This case involves the jurisdiction of the County Court under sections 29-32 of the Code of Procedure.
The facts of the case are, that the land of the plaintiff, then an infant, having been sold, and one John Balde having been appointed special guardian, the defendants, Snell and Petrie, executed, as Balde's sureties, a bond to the plaintiff, conditioned for the faithful discharge of Balde's duties, and "for the accounting for all moneys according to the order of *Page 299 any court having authority to give directions in the premises, and for the observance of the orders and directions of the court," etc. In July, 1866, Balde was cited to account, and pay over to plaintiff, then of age, in the Herkimer County Court. He appeared, and consented to the entry of the final order passing his accounts, and this, if valid, fixed his indebtedness, and the liability of the defendants' sureties. These proceedings and order appear on their face to have been taken at a regular term of the County Court. On cross-examination of a witness, it appeared that none of the hearings took place at a regular or adjourned term of the court.
The language of the Code of Procedure is as follows: "Section 31. The County Court is always open for the transaction of any business, for which no notice is required to be given to an opposing party." The present proceeding, through statutory in its nature, appertains to the equity powers of the court. By the common law, an infant's land cannot be sold by an order of any court, but only through the agency of a special or general act of the legislature. (Baker v. Lorillard, 4 N.Y., 257; Brevoort v. Grace, 53 id., 245.) The statute law confers upon the Court of Chancery, the power to order a sale. (2 R.S., 149.) And section 30 of the Code, confers upon the County Court the like power, where the lands are within the county. The County Court, in exercising this provision, must have the same general powers within the county as appertain to the Court of Chancery, and the provisions of the Revised Statutes will be applicable as well as the general rules of equity jurisprudence.
The rule which requires a court of common law to do business at stated terms, has no application to the Court of Chancery. In the common law courts, the regular terms were derived from canonical prohibitions, which "exempted certain holy seasons from the turmoil of forensic litigations," such as the time of Advent and Christmas, giving rise to the winter vacation; the time of Lent and Easter, giving rise to that of the spring; the time of Pentecost, from which was derived *Page 300 the third vacation. There was, finally, the long vacation between mid-summer and Michaelmas, for the season of harvest. In this way, there came to be four well known terms of court: St. Hilary, Easter, Holy Trinity and St. Michael. Strict judicial business could only be transacted at these terms, though, after a time, many incidental matters were transacted out of court. (3 Blackstone's Com., 275, 279; Spelman's Origin of Terms,passim.) The terms of court, thus, have a purely historical character, and there is no reason, in the nature of judicial business, why they should exist, nor why such business should be confined to them.
In equity courts, no such rules have ever prevailed. A chancellor could do business out of term as well as in term. Under our present law, though statutes provide for regular terms of equity courts, it is well settled, that the power to do business out of term still continues to a certain extent. (Wilcox v. Wilcox, 14 N.Y., 575.) These views show that there is no rule of public policy, requiring equity courts to do business in term time, whatever may be said as to acts done in the courts of common law. There is a reason of practical expediency for a distinction between the two courts, growing out of their business, of the attendance of jurymen, of the greater public interest in trials in courts of law, and of the more scientific and abstract nature of the questions submitted to equity courts. The section of the Code under consideration must, accordingly, be interpreted without any influence from a supposed public policy.
The guardian in the present case, is not to be regarded as an "opposing party." The statute authorizing the sale makes the infant a ward of court. (2 R.S., 195, § 179.) The guardian in that case is an officer of the court. (Wellesley v. Duke ofBeaufort, 2 Russell, 20; 2 Story's Eq. Jur., § 1338.) The court has full power, of its own motion, to call the guardian to account, without any proceedings on the infant's part. In fact, an accounting is simply a stage in the proceedings appertaining to the sale. The court having ordered the sale, intrusts to one of its own officers a detailed branch of *Page 301 the business, and calls upon him from time to time to make accounts. The statute provides, that the court may require him to make "periodical" accounts, which would include the final accounting. It would have this power, without the express clause of the statute, as incidental to the sale and security of its proceeds. This is not in itself an adverse or hostile proceeding. This section of the Code does not refer merely to an opposite party, but to an opposing party. There must be a contest, a litigation to bring this clause into operation. It points to a well recognized distinction between contested and non-contested business. It simply means, that non-contested business may be done out of court, while the litigated business should be transacted in term time. But even if the section of the Code is applicable to the case at bar, its provisions may be waived. As there is no element of public policy in the rule, it must have been introduced simply for the benefit of an "opposing party." He may waive it so as to fail to be an opposing party, or may so act as to be estopped from insisting upon its application to his case. In the present instance, he is estopped, as he has executed a stipulation that the court was regularly constituted. It is not claimed that consent can confer jurisdiction, so as to create a court which, under no circumstances, would have jurisdiction without that consent. But, where there is an existing court, which, under one state of facts would have jurisdiction, and under another would not, a party may so act as to be estopped from denying the existence of the requisite fact. The principle may be illustrated by section 33 of the Code, giving jurisdiction to city courts over a corporation, which keeps within the city "an office for the transaction of business." The fact of keeping an office may be proved like any other fact in a court of justice, and one of the legitimate modes of proof is to show that the defendant is estopped from denying the fact. Suppose that a corporation defendant had admitted in the course of a trial that it kept such an office, would it not be bound by the admission? *Page 302
If, in the present case, it be assumed that the court will have jurisdiction if the facts show that the act be done in term time, and will not, if it occur out of term, the defendant may so conduct himself as to be estopped from showing that the act was not done in term time. He proved by oral evidence that it was not then done as a matter of fact; is it not equally legitimate to show, under another rule of evidence, that he is precluded from availing himself of this oral testimony? There is abundant authority for this proposition. In Burckle v. Eckhart (3 N Y, 132), it is said that where a particular matter, essential to jurisdiction, is averred by one party, it may be admitted or denied by the other party. When denied, it must be determined by the court upon proof, like any other question of fact. It is the matter of which the record and proof are evidence, which is the ground of jurisdiction. The rule is well stated in Davis v.Packard (6 Wend., 331, 333) and Chichester v. Donegal (Maddock Geldart, 375). In these cases, it is held that the admission in court of a fact necessary to confer jurisdiction, precludes a party from subsequently denying it. This is applied by Chancellor WALWORTH, in Davis v. Packard, to cases where jurisdiction is limited to particular classes of persons, particular subject-matter, or to the subject of the suit, or to the parties only under special circumstances. In 1 Greenleaf on Evidence (§ 210), the rule is laid down that in some cases connected with the administration of public justice, an admission is held conclusive on grounds of public policy. Robinson vSearson (6 Manning Granger, 762), is in point. By a statute establishing an inferior court, exclusive jurisdiction was given to it in cases involving five pounds or less, where a defendant was trading within a given district. A. and B., being jointly liable, A. represented to the plaintiff before action brought, that B. had left the district and ceased trading there. An action was brought in the Superior Court accordingly, and it was held that B. was estopped by his statement from showing that the case should have been brought in the inferior court. (See, also,Jefferies v. Watts, 4 Bos. *Page 303 Pull. [1 New], 153.) That public policy demands the application of this rule in the present case is manifest, otherwise, the process of a court may be trifled with, and its time taken up to no purpose. The interests of justice require that a party who has, in a legal proceeding, admitted a fact necessary to confer jurisdiction, should be held to the ordinary consequences attending a judicial admission, and be estopped from denying its ordinary legal effect. (1 Greenleaf on Evidence, § 205.)
The judgment of the court below should be affirmed.