41 bation;38 approval;" assent to some proposition submitted,40 implying choice; concurrence;2 active concurrence; 43 intelligent concurrence in a contract or an agreement of such a nature as to bind the party consenting; a concurrence of wills;45 the being of one mind;46 an express sanction to the conduct of others;17 a thinking together;48 the unity of opinion.19 Consent, in law, is not a vacant or neutral attitude,50 and implies something more than a mere acquiescence in a state of things already in existence, or a mere formal act of the mind;52 it 51 49 is affirmative in its nature,53 implying some positive action, always involving submission, and the want of this power to give a rational and deliberate consent is the ground on which courts of equity will set aside the contracts of idiots, lunatics and other persons non compos mentis;55 therefore, consent given by one divested of mental faculties is equivalent to no consent at all.56 It is an act unclouded by fraud, duress or sometimes even mistake,57 and should not be implied contrary to the obvious truth, unless upon equitable principles the marriage, al-emotion of the deserted party does though the approbation might be. not affect his rights. Ford v. Ford, Clarke v. Parker, 19 Ves. Jr. 1, 21, 143 Mass. 577, 578, 10 NE 474, 475. 34 Reprint 419. See also Approba- 53. De Klyn v. Gould, 165 N. Y. tion 4 C. J. p 1456, 282, 287, 59 NE 95, 80 AmSR 719. [b] Consent by ratification.-It But 39. Locke v. Redmond, 6 Kan. A. 76, 49 P 670, 671; Bartle v. Bartle, 132 Wis. 392, 398, 112 NW 471 [cit Cyc]. not have been given before the suit | subsequent to on 38. Waldron v. Chasteney, 28 F. Cas. No. 17,058, 2 Blatchf. 62, 68 (where the signature of a trustee to a deed was followed by the words "I consent to the above," it was held that the word "consent" in this connection involved approbation, even if the two expressions are not of equal and common value. Indeed, if any distinction can be made it would appear that consent is the most significant and effective); Bartle v. Bartle, 132 Wis. 392, 398, 112 NW 471 [quot Cycl. [a] Subsequent consent and approbation compared.-Where a testator provided that, if his daughter should marry with the consent and approbation of a trustee, his property should go to her husband, but made a different disposition of the property if she should marry without such consent or approbation, it was held that the consent could not be 40. Howell v. McCrie, 36 Kan. "Assent" distinguished see Assent 42. Clem v. State, 33 Ind. 418, 43. Philomath College v. Wyatt, See V. 44. Century D. [quot Clark North, 131 Wis. 599, 604, 111 NW 681, 11 LRANS 764, 11 AnnCas 1080]. 45. Howell v. McCrie, 36 Kan. 636, 645, 14 P 257, 59 AmR 584; Locke v. Redmond, 6 Kan. A. 76, 49 P 670, 671; Wilkinson v. Misner, 158 Mo. A. 551, 138 SW 931, 935; Mactier v. Frith, 6 Wend. (N. Y.) 103, 114, 21 AmD 262. 46. Huntley v. Holt, 58 Conn. 445, 20 A 469, 9 LRA 111; Hawkins v. Carroll County, 50 Miss. 735, 759. 47. Crabb Eng. Syn. [quot Morgan v. Champion, 150 Ky. 396, 399, 150 SW 517]. 49. Huntley v. Holt, 58 Conn. 445, 50. DeKlyn v. Gould, 165 N. Y. 463. 54. Peo. v. Dong Pok Yip, 164 Cal. 143, 147, 127 P 1031. [a] "Submission" distinguished.It has been held that "there is a difference between consent and submission; every consent involves a submission; but it by no means follows, that a mere submission involves consent. It would be too much to say, that an adult submitting quietly to an outrage of this description [rape], was not consenting; on the other hand, the mere submission of a child when in the power of a strong man, and most probably acted upon by fear, can by no means be taken to be such a consent as will justify the prisoner in point of law." Reg. v. Day, 9 C. & P. 722, 724, 38 ECL 419. To same effect State v. Cross, 12 Iowa 66. 70, 79 AmD 519. See also Submission [37 Cyc 344]. [b] Indirect consent.-It has been held that, under a corporate charter providing that no loans should be made to any officer of the corporation and that the parties "consenting thereto, directly or indirectly," to such a loan should be liable for the amount, etc., the mere absence of a director from a special meeting of the board at which certain forbidden loans were made, and his absence from the next regular meeting at which the loans were ratified, cannot be construed as a "consent" to the loans. Murphy v. Penniman, 105 Md. 452, 464, 66 A 282, 121 AmSR 583. 55. Dicken v. Johnson, 7 Ga. 484. 492. [a] Absolute consent compared to consent under duress. In considering the question of the limitation of liability of a carrier on the written consent of a shipper, the court said: "The law deems it the best policy that the carrier should bear the general liability of an insurer, except where his customer consents to bear a part of the risk, in which case it seems to contemplate that the terms upon which such consent is given will guard and preserve the public interest. But the consent meant is certainly not a constrained submission to terms imposed-not a consent extorted by what the law characterizes as 'duress,' nor what is practically, as society is organized, the same thing; but it is what Mr. Pomeroy calls an 'absolute consent' -a consent that implies a physical, intellectual, and moral power, freely and deliberately exercised. Consent of a different kind may be, and often is, all that is required to make a contract binding at law, and even in equity; but it can not make a contract fair, just, or reasonable. a rule, the validity of a contract in nowise depends upon its fairness, nor the justness or reasonableness of its terms, nor the adequacy of the consideration, provided it rests upon one deemed valuable. Nor will it be invalidated by reason of the fact that the party was in pecuniary or As 59 which would estop one from asserting the truth.58 Consent supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers." It need not be written; it may be spoken or acted, or it may be implied. The word is generally used in cases where power, rights and claims are concerned,61 the theory of the law in regard to acts done and contracts made by parties, affecting their rights, being that in all cases. there must be a free and full consent to bind the parties. While it has been used loosely by distinguished scholars of the law, in a sense implying more than its proper or its popular import, yet it may be said that the term in its strictly legal meaning involves the presence of two or more persons, and implies an agreement to that which, but for the consent, could not exist, and which the party consenting has a right to forbid. We give 65 63 66 consent when we yield that which we have a right to withhold, for one can scarcely be regarded as giving his consent to that which he has no right to object to.67 In criminal law, no act is deemed a crime if done with the consent of the party injured, unless it be committed in public and is likely to provoke a breach of the peace or tends to the injury of a third party, provided no consent can be given which will deprive the consenter of any inalienable right.69 [2] B. As a Verb. To agree in sentiment,70 accord; to feel together;72 to be at one;73 to be of one mind; to be of the same mind;75 to think alike." 76 The term implies the power to authorize and to prevent, a degree of superiority which arises from the presence of a combined mental and physical ability to act;" it also implies not merely that 64. Huntley v. Holt, 58 Conn. 445, 449, 20 A 469, 9 LRA 111. 65. Gray v. Walker, 16 S. C. 143, 147 [quot Geddes v. Bowden, 19 S. C. 1, 3]. 67. 1, 3. other necessity or distress, provided | 432. it was intelligently and freely made, without the use of undue pressure. If the party freely and intelligently elect to make a hard, unequal, and unjust contract, the courts will not make a better one for him, or relieve him of the one made, merely because he was in straightened circumstances, and it seemed to him necessary to make it in order to secure relief. The courts decline to thus hamper the independence of the individual, or limit his right to make his own contracts. Such functions pertain to paternal, and not to free, government. But relief is withheld upon the ground that the party had his choice between not acquiring the benefits accruing under the contract and acquiring them according to its terms, and had intelligently and freely exercised his choice, and elected to take the benefits of the contract. The reason does not apply where the party acquires nothing under the contract, and is constrained to consent to it by reason of the fact that the other party had made this agreement necessary to the enjoyment of an important and apparently indispensable privilege, to which he was already entitled." Missouri, etc., R. Co. v. Carter, 9 Tex. Civ. A. 677, 693, 29 SW 565. 58. De Klyn v. Gould, 165 N. Y. 282, 287, 59 NE 95, 80 AmSR 719. [a] Want of consent inferred. In an action for breach of a liquor bond in permitting plaintiffs' minor son to enter and gamble in the principal's saloon, it was held that the want of "consent" of plaintiffs could be inferred from the fact that they were at the time in a distant state and that their son had been in the city where the saloon was located only a few days. Krick v. Dow, (Tex. Civ. A.) 84 SW 245. [b] Consent "conditional or qualified." Where a paper was circulated by a railroad company among property owners to obtain their "consent" for construction of an elevated railroad in a street, and an abutting owner signed it, after the words written in by him, "I am in favor of an elevated road over the middle of the street, but not on the walk," it was held that, if this was a consent, it was a qualified and conditional one, which was not accepted, the company having built their structure onto the sidewalks. Shaw V. New York El. R. Co., 187 N. Y. 186, 190, 79 NE 984. 59. Bouvier L. D. [quot Peo. v. Studwell, 91 App. Div. 469, 472, 86 NYS 967]; Howell v. McCrie, 36 Kan. 636, 644, 14 P 257, 59 AmR 584; Locke v. Redmond, 6 Kan. A. 76, 49 P 670, 671. 60. Richardson v. Richardson, 114 NYS 912, 916. See infra § 3. 61. Webster D. [quot Geddes v. Bowden, 19 S. C. 1, 3]. 62. Locke v. Redmond, 6 Kan. A. 76. 49 P 670, 671. 63. Clem V. State, 33 Ind. 418, 66. Webster D. [quot Geddes v. Bowden, 19 S. C. 1. 3]. Geddes v. Bowden, 19 S. C. 68. Bouvier L. D. [a] Consent as a justification of an assault.-It has been held that consent to an assault is no justification, and where one whose mental faculties were suspended by intoxicating drink was induced to continue to swallow spirituous liquor to such excess as manifestly to endanger his life, and he died therefrom, the person who took advantage of his helpless and drunken condition is liable in damages, under statutory provision, to the surviving husband, wife, children, and parents of the deceased, the court saying: "But even in cases where no breach of the peace is involved, and the act to which consent is given is matter of indifference to public order, the maxim of volenti non fit injuria presupposes that the party is capable of giving assent to his own injury. If he is divested of the power of refusal by reason of total or partial want of mental faculties, the damage cannot be excused on the ground of consent given. A consent given by a person in such condition is equivalent to no consent at all,more especially when his state of mind is well known to the party doing him the injury. If an infant of tender years, or an idiot, or a person non compos mentis, from any cause agrees to an act which he cannot know will injure him, the person causing him to perform, or suffer the performance of, such act will be answerable for its consequences. It is just as if a person, without knowledge that a poisonous or deleterious substance is contained in an article of food offered him, swallows it at the solicitation of another, who is aware of its noxious character,-in such case of course the one who gives the food is liable in damages for the injury that follows." McCue v. Klein, 60 Tex. 168, 169, 48 AmR 260. 69. Bouvier L. D. V. 70. Century D. [quot Peo. Studwell, 91 App. Div. 469, 473, 86 NYS 967]. [a] "Assent," "consent," "permit," "allow" compared.-"As the act of an equal, we consent to that in which we have a common interest with others; we permit or allow what is for the accommodation of others; we allow by abstaining to oppose; we permit by a direct expression of our will; contracts are formed by the consent of the parties who are interested. Consent respects matters of serious importance; permit and allow regard those of an indifferent nature; a parent consents to the establishment of his children; he permits them to read certain books; he allows them to converse with him familiarly. Assent may be given to anything, whether positively proposed by another or not; but consent supposes that what is consented to is proposed by some other person." Crabb Eng. Syn. [quot Cowen v. Paddock, 62 Hun 622, 17 NYS 387, 388]. 71. Century D. [quot Peo. V. Studwell, 91 App. Div. 469, 473, 86 NYS 967]. 72. Century D. [quot Peo. v. Stud well, 91 App. Div. 469, 473, 86 NYS 967]. 73. Century D. [quot Peo. v. Studwell, 91 App. Div. 469, 473, 86 NYS 967]. 74. Huntley V. Holt, 58 Conn. 445, 449, 20 A 469, 9 LRA 111. 75. Century D. [quot Peo. v. Studwell, 91 App. Div. 469, 473, 86 NYS 967]. 76. 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]. 77. Mosher V. Lewis, 10 Misc. 373, 379, 31 NYS 433 (where it is said by the court in delivering its opinion: "One cannot properly he said to have consented to an act which he could neither authorize nor prevent"). See also Ottiwell v. Watkins, 15 Daly (N. Y.) 308, 6 NYS 518, 24 NYSt 38. [a] Consent to be used.--It has been held that among the attributes conferred on Porto Rico by the congress of the United States the privilege of not being sued without its consent is not included. Rosaly v. Peo., 16 Porto Rico 481. 487. [b] "Direct" compared.-Where indictments were submitted to the grand jury under an authorization given by a judge of the court of queen's bench contained in an indorsement written on their face in the followig words, "I hereby direct that this indictment be submitted to the Grand Jury," it was held that the word "direct" necessarily presupposed "consent" on the part of the judge, within the meaning of the word as used in a statute providing that an indictment may be presented to the grand jury when anyone obtains the written consent of a judge of the criminal court having jurisdiction in the matter, the court saying: "The objection raised to the authorization to prefer the bills of indictment is that it should not have contained a direction but should merely have specified that the judge consented that they should be preferred, and that it should have stated to what Grand Jury this should be done. The authorization is written on the face of the indictments, and the bills show by their venue and commencement that they were to be submitted to the Grand Jury for the present term. What was required was the consent of the judge for the pre CONSENTABLE LINE. The boundary line fixed by adjoining landowners who, being duly apprised of their rights, establish such line as a permanent boundary and to settle a dispute in relation thereto.81 82 CONSENTIENTES ET AGENTES PARI PENA PLECTUNTUR.87 CONSENTIRE EST FACERE.88 CONSENTIRE MATRIMONIO NON POSSUNT INFRA [ANTE] ANNOS NUBILES.8 89 CONSENT JUDGMENT or CONTRACT JUDGMENT. Where the parties agree upon the terms of the judgment-that is, as to what shall be put in the judgment;90 an agreement of the parties made a matter of record by the court at their re CONSENT DECREE. An agreement of the parties under the sanction of the court, interpreted as an agreement.8 A consent decree is not, in a strictly legal sense, a judicial sentence; 83 but is in the nature of a solemn contract, and is in effect an admission by the parties that the decree is a just determination of their rights upon the real ferring of the bills of indictment., sent to pay the tolls provided for, Now, as I signed an indorsement, not directing the Grand Jury to find the bills, but directing the Crown prosecutors to submit them to the Grand Jury, I must necessarily have consented that they should be preferred by them. therefore disallow the first objection, which is really a criticism of the form and language used and not a serious legal objection." Reg. v. Weir, 3 CanCrCas 155, 156, 158. [c] "Permit" distinguished.— "The word 'consent' implies some positive action, while the word 'permit' implies mere passivity." Aull v. Columbia, etc., R. Co., 42 S. C. 431, 436, 20 SE 302. See also Permit [30 Cyc 1461]. 78. Ottiwell v. Watkins, 15 Daly 308, 309, 6 NYS 518 [cit Crabb Eng. Syn.]. And see Dicken v. Johnson, 7 Ga. 484, 492 (where it is said: "To give consent there must be capacity, therefore, to know and understand fully the nature of the act done, and its effects upon the interests of the_agent"). does not mean that the owner must 79. Black L. D.; Bouvier L. D. 80. Black L. D. 81. Brown v. Caldwell, 10 Serg. These lines, when fairly agreed on, have been or constructive. Bouvier L. D. See 82. Allen v. Richardson, 30 S. C. [a] "Aiding, abetting or assist-consideration without notice, actual ing" distinguished.-"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." Jones v. Peo., 166 Ill. 264, 269, 46 NE 723; White v. Peo., 81 Ill. 333, 337. To same effect State v. Douglass, 44 Kan. 618, 625, 26 P 476. See also Aid 2 C. J. p 1023 note 11 [a]; note 12 [a]. [b] "Approve of" and "consent to." It has been held that "the words 'approve of' and 'consent to' do not, singly or combined, express the idea of willful contribution to, or procurement of, a felonious act," for a person may be present and heartily approve of an act after it is done without being at all willing to or capable of aiding or advising or procuring it to be done, especially if it be felonious, or he may consent in the sense of offering no resistance to the commission of the act, or the slightest contribution to it of his own will, and therefore it is erroneous, in a homicide case, to instruct that, if defendant did in some manifest manner approve of or consent to the killing of deceased by another, he would be guilty of the crime. Owner v. Com., 95 Ky. 353, 361, 25 SW 594; True v. Com., 90 Ky. 651, 653, 14 SW 684. [c] As equivalent to "shall."-It has been held that the term, as used in a statute providing that a corporation organized for floating logs shall not be obliged to operate or furnish the use of its improvements unless the owners of such logs con 83. Gibson Suit Ch. § 558 [quot Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 28, 40 P 406, 1014, 52 AmSR 759]. [a] As res judicata."The text writers agree that in England a consent decree cannot be pleaded as res judicata, and is effective when pleaded only so far as the estoppel arises out of the agreement itself. They say, however, that the decisions of the American states, generally, are against this doctrine. crees are res adjudicata." Kelly v. Milan, 21 Fed. 842, 864, 869 [aff 127 U. S. 139, 8 SCt 1101, 32 L. ed. 771. 84. Gibson Suits Ch. § 558 [quot Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 28, 40 P 406, 52 AmSR 759]. 85. Gibson Suits Ch. § 558 [quot Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 28, 40 P 406, 52 AmSR 759]. See also Krieger v. Krieger, 120 I A. 634, 645 (holding that a consent decree is in the nature of a solemn contract, and it is an elementary principle that it cannot be amended or in any way varied, without the like consent, nor can it be reheard in the court that rendered it, appealed from, nor reversed on a writ of error or bill for review). To same effect McEachern v. Kerchner, 90 N. C. 177. 86. Gibson Suits Ch. § 558 [quot Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 28, 40 P 406, 52 AmSR 759). See also Equity [16 Cyc 473 text and notes]; Consent Judgment post this page. 87. A maxim meaning "Those consenting and those perpetrating are embraced in the same punishment." Morgan Leg. Max. [cit Fitzherbert's Case, 5 Coke 79b, 80, 77 Reprint 175]. 88. A maxim meaning "To consent to a thing is to do a thing." Morgan Leg. Max. 89. A maxim meaning "Consent to a marriage is not possible in the parties before marriageable years." Morgan Leg. Max. 90. Henry v. Hillard, 120 N. C. 479, 486, 27 SE 130. [a] Judgment of dismissal distinguished. Where the erroneous order striking items from the complaint left a demand not exceeding twenty dollars, to which exception was reserved by the county, the fact that thereafter both parties admitted that the court had no jurisdiction of such residue, and that thereupon the court ordered the action dismissed, was held not to render the judgment of dismissal a consent judgment; and the county was entitled to appeal therefrom, to have the erroneous order reviewed, on a bill of exceptions, and to have the judgment reversed, with directions to deny the motion to strike out, the court saying: "Upon this appeal retion that the judgment of dismissal was a 'consent judgment'; that being such a judgment, plaintiff is bound by its terms, and no appeal from it will, therefore, be considered. Much authority is cited as to the meaning, force, effect, and finality of a consent judgment. These authorities are unimpeachable in point of law. but do not call for consideration, because the judgment here appealed from is in no legal sense a judgment by consent. If plaintiff had assented to the order of court striking out the items We have examined very carefully a great many of the cases cited in support of this supposed distinction between the American and English courts, and find that if critical attention is given to the distinctions to which we have already adverted between a case decided by the court upon an admitted state of facts, and one decided by the parties them-spondent urges a preliminary objecselves solely by their own consent, which the court admits of record by registering the agreement, and between the estoppel of the agreement and that of the judgment, and to distinctions arising out of local statute regulating the subject of judgments by confession and agreed cases, it may be doubtful if there be SO much divergence between those courts on this subject. The most that can be said is that the authorities are conflicting on the question whether purely consent de 93 92 quest; a decree of the parties put on file with the sanction and permission of the court; the decree of the parties. In such decrees the parties acting for themselves may provide as to them seems best concerning the subject matter of the litigation.94 195 CONSENT RULË. In order to simplify the common-law action of ejectment, the court imposed terms upon the tenant in possession upon admitting him as a defendant by requiring him to enter into a rule of court known as a "consent rule,' to confess three of the four requisites for the maintenance of the action, namely, lease, entry, and ouster, which were wholly fictitious, leaving the trial to stand on the merits of the title only.96 This was, until recently, used in England, and still is in those states in which ejectment is still retained as a means of acquiring possession of land.97 CONSEQUENCE.98 Connection of cause and effect, or of antecedent and consequent;9 a a .99 consecu 91. Bunn v. Braswell, 139 N. C. 92. Bunn v. Braswell, 139 N. C. Wilcox v. Wilcox, 36 N. C. 36, 94. Edney v. Edney, 81 N. C. 1, 3 [quot Bunn v. Braswell 139 N. C. 135, 51 SE 927, 928]. See Consent Decree ante p 520; and generally Judgments [23 Cyc 728, 733]. 95. Mt. Pleasant Cemetery Co. v. Erie R. Co., 74 N. J. L. 100, 102, 65 A 192. See generally Ejectment [15 Cyc 51 et seq]. 96. Mt. Pleasant Cemetery Co. v. Erie R. Co., 74 N. J. L. 100, 102, 65 A 192. [a] Nature and form.-"The consent rule contains the following particulars, viz.: first, the person appearing consents to be made defendant instead of the casual ejector; second, he agrees to appear at the suit of the plaintiff, and, if the proceedings are by bill, to file common bail; third, to receive a declaration in ejectment, and to plead not guilty; fourth, at the trial of the case, to confess lease, entry, and ouster, and to insist upon his title only; fifth, that if, at the trial, the party appearing shall not confess lease, entry, and ouster, whereby the plaintiff shall not be able to prosecute his suit, such party shall pay to the plaintiff the cost of the non pros., and suffer judgment to be entered against the casual ejector; sixth, that if a verdict shall be given for the defendant, or the plainany other cause than the.non-confession of lease, entry, and ouster, the lessor of the plaintiff shall pay costs to the defendant; seventh, that, when the landlord appears alone, the plaintiff shall be at liberty to sign judgment immediately against the casual ejector, but that execution shall be stayed until the court shall further order." Bouvier L. D. and allegations of the complaint, 97. Bouvier L. D. act Natural and probable, as proximate result." Monroe v. Hartford St. R. Co., 76 Conn. 201, 207, 56 A 498 [quot 556, [b] As meaning "immediate" or "proximate."-It has been held that a provision in an insurance policy that the company should be free of all claim for loss or damage occasioned by a derangement or breaking of the engine or machinery, or any "consequence" resulting therefrom, means immediate or proximate, and not a remote consequence. Orient Mut. Ins Co. v. Adams, 123 U. S. 67, 74, 8 SCt 68, 31 L. ed. 63. To same effect Roe v. Columbus Ins. Co., 17 Mo. 301, 305; Ionides v. Universal Mar. Ins. Co., 14 C. B. N. S. 259, 108 ECL 259, 143 Reprint 445, 14 ERC 271. 1. 2. Century D. Jordan v. Wyatt, 4 Gratt. (45 Va.) 151, 155, 47 AmD 720. See Consequential Injury post this page. 3. Skinner V. Hughes, 13 Mo. 440, 443. See also Natural [29 Cyc 280 note 23]. 4. A maxim meaning "The conse quence of a consequence does not exist." Morgan Leg. Max. 5-7. See Contempt § 4. Jordan v. Wyatt, 4 Gratt. (45 151, 155, 47 AmD 720. See also Case, Action on §§ 4-6. 15. Jordan v. Wyatt, 4 Gratt. (45 Va.) 151, 155, 47 AmD 720. [a] "Immediate" compared.-"The terms immediate' and 'consequentia!' should, as I conceive, be understood, not in reference to the time whichthe act occupies, or the space through which it passes, or the place from which it is begun, or the intention with which it is done, or the instrument or agent employed, or the lawfulness or unlawfulness of the act; but in reference to the progress and termination of the act, to its being done on the one hand, and its having been done on the other. If the injury is inflicted by the act, at any moment of its progress, from the commencement to the termination thereof, then the injury is direct or immediate; but if it arises after the act has been completed, though occasioned by the act, then it is consequential or collateral, or, more exactly, a collateral consequence. There is no better illustration of the distinction than the familiar case, commonly put, of throwing a log into the highway, which in its flight of fall, hits or strikes a person: there the injury is immediate, and the remedy may be trespass; but if, after it has fallen and while lying on the ground, a passenger stumbles over it and is hurt, the injury is consequential, and the remedy must be case. So, if one digs a ditch or trench, which diverts a stream of water from his neighbour's land, or makes a dam across the stream, which obstructs or checks its current and throws back the water upon the complainant's land; if the work be done upon or extended server; .18 CONSERVATOR. A guardian;16 protector;17 preone whose business it is to attend to the enforcement of certain statutes;" a delegated umpire or standing arbitrator, chosen to compose and adjust difficulties arising between two parties; 20 a preserver or maintainer.21 CONSERVATOR OF THE PEACE.22 A term applied to those who have especial charges, by virtue of their office, to see that the King's peace is kept;23 an officer who has charge of preserving the into the plaintiff's land, there is an immediate injury, from the digging into the plaintiff's ground, or the throwing up of the earth or stones or logs upon it, to be redressed by an action of trespass vi et armis; in which the consequential damages from the diversion or reflux of the water may be recovered under a per quod, or by way of aggravation. But if the work be not done upon or extended into the plaintiff's land, the injury is consequential merely, and can be redressed only by an action of trespass on the case. In these instances, and all others that can be put, it is the progress of the act or work which does the immediate injury; and it is the completion of the act or work which thereafter gives rise to the consequential or collateral injury." Jordan v. Wyatt, 4 Gratt. (45 Va.) 151, 154, 47 AmD 720. [b] As applicable to eminent domain-"There is not a word about 'consequential' injuries in the constitution. The word itself has acquired a broad, popular meaning by which many persons may be misled. In judicial proceedings it should be used intelligently and with due regard to its proper meaning. In its application to the constitution we understand it to mean an injury to a man's property, the natural and necessary result of the construction or enlargement of its works by a corporation; an injury of such certain character that the damages therefor can be estimated and paid or secured in advance as provided in the constitution. And attention is again called to the cases which I have cited, and in which the constitutional provision has been invoked, and in all of which there has been an actual, positive, visible injury, the necessary result of the original construction.' Penn. R. Co. v. Marchant, 119 Pa. 541, 557, 13 A 690, 4 AmSR 659. See also Consequential Damages ante p 521. 16. Black L. D. "to [a] Powers and duties. In Connecticut the county courts are authorized to appoint and empower "some meet person a conservator, to take care of and oversee such idiots, &c., and their estates, for their support who shall be accountable to said courts for their management of such trust." The operative words, defining the authority of a conservator, are "to take care of and oversee" such idiots and their estates, for their support. If the expression is construed according to the popular meaning, it is impossible that the mind should be left in doubt as to its meaning. When expounded in reference to the subject matter, by the words oversee," the conservator is authorized to superintend; and by the expression "to take care of," it is made his duty to assume the requisite charge, in order to the preservation and profit of the estate. This literal construction of the law confers no right to sell, or lease the property; nor is it extended at all, by the object, which the legislature had in view. It was their intent to procure an income from the use of the idiot's estate, by its superintendency and oversight; and this trust was to be committed exclusively to the conservator. His power was wholly confined within these boundaries. Treat v. Peck, 5 Conn. 280, 284. 17. 18. 19. 20. Black L. D. Bouvier L. D. 21. Jones v. State, (Tex. Cr.) 65 SW 92 [cit Century D.; Rapalje & L. L. D.]. [a] Conservators of rivers are commissioners or trustees in whom the control of a certain river is vested, in England, by act of parliament. Black L. D. [b] Conservator of truces and safe-conducts.-(1) An officer appointed by the king's letters patent, whose charge was to inquire of all offenses done against the king's truce and the safe-conducts upon the main sea, out of the liberties of the Cinque Ports (Jacob L. D. See also Cinque Ports 11 C. J. p 766); (2) such as the breaking of truces and safe-conducts, and abetting and receiving the trucebreakers, which were declared to be treasons (Burrill L. D.). (3) These offenses, when committed at sea, they were empowered to hear and determine according to the ancient marine law then practiced in the admiral's court (Burrill L. D. [cit 4 Blackstone. Comm. 69]), (4) when the body of committed within a county, to determine with two men 22. Conservator of the peace: See also Justices of the Peace [24 23. Bouvier L. D. [quot State v. peace. Stephen Hist. Cr. L. 110; 19 State 24. Webster D. [quot State v. Shockley, 29 Utah 25, 33, 80 P 865, 110 AmSR 639]. 25. Jones v. State, (Tex. Cr.) 65 SW 92 [cit Century D.; Rapalje & L. L. D.]. 26. Jones v. State, (Tex. Cr.) 65 SW 92. 27. State v. Shockley, 29 Utah 25, 34, 80 P 865, 110 AmSR 639 [cit Cycl. 28. Smith v. Abbott, 17 N. J. L. 358, 366 [cit 2 Burn Just. 577]. [a] As possessing the power of commitment (1) Among others. sheriffs are conservators of the peace. "Constables, tithingmen, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace, and commit them till they find sureties for their keeping it." Jacobs L. D. [quot Ex p. Rhodes, 2 Wheel. Cr. (N. Y.) 559, 562]. (2) "Conservators of the peace did commit at common law, and it was incident to their office, as it is to the office of justices of the peace who are not authorized by any express words in their commission, but do it, ratione officie." 15 Viner Abr. 8 [quot Ex p. Rhodes, supra]. [a] Historical reference.(1) "Before the reign of Edward III., who created justices of the peace, there were sundry persons interested to keep the peace, of whom there were two classes: one of which had the power annexed to the office which they hold; the other had it merely by itself, and were hence called wardens or conservators of the This latter sort are superseded by the modern justices of the peace. The king was the principal conservator of the peace within all his dominions. The lord chancellor or keeper, the lord treasurer, the lord high steward, the lord marshal and lord high constable, all the justices of the court of king's bench (by virtue of their offices), and the master of the rolls (by prescription) were general conservators of the peace throughout the whole king[a] Mandatory and permissive dom, and might commit all breakers duties. It has been held that the of it, or bind them in recognizances provisions of the constitution of to keep it: the other judges Utah that certain officers "shall be only so in their own courts. The conservators of the peace and may coroner was also a conservator of the hold preliminary examinations" impeace within his own county, as also poses a positive duty in respect to the sheriff, and both of them might breaches of the public peace comtake recognizances or security for mitted in their presence, but does the peace. Constables, tythingmen, not impose a positive duty in reand justices of the peace were also spect to holding preliminary examconservators of the peace within inations, and a statute conferring their own jurisdiction; and might ap- jurisdiction on other officers to act prehend all breakers of the peace. as committing magistrates is not in and commit them until they found conflict with the constitution. State sureties for their keeping it." v. Shockley, 29 Utah 25, 33, 80 P Bouvier L. D. [cit Burns Justice; 865, 110 AmSR 639. were 29. Hooks v. State, 71 Tex. Cr. 269, 270, 158 808: Jones v. State, (Tex. Cr.) 65 SW 92; State v. Shockley, 29 Utah 25, 80 P 865, 868, 110 AmSR 639. |