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which is necessary to be given by other holders. 8 Pick. 1,79; 1 Pet. R. 262. Such acceptor is not liable, unless demand of payment is made on the drawee, and notice of his refusal given. 3 Wend. 491.
ACCESS, persons, the means or power of approaching. Sometimes by access is understood sexual intercourse; at other times the opportunity of communicating together so that sexual intercourse may have taken place is also called access. 1 Turn. 6c R. 141. In this sense a man who can readily be in company with his wife, is said to have access to her; and in that case her issue are presumed to be his issue. But this presumption may be rebutted by positive evidence that no sexual intercourse took place. Ib. Parents are not allowed to prove nonaccess for the purpose of bastardizing the issue of the wife; nor will their declarations after their deaths be received to prove the want of access, with a like intent. 1 P. A. Bro. R. App. xlviii.; Rep. tem. Hard. 79; Bull. N. P. 113; Cowp. R. 592; 8 East, R. 203; 11 East, R. 133. 2 Munf. R. 242; 3 Munf. R. 599; 7 N. S. 553; 4 Hayw. R. 221; 3 Hawks, R. 623; 1 Astim. R. 269; 6 Binn. R. 233; 3 Paige's R. 139. See Shelf, on Mar. & Div. 711; and Paternity.
ACCESSARY, criminal law. He who is not the chief actor in the perpetration of the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. An accessary before the fact, is one who being absent at the time of the crime committed, yet procures, counsels, or commands another to commit it. 1 Hale, P. C. 615. It is proper to observe that when the act is committed through the agency of a person who has no legal discretion nor a will, as in the case of a child or an insane person, the incitor, though absent when
the crime was committed, will be considered, not an accessory, for none can be accessary to the acts of a madman, but a principal in the first degree. Fost. 340; 1 P. C. 118. An accessary after the fact, is one who knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. 4 Bl. Com. 37. No one who is a principal (q. v.) can be an accessary. In certain crimes, there can be no accessaries, all who are concerned are principals whether they were present or absent at the time of their commission. These are treason, and all offences below the degree of felony. 1 Russ. 21, et seq.; 4 Bl. Com. 35 to 40; 1 Hale, P. C. 615; 1 Vin. Abr. 113; Hawk. P. C. b. 2, c. 29, s. 16; such is the English Law. But whether it is law in the United States appears not to be determined as regards the cases of persons assisting traitors. Serg. Const. Law, 382; 4 Cranch, R. 472, 501; United States v. Fries, Pamphl. 199.
ACCESSION. The ownership of a thing, whether it be real or personal, moveable or immoveable, carries with it the right to all that the thing produces, and to all that becomes united to it, either naturally or artificially; this is called the right of accession. 1. The doctrine of property arising from accession, is grounded on the right of occupancy.—2. The original owner of any thing which receives an accession by natural or artificial means, as by the growth of vegetables, the pregnancy of animals; Louis. Code, art. 491; the embroidering of cloth, or the conversion of wood or metal into vessels or utensils, is entitled to his right of possession to the property of it, under such its state of improvement; 5 H. 7,15; 12 H. 8, 10; Bro. Ab. Propertie, 23; Moor, 20; Poph. 38. But the owner must be able to prove the identity of the original materials, for, if wine, oil, or bread, be made out of another man's grapes, olives, or wheat, they belong to the new operator, who is bound to make satisfaction to the former proprietor for the materials which he has so converted. 2 Bl. Com. 404. See Adjunction. Confusion of Goods.
See Generally, Louis. Code, tit. 2, c. 2 and 3.
ACCESSORY, property. Every thing which is joined to another thing, as an ornament, or to render it more perfect, is an accessory, and belongs to the owner of the principal thing. For example, the halter of a horse, the frame of a picture, the keys of a house, and the like; but a bequest of a house would not carry the furniture in it, as accessory to it. Domat, Lois Civ. Part. 2, liv. 4, tit. 2, s. 4; n. 1. Awessorium non ducit, sed sequitur principale. Co. Litt. 152, a. Co. Litt. 121, b, note (6); Vide Accession. Adjunction. Appendant. Appurtenances. Appurtenant. Incident.
ACCESSORY CONTRACT, is one made for assuring the performance of a prior contract, either by the same parties or by others; such as suretyship, mortgages, and pledges. It is a general rule, that payment of the debt due, or the performance of a thing required to be performed by the first or principal contract, is a full discharge of such accessory obligation. Poth. Ob. part. 1, c. 1, s. 1, art. 2, n. 14. Id. n. 182, 186.
ACCIDENT. The happening of an event without the concurrence of the will of the person by whose agency it was caused; or the happening of an event without any human agency; the burning of a house in consequence of a fire being made for the ordinary purpose of cooking or warming the house, which is an accident of the first kind; the burning of the same house by lightening would have been an accident of the second kind.
1 Fonb. Eq. 374, 5, note. It frequently happens that a lessee covenants to repair, in which case he is bound to do so, although the premises be burned down without his fault. 1 Hill Ab. c. 15, s. 75. But if a penalty be annexed to the covenant, inevitable accident will excuse the former, though not the latter. 1 Dyer, 33, a. Neither the landlord nor the tenant is bound to rebuild a house burned down, unless it has been so expressly agreed. Amb. 619; 1 T. R. 708; 4 Paige, R. 355; 6 Mass. R. 67; 4 M'Cord, R. 431; 3 Kent, Com. 373. In New Jersey, by statute, no action lies against any person on the ground that a fire began in a house or room occupied by him, if accidental. But this does not affect any covenant. 1 N. J. Rev. C. 210.
ACCIDENT, practice. This term in chancery practice, signifies such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or misconduct in the party. Francis's Max. M. 120, p. 87; 1 Story on Eq. § 78. Jeremy defines it as used in courts of equity, to be " an occurrence in relation to a contract, which was not anticipated by the parties, when the same was entered into, and which gives an undue advantage to one of them over the other in a court of law." Jer. on Eq. 358. This definition is objected to, because as accidents may arise in relation to other things besides contracts, it is inaccurate in confining accidents to contracts; besides it does not exclude cases of unanticipated occurrences, resulting from the negligence or misconduct of the party seeking relief. 1 Story on Eq. § 78, note 1. In general, courts of equity will relieve a party who cannot obtain justice in consequence of an accident which will justify the interposition of a court of equity. The jurisdiction being concurrent, will be maintained only, first, when a court of law can
not grant suitable relief; and, secondly, when the party has a conscientious title to relief. There are many accidents supplied in a court of law; as loss of deeds, mistakes in receipts and accounts, wrong payments, death, which makes it impossible to perform a condition literally, and a multitude of othercontingencies; and many cannot be redressed even in a court of equity; as if by accident a recovery is ill suffered, a contingent remainder destroyed, or a power of leasing omitted in a family settlement. 3 Bl. Com. 431. Vide, generally, Com. Dig. Chancery, 3, F 8; 1 Fonb. Eq. B. 1, c. 3, s. 7; Coop. Eq. PI. 129; 1 Chit. Pr. 408; Harr. Ch. Index, h. t.; Dane's Ab. h. t.; Wheat. Dig. 48; Mitf. PI. Index, h. t.; 1 Madd. Ch. Pr. 23; 10 Mod. R. 1, 3; 3 Chit. Bl. Com. 426,n.
ACCOMENDA, mar. law. In Italy is a contract which takes place when an individual entrusts personal property with the master of a vessel to be sold for their joint account. In such case two contracts take place; first, the contract called mandatvm, by which the owner of the property gives the master power to dispose of it, and the contract of partnership, in virtue of which the profits are to be divided between them. One party runs the risk of losing his capital, the other his labour. If the sale produces no more than first cost, the owner takes all the proceeds; it is only the profits which are to be divided. Emer. on Mar. Loans, s. 5.
ACCOMMODATION, com. law. That which is done by one merchant or other person for the convenience of some other, by accepting or endorsing his paper, or by lending him his notes or bills. In general the parties who have drawn, endorsed or accepted bills or other commercial paper for the accommodation of others, are while in the hands of a holder who received them before they
became due, other than the person for whom the accommodation was given, responsible as if they had received full value. Chit. Bills, 90,91.
ACCOMMODATION, contracts. An amicable agreement or composition between two contending parties. It differs from accord and satisfaction, which may take place without any difference having existed between the parties.
ACCOMPLICE, crim. law. This term includes in its meaning all persons who have been concerned in the commission of a crime, all the particeps criminis, whether they are considered in strict legal propriety, as principals in the first or second degree, or merely as accessories before or after the fact, Foster, 341; 1 Russell, 21; 4 Bl. Com. 331; 1 Phil. Ev. 28; Merlin, Repertoire, mot Complice. U. S. Dig. h. t.
ACCORD, in contracts, is a satisfaction agreed upon between the party injuring and the party injured, which when performed is a bar to all actions upon this account. 3 Bl. Com. 15; Bac. Abr. Accord. In order to make a good accord it is essential :—
1. That the accord be legal. An agreement to drop a criminal prosecution as a satisfaction for an assault and imprisonment, is void. 5 East, 294. See2Wils.341; Cro. Eliz.541.
2. It must be advantageous to the contracting party; hence restoring to the plaintiff his chattels, or his land, of which the defendant has wrongfully dispossessed him, will not be any consideration to support a promise by the plaintiff not to sue him for those injuries. Bac. Abr. Accord &c. A; Perk. s. 749; Dyer, 75; 5 East, R. 230; 1 Str. R. 426; 2 T. R. 24; 11 East, R. 390; 3 Hawks, R. 580; 2 Litt. R. 49; 1 Stew. R. 476; 5 Day, R. 360; 1 Root, R. 426; 3 Wend. R. 66; 1 Wend. R. 164; 14 Wend. R. U6; 3 J. J. Marsh. R. 497.
3. It must be certain; hence an agreement that the defendant shall relinquish the possession of a house in satisfaction, &c, is not valid, unless it is also agreed at what time it shall be relinquished. Yelv. 125. See 4 Mod. 88; 2 Johns. R. 342; 3 Lev. 189.
4. The defendant must be privy to the contract. If therefore the consideration for the promise not to sue proceeds from another, the defendant is a stranger to the agreement, and the circumstance that the promise has been made to him will be of no avail. Str. 592; 6 John. R. 37; 3 Monr. R. 302; but in such case equity will grant relief by injunction. 3 Monr. R. 302; 5 East, R. 294; 1 Smith's R. 515; Cro. Eliz. 541; 9 Co. 79, b; 3 Taunt. R. 117 ; 5 Co. 117, b.
5. The accord must be executed. 5 Johns. R. 386; 3 Johns. Cas. 243; 16 Johns. R. 86; 2 Wash. C. C. R. 180; 6 Wend. R. 390; 5 N. H. Rep. 136; Com. Dig. Accord, B 4.
Accord with satisfaction when completed has two effects; it is a payment of the debt; and it is a species of sale of the thing given by the debtor to the creditor, but it differs from it in this, that it is not valid until the delivery of the article, and there is no warranty of the thing sold, except perhaps the title, for in regard to this it cannot be doubted that if the debtor gave on an accord and satisfaction the goods of another, there would be no satisfaction. See Dation en paiement.
See in general Com. Dig. h. t.; Bac. Ab. h. t.; Com. Dig. Pleader,
2 V 8; 5 East, R. 230; 4 Mod. 88; 1 Taunt. R. 428; 7 East, R. 150; 1 J. B. Moore, 358,460; 2 Wils. R. 86; 6 Co. 43, b; 3 Chit. Com. Law, 687 to 698; Harr. Dig. h. t.; 1 W. Bl. 388; 2 T. R. 24; 2 Taunt. 141;
3 Taunt. 117; 5 B. & A. 886; 2 Chit. R. 303, 324; 11 East, 390; 7 Price, 604; Discharge of Obligations.
ACCOUNT, remedies. This is the name of a writ or action more properly called account render. It lies against a bailiff or receiver, who by reason of his employment or business is to render an account to another, and refuses or neglects to do it. 8 Cowen, R. 304; 9 Conn. R. 556; 2 Day, R. 28; Kirby, 164; 3 Gill & John. 388; 3 Verm. 485; 4 Watts, 420; 8 Cowen, 220. It is also the proper remedy by one partner against another. 15 S. & R. 153; 3 Binn. 317; 10S.&R.220; 2 Conn. 425; 4 Verm. 137; lDall.340; 2 Watts, M. In this action if the plaintiff succeeds, there are two judgments, the first that the defendant do account, quod computet, before auditors appointed by the court; the second that the plaintiff recover the amount to which he is found to be entitled. In those states where they have courts of chancery, this action is nearly superseded, by the better remedy which is given by a bill in equity, by which the complainant can elicit a discovery of the facts from the defendant under his oath, instead of relying merely on the evidence he may be able to produce. 9 John. R. 470; 1 Paige, R. 41; 2 Caines's Cas. Err. 1, 38, 52; 1 J. J. Marsh. R. 82; Cooke, R. 420; 1 Yerg. R. 360; 2 John. Ch. R. 424; 10 John. R. I 587; 2 Rand. R. 449; 1 Hen. & M. 9; 2 M'Cord's Ch. R. 469; 2 Leigh's R. 6. When an account has once been stated, the plaintiff may recover in action of assumpsit. 3 Bl. Com. 162; 8 Com. Dig. 7; 1 Com. Dig. 180 ; 2 lb. 468; 1 Vin. Ab. 135; Bac. Ab.h. t. Doct.Pl. 26; Yelv. 202; 1 Supp. to Ves. Jr. 117; 2 lb. 48, 136. Vide 1 Binn. R. 191; 4 Dall. R. 434; Whart. Dig. h. t.; 3 Wils. 73, 94; 8 D. & R. 596; Bull. N. P. 128; 5 Taunt. 431; U. S. Dig. h. t.
ACCOUNT, practice. A statement of the receipts and payments of an executor, administrator, or other trustee, of the estate confided to him. Every one who administers the affairs of another is required at the end of his administration to render an account of his management of the same. Trustees of every description can | generally be compelled through the courts of chancery, and where there are no courts of chancery, as Pennsylvania, the courts of common pleas possess this equitable power. When a party has had the property of another as his agent, he' may be compelled in some states to account by an action of account render. An account is also the statement of two merchants or others who have dealt together, showing the debits and credits between them.
ACCOUNT-BOOK. Vide Books; Entry; Original entry.
ACCOUNT IN BANK, com. law.
1, A fund which merchants, traders and others have deposited into the common cash of some bank, to be drawn out by checks from time to time as the owner or depositor may require.—2. The statement of the amount deposited and drawn, which is kept in duplicate, one in the depositor's bank book, and the other in the books of the bank.
ACCOUNT STATED. The settlement of an account between the parties, by which a balance is struck in favour of one of them, is called an account stated. An acknowledgment of a single item of debt due from the defendant to the plaintiff, is sufficient to support a count on an account stated. 13 East, 249; 5 M. & S. 65. It is proposed to consider, 1st, By whom an account may be stated;
2, The manner of stating the account;
3, The declaration upon such an account; 4, The evidence.
1. An account may be stated by a man and his wife of the one part and another person; and unless there is an express promise to pay by the husband, Foster v. Allanson, 2 T. R.
483, the action must be brought against husband and wife. Drue v. Thorne, Aleyn, 72. A plaintiff cannot recover against a defendant upon an account stated by him, partly as administrator and partly in his own private capacity. Herrenden v. Palmer, Hob. 88. Persons wanting a legal capacity to make a contract cannot, in general, state an account; as infants, Truman v. Hurst, 1 T. R. 40; and persons non compos mentis.
A plaintiff may recover on an account stated with the defendant, including debts due from the defendant alone, and from the defendant and a deceased partner jointly. Richards v. Heather, 1 B. & A. 29, and see Pcake's Ev. 257. A settlement between partners and striking a balance will enable the plaintiff to maintain an action on such stated account for the balance due him, Ozeas v. Johnson, 4 Dall. 434; S. C. 1 Binn. 191; S. P. Andrews v. Allen, 9 S. & R. 241; and see Lamalere v. Caze, 1 W. C. C. R. 435.
2. It is sufficient although the account be stated of that which is due to the plaintiff only, without making any deduction for any counter-claim for the defendant, Styart v. Rowland,
1 Show. 215. It is not essential that there should be cross demands between the parties, or that the defendant's acknowledgment that a certain sum was due from him to the plaintiff should relate to more than a single debt or transaction. 5 Maule & Selw, 65; Knowles et al. v. Michel et al. 13 East, 249. The acknowledgment by the defendant that a certain sum is due, creates an implied promise to pay the amount. Milward v. Ingraham, 2 Mod. 44; Foster v. Allanson,
2 T. R. 480.
3. A count on an account stated is almost invariably inserted in declarations in assumpsit for the recovery of a pecuniary demand. See form 1 Chit. PI. 336. It is advisable, I