ABANDONMENT. See DIVORCE; INSURANCE; MARRIAGE; PARENT AND CHILD; RIGHTS; WIFE. ABANDONMENT is confined to an individual's property and legal and equitable rights; it is a relinquishment on the part of the owner, without regard to its future possession, and with an intention to abandon.b When a person, considering an article worthless, casts it away, with an intention of abandoning it, he thereby divests himself of his title in it, and has no more cause to complain, if it be taken by another, than if he had never owned it, unless indeed he reclaims it without violating the rights of others, or before they take it. Mere nonuser does not necessarily or usually constitute abandonment; there must be an intention to abandon; and such intention is to be determined as a question of fact from all the circumstances attending the owner's acts. Abandonment combined with a sufficiently long possession by another party destroys the original owner's rights. Where an abandonment is acted upon in good faith by another, it destroys the owner's rights. Legal rights once vested must be divested according to law. Equitable rights may be abandoned at pleasure. Abatement. See CONTRACTS; DUTIES; Nui- Abbreviation. See AUTHORITIES. Abeyance. See ADVISEMENT; CONTINGENCY. PROCESS. Absence. See CONCEALMENT; Death; DOMICIL. Abstract of Title. See CONVEYANCES. Abuse. See CRIMINAL LAW. a-2 Wash. 106; 5 W. & S. 188; 25 Penn. St. 259. b-14 M. & W. 789: 9 Met. (Mass.) 789; 36 Cal. 333. C 11 Ill. 588. d-10 Pick 310; 23 Id. 141; 3 Strobh. 224; 5 Rich. 405; 16 Barb. 150; 24 Id. 44; Tudor L. Cas. 129, 130; 2 Washb. R. Prop. 83-85. e-14 M. & W. 789; Met. (Mass.) 395, 789; 36 Cal. 333. f-4 Yeates, 330, ACCEPTANCE. See BILLS OF EXCHANGE AND PROMISSORY NOTES, ETC.; CONTRACTS; INSURANCE; RENT; STATUTE OF FRAUDS; Tender. ACCEPTANCE is the receipt with an intention to retain it of a thing offered by another.b An agreeing to an act or contract of another by some act which binds the person in law. Where a landlord takes rent reserved on a lease made by his predecessor, it is an acceptance of the terms of the lease and binds the party. As distinguished from assent, acceptance denotes the receipt of something in compliance with and satisfactory fulfilment of an undertaking to which assent had been previously given. A receipt with an intention to retain is indispensable to every acceptance, though a manual taking is not necessary. The intention to retain may exist at the time of receipt or afterwards; and may be indicated by acts, words or otherwise, and will in many instances be im plied by circumstances. Access. See MEDICAL LAW. Accessory Contract. See CONTRACTS. ACCIDENT. See PRACTICE; Remedies. AN ACCIDENT is that which takes place with. out one's expectation or foresight; an event which proceeds from an unknown cause; or is an unusual effect from a known cause, and therefore not expected. It is the happening of an event without the concurrence of the will of the person by whose agency it was caused, as the burning of a house from kindling a fire for domestic purposes; or the happening of an event without any human agency, as the burn ing of a house by lightning. It is such an unforeseen act, event, loss, misfortune or 534; 5 W. & S. 284; 9 Penn. St. 273; 30 Cal. 630; 36 Id. 333; Necessity of intention under Spanish land cases, 12 Mo. 238. g-6 Cal. 510; 11 Ill. 588; 10 Watts, 192; 2 Met. (Mass.) 32; 6 Id. 337; 31 Me. 381; 2 Washb. R. Prop. h-2 Parsons' Contr. 221. i-Fonbl. Eq. 374, 375, . omission as is not the result of any misconduct or negligence.J An accident which arises from a cause which operates without the aid or interference of man is called an act of God.. Accidents which are produced by physical causes, such as loss by lightning, and storms, perils of the sea, inundations, earthquakes, sudden death, illness, and the like, are called fortuitous events.1 That which happens by a cause which cannot be resisted, which neither of the parties has occasioned or can prevent," and unforseen events which cannot be prevented, are alike eailed fortuitous events and inevitable accidents. Unforeseen circumstances which cannot be guarded against by any human agency, and in which man takes no part, ate called casualties or inevitable accidents. Interposition of human agency, as the inroad of a hostile army which from its nature and power is absolutely uncontrollable, is denominated irresistible force.r Generally, no one is responsible for that which is the result of superior force or inevitable accident; but a man may be so where he has stipulated that he would, and also where he has been guilty of fraud or deceit; for no man may take advantage of his own wrong. Where in the performance of a lawful act, without any intention to do harm, and after using due precaution to prevent danger, a person unfortunately kills another, it is an accident or misadventure for which he cannot be held amenable. Examples of this are: When death ensues: 1. From innocent recreations. 2. From moderate and lawful correction in the domestic relation. 3. From acts lawful and innocent in themselves, done with proper and ordinary caution. An act upon which death ensues must have been neither bad in itself, wrong in its nature, nor a prohibited evil or offence. Accommodation Paper. See BILLS OF EXCHANGE AND PROMISSORY NOTES, ETC. Accomplice. See CRIMINAL LAW. Accord. See CONTRACTS; DEBTORS. Accouchment. See MEDICAL LAW ACCOUNTS. See EVIDence. ACCOUNTS. AN ACCOUNT is a registry of debts and credits, or charges; an entry in a book or on paper of things bought or sold, of payments, services, etc., including the names of parties to the transaction, date and price or value of the article. A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation." A bank account is 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. j-Francis' Max. 87; Story Eq. Jur. 78. K-Parsons' Contr. 635; T. R. 27. 1-Story Bailm, 25; Lois des Bât. Pt. 2, ch. 2, 21. m-La Code, Art. 2522, No. 7. n-Lois des Bât. Pt. 2, ch. 2. o-Dict. Juris. p-See 19 Miss. 572. q-Story Bailm. 240; 1 Parsons' Contr. 543-547. r-Story Bailm. 25; Lois des Bât. Pt. 2, ch. 2,1. S-2 Kent Comm. 448; Poth; Story Bailm. 25. t-4 Bl. Comm. 182; 1 East Pl. Cr. 221. b-1 Met. 216; An open account is one in which some item of the contract is not settled by the parties, whether the account consist of one item or many. Thus, where five loads of corn were sold at the same time and delivered, and there was no stipulation as to the price, it is an open account. So, also, when there are running or current dealings between the parties which are kept unclosed with the expectation of fresher transactions. If the plaintiff brings two suits on an open account, it is not improper to admit on the trial of the second action, testimony of payments that were in evidence on the first trial; but the defendant cannot be twice allowed for the same payments. An account stated is an agreed balance of accounts. An account which has been examined and accepted by the parties. An original entry of account is the first entry made by a merchant, tradesman, or other person in his account books, charging another with merchandise, materials, work or labor, or cash, on a contract made between them. Entries in books of account may be admitted in evidence, when it is made to appear by the oath of the person who made the entries, that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the handwriting of the person who made the entries, in case of his death or absence from the country. The books must have been kept for the purpose, and the entries must have been made contemporaneous with the delivery of the goods, and by the person whose duty it was, for the time being, to make them.j The charges of an account book should be in such a state that they may be presumed to have been the daily minutes of the business or transactions of the party, and such book may be considered as the original, though transcribed from a slate; the slate containing merely memoranda, not intended to be permanent. So, also, from memoranda made by a servant.m The form of keeping the book is not material," but it must be a registry of the business actually done, and the charges therein must be specific and particular,P and made at or near the time of the transaction to which they relate. If the party keeps a ledger, or the account book has marks, showing that the items have been transferred to a ledger, the ledger must also be produced, that the other party may have the advantage of any items entered therein to his credit." account book appear to be manifestly erased and altered in a material point, the charges will not be admitted, unless the alteration is satisfactorily explained." If an 1 Hempst. 114; 32 Penn St. 202. C-1 Ala. (N. S.) 62. d-Id. e-6 Id. 438. f-6 Kas. 471. g-2 Atk. Ch. 251; 27 Miss. 267. j-Greenl. Ev. 115-118. K-4 Mass. 455. 1-13 Mass. 427; 11 Pick. 139; 6 Whart. 189. mo Serg. & Rawle, 285. n-13 Mass. 427; 8 Met. 269: 3 Halstead, 68. 0-5 Watts, 258; Wright, 219; 4 Yeates, 341. p-1 Nott & M'Cord, 130. q-G. S. 1868, Ch. 80, 387. r-2 Mass. 569. 8-6 Whart. 106. AN ORIGINAL ENTRY, to be admissible as evidence, must be made in the proper book. In general, the books in which the first entries are made, belonging to a merchant, tradesman, or mechanic, in which are charged goods sold and delivered, or work and labor done, are received in evidence. There are many books which are not evidence. A book made up by transcribing entries made on a slate by a journeyman, the transcript being made on the same evening, or sometimes not until nearly two weeks after the work was done, is not a book of original entries.' A book purporting to be a book of original entries, containing an entry of the sale of goods when they were ordered, but before they were delivered, is not a book of original entries." And unconnected scraps of paper, containing, as alleged, original entries of sales by an agent, on account of his principal, and appearing on their face to be irregularly kept, are not to be considered as a book of original entries." The entry must be made in the course of business, and with the intention of making a charge for goods sold and work done; they ought not to be made after the lapse of one day. A book in which the charges are made when the goods are ordered is not admissible.P A The entry must be made in an intelligible manner, and not in figures or hieroglyphics which are understood by the seller only. charge made in gross as "190 days' work," or "for medicine and attendance," or "thirteen dollars for medicine and attendance on one of the general's daughters in curing the whoopingcough," were rejected. An entry of goods without carrying out any prices proves, at most, only a sale; and the jury cannot, without other evidence, fix any price. The charges should be specific, and denote the particular work or service charged as it arises daily, and the quantity, number, weight, or other distinct designation of the materials or articles sold or furnished, and attach the price and value to each item." The entry must, of course, have been made by a person having authority to make it,' and with a view to charge the party." The proof of the entry must be made by the person who made it. If made by the seller, he is competent to prove it from the necessity of the case, although he has an interest in the 1-1 Rawle, 435: 4 Id. 408; 2 Watts, 451; 4 Id. 258; 5 Id. 432; 6 Whart. 189; 2 Miles, 268. m-4 Rawle, 404. n-13 Serg. & R. 126; see 2 Whart. 33; 4 M'Cord, 76; 2 Wend. 72; 1 Yeates, 98; 4 Id. 341. 0-1 Nott & M'Cord, 130; 4 Id. 77; 4 Serg. & R. 5; 9 Id. 285; 8 Watts, 545. P-4 Rawle, 404; 3 Dev. 449. q-4 Rawle, 404. r-1 Nott & M'Cord, 130. S-2 Const. 476. t-1 South. 370. u-2 Const. 745; 2 Bail. 449; 1 Nott & M'Cord, 130. V-4 Rawle, 404. W-8 Watts, 545. X5 Conn. 496; 12 Johns. 461: 1 Dall. 239; 4 Kas. 211. y-2 Watts & S. 137. Z-1 Yeates, 347; Swift Ev. 84; 3 Vt. 463: 1 M'Cord, 481; 2 Root, 59; 1 Cooke, 38. a1 Day, 104; 1 Aik. 73, 74; Kirb. 489. b-1 Browne, 257. e-2 Whart. 33. d-8 Wheat. 326; 3 Campb. 305, 377: 2 Perr. & D. 573; 15 Mass. 380: 20 Johns. 168: 7 Wend. 160; 15 Conn. 206; 7 Serg. & R. 116; 16 Id. 89; 2 Harr. & J. 77; 2 Rand. 87; 1 Younge & C. Exch. 53. Martin (N. S.) 508: 4 Id. 383; 2 Mass. 217; 1 Dall. 239; 2 Bay. 173, 362; 5 Vt. 313; 1 Phill. Ev. 266; Cow. & H. note. f-See 1 Johns. 34. -3 Jones Eq. 109; 3 Grant e-2 | matter in dispute. When made by a clerk, it must be proven by him. But in either case, when the person who made the entry is out of the reach of the process of the court, as in the case of death, or absence out of the State or county, the handwriting may be proved by a person acquainted with the handwriting of the person who made the entry. The books and original entries, when proved by the supplementary oath of the party, is prima facie evidence of the sale and delivery of goods, and work and labor done. But they are not evidence of money lent or cash paid, nor of the time a vessel lay at the plaintiff's wharf, nor of the delivery of goods to be sold on commission. These entries are evidence in suits between third parties, and also in favor of the party himself.e AN ACCOUNT STATED is in the nature of a new promise, and is conclusive as to the liability of the parties, with reference to the transactions included in it, except in cases of fraud or manifest error.h Acceptance may be inferred from circumstances; as where an account is rendered to a merchant and no objection is made, after sufficient time. In general, when a party indebted upon an account receives and retains it beyond such time as is reasonable under the circumstances and according to the usage of the business, for examining and returning it, without communicating any objections, he is considered to acquiesce in its correctness, and he becomes bound by it as an account stated. Signature to the account, or express admission is not necessary. This rule is held applicable to accounts between merchants residing in different countries. Such an account is deemed conclusive between the parties,' to the extent agreed upon,m unless some fraud, mistake, or plain error is shown," and in such case, generally, the account will not be opened, but liberty to surcharge or falsify will be given. But in cases of gross fraud, or gross mistake, or undue advantage, or imposition made palpable to the court, the court will direct the whole account to be opened and taken anew.P Acceptance by the party to be charged must be shown by the one who relies upon the account. The Cas. 195. h-1 Esp. 159; 24 Conn. 591; 4 Wis. 219: 5 Fla. 478; 6 Coldw. 56; see 4 Sandf. (N. Y.) 311; 16 Mo. 226; 37 Ill. 512; 6 Conn. 447; 11 Wheat, 237; Addis. 260, 334 1-2 Vern. Ch. 276; 1 Sim. & S. Ch. 333; 3 Johns. Ch. 569; 7 Cranch, 147: M'Cord Ch. 156; 2 Md. Ch. 433. j-7 Cranch, 147; 6 Ala. 518: 13 Cal. 427; 10 Iowa, 238; 18 La. An. 124; 2 Md. Ch. 433; 8 N. J. Eq. 795; 26 Miss. 212; 3 Johns. Ch. 569, 587; 1 Edw. Ch. 417; 2 Id. 1; 11 N. Y. 170; 2 Barb. 586; 10 Id. 213; 12 Id. 288; 45 Id. 490; 1 M'Cord, 156; 15 Vt. 105. K-7 Cranch. 147 25 Miss. 267; 3 Johns. Ch. 569. 1-2 Brown Ch. 62, 310; 2 Ves. Ch. 566, 837; 1 Swanst. Ch. 460; 6 Madd. Ch. 146; 20 Ala. (N. S.) 747; 3 Johns. Ch. 587; 1 Gill. 350; 3 Jones Ch. 109; see 2 Edw. Ch. 1; 10 Barb. 213; 4 Sandf. 311; 3 W. & S. 109; 31 N. Y. 498; 10 Humph. 238; 18 N. Y. 285; 12 La. An. 20; 18 Id. 356; 50 Me. 102; 2 Bosw. 188; 13 Ohio St. 168. m-1 Hopk. 239: 4 Mich. 336. n-1 Parsons Contr. 174; 1 Johns. Ch. 550; M'Cord, 156. 0-2 Atk. Ch. 119; 9 Ves. Ch. 265: I Schoales & L. Eq. 192; 7 Gill. 119; 1 Md. Ch. 306. p 6 Coldw. 56.10 Humph. (Tenn) 238; 12 Ill. 113. omission as is not the result of any misconduct or negligence. An accident which arises from acause which operates without the aid or interference of man is called an act of God.. Accidents which are produced by physical-causes, such as loss by lightning, and storms, perils of the sea, inundations, earthquakes, sudden death, illness, and the like, are called fortuitous events.1 That which happens by a cause which cannot be resisted, which neither of the parties has occasioned or can prevent," and unforseen events which cannot be prevented, are alike cailed fortuitous events and inevitable accidents. Unforeseen circumstances which cannot be guarded against by any human agency, and in which man takes no part, are called casualties or inevitable accidents. Interposition of human agency, as the inroad of a hostile army which from its nature and power is absolutely uncontrollable, is denominated irresistible force.r Generally, no one is responsible for that which is the result of superior force or inevitable accident; but a man may be so where he has stipulated that he would, and also where he has been guilty of fraud or deceit;s for no man may take advantage of his own wrong. Where in the performance of a lawful act, without any intention to do harm, and after using due precaution to prevent danger, a person unfortunately kills another, it is an accident or misadventure for which he cannot be held amenable. Examples of this are: When death ensues: 1. From innocent recreations. 2. From moderate and lawful correction in the domestic relation. 3. From acts lawful and innocent in themselves, done with proper and ordinary caution. An act upon which death ensues must have been neither bad in itself, wrong in its nature, nor a prohibited evil or offence. Accommodation Paper. See BILLS of ExCHANGE AND PROMISSORY NOTES, ETC. Accomplice. See CRIMINAL LAW. ACCOUNTS. AN ACCOUNT is a registry of debts and credits, or charges; an entry in a book or on paper of things bought or sold, of payments, services, etc., including the names of parties to the transaction, date and price or value of the article. A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation.b A bank account is 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. j-Francis' Max. 87; Story Eq. Jur. 278. K-Parsons' Contr. 635; T. R. 27. 1-Story Bailm. 25; Lois des Bât. Pt. 2, ch. 2, 21. m-La Code, Art. 2522, No. 7. n-Lois des Bât. Pt. 2, ch. 2. o-Dict. Juris. p-See 19 Miss. 572. q-Story Bailm. 240; 1 Parsons' Contr. 543-547. r-Story Bailm. 25; Lois des Bât. Pt. 2, ch. 2,1 S-2 Kent Comm. 448; Poth; Story Bailm. 25. 1-4 Bl. Comm. 182; 1 East Pl. Cr. 221. b-1 Met. 216; An open account is one in which some item of the contract is not settled by the parties, whether the account consist of one item or many. Thus, where five loads of corn were sold at the same time and delivered, and there was no stipulation as to the price, it is an open account. So, also, when there are running or current dealings between the parties which are kept unclosed with the expectation of fresher transactions. If the plaintiff brings two suits on an open account, it is not improper to admit on the trial of the second action, testimony of payments that were in evidence on the first trial; but the defendant cannot be twice allowed for the same payments. An account stated is an agreed balance of accounts. An account which has been examined and accepted by the parties. An original entry of account is the first entry made by a merchant, tradesman, or other person in his account books, charging another with merchandise, materials, work or labor, or cash, on a contract made between them. Entries in books of account may be admitted in evidence, when it is made to appear by the oath of the person who made the entries, that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the handwriting of the person who made the entries, in case of his death or absence from the country.j books must have been kept for the purpose, and the entries must have been made contemporaneous with the delivery of the goods, and by the person whose duty it was, for the time being, to make them.J ם The The charges of an account book should be in such a state that they may be presumed to have been the daily minutes of the business or transactions of the party, and such book may be considered as the original, though transcribed from a slate; the slate containing merely memoranda, not intended to be permanent.1 So, also, from memoranda made by a servant.m The form of keeping the book is not material, but it must be a registry of the business actually done, and the charges therein must be specific and particular,Þ and made at or near the time of the transaction to which they relate. If the party keeps a ledger, or the account book has marks, showing that the items have been transferred to a ledger, the ledger must also be produced, that the other party may have the advantage of any items entered therein to his credit." account book appear to be manifestly erased and altered in a material point, the charges will not be admitted, unless the alteration is satisfactorily explained." If an 1 Hempst. 114; 32 Penn St. 202. C-1 Ala. (N. S.) 62. d-Id. e-6 Id. 438. f-6 Kas. 471. g-2 Atk. Ch. 251; 27 Miss. 267. j-Greenl. Ev. 115-118. K-4 Mass. 455. 1-13 Mass. 427; 11 Pick. 139; 6 Whart. 189. m-9 Serg. & Rawle, 285. n-13 Mass. 427; 8 Met. 69: 3 Halstead, 68. 0-5 Watts, 258; Wright, 219: 4 Yeates, 341. p-1 Nott & M'Cord, 130. q-G. S. 1868, Ch. 80, 387. r-2 Mass. 569. $-6 Whart. 106. |