ACCIDENT, practice. This term in chancery jurisprudence, signifies
such unforeseen events, misfortunes, losses, acts or omissions, as are not the
result of any negligence or misconduct in the party. Francis' 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 accident 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
2. 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 cannot grant suitable relief; and, secondly, when the
party has a conscientious title to relief.
3. Many accidents are redressed 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 other contingencies; and many
cannot be redressed even in a court of equity; is if by accident a recovery is
ill suffered, a contingent remainder destroyed, or a power of leasing omitted in
a family settlement. 3 Bl. Comm. 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. Pl. 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 mandatum, 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 labor. 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, B. 5.
ACCOMODATION, 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.
2. 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 accomodation was given, responsible as if they had received full value.
Chit. Bills, 90; 91. See 4 Cranch, 141; 1 Ham. 413; 7 John. 361; 15 John. 355,
17 John. 176; 9 Wend. 170; 2 Whart. 344; 5 Wend. 566; 8 Wend. 437; 2 Hill, S. C.
362; 10 Conn. 308; 6 Munfd. 381.
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 particepes crimitis,
whether they are considered in strict legal propriety, as principals iu the
first or second degree, or merely as accessaries 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.
2. But in another sense, by the word accomplice is meant, one who not being a
principal, is yet in some way concerned in the commission of a crime. It has
been questioned, whether one who was an accomplice to a suicide can be punishhed
as such. A case occurred in Prussia where a soldier, at the request of his
comrade, had cut the latter in pieces; for this he was tried capitally. In the
year 1817, a young woman named Leruth received a recompense for aiding a man to
kill himself. He put the point of a bistouri on his naked breast, and used the
hand of the young woman to plunge it with greater force into his bosom; hearing
some noise he ordered her away. The man receiving effectual aid was soon cured
of the wound which had been inflicted; and she was tried and convicted of having
inflicted the wound, and punished by ten years' imprisonment. Lepage, Science du
Driot,c h. 2 art. 3, 5. The case of Saul, the king of Israel, and his armor
bearer, (1 Sam. xxxi. 4,) and of David and the Amelekite, (2 Sam. i. 2-16,) will
doubtless occur to the reader.
ACCORD, in contracts. 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.
2. 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. See 2 Wils. 341 Cro. Eliz.
3. – 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. 116; 3 J. J. Marsh. R. 497.
4. – 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. 342; 3 Lev. 189.
5. – 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. 615; Cro. Eliz. 641; 9 Co. 79, b; 3 Taunt. R. 117; 5 Co. 117, b.
6. – 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.
7. 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, in satisfaction; 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 thus
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, 890; 7 Price, 604; 2 Greenl. Ev. 28; 1 Bouv. Inst. n. 805;
3 Bouv. Inst. n. 2478-79-80-81. Vide Discharge of Obligations.
ACCOUCHEMENT. The act of giving birth to a child. It is frequently
important to prove the filiation of an individual; this may be done in several
ways. The fact of the accouchement may be proved by the direct testimony of one
who was present, as a physician, a midwife, or other person. 1 Bouv. Inst. u.
ACCOUNT, remedies. This is the name of a writ or action more properly
called account render.
2. It is applicable to the, case of an unliquidated demand, against a person
who is chargeable as bailiff or receiver. The use of it, is where the plaintiff
wants an account and cannot give evidence of his right without it. 5 Taunt. 431
It is necessary. where the receipt was directed to a merchandising which makes
all uncertainty of the nett remain, till the account is finished; or where a man
is charged as bailiff, whereupon the certainty of his receipt appears not till
account. Hob. 209.; See also 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; 10 S. & R. 220; 2 Conn. 425; 4 Verm. 137; 1 Dall. 340; 2 Watts
3. The interlocutory judgment in this action is (quod computet) that the
defendant render an account upon which judgment auditors are assigned to him to
hear and report his account. (See I Lutwych, 47; 3 Leon. 149, for precedents) As
the principal object of the action is to compel a settlement of the account in
the first instance, special bail cannot be demanded, (2 Roll. Rep. 53; 2 Keble,
404,) nor are damagos awarded upon the first judgment, nor given except ratione
interplacitationis, (Cro. Eliz. 83; 5 Binn. 664; 24 Ed. 3. 16; 18 Ed. 3. 55;
Reg. Brev. 136 b,) although it is usual to conclude the count with a demand of
damages. (Lib. Int. fo. 16. fo. 20; 1 Lutw. 51. 58; 2 H. 7. 13.) The reason
assigned for this rule, is, that it may be the defendant will not be found in
arrears after he has accounted, and the court cannot know until the settlement
of the account whether the plaintiff has been endamaged or not. 7 H. 6. 38.
4. This action combines the properties of a legal and equitable action. The
proceedings up to the judgment quod computet, and subsequent to the account
reported by the auditors are conducted upon the principles of the common law.
But the account is to be adjusted upon the most liberal principles of equity
and, good faith. (Per Herle, Ch. J. 3 Ed. 3. 10.) The court it is said are
judges of the action – the auditors of the account, Bro. Ab. Ace. 48, and both
are judges of record, 4 H. 6. 17; Stat. West. 2. c. 11. This action has received
extension in Pennsylvania. 1 Dall. 339, 340.
5. The fist judgment (quod computet) is enforeed by a capias ad computandum
where defendant refuses to appear before the auditors, upon which he may be held
to bail, or in default of bail be made to account in prison. The final judgment
quod recuperet is enforeed by fi. fa. or such other process as the law allows
for the recovery of debts.
6. If the defendant charged as bailiff is found in surplusage, no judgment
oan be entered thereon to recover the amount so found in his favor against the
plaintiff, but as the auditors are judges of record, he may bring an action of
debt, or by some authorities a sci. fac. against the plaintiff, whereon he may
have judgment and execution against the plaintiff. See Palm. 512; 2 Bulst.
277-8; 1 Leon. 219; 3 Keble Rep. 362; 1 Roll. Ab. 599, pl. 11; Bro. Ab. Acc. 62;
1 Roll. Rep. 87. See Bailiff, in account render.
7. 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 acts 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' Cas. Err. 38, 62; 1 J. J. Marsh. R. 82;
Cooke, R. 420; 1 Yerg. R. 360; 2 John. Ch. R. 424; 10 John. R. 587; 2 Rand. R.
449; 1 Hen. & M9; 2 M'Cord's Ch. R. 469; 2 Leigh's R. 6.
8. Courts of equity have concurrent jurisdiction in matters of account with
courts of law, and sometimes exclusive jurisdiction at least in some respects:
For example; if a plaintiff be entitled to an account, a court of equity will
restrain the defendant from proceeding in a claim, the correctness of which
cannot be ascertained until the account be taken; but not where the subject is a
matter of set-off. 1 Sch. & Lef. 309; Eden on Injunct. 23, 24.
9. When an account has voluntarily been stated between parties, an action of
assumpsit may be maintained thereon. 3 Bl. Com. 162; 8 Com. Dig. 7; 1 Com. Dig.
180; 2 Ib. 468; 1 Vin. Ab. 135; Bac. Ab. h. t.; Doct. Pl. 26; Yelv. 202; 1 Supp.
to Ves. Jr, 117; 2 Ib. 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.; 2 Greenl. Ev. 34-39.
ACCOUNT, practice. A statement of the receipts and payments of an
executor, administrator, or other trustee, of the estate confided to him.
2. 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, in general, be compelled by courts of chancery to
settle accounts, or otherwise fully execute their trusts. Where there are no
courts of chancery, the courts of common law are usually invested with power for
the same purposes by acts of legislation. When a party has had the property of
another as his agent, he may be compelled at common law to account by an action
of account render.
3. An account is also the statement of two merchants or others who have dealt
together, showing the debits and credits between them.
ACCOUNT-BOOK. A book kept by a merchant, trader, mechanic, or other
person, in which are entered from time to time the transactions of his trade or
business. Vide Books; Entry; Original entry.
ACCOUNT CURRENT. A running or open account between two persons.
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 favor of one of them, is called an account
2. An acknowledgnaent 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.
3. It is proposed to consider, 1st, by whom an account may, be stated; 2d,
the manner of stating the account; 3d, the declaration upon such, an account;
4th, the evidence.
4. 1. An account may be stated by a man and his wife of the one part, and a
third person; and unless there is an express promise to pay by the hushand,
Foster v. Allanson, 2 T. R. 483, the action must be brought against hushand 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.
5. 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. Riebards v. Heather, 1 B.& A. 29, and see Peake's Ev. 257.
A settlement between partners, and striking a balance, will enable a 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 Lamelere v Caze, 1 W. C.C.R. 435.
6. – 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. 6 Maule & Selw. 65; Knowles 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.
7. – 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, generally, to insert such a count, Milward, v.
Ingraham, 2 Mod. 44; Trueman v. Hurst, 1 T. R. 42; unless the action be against
persons who are incapable in law to state an account. It is not necessary to set
forth the subject-matter of the original debt, Milward v. Ingraham, 2 Mod. 44;
nor is the sum alleged to be due material. Rolls v. Barnes, 1 Bla. Rep. 65; S.
C. 1 Burr. 9.
8. – 4. The count upon an account stated, is supported by evidence of an
acknowledgment on the part of the defendant of money due to the plaintiff, upon
an account between them. But the sum must have been stated between the parties;
it is not sufficient that the balance may be deduced from partnership books.
Andrews v. Allen, 9 S.&. R. 241. It is unnecessary to prove the items of
which the account consists; it is sufficient to prove some existing antecedent
debt or demand between the parties respecting which an account was stated, 5
Moore, 105; 4 B.& C. 235, 242; 6 D.& R. 306; and that a balance was
struck and agreed upon; Bartlet v. Emery, 1 T. R. 42, n; for the stating of the
account is the consideration of the promise. Bull. N. P. 129. An account stated
does not alter the original debt; Aleyn, 72; and it seemsnot to be conclusive
against the party admitting the balance against him. 1 T. R. 42. He would
probably be allowed to show a gross error or mistake iu the account, if he could
adduce clear evidence to that effect. See 1 Esp. R. 159. And see generally tit.
Partner's; Chit. Contr. 197; Stark. Ev. 123; 1 Chit. Pl. 343.
9. In courts of equity when a bill for an account has been filed, it is a
good defence that the parties have already in writing stated and adjusted the
items of the account, and struck a balance; for then an action lies it law, and
there is no ground for the interference of a court of equity. 1 Atk. 1; 2 Freem.
62; 4 Cranch, 306; 11 Wheat. 237; 9 Ves. 265; 2 Bro. Ch. R. 310; 3 Bro. Ch. R.
266; 1 Cox, 435.
10. But if there has been any mistake, ommision, fraud, or undue advantage,
by which the account stated is in fact vitiated, and the balance incorrectly
fixed, a court of equity will open it, and allow it to be re-examined; and where
there has been gross fraud it will direct the whole account to be opened, and
examined de novo. Fonbl. Eq. b. 1, c. 1 3, note (f); 1 John. Ch. R. 550.
11. Sometimes the court will allow the account to stand, with liberty to the
plaintiff to surcharge and falsify it; the effect of this is, to leave the
account in full force and vigor, as a stated account, except so far as it can be
impugned by the opposing party. 2 Ves. 565; 11 Wheat. 237. See Falsification;
ACCOUNT OF SALES. comm. law. An account delivered by one merchant or
tradesman to another, or by a factor to his principal, of the disposal, charges,
commissions and net proceeds of certain merchandise consigned to such merchant,
tradesman or factor, to be sold.
ACCOUNTANT. This word has several significations: 1. One who is versed
in accounts; 2. A person or officer appointed to keep the accounts of a public
company; 3. He who renders to another or to a court a just and detailed
statement of the administration of property which he holds as trustee, executor,
admnistrator or guardian. Vide 16 Vin. Ab. 155.
ACCOUPLE. To accouple is to marry. See Ne unquas accouple.
TO ACCREDIT, international law. The act by which a diplomatic agent is
acknowledged by the government near which he is sent. This at once makes his
public character known, and becomes his protection.
ACCRETION. The increase of land by the washing of the seas or rivers.
Hale, De Jure Maris, 14. Vide Alluvion; Avulsion.
TO ACCRUE. Literally to grow to; as the interest accrues on the
principal. Accruing costs are those which become due and are created after
judgment of an execution.
2. – To accrue means also to arise, to happen, to come to pass; as the
statute of limitations does not commence running until the cause of action has
accrued. 1 Bouv. Inst. n. 861; 2 Rawle, 277; 10 Watts, 363; Bac. Abr. Limitation
of Actions, D 3.
ACCUMULATIVE JUDGMENT. A second or additional judgment given against
one, who has been convicted, the execution or effect of which is to commence
after the first has expired; as, where a man is sentenced to an imprisonment for
six months on conviction of larceny, and, afterwards he is convicted of
burglary, he may be sentenced to undergo an imprisonment for the latter crime,
to commence after the expiration of the first imprisonment; this is called an
ACCUSED. One who is charged with a crime or misdemeanor.
ACCUSATION, crim. law. A charge made to a competent officer against
one who has committed a crime or misdemeanor, so that he may be brought to
justice and punishment.
2. A neglect to accuse may in some cases be consicleied a misdemeanor, or
misprision. (q. v.) 1 Bro. Civ. Law, 247; 2 Id. 389; Inst. lib. 4, tit. 18.
3. It is a rule that no man is bound to accuse himself, or to testify against
himself in a criminal case. Accusare nemo se debet nisi coram Deo. Vide
Evidence; Interest; Witness.
ACCUSER. One who makes an accusation.
ACHAT. This French word signifies a purchase. It is used in some of
our law books, as well as achetor, a purchaser, which in some ancient statutes
means purveyor. Stat. 36 Edw. III.
ACHERSET, obsolete. An ancient English measure of grain, supposed to
be the same with their quarter or eight bushels.