consent of both parties, and so entered of *record, it shall stand; and where, by consent of both plaintiff and defen- [*101] dant, the venue was laid in London, it was held, that no objection could afterwards be taken to the venue, notwithstanding it ought, under a particular act of Parliament, to have been laid in Surrey, for per Curiam-Consensus tollit errorem.2

On the maxim under consideration depends also the important doctrine of waiver, that is, the passing by of a thing;3 a doctrine which is of very general application both in the science of pleading and in those practical proceedings which are to be observed in the progress of a cause from the first issuing of process to the ultimate signing of judgment and execution.

With reference to pleading, however, the rule, that an error will be cured by the consent or waiver of the opposite party, must be taken with considerable limitation; for, although faults in pleading are in some cases aided by pleading over, yet it frequently happens that a party who has pleaded over, without demurring, may nevertheless afterwards avail himself of an insufficiency in the pleading of his adversary; and the reason is, that, although the effect of a demurrer is to admit the truth of all matters of fact sufficiently pleaded on the other side, yet, by pleading, a party does not admit the sufficiency in law of the facts adversely alleged; for, when judgment is to be given, whether the issue be in law or fact, and whether the cause *have proceeded to issue or not, the Court is in general

bound to examine the whole record, and adjudge according [*102]

to the legal right as it may on the whole appear; so that, if, after pleading over, a demurrer arise at some subsequent stage, the Court will take into consideration retrospectively the sufficiency in law of matters to which an answer in fact has been given; and hence it follows, that an advantage may often be taken by either party of a legal insufficiency in the pleading on the other side, either by motion in arrest of judgment, or motion for judgment non obstante veredicto, or writ of error, according to the circumstances of the case."

1 Fineux v. Hovendon, Cro. Eliz. 664; Co. Litt. 126, a., and Mr. Hargrave's note (1); 5 Rep. 37; Dyer, 367; Watkins v. Weaver, 10 Johnson, R. (U. S.) 108. See Crow v. Edwards, Hob. 5.

2 Furnival v. Stringer, 1 B. N. C. 68; 27 E. C. L. R.

3 Toml. Law Dict., tit. Waiver.

* Steph. Pl. 5th ed. 157. The subject of waiver, which is of necessity only alluded to very briefly in the text, is treated of at length, Id. 155 et seq. See Brooke v. Brooke, Sid. 184. Steph. Pl., 5th ed. 181, 160.

These remarks are confined, however, to defects in matter of substance; for, with respect to all objections of mere form, it is laid down as a general principle, that, if a man pleads over, he shall never take advantage of any slip committed in the pleading of the other side, which he could not take advantage of upon a general demurrer.1

When applied to the proceedings in an action, waiver may be defined to be the doing something after an irregularity committed, and with a knowledge of such irregularity, where the irregularity might have been corrected before the act was done; and it is essential to distinguish a proceeding which is merely irregular from one which is completely defective and void. In the latter case the proceeding is a nullity, which cannot be waived by any laches or subsequent proceedings of the opposite party.2 Where, however, an irregularity has been committed, and where the opposite party knows of the irregularity, it *is a fixed [*103] rule observed as well by courts of equity as of common law, that he should come in the first instance to avail himself of it, and not allow the other party to proceed to incur expense. "It is not reasonable afterwards to allow the party to complain of that irregularity, of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary;" and, therefore, if a party after such an irregularity has taken place consents to a proceeding which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity. This is a doctrine long established and well known. Consensus tollit errorem is a maxim of the common law, and the dictate of common sense." It may appear in some measure superfluous to add, that the consent which cures error in legal proceedings, may be implied as well as expressed; for instance-where, at the trial of a cause, a proposal was made by the judge in the presence of the counsel on both sides, who made no objection, that the jury should assess the damages contingently, with leave to the plaintiff to move to enter a verdict for the amount found by the jury, it was held that both parties were

Per Holt, C. J., Anon., 2 Salk. 519.

2 See Ricketts v. Bowhay, 16 L. J., C. P. 153; Stopford v. Fitzgerald, Id., Q. B. 310; Charlesworth v. Ellis, 7 Q. B. 678; 53 E. C. L. R.

3 Per Lord Lyndhurst, C., St. Victor v. Devereux, 14 L. J., Chan. 246. Obtaining time to reply is a waiver of defendant's undertaking to plead issuably, Stead v. Carey, 8 Scott, N. R. 364. 4 See 7 Johnson, R. (U. S.) 611.

bound by the proposal, and that the plaintiff's counsel was not therefore at liberty to move for a new trial on the ground of misdirection,1 for qui tacet consentire videtur,2 the silence of counsel implied their consent to the course adopted by the judge.

*COMMUNIS ERROR FACIT Jus.

(4 Inst. 240.)

Common error sometimes passes current as law.

[*104]

The law so favours the public good, that it will in some cases permit a common error to pass for right;3 as an instance of which may be mentioned the case of common recoveries, which were fictitious proceedings introduced by a kind of pia fraus to elude the statute de Donis, and which were at length allowed by the courts to be a bar to an estate tail, so that these recoveries, however clandestinely introduced, became, by long use and acquiescence, a most common assurance of lands, and were looked upon as the legal mode of conveyance whereby tenant in tail might dispose of his lands and tenements.1

However, the above maxim, although well known, and therefore here inserted, must be received and applied with very great caution. "It has been sometimes said," observed Lord Ellenborough, "communis error facit jus; but I say, communis opinio is evidence of what the law is not where it is an opinion merely speculative and theoretical, floating in the minds of persons; but where it has been made the groundwork and substratum of practice." So it was remarked by another learned and distinguished judge, that he *hoped never to hear this rule insisted upon, because it would [*105] be to set up a misconception of the law in destruction of the

1 Morrish v. Murrey, 13 M. & W. 52. See also Harrison v. Wright, 13 M. & W. 816.

2 Jenk. Cent. 32. See Judgment, Gosling v. Veley, 7 Q. B. 455; 53 E. C. L. R. 3 Noy, Max., 9th ed. p. 37; 4 Inst. 240; Waltham v. Sparkes, 1 Lord Raym. 42. See also the remarks of Lord Brougham in Phipps v. Ackers, 9 Cl. & Fin. 598 (referring to Cadell v. Palmer, 10 Bing. 140), 25 E. C. L. R.; and in the Earl of Waterford's Peerage claim, 6 Cl. & Fin. 172; also in Devaynes v. Noble, 2 Russ. & M. 506. 4 Noy, Max, 9th ed. pp. 37, 38; 2 Bla. Com. 117; Plowd. 33 b.

5 Isherwood v. Oldknow, 3 M. & S. 396, 397; per Vaughan, B., Garland v. Carlisle, 2 Cr. & M. 95; Co. Litt. 186, a.

Mr. Justice Foster, cited per Lord Kenyon, C. J., Rex v. Eriswell, 3 T. R. 725; argument, Smith v. Edge, 6 T. R. 563.

law; and, in another case, it was observed that "even communis error, and a long course of local irregularity, have been found to afford no protection to one qui spondet peritiam artis.”1

And, lastly, some useful and stringent remarks on the practical application and value of the above maxim were made by Lord Denman, C. J., delivering judgment in the House of Lords, in a very recent case, involving some most important legal and constitutional doctrines; in the course of which judgment, which is well worthy of careful perusal, his lordship took occasion to remark, that a large portion of that legal opinion which has passed current for law falls within the description of "law taken for granted;" and that, "when, in the pursuit of truth, we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and restatement of a doctrine-the mere repetition of the cantilena of lawyers-cannot make it law, unless it can be traced to some competent authority, and if it be irreconcilable to some clear legal principle."2

DE MINIMIS NON CURAT LEX.

(Cro. Eliz. 353.)

The law does not concern itself about trifles.

Courts of justice do not, in general, take trifling and immaterial [*106] matters into account; they will not, for instance, *take notice of the fraction of a day, except in those cases where there are conflicting rights, for the determination of which it is necessary they should do so."

A familiar instance of the application of this maxim occurs likewise in the rule, observed by the courts at Westminster, that new trials shall not be granted, at the instance either of plaintiff or defendant, on the ground of the verdict being against evidence, where the damages are less than 207.5

16 Cl. & Fin. 199.

2 Lord Denman's judgment in O'Connell v. Reg., edited by Mr. Leahy, p. 28. See also the allusions to Hutton v. Balme, and Reg. v. Millis, Id. pp. 23, 24.

3 Bell, Dict. and Dig. of Scotch Law, 284; per Sir W. Scott, 2 Dods. Adm. R. 163. Judgment, 14 M. & W. 582; per Holt, C. J., 2 Lord. Raym. 1095. Branson v. Didsbury, 12 A. & E. 631; 40 E. C. L. R.; Manton v. Bales, 1 C. B. 444; 50 E. C. L. R.; Macrow v. Hull, 1 Burr. 11; Burton v. Thompson, 2 Burr. 664.

"In ordinary," as remarked by Lord Kenyon, C. J., "where the damages are small, and the question too inconsiderable to be retried, the Court have frequently refused to send the case back to another jury. But, wherever a mistake of the judge has crept in and swayed the opinion of the jury, I do not recollect a single case in which the Court have ever refused to grant a new trial.”

In cases tried before the sheriff, the amount requisite in order to obtain a new trial is 57., unless indeed the verdict involves some particular right, independent of the damages; and, in a recent case, on an application to stay judgment and execution in a cause tried before the under-sheriff, the Court observed, that the object of the statute3 which gave the judges power to direct writs of trial to inferior courts, was to render the proceedings in *actions of [*107] small amount less expensive and more speedy, which would be altogether defeated if they were to be carried to a court of error;" and the same consideration seems to have influenced the legislature in denying the right of appeal to suitors in the recently-established county courts."

In further illustration of the maxim-de minimis non curat lex, we may observe, that there are some injuries of so small and little consideration in the law that no action will lie for them; for instance, in respect to payment of tithe, the principle which may be extracted from the cases appears to be, that for small quantities of corn, involuntarily left in the process of raking, tithe shall not be payable, unless there be any particular fraud or intention to deprive the parson of his full right. Where, however, a farmer pursued such a mode of harvesting barley, that a considerable quantity of rakings was left scattered after the barley was bound into sheaves, the Court

1 Wilson v. Rastall, 4 T. R. 753. See Vaughan v. Watt, 6 M. & W. 496, 497; per Parke, B., Twigg v. Potts, 1 Cr., M. & R. 93. In Haine v. Davey, 4 A. & E. 892, 31 E. C. L. R., a new trial was granted for misdirection, though the amount in question was less than 17.

2 Watts v. Judd, 6 Scott, N. R. 630.

3 3 & 4 Will. 4 c. 42, s. 17. See 4 & 5 Will. 4, c. 62, s. 20.

4 White v. Hislop, 4 M. & W. 73.

5 See 9 & 10 Vict. c. 95, s. 108. A prohibition will not be granted against the judge of a county court under this act, where, having jurisdiction, he has wrongly decided a point of law, Ex parte Rayner (C. P.), 11 Jur. 1018.

See per Powys, J., Ashby v. White, 2 Lord Raym. 944, answered by Holt, C. J., Id. 953; Whitcher v. Hall, 5 B. & C. 269, 277; 11 E. C. L. R.; 2 Bla. Com. 262, where the rule respecting land gained by alluvion is referred to the maxim treated of in the text.