising from sale of taxes, paid to supervisor. 81. Particular number of days between teste and return of process. 32. Attachments against sheriffs neglecting to return certain warrants. 33. Bonds required by law, when deemed sufficient. 34. When defects therein may be amended. 35. Judgments rendered before division of a county, how executed. 36. When defendants imprisoned to be charged in execution. 37. When and how to be discharged; effect thereof. 38. Certain transcripts to be obtained from United States court in New-York. 39. To be entered in his docket by clerk of supreme court in New-York. 40. To be sent to clerks at Albany and Utica; and entered by them. 41. Transcripts from United States court at Utica, to be obtained. 42. To be transcribed and sent to Albany and New-York. 43. Such transcripts to be obtained hereafter and sent, &c. 44. Dockets in what books to be entered. 45. Expense of procuring transcripts, &c. how paid. 46. Fees for searches and copies of such transcripts. $1. Every person who shall, for vexation and trouble, or maliciously, cause or procure any other to be arrested, attached, or in any way proceeded against, by any process or proceeding at law or in equity, or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the consent of such person, or where there is no such person known, shall forfeit to the person so (20) Laws of 1816, p. 158, § 6. |
