Consent takes away error.
The old cases given in illustration of this maxim are — where dower ad ostium ecclesice, or ex assensu patris, was made to a woman within the age of nine years ; it being by consent of the parties, was good ; so, where a venire facias was awarded to the coroner when it ought to have been to the sheriff ; and, where the jury came out of a wrong place ; yet these irregularities being by consent of the parties, and so entered of record, the trials had thereupon were held good. Whatever is pleaded and not denied, shall be taken as admitted, and the jury cannot find to the contrary ; as, if the defendant in an action of covenant does not plead non est factum, the execution of so much of the deed as is on the record is admitted. Suffering judgment by default is an admission on the record of the cause of action ; as, in an action against the acceptor of a bill of exchange, the defendant, by suffering judgment by default, admits a cause of action to the amount of the bill.
On the sale of lands and tenements, whenever any third person having any right or title to such lands or tenements when about to be sold, knowing of his own title and of the sale, neglects to give the purchaser notice thereof, he shall never after be permitted to set up such right to avoid the purchase ; for it was an apparent fraud in him not to give notice of his title to the intended purchaser ; and in such case infancy and coverture shall be no excuse. Again, where a judge acts in a matter not within his jurisdiction, the parties attending and consenting, or not objecting, are bound by his decision ; as, where a judge made an interpleader order which he had not authority to make without consent, and- there was no express consent, but the parties attended the hearing and making the order without objection, it was held, that they by their conduct must be taken to have consented to abide by his decision.
The practice of the courts, both of law and equity, has also at all times been in accordance with this rule, as a convenient and proper mode of settling disputes. It is in the nature of a contract between the parties, and one which the courts will not willingly disturb, and indeed will not disturb, if injury or loss has been or is likely to be sustained by one or other of the parties in consequence of such consent ; and with regard to which it may be said, Modus et conventio vincunt legem. And indeed, where the agreement does not violate any positive rule of law, nothing can be more consonant with justice and natural equity than that all parties should be permitted, by acquiescence or positive agreement, to settle their disputes without being required to observe any particular form of procedure, and according to their own free will, and that, having so settled them, should be bound thereto.
Consent of the parties will cure error in proceedings for want of form or other irregularity, but it will not cure a nullity or an illegality. Consent is as much given in standing by without objection as in actual expressed assent. This rule should be cautiously observed, as in all proceedings, legal or otherwise, where consent or refusal is required, in the absence of positive refusal, consent will be implied ; as, “ Qui tacet consentire videtur ubi tractatur de ejus commodo” — He who is silent seems to consent where his advantage is under consideration ; and, “ Qui non improbat, approbat” — He who does not blame, approves.
3 Inst. 27 ; Plowd. 48 ; Jenk. Cent. 32 ; 5 Co. 36, 40 ; Co. Litt. 37, 126, 294 ; Shepp. Touch. 35, 40 j Savage v. Foster, 9 Mod. 38 ; Green v. Hearne, 3 T. R. 301 ; East India Company v. Glover, 1 Stra. 612 ; Martin v. Great Northern Railway Company, 1 6 C. B. 1 79 ; Pernival v. Stringer, 1 B. N. C. 68 ; Andrews v. Elliott, 6 E. & B. 338 ; Lawrence v. Willcock, 11 A. & E. 941 ; Harrison v. Wright, 13 M. & W. 816 ; Came v. Steer, 5 H. & N. 628 ; Murish v. Murray, 13 M. &\V. .→(!.