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3, t. 1, ch. n. 115. Some portion of the blood of the common ancestor flows into the veins of all his descendants, and though mixed with the blood flowing from many other families, yet it constitutes the kindred or alliance by blood between any two of the individuals. This relation by blood is of two kinds, lineal and collateral.
Lineal consanguinity is that relation which exists among persons, where one is descended from the other, as between the son and the father or the grandfather, and so upwards in a direct ascending line; and between the father and the son, or the grandson, and so downwards in a direct descending line. Every generation in this direct course makes a degree, computing either in the ascending or descending line. This being the natural mode of computing the degrees of lineal consanguinity, it has been adopted by the civil, the canon, and the common law.
Collateral consanguinity is the relation subsisting among persons who descend from the same common ancestor, but not from each other. It is essential to constitute this relation, that they spring from the same common root or stock, but in different branches. The mode of computing the degrees is to discover the common ancestor, to begin with him to reckon downwards, and the degree the two persons, or the more remote of them is distant from the ancestor, is the degree of kindred subsisting between them. For instance, two brothers are related to each other in the first degree, because from the father to each of them is one degree. An uncle and a nephew are related to each other in the second degree, because the nephew is two degrees distant from the common ancestor, and the rule of computation is extended to the remotest degrees of
collateral relationship. This is the mode of computation by the common and canon law. The method of computing by the civil law, is to begin at either of the persons in question, and count up to the common ancestor, and then downwards to the other person calling it a degree for each person, both ascending and descending, and the degrees they stand from each other, is the degree in which they stand related. Thus from a nephew to his father is one degree, to the grandfather two degress, and then to the uncle three, which points out the relationship. The mode of the civil law is preferable, for it points out the actual degree of kindred in all cases; by the mode adopted by the common law, different relations may stand in the same degree. The uncle and nephew stand related in the second degree by the common law, and so are two first cousins, or two sons of two brothers; but- by the civil law the uncle and nephew are in the third degree, and the cousins are in the fourth. The mode of computation, however, is immaterial, for both will establish the same person to be the heir. 2 Bl. Com. 202; 1 Swift's Dig. 113; Toull. Dr. Civ. Ft. liv. 3, t. 1, c. 3, n. 115. Vide Branch; Degree; Line.
CONSCIENCE. The moral sense, or that capacity of our mental constitution, by which we irresistibly feel the difference between right and wrong. The constitution of the United States wisely provides that "no religious 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 persuasion. Vide Story, Const. § 18411843.
CONSENSUAL, civil law. This word is applied to designate one species of contract; known in the civil law; these contracts derive their name from the consent of the parties which is required in their formation, as they cannot exist without such consent. 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 vendor and the purchaser, have reciprocal 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. Lec. El. Dr. Rom. § 895. Poth. Ob. pt. 1, c. 1, s. 1, art. 2; 1 Bell's Com. (5th ed.) 435. Vide Contract.
CONSENT, is an agreement to something proposed, and differs from assent, (q. v.) Wolff, Ins. Nat. part 3, § 1054. Consent is either express or implied. 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 consent has been given.— 1. When a legacy is given with a condition annexed to the bequest, requiring the consent of executors to the marriage of the legatee, and under such consent being given a mutual attachment has been suffered to grow up, it would be rather late to state terms and conditions on which a marriage between the parties should take place, 2 Ves. & Beames. 234 ; Ambl. 264; 2 Freem. 201; unless such consent was obtained by deceit or fraud, 1 Eden, 6; 1 Phillim. 300; 12 Ires. IO.-- 2. Such a condition does not apply to a second marriage. 3 Bro. C. C. 145; 3 Ves. 239.-3. If the consent has been substantially given,
though not modo et forma, the legatee will be held duly entitled to the legacy.. 1 Sim. & Stu. 172; 1 Meriv. 187; 2 Atk. 265.-4. When trustees under a marriage settlement are empowered to sell "with the consent of the husband and wife," a sale made by the trustees without the distinct consent of the wife, cannot be a due execution of their power. 10 Ves. 378.—5. Where a power of sale requires that the sale should be with the consent of certain specified individuals, the fact of such consent having been given, ought to be evidenced in the manner pointed out by the creator of the power, or such power will not be considered as properly executed. 10 Ves. 308. Vide, generally, 2 Supp. to Ves. jr. 161, 165, 169; Ayliffe's Pand. 117; 1 Rop. Leg. 345, 539.-6. Courts of equity have established the 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 be such implied consent as to render the sale valid against the true owner. Story on Ag. § 91 ; Story on Eq. Jur. § 385 to 390. And courts of law, unless restrained by technical formalities, act upon the principles of justice; as, for example, when a man permitted, without objection, the sale of his goods under an execution against another person. 6 Adolph. & Ell. 469; 9 Barn. & Cr. 586; 3 Barn. & Adolph. 318, note.
The consent which is implied in every agreement is excluded, 1, by error in the essentials of the contract, as, if Paul, in the city of Philadelphia, buy the horse of Peter, which is in Boston, and promise to pay one hundred dollars for him, the horse at the time of sale, unknown to either party, being dead. 2. Consent is excluded by duress of the party making the agreement. 3. Consent is never given so as to bind the parties, when I
it is obtained by fraud. 4. It cannot be given by a person who has no understanding, as an idiot, nor by one who, though possessed of understanding, is not in law capable of making a contract, as a feme covert.
CONSEQUENTIAL DAMAGES, torts, are those damages or those losses which arise, not from the immediate act of the party, but in consequence of such act; as, if a 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. The form of action to be institued for consequential damages caused without force, is by action on the case. 3 East, 602; 1 Stran. 636; 5 T. R. 649; 5 Vin. Ab. 403; 1 Chit. PI. 127. Kames on Eq. 71. Vide Immediate.
CONSERVATOR, a preserver, a protector. 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 conservators of the peace. All judges, justices, sheriffs and constables are conservators of the peace, and are bound, ex officio, to be aiding and assisting in preserving order. In Connecticut, this term is applied to designate a guardian who has the care of the estate of an idiot. 5 Conn. R. 280.
CONSIDERATIO CURIAE, practice, is the judgment of the court. In pleadings where matters are determined by the court it is said, therefore it is considered and adjudged by the court, idea consideratum est per curiam.
CONSIDERATION, contracts, is the compensation which is paid, or inconvenience 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 be
a cause or occasion meritorious, requiring a mutual recompense in deed or in law. Abr. tit. Consideration, A. A consideration of some sort or other, is so absolutely necessary to the forming a good contract, that a nudum 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 be compelled to perform it. Dr. & Stud. d. 2, c. 24; 3 Call, R. 439; 7 Conn. 57; 1 Stew. R. 51; 5 Mass. 301; 4 John. R. 235; 6 Yerg. 418; Cooke, R. 497; 6 Halst. R. 174; 4 Munf. R. 95. But contracts under seal are valid without a consideration; or, perhaps more properly speaking, every bond imports in itself a sufficient consideration, though none be mentioned. 11 Serg. & R. 107; and negotiable instruments, as bills of exchange and promissory notes, carry with them prima facie evidence of consideration. 2 Bl. Com. 445.
The consideration must be some benefit to the party by whom the promise is made, or to a third person at his instance; or some detriment sustained at the instance of the party promising, by the party in whose favour the promise is made. 4 East, 455; 1 Taunt. 523; Chitty on Contr. 7; Dr. & Stu. 179; 1 Selw. N. P. 39, 40; 2 Pet. 182; 1 Litt. 123; 3 John. 100; 6 Mass. 58; 2 Bibb, 30; 2 J. J. Marsh. 222; 5 Cranch, 142, 150; 2 N. H. Rep. 97; Wright, R. 660; 14 John. R. 466; 13 S.&R.29.
Considerations are good, as, when they are for natural love and affection; or valuable, where some benefit arises to the party to whom they are made, or inconvenience to the party making them; Vin. Abr. Consideration, B.
They are legal, which are sufficient to support the contract; or illegal, which renders it void. As to illegal considerations, see 1 Hov. Supp. to Ves. jr. 295; 2 Hov. Supp. to Ves. jr. 448. If the performance be utterly impossible, in fact or in law, the consideration is void. 2 Lev. 161 ; Yelv. 197, and note; 3 Bos. & Pull. 296, n.; 14 Johns. R. 381.
A mere moral obligation to pay a debt or perform a duty, is a sufficient consideration for an express promise, although no legal liability existed at the time of making such promise. Cowp. 2y0; 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 been a good or valuable consideration; 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 has been released ; a promise to pay such debt is obligatory in law on the debtor, and can therefore be enforced by 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 Ham. R. 58; 3 Penna. R. 172 ; 5 Binn. R. M.
In respect of time a consideration is either, 1st, executed, or something done before the making of the obligor's promise; Yelv. 41, a. n. - In general an executed consideration is insufficient 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 some 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. & R. 126; 2dly, executory or something to be done after such promise; 3dly, concurrent, as in the case of mutual promises; and, 4thly, a continuing consideration. Chitty on Contr. 16.
As to cases where the contract has been set aside on the ground of a total failure of the consideration, see 11 Johns. R. 50; 7 Mass. 14; 3 Johns. R. 458; 8 Mass. 46; 6 Cranch, 53; 2 Caines's Rep. 246; and 1 Camp. 40, n.
See, in general, Obligation; New Promise; Evans's Poth. vol. ii. p. 19; 1 Fonb. Eq. 335; Newl. 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, note z; lb. 370, note g; 5 East, 20, n.; 1 Saund. 211, note 2; Lawes PI. Ass. 49; 1 Com. Dig. Action upon the case upon Assumpsit, B; Vin. Abr. Actions of Assumpsit, Q; lb. tit. Consideration.
CONSIGNATION, contracts, in the civil law, is a deposit which a debtor makes of the thing that he owes into the hands of a third person, and under the authority of a court of justice. Poth. Oblig. P. 3, c. 1, art. 8. Generally the consignation is made with a public officer; it is very similar to our practice of paying money into court. The term to consign, or consignation, is derived from the Latin consignare, 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.
CONSIGNEE, contracts, one to whom a consignment is made. When the goods consigned to him are his own, and they have been ordered to be sent, they are at his risk the moment the consignment is made according to his direction; and the persons employed in the 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 consignee 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. lb. 325. 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.
CONSIGNOR, contracts, is one who makes a consignment to another. When goods are consigned to be sold on commissions, and the property remains in the consignor; or when goods have been consigned upon a 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, § 1. The consignor is generally liable for the freight or the hire for the carriage of goods. IT. R. 659.
CONSILIUM, or dies consilii, practice, a time allowed for the accused to make his defence, and now more commonly used for a day appointed to argue a demurrer.
CONSISTORY, ecclesiastical law. A court which was formerly held among protestants, in some church in which the bishop presided, assisted by some of his clergy. It is now held in England, by the bishop's chancellor or commissary, and some other ecclesiastical officers, either in the cathedral, church or other place in his diocese, for the determination of ecclesiastical cases arising in that diocese. Merl. Rep. b. t.; Burn's Diet. h. t.
CONSOLIDATION, civil law, is the union of the usufruct with the estate out of which it issues, in the same person; which happens when the usufructuary acquires the estate, or vice versa. In either case the usufruct is extinct. In the common law this is called a merger. Lec. El. Dr. Rom. 424. U. S. Dig. tit. Actions, V.
CONSOLIDATION RULE, practice, com. law. When a number of actions are 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 plaintiff from proceeding to trial in more than one, and binds the defendants in all the others to abide the event of that one; but this is done upon 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. 16, s. 4. And see 1 John. Cas. 29; 19 Wend. 23; 13 Wend. 644; 5 Cowen, 282; 4 Cowen, 78; Id. 85; 1 John. 29; 9 John. 262. The term consolidation seems to be rather misapplied in those cases, for in point of fact there is a mere stay of proceedings in all those cases but one, 3 Chit. Pr. 644. The rule 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. 645 ; 3 Carr. & P. 53. See 4 Yeates, R. 128; 3 S. & R. 262; Coleman, 62; 3 Rand. 481; 1 N. ds M. 417, n.; 1 Cowen, 89; 3 Wend. 441; 9 Wend. 451 ; 2N. & M. 438, 440, n.; 5 Cowen, 282; 4 Halst. 335; 1 Dall. 145; 1 Browne, Appx. lxvii.
CONSORT. A man or woman married. The man is the consort of his wife, the woman is the consort of her husband.