2.
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 the
consent has been given.
3.
- 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. 200; 12 Ves. 19.
5.
- 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.
6.
- 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.
7.
- 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 evinced 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 Rob. Leg.. 345, 539.
8.
- 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. & El 11. 469 9
Barn. & Cr. 586; 3 Barn. & Adolph. 318, note.
9.
The consent which is implied in every agreement is excluded, 1. By
error in the essentials of the contract; ,is, 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 the sale,
unknown to either party, being dead. This decision is founded on the
rule that he who consents through error does not consent at all; non
consentiunt qui errant. Dig. 2, 1, 15; Dig. lib. 1, tit. ult. 1. 116, 2.
2. Consent is excluded 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 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. See Bouv. Inst.
Index, h. t.
CONSENT RULE.
In the English practice, still adhered to in some of the states of the
American Union, the defendant in ejectment is required to enter on
record that he confesses the lease, entry, and ouster of the plaintiff;
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 plaintiff; 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 trial 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 be able to
prosecute his suit, such party shall pay to the plaintiff the costs of
the nonpros, and suffer judgment to be entered against the casual
ejector; 6. That if a verdict shall be given for the defendant, 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 casual 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. 25. Vide 2 Cowen, 442; 4 John. R. 311; Caines' Cas. 102;
12 Wend. 105, 3 Cowen, 356; 6 Cowen, 587; 1 Cowen, 166; and Casual
Ejector; Ejectment.
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