Obrazy na stronie
PDF
ePub

ABSTRACT OF TITLE-continued.

ABUTTALS-continued. been repaid, unless perhaps, where the almost any distance of time. Also, in mortgage was only equitable (Drummond criminal law, in indictments for those 5. Tracy, Jolin. 608). But a deed which offences which the law regards as being does not affect the right to sell need not of a local character, an accurate descripbe abstracted. When it is necessary (as it tion is necessary, and this is often best almost always is), to shew the birth, death, given by abuttals. Thus, an indictment ng marriage of any person, the proper for not repairing a highway must specify certificates of these facts must be produced; the situation of the road within the parish; when it is necessary to prove a pedigree, also, on an indictment for night poaching, as where a descent occurs in the course of the locus in quo must be described either the abstract, then the heirships must be by pame, ownership, occupation, or abuttals, proved if possible by strict evidence, i.e., and it would not be sufficient to describe by means of certificates of births, deaths, it as a certain close in the parish of A. and marriages, and by the wills and letters And by the rules of pleading (H. T. 16 of administration of persons having a pos- Vict. r. 18) in an action of trespass quare sible prior title; but failing such proof, clausum fregit, the close must be designated evidence of deeds, wills of relatives, ex- in the declaration by name or abuttals, or tracts from parish books, from family other description, to avoid on the one hand Bibles, from tombstones, and such like, the necessity of the defendant's pleading may be given. It should also be shewn liberum tenementum, and on the other hand that no vutstanding interest requires to the necessity of the plaintiff's new assignbe got in, such as dower, freebench, curtesy, ing. Taylor on Evidence, 268, 327. or any unsatisfied charge ; also (in the usual case) that legacies charged on the

ACCEPTANCE. When a bill is) drawn land have been paid; also (if the property

by A. B. upon C. D., and C. D. writes the is sold free of land tax), the certificate of

word “accepted” and his name across the

face of the bill, the bill becomes his acceptsuch redemption, together with the receipt and memorandum of registration, should

anco. Such an acceptance is usually made be produced.

by C. D. when he holds goods consigned In the case of leasehold properties, the

to him by A. B. and not yet paid for, or

when he is otherwise in debt to A. B. abstract should shew the original lease and all subsequent assignments thereof,

When he accepts it under other circumunless where the original lease is of very

stances, the acceptance is for the acconsancient date, when some of the mesne

modation or honour of the drawer. An Assignments may be left out. Also, when

acceptance by E. F., who is not a party to the lease is less than sixty years old, the

the bill, would also be an acceptance for lessor's title must be shewn.

honour or accommodation, but in this case, When land (whether freehold or lease

for that of the drawee. Every acceptance hold), has devolved upon any one by the

must since 1 & 2 Geo. 4, c. 78, s. 2, be on death of another since the 19th of May,

the bill,—a requisite which by the Mercan1853, the payment of succession duty

tile Law Amendment Act, 1856 (19 & 20 must be shewn.

Vict. c. 97, s. 6), is extended to a foreign

bill as well as an inland one. By the Act 22 & 23 Vict. c. 35, s. 24,

An acceptthe wilful concealment of any document,

ance may be either general, as where the or the falsification thereof, is a misde

word “accepted," either alone or with the

words “payable at” a particular place is meanour. It is usual, however, to limit the con

written on the bill, or it may be special, tents of the abstract of title by special

as where the words " and not elsewhere conditions of sale.

are added to the particular place menSee title CONDITIONS OF SALE.

tioned in the acceptance for payment. For

the general law as to the liability of an ABUTTALS (abutter). The buttings acceptor, see title BILLS OF EXCHANGE, and boundings of land, either to the east, West, north, or south, shewing on what ACCEPTANCE AND RECEIPT. The acother lands or places it does abut. But ceptance which is intended by the Statute strictly speaking, the sides on the breadth of Frauds must either precede or be conare properly adjacentes, i.e., lying or bor- temporaneous with the receipt of the goods, dering, and only the ends on the length and as there can be no receipt withou: are abuttantes, i.e., abutting or bounding. delivery, it follows that the acceptance Cowel.

must be separated from the receipt by The importance of a careful statement the delivery, thus,-1, acceptance; 2, deof the abuttals in describing the parcels livery, and 3, receipt. Consequently the in conveyancing consists in the facility acceptance signifies a mere expression of thereby afforded of establishing the iden- one's selection of the particular goods or tity of the lands or plots of land sold, at article.

ACCEPTANCE AND RECEIPT-contd. ACCESSARY-continued.

Upon the goods being delivered and re- To a misdemeanour there are no accesceived, the purchaser if dissatisfied with saries, as neither is there to the offence of those sent may return them; consequently high treason. the acceptance and receipt which the See also title AIDERS AND ABETTORS. statute speaks of does not preclude sub

ACCESSIO. This is a term in Roman sequent objection.

law used to denote a mode of acquisition ACCESS: See title BASTARD.

of property by natural means; and the

like use of the word is not uncommon in ACCESSARY. A person guilty of a felonious offence, not by being the actor, or

English law. Thus, the maxim “ accessio actual perpetrator, of the crime, nor by

cedit principali” denotes generally that an being present at its performance, but by

accessory thing when annexed to (as it being some way concerned therein, either

naturally is annexed to) a principal thing before or after its commission. If he has

becomes part and parcel of the latter, and been concerned in it before its commission

thereupon and thereby becomes the prohe is termed an accessary before the fact;

perty of the owner of the principal thing. if after, an accessary after the fact. An

This mode of acquisition is particularly

illustrated by the Law of Fixtures, as well accessary before the fact is defined to be one who, being absent at the time the

in English as in Roman law, the maxim of crime is committed, yet procures, counsels,

the English law being “Quidquid planor commands another to commit it; and,

tatur solo, solo cedit," and of the Roman in this case, absence is necessary to con

law being Omne quod inædificatur solo, stitute him an accessary, for if he be

solo cedit.(See Brown on Fixtures, 2nd present, he is guilty of the crime as prin application, applying to the incorporation

ed. 1872.) But the principle is of universal cipal. Thus if A. advises B. to kill another, and B. does it in the absence of

of any substance of minor importance in, A., in this case B. is principal and A.

or its addition to, another substance of a accessary to the murder. An accessary

larger or principal importance. By many after the fact is one who, knowing a felony

civilians it is used as the general term, to have been committed, receives, relieves,

including in it the various more particular comforts, or assists the felon; and gener

natural modes of acquisition, which are ally any assistance whatever given to a

designated respectively Alluvio, Specififelon, to hinder his being apprehended,

catio, Confusio, Commixtio. See these

several titles. tried, or suffering punishıment, makes such assister an accessary, as furnishing him ACCIDENT. This is any unforeseen with a horse to escape his pursuers, money event that is not attributable to the conor victuals to support him, a house or other trivance or negligence of the party. It is shelter to conceal him, or using open force a rule of all systems of jurisprudence that and violence to rescue or protect him (2 no one is liable for an accident, being Hawk. P. C. 316, 317, 318). And now by purely such (Wakeman v. Robinson, 1 Bing. stat. 24 & 25 Vict. c. 94, s. 1, it is enacted, 213; 8 Moore, 63); but it is an equally that whoever shall become an accessary universal rule, that the slightest neglibefore the fact to any felony, may be in- gence will exclude the defence of accident dicted, tried, convicted, and punished in all (Kearney y. London, Brighton, &c. Ry. respects as if he were the principal felon. Co., L. R. 5 Q. B. 411). But this nonAnd by sect. 3 of the same statute, it is liability from accident does not, of course, enacted, that whoever shall become an protect the purchaser of a specific chattel accessary after the fact to any felony, may from payment of the price, in case the be indicted and convicted either as an chattel is either injured or destroyed by accessary after the fact to the principal accident. Tarling v. Baxter, Tudor's M. felony, together with the principal felon, C. 596. or after the conviction of the principal The Courts of Equity go further than felon, or may be indicted and convicted of the Courts of Law, and attempt even to a substantive felony, whether the prin- relieve parties against the consequences of cipal felon shall or shall not have been accident, but within a limited group of previously convicted, and may thereupon cases only. Thus, if a party has, to begin be punished in like manner as any acces- with, a conscientious title to relief, then if sary after the fact to the same felony, if the accident consists in the loss of a bond, convicted as an accessary, may be punished. or of a negotiable or non-negotiable instruAnd see generally the last-mentioned Act, ment, the Court of Chancery will assist which is intituled “An Act to consolidate him to getting paid, upon the one condition and amend the Statute Law of England of his giving a bond of indemnity to the and Ireland relating to Accessaries to and obligor against any possible second payAbettors of Indictable Offences."

ment; but the Courts of Law also have now

[ocr errors]

a

ACCIDENT—continued.

ACCIDENTS, INSURANCE AGAINSTacquired jurisdiction to give relief in such continued. cases upon the like condition, 17 & 18 of which satisfactory proof can be furnished Vict. c. 125 (C. L. P. Act, 1854). Equity to the company; as to the meaning of such will also occasionally relieve in the case of a provision, see Trew v. Railway Passengers a lost deed (Dalston v. Coatsworth, 1 P. Insurance Company, 5 H. & N. 211; on Wms. 731). With reference to a destroyed app. 6 H. & N. 839. And see generally instrument, whether the same is negoti- Fisher's Dig. 4926-30. able (Wright v. Maidstone, 1 K. & J. 708) or non-negotiable (Byles on Bills, 372),

ACCOMMODATION : See title BILLS OF Equity seems to give no relief, inasmuch

EXCHANGE. as the Law can do so. Sed quære, Han

ACCOMPLICE: See title AIDERS AND sard v. Robinson, 7 B. & C. 95.

ABETTORS. The Courts of Equity will also relieve against the defective execution of a power,

ACCORD AND SATISFACTION. This is but that only in favour of a purchaser

a defence in law, consisting (as the name (including a mortgagee or lessee), or of a imports) of two parts; viz. something given creditor, or of a wife, a child, or a charity.

or done to the plaintiff by the defendant They also relieve against mistaken pay- as a satisfaction, and agreed to (or accorded) ments by an executor, decreeing, for ex

as such by the plaintiff. Therefore accord ample, the residuary legatees or next of

without satisfaction is not a good plea kin to make up, i.e., refund, to an annui

(Parker v. Ramsbottom, 3 B & C. 257), as tant-legatee the diminution which the

neither is satisfaction without accord annuity fund may have sustained through a reduction in the value of stock, occa

(Hardman v. Bellhouse, 9 M. & W. 596);

but accord and satisfaction with one of sioned by Act of Parliament.

several enures to the benefit of all (Wallace But the Court refuses to extend its relief

v. Rensall, 7 M. & W. 264; Nicholson v. to cases of contract, for there the parties

Revill, 4 A. & E. 675). But the satisfaction have been to some extent negligent in not must be complete and executed. Flocton providing against the particular casualty, v. Hall, 16 Q. B. 1039. €9., the destruction of premises leased In the case of an ascertained sum of (Bullock v. Dommitt, 6 T. R. 650); and the

money, a less sum is no satisfaction for the relief which the Court gives to one party debt unless there is some additional consiwill never be given so as to prejudice deration (Fitch v. Sutton, 5 East, 230; another. White v. Nutts, 1 P. Wms. 61.

Cumber v. Wane, 1 Sm. L. C., 6th ed. 301); ACCIDENTAL DEATH. For the law of

but in other cases the value of the satiscompensation in the case of persons killed

faction is not inquired into (Pinnel's Case, by railway accidents, see Lord Campbell's

5 Rep. 117 a ; Curlewis v. Clark, 3 Exch. Act (9 & 10 Vict. c. 93); also the Act

375); excepting so far as to ascertain that amending same (27 & 28 Vict. c. 95). By

the chattel given in satisfaction is the latter Act any of the persons beneficially

value (Preston v. Christmas, 2 Wils. 86; interested in the death may, when no action

Cartwright v. Cook, 3 B. & Ad. 701). for compensation is brought within six

One security is no satisfaction for another, months from the death by the executor or

unless it is of a higher or better quality administrator of the deceased, bring such

than the original security; e.g., by being action; and the defendant is enabled to

negotiable. Sibree v. Tripp, 15 M. & W.23. pay a lump sum of money into Court,

After breach, accord and satisfaction is without specifying the shares into which

in general a good defence (when specially the same is to be divided among the parties pleaded) to an action on any contract, interested.

wbether made by parol or by specialty

(Blake's Case, 6 Rep. 43 b); unless where a ACCIDENTS, INSURANCE AGAINST. sum certain is payable under the specialty The law of insurance in its general prin- (Peytoe's Case, 9 Rep. 79 a); but before ciples is applicable to this particular breach it is never a good defence to an species of insurance. Thus, the assuring action on a specialty“ nam unumquodque person must have an interest in the life eodem modo quo colligatur dissolvi debet.of the assuree, under the stat. 14 Geo. 3, An accord and satisfaction obtained by c. 48, s. 2 (Shilling v. Accidental Death In- fraud may be set aside in equity (Stewart surance Co., 2 H. & N. 42). Also, there v. Great Western Ry. Co. 2 De G. J. & S. must be a full disclosure of all circum- 319); and a receipt given for money restances material to the exposure to acci- ceived as compensation under circumdents (Shilling's Case, supra). It is usual stances amounting to imposition, or even in such policies to provide that the injury undue consideration, will not estop the from the accident insured against shall be injured party even at Law (Roberts v. caused by some outward and visible means, Eastern Counties Ry. Co. 1 F. & F. 460;

some

are

ACCORD AND SATISFACTION -contd. ACCOUNTANT TO THE CROWN-contd. Lee v. Lancashire and Yorkshire Ry. Co., 23 Vict. c. 35, must be re-registered every L. R. 6 Ch. App. 527.

five years ; but since 1st November, 1865,

no future lien is to affect a purchaser, ACCOUNT (ACTION OF). An action

although with notice, until a writ of exewhich lies against a party to compel him

cution has been registered, under 28 & 29 to render an account to another with whom

Vict. c. 104. he has had transactions ; and the writ by

See title CROWN DEBTS. which this action was commenced was thence termed a writ of account (F. N. B. ACCOUNTANT-GENERAL. This was an 116 to 119; Co. Litt. 172 a). From the officer of the Court of Chancery, appointed greater facilities, however, which are by the statute, 12 Geo. 1, c. 32, but who afforded by the Courts of Equity in taking has since been superseded by an officer an account of profits or receipts, the action called the Paymaster General of England, of account at law is now seldom resorted under the Chancery Funds Act, 1872 to, one of the most recent cases in which it (35 & 36 Vict. c. 44), and the Chancery was used being Beer v. Beer (12 C. B. 2). Fund Rules, 1872, which came into operaThe action may still, however, be brought tion on the 7th January, 1873. in a proper case; for l;y the common law, See title PayMASTER-GENERAL. it lies against a bailiff or receiver; also,

ACCOUNTS CURRENT, These against one merchant at the suit of another for not rendering a reasonable account of

running accounts, or open accounts. profits; and by the stat. 4 Anne, c. 16, 8. ACCOUNT STATED. This is nothing 27, it is made to lie by one joint tenant or more than the admission of a balance due tenant in common against the other as from one party to another; and that balance bailiff (although not expressly so appointed) | being due there is a debt; and the statefor receiving more than comes to his just ment of the account implies a promise in share or proportion. This action as be- law to pay the debt shewn by the balance. tween merchants and merchants was an

For an account stated, it is requisite that exception to the Statute of Limitations (21

a sum certain should be due in certainty Jac. 1, c. 16, s. 3), but since the M. L. A.

(Hughes v. Thorpe, 5 M. & W. 656); but Act, 1856 (19 & 20 Vict. c, 97), s. 9, it is the sum need not be payable in præsenti no longer so, the limit for bringing the (Wheatley v. Williams, i M. & W. 533). action being now six years in all cases. The account must have been stated to the

The equitable jurisdiction in account creditor himself or his agent, and is not applies in the following cases :-(1.) Where sufficient if made to a stranger (Tucker a principal asks for an account against his

v. Barrow, 7 B. & C. 623). The statement agent, there existing in this case a fidu

may be in writing or by word of mouth ciary relation between the parties (Mac- (Singleton v. Barrett, 2 C. & J. 368); an kenzie v. Johnston, 4 Mad. 373), but not in I. O. U. is evidence of an account stated the converse case of agent against principal (Jacobs v. Fisher, 1 C. B. 178). But to (Padwick v.Stanley, 9 Hare,627) (2.) Where revive debts barred by statute, the account there are mutual accounts between plain- stated must be in writing, 9 Geo. 4, c. 14, tiff and defendant; i. e., wben each of two parties has both received and paid on the

An account stated is not conclusive, but other's account (Phillips v. Phillips, 9 Hare, an error therein may be shewn (Thomas v. 471). And (3.) where the accounts are of a

Hawkes, 8 M. & W. 140); also, that an very complicated character, and therefore

item therein is not a valid debt for want of not admitting of being examined on a trial

consideration (French v. French, 2 M. & G. at Nisi Prius. O'Connor v. Spaight, 1 Sch. 644). It is, however, no objection to a & Lef. 305.

debt that it arose upon a contract which ACCOUNTANT TO THE CROWN. This

was bad for want of writing within the denotes generally one who receives money

Statute of Frauds (Cocking v. Ward, 1 C. B.

858), unless the contract has continued for the Crown, and is accountable therefor. The Crown has a lien upon the lands

executory. Lord Falmouth v. Thomas, I

C. & M. 89. (other than the copyhold lands) of the accountant for any moneys he may mis

It is a rule of law, that an infant cannot apply or become chargeable with, and such

state an account (Trueman v. Hurst, 1 lien attaches as from the time he becomes

T. R. 40); upon attaining his age of such accountant, and continues to attach,

twenty-one years he may, however, ratify

such an account. Williams v. Moor, 11 even as against purchasers of the lands

M. & W. 256. without notice (Coxhead's Case, F. Moore, 126). Since June 4th, 1839, every such lien ACCRETION. A mode of acquisition by of the Crown must be registered under natural law, 2 & 3 Vict. c. 11, and under the Act 22 & See title ACCESSIO.

8. 1.

[ocr errors]

ACCUMULATIONS—continued. in toto, and not merely as to the excess. Boughton v. James, 1 Coll. 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, 561); and in case of his death during the period of excess, the future income

will go;

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. 30.

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. Helier, 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

(a.) In the case of the heir

having taken & chattel interest, to his next of kin (Sewell v. Denny, 10

Beav. 315); and (6.) 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 accu-
mulated 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 Thellússon 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

« PoprzedniaDalej »