a just account to the plaintiff, or shew the court gund cause to the contrary. 3 Black. 162. And the process in account is summons, pose, and distress, and upon a nihil returned, the plaintiff may proceed to outlawry. And it is to be observed, that the statute of limitations, 21 Jac. 1. c. 16 doth not bar a man who is a merchant from bringing his action of arcompl, for merchandize at any time, though all other actions of accompt are within the stawe. Morgan, u'. Ac. And the defendant cannot in an action of compt, pay money into court as he may in an assust. B. N. P 128. —Judgment in.] In an action of accompt there are two judgments, the first is quod computet, after which the court assigns audivers, usually two of the officers of the court, who are armed with authority to convene the parties before them, de die in diem at any day or place, that they shall appoint, till the account is determined; the time by which the account is to be settled is prefixed by the court; but if the account be of a long and confused nature, the court, on application, will enlarge the time: if either of the parties think they do them injustice, they may apply to the court, and if the defendant denies any article, or demurs to any demand, it is to be tried and determined in court. Mod. 42 Brown. 24. Co. Ent. 46. Lutw. 49. Rast 14. Lutw. 50. Whatever might have been pleaded in bar to this action in the first instance, shall never be allowed of, as a good discharge upon the judgment quod computel before the auditors; as, if the defendant plead that he never was his receiver, or the like: but it is a good discharge before the auditors for a factor to say, that in a tempest the goods were cast overboard, or that he was robbed of the goods, without default or negligence. 1 Bac. Abr. tit. Ac F. So it is a good discharge, before the auditors, if the receiver renders back the money delivered to him to make profit of it, and swears that after the time he received it, he found that he durst not buy for fear of loss, for be is not obliged to run any hazard himself. Ibid. And nothing can be pleaded before auditors contrary to what has been pleaded in the action, and found by the verdict: thus, if the plea of plene computavit be found against the defendant, he shall account before the au ditors, for the whole money he is charged with, for this plea adraits the receipt of the whole. 1 Lutu. 63. And where a defendant, charged as surviving bailiff, of goods delivered to him and his co-bailiff, to be merchandized, and to render an account, had gone to issue upon this fact, viz. whether upon his delivering over the goods to the deceased bailiff all his (the defendant's) concerus in the trust, care, and ma nagement thereof ceased, and was at an end; which issue was found against him, it was holden that he could not afterwards plead before the auditors, that he delivered the goods over to the co-bailiff, with the consent of the plaintiff: for this matter might have been given in evidence upon the former issue: and the consequence of admitting it, to be put in issue before the auditors, would have been either two verdicts the same way, which would have been nugatory, or two contradictory verdicts, which would have entangled the court so much, that they would not have known what judgment to have given, Godfrey v. Saunders, 3 Wils. 114. The second or next judgment after the first quod computet, is when the account is finished, that the defendant pay the plaintiff so much as he is found in arrear. 1 Brown 24. Cro. Eliz. 86. 3 Bl. Com. 163. Upon the first judgment a capias ad computandum lies, and if a non est inventus be returned upon it, an exigent issues. 1 Bac. Abr. tit. Ac. G. It is usual to bail the defendant, if he be taken on the capias, though by the rigour of the law, he is to account (in vinculis) that is, in prison. Ibid. If the defendant make default, after the interlocutory judgment, at the day assigned by the auditors, final judgment shall be entered for the sum demanded by the plaintiff. Cro. Eliz. 806. 3 Wils. 117. Co. Lit. 139 b. 11 Co. 39. 27 E. 387. 2 Rol. Abr. 131. pl. 4. So if there be judgment on demurrer, to an insufficient plea, before the auditors. Ibid. But if final judgment be entered in the first instance, the court will set it aside, on motion, as irregular. Cas. B. R. H. 394. And. 29. It seems to be questionable, whether in all cases, damages are recoverable in account: but it is clear, that if the defendant resist the plaintiff's claim, by pleading, or where an increase is received by a receiver ad merchantizandum, there shall be judgment for damages. Jenk. 288. 1 Rol. Abr. 575. 1 Leo. 302. 2 Leo. 118. 3 Wils. 117. It hath been holden that the first judgment is not such, as can be revived by scire facias, upon the death of the plaintiff, before the ac counts taken; or as, a writ of error can be brought upon; and yet the plaintiff cannot be nonsuited after it. 1 Bac. Abr. tit. Ac. G. After final judgment, the plaintiff ought to pray that the defendant's body may be taken in execution; or he may pray an elegit if he refuses the body: and in the Reg. 137. there is a writ to the gaoler to receive the body of the defendant after final judgment. Lutw. 51. 1 Bac. Abr. tit. Ac. G. The proceedings in this action being difficult, dilatory, and expensive, it is now seldom used, especially if the party have other remedy, as debt, covenant, case; or if the demand be of consequence and the matter of an intricate nature; for in such case it is more advisable to resort to a court of equity, where matters of accompt are more commodiously adjusted, and determined more advantageously for both parties; the plaintiff being entitled to a discovery of books, papers, and "the defendant's own oath; and on the other hand the defendant being allowed to discount the sums paid or expended by him; to discharge himself of sums under 40s. by his own oath; and if by answer or other writing he charges himself, by the same to discharge himself, which will be good, if there be no other evidence: further, all reasonable allowances are made to him; and if after the accompt is stated, any thing be due to him opon the balance, he is entitled to a decree in his favour. 1 Bac. Abr. Tit. Ac. However from the experiment made of this action in the case of Godfrey v. Saunders, 3 Wills. 94. a matter (which had been fruitlessly depending in chancery upwards of twelve years, but was thoroughly examined and finally determined in this form of action in the course of two years,) it may still, notwithstanding its general disuse, be proper to give in this place, the leading principles on which it may be proceeded in. Where it lies.] By the common law account lay only against a guardian in socage, bailiff, or receiver, or by one in favour of trade and commerce, naming himself merchant, against another naming himself merchant, and the executors of a merchant; for between these there was such a privity, that the law presumed them conusant of each others disbursements, receipts, and acquitances. 1 Bac. Abr. tit. Ac. But the stat. 13 Ed. 3. c. 23. gives an action of account to the executors of a merchant; the stat. 25 Ed. 3. c. 5. to executors, of executors; the stat. 31 Ed. 3. c. 11. to administrators: and by the stat. 3 & 4 Ann. c. 16. actions of account may be brought against the executors and administrators of every guardian, bailiff and receiver, and by one joint-tenant, tenant in common, his executors and administrators against the other as bailiff, for receiving more than his share, and against their executors and administrators. ACCOMPTANT GENERAL, a new officer in the court of Chancery, appointed by act of parliament, to receive and account for all money belonging to the suitors of the court, in the place of the masters, which monies are to be paid into the Bank, with the privity of such accomptant general, and laid out in the 3 per cent. consols, in trust for the parties, and to be taken out by order of the court; and he shall only keep the account with the Bank, for the Bank is to be answerable for all money received by them, and not the accomptant general. 12 Geo. 1. c. 32. No fees shall be taken by this officer or his clerks, on pain of being punished for extortion; but they are to be paid salaries. Counterfeiting the hand of the accomptant general is felony without clergy. 12 Geo. 1. c. 32. s. 9. ACCORD and SATISFACTION. Accord is an agreement between two or more persons, where one is injured by a trespass, or offence done, or on a contract, to give on the one part and receive on the other, some recompence as a satisfaction: this agreement when executed and performed, shall be a good bar in law, if the other party after the accord performed, bring any action for the same. Terms de Ley. For in all personal injuries, the law gives damages as an equivalent, and when the party accepts of an equivalent, there is no injury or cause of complaint, and therefore accord and present satisfaction is a good plea: but if the wrong doer only promise a future satisfaction, the injury continues till satisfaction is actually made; and consequently there is a cause of complaint in being; and if the trespass were barred by this plea, the plaintiff would have no remedy for the future sa isfaction, for that supposes the injury to have continuance. E. 4. 7. Plow. 5 b. Roll. Abr. 129. Raym. 450. 2 Keb. 332. 2 Jones, 158, 168. But if the defendant has promised to pay the plaintiff so much as a satisfaction, in case the plaintiff will not sue for the trespass, assumpsit will lie on that promise. 1 Bac. Abr. tit. Ac. 5 Accord with satisfaction is a good plea in all personal actions, where damages only are to be recovered; and in all actions which suppose a wrong vi et armis, where a capias and exigent lie at the common law; in trespass and ejectment, detinue, and the like, accord is a good plea: so in an appeal of maihem. in real actions it is not a good plea. 4 Rep. 1, 9, 70. 9 Rep. 77. But So when a duty in certain accrues by the deed, tempor e confictionis scripti,as by covenant, bill, or obligation, to pay a certain sum of money; this certain duty takes its essence originally and only by writing, and therefore ought to be avoided by matter of as high a nature, though the duty be merely in the personalty. 6 Co. 43. Lutw. 358. Cro. Jac. 254. Thus if the debt is certain, on a deed or obligation, the accord and satisfaction must also be by deed and so pleaded, 2 Wils. 86. and for how far the acceptance of one bond in lieu of another, or for a less sum than the sum secured will be good. See title Acceptance. But if in covenant against a lessee, a breach is assigned, in not repairing the house, the defendant may plead an accord between himself and the plaintiff and execution thereof, in satisfactione, et exoneratione reparationum præd. forno certain duty accrued by the deed, and the action is founded upon a tort or default subsequent to the deed, and damages are only to be recovered, which are in the personalty. Palm. 110. All. 39. Cro. Jac. 304. Co. Ent. 117. Yelv. 125. 1 Bac. Abr. til. Ac. B. It is to be observed, that accord executed only is pleadable in bar, and executory not. 1 Mod. 69. Also in pleading it, it is the safest to plead it by way of satisfaction, and not of accord alone. For if it be pleaded by way of accord, a precise execution thereof in every part must be pleaded: but, by way of satisfaction, the defendant need only allege, that he paid the plaintiff such a sum, in full satisfaction of the accord, which the plaintiff received, 9 Rep. 80. The defendant must plead, that the plaintiff accepted the thing agreed upon in full satisfaction. And if it be on a bood, it must be in satisfaction of the money, mentioned in the condition, and not of the bond; which cannot be discharged but by writing under band and seal. Cro. Jac. 254, 650. ACCOUNT in EQUITY.] A court of equity will entertain jurisdiction of a suit, though remedy might perhaps be had in the courts of common law: the ground upon which the courts of equity first interfered in these cases, seems to have been the difficulty of proceeding to the full extent of justice in the courts of common law; or perhaps to prevent multiplicity of suits. Mitford 109-10. Thus though accounts may be taken before auditors in an action of accompt in a court of common law (see title Accompt) yet a court of equity by its mode of proceeding is enabled to investigate more effectually long and intricate accounts in an adverse way, and to compel payment of the balance which over way it turns. Ibid. 110. And the interference of courts of equity is peculiarly effective in correcting errors, or detecting fraud in accounts, relied upon as stated and settled, by allowing the plaintiff, in case of specific error alleged and proved, to surcharge and falsify, and in the case of frand opening the whole account: and a party who is at liberty to surcharge and falsify, is not merely confined to errors in fact, but may take advantage of errors in law. 2 Atk. 112. 119. 1 Fonbl. 15. The jurisdiction exercised by courts of equity in matters of account, is however, in many cases bounded by the discovery; as where a suit is instituted for an account of waste of timber, without praying injunction, the plaintiff will have a decree for an account of the timber felled, though he cannot have a decree for relief: so where the bill seeks an account of ore dug, because the working of a mine is a kind of trade. 1 Fonbl. 13, 14. Neither will equity in all cases decree an account of mesne profits, for "where a man bas title to the possession of lands and makes an entry, whereby he becomes entitled to damages at law, for the time that possession was detained from him, he shall not after his entry, turn that action at law into a suit in equity, and bring a bill for an account of the profits, except in the case of an infant, or some other very particular circumstances," which particular circumstances extend to all those cases which involve an equity, which the plaintiff cannot make available at law. Fonbl. 14. To a bill for an account, a plea of a stated account is a good bar. 1 Vern. 180. 2 Atk. 1. But it must shew that the account was in writing, or at least it must set forth the balance, 2 Atk. 399. And if the bill charges that, the plaintiff has no counterpart of the account, the account should be annexed by way of schedule to the answer, that if there are any errors upon the face of it, the plaintiff may have an opportunity of pointing them out. 3 Atk. 303. Also if error or fraud are charged, they must be denied by the plea as well as by way of answer. Gilb. Ch. 56. And if neither error nor frand is charged, the defendant must by the plea, aver that the stated account, is just and true to the best of his knowledge and belief. 3 Atk. 70. And the delivering up of vouchers at the time the account was stated seems to be a proper averment in a plea of this nature, Gilb. Ch. if the fact was such. Mitf. 208-9. ACCOUPED, his conscience accouped him thereof: from the Latin adculpare." Cowel. Blount. ACCROCHE, (from the French accrocher). To hook or grapple unto. It signifies as much as to encroach: thus the accroaching or attempting to exercise royal power (a very uncertain charge,) was in 4 Ed. 3. held to be treason, in a knight of Hertfordshire who forcibly assaulted and detained one of the king's subjects till he paid him 901. The French use it for delay; as, accrocher un process, to stay the proceedings in a suit. Cowel. Blount. 4 Black. 75-6. 1 Hal. P. C. 80. ACCUSATION, (accusatio) To charge any person with a crime. By Magna Charta, no man shall be imprisoned or condemned on any accusation, without trial by his peers, or the law. None shall be vexed upon any accusation, but according to the law of the land: and no man may be molested by petition to the king, &c. unless it be by indictment, or presentment of lawful men, or by process at common law. 25 Ed. 3. 28 Ed. 3. c. 3. None shall be compelled to answer an accusation to the king, without presentment, or some matter of record. Stat. 42 Ed. 3. Promoters of suggestions are to find surety to pursue them, and not making them good, shall satisfy damages to the party accused, and pay a fine to the king. 38 Ed. 3. c. 9. In treason there must be two lawful accusers. Stat. 5 & 6 Ed. 6. c. 11. s. 12. 1P & M. c. 10. s. 11. ACEPHALI, the levellers in the reign of king Hen. 1. who acknowledged no head or superior. Leges H. 1. They were reckoned so poor that they had not a tenement by which they might acknowledge a superior lord. Du Cange. Cowel. Blount, AC ETIAM BILLÆ, the words or a clause added to a wit, where the action requires bail. The statute 13 Car. 2. c. 2. enjoins the cause of action to be particularly expressed in the wit or process, to hold a person to bail, by inserting therein, after the words to answer in a plea of trespass, and also according to the custom of the court in a certain plea of trespass on the case upon promises to the value of 201. &c. but it ought not to be made out against a peer of the realm, or upon a penal statute, or against an exccutor or administrator, or for any debt under 107 in the superior courts. Nor in any action of account, action of covenant, or the like, unless the damages are 101. or more: nor in trover, action of trespass, or for battery, wounding or or imprisonment; except there be an order of court for it, or a warrant under the hand of one of the judges of the court out of which the writ issues. The sum sworn to by the plaintiff, is to be marked on the back of the process: and then the sheriff or like officer, must arrest the body of the defendant, and return the writ with a cepi corpus indorsed thereon. 3 Black. 288. ACHAT, (French achet, signifies a contract or bargain. Purveyors by statute 36 Ed. 3. were called achators, from their frequent making of bargains. Cowl. ACHERSET, a measure of corn, conjectured to be the same with our quarter or eight bushels. Cowel. ACHOLITE, (acholitus) an inferior church servant, who, next under the subdeacon, followed or waited on the priests or deacon, and performed the meaner offices of lighting the candles, carrying the bread and wine, and paying other servile attendance. This officer, an acholite, was in our old English called a colet, from which appellation came the family of dean Colet founder of St. Paul's School. Cowel. ACKNOWLEDGMENT MONEY, is a sum paid in some parts of England by tenants on the death of their landlords, as an acknowledgment of their new lords. Cowel. Blount, ACQUITANDIS PLEGIIS, a writ of justices, lying for the surety against a creditor, who refuses to acquit him after the debt is satisfied. Reg. of Writs, 158. Cowel. Blount, ACQUIETANTIA DE SHIRIS ET HUNDREDIS, to be free from suits and services in shires and hundreds. Cowel. ACQUIETARE, is a law word, signifying quietum reddere. Dr. Wilk. Gloss. And it also sometimes signifies to pay. Mon. Angl. tom. 1 fol. 199. Cowl. Blount. ACQUITTAL, (from the French word gcquitter, and the Latin compound acquistare) to free, acquit, or discharge; it most commonly signifies a deliverance and setting free of a person from the suspicion or guilt of an offence; as, for instance, he that on a trial is discharged of a felony, is said to be acquietatus de felonia; and if he be drawn in question again for the same crime, he may plead auter foits acquit; as his life shall not be twice put in danger for the same offence. 2 Inst. 385. And when two are indicted, the one as principal, and the other as accessary, the principal being discharged, the accessary of consequence will be acquitted by law. Staunf. P. C. 168. And when a person is found Not guilty of the offence by a jury, on verdict, he is acquilted in fact. But in murder, if a man is acquitted, appeal may be brought against him. 3 Inst. 273. And by statute 3 Hen. c. 1. if either principal or accessary be acquitted on an indictment for murder, the court may remit him to prison or bail him till the year and day (for appeal) be passed. If one be acquitted on an indictment charging the offence at one time, and be afterwards indicted again in the same county, for such offence as com nitted at another time; here, notwithstanding that variance, the party may plead auter foits acquit, by averring it to be the same felony: so where a person is indicted a second time, for the felony, but at another vill, &c. 2 Hawk. 370. Where a man is discharged on special matter, found by the grand jury, yet he may be indicted de novo seven years afterwards, and cannot plead this acquittal; as he may upon the special matter found by the petit jury, and judgment given thereon. Ibid. 246. And if a person is lawfully acquitted on a malicious prosecution, he may bring his action for damages, after he hath obtained a copy of the indictment; but it is usual for the judges of gaol delivery to deny a copy of an acquittal to him who intends to bring an action thereon, when there was probable cause for a criminal prosecution. Carth. Rep. 421. ACQUITTAL also signifies in another sense, to be free from entries and molestations by a superior lord, for services issuing out of lands: for where there is a lord mesne and tenant, the tenant must do his service to the mesne only, and not to divers lords for one parcel of land. Co. Lit. 100. Cowel. Blount. ACQUITTANCE, (acquietantia,) signifieth a release or discharge in writing, of a sum of money, or debt due, as, where a man is bound to pay rent, reserved upon a lease, &c. and the party to whom due, on receipt thereof, gives a writing under his hand witnessing that he is paid: this will be such a discharge in law, that he cannot demand and recover the sum or duty again, if the acquittance be produced. Terms de Ley 15. Dyer 6, 25, 51. An acquittance is a discharge and bar in the law to actions. And if one acknowledges himself to be satisfied by deed, it may be a good plea in bar, without any thing received; bat an acquit: ance, without seal, is only evidence of satisfaction, and not pleadable. L. D. by Mag. It is observed, that a general receipt or acquittance in full of all demands, will discharge al! debts, except such as are on specialty, 2. bonds, bills, and other instruments sealed and delvered; on which account those can be destroyed only by some other specialty of equal force, such as a general release, or the hée. There being this difference between that and the general acquittance. Cro. Jac. 650. But the producing an acquittance will not bar the action, if the plaintiff can by any means shew a mistake, and that he has not been paid, or paid so much as the acquittance is for. L. D. by Mor,. In some cases payment may be refused, unless an acquittance is given. Thus the ebigor is not bound to pay money upon a single bond, except an acquittance be given him by the obligee; nor is he obliged to pay the money before he hath the acquittance. But in case of an obligation with a condition, it is otherwise; for there one may aver payment. And by 3 & 4 Ann. 1. 16. If an action of debt is brought upon a single bill, and the defendant bath paid the money, such payment may be pleaded in bar of the action. A servant may give an acquittance for the use of his master, where such servant usually receives his master's money, and a master shall be bound by it. Co. Lat. 112. ACRE, (from the German acker, i. e. ager) a parcel of land, containing in length forty perches, and in breadth four perches; or in proportion to it, be the length or breadth more or less. By the customs of various countries, the perch differs in quantity, and consequent ly the acre of land. It is commonly but 16 feet and a half, but in Staffordshire it is 24 feet. According to the statute 34 Hen. 8. concerning the sowing of flax, it is declared that 160 perches make an acre, which is forty multiplied by four; and the ordinance of measuring land, 35 Ed. 1. agrees with this account. Coteel. Blount.But the word acre formerly meant any open ground or field, as castle-acre, long-acre, west-acre, &c. and not a determined quantity of land. Cowel. Also acre, or acre-fight, is an old sort of duel fought by single combatants, English and Scotch, between the frontiers of their kingdoms, with sword and lance; and this due ling was called camp-fight, and the combatants champions, from the open field that was the place of trial. Cowel. ACROISIA, blindness: but the right word is acrusa. Dufresne. Cowel. Blount. ACTILIA, military utensils. Du Cange. Coxel. Blount. ACTION, (actio.) Men in civil society are obliged to have recourse to the law and courts of justice for redress, when injured, and thereby measure their damages; this application is what is generally termed bringing an action, and an action (activ) as defined by Bracton, nihil aliud est quam jus prosequendi in judicio quod sibi debetur; or otherwise, a legal demand of one's right. Co. Lit. 285. 2 Inst. 40. And actions are divided into criminal or civil: as for instance, criminal actions, are to have judgment of death, as appeals of death, robbery, &c. or only to have judgment for damage to the party, fine to the king, and imprisonment, as appeals of maihein, &c. Co. Lit. 284. 2 Inst. 40. And civil actions are divided into real, personal, or mixed. ACTIONS real] or relating unto lands are either droitural or in the right, or possessory : and the distinction between droitural and possessory depends on, whether it seek to recover the property or the possession: if the former, the action is droitural, if the latter, it is possessory, and Finch states this correctly; "real actions," says he, "where a freehold is to be recovered, are possessory or droitural, possessory, which are to recover a possession, as all assises, writs of ayel, besayel, and cosinage-droitural or in the right, which are to recover a possession mixed with the right: and both these may either be of a possession or right in himself, or descended from his ancestors, which we call auncestral. Finche's Law, 257, 8. and i Bac. Abr. 47. note by Gwillim, E. 6. But the proceedings in these real actions being dilatory and expensive, and in many cases concluding the party upon one trial, a more commodious method was contrived to dispute the title of lands, which began in the reign of Hen. 7. in this manner; by forming a term for years; and then the lessees, bringing an ejectment to recover the term, and thereby to assert the title of the lessor of the plaintiff, in which, if they recovered, the courts of law likewise gave an habere facias possessionem to recover the term itself (for this see Ejectment.) Fitz. N. B. 220. 3 Black. 206. ACTIONS personal] are such whereby a man claims a debt, a personal duty, or damages in lieu thereof; and, likewise whereby a man claims satisfaction in damages for some injury done to his person or property: the former are said to be founded ex contractu, that is, on contract: the latter ex delicto, that is upon torts and wrongs: of the former nature are all actions upon debt or promises: of the latter all actions for trespasses, nuisances, assaults, defamatory words, and the like. 3 Black. 117. ACTIONS mixed] are suits partaking of the nature of the other two wherein some real property is demanded, and also personal damages for a wrong sustained; as, for instance: an action of waste: which is brought by him who hath the inheritance, in remainder or reversion, against the tenant for life, who hath |