In general.

ARTICLE VIII.

JURISDICTION OF THE PERSON.

Section 1. In general. Before any court can acquire jurisdiction over the person of the defendant, there must be some steps taken to bring him into the court. 2 Wait's Law and Prac. 11 to 15. No one can be lawfully condemned before he has had an opportunity of being heard. There is a material difference, however, between this case and that relating to the subjectmatter of the action. In the latter case we have seen that consent cannot confer jurisdiction. But a defendant may waive an irregularity in the mode of bringing him into court, or he may appear and give jurisdiction over his person by consent. 2 Wait's Law and Prac. 17 to 20. Such waiver may be express, or it may be implied from his acts, by taking subsequent steps in the action without objection to the previous irregular or void proceedings. But for all practical purposes, a single remark is sufficient, as every careful practitioner will be certain to proceed in such a manner that no valid objection can be made in relation to the regularity of the steps by which the defendant has been proceeded against for the purpose of obtaining jurisdiction over his person or property.

It may be well to mention here that in case the defendant is absent from the State, or is a non-resident, there may, in a proper case, be proceedings against his property found in this State.

ARTICLE IX.

DISQUALIFICATIONS OF JUDGES.

Section 1. In general. The law declares, in some cases, that a judge cannot sit as such on account of some matter personal to himself. Relationship to either of the parties is an instance of this kind. 2 R. S. 275, §2. So of an interest in the cause of action, or where he is a party to the action. Ib. If he decided the cause in the court below, or took part in the decision, he cannot sit in the appellate court, in review of such decision. Ib. § 3. Const., art. 6, § 8. See, also, Real v. People, 42 N. Y. (3 Hand) 270; 8 Abb. N. S. 314.

In general.

Where a judge is disqualified to sit in a cause, by reason of consanguinity to one of the parties, he cannot sit, even by consent of both parties, and if he does, the judgment will be vacated. Oakley v. Aspinwall, 3 N. Y. (3 Comst.) 547. See 2 Wait's Law and Prac. 21 to 28.

ARTICLE X.

JURISDICTION IN SPECIAL CASES.

Section 1. In general. There are numerous cases of actions and special proceedings in which jurisdiction is expressly conferred by statute Many of these cases are noticed in that part of this work which treats of the jurisdiction of the supreme court.

ARTICLE XI.

RAISING OR WAIVING OBJECTION.

Section 1. In general. Where the court has no jurisdiction over the subject-matter of the action, an objection may be taken at any time; but, where the objection relates to the person of the defendant, he may waive any irregularity in the mode of bringing him into court; and, when once waived, the jurisdiction of the court over his person will be complete. Such waiver may be express or implied, and if the defendant proceeds in the action by pleading, or taking other steps therein, his conduct will amount to a waiver of all objections of that kind; and, if a party would avail himself of such objections, he must act promptly in raising them, and be careful not to waive them by any subsequent acts on his part. See 2 Wait's Law and Prac. 19, 20.

CHAPTER VI.

TIME OF COMMENCING ACTIONS.

ARTICLE I.

OBJECT OF LIMITING THE TIME OF COMMENCING ACTIONS.

Section 1. In general. The necessity of limiting the time within which an action may be brought, arises from the inconveniences and uncertainty attendant upon the legal and equitable adjustment of rights, betwixt parties, in cases where claims have become stale, and titles have long remained open. It is the policy of the law to discourage litigations, and in furtherance of this policy it requires a creditor to bring his action within a reasonable and prescribed period or to take the risk of losing his demand; for, an unlimited permission to litigate claims of long standing would forever open the door for frauds and perjuries. Besides which, general policy requires for the sake of mankind at large, that the person who has long enjoyed, and who has the credit attributed to long enjoyment, should not be lightly disturbed. Lord Eldon, Hayes' Introd. 1, 223: The age of a claim is always a proper element for consideration in determining whether it is a legal, subsisting obligation. A creditor usually demands, and a debtor generally pays, a valid debt, and any other conduct is exceptional, and creditors rarely neglect to enforce the payment of debts which can be collected. If claims are permitted to run a very long time without enforcement or demand of payment, the law will presume their payment or extinction in some legal manner. It is not important to notice the common-law rule as to the time when this presumption attached, as there has long been a statute defining and declaring the times for barring actions upon demands.

This statute is considered one of repose, and not of presumption. If it were a mere statutory presumption of payment, then any act which rebutted this presumption would continue or revive the debt; but, if considered to be a statute of repose, then the debt cannot be revived except by a voluntary new promise or some equivalent act.

The People v. Gilid. 472; People v. White, 2 Hill, 59;

Section 2. No limitations as to time of commencing actions at common law. At common law, there was no fixed or stated time within which an action must be brought, although after a great lapse of time the claim or demand might be presumed to have been paid or satisfied. Limitations are now created by and derive their authority from statute. bert, 18 Johns. 228; Wilcox v. Fitch, 20 Herkimer, 4 Cow. 345; United States v. Receivership of Columbian Marine Insurance Co., 3 Keyes, 123, 125. The people, however, are not bound by the statute unless expressly named. Ib. The English statute of limitations, 21 Jac. I, ch. 16, with many modifications, has been generally re-enacted in the States of the Union in which the principles of the common law prevail, and forms the basis of most of the existing provisions on the subject in the several States. Such was the case in this State until the adoption of the Code in 1848.

Section 3. How far the Code repealed existing statutes of limitation: Where right of action accrued since adoption of Code. All statutes relating to the limitation of actions, existing at the adoption of the Code, were repealed by that instrument, except so far as they related to "actions already commenced, or where the right of action had already accrued," and in their stead were substituted the provisions to be found under Title II of the Code. See Code, § 73.

Section 4. Where right of action accrued before adoption. The provisions of the above title, however, did not extend to "actions already commenced or where the right of action had already accrued," the statutes then in force being applicable in all such cases, according to the subject of the action, and without regard to the form. Code, § 73. Where the cause of action accrued before the enactment of the Code, no new promise in writing is necessary; and any new promise which would have been valid under the former statute will be equally valid under the Code. Van Alen v. Felts, 1 Keyes, 332; Coe v. Mason, 41 Barb. 612; Lansing v. Blair, 43 N. Y. (4 Hand) 48.

Section 5. Where different limitation is prescribed by statute. In addition to the provisions of the Code, relating to limitation of actions embraced under Title II, there are a few other special statutory provisions, which will hereafter be noticed more fully. Section 6. When the statute commences to run. The time within which an action may be brought, commences to run "after the

cause of action shall have accrued" (Code, § 74), but the day on which the right of action accrues is to be excluded in computing time within which an action is to be commenced. Cornell v. Moulton, 3 Denio, 12; McGraw v. Walker, 2 Hilt. 404; Smith v. Aylesworth, 40 Barb. 104; Oothout v. Ballard, 41 id. 33; Etheridge v. Ladd, 44 id. 73; Hodge v. Adee, 2 Lans. 314.

Section 7. Where plaintiff is under a disability. If a person entitled to commence an action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or services out of the same, be at the time such title shall first descend or accrue, either within the age of twentyone years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offense for a term less than for life, the time during which such disability shall continue shall not be deemed any portion of the time limited for the commencement of such action, or the making of such entry or defense; but such action may be commenced, or entry or defense made, after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled, who shall die under such disability; but such action shall not be commenced, or entry or defense made, after that period. Code, § 88.

The disability must exist when the right of action accrued ; and where two or more disabilities co-exist at the time the right of action accrues, the limitation shall not attach until they all be removed. Code, §§ 106, 107. The statute of limitations does not commence to run against an infant cestui que trust, although her right to foreclose a mortgage accrues to her more than ten years before she becomes of age. Bucklin v. Bucklin, 1 Keyes, 141.

Section 8. Where defendant is absent from State. The operation of the provisions of the statute for the limitation of actions is suspended in case the defendant be absent from the State when the cause of action accrued, or in case he depart from and take up his residence out of the State after the right of action shall have accrued, or remain continuously absent therefrom for the space of one year or more. Code, § 100.

The provision that the statute shall not run, in case the defendant be absent when the cause of action accrued, is equally applicable to non-residents as to citizens going out of the State. Car penter v. Wells, 21 Barb. 593; Power v. Hathaway, 43 id. 214.