CONDITIONS PRECEDENT AND SUB SEQUENT-continued. Conditions precedent or subsequent may be void conditions. There is, however, a very great distinction between real property on the one hand and personal property on the other, with reference to the effect of such conditions being void; for real property is governed entirely by the Common Law, whereas personal property is largely subject to rules derived from the Roman Civil Law. Thus, firstly, with reference to real property, if a condition in restraint of marriage is general and therefore void, then, (a.) If the condition is precedent, no estate or interest will arise, because the estate was only to arise upon the fulfilment of the condition, which is impossible, and the Common Law will not, to the prejudice of the heir, dispense with the fulfilment of the condition; but (b.) If the condition is subsequent, the estate to which it is annexed will become freed from the condition and be absolute. Secondly, with reference to personal estate, if a condition in restraint of marriage is general and therefore void, then,— (a.) If the condition is precedent, the bequest will take effect as if no condition had been imposed; and (b.) If the condition is subsequent the prior bequest becomes absolute. And by the rules of the Roman Civil Law, and the analogous rules of the English Law derived therefrom, restraints on the freedom of marriage are so odious, that (a.) If the condition is subsequent, expressly or impliedly providing for the cesser of the interest in the event of marriage, then, even although the restraint is partial only, (aa.) If there is no bequest over in the event of marriage, the prior bequest is absolute; but (bb.) If there is a bequest over in the event of marriage, the prior bequest becomes divested in the event of marriage, and the property passes to the second legatee. On the other hand, (b.) If the condition is precedent, then, even although the restraint is partial only, (aa.) If there is no bequest over in the event of marriage, the legacy is forfeited (Young v. Furze, 8 De G. M. & G. 756; CONDITIONS PRECEDENT AND SUB SEQUENT-continued. sed dubitatur, see 2 Jarm. Wills, 2nd ed. 37); and (bb.) If there is a bequest over in the event of marriage, the prior legacy is forfeited, and passes over to the second. It is a CONDITIONS REPUGNANT. well established rule of Law, that conditions or restraints inconsistent with, or repugnant to, the estate or interest to which they are annexed, are absolutely void. Numerous illustrations of the rule are furnished in the reported decisions. Thus (1.) The power of alienation being an incident inseparable from an estate in fee simple, it follows that any condition against alienation annexed to a conveyance or devise to any one in fee simple is absolutely void, whether the condition be general, i.e., forbidding alienation altogether (Co. Litt. 206 b, 223 a), or be particular, i.e., forbidding alienation in certain specified modes, e.g., by mortgage; and it makes no difference if there be a forfeiture or executory devise over in case of an attempt at alienation (Ware v. Cann, 10 B. & C. 433). The rule is the same, in the case of a gift in fee tail with a condition annexed to it not to suffer a common recovery or fine, or execute any other disentailing assurance (Piers v. Winn, 1 Vent. 321). Also, in Bradley v. Peixoto (3 Ves. 324), in the case of a bequest to A. for life, and at his decease to his executors and administrators, it was held that A. took an absolute interest in the legacy, and that a condition restraining him from disposing of the principal of the legacy, followed by a gift over in case he should attempt to do so, was inconsistent with the previous absolute bequest, and was therefore altogether void. Again (2.) In the case of a devise in fee, with a condition that no wife should have dower or husband curtesy out of the estate devised, the condition would be void for repugnancy. Again (3.) In the case of a feoffment in fee, with a condition excluding females from ever taking the inheritance, the condition would be void for repugnancy. Again (4.) In the case of a gift in fee to A., with a condition that failing disposition thereof by A. in his lifetime (Ross v. Ross, 1 J. & W. 154), or so far as such disposition should not extend (Watkins v. Williams, 3 Mac. & G. 622), the undisposed of principal should devolve in a certain specified way, the condition was held void for repugnancy, it being an inconsistent thing to separate the devolution of property from the property itself. CONDITIONS REPUGNANT-continued. | Again, (5.), In the case of an absolute bequest or devise, or other gift to A., with a condition that the property given should not be liable to the debts of A., the condition would be void for repugnancy. Rochford v. Hackman, 9 Hare, 475. Again, (6.), In the case even of a life or other limited interest being given to A., with a condition that he is not to anticipate the same, the condition would be void for repugnancy (Brandon v. Robinson, 18 Ves. 429); for property cannot be given for life any more than in fee simple, without the power of alienation being incident to the gift. And even in the case of a female, a married woman, such a restraint on anticipation is totally void for repugnancy, unless the married woman's interest is her own separate estate (see title SEPARATE ESTATE). Nevertheless a proviso determining a life interest in property upon the bankruptcy of the life-tenant, and carrying the property over has been held valid (Lockyer v. Savage, 2 Stra. 947); à fortiori such a proviso would be valid in case the bankruptcy occurred in the lifetime of the testator (Yarnold v. Moorhouse, 1 Russ. & My. 364), or settlor (Manning v. Chambers, 1 De G. & Sm. 282). But while avoiding in that manner all general restraints and all conditions which are contradictory to the inherent essence of the gift, the law nevertheless, not only permits, but favours, partial or limited restraints. For example, the following limited restraints on alienation, and others like them, are valid in law : (1.) A condition not to alien in mortmain, or to A. or B. in particular; and (2.) A condition not to alien within a limited time. On the other hand, a condition not to alien excepting to one specified individual would be void, as being virtually an unlimited or general restraint. Attwater v. Attwater, 18 Beav. 330. CONDITIONS, VOID. Generally, all conditions that are repugnant to, or inconsistent with, the nature of the grant, or gift, to which they are annexed are void. See title CONDITIONS REPUGNANT. Similarly, conditions in restraint of the cohabitation of man and wife (Wren v. Bradley, 2 De G. & Sm. 49), and provisions having reference to the future separation of man and wife (Cartwright v. Cartwright, 3 De G. M. & G. 982; Cocksedge v. Cocksedge, 14 Sim. 244), are void as being contrary to public policy; and s also, and for the like reason, are conditions in general restraint of trade: See title CONTRACTS IN RESTRAINT OF TRADE. CONDITIONS VOID-continued. Similarly repugnant conditions are void, as being contrary to plain common sense, which is the spirit and essence of the Common Law: See title REPUGNANT CONDITIONS. Similarly, conditions for the cesser of an estate or interest in real or personal property upon alienation or bankruptcy, are void, unless in exceptional cases: See title CONDITIONS REPUGNANT. Again, impossible conditions are in general void: See title IMPOSSIBLE CONDITIONS. And with reference to the validity of conditions not to dispute a will, see title WILL. If (1.) With reference to real estate. real estate is given to a woman for widowhood (durante viduitate), such a limitation is good, even if it be not followed by any limitation over on her re-marriage, and à fortiori if it be followed by such latter limitation; and if real estate is given to a woman as long as she shall remain unmarried (dum sola fuerit), such a limitation is good (Co. Litt. 42 a); although, as being (in appearance at least), in general restraint of marriage, it would be void as a condition subsequent whether followed or not by a limitation over. (2.) With reference to personal estate. The authorities are in favour of the validity of such limitations until marriage (see Webb v. Grace, 2 Phil. 702; Heath v. Lewis, 2 De G. M. & G. 954; Morley v. Rennoldson, 2 Hare, 579); from which cases it is necessary to distinguish Wren v. Bradley (2 De G. & Sm. 49), as not being a case of conditional limitation, but of void condition subsequent. Period to which death when mentioned in conditional language is to be referred. (1.) With reference to personal estate. (a.) When personal estate is given to A. absolutely or indefinitely, "and in case of his death," or "in the event of his death," to B., the testator, in the absence of evidence of a contrary intent, is taken to have intended death at some particular period (and not death generally), and therefore, (aa.) When the interest given to A. is immediate, and there is no other period to which the death can be referred, the death is to be referred to some period in the lifetime of the testator (Schenk v. Agnew, 4 K. & J. 405); from which case are to be distinguished, Lord Douglas v. Chalmer (2 Ves. jun. 500) and cases of that class, in which upon the special circumstances the CONDITIONAL LIMITATIONS-contd. reference was held to be to death generally. The reference of the period of death to the lifetime of the testator is considered to be still more clear, when he uses these words, "and if he should die" or "and in case he should die." (bb.) Where the interest given to A. is preceded by some particular interest given to another, the death is to be referred to some period in the lifetime of the latter (ie. of the prior beneficiary*), and it is immaterial in this case whether or not the death of A. occur antecedently or subsequently to the death of the testator; and generally where any period other than the lifetime of the testator can be suggested, that period is to be preferred. (b.) When personal estate is given to A. for life only and not absolutely, and "if he should die," or "in case he should die," or" in the event of his death," &c., to B., the death is not to be referred to any period in particular either in the lifetime of the testator or not but is to be taken as referred to generally; and so also if only the interest or income of a fund is given to A. 2 Jarm. Wills, 2nd ed., 633. (2.) With reference to real estate. (a.) Where by a will executed before the Wills Act, 1 Vict. c. 26, real estate is given to A., and in case of his death to B., (aa.) If the words of reference to death are to death simply, then the reference is to death generally and not to any particular period either within the lifetime of the testator or not. (bb.) If the words of reference to death are not to death simply, but to death under certain specified circumstances, then the reference may be to death generally, although attempts may be legitimately made in certain cases to shew that the reference is to some particular period suggested by the specified circumstances. 2 Jarm. Wills, 2nd ed., ch. 49. (b.) Where by a will executed since the Wills Act, 1 Vict. c. 26, real estate is given to A., and in case of his death to B., (aa.) If the words of reference to death are to death simply, then the reference is to death within the lifetime of the testator, or, (if there should be any estate given to another which is prior to A.'s estate), then to death within the period of the lifetime of the prior beneficiary*, and it is immaterial in this case whether the death of A. occur antecedently or subsequently to the death of the testator. (bl.) If the words of reference to death are not to death simply, but to death under certain specified circumstances, then the reference may be to death within the life * "Duration of the prior estate" might probably be the more correct expression. CONDITIONAL LIMITATIONS-contd. time of the testator, although attempts may be legitimately made in certain cases to shew that the reference is to some particular period suggested by the specified circumstances. 2 Jarm. Wills, 2nd ed., ch. 49. CONDONATION. A technical term, formerly used in the Ecclesiastical Courts, and from them transferred to the Court for Divorce and Matrimonial Causes, to signify forgiving by a husband or wife of a breach, on the part of the other, of his or her marital duties. The legal effect of which forgiving, or condonation, is, that the party cannot subsequently seek redress for an offence already forgiven. For instance, if after his knowledge of the wife's adultery a husband cohabits with her, such an act of condonation bars him from his remedy of divorce; and a wife is equally barred who has condoned an act of cruelty on the part of the husband. It is an important exception, however, to the general doctrine of condonation, which is founded on a willingness to heal the disputes of married life, that a subsequent repetition of the crime revives the former offence, and nullifies the intermediate act of condonation by the injured party. CONDUCT MONEY. Money paid to a witness who has been subpoenaed on a trial, sufficient to pay the reasonable expenses of going to, staying at, and returning from, the place of trial. These expenses are estimated according to the rank of life of the party, the state of his health at the time, and other similar circumstances. Lush's Pr. 460. CONFERENCE. In reference to the proceedings of Parliament, is a meeting of the two Houses for the purpose of considering (or conferring upon) any point or measure on which they differ. It is conducted by a few members of each House, who are appointed as managers of the conference. The managers of both Houses assemble at a time and place appointed by the Lords (whose privilege this is), and usually one manager on each side states and argues the case for his own party. At all conferences the managers for the Upper House are seated, and wear their hats, while the Commons' managers stand uncovered. Frequently reasons in writing, in support of their own view, are furnished by one set of members to the other. CONFESSION (confessio). This word, in the law, retains its usual and popular signification. Thus, when a prisoner is indicted of treason, and brought to the bar to be arraigned, and the indictment being read to him, and the Court demanding CONFESSION-continued. what he can say thereto, he confesses the offence and indictment to be true, or pleads not guilty. The word confession is also used in civil matters, as where a defendant confesses the plaintiff's right of action by giving him a cognovit, &c. See title COGNOVIT ACTIONEM. CONFESSION AND AVOIDANCE. Pleadings in confession and avoidance are those in which the party pleading admits or confesses, to some extent at least, the truth of the allegation he proposes to answer, and then states matter to avoid the legal consequence which the other party has drawn from it. Of pleas of this nature, some are distinguished as pleas in justification or excuse, others as pleas in discharge. The former shew some justification or excuse of the matter charged in the declaration, the latter some discharge or release of that matter. The effect of the former, therefore, is to shew that the plaintiff never had any right of action, because the act charged was lawful; whilst the latter is to shew that, though he once had a right of action, it is discharged or released by some matter subsequent. Of those in justification or excuse, the son assault demesne, in an action of trespass for assault and battery (wherein the defendant alleges that the assault complained of was committed in self-defence against the attack of the plaintiff), is an instance; and a common example of those in discharge is, in an action of covenant, a plea of release, wherein the defendant alleges that the plaintiff had, after the breach, released him from all breaches, &c. This division applies to pleas only, and not to replications or subsequent pleadings. Stephen on Pl. 229. See title COLOUR. CONFISCATION. See title PRIZE. CONJUGAL RIGHTS, RESTITUTION OF. Under the stat. 20 & 21 Vict. c. 85, application for this purpose may be made to the Court by either husband or wife upon petition. The adultery of the wife is a bar to her obtaining restitution (Hope v. Hope, 1 S. & T. 94; but see Leaver v. Leaver, 2 S. & T. 665, Appx. 11). A deed of separation is no bar to a suit for restitution of conjugal rights (Anquez v. Anquez, L. R. 1 P. & M. 176). In case the decree is made, a time is fixed within which it must be complied with, in order that an attachment may issue after that CONJUGAL RIGHTS, RESTITUTION OF -continued time in case it is not complied with. Cherry v. Cherry, 29 L. J. (Mat. Cas.) 441. Re CONNIVANCE: See title DIVORCE. CONSANGUINITY, or KINDRED. lationship by blood, in contradistinction to affinity, which is relationship by marriage. CONSCIENCE, COURTS OF. Courts of conscience, or, as they are otherwise called, Courts of Request, are Courts constituted by Acts of Parliament in the City of London and other commercial districts, for the recovery of small debts. They are constituted of two aldermen and four common councilmen, who sit twice a week to hear all causes of debt not exceeding the value of forty shillings, which they examine in a summary way, by the oath of the parties or other witnesses, and make such order therein as is consonant to equity and good conscience. CONSEIL DE FAMILLE. In French Law, certain acts require the sanction of this body. For example, a guardian can neither accept nor reject an inheritance to which the minor has succeeded without its authority (Code Nap. 461); nor can he accept for the child a gift inter vivos without the like authority (Code Nap. 463). So also, in bringing or compromising a suit on behalf of the child, or generally in compounding claims, and in numerous personal relations, e.g., consent to marriages of orphans, the authority of this body is necessary. CONSEIL JUDICIAIRE. In French Law, when a person has been subjected to an interdiction on the ground of his insane extravagance, but the interdiction is not absolute, but limited only, the Court of first instance which grants the interdiction, appoints a council, with whose assistance the party may bring or defend actions, or compromise same, alienate his estate, make or incur loans, and the like. CONSENT OF THE CROWN. In cases where the proceedings of Parliament may interfere with the rights or prerogatives of the Crown, by the provision of any particular bill introduced into any branch of the Legislature, it is necessary to obtain the consent of the Crown before such bill can pass through any of its stages. CONSEQUENTIAL DAMAGES: See title DAMAGES, SPECIAL. CONSIDERATION. This is one of the three particular requisites, or essentials, to a simple contract. It is not necessary in the case of a contract of record, or by specialty. See title CONTRACT CONSISTORY (consistorium). Nearly the same meaning as prætorium, or tribunal. The Consistory Court of every diocesan bishop is held in their several cathedrals for the trial of all ecclesiastical causes arising within their respective dioceses. The bishop's chancellor or his commissary is the judge, and from his sentence an appeal lies by virtue of the same statute to the archbishop of each province respectively, or to the Dean of Arches, as his officer. See title OFFICIAL PRINCIPAL. CONSOLIDATION RULE. If several actions between the same parties (or parties having the identical interests) are pending in the same cause (or cause which is substantially the same), the Court may stay the proceedings in all but one, and require the others to follow the event of the one. Similarly, if one plaintiff brings several actions against the same defendant in respect of matters which he might have united in one action, the Court will require him to consolidate them. 2 Arch. Pract. 1357. CONSPIRACY. This is a criminal offence of the degree of a misdemeanour, and is punishable with fine or imprisonment, or both. It is defined as an agreement between two or more persons, (1.) Falsely to charge another with a crime punishable by law, either from a malicious or vindictive motive or feeling towards the party, or for the purpose of extorting money from him; or, (2.) Wrongfully to injure or prejudice a third person, or any body of men, in any other manner; or, (3.) To commit any offence punishable by law; or, (4.) To do any act with intent to prevent the course of justice; or, (5.) To effect a legal purpose with a corrupt intent, or by improper means. CONSTABLE. The word constable has been said to be derived from the Saxon language, and to signify the support of the king; but others have, with greater reason, supposed it to be derived from the Latin comes stabuli, an officer who among the Romans used to regulate all matters of chivalry, tilts, tournaments, and feats of arms, &c. The Constable of England, or Lord High Constable, as he was called, was an officer of high dignity and importance in this realm about the time of Henry VIII.; but since that period the office has been disused in England, except on great and solemn occasions. He was then the leader of the king's armies, and had the cognizance of all matters connected with arms and war. He also sometimes exercised judicial functions in the Court of Chivalry, where he took precedence of the earl marshal. His jurisdiction is partly now vested CONSTABLE-continued. in the Court of Admiralty. The constables, however, to which we more immediately refer now are of two sorts, high constables and petty constables; the former are appointed at the Court leets of the franchise or hundreds over which they preside, or in default of that, by the justices at the quarter sessions, and are removable by the same authority that appoints them. They have the superintendence and direction of all petty constables within their district, and are in some measure responsible for the conduct of these latter. have also the surveying of bridges, the issuing of precepts concerning the appointment of overseers of the poor, of surveyors of the highways, of assessors and collectors of taxes, &c. The duties of petty constables are subordinate to those of the high constable, and of a less important character. There are also Constables of Castles, who are governors or keepers of the same, and whose office is usually honorary. They See also titles ARREST; POLICEMAN; CONSTITUTION, CHARACTER OF ENGLISH. According to Sir John Fortescue (who was tutor to Henry VI.), the English Government is political and not regal, that is, limited and not absolute. Even the King's prerogatives are given to him only for the subject's good. According to Mr. Hume, on the other hand, the Government of England, in its earlier periods, was most arbitrary and absolute. Certain it is that the prerogative of purveyance, as regards both articles of consumption and labour, had been commuted into a right of pre-emption at a reasonable price; that in judicial matters, torture was unrecognised by the law, although occasionally resorted to in fact; that the rights of juries were respected by the Courts of Law, although sometimes evaded; and that illegal condemnations upon political charges were infrequent. Therefore England, compared with other countries, was more nearly what Fortescue says than Hume; and Hallam supports Fortescue's opinion. Hallam, moreover, attributes this general character of the English constitution to the four following causes, namely: (1.) The civil equality of all freemen (3.) The passion of the early kings for (4.) The vigour of the first three Norman sovereigns, who effectually repressed the principles of insubor |