CONSCIENTIA DICITUR A CON ET SCIO, QUASI SCIRE CUM DEO. A Latin phrase meaning "Conscience is called from con and scio, to know, as it were, with God.'' 75 CONSCIENTIA LEGALIS E LEGE FUNDA TUR.76 CONSCIENTIA LEGI NUNQUAM CONTRA VENIT." CONSCIENTIA LEGIS EX LEGE PENDET.78 CONSCIENTIA REI ALIENI. In Scotch law, knowledge of another's property;79 knowledge that a thing is not one's own, but belongs to another. He who has this knowledge, and retains possession, is chargeable with "violent profits," so called be cause due on the tenant's forcible or unwarrantable retaining the possession after he ought to have removed.80 CONSCIENTIOUS BELIEF. A term which has been interpreted to be synonymous with belief.81 CONSCIENTIOUSLY. The term is one of quality rather than of quantity,82 meaning sincerely, honestly 84 89 those rights? Simply a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or to hold any opinion whatever on the subject of religion; and to do, or to forbear to do, any act, for conscience sake, the doing or forbearing of which is not prejudicial to the public weal"). See also Conscience ante p 511 note 61 [b]. 75. Black L. D. 76. A maxim meaning "Legal conscience is founded upon the law." Morgan Leg. Max. 77. A maxim meaning "Conscience never contravenes the law." Morgan Leg. Max. 78. A maxim meaning "The conscience of the law depends upon the law." Morgan Leg. Max. 79. Black L. D. 80. Black L. D. See Violent Profits. 81. Regan v. State, 87 Miss. 422, 428, 39 S 1002. 82. Hammond v. State, 74 Miss. 214, 219, 21 S 149; Burt v. State, 72 Miss. 408, 412, 16 S 342, 48 AmSR 563; Orr v. State, (Miss.) 18 S 118. 83. Burt v. State, 72 Miss. 408, 412, 16 S 342, 48 AmSR 563. [a] "Beyond a reasonable doubt" distinguished. It has been held that "conscientiously" in a charge in respect to the guilt or innocence of an accused person is inapt and erroneous and is not a proper substitute for the expression "beyond a reasonable doubt," the court saying: "One may conscientiously'-that is, sincerely, honestly-believe, having reference to the quality of his belief, a thing to be true, which he does not, having reference to the strength or degree of his belief, believe beyond a reasonable doubt." Burt v. State. 72 Miss. 408, 412, 16 S 342, 48 AmSR 563. 84-89. Burt v. State, 72 Miss. 408, 412, 18 S 342, 48 AmSR 563. 90. Webster Int. D. [a] "Conscious knowledge."-It has been held that this is a vague and indefinite phrase, and in an application for a certificate of reasonable doubt of the conviction of a policeman for neglect of duty in failing to arrest a woman for keeping a house of ill fame the court said: "The learned trial judge stated . . . to the jury as follows: 'It is the conscious knowledge that such a house was a disorderly house, knowing it to be such; and however that knowledge was conveyed to him, or however that knowledge was acquired by him, if he did have that knowledge, becomes material, if you find as a fact on this evidence that he had knowledge that that was a house of ill fame.' The learned trial judge thus instructed the jury that they could [12 C. J.-33] 83 92 CONSCIOUS. Mentally awake;90 physically active or acute;91 in a state of consciousness." CONSCRIPT.93 One taken by lot from the conscription or enrollment list;94 one compelled to serve as a soldier or sailor.95 CONSCRIPTION." .98 99 Compulsory enrollment of men (usually in fixed numbers and of fixed ages) for military service, practiced by the Romans and from early times in France and other European countries; drafting into the military service of the state; compulsory service falling upon all male subjects evenly, within or under certain specified ages; being taken by the conscript officer, and placed in the conscript service.1 În its popular sense, the term means a finished, complete enrollment of the soldier in the public service;2 not simply the extension of the law so as to embrace him.3 CONSECRATIO EST PERIODUS ELECTIONIS; ELECTIO EST PRÆANBULA CONSECRATIONIS.4 5-7 CONSECUTIVE. Uninterrupted in course or succession;5 succeeding one another in a regular find that the defendant possessed | forgive them; for they know not what he termed a 'conscious knowl- what they do.' Clearly, the Jews edge' of the character of the house, knew well that they were crucifying though he did not acquire it by Jesus, but their darkened minds either hearing or seeing. I am at a were unconscious of the great crime loss over this. What is this 'con- they were committing." Brown v. scious knowledge' that one may get Com., 78 Pa. 122, 128. possessed of without the aid of the senses? Such an inquiry seems to lead us into the occult realm and mysteries of psychology." Peo. v. Glennon, 37 Misc. 1, 4, 74 NYS 794. [b] "Conscious suffering." It has been held that where an employee, after catching his foot in attempting to descend from a car, was dragged one hundred and eighty feet in a few seconds before being killed, there was a period of "conscious suffering" within the meaning of the term as used in an Employers' Liability Act allowing recovery where an employee is instantly killed or dies without "conscious suffering" as the result of the employer's negligence, and that an action by the next of kin could not be maintained. Martin v. Boston, etc., R. Co., 175 Mass. 502, 504, 56 NE 719. See also Knight v. Overman Wheel Co., 174 Mass. 455, 463, 54 NE 890 (holding that if an injured person remains conscious after the injury, even for a short time only, it is a reasonable conclusion that he lived in a state of "conscious suffering" within the meaning of the same statute). [c] "Conscious of what he is doing."-A charge of the lower court as follows: "If he (the prisoner) had power of mind enough to be conscious of what he was doing at the time, then he was responsible to the law for that act," was held not to be error, the court, per Agnew, C. J., saying: "It is contended this language was incorrect, and was liable to mislead the jury, because the prisoner might be conscious of what act he was doing, and yet, in consequence of mental disability or disease, be incapable of refraining from its commission. But the charge has a plain English meaning, referring to the nature of the act, and when taken in connection with other parts of the charge, this portion is not susceptible of misconstruction. All the judge said referred plainly, not to the mere act, but to the prisoner's consciousness of what he did as a crime. The phrase 'conscious of what he was doing.' is idiomatic, and is understood to mean the real nature and true character of the act as a crime, and not to the mere act itself. As used by the judge in connection with what else he said, it was not contradictory or misleading. A memorable instance of this idiomatic use of the word what is found in the language of our Saviour on the cross, when he said, 'Father, 91. 92. Webster Int. D. Webster Int. D. 93. See generally Army and Navy $$ 27-32. See also Conscription post this page; Draft [14 Cyc 1017]. 94. Kneedler v. Lane, 45 Pa. 238, 267. 95. Webster D. [quot Kneedler v. Lane, 45 Pa. 238, 267]. 96. See generally Army and Navy §§ 27-32. See also Conscript ante this page. 97. 98. Wharton L. Lex. Lively v. Robbins, 39 Ala. 461, 3. Lively v. Robbins, 39 Ala. 461, 464. tion." [a] "Consecutive days."-Where a trust deed authorized a sale thereunder on the publication of an advertisement of sale for ten consecutive days in some daily newspaper in a certain city, and the advertisement was published for more than ten days continuously, two Sundays, being included in this however, period, on which the daily was not published, it was held that the publication was sufficient, the expression "ten consecutive days," being construed to mean an unbroken publication in the paper as published, the court saying: "While the term 'consecutive days' primarily means that many days directly following one another, it is also defined as But in cases meaning 'successive.' of contracts that significance should be given it which the parties evidently intended it should have. By the expression for ten consecutive days' in some daily newspaper published in El Paso, the parties must have intended publication in a daily newspaper in consecutive numbers as such a paper was published. published every day in the week then it might be contended that the notice should have appeared in every issue. If, however, such paper was issued on every day except Sundays, it If was nevertheless a daily newspaper, as such papers are commonly understood. Courts have held publication in such a paper to be continuous from day to day, although CONSENSUAL. Formed by mere consent.12 Consensual contract. In civil law, a contract formed by the mere consent of the contracting parties, such as marriage.13 CONSENSUS. Perceiving or feeling alike;14 agreement; consent.16 15 CONSENSUS EST VOLUNTAS MULTIORUM, without Sunday issues. . . . We do not regard the word 'consecutive,' in this connection, as any more forcible than the word 'continuous.' Both signify 'unbroken.' The advertisement in question appeared in the Daily Herald 10 consecutive days, as that paper was published. The El Paso Daily Herald, which was in existence when this contract was made, was, within the contemplation of the parties, a medium for the advertisement; and, as such publication did not appear on Sundays, we think the publication of the advertisement therein was a sufficient compliance with what was required." El Paso v. Ft. Dearborn Nat. Bank, (Tex. Civ. A.) 71 SW 799, 802. And see Owens v. Upham, 39 N. B. 198, 202 (where it was held that publication of an election petition in three consecutive issues of a weekly paper is not publication "for three consecutive days," and, therefore, not sufficient under the New Brunswick Controverted Elections Act § 81, Can. St. [1903] c 4). [b] "For three consecutive weeks." -It has been held that this phrase as used in a statute requiring publication of sale for nonpayment of taxes "once a week for three consecutive weeks preceding the sale" means during or throughout a period of twenty-one days, or a period of three full weeks of seven days each. Dever v. Cornwell, 10 N. D. 123, 130, 86 NW 227. [c] "Consecutive years."-Where a city by-law granted a bonus to a firm to assist in the establishment of a sawmill and box factory, and provided inter alia, that the mill should be kept in operation for "four consecutive years," it was held that the term might mean four consecutive seasons, but since even under this interpretation the firm had failed to comply with the terms of the provisions of the by-law, the bonus had not been earned. Three Rivers v. La Banque du Peuple, 22 CanSC 352, 358. [d]. "Two consecutive full terms." -It has been held that the phrase as used in a state constitution providing that "the same person shall not be elected sheriff for two consecutive full terms" does not apply where an interval of two years elapsed between the terms, the court saying: "The defendant in error has not been elected to two 'consecutive' terms, a period of two years having elapsed since the termination of his full term before his second election; neither has he, in the language of the Constitution been elected now for a 'full' term, but only to fill a vacancy of the last half of a term. the first half having been filled by others. The apparent object of the provision was to prevent the sheriff from holding the office continuously, by compelling him to go out of office at the end of a full term, the probable object of which was to prevent him from prostituting the office for the purposes of re-election." Gorrell v. Bier. 15 W. Va. 311, 320, 321. [e] Consecutive meetings. It has been held that a by-law of a town which provides that no by-law shall be repealed unless the repeal be adopted at two consecutive town the last meeting to be not less than two months after the first, thepparued to give effect to the secutive," and to give effect AD QUOS RES PERTINET, SIMUL JUNCTA.12 CONSENSUS, NON CONCUBITUS, FACIT CONSENSUS, NON CONCUBITUS, FACIT NUPTIAS VEL MATRIMONIUM, ET CONSEN to its manifest purpose, requires the second adoption to be at the first meeting held after the expiration of the two months, but not that there should be no intervening meetings, as would be the natural import of the term "consecutive meetings" if standing alone. Walsworth v. Casassa, 219 Mass. 200, 204, 106 NE 847. 8. Century D. 9. Century D; State v. Hitchcock, 124 Mo. A. 101, 105, 101 SW 117 (holding that the fact that a county court ordered a notice of a special election under a local option law to be published for four "successive" weeks instead of for four "consecutive" weeks, as required by statute, did not invalidate the election, the words "successive" and "consecutive" being synonymous); Dever v. Cornwell, 10 N. D. 123, 130, 86 NW 227; El Paso v. Ft. Dearborn Nat. Bank, (Tex. Civ. A.) 71 SW 799, 802. See also Successive [37 Cyc 512]. 10. El Paso v. Ft. Dearborn Nat. Bank, (Tex. Civ. A.) 71 SW 799, 802. 11. Mulford v. Le Franc, 26 Cal. 88, 108. 12. Anderson L. D. See also Consent post p 515. 13. Burrill L. D. [a] Illustrations.-A contract of sale is consensual, but a contract of loan is not, for the reason that in the case of sale upon consent given, the parties have reciprocal actions, while in the case of a loan contract there is no action until the thing is delivered. Anderson L. D. [cit Hare Contr. 85, 86]. 14. Anderson L. D. Anderson L. D. 15. 16. Anderson L. D. See also Consent post p 515. 17. A maxim meaning "Consent is the conjoint will of many persons to whom the things belongs." Morgan Leg. Max. [a] The words "simul juncta," in this sentence, are treated and translated in Branch's Principia and Wharton's Lexicon, as referring to res instead of voluntas, which has led in the latter work to the following singular translation: "Consent is the will of the many, to whom the thing joined at the same time belongs." Burrill L. D. 18. A maxim meaning "Consent is the conjoint will of many persons to whom the thing belongs." Rapalje & L. L. D. 19. A maxim meaning "Consent makes law," or more liberally translated "A contract is law between the parties agreeing to be bound by it." Morgan Leg. Max. See also Communis Error Facit Jus ante p 212. [a] Applied in: Shields v. Ohio, 95 U. S. 319, 324, 24 L. ed. 357 [quot Ozan Lumber Co. v. Biddie, 87 Årk. 587, 113 SW 796, 798]. 20. A maxim meaning "It is the consent of the parties, not their concubinage, which constitute a valid marriage." Morgan Leg. Max.; Burrill L. D. The maxim is more briefly expressed "Consensus facit matrimonium," and is in substance and almost in words the same as that of the civil law, "Nuptias non concubitus, sed consensus facit." Burrill L. D. [a] Nature and extent of the maxim.-Consensus non concubitus facit nuptias is the maxim of the civil law, and it is adopted by the common lawyers who, indeed, have borrowed (especially in ancient times) almost all their notions of the legitimacy of marriage from the canon and civil laws. 1 Blackstone Comm. 433 [quot Delpit v. Coté, 20 Que. Super. 338, 356]. [b] Applied in: Scroggins State, 32 Ark. 205, 212; Sharon v. Sharon, 79 Cal. 633, 695, 22 P 26 (where, in commenting on the decision below, the appellate court said: "The decision of the court may be expressed by a little change in the maxim, consensus, non concubitus, facit nuptias. Let it be read, Consensus et concubitus faciunt nuptias, and it will express the_conclusion reached"); Brisbin v. Huntington, 128 Iowa 166, 103 NW 144, 5 AnnCas 931; Davis v. Stouffer, 132 Mo. A. 555, 112 SW 282, 285; Butts v. French, 42 N. J. L. 397; Pearson v. Howey, 11 N. J. L. 12, 18; Bullock v. Bullock, 85 Hun 373, 375, 32 NYS 1009; Bates v. Bates, 7 Misc. 547, 550, 27 NYS 872; Roy v. Horsley. 6 Or. 382, 25 AmR 537; Beamish v. Beamish, 9 H. L. Cas. 274, 335, 11 Reprint 735 (where the court said: "Without the intervention or presence of any priest such a contract certainly amounted to an indissoluble and perfect marriage by the canon law, which was understood to have so far been adopted and acted upon by all the countries belonging to the Western Church, till it was modified by the decree of the Council of Trent, requiring, on pain of nullity, that at the celebration of the marriage there should be present the parish priest, or the bishop of the diocese, or a priest appointed to represent one of them. So strongly was the maxim, 'consensus facit matrimonium,' understood to be the universal law in Christendom, that a large minority of the bishops assembled in the Council of Trent protested against the power of the Church to alter it, and the old canon law was still in force in every Roman Catholic state in which the decree of the Council of Trent has not been received. England, having been for so many ages after the coming of St. Augustin under the spiritual dominion of the pope, marriage, as a sacrament, was considered a matter of spiritual jurisdic tion, on which there was an appeal from the Ecclesiastical Courts of England to the pope"); Reg. v. Millis, 10 Cl. & F. 534, 719, 8 Reprint 844, 17 ERC 66; Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, 62, 17 ERC 11 (where the court said: "Marriage, being a contract, is of course consensual for it is of the essence of all contracts, to be constituted by the consent of parties. Consensus non concubitus facit matrimonium, the maxim of the Roman civil law, is, in truth, the maxim of all law upon the subject: for the concubitus may take place, for the mere gratification of present appetite, without a view to any thing further; but a marriage must be something more; it must be an agree ment of the parties looking to the consortium vitæ: an agreement indeed of parties capable of the con cubitus, for though the concubitus itself will not constitute marriage. yet it is so far one of the essential duties, for which the parties stipu late, that the incapacity of either TIRE NON POSSUNT ANTE ANNOS NUBILES.21 CONSENT.23 [1] A. As a Noun. The term party to satisfy that duty nullifies | do, to be taken into custody, and | 131 Reprint 1043; East-India Co. v. the contract"); Lawless v. Chamber- consequently he cannot now object lain, 18 Ont. 296, 297; Delpit v. Coté, 20 Que. Super. 338, 356. 21. A maxim meaning "Consent, and not cohabitation, constitutes nuptials or marriage, and persons cannot consent before marriageable years." Black L. D.; Ambrosia Gorge's, 6 Coke 22a, 22b, 77 Reprint 286. 22. A maxim meaning "The acquiescence of a party who might take advantage of an error obviates its effect." Morgan Leg. Max. to being called upon to serve it"); [a] Applied in: Chicago, etc., R. Co. v. U. S., 104 U. S. 680, 687, 26 L. ed. 891; Lucas v. State, 144 Ala. 63, 67, 39 S 821, 3 LRANS 412 (where the court said: "If two or more felonies of a kindred nature may be charged in different counts in the same indictment, then it must follow, that in the first instance the grand jury could have properly joined in different counts in the same indictment against the defendant, the five felonies charged separately in the five indictments and in that event the defendant would have been put to trial on the indictment charging the five felonies, while the court would have no authority against the objection of the defendant to consolidate separate cases pending against the defendant, yet, as the record affirmatively shows it was done at the instance and request of the defendant, he cannot now be heard to complain at the action of the court which was superinduced by him. The maxim, consensus tollit errorem, applies in full force"); The Fair v. Chicago, 135 Ill. A. 258, 267; Thompson v. Perkins, 57 Me. 290, 292 (where the court said: "When a party consents to have judgment rendered against him, he cannot rightfully claim to be aggrieved. It is a fundament maxim that consent cures error. Consensus tollit errorem. The law provides that any party aggrieved by the ruling of a presiding judge of this court may except. But he cannot except to a ruling made with his consent, however erroneous. Nor has it ever been supposed that a judgment rendered in this court by express consent of the party against whom it is rendered, could be reversed on error. The reason is, that a party who consents to a judgment or a ruling against him is not, in contemplation of law, aggrieved thereby. Otherwise every piece of illegal evidence, ruled in by consent, would be ground of exception, and every judgment rendered by consent be liable to be reversed on writ of error. Undoubtedly a defendant may sit by and decline to make any defense, after he has put in a plea on which issue is joined, and the plaintiff will take judgment at his peril. In other words, a defendant may remain silent and not lose his right of appeal. But if he goes further and expressly consents that judgment may be rendered against him, he does lose his right to appeal. In the latter case, he cannot rightfully claim to be an aggrieved party, and none but aggrieved parties have a tollit errorem is a maxim of the comright to appeal. Thus parties, mon law, and the dictate of common against whom judgment is rendered sense"); Farrington v. Hamblin, 12 on default, cannot appeal"); Morison Wend. (N. Y.) 212, 213; Rosebrough V. Underwood, 5 Cush. (Mass.) 52, 55; v. Ansley, 35 Oh. St. 107, 111 (where Hoggett v. State, 101 Miss. 269, 271, the court said: "Whether the parties 57 S 811; Fuller v. State, 100 Miss. to a judgment consent or dissent, the 811, 820, 57 S 806, 39 LRANS 242. judgment must nevertheless be reAnnCas1914A 98 (where it was held garded as the act and decision of the that a void provision in a judgment court, and, if the court be without that sentence be suspended during authority in the premises, its judgaccused's good behavior does not pre- ment cannot be sustained on the vent his punishment, even though a ground that consensus tollit erlonger period of time than that for rorem"); Roy v. Horsley, 6 Or. 382, which he was sentenced has elapsed 386, 25 AmR 537; Wilkinson's App.. since the sentence was imposed, the 65 Pa. 189, 190; Moore v. Houston, 3 court saying: "The postponement of Serg. & R. (Pa.) 169, 190; U. s. v. his imprisonment was presumably Low Sing, 6 Porto Rico Fed. 660, with his consent, for it does not 663; Agnew v. Baldwin, 136 Wis. 263, appear that he at any time re- 267, 116 NW 641; Furnival v. Stringer, quested, as he had the right to 1 Bing. N. Cas. 68, 69, 27 ECL 547, law"); Rogers v. Cruger, 7 Johns. Consensus Atkyns, Comyns 346, 92 Reprint 1105, [b] Extent of application.-The maxim applies in criminal cases as well as to all errors in a civil trial, except those which go to the jurisdiction of the court. Threlkeld v. State, 128 Ga. 660, 58 SE 49, 50; Butts v. French, 42 N. J. L. 397, 400; Roy v. Horsley, 6 Or. 382, 386, 25 AmR 537. 23. Consent to: Appeal from judgment see Appeal Change of venue see Venue [40 Cyc Conferring jurisdiction generally see Courts [11 Cyc 673]; Criminal Law [12 Cyc 223]; Divorce [14 Cyc 591]. Consolidation of actions see Actions §§ 308-367. Construction of highway see High- Decree see Equity [16 Cyc 473]. Indecent exposure see Obscenity [29 Indenture of apprentice see Appren- Judgment see Judgments [23 Cyc 728, Lease of railroad see Railroads [33 New allegiance on part of state see Nuisance as affecting right to dam- Place of interment see Dead Bodies [13 Cyc 271]. "consent" when used as a noun means accord of | minds; 25 acquiescence;26 an act of reason accomPossessory warrant, where property | Gooch, 5 Heisk. (Tenn.) 294, 310. (2) | obtained see Possessory Warrant [31 Cyc 957]. Proceedings, as estoppel to allege error see Criminal Law [12 Cyc 885]. Reference see References [34 Cyc 777, 793]. see Sale of controlling stock of railroad see Railroads [33 Cyc 386]. Suit see States [36 Cyc 911, 912, 915]; United States [39 Cyc 775]. Sureties, acts of creditor see Principal and Surety [32 Cyc 159]. Termination of malicious prosecution see Malicious Prosecution [26 Cyc 46]. Transfer of encumbrance of homestead see Homesteads [21 Cyc 529]. Use of premises by liquor dealer see Intoxicating Liquors [23 Cyc 129]. Use of street see Railroads [33 Cyc 196, 1981: Street Railroads [36 Cyc 1378, 1382, 1430]; Telegraphs and Telephones [37 Cyc 1617]. Verdict see Criminal Law [12 Cyc 687]; Trial [38 Cyc 1873, 1902]. Voters': Aiding corporation by county see Counties [11 Cyc 522]; Municipal Corporations [28 Cyc 1558]. Alteration of county see Counties [11 Cyc 351]; Municipal Corporations [28 Cyc 209]. Amendment of constitution Constitutional Law post. Change in location of county seat see Counties [11 Cyc 374]. Construction of public building see Counties [11 Cyc 461]. Creation of new school districts see Schools and School Districts [35 Cyc 839]. Expenditure by city see Municipal Corporations [28 Cyc 1548]. Grant of license to use street see Municipal Corporations [28 Cyc 879]. Issue of county bonds see Counties [11 Cyc 556]; Municipal Corporations [28 Cyc 1588]; Schools and School Districts [35 Cyc 990]. Levying taxes see Counties [11 Cyc 580]; Municipal Corporations [28 Cyc 1662]. Public improvement see Municipal Corporations [28 Cyc 957]. Sale of liquor see Intoxicating Liquors [23 Cyc 95]. Waiver of jury see Juries [24 Cyc 157]; Release see Release [34 Cyc 1055]. Age of legal consent see Age 2 C. J. p 402 note 17 [b]. "Consent of owner" as used in Mechanics' Lien Laws see Mechanics' Liens [27 Cyc 50-58]. 24. Hawkins v. Carroll County, 50 Miss. 735, 759. 25. Huntley v. Holt, 58 Conn. 445, 449, 20 A 469, 9 LRA 111; Bartle v. Bartle, 132 Wis. 392, 398, 112 NW 471 [cit Cyc]. [a] Easement. It has been held that the consent of a local government controlling public streets on which the right to construct and to operate a railroad through or on public streets is dependent, whether it is permanent, or for a number of years, or at the will of such local government, is what the law denominates an easement, the duration of which is dependent only on the extent of the interest which the grantor had authority to grant, and the terms of the consent itself. Detroit Citizens' St. R. Co. v. Detroit, 64 Fed. 628, 644, 12 CCA 365, 26 LRA 667. 26. Clem v. State, 33 Ind. 418, 431. [a] Passive acquiescence distinguished. (1) It has been held that, within a statute providing that no part of a county shall be taken from another county to form a new county or a part thereof without the consent of two thirds of the qualified voters, the word "consent" means active concurrence of the voters and not passive acquiescence, and that the votes of two thirds of the qualified voters must be had in favor of the change in order to authorize it. Cocke v. an It has been held that the testimony of physicians who testified that after defendant's arrest, charged with statutory rape upon a eleven-yearold girl, they made a physical examination of defendant's person at the request of the police captain and found him afflicted with a venereal disease, his only "consent" consisting of a failure to object to the physical examination, is incompetent, if properly objected to, as an invasion of his constitutional right not to be compelled to testify against himself; but, where his only objection to the testimony was that the physical examination took place after the preliminary examination before the committing magistrate, the admission of the incompetent testimony did not constitute reversible error, since the objection was not sufficient to call the trial court's attention to its incompetency. State v. Horton, 247 Mo. 657, 663, 153 SW 1051. (3) In construing a statute providing that any person who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he were a principal, the court said: "But we have no statute that makes the consenting to a thing, which is innocent in itself, an offense, although the person consenting thereto may have believed the thing to be an offense; nor have we any statute making the consenting to even the commission of a crime an offense, unless the consent amounts to the counseling, aiding, or abetting in the commission of such crime. Hence, where a thing is not an offense at all, a party cannot be guilty of committing an offense by merely consenting thereto; and even where the thing is an offense, a party can be guilty of committing offense by consenting thereto only where his consent is of that affirmative and expressed character which amounts to a counseling, aiding, or abetting in the commission of the offense. 'He must do or say something showing consent to the felonious purpose, and must contribute to its execution.'" State v. Douglass, 44 Kan, 618, 624, 26 P 476. (4) "There is a plain distinction between consenting to a crime and aiding, abetting or assisting' in its perpetration. Aiding, abetting, or assisting, are affirmative in their character. Consenting may be a mere negative acquiescence, not in any way made known at the time to the principal malefactor. Such consenting, though involving moral turpitude, does not come up to the meaning of the words of the statute." White v. Peo., 81 Ill. 333, 337 [quot State v. Douglass, 44 Kan. 618, 624, 26 P 476]. (5) The silence of a defendant on trial for crime, or his failure to object or protest against an illegal discharge of the jury before verdict, does not constitute "consent" a to such discharge, or a "waiver" of the constitutional inhibition against second jeopardy for the same offense. Allen v. State, 52 Fla. 1, 3, 41 S 593, 120 AmSR 188, 10 AnnCas 1085. (6) It has been held that the failure of a prisoner or his attorney to object to the discharge of the jury cannot be interpreted as a consent to their discharge within the meaning of the word as used in § 428 of Code Cr. Proc., providing inter alia that "after the jury have retired to consider of their verdict they can be discharged before they shall have agreed thereon only when, with the leave of the court, the public prosecutor and the counsel for the defendant consent to such discharge." Peo. v. New York City Prison, 139 App. Div. 488, 490, 124 NYS 341. (7) It has been held that if a husband sees that his wife is about to become subject to the blandishments of a man of bad character and evil intentions, and does nothing to warn her or with a hold her from such person, but permits her to be led to her ruin, his conduct in law amounts to "consent" so as to bar a divorce for adultery. Delaney v. Delaney, 71 N. J. Eq. 246, 252, 65 A 217. See also Barsham v. Bullock, 10 A. & E. 23, 37 ECL 37, 113 Reprint 9 (holding that, where an officer was illegally carrying a party to jail within twenty-four hours after arrest for debt, and the prisoner to avoid being taken to jail consented to go to a tavern, and there drew up an agreement for the purpose of getting discharged, a consent so obtained was not free and voluntary, and that the plea was properly negatived by the jury). To same effect Dewhirst v. Pearson, 1 Cromp. & M. 365, 149 Reprint 440. But see Avery v. State, 12 Ga. A. 562, 563, 77 SE 892 (where it was held that it was not error to charge, that "there can be no rape if there was any kind of consent of the woman; the whole transaction from beginning to end must be forcible and against her will. I charge you that if the woman gave any kind of consent, it would not be rape. It matters not how that consent was obtained, or how reluctantly that consent might have been given, if there was the least part of consent on the part of the woman during the transaction, then a person charged with rape could not be convicted of rape," nor was it error to charge that to make out the offense of adultery and fornication there must be "consent or acquiescence" on the part of the woman, as this was equivalent to stating that either express or implied consent would be sufficient, and 'consent" may be implied from silence and failure to object). See also Acquiescence, 1 C. J. p 905. sent. [b] Conduct as expressive of consent. "Consent has been treated as meaning conduct expressive of conIt may be that silence is such conduct under some circumstances." Jacksonville Nat. Bank v. Williams, 38 Fla. 305, 319, 20 S 931. [c] Consent between tenants in common. It has been held that exemption laws should be liberally construed, and, under a statute extending a homestead exemption to a tenant in common having a homestead on the land with the consent, express or implied, of his cotenant, the cotenant's acquiescence under such circumstances as raise a presumption of consent is sufficient, proof of consent directly given viva voce or in writing being unnecessary. Bartle v. Bartle, 132 Wis. 392, 398, 112 NW 471. [d] Construction as applied to a carrier's liability.-It has been held that a carrier's rule that it assumed no risk for cotton placed on its platform unless tendered for immediate shipment may be waived, and where it accepts cotton intended for shipment at some future time, the cotton will be on its platform with the carrier's "consent," within the meaning of the term as used in a statute making a carrier responsible for loss by fire originating on its right of way, except for property which has been placed on its right of way illegally or without its consent. v. Atlantic Coast Line R. Co., 89 S. C. 547, 549, 72 SE 463. See also Carriers §§ 323-349. Griffin [e] Waiver by consent.-It has been held that a defendant with knowledge of the relationship between an examining magistrate and a complaining witness, who submits to a preliminary examination without objection, will be held to have consented within the meaning of the word as used in a statute providing that "a judge or justice is disquali fied from acting as such except by mutual consent of parties in any case wherein he is a party or interested or where he is related to either party by consanguinity or affinity within the fourth degree." Ingraham 29 panied with deliberation,27 the mind weighing, as in a balance, the good and evil on both sides; 28 an agreement in opinion or sentiment;2 an agreement or harmony of opinion or sentiment;30 the agreement of mind;31 an agreement of the mind to what is proposed or stated by another;32 an agreement of one with another to the doing of something or leaving something undone, or waiving something or per v. State, 82 Nebr. 553, 556, 118 NW 320. See also Judges [23 Cyc 597]; Waiver [40 Cyc 252]. [f] As synonymous with "permission."-It has been held that one permitting the erection of buildings gives a "consent," within the meaning of a statute giving a lien for material furnished with the consent of the owner, the word "consent" having the same legal meaning as the word 'permission." Hackett v. Badeau, 63 N. Y. 476, 477: Rice v. Culver, 57 App. Div. 552, 68 NYS 24, 25; Miller v. Mead, 3 NYS 784, 785. 27. Locke v. Redmond, 6 Kan. A. 76, 49 P 670, 671; Peo. v. Studwell, 91 App. Div. 469, 473, 86 NYS 967. 28. Story Eq. Jur. § 222 [quot Dicken v. Johnson, 7 Ga. 484, 492]; Locke v. Redmond, 6 Kan. A. 76, 49 P 670, 671. [a] Consent to risk and contributory negligence compared.-In construing the law of master and servant and comparing the contributory negligence of the employee with the assumption of risk, the court said: "The two defenses of assumption of risk and contributory negligence are unlike because of the different states of mind in which they are rooted. It is palpable that an act done willingly and on full information is not done negligently; and this distinction is recognized throughout the law of torts. Negligence is the result of inattention or oversight; whereas consent to a risk implies knowledge of the danger of the act to be performed and the performance of the act understandingly and without constraint. . . . The doctrine that a master can not contract against his own negligence, is not inconsistent with permitting an employee to agree to work with tools and machinery of a certain kind and in a certain state of repair, thereby taking the responsibility on himself and relieving the master.... The essence of the matter is that the employee must thoroughly comprehend the risk, if it exceeds that ordinarily connected with such a task, and freely accept it; instead of facing it reluctantly and under protest. He may be aware of the risk he encounters without assenting to it; because some coercive influence, such as fear of losing employment, controlled him; and if he remains after complaining of the danger, according to the best authorities, as we think, the risk is not assumed. On the other hand, he may not realize the peril he faces when he engages to serve, or afterwards, nor until an accident befalls. And, usually, the question of whether an employee fully understood the risk he was incurring and assented to it, as part of his contract of employment, or did a perilous act of his own spontaneous will and so as to bring into play the maxim volenti non fit injuria, is for the jury." Deane v. St. Louis Woodenware Works, 106 Mo. A. 167, 179, 80 SW 292. See also Master and Servant [26 Cyc 12261246]. mitting some act or deed or some course of con- in the event of her refusal to take V. [a] "Franchise" compared.-Where 30. Clem v. State, 33 Ind. 418, 31. Locke v. Redmond, 6 Kan. A. 76, 49 P 670, 671. [a] "Adjourned by consent.”—On an appeal from a judgment rendered by a justice of the peace it has been held that the record in a justice's docket that a certain cause was adjourned by consent is a sufficient docket entry to show that his jurisdiction was not defeated by the adjournment as being ordered in the absence of a party thereto, as the presumption will not be indulged that the parties were not present when they consented. Hardenburgh v. Fish, 61 App. Div. 333, 336, 70 NYS 415. See also Justices of the Peace [24 Cyc 494]. 32. Locke v. Redmond, 6 Kan. A. 76, 49 P 670, 671; Plummer v. Com., 1 Bush (Ky.) 76, 78 [quot Bartle v. Bartle, 132 Wis. 392, 398, 112 NW 471]. sent of the owner' are used in the statute as something different from an agreement with the owner; and while it may be urged that they do not require such a meeting of the minds of the parties as would be essential to the making of a contract, there must be enough of a meeting of their minds to make it fairly apparent that they intended the same thing in the same sense.' Huntley v. Holt, 58 Conn. 445, 449, 20 A 469, 9 LRA 111. [b] as is "Participation" disinguished. -It has been held that the word "consent" is improperly used tending to mislead the jury in an instruction in a homicide case, authorizing a conviction if deceased was "murdered by the hand of some person other than either of the prisoners at the bar, and that the prisoners, or either of them, were there present, knowing of, and consenting to the murder, or with such knowledge and consent, at a convenient distance, assisting or ready to assist in the murder, or to aid in the escape of the perpetrators, then such prisoners or prisoner are or equally guilty with the persons or person who actually committed the deed,' the court saying: "Is it a participation in an act to merely be present and consent to its perpetration? Or, if the word consent, which has been defined to be an 'agreement of the mind to what is proposed or stated by another,' might be understood, as used in the instruction, to mean, in connection with other words used, a participation in the murder. Yet may not the jury have been so misled by its use as to attach to the instruction a different significance from that which the court intended; and to have felt authorized by it to convict the prisoners, merely on being satisfied that they were present and acquiesced in the homicide, without aiding or abetting the perpetrator, or having any participation in the deed? In our opinion the instruction was liable to be so understood by the jury, and was therefore misleading and erroneous." Plummer v. Com., 1 Bush (Ky.) 76, 77, 78. 33. Richardson v. Richardson, 114 NYS 912, 916. 34. Bouvier L. D. [quot Geddes v. Bowden, 19 S. C. 1, 3]. 35. Century D. [quot Clark V. North, 131 Wis. 599, 604, 111 NW 681, 11 LRANS 764, 11 AnnCas 1080]. 36. Peo. v. Dong Pok Yip, 164 Cal. 143, 147, 127 P 1031. See also Peo. v. Peery, 26 Cal. A. 143, 145, 146 P 44 (holding that legal "con in a prosecution for rape assumes a capacity in the person consenting to understand and to appreciate the nature of the act committed, its immoral character, and the probable or natural consequences which may attend it). 37. Century D. [quot Clark V. North, 131 Wis. 599, 604, 111 NW 681, 11 LRANS 764, 11 AnnCas 1080]. [a] "Agreement" distinguished.-sent" which will be held sufficient Where a wife allowed her husband, at his own expense, to build houses on land held by a title of record to her sole and separate use, and the contractor furnished materials and built the houses, supposing that the husband was the owner, it was held that the contractor was not entitled to a lien under a statute giving a mechanic's lien for materials fur[b] In reference to decedents' es- nished or services rendered under an tates. In construing a statute pro- agreement with or by the consent viding that either husband or wife of the owner of the land, the court "may consent in writing, executed saying: "Without at least two perin the presence of two witnesses, sons there cannot be an unity of that the other may bequeath more opinion, or an accord of minds, or than one-half of his or her property any thinking alike. When the statfrom the one so consenting," it has ute uses the words 'by the consent been held that in case of an election of the owner of the land,' it means by a widow to take under the will of that the person rendering the servher deceased husband it is essential ice or furnishing the materials and that the probate court explain to her Its provisions and her rights under it and also her rights under the law [a] As used in bankruptcy proceedings.-(1) Under the Bankruptcy Act of July 1, 1898, § 23b (30 U. S. St. at L. 544 c 541), as amended by the act of Febr. 5, 1903 (32 U. S. St. at L. 797 c 487 § 8) which provides that suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt might have brought or prosecuted them if bankruptcy proceedings had not been instituted "unless by consent of the building stands must be of one mind proposed defendant." it has been in respect to it. The words 'con-held that defendant's consent need the owner of the land on which the |