MANDAMUS. The Statute of Limitations never begins to run against an obligation to pay a sum of money or perform a duty until a right of action has accrued upon the demand sought to be barred. The rule is undoubted, and has long been settled, that whenever the cause of action commences by a request, or upon any other conditions precedent, the statute can not operate as a bar if the action be commenced within six years after the request was made or the condition was performed, although it be ten years after the contract was entered into or the promise made. [Blanch. on Lim., 105; 3 Penn., 149.] Supreme Ct., 1861, Howland a. Edmonds, 33 Barb., 440. Compare Bell a. Yates, Ib., 627; Merritt a. Todd, 23 N. Y., 28. 2. That the rule in respect to partial payments remains the same as before the Code, that is, they must be made under circumstances to warrant a finding, as a question of fact, that the debtor intended to recognize as subsisting, the debt in question, and which he was willing to pay. [11 N. Y., 185.] Supreme Ct., 1861, Pickett a. King, 34 Barb., 193. 3. Temporary absence from the State, without a change of residence, is not excepted by the Statute of Limitations, and does not prevent the running of the statute during such absence. Supreme Ct., 1861, Kickok a. Bliss, 34 Barb., 321. 4. An action brought to charge defendants, as trustees of a corporation organized under Laws of 1848, ch. 40,-authorizing the formation of corporations for manufacturing, mining, mechanical, or chemical purposes, with a debt of the company, on account of a failure of the company to file the annual report required by section 12 of that act to be filed within twenty days from January 1st in each year, is an action upon a statute for a penalty or forfeiture given to the party aggrieved, within the meaning of subdivision 2 of section 92 of the Code, and must be commenced within three years. N. Y. Superior Ct., 1861, Merchants' Bank a. Bliss, Ante, 225. AMENDMENT; ANSWER, 6. MANDAMUS. 1. A mandamus cannot be granted when a remedy may be obtained in the premises by action. Supreme Ct., 1862, People a. Wood, Ante, 374. 2. A mandamus will be granted to compel the performance of an official duty enjoined by statute; but the act or duty so to be enforced, must be the very act or duty enjoined by the statute. Supreme Ct., Sp. T 1861, People a. Commissioners of Emigration, 22 How. Pr., 291. MANDAMUS. 3. That the granting of a mandamus is not a mere matter of discretion; but a person from whom a right is withheld which can only be enforced by a writ of mandamus, is as positively entitled to that remedy, when he presents a proper case, as any other suitor is entitled to his appropriate remedy. Supreme Ct., 1862, People a. Supervisors of Richmond, 22 How. Pr., 275; affirming S. C., 21 Ib., 335. 4. The fact that funds are not in the county treasury to meet expenses necessarily incurred by a county officer, is no reason why the Board of Supervisors should not audit such an account, though it might necessarily delay the payment. They may be compelled to do so by mandamus. Supreme Ct., 1861, People a. Supervisors of N. Y., 22 How. Pr., 71; affirming S. C., 21 Ib., 322. 5. The law provides for the action of the Board of Supervisors in a judicial character, as deciding between the claimant and the county; and when proof is presented of the propriety of the claim, it also contemplates a fair decision upon the accounts thus presented. When this is done, and items are honestly rejected, the court does not interfere by issuing the writ of mandamus. But when the Board of Supervisors refuse to examine the accounts, for some cause other than errors in the accounts, or want of proof as to the items, then the writ may be properly issued to compel the board to proceed with an examination and auditing of the accounts. Supreme Ct., Sp. T., 1861, People a. Supervisors of N. Y., 21 How. Pr., 322; affirmed, S. C., 22 Ib., 71. 6. Where the relator, a boatman of the health officer of the port of New York, whose duty it was to board vessels and remove sick persons to the marine and lower hospitals, under the direction of the health officer, applied for a mandamus to compel the Commissioners of Emigration to furnish him with a house within the quarantine inclosure or elsewhere, and to pay him for the expense incurred for the occupation of a house during three years preceding his application, it appearing that the quarantine grounds were owned by the commissioners in trust for the State, and that the house previously furnished to the relator, with the other quarantine buildings, had been destroyed by fire,Held, 1. That there was too much doubt whether the relator was an employee of the Marine Hospital, within the meaning of the Laws of 1853, ch. 224, § 7,-which requires all officers and employees of the Marine Hospital, except chaplains, to reside within the quarantine inclosure, and directs the Commissioners of Emigration to furnish the accommodations therefor,-to authorize the issuing of the mandamus; and conceding that the relator was such employee, 2. That he could not by his own act create a contract on the part of the MECHANIC'S LIEN. much less a statutory duty; and, 3. That the quarantine buildings not having been erected by the commissioners, they were not required to rebuild them in the absence of any new statutory direction. Supreme Ct., Sp. T., 1861, People a. Commissioners of Emigration, 22 How. Pr., 291. MANUFACTURING CORPORATIONS. 1. Quarterly rent agreed to be paid for the use of premises for one year, -Held, a debt contracted to be paid within a year, under the statute rendering stockholders in manufacturing corporations liable for such debts in certain cases. Per BRADY, J. N. Y. Com. Pl., 1861, Lewis a. Ryder, Ante, 1. 2. A judgment against a corporation, disclosing the claim upon which it was based, is a debt of the corporation within the statute, and is to be received as prima-facie evidence in an action against the stockholder on his personal liability. Ib. 3. Who are liable as stockholders. Burr a. Wilcox, 6 Bosw., 198. 4. Of the cases in which trustees are exonerated from liability as such by fraud in inducing them to act, and by their resignations. Squires a. Brown, 22 How. Pr., 35. 5. No contribution between directors, some of whom have been compelled to pay a debt of the company. Andrews a. Murray, 33 Barb., 354. LIMITATIONS, 4. MECHANIC'S LIEN. 1. Chapter 402 of the Laws of 1854,-which provides a method of securing a lien in favor of any person performing labor in erecting, altering, or repairing any house, or furnishing materials therefor, in certain counties specified in the act, and made applicable to all the counties in the State, except New York and Erie, by Laws of 1858, ch. 204,—does not apply to the city of Brooklyn. Supreme Ct., Sp. T., 1861, Rafter a. Sullivan, Ante, 262. 2. To create a lien under Laws of 1853, ch. 335,-providing for the better security of mechanics and others erecting buildings, performing labor, or furnishing materials therefor in the county of Kings,-the notice required by that act must be filed with the county clerk, and a copy thereof served upon the owner, as specified in section 4 of that act. Ib. 3. Where two defendants had made a joint contract with a builder for the erection of two houses, one to be placed on a lot owned in severalty MOTIONS AND ORDERS. by one defendant, and the other on another lot, owned in like manner by the other defendant; and the plaintiff, a mechanic employed by the contractor, complied with the provisions of Laws of 1830, ch. 330,enabling a mechanic, who has performed work towards the erection, construction, or finishing of any building in the city of New York, to procure a lien upon such building,-and the contractor, on being notified, had not disputed the account,-Held, that the defendants were jointly liable to the plaintiff for the price of his labor. Ct. of Appeals, 1850, Mandeville a. Reed, Ante, 173. 4. It seems, that it would be sufficient (under Laws of 1830, ch. 330) for a mechanic, in order to acquire the right as against the joint-owners of a building, to be paid the sum due him, out of the fund due or to become due from them to the contractor, to deliver the account attested, as required by the statute, to either of such joint-owners. Ib. ASSIGNMENT FOR BENEFIT OF CREDITORS, 1. MORTGAGE. The mortgagee in possession is to be charged with the rents and profits of the premises, and credited for payments for repairs, assessments, and taxes; but is not compelled to pay the gross nominal rents where there has been no negligence in their collection. Supreme Ct., 1861, Walsh a. Rutgers Fire Ins. Co., Ante, 33. FORECLOSURE. MOTIONS AND ORDERS. 1. Where a judgment has been entered without jurisdiction, and execution, in form issued against a defendant, he has a right to ask that the unauthorized judgment against him should be expunged from the records of the court; and as an execution has been issued without authority, which directs a levy upon any property owned by him jointly with the other defendant, may ask the court to set aside its process thus wrongfully issued, without showing that he may sustain actual injury. It is sufficient that the judgment and final process against an individual are unauthorized, to justify an application to set them aside. Supreme Ct., Sp. T., 1861, Lambert a. Converse, 22 How. Pr., 265. 2. If the plaintiffs in the judgment have levied upon property as the joint property of the defendants in the execution, they are estopped MOTIONS AND ORDERS. from saying upon the motion, that the defendants have no interest in the property. Ib. 3. The objection that an action is commenced without authority should be taken on motion, and not by answer. Supreme Ct., Chambers, 1861, Commissioners of Excise a. Purdy, Ante, 434. 4. Whenever funds converted into cash are held by a sheriff, receiver, or other officer or trustee, any one of the claimants of such fund may move, upon notice to the other parties interested, and to the officer holding the funds, for an order directing their payment. Supreme Ct., 1861, Artisans' Bank a. Treadwell, 34 Barb., 553. 5. Notice of motion to strike a cause from the calendar, for not serving copies of the case, cannot be given before the time to file the case has expired; but, on such a notice, the appellant should appear to oppose the motion, and if he does not, he cannot have costs of his motion to set aside the order granted thereon. N. Y. Com. Pl., 1861, Donohue a. Hicks, 21 How. Pr., 438. 6. A delay of seven years, by an attorney, before moving to set aside a satisfaction of a judgment, and to enforce his lien for costs,-Held, fatal to his application. Supreme Ct., Sp. T., 1861, Winans a. Mason, 33 Barb., 522; S. Č., 21 How. Pr., 153. 7. A motion founded on irregularity cannot be sustained, where the irregularity complained of is not specified in the notice. Supreme Ct., Sp. T., 1859, Selover a. Forbes, 22 How. Pr., 477. 8. A motion to set aside a summons for irregularity will be denied with costs, and without leave to renew, where the notice of motion does not specify the grounds of the motion, or in what the irregularity consists. Supreme Ct., Sp. T., 1857, Perkins a. Mead, 22 How. Pr., 476. 9. An objection that a motion is noticed to strike out several defences as frivolous and also as sham, without specifying which defence is moved as sham and which as frivolous, is untenable. It is the better practice to state in the notice on what ground the party applies. Supreme Ct., 1861, Bailey a. Lane, Ante, 354. 10. Where a referee stated facts to a party in respect to an irregularity in his report, but declined to make affidavit to them unless they should be denied by the other party, and the former moved against the irregularity upon affidavits stating such information,-Held, that this was sufficient proof of the facts to put the other party to a denial. Supreme Ct., Sp. T., 1861, Shearman a. Justice, 22 How. Pr., 241. 11. A motion for double costs may be founded upon the case and exceptions, on which a motion for a new trial was heard. After a case or exceptions has been settled, it is filed with the clerk, and becomes a record of the court; and it may be taken in the further progress of the |