ACCEPTOR

ACCEPTOR. One who accepts a bill of exchange. 3 Kent, 75.

The party who undertakes to pay a bill of exchange in the first instance.

The drawee is in general the acceptor; and unless the drawee accepts, the bill is dishonored. 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 Kent, 75; 3 Burr. 1384; 1 W. Bla. 390; 4 Dall. 204.

ACCEPTOR SUPRA PROTEST. One who accepts a bill which has been protested, for the honor of the drawer or any one of the endorsers.

Any person, even the drawee himself, may accept a bill supra protest; Byles, Bills, *262, and two or more persons may become acceptors supra protest for the honor of different persons. A general acceptance supra protest is taken to be for the honor of the drawer; Byles, Bills, *263. The obligation of an acceptor supra protest is not absolute but only to pay if the drawee do not; 16 East, 391. See 3 Wend. 491; 19 Pick. 220; 8 N. H. 66. 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. 112; Bayley, Bills, 209; 3 Kent, 75; Chitty, Bills, 312. The acceptor supra protest is required to give the same notice, in order to charge a party, which is necessary to be given by other holders; 19 Pick. 220. ACCESS. 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.

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; 1 Turn. & R. 141.

Parents are not allowed to prove non-access for the purpose of bastardizing the issue of the wife, whether the action be civil or criminal, or whether the proceeding is one of settlement or bastardy, or to recover property claimed as heir at law; Rep. temp. Hardw. 79; Buller, N. P. 113; Cowp. 592; 8 East, 203; 11 id. 133; 2 Munf. 242; 3 id. 599; 3 Hawks, 323; 3 Hayw. 221; 1 Ashm. 269; 1 Grant Cas. 377; 3 Paige, Ch. 129.

The modern doctrine is that children born

in lawful wedlock (when there has been no divorce a mensa et thoro) are presumed legitimate, but this presumption may be rebutted by evidence (not that of the parents) tending to show that intercourse could not have taken place, impotency, etc. Where there were opportunities for intercourse, evidence is generally not allowed to establish illegitimacy; 2 Greenl. Ev. § 150, 151, and n. See 9 Beav. 552.

Non-access is not presumed from the mere fact that husband and wife lived apart; Gale & D. 7. See 3 C. & P. 215; 1 Sim. & S. 153; 1 Greenleaf Ev. § 28.

ACCESSARY. In Criminal Law. He who is not the chief actor in the perpetration of the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed.

An accessary before the fact is one who, being absent at the time of the crime committed, yet procures, counsels, or commands another to commit it; 1 Hale, Pl. Cr. 615. With regard to those cases where the principal goes beyond the terms of the solicitation, the approved test is, "Was the event alleged to be the crime to which the accused is charged to be accessary, a probable cause of the act which he counselled ?" 1 F. & F. Cr. Cas. 242; Roscoe, Crim. Ev. 181. When the act is committed through the agency of a person who has no legal discretion or 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; 1 Hale Pl. Cr. 514. But if the instrument is aware of the consequences of his act, he is a principal in the first degree, and the employer, if he is absent when the fact is committed, is an_accessary before the fact; 1 R. & R. Cr. Cas. 363; 1 Den. Cr. Cas. 37; C. & K. 589; or if he is present, as a principal in the second degree; 1 Fost. Cr. Cas. 349; unless the instrument concur in the act merely for the purpose of detecting and punishing the employer, in which case he is considered as an innocent agent.

An accessary after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon; 4 Bla. Com. 37.

No one who is a principal can be an accessary.

In certain crimes, there can be no accessaries; all who are concerned are principals, whether they were present or absent at the time of their commission. These are treason, and all offences below the degree of felony; 4 Bla. Com. 35-40; Hawkins, Pl. Cr. b. 2, c. 29, § 16; 1 Whart. Cr. L. § 223; 2 Den. Cr. Cas. 453; 5 Cox, Cr. Cas. 521; 2 Mood. Cr. Cas. 276; 8 Dana, 28; 20 Miss. 58; 3 Cush. 284; 3 Gray, 448; 14 Mo. 137; 18 Ark. 198; 4 J. J. Marsh. 182; 67 Ill. 587. Such is the English law; but in the United States it appears not to be determined as re

ACCESSIO

gards the cases of persons assisting traitors. Sergeant, Const. Law, 382; 4 Cranch. 472, 501; U. S. v. Fries, 3 Dall. 515. See 2 Wall. Jr. 134, 139; 16 Wall. 147; 12 Wall. 347. That there cannot be an accessary in cases of treason, see Davis, Cr. L. 38. Contra, 1 Whart. Cr. L. § 224.

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 mere accessary to him; 1 Woodb. & M. 221.

By the rules of the common law, an accessary cannot be tried, without his consent, before the conviction of the principal; Fost. Cr. Cas. 360. This is altered by statute in most of the states.

But an accessary to a felony committed by several, some of whom have been convicted, may be tried as accessary to a felony committed by these last; but if he be indicted and tried as accessary to a felony committed by them all, and some of them have not been proceeded against, it is error; 7 S. & R. 491; 10 Pick. 484. If the principal is dead, the accessary cannot, by the common law, be tried at all; 16 Mass. 423.

ACCESSIO (Lat.). An increase or addition; that which lies next to a thing, and is supplementary and necessary to the principal thing; that which arises or is produced from the principal thing; Calvinus, Lex.

A manner of acquiring the property in a thing which becomes united with that which a person already possesses.

The doctrine of property arising from accessions is grounded on the rights of occupancy. It is said to be of six kinds in the Roman law.

First. That which assigns to the owner of a thing its products, as the fruit of trees, the young

of animals.

Second. That which makes a man the owner of a thing which is made of another's property, upon payment of the value of the material taken. See La. Civ. Code, art. 491. As where wine, bread, or oil is made of another man's grapes or olives; 2 Bla. Com. 404; 10 Johns. 288.

Third. That which gives the owner of land new land formed by gradual deposit. See ALLUVION. Fourth. That which gives the owner of a thing the property in what is added to it by way of adorning or completing it; as if a tailor should use the cloth of B. in repairing A.'s coat, all would belong to A.; but B. would have an action against both A. and the tailor for the cloth so used. This doctrine holds in the common law; F. Moore, 20; Poph. 38; Brooke, Abr. Propertiæ, 23.

Fifth. That which gives islands formed in a stream to the owner of the adjacent lands on

either side.

right to that which is united to it by accession, either naturally or artificially; 2 Kent, 360; 2 Bla. Com. 404.

If a man hath raised a building upon his own ground with the material of another, or, on the contrary, if a man shall have built with his own materials upon the ground of another, in either case the edifice becomes the property of him to whom the ground belongs; for every building is an accession to the ground upon which it stands; and the owner of the ground, if liable at all, is only liable to the owner of the materials for the value of them; Inst. 2. 1. 29, 30; 2 Kent, 362. And the same rule holds where trees, vines, vegetables, or fruits are planted or sown in the ground of another; Inst. 2. 1. 31, 32.

If the materials of one person are united by labor to the materials of another, so as to form a single article, the property in the joint product is, in the absence of any agreement, in the owner of the principal part of the materials by accession; 7 Johns. 473; 5 Pick. 177; 6 id. 209; 32 Me. 404; 16 Conn. 322; Inst. 2. 1. 26. But a vessel built of materials belonging to different persons, it has been said, will belong to the owner of the keel, according to the rule, proprietas totius navis carina causam sequitur; 2 Kent, 361; 6 Pick. 209; 7 Johns. 473; 11 Wend. 139. be the doctrine of the civil law, that the rule is the same though the adjunction of materials may have been dishonestly contrived; for, in determining the right of property in such a case, regard is had only to the things joined, and not to the persons, as where the materials are changed in species; Wood, Inst. 93; Inst. 2. 1. 25. And see ADJUNCTION.

It is said to

Where, by agreement, an article is manufactured for another, the property in the article, while making and when finished, vests in him who furnished the whole or the principal part of the materials; and the maker, if he did not furnish the same, has simply a lien upon the article for his pay; 2 Denio, 268; 10 Johns. 268; 15 Mass. 242; 4 Ired. 102.

The increase of an animal, as a general thing, belongs to its owner; but, if it be let to another, the person who thus becomes the temporary proprietor will be entitled to its increase; 8 Johns. 435; Inst. 2. 1. 38; though it has been held that this would not be the consequence of simply putting a mare to pasture, in consideration of her services; 2 Penn. St. 166. The Civil Code of Louisiana, following the Roman law, makes a distinction in respect of the issue of slaves, which, though born during the temporary use or hiring of their mothers, belong not to the hirer, but to the permanent owner; La. Code, art. 539; Inst. 2. 1. 37; and see 31 Miss. 557; 4 Sneed, 99; 2 Kent, 361. But the issue of slaves born during a tenancy for life belong to the tenant for life; 7 Harr. & J. 257.

If there be a sale, mortgage, or pledge of a chattel, carried into effect by delivery or by a recording of the mortgage where that is equivalent to a delivery, and other materials are

ACCESSORY

added, afterwards, by the labor of the vendor or mortgagor, these pass with the principal by accession; 12 Pick. 83; 1 R. I. 511.

If, by the labor of one man, the property of another has been converted into a thing of different species, so that its identity is destroyed, the original owner can only recover the value of the property in its unconverted state, and the article itself will belong to the person who wrought the conversion, if he wrought it believing the material to be his own. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine; Inst. 2. 1. 25; 4 Denio, 332; Year B. 5 H. VII. 15; Brooke, Abr. | Property, 23.

But, if there be a mere change of form or value, which does not destroy the identity of the materials, the original owner may still reclaim them or recover their value as thus improved; Brooke, Abr. Property, 23; F. Moore, 20; 2 N. Y. 379. So, if the change have been wrought by a wilful trespasser, or by one who knew that the materials were not his own; in such case, however radical the change may have been, the owner may reclaim them, or recover their value in their new shape: thus, where whiskey was made out of another's corn, 2 N. Y. 379; shingles out of another's trees, 9 Johns. 362; coals out of another's wood, 6 Johns. 168; 12 Ala. N. s. 590; leather out of another's hides, 21 Barb. 92; in all these cases, the change having been made by one who knew the materials were another's, the original owner was held to be entitled to recover the property, or its value in the improved or converted state. And see 6 Hill, 425; 2 Rawle, 427; 5 Johns. 349; 21 Me. 287; 30 id. 370; 11 Metc. 493; Story, Bailm. § 40; 1 Brown, Civil and Adm. Law,

240, 241.

In International Law. The absolute or conditional acceptance, by one or several States, of a treaty already concluded between other sovereignties. Merlin, Répert., Acces

sion.

ACCESSORY. Any thing which is joined to another thing as an ornament, or to render it more perfect.

For example, the halter of a horse, the frame of a picture, the keys of a house, and the like, each belong to the principal thing. The sale of the materials of a newspaper establishment will carry with it, as an accessory, the subscription list, 2 Watts, 111; 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.

Accessorium non ducit, sed sequitur principale.

Coke, Litt. 152, a.

ACCESSORY CONTRACT

by others; such as suretyship, mortgages, and pledges.

It is a general rule, that payment or release 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; Pothier, Ob. 1, c. 1, s. 1, art. 2, n. 14; id. n. 182, 186; see 8 Mass. 551; 15 id. 233; 17 id. 419; 4 Pick. 11; 8 id. 422; 5 Metc. Mass. 310; 7 Barb. 22; 2 Barb. Ch. 119; 1 Hill. & D. 65; 6 Penn. St. 228; 24 N. H. 484; 3 Ired. 337; and that an assignment of the principal contract will carry the accessory contract with it; 7 Penn. St. 280; 17 S. & R. 400; 5 Cow. 202; 5 Cal. 515; 4 Iowa, 434; 24 N. H. 484.

If the accessory contract be a contract by which one is to answer for the debt, default, or miscarriage of another, it must, under the statute of frauds, be in writing, and disclose the consideration, either explicitly, or by the use of terms from which it may be implied; 5 Mees. & W. 128; 7 id. 410; 5 B. & Ad. 1109; 1 Bingh. N. c. 761; 6 Bingh. 201; 9 East, 348; 8 Cush. 156; 15 Penn. St. 27; 20 Barb. 298; 13 N. Y. 232; 4 Jones, No. C. 287. Such a contract is not assignable so as to enable the assignee to sue thereon in his own name; 21 Pick. 140; 5 Wend. 307.

An accessory contract of this kind is discharged not only by the fulfilment or release of the principal contract, but also by any material change in the terms of such contract by the parties thereto; for the surety is bound only by the precise terms of the agreement he has guaranteed; 2 Nev. & P. 126; 9 Wheat. 680; 1 Eng. L. & Eq. 1; 3 Wash. C. C. 70; 12 N. H. 320; 13 id. 240. Thus, the surety will be discharged if the right of the creditor to enforce the debt be suspended for any definite period, however short; and a suspension for a day will have the same effect as if it were for a month or a year; 2 Ves. Sen. 540; 2 White & T. Lead. Cas. 707; 5 Ired. Eq. 91; 7 Hill, 250; 3 Denio, 512; 2 Wheat. 253; 28 Vt. 209. But the surety may assent to the change, and waive his right to be discharged because of it; 13 N. H. 240; 2 McLean, 99; 5 Ohio, 510; 8 Me. 121.

been guilty of any misrepresentation, or even If the parties to the principal contract have concealment, of any material fact, which, had it been disclosed, would have deterred the surety from entering into the accessory contract, the security so given is voidable at law on the ground of fraud; 5 Bingh. N. C. 156; B. & C. 605; 1 B. & P. 419; 9 Ala. N. s. 42; 2 Rich. 590; 10 Clark & F. Hou. L. 936.

So the surety will be discharged should any condition, express or implied, that has been imposed upon the creditor by the accessory contract, be omitted by him; 8 Taunt. 208; 14 Barb. 123; 6 Cal. 24; 27 Penn. St. 317; 6 Hill, 540; 9 Wheat. 680; 17 Wend. 179, 422.

An accessory contract to guarantee an original contract, which is void, has no binding effect; 7 Humphr. 261; and see 27 Ala. N.

S. 291.

ACCESSORY OBLIGATIONS

ACCESSORY OBLIGATIONS. In Scotch Law. Obligations to antecedent or primary obligations, such as obligations to pay interest, etc.; Erskine, Inst. lib. 3, tit. 3, § 60. ACCIDENT (Lat. accidere,—ad, to, and cadere, to fall). An event which, under the circumstances, is unusual and unexpected by the person to whom it happens.

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 made for the ordinary purposes of cooking or warming the house is an accident of the first kind; the burning of the same house by light

ning would be an accident of the second kind; 1 Fonbl. Eq. 374, 375, n.

In Equity Practice. Such an unforeseen event, misfortune, loss, act, or omission as is not the result of any negligence or misconduct in the party; Francis, Max. 87; Story, Eq. Jur. § 78.

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; Jeremy, Eq. 358. This definition is objected to, because, as accidents may arise in relation to other things besides contracts, it is inaccurate in confining accidents to contracts; besides, it does not exclude cases of unanticipated occurrence resulting from the negligence or misconduct of the party seeking relief. See also 1 Spence, Eq. Jur. 628. In many instances it closely resembles MISTAKE, which see.

In general, courts of equity will relieve a party who cannot obtain justice at law in consequence of an aecident which will justify the interposition of a court of equity.

The jurisdiction which equity exerts in case of accident is mainly of two sorts: over bonds with penalties to prevent a forfeiture where the failure is the result of accident; 2 Freem. Ch. 128; 1 Spence, Eq. Jur. 629; 25 Ala. N. s. 452; 9 Ark. 533; 4 Paige, Ch. 148; 4 Munf. 68; as sickness; 1 Root, 298, 310; or where the bond has been lost; 5 Ired. Eq. 331. And, second, where a negotiable or other instrument has been lost, in which case no action lay at law, but where equity will allow the one entitled to recover upon giving proper indemnity; 4 Term, 170; 1 Ves. Ch. 338; 5 id. 288; 16 id. 430; 4 Price, 176.

The ground of equitable interference where a party has been defeated in a suit at law to which he might have made a good defence had he discovered the facts in season, may be referred also to this head; 2 Rich. Eq. 63; 3 Ga. 226; 7 Humphr. 130; 18 Miss. 502; 6 How. 114. See 4 Ired. Eq. 178; but in such case there must have been no negligence on the part of the defendant; 18 Miss. 103; 7 Humphr. 130; 1 Morr. 150; 7 B. Monr. 120. Under this head equity will grant relief in cases of the defective exercise of a power in

favor of a purchaser, creditor, wife, child, or charity, but not otherwise; Bisph. Eq. § 182. So also in other cases, viz., where a testator cancels a will, supposing that a later will is duly executed, which it is not; where boundaries have been accidentally confused; where there has been an accidental omission to endorse a promissory note, etc. Id. § 183. See INEVITABLE ACCIDENT; MISTAKE; ACT OF GOD.

It is exercised by equity where there is not a plain, adequate, and complete remedy at law; 44 Me. 206; but not where such a remedy exists; 9 Gratt. 379; 5 Sandf. 612; and a complete excuse must be made; 14 Ala. N. s. 342.

place when an individual intrusts personal property with the master of a vessel, to be sold for their joint account.

ACCOMENDA. A contract which takes

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 duces no more than first cost, the owner takes all his capital, the other his labor. If the sale prothe proceeds: it is only the profits which are to be divided; Emerigon, Mar. Loans, s. 5.

ACCOMMODATION PAPER. Pro

missory notes or bills of exchange made, accepted, or endorsed without any consideration therefor.

whom it is made or for whose benefit the acSuch paper, in the hands of the party to commodation is given, is open to the defence of want of consideration, but when taken by third parties in the usual course of business, is governed by the same rules as other paper; 2 Kent, 86; 1 Bingh. N. c. 267; 1 M. & W. 212; 12 id. 705; 33 Eng. L. & Eq. 282; 2 Duer, 33; 26 Vt. 19; 5 Md. 389.

Consult Chitty; Parsons; Story, Bills of Exchange; Byles; Daniel.

ACCOMPLICE (Lat. ad and complicare -con, with, together, plicare, to fold to wrap, -to fold together).

In Criminal Law. One who is concerned in the commission of a crime.

The term in its fulness includes in its meaning all persons who have been concerned in the commission of a crime, all particepes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely

as accessaries before or after the fact; Fost. Cr. Cas. 341; 1 Russ. Cr. 21; 4 Bla. Com. 331; 1 Phillips, Ev. 28; Merlin, Répert., Complice.

It has been questioned, whether one who was an accomplice to a suicide can be punished as dier, at the request of his comrade, had cut the such. A case occurred in Prussia where a sollatter 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 bistoury on his naked breast, and used the hand of the young bosom; hearing some noise, he ordered her away, woman to plunge it with greater force into his The man, receiving effectual aid, was soon cured of the wound which had been inflicted, and she