Imágenes de páginas
PDF
EPUB

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,

[blocks in formation]

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.

See ACCESSION; ADJUNCTION; APPURUsed also in the same sense as

TENANCES.

ACCESSARY, which see.

ACCESSORY ACTIONS. In Scotch Law. Those which are in some degree subservient to others. Bell, Dict.

ACCESSORY CONTRACT. One made for assuring the purpose of the performance of a prior contract, either by the same parties or

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. Čas. 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 B. & C. 605; 1 B. & P. 419; 9 Ala. N. s. on the ground of fraud; 5 Bingh. N. c. 156; 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 lightning 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.

[blocks in formation]

favor of a purchaser, creditor, wife, child, or charity, but not otherwise; Bisph. Eq. S 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.

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

the contract called mandatum, by which the owner In such case, two contracts take place: first, 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.

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. ACCOMPLICE (Lat. ad and complicare Ch. 128; 1 Spence, Eq. Jur. 629; 25 Ala. N. -con, with, together, plicare, to fold to wrap, s. 452; 9 Ark. 533; 4 Paige, Ch. 148; 4-to fold together). Munf. 68; as sickness; 1 Root, 298, 310; or In Criminal Law. One who is concerned where the bond has been lost; 5 Ired. Eq. in the commission of a crime. 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

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 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 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

such. A case occurred in Prussia where a sol

was tried and convicted of having inflicted the wound, and punished by ten years' imprisonment. Lepage, Science du Droit, ch. 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 Amalekite (2 Sam. i. 2-16), will doubtless

occur to the reader.

In Massachusetts, it has been held, that, if one counsels another to commit suicide, he is principal in the murder; for it is a presumption of law, that advice has the influence and effect intended by the adviser, unless it is shown to have been otherwise, as, for example, that it was received with scoff or manifestly rejected and ridiculed at the time; 13 Mass. 359. See 7 Bost. Law Rep.

215.

Heisk. 1; 1 Metc. Mass. 276; 27 Me. 362, 370; 39 id. 203; 2 Strobh. 203; 15 B. Monr. 566; otherwise, however, if the amount of the claim is disputed; Cro. Eliz. 429; 3 Mees, & W. Exch. 651; 5 B. & Ald. 117; 1 Ad. & E. 106; 21 Vt. 223; 23 id. 561; 4 Gill, 406; 4 Denio, 166; 2 Duer, 302; 65 Barb. 161; 43 Conn. 455; 56 Ga. 494; 52 Miss. 494; 12 Metc. n. 551; or contingent, 14 B. Monr. 451; or there are mutual demands, 6 El. & B. 691; and if the negotiable note of the debtor, 15 Mees. & W. 23, or of a third person, 2 Metc. Mass. 283; 20 Johns. 76; 1 Wend. 164; 14 id. 116; 13 Ala. 353; It is now finally settled, that it is not a 11 East, 390; 4 Barnew. & C. 506; 51 rule of law, but of practice only, that a jury Ala. 349, for part, be given and received, it should not convict on the unsupported testi- is sufficient; or if a part be given at a difmony of an accomplice. Therefore, if a jury ferent place, 3 Hawks. 580; 29 Miss. 139, or choose to act on such evidence only, the conan earlier time, it will be sufficient, 18 Pick. viction cannot be quashed as bad in law. The 414; and, in general, payment of part sufbetter practice is for the judge to advise the fices if any additional benefit be received; 30 jury to acquit, unless the testimony of the acVt. 424; 26 Conn. 392; 27 Barb. 485; 4 complice is corroborated, not only as to the cir- Jones, 518; 4 Iowa, 219. Acceptance by cumstances of the offence, but also as to the several creditors, by way of composition of participation of the accused in the transaction; sums respectively less than their demands, and when several parties are charged, that it held to bar actions for the residue; 37 Iowa, is not sufficient that the accomplice should be And the receipt of specific property, confirmed, as to one or more of the prisoners, or the performance of services, if agreed to, to justify a conviction of those prisoners with is sufficient, whatever its value; 19 Pick. 273; respect to whom there is no confirmation; 75 Day, 360; 51 Ala. 349; provided the value Cox, Cr. Cas. 20; Dearsl. Cr. Cas. 555; 20 Pick. 397; 10 Cush. 535. See 1 Fost. & F. 388; Greenl. Ev. § 111; 127 Mass. 424; 34 Amer. Rep. 391, 408.

ACCORD. In Contracts. An agreement between two parties to give and accept something in satisfaction of a right of action which one has against the other, which when performed is a bar to all actions upon this account; generally used in the phrase "accord and satisfaction;" 2 Greenl. Ev. 28; 3 Bla. Com. 15; Bacon, Abr. Accord; 5 Md. 170. It may be pleaded to all actions except real actions; Bacon, Abr. Accord (B).

It must 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. 541.

It must be advantageous to the creditor, and he must receive an actual benefit therefrom which he would not otherwise have had; 2 Watts, 325; 2 Ala. 476; 3 J. J. Marsh. 497. 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; Bacon, Abr. Accord, A; Perkins, § 749; Dy. 75; 5 East, 230; 11 id. 390; 1 Stra. 426; 3 Hawks. 580; 2 Litt. Ky. 49; 5 Day, 360; 1 Root, 426; 1 Wend. 164; 3 id. 66; 14 id. 116. The payment of a part of the whole debt due is not a good satisfaction, even if accepted; 2 Greenl. Ev. § 28; 2 Parsons, Contr. 199; 4 Mod. 88; 3 Bingh. N. c. 454; 10 Mees. & W. Exch. 367; 12 Price, Exch. 183; 1 Zabr. 391; 5 Gill, 189; 20 Conn. 559; 70 N. C. 573; 6

410.

be not agreed upon; 65 Barb. 161; but both delivery and acceptance must be proved; 1 Wash. C. C. 328; 3 Blackf. 354; 1 Dev. & B. 565; 8 Penn. St. 106; 16 id. 450; 4 Eng. L. & Eq. 185.

It must be certain. An agreement that the defendant shall relinquish the possession of a house in satisfaction, etc., is not valid, unless it is so agreed at what time it shall be relinquished; Yelv. 125. See 4 Mod. 88; 2 Johns. 342; 3 Lev. 189; 2 Iowa, 553; 1 Hempst. 315; 102 Mass. 140.

It must be complete. That is, every thing must be done which the party undertakes to do; Comyns, Dig. Accord, B, 4; T. Raym. 203; Kebl. 690; Cro. Eliz. 46; 9 Coke, 79, b; 14 Eng. L. & Eq. 296; 2 Iowa, 553; 5 N. H. 136; 24 id. 289; 3 Johns. Cas. 243; 5 Johns. 386; 16 id. 86; 1 Gray, 245; 8 Ohio, 393; 7 Blackf. 582; 14 B. Monr. 459; 2 Ark. 45; 44 Me. 121; 15 Tex. 198; 29 Penn. St. 179; 8 Md. 188; 50 Tex. 113; 64 Me. 563; but this performance may be merely the substitution of a new undertaking for the old by way of novation if the parties so intended; 2 Parsons, Contr. 194 n.; 24 Conn. 613; 23 Barb. 546; 7 Md. 259; 16 Q. B. 1039; it is a question for the jury whether the agreement or the performance was accepted in satisfaction; 16 Q. B. 1039; and in some cases it is sufficient if performance be tendered and refused; 2 Greenl. Ev. § 31; 2 B. & Ad. 328; 3 id. 701. Whether an accord with an unaccepted tender of performance is a defence, seems unsettled; but where there is a sufficient consideration to support the agreement, it seems that a tender, though unaccepted, would bar an action; Story, Contr.

ACCOUCHEMENT

§ 1357; 3 Johns. Cas. 243. But see 3 Bingh. N. C. 715; 16 Barb. 598; 5 R. I. 219.

It must be by the debtor or his agent; 3 Wend. 66; 2 Ala. 84; and if made by a stranger, will not avail the debtor in an action at law; Stra. 592; 3 T. B. Monr. 302; 6 Johns. 37. See 6 Ohio St. 71. His remedy in such a case is in equity; Cro. Eliz. 541; 3 Taunt. 117; 5 East, 294.

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. But the intention of the parties is of the utmost consequence; 30 Vt. 424; as the debtor will be required only to execute the new contract to that point whence it was to operate a satisfaction of the pre-existing liability. See, generally, 2 Greenl. Ev. § 28 et seq.; 2 Parsons, Contr. 193 et seq.; 2 Story, Contr. § 1354 et seq.; Comyns, Dig. Accord; 1 Bouvier, Inst. n. 805; 3 id. n. 2478-2481; notes to Cumber v. Wane, 1 Sm. Lead. Cas.

In America accord and satisfaction may be given in evidence under the general issue, in assumpsit, but it must be pleaded specially in debt, covenant, and trespass; Greenl. Ev. § 29. In England it must be pleaded specially in all cases; Rosc. N. P. 569. PAYMENT. 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

[merged small][ocr errors][ocr errors][merged small]

they cannot be adjusted in a court of law; 1 Sch. & L. 305; 2 id. 400; 2 Hou. L. Cas. 28; 2 Leigh, 6; 1 Metc. Mass. 216; 15 Ala. N. S. 34; 17 Ga. 558; the existence of a fiduciary relation between the parties; 1 Sim. Ch. N. s. 573; 4 Gray, 227; 1 Story, Eq. Jur. 8th ed. § 459, a.

In addition to these peculiar grounds of jurisdiction, equity will grant a discovery in cases of account on the general principles regulating discoveries; 8 Ala. N. s. 743; 4 Sandf. 112; 35 N. H. 339, and will afterwards proceed to grant full relief in many cases; Madd. 86; 6 Ves. 136; 9 id. 437; 10 Johns. 587; 17 id. 384; 5 Pet. 495.

Equitable jurisdiction over accounts applies to the appropriation of payments; 1 Story, Eq. Jur. 8th ed. §§ 459-461; agency; 2 McCord, Ch. 469; including factors, bailiffs, consignees, receivers, and stewards, where there are mutual or complicated accounts; 1 Jac. & W. 135; 13 Ves. 53; 9 Beav. 284; 17 Ala. N. s. 667; trustees' accounts; 1 Story, Eq. Jur. § 465; 2 Mylne & K. 664; 9 Beav. 284; 1 Stockt. 218; 4 Gray, 227; administrators and executors; 22 Vt. 50; 14 Mo. 116; 3 Jones, Eq. 316; 32 Ala. N. 8. 314; see 23 Miss. 361; guardians, etc.; 31 Penn. St. 318; 9 Rich. Eq. 311; 33 Miss. 553; tenants in common, joint tenants of real estate or chattels ; Ves. 752; 1 Ves. & B. 114; partners; 1 Hen. & M. 9; 3 Gratt. 364; 3 Cush. 331; 23 Vt. 576; 4 Sneed, 238; 1 Johns. Ch. 305; directors of companies, and similar of ficers; 1 Younge & C. 326; apportionment of apprentice fees; 2 Brown, Ch. 78; 1 Atk. 2 P. Will. 176, 501; see 1 Story, Eq. Jur. 149; 13 Jur. 596; or rents; 2 Ves. & B. 331; $480; contribution to relieve real estate; 3 Coke, 12; 3 Bligh, 590; 2 Bos. & P. 270; 1 Johns. Ch. 409, 425; 7 Mass. 355; 1 Story,

testimony of one who was present, as a phy-Eq. Jur. § 487; general average; 2 Abbott, sician, a midwife, or other person; 1 Bouvier, Inst. n. 314.

ACCOUNT. A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation; 1 Metc. Mass. 216; 1 Hempst. 114; 32 Penn. 202. A statement of the receipts and payments of an executor, administrator, or other trustee, of the estate confided to him.

An open account is one in which some term of the contract is not settled by the parties, whether the account consists of one item or many; 1 Ala. N. s. 62; 6 id. 438.

A form of action, called also account render, in which such a statement, and the recovery of the balance which thereby appears to be due, is sought by the party bringing it. In Practice. In Equity. Jurisdiction concurrent with courts of law is taken over matters of account; 9 Johns. 470; 2 A. K. Marsh. 338; 1 J. J. Marsh. 82; 2 Caines, Cas. 1; 1 Paige, Ch. 41; 1 Yerg. 360; 1 Ga. 376, on three grounds: mutual accounts, 18 Beav. 575; dealings so complicated that

Shipp. pl. 3, c. 8, § 17; 18 Ves. 190; 4 Kay & J. 367; 2 Curt. C. C. 59; between sureties; 1 Story, Eq. Jur. §§ 492-504; liens; Sugden, Vend. 7th ed. 541; 8 Paige, Ch. 182, 277; rents and profits between landlord and tenant; 1 Sch. & L. 305; 7 East, 353; 4 Johns. Ch. 287; in case of torts; Bacon, Abr. Accompt, B; a levy; 2 Atk. 362; 1 Ves. Sen. 250; 1 Eq. Cas. Abr. 285; and in other cases; 3 Gratt. 330; waste; 1 P. Will. 407; 6 Ves. 88; 1 Brown, Ch. 194; 6 Jur. N. s. 809; 4 Johns. Ch. 169; tithes and moduses; Comyns, Dig. Chauncery (3 C.), Distress (M. 13).

Equity follows the analogy of the law, in refusing to interfere with stated accounts; 2 Sch. & L. 629; 3 Brown, Ch. 639, n. ; 19 Ves. 180; 13 Johns. Ch. 578; 6 id. 360; 3 McLean C. C. 83; 4 Mas. C. C. 143; 3 Pet. 44; 6 id. 61; 9 id. 405. See AcCOUNT STATED.

At Law. The action lay against bailiffs, receivers, and guardians, in socage only, at the common law, and, by a subsequent extension of the law, between merchants; 11 Coke, 89; 12 Mass. 149.

Privity of contract was required, and it did

not lie by or against executors and administrators; 1 Wms. Saund. 216, n.; Willes, 208, until statutes were passed for that purpose, the last being that of 3 & 4 Anne, c. 16; 1 Story, Eq. Jur. & 445.

transactions of his trade or business. Such books, when regularly kept, may be admitted in evidence; Greenl. Ev. §§ 115-118. ACCOUNT CURRENT. An open or

ACCOUNT IN BANK. See BANK AC

COUNT.

In several states of the United States, the running account between two parties. action has received a liberal extension; 4 Watts & S. 550; 13 Vt. 517; 28 id. 338; 7 Penn. St. 175; 25 Conn. 137; 5 R. I. 402. Thus, it is said to be the proper remedy for one partner against another; 1 Dall. 340; 3 Binn. 317; 10 S. & R. 220; 15 id. 153; 2 Conn. 425; 4 Vt. 137; 3 Barb. 419; 1 Cal. 448; for money used by one partner after the dissolution of the firm; 18 Pick. 299; though equity seems to be properly resorted to where a separate tribunal exists; 1 Hen. & M. 9; 1 Johns. Ch. 305. And see 1 Metc. Mass. 216; 1 Iowa, 240. In other states, reference may be made to an auditor by order of the court, in the common forms of actions founded on contract or tort, where there are complicated accounts or counter-demands; 12 Mass. 525; 6 Pick. 193; 8 Conn. 499; 13 N. H. 275; 1 Tex. 646. See AUDITOR. In the action of account, an interlocutory judgment of quod computet is first obtained; 2 Greenl. Ev. §§ 36, 39; 11 Ired. 391; 12 Ill. 111, on which no damages are awarded except ratione interplacitationis. Cro. Eliz. 83; 5 Binn. 564.

ACCOUNT STATED. An agreed balance of accounts. An account which has been examined and accepted by the parties. 2 Atk. 251.

In Equity. Acceptance may be inferred from circumstances, as where an account is rendered to a merchant, and no objection is made, after sufficient time; 2 Vern. 276; 1 Sim. & S. 333; 3 Johns. Ch. 569; 7 Cranch, 147; 1 M'Cord, Ch. 156; 2 Md. Ch. Dec. 433; 10 Barb. 213.

The account is then referred to an auditor, who now generally has authority to examine parties, 4 Fost. 198 (though such was not the case formerly), before whom issue of law and fact may be taken in regard to each item, which he must report to the court; 2 Ves. 388; Yelv. 202; 5 Binn. 433; 5 Vt. 543; 26 N. H. 139.

A final judgment quod recuperet is entered for the amount found by him to be due; and the auditor's account will not be set aside except upon a very manifest case of error; 5 Penn. St. 413; 1 La. Ann. 380. See AU

DITORS.

If the defendant is found in surplusage, that is, is creditor of the plaintiff on balancing the accounts, he cannot in this action recover judgment for the balance so due. 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 Kebl. 362; 1 Rolle, Abr. 599, pl. 11; Brooke, Abr. Accord, 62; 1 Rolle, 87.

As the defendant could wage his law, 2 Wms. Saund. 65 a; Cro. Eliz. 479; and as the discovery, which is the main object sought, 5 Taunt. 431, can be more readily obtained and questions in dispute more readily settled in equity, resort is generally had to that jurisdiction in those states where a separate tribunal exists, or under statutes to the courts of law; 18 Vt. 345; 13 N. H. 275; 8 Conn. 499; 1 Metc. Mass. 216.

ACCOUNT BOOK. A book kept by a merchant, trader, mechanic, or other person, in which are entered from time to time the

Such an account is deemed conclusive between the parties; 2 Brown, Ch. 62, 310; 2 Ves. 566, 837; 1 Swanst. 460; 6 Madd. 146; 20 Ala. N. s. 747; 3 Johns. Ch. 587; 1 Gill, 350; 3 Jones, Eq. 109; to the extent agreed upon; 1 Hopk. Ch. 239; unless some fraud, mistake, or plain error is shown; 1 Parsons, Contr. 174; 1 Johns. Ch. 550; 1 M'Cord, Ch. 156; and in such case, generally, the account will not be opened, but liberty to surcharge or falsify will be given; 2 Atk. 119; 9 Ves. 265; 1 Sch. & L. 192; 7 Gill, 119; 1 Md. Ch. Dec. 306.

At Law. An account stated is conclusive

as to the liability of the parties, with reference to the transactions included in it; 3 Jones; except in cases of fraud or manifest error; 1 Esp. 159; 24 Conn. 591; 4 Wis. 219; 5 Fla. 478. See 4 Sandf. 311.

Acceptance by the party to be charged must be shown by the one who relies upon the account; 10 Humphr. 238; 12 Ill. 111. The acknowledgment that the sum is due is sufficient; 2 Mod. 44; 2 Term, 480, though there be but a single item in the account; 13 East, 249; 5 Maule & S. 65; 1 Show. 215.

Acceptance may also be inferred from retaining the account a sufficient time without making objection; 7 Cranch, 147; 3 Watts & S. 109; 10 Barb. 213; 4 Sandf. 311; see 22 Penn. St. 454; and from other circumstances; 1 Gill, 234.

A definite ascertained sum must be stated to be due; 9 S. & R. 241.

It must be made by a competent person, excluding infants and those who are of unsound mind; 1 Term, 40.

Husband and wife may join and state an account with a third person; 2 Term, 483; 16 Eng. L. & Eq. 290.

An agent may bind his principal; 3 Johns. Ch. 569. Partners may state accounts; and an action lies for the party entitled to the balance; 4 Dall. 434; 1 Wash. C. C. 435; 16 Vt. 169.

The acceptance of the account is an acknowledgment of a debt due for the balance, and will support assumpsit. It is not, therefore, necessary to prove the items, but only to

« AnteriorContinuar »