While a commission will be granted to ascer- same in Equity as at Law, that is to say, every tain the boundaries of estates, or to distinguish covenant is to be expounded with regard to its copyhold from freehold property in cases of context; the exposition must be ex antecedenticonfusion or accident requiring the court's assist-bus et consequentibus and according to the reaance and in the absence of adverse title, a commission will not be granted to ascertain the boundaries of manors or parishes. sonable sense and construction of the words; but their performance materially differs at Law and in Equity; for in the former courts they must be strictly and literally performed; but in the latter substantially, according to the true and practical intent of the covenanters, and if, by unavoidable accident, fraud or ignorance not wilful, a literal execution be prevented, Equity will relieve upon compensation. Though Equity will relieve against the consequences of a breach of covenant for the nonpayment of rent, yet it will not assist a tenant who has assigned without the stipulated license, or protect him from the payment of rent, or obligation to repair, if the demised premises have been burned down, for he ought to have secured himself from such a catastrophe by a special stipulation. By 22 & 23 Vict. c. 35, a Court of Equity shall have power to relieve against a forfeiture for breach of covenant or condition to insure against loss or damage by fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the application to the court in conformity with the covenant to insure, upon such terms as to the court may seem fit.-(s. 4.) The court, where relief shall be granted, shall direct a record of such relief having been granted to be made by indorsement on the lease or otherwise.-(s. 5.) Although it is a delicate function to restrain the exercise of a legal right, yet Equity relieves against penalties and forfeitures on the ground of accident, provided an adequate compensation can be given, or the thing can be done afterwards without endamaging the interests of other parties. Thus, in the case of a bond for the payment of money at a given time under a penalty, and the money is not paid, equity will relieve against the penalty on the ground that it would be unjust for the obligee to avail himself of the penalty when an offer of full indemnity, by the payment of the sum due with interest, is offered. Where an estate is sold by auction, and there is a condition that the deposit shall be forfeited on the non-completion of the contract by a certain day, equity invariably relieves against the lapse of time. The court also allows a redemption of a mortgage (although the estate is forfeited at Law), because the contract is simply a security, and time is not of its essence: therefore to insist upon taking the land for the money would be unconscionable. Again, in the administration of assets, if an executor or administrator pay the legacies and certain debts, upon the reliance of the sufficiency of the assets, and it afterwards turns out that from subsequently discovered liabilities or unforeseen occurrences the assets become insufficient, Equity will relieve, provided the executor or administrator have acted faithfully and cautiously, and this on the ground that otherwise he would be innocently subjected to an unjust loss arising from pure accident. If the master of an apprentice die before the term has expired, a return of part of the premium will be ordered, on account of the failure of the contract from accident. If a penalty be inserted in a bond or instrument to secure the enjoyment of a given thing, this is deemed the * main intent, and the penalty is treated as accessional and as a mere security and collateral guard for the damage really incurred; if then the penalty be sued for at law, Equity will enjoin the proceedings and direct an issue quantum damnificatus, in order to ascertain the actual damage sustained. If instead of a penalty Upon the general result of the authorities," specific compensation is provided for the breach writes Maddock (1 Prin. and Prac. Chan. 51), of a contract, then Equity will not interfere; "the rule perhaps may be stated thus: that in for the specific compensation is not a penalty, all cases of breach of covenant, except by nonbut a liquidated, stipulated, or ascertained dam- payment of rent, Equity will only give relief, age. Where the condition of a bond or deed is provided the omission and consequent forfeiture to pay a higher rate of interest, if it be not satis-are the effect of inevitable accident, and the fied by a given day, it is in the nature of a pen- injury or inconvenience occasioned thereby is alty, and will be relieved against. Equity relieves capable of complete compensation; but that, against forfeitures incurred by permissive, but wherever the transgression is wilful, or the comnot wilful, waste, though the latter may admit pensation impracticable, Equity will refuse to of compensation; but forfeitures under the pro- interfere." A further qualification of this provisions of an Act of Parliament, on conditions position must of course be admitted wherever in law which do not admit of compensation, or the forfeiture can be shown to have arisen from forfeitures which may be considered as limita- the misconduct, or to have been waived by the tions of an estate, and which determine it when|laches or subsequent dealings of the party who they happen, cannot be relieved against. seeks to take advantage of it. The construction of covenants must be the The court shall not have power under this Act to relieve the same person more than once in respect of the same covenant or condition; nor shall it have power to grant any relief under this Act where a forfeiture under the covenant in respect of which relief is sought shall have been already waived out of court in favor of the person seeking the relief.—(s. 6.) The preceding provisions shall be applicable to leases for a term of years absolute, or determinable on a life or lives or otherwise, and also to a lease for the life of the lessee, or the life or lives of any other person or persons.— (s. 7.) A condition precedent (i. e. one to be performed before an estate or interest can vest) must be, as | bring his commodities to a fair market in time a general rule, literally fulfilled, for Equity can- to meet the payments for which he has to pronot relieve so as to give an estate which never vide, then, by the temporary assistance of friends, vested; but in the case of a condition subsequent through the medium of "accommodation paper" (i. e. one upon the breach or performance of (to use the commercial phrase applicable to such which the continuance of an estate depends) it transactions), his credit may be saved, and he will prevent the devesting of an estate, if a may be enabled to hold his goods till some fair proper compensation can be made. opportunity of sale presents itself.-Chitty on Bills, 204. See 2 Mill's Pol. Econ. 41-46. [See Byles on Bills, by Sharswood, h. t. Appleton v. Donaldson, 3 Barr, 381; Lord v. Ocean Bank, 8 Harris, 384.] Upon a general survey of the grounds of equitable jurisdiction in cases of accident," observes Story (Eq. Jur. c. 4, ad fin.), "it will be found that they resolve themselves into the following results, that the party seeking relief has a clear right, which cannot otherwise be enforced in a suitable manner; or that he will be subjected to an unjustifiable loss, without any blame or misconduct on his own part, or that he has a superior equity to the party from whom he seeks the relief." ACCIDENTAL FIRE. By 14 Geo. III. c. 78, s. 86, no action shall be prosecuted against any person in whose house, chamber, stable, barn, or other building, or on whose estate any fire shall accidentally begin; but nothing therein contained shall defeat any contract or agreement made between landlord and tenant. The statute will hardly protect tenants from the consequences of fires caused by negligence.- Woodf. Land. and Ten. by Horn, 462; 4 Step. Com. 173. ACCITE, to summon.-Obs. ACCOLA, a husbandman who comes from some other country to till the land, and is thus distinguished from incola, viz., accola non propriam, propriam colit incola terram (a foreigner does not till his own land, but a native does). Du Fresne. ACCOLADE (fr. accoler, Fr.; collum amplecti, Lat.), a ceremony anciently used in knighthood, by the king putting his hand upon the knight's neck.-Cowel. Greg. de Tours writes, that the kings of France, in conferring the gilt shoulderbelt, kissed the knight on the left cheek. The accollé, or blow, John of Salisbury assures us, was in use among the Normans; by this it was that William the Conqueror conferred the honor of knighthood upon his son Henry. It was first given with the naked fist, but afterwards with the flat of a sword. ACCOMENDA, a contract whereby a person intrusts property with the master of a vessel, to be sold for their joint profit.-Italy, mar. law. ACCOMMODATION, a friendly agreement; an amicable composition between persons at variance. An accommodation bill of exchange is where one person accepts a bill for another, there being no consideration between them, for the purpose of raising money upon it for the present necessity of one or both of them. Lord Eldon thus observed upon this subject: "The pernicious effects of a fabricated credit, by the undue use of such instruments, drawn out of the ordinary course of trade, have been too much felt to require any observation; the use of them where there is no real demand subsisting between the different parties, is injurious to the public as well as to the parties concerned in the negotiation" (Ex parte Wilson, 11 Ves. 411). Unless, perhaps, in cases where, from some sudden and unexpected event, a particular branch of commerce may be affected, or the trader unable to ACCOMPLICE (fr. complice, Fr.; complector, Lat.), one of many equally concerned, or a copartner, in a felony; generally applied to those admitted to give evidence against their fellowcriminals.-Hawk, P. C. 87. [See Wharton's Cr. Law.] ACCORD, an agreement between two or more persons, where any one of them is injured by a trespass, or offence done, or on a contract, to satisfy him with some recompense; which accord, if executed and performed, shall be a good bar in law, should the injured party, after the accord performed, bring an action for the same trespass, &c.-Termes de la Ley. ACCOUNT, or ACCOMPT (fr. compte, Fr.; computo, Lat.), a registry of debts, credits, and charges, or a detailed statement of a series of receipts (credits) and disbursements (debits) of money, which have taken place between two or more persons. Accounts are either-1, open, where the balance is not struck, or it is not accepted by all the parties; 2, stated, where it has been accepted, either expressly or impliedly by all the parties; and 3, settled, where it has been accepted and discharged. There is at the Common Law a very ancient, but now obsolete, action of account, to compel parties to render a true narrative of monetary transactions that have arisen between them; but in consequence of the inconvenience and expense of passing accounts before arbitrators or auditors, to whom the Court of Law delegates its jurisdiction, and who are merely appointed pro hac vice in such an action, and the superior facility afforded by equity, not only from the great and accurate knowledge of the intricacies of accounts possessed by its officers, consequent upon the extensive practice which they have in such matters, but also from their superior and more efficacious power to purge the defendant upon oath as to the truth of his representations, and to compel a discovery of books, vouchers, and papers, the defendant being allowed all reasonable expenses, to discount the sums paid or expended by him, and to discharge himself of payments under forty shillings by his own oath. Suitors now invariably resort to the Equity Courts for relief in most dealings involving accounts. And Equity has extended its remedy to many cases of implied and constructive trusts, as well as to matters of fraudulent contrivance and tortious misconduct, which the action at Common Law could never have reached. Equity entertains suits for accounts when they are mutual, i. e., where there exists a series of expenditures on one side, and of payments on the other, and not merely one payment and one receipt, and also where the account is on one side only, but is of so complicated and intricate a nature that it cannot be satisfactorily disposed of at law, and a discovery is wanted, which is material to the right of relief. But for a mere matter of set-off at law a suit in Equity will not lie. The usual cases of accounts arising from contracts or quasi contracts, which are investigated in Equity are the following: Agency, Apportionment, General Average and Contribution, Waste and Winding-up of Companies. In suits for accounts, both parties are deemed plaintiffs (actores) when the cause is before the court upon its merits; a defendant may, therefore, have an order for a ne exeat regno even against a co-defendant, and if a balance is ultimately found for the defendant, he is entitled to a decree against the plaintiff for its amount, since it is implied, if not expressed in the decree to account, that the balance shall be paid to the party entitled thereto. If the plaintiff die after an interlocutory decree to account, the defendant can revive the suit against his personal representatives, and if the defendant die, his personal representatives can revive the suit against the plaintiff. If the legal right be doubtful, an issue at law is directed; and if the right be there sustained an account follows. After the court has decreed an account, an action at law cannot be brought for the same cause, and the party persisting in bringing it would be attached. count for a money-demand, though it may not be intended to establish a distinct subject-matter of complaint in respect of each of such counts. ACCOUNTANT, or ACCOMPTANT, one whose business it is to compute, adjust, and range in due order accounts. As to the Accountant in Bankruptcy, see 11 & 12 Vict. c. 106, ss. 31-36, and Orders, 149. ACCOUNTANT-GENERAL, or ACCOMPTANT-GENERAL, an officer of the Court of Chancery, appointed by act of Parliament to receive all money lodged in court, and to place the same in the Bank of England for security.12 Geo. I. c. 32; 1 Geo. IV. c. 35; 15 & 16 Vict. c. 87, ss. 18-22, & 39; Smi. Ch. Pr. 18. There is a similar officer in the Court of Chancery in Ireland. ACCOUPLE, to marry. ACCREDIT, acknowledging a diplomatic agent by the government to which he is sent.Internat. Law. ACCREDULITARE, to purge an offence by an oath.—Blount. ACCRETION (fr. accresco, or adcresco, Lat.), the act of growing to a thing. ACCRETION OF LAND BY ALLUVION, land gained from the sea, by the washing up of sand or soil, so as to form firm ground; or by dereliction, as when the sea shrinks back below the usual water-mark. If this accretion of land be by small and imperceptible degrees, it belongs to the owner of the land immediately adjacent to it, in accordance with the maxim De minimis but if it be sudden and considerable it belongs to the Crown.-4 Hale, De Jure Maris, p. 14. ACCRIMINATION, accusation.-Obs. ACCROACHING, attempting to exercise royal power. ACCROCHE (fr. accrocher, Fr.), to hook or grapple unto, to encroach. The French use it for delay, as accrocher un procès, to stay proceedings in a suit.—Cowel. The Statute of Limitations cannot be pleaded in bar to an open account, unless all accounts have ceased above six years. By "The Mer-non curat Lex (the Law cares not about trifles), cantile Law Amendment Act, 1856," 19 & 20 Viet. e. 97, s. 9, “ All actions of accounts or for not accounting, and suits for such accounts, as concern the trade of merchandise between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits, or when such cause has already arisen, then within six years after the passing of this act (29th July, 1856), and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account, having arisen within six years next before the commencement of such action or suit." In the case of a legal demand, Equity acts in obedience, and not merely by analogy, to the Statute of Limitations; but as to an equitable demand, Equity acts in analogy thereto or refuses to interfere after a considerable lapse of time. These are the general principles which govern Equity in decreeing an account when such is the grand object of the suit; but, it must be recollected, that in very many proceedings instituted for other kinds of redress, an account is frequently incident to the relief sought; and it may be laid down as a broad rule, that whenever the relationship of trustee and cestui que trust is established between the parties, the cestui que trust has always the right to an account from his trustee, since without it, he would very probably lose the full benefit and proper protection of his interests.-1- Chit. Eq. Ind. by Mac. 3-36. ACCOUNT STATED, a common count in a declaration, which may be joined with any other ACCRUE, to grow to, or to arise. ACCRUING COSTS, expenses incurred after judgment. ACCUMULATION, a gathering together, heaping up, or amassing. The dominion over property and its rents, issues, and profits, is restrained by our law as regards perpetuity and accumulation. The two rules against perpetuities and accumulations bound the proprietary* right on every side, and limit that species of vanity, which, in the language of Lord Nottingham, "fights against God, by affecting a stability which human providence can never attain to."2 Swanst. 460. See PERPETUITY. It being deemed expedient by the legislature that all dispositions of real or personal estates, whereby their profits or produce are directed to be accumulated, and their beneficial enjoyment postponed, should be restricted, and "posthumous avarice" put an end to, the 39 & 40 Geo. III. c. 98, was passed. This statute is sometimes quoted as Lord Loughborough's Act, from the L. C., who introduced it into the House of Lords, but it is more commonly called "The Thellusson Act," because the case of Thellusson v. Woodford (4 Ves. 227-343, 1798, and 11 Ves. 112-151, 1805), was the occasion of its enactment. It is a restraining, remedial statute, | to those who would have been entitled in cases and declares, that no person or persons shall by of intestacy. Thus, if a testator directed what any deed, surrender, will, codicil, or otherwise the act authorizes him to direct, that for the first howsoever, settle or dispose of any real or per- twenty-one years after his death there should be sonal property, so and in such manner that the accumulation, at the end of that time there might rents, issues, profits, or produce thereof shall be be a very long period, during which the rents wholly or partially accumulated for any longer and profits would go to no one by the disposition, term than but in the case of real estate would belong to the heir-at-law, and in the case of personal estate (unless there was an express disposition of what was not disposed of), to the next of kin. So that the statutory vacating of the accumulating trust is not to accelerate the title of the person to whom the property is limited at its termination, but merely produces an intestacy pro tanto. (1.) The life or lives of any such grantor or grantors, settlor or settlors; or (2.) The term of twenty-one years from the death of any such grantor, settlor, devisor or testator; or (3.) During the minority or respective minorities of any person or persons who shall be living or en ventre sa mère at the time of the death of such grantor, devisor, or testator; or (4.) During the minority or respective minorities only, of any person or persons who, under the uses or trusts of the deed, surrender, will, or other assurance, directing such accumulations, would, for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated; and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void; and the rents, issues, profits, and produce of such property so directed to be accumulated, shall, so long as the same shall be directed to be accumulated contrary to the provisions of this act, go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed.-(s. 1.) Nothing in this act contained shall extend(1.) To any provision for payment of debts of any grantor, settlor, or devisor, or other person or persons; or (2.) To any provision for raising portions for any child or children of any grantor, settlor, or devisor, or any child or children of any person taking any interest under such conveyance, settlement, or devise; or (3.) To any direction touching the produce of timber or wood upon any lands or tenements; but that all such provisions and directions shall and may be made and given as if the act had not been passed.-(s. 2.) By s. 3 it is provided that the act shall not extend to any disposition respecting heritable property in Scotland; and by s. 4. that the act shall not affect wills made before the passing of the act, unless the testator shall have been living and of sound mind for twelve months after the passing of this act. Consult Hargrave on Accumulation, for a full exposition of this statute. The statute operates as a restraint upon those trusts for accumulation, which aim at a duration beyond the statutory limits, simply by causing them to cease and become of no effect immediately upon the twenty-first anniversary of the death of the settlor or testator, and until that date, leaves them as valid and effectual in all respects as if the act had not passed. In Griffith v. Vere (9 Ves. 132), Lord Eldon said the object of those who introduced this bill was simply to declare the limitations void, and to make the rents and profits go, not to those claiming by the disposition, but (by the effect of the act striking out the direction for accumulation) It is under cover of the second exception of the act that it has been thought the restraints of the act may be altogether evaded. For instance, there seems no objection to a trust for accumulating the rents and profits of a testator's real estate, or the interest and dividends of personalty, within the rule against perpetuities relating to the corpus of property, in order to raise any specific sum as a portion for the child, who shall be then living, of a person taking an interest under the same will. If so, Mr. Thellusson's will would become a valid precedent under the present state of the law; if the testator limit the amount, which he thinks sufficient to give as a portion or portions to his remote descendants, and direct his trustees to pay any small annuity to all and every of his descendants, whose children shall be presumptively entitled to such portions. ACCUMULATIVE JUDGMENT. If a person already under sentence for a crime be convicted of another offence, the court is empowered to pass a second sentence, to commence after the expiration of the first. ACCUMULATIVE LEGACIES. The doctrine as to these (professedly borrowed from the Civil Law), seems to be, that where the same specific thing is given twice, or, where in the same will, a like sum or quantity is given for the same cause, in the same act, and totidem verbis, or only with a small difference, a single and not a double or accumulative legacy passes; but in general, if equal, greater, or lesser sums be given in one will, or by two distinct writings of different dates, as by a will and a codicil, or by two codicils, this is an augmentation, and the legatee takes a double or accumulative legacy; but though simpliciter and primâ facie, two different instruments giving legacies, whether of the same or of a larger amount, will be held accumulative and not a substitution, yet the rule does not hold, if there appear upon the face of the instrument an intention of the testator to the contrary.— 4 Ves. 90; 1 P. Wms. 424; 3 Ves. 294; 2 Wms. Ex'ors, 1160. Accusare nemo se debet, nisi coram Deo. Hard. 139. (No one ought to accuse himself, unless in the presence of God.) ACCUSATION, the formal charging of any person with a crime. Accusator post rationabile tempus non est audiendus, nisi se bene de omissione excusaverit. Moor, 817. (An accuser ought not to be heard after the expiration of a reasonable time, unless he can account satisfactorily for the delay.) ACE OF HEARTS, an unlawful game.-4 | in the deed by which the same is to be effected, Step. Com. 339. ACEMANNES-CEASTER (Acemanni Castra, Lat.) Bath. ACEPHALI, the levellers in the reign of Henry I., who acknowledged no head or superior.-Leges H. 1. Also certain ancient heretics who asserted that there was but one substance in Christ and one nature. AC ETIAM BILLÆ (and also to a bill). A clause which was formerly inserted in a writ where the action required bail. Now no longer used. ACHAT (Fr.), a purchase or bargain.-Cowel. ACHATORS, or ACHETORS, purveyors. because they frequently bargain; also purchasers, -Chaucer. ACHELANDA, AUCHELANDIA, AUKLANDIA, Aukland, in the Bishopric of Durham. ACHERSET, a measure of corn, conjectured to have been the same with our quarter or eight bushels.-Cowel. ACHWRE (Ach-gwre, near belt), an enclosure of wattles or thorns surrounding a building, at such a distance as to prevent cattle reaching and damaging the thatch.-Anc. Inst. Wales. A declaration by a grantor made before a person having authority to take the same, that the instrument is his act and deed. The several States of the Union have laws regulating the manner in which deeds conveying lands situated therein shall be acknowledged, and by whom the same shall be taken. For the requisites of the laws of the different States, see Thornton's Conveyancing, and Dunlap's Forms.] [ACKNOWLEDGMENT. ACKNOWLEDGMENT-MONEY, a sum paid in some parts of England by copyholdtenants on the death of their landlords, as a recognition of their new lords, in like manner as money is usually paid on the attornment of tenants.-Cowel. ACKNOWLEDGMENT OF A WIFE'S ASSURANCE, the numerous and elaborate formalities to be observed that a married woman may legally convey her estate, or extinguish her rights or powers in realty, or money directed to be laid out in realty, are provided for by the 3 & 4 Wm. IV. c. 74, ss. 77-91, and the rules of Hilary and Trinity Terms, 1834, framed by the Court of Common Pleas. As to Personalty in Reversion, see 20 & 21 Vict. c. 57, s. 2. A married woman not being a tenant-in-tail. may by an ordinary deed dispose of her lands of any tenure, and money subject to be invested in the purchase of lands, and also may dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in any lands of any tenure, or in any money to be laid out in land, and also may release or extinguish any power vested in, or limited, or reserved, to her in regard to any lands of any tenure, or any such money, or in regard to any estate in any lands of any tenure, or in any such money, and also may convey her contingent, executory, and future interests, and possibilities, coupled with an interest, and also rights of entry as fully and effectually as she could do if she were a feme sole, but such disposition will not be valid and effectual unless her husband concur nor unless the deed be produced and acknowledged by her (except it be such a deed as may be executed by her in the character of protector, for the sole purpose of giving her consent to the disposition of a tenant-in-tail), upon her executing it, or afterwards, as her act and deed, before a judge of one of the supreme courts at Westminster, or before two of the perpetual commissioners, or two special commissioners, or the judge of a county court, under 19 & 20 Vict. c. 108, ss. 26 & 73; but before such acknowledgment can be received, he or they must examine her apart from her husband, touching her knowledge of such deed, and shall ascertain whether she freely and voluntarily consent to such deed, and unless she freely and voluntarily consent, he or they cannot permit her to acknowledge it; and then the deed will, so far as relates to her execution of it, be void. The certificates and affidavits verifying the same must, within one lunar month from the making of the acknowledgment, be delivered to the proper officer of the Common Pleas, who shall not after that time receive the same without the direction of the court or a judge. The above statute excepts the case of a married woman being a tenant-in-tail. Where she is such a tenant, and desires to bar the entail, the deed must be enrolled in Chancery, according to the directions of the act; and should such deed operate as a transfer of her beneficial interest, it must also be duly acknowledged by her as just explained. So that enrolment and acknowledgment are, in such a case, both requisite. See 11 & 12 Vict. c. 70; and 17 & 18 Vict. c. 75. ACLEA (fr. ac, an oak, and leag, place, Sax.), a field where oaks grow.-Cunningham's Abr. A communi observantiâ non est recedendum; ei minimè mutandæ sunt quæ certam interpretationem habent. Co. Litt. 365. (From common usage there should not be any departure, and things which have an ascertained meaning are to be least changed.) ACOLYTE (fr. áxónovéos, Gk.), one of the minor orders in the Romish Church, whose office it is, next under the sub-deacon, to follow or wait on the priests or deacons, and perform the meaner offices of lighting the candles, carrying the bread and wine, and paying other servile attendance. This officer was in our old English called a colet, from which appellation came the family of Dean Colet, founder of St. Paul's School. -Cowel. ACQUEST, or ACQUET, property obtained by purchase or donation.-Encyc. Lond.; Civil Law. ACQUIESCENCE, consent, either express or |