Conscience

The moral sense,
or that capacity of our mental constitu-
tion, by which we irresistibly feel the
ditference between right and wrong.

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301

2. — The constitution of the United
States wisely provides that “ no reli-
gious test shall ever be required.” No
man, then, or body of men, have a right
to control a man’s belief or opinion in
religious matters, or to forbid the most
perfect freedom of inquiry in relation
to them, by force or threats, or by any
other motives than arguments or per-
suasion. Vide Story, Const. § 1841-
1843.

CONSENSUAL, civil law. This
word is applied to designate one species
of contract known in the civil laws ;
these contracts derive their name* from
the consent of the parties which is re-
quired in their formation, as they can-
not exist without such consent.

2. — The contract of sale, among the
civilians, is an example of a consensual
contract, because the moment there is
an agreement between the seller and
the buyer as to the thing and the price,
the vender and the nurciiascr, have re-
ciprocal actions. On the contrary, on
a loan, there is no action by the lender
or borrower, although there may have
been consent, until the thing is delivered
or the money counted. This is a real
contract in the sense of the civil law.
Lee. El. Dr. Rom. § 895 ; Poth. Ob. pt.
1, c. l,s. 1, art. 2 ; 1 Bell’s Com. (5th
cd.) 435. Vide Contract .

CONSENT, is an agreement to
something proposed, and differs from
assent, (q. v.) NVoltf, Ins. Nat. part 1,
§§ 27-30 ; Pard. Dr. Corn. part. 2, tit.
1, n. 138 to a 178,

2. — Consent is either express or im-
plied. Express when it is given viva
voce, or in writing ; implied, when it is
manifested by signs, actions or facts,
or by inaction or silence, which raise a
presumption that the consent has been
given.

3. — 1. When a legacy is given with
a condition annexed to the bequest, re-
quiring the consent of executors to the
marriage of the legatee, and under such
consent being given, a mutual attach-
ment has been suffered to grow up, it
would be rather late to state terms and
conditions on which a murriage be-
tween the parties should take place, 2

Ves. 6c Bcamcs, 234 ; Arnbl. 204 ; 2
Frecm. 201 ; unless such consent was
obtained by deceit or fraud, 1 Eden, 0 ;
1 Phil lira. 200 ; 12 Ves. 19.

4. — 2. Such a condition does not
apply to a second marriage. 3 Bro. C.
C. 145; 3 Ves. 239.

5. — 3. If the consent has been sub-
stantially given, though not vwdo cl
forma , the legatee will be held duly
" n titled to the legacy. 1 Sim. 6c
Stu. 172; 1 Mcriv. 187; 2 Atk. 205.

G. — 4. When trustees under a mar-
riage settlement are empowered to sell
“ with the consent of the husband and
wife,” a sale made by the trustees
without the distinct consent of tlx; wife,
cannot bo a duo execution of their
power. 10 Ves. 378.

7. — 5. Where a power of sale re-
quires that the sale should lie with tho
consent of certain specified individuals,
the fact of such consent having been
given, ought to be evinced in the man-
ner pointed out by the creator of the
power, or such ] lower will not lie con-
sidered as properly executed. 10 Ves.
308. Vide, generally, 2 Supp. to Ves.
jr. 101, 165, 109 ; Avlille’s Pand. 117 ;
1 Rob. Leg. 345, 539.

8. — 0. Courts of equity have estab-
lished tho rule that when the true
owner of property stands by, and
knowingly suffers a stranger to sell the
same as his own, without objection,
this will bo such implied consent us to
render the sale valid against the truo
owner. Story on Ag. § 91 ; Story on
Eq. Jur. § 385 to 390. And courts of
law, unless restrained by technical
formalities, act uj>on tho principles of
justice ; as, for example, when a man
[jermitted, without objection, the sale of
his goods under an execution against
another ]>erson. 6 Adolph. 6c Ell.
469 ; 9 Barn. 6c Cr. 586 ; 3 Barn. 6c
Adolph. 318, note.

9. — The consent which is implied in
every agreement is excluded, 1, by
error in the cssentiuls of the contract,
as, if Paul, in the city of Philadelphia,
buy tho horse of* Peter, which is in
Boston, and promise to pay one hun-
dred dollars for liirn, the horse at tho

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time of the sale, unknown to either ,
party, being dead. 2. Consent is ex-
cluded by duress of the party making
the agreement. 3. Consent is never
given so as to bind the parties, when ,
it is obtained by fraud. 4. It cannot
be given by a person who has no un-
derstanding, as an idiot, nor by one
who, though possessed of understand- j
ing, is not in law capable of making a '
contract, ns a feme covert.

Consent rule. In the English
practice, still adhered to in some of the
states of the American union, the de-
fendant in ejectment is required to
enter on record that he conlcsscs the
lease, entry, and ouster of the plain-
tiff; this is called the consent rule.

2. — The consent rule contains the
following particulars, namely : 1. The
person appearing consents to be made
defendant instead of the casual ejector;
2. To appear at the suit of the plain-
tiff; and, if the proceedings are by
bill, to file common bail; 3. To receive
a declaration in ejectment, and plead
not guilty ; 4. At the triul of the case
to confess lease, entry, and ouster, and
insist upon his title only ; 5. That if
at the trial, the party appearing shall
not confess lease, entry, and ouster,
whereby the plaintiff shall not bo able
to prosecute his suit, such party shall
pay to the plaintiff the costs of the non
pros, and sutler judgment to be entered
against the casual ejector ; 6. That if
a verdict shall be given for the defen-
dant, or the plaintiff shall not prosecute
his suit for any other cause than the
non-confession of lease, entry, and
ouster, the lessor of the plaintiff shall
pay costs to the defendant ; 7. When
the landlord appears alone, that the
plaintiff shall be at liberty to sign
judgment immediately against the ca-
sual ejector, but that execution shall be
stayed until the court shall further
order. Adams, Ej. 233, 234 ; and
for a form see Ad. Ej. Appx. No. 23.

Vide 2 Cowen, 442 ; 4 John. R.
31 i; Caincs's Cas. 102; 12 Wend.
105; 3 Cowen, 350; 0 Cowen, 587 ;

1 Cowen, 100 ; and Casual Ejector ;
Ejectment .

CONSEQUENTIAL DAMAGES,
torts , arc those damages or those losses
which arise not from the immediate act
of the party, but in consequence of
such act ; as, if n man throw a log
in the public streets, and another fall
on it and become injured by the fall ;
or if a man should erect a dam over
his own ground, and by that means
overflow his neighbour’s to his injury.

2. — The form of action to be insti-
tuted for consequential damages caused
without force, is by action on the case.
3 East, 602; 1 Stran. 636; 5 T. R.
649 ; 5 Vin. Ah. 403 ; 1 Chit. PI. 127.
Kamos on Eq. 71. Vide Immc/liate.

CONSERVATOR, a preserver, a
protector.

2. — Before the institution of the office
of justices of the peace in England,
the public order was maintained by
officers who bore the name of conser-
vators of the peace. All judges, jus-
tices, sheriffs, and constables are con-
servators of the peace, and arc bound,
cx officio, to be aiding and assisting in
preserving order.

3. — In Connecticut, this term is ap-
plied to designate a guardian who has
the care of the estate of an idiot. 5
Conn. R. 280.

CONSIDERATION CURLE, prac-
tice, is the judgment of the court. In
pleadings where matters arc determined
by the court it is said, therefore it is
considered and adjudged by the court,
idea consvlnatum cst per curiam.

CONSIDERATION, contracts , is
the compensation which is paid, or in-
convenience suffered by the party from
whom it flows. Or it is the reason
which moves the contracting party to
enter into the contract. 2 Bl. Com.
443. Viner defines it to bo a cause or
occasion meritorious, requiring a mu-
tual recompense in deed or in law.
Abr. tit. Consideration, A.

2. — A consideration of some sort or
other, is so absolutely necessary to the
forming a good contract, that a mulum
pactum , or an agreement to do or to
pay any thing on one side, without any
compensation to the other, is totally
void in law ; and a man cannot bo

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303

compelled to perforin it. Dr. & Stud,
d. 2, c. 24 ; 3 Call, R. 439 ; 7 Conn. 1
57 ; 1 Stew. R. 51 ; 5 Mass. 301 ; 4
John. R. 235; 0 Yerg. 418; Cooke,
R. 467 ; 0 Halst. R. 174 ; 4 Munf. R.
95. But contracts under seal are valid
without a consideration ; or, perhaps,
more properly shaking, every bond
imports in itself a sufficient considera-
tion, though none be mentioned. 11
Serg. & R. 107 ; and negotiable in-
struments, as bills of exchange and
promissory notes, carry with them
prima facie evidence of consideration.
2 Bl. Com. 445.

3. — The consideration must be some
benefit to tlie party by whom the pro-
mise is made?, or to u third person at
his instance ; or some detriment sus-
tained at the instance of the party
promising, by the party in whose fa-
vour the promise is made. 4 East,
455; 1 Taunt. 523*; Chitty on Contr.
7 ; Dr. & Stu. 179 ; 1 Sclw. N. P. 39,
40; 2 Pet. 182; 1 Litt. 123; 3 John.
100 ; 0 Mass. 58 ; 2 Bibb, 30 ; 2 J. J.
Marsh. 222; 5 Crunch, 142, 150; 2
N. II. Rep. 97 ; Wright. R. 660 ; 14
John. R. 466; 13 S. & R. 29; 3 M.
Gr. & Sc. 321.

4. — Considerations arc good, ns
when they are for natural love and
affection ; or valuable?, where some be-
nefit arises to the party to whom they
are made, or inconvenience to the
party making them; Vin. Abr. Consi-
deration, B.

5. — They nro legal, which are suffi-
cient to support the contract; or illegal,
which renders it void. As to illegal
considerations, see 1 IIov. Supp. to
Ves. jr. 295 ; 2 Hov. Supp. to Yes. jr.
448. If the jicrformancc be utterly
impossible, in fact or in law, the con-
sideration is void. 2 Lev. 161; Yelv.
197, and note ; 3 Bos. & Pull. 296, n.;
14 Johns. R. 381.

6. — A mere moral obligation to pay
a debt or perform a duty, is a sufficient
consideration for an exp mss promise,
although no legal liability existed at the
time of making such promise. Cowp.
290; 2 Bl. Com. 445; 3 Bos. & Pull.
249, note ; 2 East, 506 ; 3 Taunt. 311 ;

5 Taunt. 36 ; 13 Johns. R. 259 ; Yelv.
41, b, note; 3 Pick. 207. But it is to
be observed that in such cases there
must have bi?cn a good or valuable con-
sideration ; for example, every one is
under a moral obligation to relieve
a person in distress, a promise to do
so, however, is not binding in law.
One is bound to pay a debt which he
owes, although he lias been released ;
a promise to pay such a debt is obli-
gatory in law on the debtor, and can
therefore lie enforced bv action. 12
S. & R. 177 ; 19 John. R. 147; 4 W.
C. C. R. 86, 148; 7 John. R. 36; 14
John. R. 178; 1 Cowen, R. 249; 8
Mass. R. 127. See 7 Conn. R. 57 ; 1
Verm. R. 420; 5 Verm. R. 173; 5
llam. R. 58; 3 Penna. R. 172; 5
Binn. R. 33.

7. — In respect of time, a conside-
ration is either y 1st, executed, or some-
thing done before the making of the
obligor’s promise; Yelv. 41, a. n. In
general an executed consideration is in-
sufficient to support a contract, 7 John.
R. 87 ; 2 Conn. R. 404 ; 7 Cowen, R.
358 ; but an executed consideration on
request , 7 John. R. 87 ; 1 Caines, R.
584, or by somo previous duty, or if
the debt be continuing at the time, or
it is barred by some rule of law, or
some provision of a statute, as the act
of limitation, it is sufficient to maintain
an action. 4 W. C. C. R. 148; 14
John. R. 378; 17 S. A; R. 126; 2dly,
executory, or something to be done
after such promise ; 3dly, concurrent,
ns in the ease of mutual promises;
and, 4thly, a continuing consideration.
Chitty on Contr. 16.

8. — As to cases where the contract
has been set aside on the ground of a
total failure of the consideration, sec
1 1 Johns. R. 50; 7 Mass. 14; 3 Johns.
R. 458 ; 8 Mass. 46 ; 6 Craneh, 53 ;
2 Caines’s Rep. 246; and 1 Camp.
10, n.

See, in general, Obligation ; New
Promise ; Evans’s Poth. vol. ii. p. 19;
1 Fonb. Eq. 335; Nowl. Contr. 65 ; 1
Com. Contr. 26; Fell on Guarrant.
337 ; 3 Chit. Com. Law, 63 to 99 ; 3
Bos. & Pull. 249, n ; 1 Fonb. Eq. 122,

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note lb. 370, note g ; 5 East, 20, n.;

2 Sound. 211, note 2; Lowes PI. Ass,
49 : 1 Com. Dig. Action upon thy^ensc
upon Assumpsit, B; V iu. Abr. Actions
of Assumpsit, Q; lb. tit. Considc- (
ration.

CONSIGNATION, contracts, in the
civil law, is n deposit which n debtor
mukes of the thing that he owes into .
the hands of a third person, and under
the authority of a court of justice.
Both. Oblig. P. 3, c. 1, art. 8.

2. — Generally the consignation is
made with a public officer; it is very
similar to our practice of paying money
into court.

3. — The term to consign, or con-
signation, is derived from the Latin
consignarc , which signifies to seal, for
it was formerly the practice to seal up
the money thus received in a bag or
box. Aso & Man. Inst. B. 2, t. 11, c.
1, § 5. See Burge on Sur. 138.

CONSIGNEE, contracts , one to
whom a consignment is made.

2. — When the goods consigned to
him are his own, and they have been
ordered to be sent, they arc at his risk
the moment the consignment is made
according to his direction ; and the
persons employed in tho transmission
of the goods are his agents. 1 Liverm.
on Ag. 9. When the goods are not
his own, if he accept the consignment,
he is bound to pursue the instructions
of the consignor ; as if the goods be
consigned upon condition that the con-
signee will accept the consignor’s bills,
he is bound to accept them; lb. 139;
or if he is directed to insure, he must
do so. Ib. 325.

3. — It is usual in bills of lading to
state that the goods are to be delivered
to the consignee or his assigns, he or
they paying freight ; in such case the
consignee or his assigns by accepting
the goods, by implication, become
bound to pay the freight. Abbott on
Sh. p. 3, c. 7, § 4 ; 3 Bing. R. 383.

4. — Where a person acts, publicly as
a consignee, there is an implied en-
gagement on his part that he will be
vigilant in receiving goods consigned
to liis care, so us to make him resjKjii*

si hie for any loss which the o wner may
sustain in consequence of his neglect
9 Watts & Serg. 62.

CONSIGNMENT, the goods or pro-
perty sent by a common carrier from
one or more persons called the con-
signors, from one place, to one or more
persons, called the consignees, who are
in another. By this term is also un-
derstood the goods sent by one person
to another, to be sold or disposed of by
the latter for and on account of the
former.

CONSIGNOR, contracts , is one
who makes a consignment to another.

2. — When goods are consigned to
to be sold on commissions, and the
property remains in the consignor; or
when goods have been consigned upon
u credit, and the consignee has become
a bankrupt or failed, the consignor has
a right to stop them in transitu , (q.v.)
Abbott on Sh. p. 3, c. 9, s. 1.

3. — The consignor is generally lia-
ble for the freight or the biro for the
carriage of goods. 1 T. R. 659.

CONSILIUM, or dies con&ilii, -prac-
tice, a time allowed for the accused to
make his defence, and now more com-
monly used for u day appointed to ar-
gue a demurrer.

CONSISTORY, ecclesiastical law.
An assembly of cardinals convoked by
the Poj>c. The consistory is public or
secret. It is • public when the Pope
receives princes or gives audience to
ambassadors ; secret , when lie; fills va-
cant sees, proceeds to the canonization
of saints, or judges and settles certain
contestations submitted to him.

2. — A court which was formerly
held among protestnnts, in some
church in which the bishop presided,
assisted by some of his clergy, also
bears this name. It is now held in
England, by the bishop’s chancellor or
commissary, and some other ecclesias-
tical officers, either in the cathedral,
church or other place in his diocese,
for the determination of ecclesiastical
cases arising in that diocese. Merl.
Rep. h. t. ; Burns’s Diet. h. t.

CONSOLATO DEL MARE, (IL)
The name of a code of sea laws com-

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305

piled by order of the ancient kings of
Arragon. Its date is not very certain,
but it was adopted on the continent of
Europe, as the code of maritime law in
the course of the eleventh, twelfth, and
thirteenth centuries. It comprised the
ancient ordinances of the Greek and
Roman emperors, and of the kings of
France and Spain; and the laws of the
Mediterranean islands, and of Venice
and Genoa. It was originally written
in the dialect of Catalonia, as its title
plainly indicates, and it lias been trans-
lated into every language of Europe.

CONSOLIDATION, civil late , is
the union of the usufruct with the es-
tate out of which it issues, in the same
person ; which happens when the usu-
fructuary acquires the estate, or vice
versa. In either case the usufruct is
extinct. In the common law this is
called a merger. Lee. El. Dr. Rom.
424. U. S. Dig. tit. Actions, V.

2. — Consolidation may take place in
two ways : first, by the usufructuary
surrendering his right to the proprie-
tor, which in the common law is called
a surrender ; secondly, by the release
of the proprietor of his rights to the
usufructuary, which in our law is call-
ed a release.

Consolidation ri le, practice , com.
law. When u number of actions arc
brought on the same policy, it is the
constant practice, for the purpose of
saving costs to consolidate them by a
rule of court or judge’s order, which
restrains the plaintilf from proceeding
to trial in more than one, and hinds the
defendants in all the others to abide the
event of that one ; hut this is done up-
on condition that the defendant shall
not file any bill in equity, or bring any
writ of error for delay. 2 Marsh. Ins.
701. For the history of this rule,
vide Parke on Ins. xlix.; Marsh. Ins.
B. 1, c. 10, s. 4. And sec 1 John.
(';is. 80 ; 19 Wend. 23; 18 Wend!
044 ; 5 Cowcn, 282 ; 4 Cowen, 78 ;
Id. 85 ; 1 John. 20 ; 9 John. 202.

2. — The term consolidation seems
to be rather misapplied in those coses,
for in point of fact there is a mere stay
of proceedings in all those cases but

Vol. i. — 39

one, 3 Chit. Pr. 044. The ride is now
extended to other cases : when several
actions are brought on the same bond
against several obligors, an order for
a stay of proceedings in all but one
will be made. 3 Chit. Pr. 045 ; 3
Carr. & P. 58. See 4 Ycatcs, R.
128; 3 S. & R. 262; Coleman, 02;
3 Rand. 481 ; 1 N. & M. 417, n. ; I
Cowen, 89 ; 3 Wend. 441 ; 9 Wend!
451 ; 2 N. & M. 438,440, n. ; 5 Cow-
en, 282 ; 4 I In 1st. 335; 1 Dali. 145;
1 Browne, Appx. Ixvii. 1 Ala. R. 77 ;
1 Hill, R. 40 ; 19 Wend. 23 ; 5 Yerg.
297 ; 7 Miss. 177 ; 2 Tayl. 200.

CONSOLS, Eng. laic. This is an
abbreviation for consolidated annuities.
Formerly when a loan was made au-
thorized by government, n particular
part of the revenue was appropriated
for the payment of the interest and of
the principal, this was called the fund,
and every loan had its fund. In this
manner the Aggregate fund originated
in 1715; the South Sea fund, in 1717 ;
tbo General fund, in 1617 ; and the
Sinking fund into which the surplus of
those three funds flowed, which, al-
though destined for the diminution of
the national debt, was applied to the
necessities of the government. Thcso
I four funds were consolidated into one
! in the year 1787, under the name of
consolidated fund.

2. — The income arises from tho re-
ceipts on account of excise, customs,

! stamps, and other perpetual taxes. Tho
| charges on it arc the interest on and
I the redemption of tho public debt ; the
civil list ; the salaries of the judges and
officers of state, and the like.

3. — Tho annual grants on account
of the army and navy, and every part
of the revenue which is considered

I temporary, are excluded from this
I fund.

4. — -Those persons who lent the mo
' noy to the government, or their assigns,

arc entitled to an annuity of three per
cent, on the amount lent, which, how-
ever, is not to be returned, except at
the option of the government ; so that
the holders of consols are simply amm*
itants.

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