ACCORD AND SATISFACTION-contd. Lee v. Lancashire and Yorkshire Ry. Co., L. R. 6 Ch. App. 527.

ACCOUNT (ACTION OF). An action which lies against a party to compel him to render an account to another with whom he has had transactions; and the writ by which this action was commenced was thence termed a writ of account (F. N. B. 116 to 119; Co. Litt. 172 a). From the greater facilities, however, which are afforded by the Courts of Equity in taking an account of profits or receipts, the action of account at law is now seldom resorted to, one of the most recent cases in which it was used being Beer v. Beer (12 C. B. 2). The action may still, however, be brought in a proper case; for by the common law, it lies against a bailiff or receiver; also, against one merchant at the suit of another for not rendering a reasonable account of profits; and by the stat. 4 Anne, c. 16, s. 27, it is made to lie by one joint tenant or tenant in common against the other as bailiff (although not expressly so appointed) for receiving more than comes to his just share or proportion. This action as between merchants and merchants was an exception to the Statute of Limitations (21 Jac. 1, c. 16, s. 3), but since the M. L. A. Act, 1856 (19 & 20 Vict. c. 97), s. 9, it is no longer so, the limit for bringing the action being now six years in all cases.

The equitable jurisdiction in account applies in the following cases :-(1.) Where a principal asks for an account against his agent, there existing in this case a fiduciary relation between the parties (Mackenzie v. Johnston, 4 Mad. 373), but not in the converse case of agent against principal (Padwick v.Stanley, 9 Hare,627) (2.) Where there are mutual accounts between plaintiff and defendant; i. e., when each of two parties has both received and paid on the other's account (Phillips v. Phillips, 9 Hare, 471). And (3.) where the accounts are of a very complicated character, and therefore not admitting of being examined on a trial at Nisi Prius. O'Connor v. Spaight, 1 Sch. & Lef. 305.

ACCOUNTANT TO THE CROWN. This denotes generally one who receives money for the Crown, and is accountable therefor. The Crown has a lien upon the lands (other than the copyhold lands) of the accountant for any moneys he may misapply or become chargeable with, and such lien attaches as from the time he becomes such accountant, and continues to attach, even as against purchasers of the lands without notice (Coxhead's Case, F. Moore, 126). Since June 4th, 1839, every such lien of the Crown must be registered under 2 & 3 Vict. c. 11, and under the Act 22 &

ACCOUNTANT TO THE CROWN-contd. 23 Vict. c. 35, must be re-registered every five years; but since 1st November, 1865, no future lien is to affect a purchaser, although with notice, until a writ of execution has been registered, under 28 & 29 Vict. c. 104.

See title CROWN DEBTS.

ACCOUNTANT-GENERAL. This was an officer of the Court of Chancery, appointed by the statute, 12 Geo. 1, c. 32, but who has since been superseded by an officer called the Paymaster General of England, under the Chancery Funds Act, 1872 (35 & 36 Vict. c. 44), and the Chancery Fund Rules, 1872, which came into operation on the 7th January, 1873.

See title PAYMASTER-GENERAL. ACCOUNTS CURRENT. These are running accounts, or open accounts.

ACCOUNT STATED. This is nothing more than the admission of a balance due from one party to another; and that balance being due there is a debt; and the statement of the account implies a promise in law to pay the debt shewn by the balance. For an account stated, it is requisite that a sum certain should be due in certainty (Hughes v. Thorpe, 5 M. & W. 656); but the sum need not be payable in præsenti (Wheatley v. Williams, 1 M. & W. 533). The account must have been stated to the creditor himself or his agent, and is not sufficient if made to a stranger (Tucker v. Barrow, 7 B. & C. 623). The statement may be in writing or by word of mouth (Singleton v. Barrett, 2 C. & J. 368); an

I. O. U. is evidence of an account stated (Jacobs v. Fisher, 1 C. B. 178). But to revive debts barred by statute, the account stated must be in writing, 9 Geo. 4, c. 14, s. 1.

An account stated is not conclusive, but an error therein may be shewn (Thomas v. Hawkes, 8 M. & W. 140); also, that an item therein is not a valid debt for want of consideration (French v. French, 2 M. & G. 644). It is, however, no objection to a debt that it arose upon a contract which was bad for want of writing within the Statute of Frauds (Cocking v. Ward, 1 C. B. 858), unless the contract has continued executory. Lord Falmouth v. Thomas, 1

ACCRUER, CLAUSE OF. This is an express clause frequently occurring in the case of gifts by deed or will to persons as tenants in common, providing that upon the death of one or more of the beneficiaries his or their shares shall go to the survivors or survivor. It is a rule of law, that there is "no survivorship upon survivorship;' i.e. that the clause of accruer extends only to the original, not also to the accrued, shares, unless in terms it is expressly made to extend to the latter also, which it customarily is made to do. Pain v. Benson, 3 Atk. 80.

ACCUMULATIONS. The rule which limits the accumulation of the income of property used to be the rule of perpetuities, viz., a life or lives in being, twentyone years, and (where gestation actually existed) the period of gestation (Cadell v. Palmer, 1 Cl. & F. 372); but, in consequence of the supposed abuse of that rule in Thellusson v. Woodford, 4 Ves. 112, and by virtue of the so-called Thellusson Act (39 & 40 Geo. 3, c. 98), the period within which such accumulation may at the present day be lawfully directed is one or other severally, and not two or more together, of the following periods, namely:

(1.) The life of the grantor; (2.) The term of twenty-one years from the death of such grantor, or (but in the case of a will only) from the death of the testator; (3.) The minority or minorities of any life or lives in being, or in ventre, at the death of such grantor or of such testator (as the case may be);

(4.) The minority or minorities of any

person or persons who, under the deed or will (as the case may be), is entitled to the income, or rather would if of full age, and but for the direction to accumulate, be entitled thereto.

The Thellusson Act applies both to real and to personal property; also, whether the direction to accumulate is given expressly in so many words, or arises by implication only (Macdonald v. Bryce, 2 Keen, 276), taking place by operation of law, and without regard to the question whether the accumulation, when it arises from an implied direction, takes place accidentally or necessarily (Evans v. Hellier, 5 Cl. & F. 114), and also without regard to the question whether the interests of takers are vested or not. Shaw v. Rhodes, 1 My. & Cr. 135.

The direction to accumulate is, in the general case, void as to the excess only (Marshall v. Holloway, 2 Sw. 450); but where the direction exceeds not only the limit prescribed by the Thellusson Act, but also the rule of perpetuities, it is void

ACCUMULATIONS-continued.

in toto, and not merely as to the excess. Boughton v. James, 1 Coil. 26.

The Thellusson Act directs that the income directed to be accumulated shall, so far as the direction is void for excess, belong to the person or persons who" would have been entitled thereto if such accumulation had not been directed;" and the statute, in this part of it, has been construed as follows:

I. As to realty,

(1.) If there is no residuary devise the heir takes (Eyre v. Marsden, 2 Keen, 564); and in case of his death during the period of excess, the future income will go;

(a.) In the case of the heir having taken a chattel interest, to his next of kin (Sewell v. Denny, 10 Beav. 315); and

(b.) In the case of the heir having taken a freehold interest, to his, next of kin (1 Vict. c. 26, s. 6), as being at the best an interest pur autre vie only;

(2.) If there is a residuary devise the residuary devisee takes. 1 Vict. c. 26, s. 25.

II. As to personalty,—

(1.) If there is no residuary be-
quest the next of kin take;
(2.) If there is a residuary bequest
the residuary legatee takes
(Haley v. Bannister, 4 Madd.
275), and takes as capital, to
which, therefore, if tenant
for life, he would be entitled
to the income of it only
(Crawley v. Crawley, 7 Sim.
427); and

III. As to realty and personalty equally. If the income directed to be accumulated is the income of residue, then,

(1.) So far as the residue consists of personal estate the next of kin take (Pride v. Fooks, 2 Beav. 430); but

(2.) So far as the residue consists of real estate the heir takes. Wildes v. Davies, 1 Sm. & Giff. 475.

The Thellusson Act itself excepts from its operation the following directions, namely: :

(1.) Provisions for the payment of the debts, whether of the settlor or testator (as the case may be), or

ACCUMULATIONS-continued.

of any other person (Barrington v. Liddell, 2 De G. M. & G. 480); and such provisions are also exempt from the rule of perpetuities (Briggs v. Oxford (Earl) 1 De G. M. & G. 363); (2.) Provisions for raising portions, whether given by the same instrument or by a different one (Beech v. Lord St. Vincent, 3 De G. & Sm. 678), the parents of the portionists taking, however, some interest under the instrument which directs the accumulation (Barrington v. Liddell, supra), however small that interest may be (Frans v. Hellier, 5 Cl. & F. 126), the interest of the parents acting analogously to the rule of perpetuities, semble; (3.) Provisions for raising a timber fund, provided such provisions do not exceed the rule of perpetuities.

Ferrand v. Wilson, 4 Hare, 344. ACCUMULATIVE JUDGMENT. The passing distinct sentences for two or more distinct offences. By the Common Law such a judgment could only be given in cases of misdemeanours, and not upon convictions for felony, the party attainted of felony becoming thenceforth dead in law. Latterly, however, by stat. 7 & 8 Geo. 4, c. 28, s. 10, the Court was empowered to pass a second sentence, to commence after the expiration of the first, in a case of felony; and under the criminal statutes at present in force (24 & 25 Vict.) such accumulative punishments are in general use, not exceeding three in all.

See titles PERJURY; LARCENY.

ACCUSED. This is the generic name for the defendant in a criminal case, and is more appropriate than either prisoner or defendant. Rex v. M'Naughten, 1 C. & K. 131.

AC ETIAM BILLE. The ac etiam clause was a form or fiction of law adopted first in the Queen's Bench, and afterwards in the Common Pleas, to give jurisdiction to these Courts in actions for ordinary debts

The

bill of Middlesex in the Queen's Bench being framed only for actions of trespass; and the statute, 13 Car. 2, st. 2, c. 2, having required that the true cause of action should be expressed in the writ or process, the Court of Queen's Bench was in danger of losing its entire jurisdiction in matters of debt; to obviate that result, the ac etiam clause was invented. And some few years afterwards, North, C.J., directed that in the Common Pleas the like fiction should be added to the usual complaint of break

AC ETIAM BILLE-continued. ing the plaintiff's close. But since the Uniformity of Process Act (2 Will. 4, c. 39) the necessity for this fiction has ceased.

ACKNOWLEDGMENT MONEY. A sum of money paid by copyhold tenants in some parts of England on the deaths of their landlords as an acknowledgment of their new lords. It is the laudem um, or laudativum of Roman law, being so called a laudando domino. Leominster used to be an instance of it, see Cowel; but there is no trace of it at Leominster at the present day. The author is not aware of any district in England in which it is now payable. The payment of fines by copyhold tenants is, however, an analogous payment.

ACKNOWLEDGMENT OF A DEBT. This consists in the admission that a debt is owing. Its effect upon a debt not yet barred by the Statute of Limitations is to cause the statutory period to commence running anew. The acknowledgment must be in writing under Lord Tenterden's Act (9 Geo. 4, c. 14), s. 1, and must be addressed to the creditor, or, semble, his agent (Fuller v. Redman, 26 Beav. 614); it may be signed either by the debtor himself or his agent (19 & 20 Vict. c. 97 s. 13). The acknowledgment, in order to be sufficient, must involve a promise to pay (Tanner v. Smart, 6 B. & C. 602); therefore the effect of a sufficient acknowledgment of a debt already actually barred is the same as the acknowledgment of a debt not yet barred, i.e., the time will run afresh from the last acknowledgment.

ACKNOWLEDGMENT OF MARRIED WOMEN : See titles DEED ACKNOWLEDGED; FINE AND COMMON RECOVERY.

ACKNOWLEDGMENT OF TITLE. Under the stat. 3 & 4 Will. 4, c. 27, s. 14, a written acknowledgment of the title of a person entitled to any land, when given to him or his agent, and signed by the party in possession or in receipt of the rents and profits of the lands, has the effect of rendering such possession or receipt that of the person whose title is acknowledged; and the title of the latter to make an entry or to bring an action for the recovery of the lands shall be deemed to accrue at the date of such acknowledgment for the purpose of saving the Statute of Limitations.

ACQUIESCENCE. Where a person having a full knowledge of the facts (Ramsden v. Dyson, 1 H. L. C. 129) neglects to dispute the right of another, he is said to acquiesce in such right. The effect of such acquiescence is a species of estoppel by conduct, see title ESTOPPEL; and it is one of the principal grounds upon which Courts of

ACQUIESCENCE-continued.

Equity and also of Law rely in refusing relief to persons bringing forward their claims. The Courts of Equity carry this principle so far that in a matter of purely equitable jurisdiction they refuse relief to a plaintiff although he is within the period allowed by the Statutes of Limitation for the recovery of his rights. (See also title LACHES.) And when a person stands by and allows another to deal with property to which he claims or has a right, he is prevented from disputing the right of such other person, at least to the prejudice of a purchaser for value without notice (Teasdale v. Teasdale, Sel. Ch. Ca. 59). For the effect of acquiescence on the part of a landlord in avoiding the effect of a forfeiture for breach of covenant by his tenant, see title WAIVER.

ACQUITTAL. This word has two meanings. 1. It signifies to be free from entries and molestations of a superior lord for services issuing out of lands. 2. It signifies a deliverance or setting free of a person from a charge or suspicion of guilt.

ACQUITTANCE. A discharge in writing of a sum of money or other duty is so called. Such a discharge, unless it is by deed, is not pleadable, neither is it conclusive as evidence, for it may be shewn to have been given through mistake. A duly authorized agent may sign an acquittance so as to bind his principal.

ACT OF BANKRUPTCY. This phrase denotes any one of the various grounds upon which a debtor may be adjudicated a bankrupt. Under the Bankruptcy Act, 1869, s. 6, these acts of bankruptcy are the following:

(1.) A general conveyance or assignment by the debtor in trust for bis creditors;

(2.) A fraudulent conveyance or transfer by the debtor of the whole or part of his property;

(3.) The debtor's having done any of
the following things with intent
to defeat or delay his creditors,
namely:

(a.) Departed out of England;
(b.) Remained out of England;
(c.) Being a trader, departed from his
dwelling-house;

(d.) Begun to keep house; or,
(e.) Suffered himself to be outlawed;
(4.) The debtor's having filed in Court a

declaration of his inability to pay; (5.) The levying of an execution for not less than 501. against the debtor by seizure and sale of his goods; (6.) The debtor's having neglected, if a trader for seven days, and if not a

ACT OF BANKRUPTCY-continued.

trader for twenty-one days, after service thereof to pay or to secure or compound for the amount (not being an amount under 501.) demanded on the debtor's summons of the petitioning creditor.

ACT OF GOD. This is a pious phrase for an inevitable accident. No one is to be prejudiced by the act of God. But when a debtor has agreed to an alternative obligation, and one of the alternatives becomes impossible by the act of God, he is not thereby discharged from doing the other, which remains possible (Barkworth v. Young, 4 Drew. 1); for that is no prejudice to him, and the contrary would be a prejudice to the creditor.

See also title IMPOSSIBILITY.

ACTES DE NAISSANCE. In French law, denote the certificates of birth, and must contain the day, hour, and place of birth, together with the sex and intended Christian name of the child, and the names of the parents and of the witnesses.

ACTIO NON ACCREVIT INFRA SEX ANNOS. In the times of Latin pleading, this was the phrase by which a defendant pleaded the Statute of Limitations to an action of assumpsit or on other simple contract, six years being the period limited for bringing the action.

ACTION AND SUIT. This is defined as the right of recovering in a Court of justice what is due or owing to oneself (jus persequendi in judicio quod sibi debetur).

All actions arise either out of contract or

For a particular explanation of each of these forms of action, see the respective titles.

There were also a numerous group of actions called real and mixed actions, but all of these, saving ejectment only, have been abolished by the stat. 3 & 4 Will. 4, c. 27, s. 36, and the C. L. P. Acts, 1852, 1854, and 1860.

There are certain general principles that are applicable to all actions and suits. Thus, first, it is necessary before commencing an action to see that the cause of action is complete, and, therefore, in the case of payments due against a certain day to see that the day has arrived and is over, and in the case of payments to become due only upon the performance of some condition to see that such condition has been performed, otherwise, if there was no cause of action at the date of the issuing of the writ of summons whereby the action is commenced, the plaintiff must necessarily fail. Secondly, it is necessary, especially in actions growing out of contracts, to see that the plaintiff has that privity which is necessary to support the action and as against the particular defendant, otherwise the action will be demurrable (Lumley v. Gye, 2 E. & E. 216). Thirdly, in the case of torts, the ground of action must be what the law regards as an injuria and not a damnum merely (Stevenson v. Newnham, 13 C. B. 285; Acton v. Blundell, 12 M. & W. 324). Fourthly, that the wrongful act does not amount to a felony (Wellock v. Constantine, 2 H. & C. 146). And, fifthly, in case of the injuria being the breach of a public duty, private damage

ACTION AND SUIT-continued. must have arisen to the plaintiff from it. Kearns v. Cordwainers Co., 6 C. B. 388.

See also following titles, JOINDER OF
CAUSES CONSOLIDATION RULE;
PARTIES; CROSS ACTIONS, &c.

AD DAMNUM. That part of the declaration which commences with the words "to the damage," &c., is termed the breach, and is thence sometimes called the breach ad damnum. Ch. on Pleading, 362, 6th ed.

ADDITION. This term is used in law to denote the address and profession of the party to, or of any deponent in an action. The greatest accuracy in the addition is often necessary, e.g., in the affidavit which is to accompany the registration of a bill of sale.

ADELING, otherwise ATHELING. An expression which was used to designate among the Saxons their chief nobility, and pre-eminently the eldest son of the king. Spelman.

ADEMPTION. The taking away. For the application of this word to legacies and devises, and for the English and Roman law of ademption of legacies, see title LEGACIES AND DEVISES.

AD INQUIRENDUM. A judicial writ commanding inquiry to be made of anything relating to a cause depending in the King's Courts. It is granted upon many occasions for the better execution of justice. See title WRIT OF INQUIRY.

ADJOURNMENT. A putting off until another time or place. Thus, a Court may be adjourned; Parliament is adjourned; the further consideration or hearing is adjourned; and in consequence of such adjournment, the parties and witnesses have permission to forbear their attendance during the period of adjournment. See as to Adjournment Days, Cheetham v. Sturtevint, 12 M. & W. 615.

ADJUDICATION. A giving of judgment. In Roman Law, the adjudicatio was the fourth of the four formulæ in use during the period of the formulary procedure (177 B.C. till 286 A.D.). It occurred in three actions only, viz., Finium regundorum, Communi dividundo, and Familiæ erciscundæ.

ADJUSTMENT. This is the rateable distribution of a loss which is matter for general average (see GENERAL AVERAGE). In an adjustment, the rule now adopted in England differs according as,

(1.) The ship arrives at its port of destination, in which case the selling price of the goods is taken; or

(2.) The ship puts back to the port of