ABBREVIATORS, eccl. law. Officers whose duty it is to assist in
drawing up the Pope's briefs, and reducing petitions into proper form, to be
converted into Papal Bulls. Vide Bulls.
ABBROCHMENT, obsolete. The forestalling of a market or fair.
ABDICATION, government. 1. A simple renunciation of an office,
generally understood of a supreme office. James II. of England; Charles V. of
Germany; and Christiana, Queen of Sweden, are said to have abdicated. When James
III of England left the kingdom, the Commons voted that he had abdicated the
government, and that thereby the throne had become vacant. The House of Lords
preferred the word deserted, but the Commons thought it not comprehensive
enough, for then, the king might have the liberty of returning. 2. When inferior
magistrates decline or surrender their offices, they are said to make a
ABDUCTION, crim. law. The carrying away of any person by force or
fraud. This is a misdemeanor punishable by indictment. 1 East, P.C. 458; 1
Russell, 569. The civil remedies are recaption, (q.v.) 3 Inst. 134; Hal. Anal.
46; 3 Bl. Com 4; by writ of habeas corpus; and an action of trespass, Fitz. N.
B. 89; 3 Bl. Com 139, n. 27; Roscoe, Cr. Ev. 193.
ABEARANCE. Behaviour; as, a recognizance to be of good abearance,
signifies to be of good behaviour. 4 Bl. Com.,251, 256.
ABEREMURDER, obsolete. An apparent, plain, or downright murder. It was
used to distinguish a wilful murder, from a chance-medley, or manslaughter.
Spelman; Cowell; Blount.
TO ABET, crim. law. To encourage or set another on to commit a crime.
This word is always taken in a bad sense. To abet another to commit a murder, is
to command, procure, or counsel him to commit it. Old Nat. Brev 21; Col Litt.
ABETTOR, crim. law. One who encourages or incites, persuades or sets
another on to commit a crime . Such a person is either a principal or, an
accessory to the crime. When present, aiding, where a felony is committed, he is
guilty as principal in the second degree ; when absent, "he is merelyan
accessory. 1. Russell, 21; 1 Leach 66; Foster 428.
ABEYANCE, estates, from the French aboyer, which in figurative sense
means to expect, to look for, to desire. When there is no person in esse in whom
the freehold is vested, it is said to be in abeyance, that is, in expectation,
remembrance and contemplation.
– 2. The law requires, however, that the freehold should never, if possible,
be in abeyance. Where there is a tenant of the freehold, the remainder or
reversion in fee may exist for a time without any particular owner, in which
case it is said to be in abeyance. 9 Serg. & R.. 367; 8 Plowd. 29 a. b 35
– 3. Thus, if sn estate be limited to A for life, remainder to the right
heirs of B, the fee simple is in abeyance during the life of B, because it is a
maxim of law, that nemo est hoeres viventis. 2 Bl. Com. 107; 1 Cruise, 67-70; 1
Inst. 842, Merlin, Repertoire, mot Abeyance; 1 Com. Dig. 176; 1 Vin. Abr.
– 4. Another example may be given in the case of a corporation. When a
charter is given, and the charter grants franchises or property to a corporation
which is to be brought into existence by some future acts of the corporators,
such franchises or property are in abeyance until such acts shall be done, and
when the corporation is thereby brought into life, the franchises
instantaneously attach. 4 Wheat. 691. See, generally, 2 Mass. 500; 7 Mass. 445;
10 Mass. 93; 15 Mass. 464; 9 Cranch, 47. 293; 5 Mass. 555.
ABIDING BY PLEA. English law. A defendant who pleads a frivolous plea,
or a plea merely for the purpose of delaying the suit; or who for the same
purpose, shall file a similar demurrer, may be compelled by rule in term time,
or by a Judge's order in vacation, either to abide by that plea, or by that
demurrer, or to plead peremptorily on the morrow; or if near the end of the
term, and in order to afford time for notice of trial, the motion may be made in
court for rule to abide or plead instanter; that is, within twenty-four hours
after rule served, Imp. B.R. 340, provided that the regular time for pleading be
expired. If the defendant when ruled, do not abide, he can only plead the
general issue; 1 T.R. 693; but he may add notice of set-off. Ib. 694, n. See 1
Chit. Rep. 565, n.
ABIGEAT, civ. law, A particular kind of larceny, which is committed
not by taking and carrying away the property from one place to another, but by
driving a living thing away with an intention of feloniously appropriating the
same. Vide Taking.
ABIGEI, civil law. Stealers of cattle, who were punished with more
severity than other thieves. Dig. 47, 14; 4 Bl. Com. 239.
ABJURATION – A renunciation of allegiance to a country by oath.
2. – 1. The act of Congress of the 14th of April, 1802, 2 Story's Laws, U.S.
850, requires that when an alien shall apply to be admitted a citizen of the
United States, he shall declare on oath or affirmation before the court where
the application shall be made, inter alia, that he doth absolutely and entirely
renounce and abjure all allegiance and fidelity which he owes to any foreign
prince, &c., and particularly, by name, the prince, &c., whereof he was
before a citizen or subject. Rawle on the Const. 98.
3. – 2. In England t he oath of abjuration is an oath by which an Englishman
binds himself not to acknowledge any right in the Pretender to the throne of
4. – 3 it signifies also, according to 25 Car. H., an oath abjuring to
certain doctrines of the church of Rome.
5. – 4. In the ancient English law it was a renunciation of one's country and
taking an oath of perpetual banishment. A man who had committed a felony, and
for safety flee to a sanctuary might within forty days' confess the fact, and
take the oath of abjuration and perpetual banishment; he was then transported.
This was abolished by Stat. 1 Jac. 1, c. 25. Ayl. Parerg. 14.
ABLEGATI, diplomacy. Papal ambassadors of the second rank, who are
sent with a less extensive commission to a court where there are no nuncios.
This title is equivalent to envoy (q. v.).
ABNEPOS, civil law. The grandson of a grandson or grand-daughter, or
fourth descendant. Abneptis, is the grand-daughter of a grandson or
grand-daughter. These terms are used in making genealogical tables.
ABOLITION. An act by which a thing is extinguished, abrogated or
annihilated. Merl. Repert, h. t., as, the abolition of slavery is the
destruction of slavery.
2 . In the civil and French law abolition is used nearly synonymously with
pardon, remission, grace. Dig. 39, 4, 3, 3. There is, however, this difference;
grace is the generic term; pardon, according to those laws, is the clemency
which the prince extends to a man who has participated in a crime, without being
a principal or accomplice; remission is made in cases of involuntary homicides,
and self-defence. Abolition is different: it is used when the crime cannot be
remitted. The prince then may by letters of abolition remit the punishment, but
the infamy remains, unless letters of abolition have been obtained before
sentence. Encycl. de d'Alembert, h. t.
3. The term abolition is used in the German law in the same sense as in the
French law. Encycl. Amer. h. t. The term abolition is derived from the civil
law, in which it is sometimes used synonymously with absolution. Dig. 39, 4, 3,
ABORTION, med jur. and criminal law. The expulsion of the foetus
before the seventh mouth of utero-gestation, or before it is viable. q. v.
2. The causes of this accident are referable either to the mother, or to the
foetus and its dependencies. The causes in the mother may be: extreme nervous
susceptibility, great debility, plethora, faulty conformation, and the like; and
it is frequently induced immediately by intense mental emotion. The causes
seated in the foetus are its death, rupture of the membranes, &c.
3. It most frequently occurs between the 8th and 12th weeks of gestation.
When abortion is produced with a malicious design, it becomes a misdemeanor, at
common law, 1 Russell, 553; and the party causing it may be indicted and
4. The crimjnal means resorted to for the purpose of destroying the foetus,
may be divided into general and local. To the first belong venesection, emetics,
cathartics diuretics, emmenagogues &c. The second embraces all kinds of
violence directly applied.
5. When, in consequence of the means used to produce abortion, the death of
the woman ensues, the crime is murder.
6. By statute a distinction is made between a woman quick with child, (q. v.)
and one who, though pregnant, is not so, 1 Bl. Com. 129. Physiologists, perhaps
with reason, think that the child is a living being from the moment of
conception. 1 Beck. Med. Jur. 291. General References. 1 Beck, 288 to 331; and
429 to 435; where will be found an abstract of the laws of different countries,
and some of the states punishing criminal abortion; Roscoe, Cr. Ev. 190; 1 Russ.
553; vilanova y Manes, Materia Criminal Forense, Obs. 11, c. 7 n. 15-18. See
also 1 Briand, Med. Leg. 1 ere partie, c. 4, where the question is considered,
how far abortion is justifiable, and is neither a crime nor a misdemeanor. See
Alis. Cr. L. of Scot. 628.
ABORTUS. The fruit of an abortion; the child born before its time,
incapable of life. See Abortion; Birth; Breath; Dead bord; Gestation; Life.
ABOVE. Literally higher in place: But in law this word is sometimes used to
designate the superior court, or one which may revise proceedings of an inferior
court error, from such inferior jurisdiction. The court of error is called the
court above; the court whose proceedings are to be examined is called the court
2. By bail above, is understood bail to the action entered with the
prothonotary or clerk, which is an appearance. See Bail above. The bail given to
the Sheriff, in civil cases, when the defendant is arrested on bailable process,
is called bail below; (q.v.) vide Below.
TO ABRIDGE, practice. To make shorter in words, so as to retain the
sense or substance. In law it signifies particularly the making of a declaration
or count shorter, by taking or severing away some of the substance from it.
Brook, tit. Abridgment ment; Com. Dig. Abridgment; 1 Vin. Ab. 109.
2. Abridgment of the Plaint is allowed even after verdict and before judgment
(Booth on R. A.) in an cases of real actions where the writ is de lib. ten.
generally, as in assize, dower; &c.; because, after the abridgment the writ
is still true, it being liberum tenementum still. But it is not allowed in a
proecipe quod reddat, demanding a certain number of acres; for this would
falsify the writ. See 2 Saund. 44, (n.) 4 ; Bro. Abr. Tit. Abr.; 12 Levin's Ent.
76; 2 Saund. 330; Gilb. C. P. 249-253; Thel. Dig. 76, c. 28, pl. 15, lib. 8.
AN ABRIDGMENT. An epitome or compendium of another and larger work,
wherein the principal ideas of the larger work are summarily contained. When
fairly made, it may justly be deemed, within the meaning of the law, a new work,
the publication of which will not infringe the copyright of the work abridged.
An injunction, however, will be granted against a mere colorable abridgment. 2
Atk. 143; 1 Bro. C. C. 451; 5 Ves. 709; Lofft's R. 775; Ambl. 403; 5 Ves. 709.;
1 Story, R. 11. See Quotation.
2. Abridgments of the Law or Digests of Adjudged Cases, serve the very useful
purpose of an index to the cases abridged, 5 Co. Rep. 25. Lord Coke says they
are most profitable to those who make them. Co. Lit. in preface to the table –
at the end of the work. With few exceptions, they are not entitled to be
considered authoritative. 2 Wils. R. 1, 2; 1 Burr. Rep. 364; 1 Bl. Rep. 101; 3
T. R. 64, 241. See North American Review, July, 1826, pp. 8, 13, for an account
of the principal abridgments.
ABROGATION, in the civil law, legislation. The destruction or
annulling of a former law, by an act of the legislative power, or by usage. A
law may be abrogated or only derogated from; it is abrogated when it is totally
annulled; it is derogated from when only a part is abrogated: derogatur legi,
cum pars detrahitur; abrogatur legi, cum prorsus tollitur. Dig lib.. 50, t. 17,
1, 102. Lex rogatur dum fertur; abrogatur dum tollitur; derogatur eidem dum
quoddam ejus caput aboletuer; subrogatur dum aliquid ei adjicitur; abrogatur
denique, quoties aliquid in ea mutatur. Dupin, Proleg. Juris, Art. iv.
2. Abrogation is express or implied; it is express when it, is literally
pronounced by the new law, either in general terms, as when a final clause
abrogates or repeals all laws contrary to the provisions of the new one, or in
particular terms, as when it abrogates certain preceding laws which are
3. Abrogation is implied when the new law contains provisions which are
positively, contrary to the former laws, without expressly abrogating such laws:
for it is a posteriora derogant prioribus. 3 N. S. 190; 10 M. R. 172. 560. It is
also implied when the order of things for which the law had been made no longer
exists, and hence the motives which had caused its enactment have ceased to
operate; ratione legis omnino cessante cessat lex. Toullier, Droit Civil
Francais, tit. prel. 11, n. 151. Merlin, mot Abrogation.
ABSCOND. To go in a clandestine manner out of the jurisdiction of the
courts, or to lie concealed in order to avoid their process.
ABSENTEE. One who is away from his domicil, or usual place of
2. After an absence of seven years without being heard from, the presumption
of death arises. 2 Campb. R. 113; Hardin's R. 479; 18 Johns. R. 141 15 Mass. R.
805; Peake's Ev. c. 14, s. 1; 2 Stark. Ev. 457 8; 4 Barn. & A. 422; 1 Stark.
C. 121 Park on Ins. 433; 1 Bl. R. 404; Burr v. Simm, 4 Wh. 150; Bradley v.
Bradley, 4 Wh. 173.
3. In Louisiana, when a person possessed of either movable or immovable
property within the state, leaves it, without having appointed somebody to take
care of his estate; or when the person thus appointed dies, or is either unable
or unwilling to continue to administer that estate, then and in that case, the
judge of the place where the estate is situated, shall appoint a curator to
administer the same. Civ. Code of Lo. art. 50.. In the appointment of this
curator the judge shall prefer the wife of the absentee to his presumptive
heirs, the presumptive heirs to other relations; the relations to strangers, and
creditors to those who are not otherwise interested, provided, however, that
such persons be possessed of the necessary qualifications. Ib. art. 51. For the
French law on this subject, vide Biret, de l'Absende; Code Civil, liv. l tit..
4. Fouss. lib. 13 tit. 4, n. 379-487; Merl. Rep. h. t.; and see also Ayl. Pand.
269; Dig. 50, 16, 198; Ib. 50, 16, 173; Ib. 3, 3,,6; Code, 7 32 12.
ABSOLUTE. Without any condition or encumbrance, as an "absolute bond,"
simplex obligatio, in distinction from a conditional bond; an absolute estate,
one that is free from all manner of condition or incumbrance. A rule is said to
be absolute, when, on the hearing, it is confirmed. As to the effect of an
absolute conveyance, see 1 Pow. Mortg. 125; in relation to absolute rights, 1
Chitty, PI. 364; 1 Chitty, Pr. 32.
ABSOLUTION. A definite sentence whereby a man accused of any crime is
ABSQUE HOC, pleading. When the pleadings were in Latin these words
were employed in a traverse. Without this, that, (q. v.) are now used for the
ABSQUE IMPETITIONE VASTI. Without impeachment of waste. (q. v.)
Without any right to prevent waste.
ABSQUE TALI CAUSA. This phrase is used in a traverse de injuria, by
which the plaintiff affirms that without the cause in his plea alleged he did
commit the said trespasses, &c. Gould on PI. c. 7, part 2, 9.
ABSTENTION, French law. This is the tacit renunciation by an heir of a
succession Merl. Rep. h.t.
ABSTRACT OF TITLE. A brief account of all the deeds upon which the
title to an estate rests. See Brief of Title.
ABUSE. Every thing which is contrary to good order established by
usage. Merl. Rep. h. t. Among the civilians, abuse has another signification;
which is the destruction of the substance of a thing in using it. For example,
the borrower of wine or grain, abuses the article lent by using it, because he
cannot enjoy it without consuming it. Leg ; El. Dr. Rom. 414. 416.
ABUTTALS. The buttings and boundings of land, showing on what other
lands, rivers, highways, or other places it does abut. More properly, it is
said, the sides of land, are adjoining and the ends abutting to the thing
contiguous. Vide Boundaries, and Cro. Jac. 184.
AC ETIAM, Eng. law. In order to give jurisdiction to a court, a cause
of action over which the court has jurisdiction is alleged, and also,, (ac
etiam) another cause of action over which, without being joined with the first,
the court would have no jurisdiction; for example, to the usual complaint of
breaking the plaintiff's close, over which the court has jurisdiction, a clause
is added containing the real cause of action. This juridical contrivance grew
out of the Statute 13 Charles H. Stat. 2, c. 2. The clause was added by Lord
North, Ch. J. of the C. P. to the clausum fregit writs of that court upon which
writs of capias might issue. He balanced awhile whether he should not use the
words nec non instead of ac etiam. The matter is fully explained in Burgess on
Insolvency, 149. 155. 156. 157.
ACCEDAS AD CURIAM, Eng. law. That you go to court. An original writ,
issuing out of chancery, now of coarse, returnable in K. B. or C. P. for the
removaI of a replevin sued by plaint in court of any lord, other than the county
before the sheriff See F. N. B. 18; Dyer, 169.
ACCEDAS AD VICECOMITEM, Eng. law. The name of a writ directed to the
coroner, commanding him to deliver a writ to the sheriff, who having a pone
delivered to him, suppresses it.
ACCEPTANCE, contracts. An agreement to receive somethinng which has
2. To complete the contract, the acceptance must be absolute and past recall,
10 Pick. 826; 1 Pick. 278; and communicated to the party making the offer at the
time and place appointed. 4. Wheat. R. 225; 6 Wend. 103.
3. In many cases acceptance of a thing waives the right which the party
receiving before had; as, for example, the acceptance of rent after notice to
quit, in general waives. the notice. See Co. Litt. 211, b; Id. 215, a.; and
Notice to quit.
4. The acceptance may be express, as when it is openly declared by the party
to be bound by it; or implied, as where the party acts as if he had accepted.
The offer, and acceptance must be in some medium understood by, both parties; it
may be language, symbolical, oral or written. For example, persons deaf and dumb
may contract by symbolical or written language. At auction sales, the contract,
generally symbolical; a nod, a wink, or some other sign by one party, imports
that he makes an offer, and knocking down a hammer by the other, that he agrees
to it. 3 D. & E. 148. This subject is further considered under the articles
Assent and Offer, (q v.)
5. Acceptance of a bill of exchange the act by which the drawee or other
person evinces his assent or intention to comply with and be bound by, the
request contained in a bill of exchange to pay the same; or in other words, it
is an engagement to pay the bill when due. 4 East, 72, It will be proper to
consider, 1, by whom the acceptance ought to be made; 2, the time when it is to
be made; 3, the form of the acceptance; 4, its extent or effect.
6. – 1. The acceptance must be made by the drawee himself, or by one
authorized by him. On the presentment of a bill, the holder has a right to
insist upon such an acceptance by the drawee as will subject him at all events
to the payment of the bill, according to its tenor; consequently such drawee
must have capacity to contract, and to bind himself to pay the amount of the
bill, or it, may be treated as dishonored. Marius, 22. See 2 Ad. & EH. N. S.
7. – 2. As to the time when, a bill ought to be accepted, it may be before
the bill is drawn; in this case it must be in writing; 3 Mass. 1; or it may be
after it is drawn; when the bill is presented, the drawee must accept the bill
within twenty-four hours after presentment, or it should be treated as
dishonored. Chit. Bills, 212. 217. On the refusal to accept, even within the
twenty-four hours, it should be protested. Chit. Bills, 217. The acceptance may
be made after the bill is drawn, and before it becomes due or after the time
appointed for payment 1 H. Bl. 313; 2 Green, R. 339 ; and even after refusal to
accept so as to bind the acceptor.
8. The acceptance may also be made supra protest, which is the acceptance of
the bill, after protest for non-acceptance by the drawee, for the honor of the
drawer, or a particular endorser. When a bill has been accepted supra protest
for the honor of one party to the bill, it may be accepted supra protest, by
another individual, for the honor of another. Beawes, tit. Bills of Exchange,
pl. 52; 5 Campb. R. 447.
9. – 3. As to the form of the acceptance, it is clearly established it may be
in writing on the bill itself, or on another paper, 4 East, 91; or it may be
verbal, 4 East, 67; 10 John. 207; 3 Mass. 1; or it may be expressed or
10. An express acceptance is an agreement in direct and express terms to pay
a bill of exchange, either by the party on whom it is drawn, or by some other
person, for the honor of some of the parties. It is Usually in the words
accepted or accepts, but other express words showing an engagement to pay the
bill will be equally binding.
11. An implied acceptance is an agreement to pay a bill, not by direct and
express terms, but by any acts of the party from which an express agreement may
be fairly inferred. For example, if the drawee writes "seen," "presented," or
any, other thing upon it, (as the day on which it becomes due,) this, unless
explained by other circumstances, will constitute an acceptance.
12. – 4. An acceptance in regard to its extent and effect, may be either
absolute, conditional, or partial.
13. An absolute acceptance is a positive engagement to pay the bill according
to its tenor, and is usually made by writing on the bill "accepted," and
subscribing the drawee's name; or by merely writing his name either at the
bottom or across the bill. Comb. 401; Vin. Ab. Bills of Exchange, L 4; Bayl. 77;
Chit. Bills, 226 to 228. But in order to bind another than the drawee, it is
requisite his name should appear. Bayl. 78.
14. A conditional acceptance is one which will subject the drawee or acceptor
to the payment of the money on a contingency, Bayl. 83, 4, 5; Chit. Bills, 234;
Holt's C. N. P. 182; 5 Taunt, 344; 1 Marsh. 186. The holder is not bound to
receive such an acceptance, but if he do receive it he must observe its terms. 4
M.& S. 466; 2 W. C. C. R. 485; 1 Campb. 425.
15. A partial acceptance varies from the tenor of the bill, as where it is
made to pay part of the sum for which the bill is drawn, 1 Stra. 214; 2 Wash. C.
C. R. 485; or to pay at a different time, Molloy, b. 2, c. 10, s. 20; or place,
4. M.& S. 462.
ACCEPTILATION, contracts. In the civil law, is a release made by a
creditor to his debtor of his debt, without receiving any consideration. Ayl.
Pand. tit. 26, p. 570. It is a species of donation, but not subject to the forms
of the latter, and is valid, unless in fraud of creditors. Merlin, Repert. de
Jurisp. h. t. Acceptilation may be defined verborum conceptio qua creditor
debitori, quod debet, acceptum fert; or, a certain arrangement of words by which
on the question of the debtor, the creditor, wishing to dissolve the obligation,
answers that he admits as received, what in fact, he has not received. The
acceptilation is an imaginary payment. Dig. 46, 4, 1 and 19; Dig. 2, 14, 27, 9;
Inst. 3, 30, 1.
ACCEPTOR, contracts. The person who agrees to pay a bill of exchange
drawn upon him. There cannot be two separate acceptors of a bill of exchange, e.
g. an acceptance by the drawee, and another for the honor of some party to the
bill. Jackson v. Hudson, 2 Campb. N. P. C. 447.
2. The acceptor of a bill is the principal debtor, and the drawer the surety.
He is bound, though he accepted without consideration, and for the sole
accommodation of the drawer. By his acceptance he admits the drawer's
handwriting, for, before acceptance it was incumbent upon him to inquire into
the genuineness of the drawer's handwriting. 3 Burr. 1354; 1 Bla. Rep. 390, S.
C.; 4 Dall. 234; 1 Binn. 27, S. C. When once made, the obligation of the
acceptor is irrevocable. As to what amounts to an acceptance, see ante,
Acceptance; Chitty on Bills, 242, et. seq.; 3 Kent, Com. 55, 6; Pothier, Traite
du Contrat de Change, premiere part. n. 44.
3. The liability of the acceptor cannot in general be released or discharged,
otherwise than by payment, or by express release or waiver, or by the act of
limitations. Dougl. R. 247. What amounts to a waiver and discharge of the
acceptor's liability, must depend on the circumstances of each particular case.
Dougl. 236, 248; Bayl. on Bills, 90; Chitty on Bills, 249.
ACCEPTOR SUPRA PROTEST, in contracts, is a third person, who, after
protest for non-acceptance by the drawee, accepts the bill for the honor of the
drawer, or of the particular endorser.
2. By this acceptance he subjects himself to the same obligations as if the
bill had been directed to him. An acceptor supra protest has his remedy against
the person for whose honor he accepted, and against all persons who stand prior
to that person. If he takes up the bill for the honor of the endorser, he stands
in the light of an endorsee paying full value for the bill, and has the same
remedies to which an endorsee would be entitled against all prior parties, and
he can, of course, sue the drawer and endorser., 1 Ld. Raym. 574; 1 Esp. N. P.
Rep. 112; Bayly on Bills, 209; 3 Kent. Com. 57; Chitty on Bills, 312. The
acceptor supra protest is required to give thesame notice, in order to charge a
party, 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. Approach, or 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. & R. 141.
2. 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. lb.
3. Parents are not allowed to prove non-access, for the purpose of
bastardizing the issue of the wife; nor will their declarations be received
after their deaths, 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 Ashm. R. 269; 6 Binn. R. 283; 3 Paige's R. 129; 7 N. S.
548. 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.
2. 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 accessary, for none can be accessary to
the acts of a madman, but a principal in the first degree. Fost. 340; 1 P. C.
3. 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.
4. No one who is a principal (q. v.) can be an accessary.
5. 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,
6. It is evident there can be no accessary when there is no principal; if a
principal in a transaction be not liable under our laws, no one can be charged
as a more accessary to him. 1 W.& M. 221.
7. By the rules of the common law, accessaries cannot be tried without their
consent, before the principals. Foster, 360. The evils resulting from this rule,
are stated at length in the 8th vol. of Todd's Spencer, pp. 329, 330.
ACCESSION, property. The ownership of a thing, whether it be real or
personal, movable or immovable, 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.
2. – 1. The doctrine of property arising from accession, is grounded on the
right of occupancy.
3. – 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. 88. 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; 5 Johns. Rep. 348; Betts v.
Lee, 6 Johns. Rep. 169; Curtiss v. Groat, 10 Johns. 288; Babcock v. Gill, 9
Johns. Rep. 363; Chandler v. Edson, 5 H. 7, 15; 12 H. 8, 10; Fits. Abr. Bar.
144; Bro. Abr. Property, 23; Doddridge Eng. Lawyer, 125, 126, 132, 134. See
Adjunction; Confusion of Goods. See Generally, Louis. Code, tit. 2, c. 2 and
ACCESSION, international law, is the absolute or conditional
acceptance by one or several states, of a treaty already concluded between one
or several states, of a traty already concluded between other sovereignties.
Merl. Rep. mot Accession.
ACCESSORY, property. Everything which is joined to another thing, as
an ornament, or to render it more perfect, is an accessory, and belongs to 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. Accesiorium non ducit, sed sequitur principale. Co. Litt. 152, a.
Co. Litt. 121, b. note (6). Vide Accession; Adjunction; Appendant;
Appurtenances; Appurtenant; Incident.
ACCESSORY CONTRACT. one made for assuring the performance of a prior
contract, either by the same parties, or by others; such as suretyship,
mortgages, and pledges.
2. 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. See 8 Mass. 551; 15 Mass. 233; 17 Mass. 419; 4 Pick. 11;
8 Pick. 522.
3. An accessory agreement to guaranty an original contract, which is void,
has no binding effect. 6 Humph. 261. 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 lightning would have been an accident of the second kind. 1 Fonb. Eq. 374, 5,
2. 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. 76. 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.
3. 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. 216.