Page images
PDF
EPUB

Accomplice-Confederates in Crimes.-Accomplice-Evidence.-Accretion.

4. The crimes of piracy mentioned in the 8th | yielding up of the vessel by a citizen to such pi section of the act of 30th April, 1790, for the rates, under the eighth section, is within the act punishment of certai.. crimes, are such as are of congress, passed 30th of April, 1790. The committed by citizens of the United States, on United States v. Howard & Beebe, 3 Wash. C. C. board of vessels of the United States; and there-R. 340. fore the 10th and 11th sections, as to accessaries, refer to the acts of piracy mentioned in the 8th section. The United States v. Howard & Beebe, 3 Wash. C. C. R. 340.

5. A confederacy by citizens on land, or on board of an American vessel, with sea robbers or pirates by the law of nations, or the yielding up of a vessel by a citizen to such pirates, is within the provisions of the 8th section of the act of congress. Proof of criminal intention in the person charged, is required to establish the crime of confederacy. Ibid.

6. The language of the 12th section of the law implies compact and association with pirates, as well in relation to the past, as to the future. Any intercourse which is calculated to promote their views, is within the provisions of the law. Ibid.

7. If many go to do an unlawful act, and one do it, all are principals. But if they go to do a Jawful act, as to visit a vessel to ascertain her character, and all but one commit a felony, though in his presence, without his participation, their crime is not imputable to him. United States v. Jones, 3 Wash. C. C. R. 209.

ACCOMPLICE-CONFEDERATES IN
CRIMES.

1. If a number of persons conspire together to do any unlawful act, and death happen from any thing done in the prosecution of the design, it is murder in all who take part in the affair or transaction. United States v. Ross, 1 Gallis. C. C. R.

564.

2. One who joins in the general conspiracy, and by his presence countenances acts of violence, but who does not individually use force or threats to compel a master of a vessel to resign the command of the vessel, is guilty of the offence of confining the master. United States v. Sharp, 1 Peters, C. C. R. 118.

3. It is possible that a person may be concerned in a treasonable conspiracy, and yet be actually and legally absent while some act of the treason is perpetrated. 2 Burr's Trial, 425. 4. If the person accused was not a party at any time with those engaged in a treasonable purpose or design before they arrived at the scene where the overt acts of treason charged in the indictment occurred; if he did not join them there, or intend to join them; and his personal co-operation in treasonable purposes was to be performed elsewhere, at a great distance, in a different state; and his overt acts of treason were to be distinct overt acts; then he was not a party to the overt acts so charged, and was not constructively present aiding and assisting in the same. 2 Burr's Trial, 429.

5. A confederacy by citizens on land, or on board an American vessel, with sea robbers or pirates, according to the law of nations, or a

6. So is an endeavour by a merchant to corrupt his captain to go over to, or to confederate with pirates or sea robbers, or to trade with them, or furnish them with ammunition. Ibid. 7. To establish the crime of confederacy with pirates, there must be something of a criminal intention in the accessary proved. Ibid.

8. The words of the twelfth section imply compact and association with the pirates, as well in relation to the past as the future; any intercourse with them calculated to promote their views, is sufficient. Ibid.

9. A confederacy with pirates, on board a foreign ship, would not be an offence within the twelfth section of the act. Ibid.

10. There must be something of criminal intention in the person who confederates and corresponds with pirates. The correspondence may be perfectly innocent; it may be for the purpose of bringing the guilty persons to punishment, or to dissuade them from a further prosecution of their guilty practices. To convict a person as a confederate, something like a criminal participation must be shown. Ibid.

11. An accomplice, separately indicted, is a competent witness in favour of or against a person indicted for the offence. The United States v. Henry, 4 Wash. C C. R. 428.

12. Although the master of a vessel was not actually confined by a particular seaman, yet if he aided and abetted in the act of confining him, he is constructively guilty; and is considered in law a principal offender. Ibid.

13. All persons present at the commission of a crime, consenting thereto, aiding, assisting, and abetting therein, or in doing any act which is a constituent of the offence, are principals U. S. v. Wilson, 1 Baldwin, C. C. R. 102.

ACCOMPLICE-EVIDENCE.

1. The evidence of an accomplice is not to be disbelieved from the fact that he was such. The law, founded not only on good policy, but on good sense, admits such evidence to be competent; and then endeavours, by certain wholesome and reasonable restrictions, to guard the innocent from injury from witnesses, in such suspicious circumstances. It is usual for a court to advise a jury not to regard the evidence of an accomplice unless he is confirmed, in some part of his testimony, by unimpeachable testimony. If he is confirmed in some parts, he may be believed in others. The U. S. v. Kepler, 1 Bald. C. C. R. 22.

ACCRETION.

1. The question is well settled at commor law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold the same boundary, including the accumulated soi'

Accident.

No other rule can be applied on just principles. | had been prevented by inevitable accident, neEvery proprietor whose land is thus bounded, is cessity, or distress, from complying with these subject to loss by the same means which may requisitions. But such defence is not allowable add to his territory: and as he is also without under a plea which simply puts in issue a denia! remedy for his loss in this way, he cannot be of the facts, constituting a forfeiture, within held accountable for his gain. This rule is no these sections. Ibid. less just when applied to public, than to private rights. The Mayor, Aldermen, &c. of New Orleans v. The United States, 10 Pet. 662.

ACCIDENT.

1. When a vessel had been driven by stress of weather to a foreign port, and the cargo there detained by the government of the place, it is such a casualty as comes within the exception of "dangers of the seas" in the condition of an embargo bond. United States v. Hall et al. 6 Cranch, 171; 2 Cond. Rep. 340.

2. When accident will avoid the penalty of a bond, or excuse a compliance with the requisites of a penal statute. S. C., 2 Wash. C. C. R. 166. 3. In an action of debt, for the penalty of an embargo bond, it is a good plea that the party was prevented from relanding his goods in the United States, by unavoidable accident. rousseau v. U. States, 6 Cranch, 307; 2 Cond. Rep. 380.

9. The accident, distress, or necessity, intended by the twenty-seventh section, are not merely marine accidents, occasioned by stress of weather. A capture by an enemy is within the purview of the clause; and an unlading occasioned by actual capture, or an imminent and pressing danger of the same, will be as good a justification as if it had been occasioned by tempest or shipwreck. Ibid.

10. But the peril must be immediate, and operating directly on the subject matter. The peril must be so instant and pressing as to leave no hope of escape or of preserving the property, by ordinary means, or by delay for the ordinary authority; in no other case can it be considered as unavoidable. Ibid.

11. The party, to excuse himself from the consequences of a breach of the embargo laws, should show that he did every thing in his power to comply with the law; and that the vessel was Du-sufficiently found, &c. to perform the voyage. If it appear that she was not sufficiently ballasted, and particularly if this defect was ascertained to exist when it could have been remedied, the party cannot avail himself of an excuse of any necessity, resulting from this defect. United States v. The Nancy, 3 Wash. C. C. R. 281.

4. If congress had neglected to provide that an irresistible necessity shall excuse a violation of the embargo laws, it is the duty of the court to interpret those laws, as they do all penal statutes, by considering the exception as implied. Consent is essential to guilt; and the legislature is supposed to pass all penal laws with the understanding that courts will not inflict the penalties for unintentional violations. The liam Gray, 1 Paine, 16.

12. Under the non-intercourse law of 1809, a vessel coming from Great Britain had a right to land off the coast of the United States, to receive Wil-instructions from her owners in New York; and, if necessary, to drop anchor; and, in case of necessity, make a harbour; and, if prevented, by a mutiny of her crew, from putting to sea, might wait in the waters of the United States for orders. United States v. The Cargo of the Fanny, 9 Cranch's Rep. 181; 3 Cond. Rep. 347.

5. The accident, which is attributable to a peril of the sea, must happen without fault or negligence, and must occur at sea; and if on land, it must be the immediate and necessary consequence of a peril happening at sea. U. S. v. Hall, 2 Wash. C. C. R. 366; 3 Cond. Rep. 347. 6. A vessel belonging to citizens of the United States, in 1799, driven by stress of weather into a French port, and obliged to land her cargo to make repairs, and prevented by the officers of the French government from reloading her original cargo, and from taking away any thing in exchange but produce or bills; might purchase and take away such produce without incurring the penalties of the non-intercourse act of June 13, 1798, ch. 70, and such a voyage does not avoid the insurance as illegal. Hallet & Brunce v. Jenks et al. 3 Cranch, 210; 1 Cond. Rep. 499. 7. One cannot set up the defence that goods unladen within the twenty-seventh section of the act of March 2d, 1799, ch. 128, were unladen by unavoidable accident, necessity or distress; unless he has made the requisite proofs thereof, stated in that section, before the collector; or has been prevented by inevitable accident, &c., from furnishing such proofs. United States v. Hayward, 2 Gallis. C. C. R. 485.

13. A vessel which, during the existence of the embargo laws, departed from one port of the United States to another, but was obliged, from irresistible necessity, to put into a foreign port, and sell her cargo, was not guilty of a violation of the embargo laws. The William Gray, 1 Paine's Rep. 16.

14. The necessity which excuses for a breach of a statute, must be instant and imminent; it must be such as leaves a party without hope, by ordinary means, to comply with the requisitions of the law: it must be such, at least, as cannot allow a different course, without the greatest jeopardy to life and property. In a word, there must be, if not a physical, at least a moral necessity. Under such circumstances, the party acts at his peril; and if there be any negligence or want of caution, any difficulty or danger which ordinary intrepidity might resist and overcome, or any innocent course which ordinary skill might adopt and pursue; the party cannot be held guiltless, who, under such circumstances, 8. It is a good defence under the fiftieth and shelters himself behind the plea of necessity. ninety-second sections of this act, that the party | The Argo, 1 Gallis. C... 150.

Account and Action of Account.-Account, in Chancery Proceedings.

ACCORD AND SATISFACTION.

1. A plea of accord, without pleading satisfaction, is bad; both must be averred in the plea. Magee v. Miller, 1 Wash. C. C. R. 328.

ACCOUNT.

1. Account and action of account..

2. Account, in chancery proceedings 3. Action of account render..

4. Accounts of executors.........

1. Account and Action of Account.

8. An action upon an open account, which had been assigned to a third person, is properly brought in the name of the original creditor. But in the action, the debtor may set off all payments made to the assignee on account of the claim. Winchester v. Hackly, 2 Cranch, 342; 1 Cond. Rep. 415.

9. It is a good plea to an action at law for an account, that the defendant had accounted be.Page 36 fore suit brought, to the person from whom 36 money had been received, or to the person to 37 whom he was bound to account, or directed to pay it; or that the money had been received for an object which had been accomplished; or that he never was the bailiff or receiver of the plaintiff to render an account. Baker v. Biddle, 1 Baldwin, C. C. R. 418.

38

1. An account current sent by a foreign merchant to a merchant in this country, and not objected to for two years, is deemed an account stated; and throws the burden of proof upon him who received and kept it without objection. Freeland v. Heron et al. 7 Cranch, 147; 2 Cond. Rep. 449.

2. The settlement and discharge of an account for money lent and advanced, is no bar to a claim for any other demand not included in the settled account. Perkins v. Hart, Ex'r. &c. 11 Wheat. 237; 6 Cond. Rep. 287.

3. A settled account is only prima facie evidence of its correctness; it may be impeached by proof of unfairness or mistakes in law or fact; and if it be confined to particular items of account, it concludes nothing in relation to other items not stated. Ibid.

4. A promissory note, given and received for and in discharge of an open account, is a bar to an action upon the open account, although the note be not paid. Sheehy v. Mandeville et al. 6 Cranch, 253; 2 Cond. Rep. 362.

5. In an action of account on a reference to auditors, under a judgment quod computet, all articles of account between the parties incurred since the commencement of the suit, are to be included by the auditors; and the whole transactions between them are to be brought down to the time when they made an end of the account. Couscher v. Toulam, 4 Wash. C. C. R. 442.

6. In this action the report of the auditors "that the plaintiff has no legal demand against the defendant at present," is not objectionable on the ground that it is not certain, and not final. But it is so, because the report does not state the account, which should always be done in the judgment quod computet. Ibid.

7. In an action of account, the defendant pleaded" plene computavit." The plaintiff had consigned to him a quantity of goods to sell on commission, and the defendant had agreed to return those unsold. He sold a part, and returned to the plaintiff an account in which he debited himself with all the goo ls, and credited the sales, leaving a large balance of goods unsold and unreturned. Held, that the plea was not maintained, the account rendered not amounting to a full accounting, so long as a part of the goods remained unsold and unreturned. The plaintiff could not have maintained an action of insimul computasset, for the balance of the account. Read v. Bertrand, 4 Wash. C. C. R. 556.

|

10. No account against the vessel is chargeable to the master, unless it is presented in a reasonable time; so that the master may charge it to the owners before settling with them. 1 Baldwin, C. C. R. 570.

11. An account for provisions furnished to the owner or commander of a vessel, or for articles for the use of a vessel, when not on a foreign voyage, or in a foreign port, is not within the admiralty jurisdiction of the district court, either as a substantive distinct claim, or as an offset to seamen's wages. Bains v. The Schooner James and Catharine, 1 Baldwin, C. C. R. 545, 546.

12. Although the account be not signed by the party, it is a stated account, if it is in writing, and shows a balance, or that there is none. Ibid. 418.

13. The burthen of showing errors in such an account is on him who receives it without ob jection. Ibid. 418.

14. An account closed by a cessation of deal ings between the parties, is not an account stated. Mandeville et al. v. Wilson, 5 Cranch, 15; 2 Cond. Rep. 175.

2. Account, in Chancery Proceedings.

15. If an account stated be pleaded in bar to a bill in equity, the plea will be sustained, except so far as the complainant shall show the account to be clearly erroneous. But if such errors be shown, such as cannot be misunderstood, the settlement must be considered so far as made under mistake or imposition. Chappedelaine v. Dechenaux, 4 Cranch, 306; 2 Cond. Rep. 116.

16. In cases of mutual running accounts, every item, whether for pay, services, or otherwise, ending in a debt, is deemed a credit in favour of the party for its amount. Gass v. Stinson, 3 Sumner's C. C. R. 99.

17. If to a bill for an account, the defendant plead, or in his answer rely upon a settled account, the plaintiff may surcharge, by alleging and proving omissions in the account, or may falsify by showing error in some of the items stated in it. Perkins v. Hart, 11 Wheat. 237; 6 Cond. Rep. 287.

18. The rule is the same, in principle, at law; a settled account is only prima facie evidence of its correctness; it may be impeached by proof of unfairness or mistakes in law or fact; and if

Account, in Chancery Proceedings.-Account Render.

it be confined to particular items of account, it | generally, or, on the return of the report, deterconcludes nothing in relation to other items not stated in it. Ibid.

[blocks in formation]

20. A court of equity will not render a final decree on a bill for an account, unless the justice of the case appears on the face of the account. Baker v. Biddle, 1 Baldwin, C. C. R. 409.

21. The object of a suit being to compel the settlement of the account, the plea fully accounted, is good at law. Ibid. 418.

22. Every bailment is not a trust involving an account in equity. Ibid. 423.

23. Long acquiescence in an account makes it a settled one. Stale demands are not favoured in equity, when the party acquiesces for a length of time, and sleeps on his rights. Ibid. 418. Tilghman & wife, v. Tilghman's Executor. Ibid. 495. Baines v. The Schooner James & Catharine. Ibid. 569.

24. A decree for an account limited to six years. Baker v. Biddle, Baldwin's C. C. R. 419, 461.

25. A settled account can be opened only for fraud or errors specified, and which are palpable, or clearly proved. Ibid. 418.

26. It can only be surcharged or falsified by the plaintiff; and is not affected by being introduced into a subsequent account. Ibid. 418.

27. It is not the province of a court of chancery to investigate items of an account; but they will be referred to a master, and the report of the master will be received as true, where no exception has been taken; and the exceptions are to be regarded so far only as they are supported by the special statements of the master, or by evidence which ought to be brought before the court by a reference to the particular testimony, on which the exception relies. Harding et al. v. Handy, 11 Wheat. 103; 6 Cond. Rep.

236.

28. In accounting before the master, the oath of the party should not be received to support charges, which, from their nature, admit of full proof. Ibid.

29. In chancery causes, the court will not settle the principles upon which an account is to be stated, previous to the reference; the question must be brought up by exceptions to the report. Vanderwyck v. Summerl, 1 Wash. C. C. R. 41.

30. A complex and intricate account is an unfit subject for examination in a court; and ought always be referred to a commissioner, to be examined by him and reported, in order to a final decree. To such report the parties may take any exceptions, and thus bring any question they may think proper before the court. Dubourg de St. Colombe's Heirs v. The United States, & Peters, 625.

mine such questions as may be contested by the parties; or it may, in the first instance, decide any principle which the evidence in the cause may suggest, or all the principles on which the account is taken. Field et al. v. Holland, 6 Cranch, 8; 2 Cond. Rep. 285.

32. If an account stated be pleaded in bar to a bill in equity, such plea will be sustained, except so far as the complainant shall show it to be erroneous. Chappedelaine et al. v. Dechenaux, 4 Cranch, 306; 2 Cond. Rep. 279.

33. But if in such a case palpable errors be shown, the settlement must be so far considered as made upon absolute mistake or imposition, and ought not to be obligatory on the injured party; because such items cannot be supposed to have received his assent. Ibid.

34. The whole burthen of proof lies upon a party objecting to a stated account; and errors which he does not plainly establish, cannot be supposed to exist. Ibid.

35. An assignee of an assignor of a co-partner in a joint purchase and sale of lands, may sustain a bill in equity against the other co-partners, and the agent of the concern, to compel a discovery of the quantity purchased and sold, and for an account and distribution of the proceeds. Pendleton v. Wambersie, 4 Cranch, 73; 2 Cond. Rep. 32.

36. Under the act of assembly, of October, 1783, for the better locating and surveying the lands given to the officers and soldiers, on continental and state establishments, the state of Virginia has no right to call upon the person who was appointed one of the principal surveyors, to account for fees received by him of one dollar for every hundred acres, on delivering the warrants towards raising a fund for the purpose of supporting all contingent expenses; the bill filed by the attorney-general of the state, to compel an account, not sufficiently averring the want of any private parties in esse to sustain it. Nicholas v. Anderson, 8 Wheat. 369; 5 Cond. Rep. 470.

37. Query, whether in such a case the assignor of the warrants, or a part of them suing in behalf of the whole, could maintain a suit in equity for an account. Ibid.

38. A court of equity has jurisdiction to decree an account and distribution, according to the lex domicilii, of the estate of a deceased person domiciled abroad, which has been collected under an administration granted in this country. But whether it will proceed to decree such account and distribution, or direct such assets to be remitted to be distributed by a foreign tribunal, depends on the particular circumstances of the case. Harvey v. Richards, 1 Mason's Rep. 811.

See MASTER IN CHANCERY.

3. Account Render.

39. A judgment of quod computet in account render, is an interlocutory judgment, and therefore completely within the control of the court in which it is rendered. Kitchen v. Strawbridge,

31. A court of chancery may refer an account | 4 Wash. C. C. R. 85. VOL. I.-4

Accounts of Executors.-Acknowledgment of a Debt.

40. Being an interlocutory judgment, from which no writ of error will lie, the proceedings are fully in the control of the court. Ibid.

41. In an action of account render on a reference to auditors, under the judgment quod computet, all articles of account between the parties, incurred since the commencement of the suit, must be included by the auditors; and the whole transactions between them are to be brought down to the time when they make an end of the account. Couscher v. Tulam, 4 Wash. C. C. R. 442. 42. In this action, the report of the auditors, "that the plaintiff had no legal demand against the defendant," is not objectionable on the ground that it is uncertain, or not final. But it is so, on the ground that they do not state the account; which should always be done on a judgment quod computet. Ibid.

ACCOUNTS OF EXECUTORS.

43. The testator gave his wife all the proceeds of his estate for the maintenance of his children, and directed his debts to be paid out of particular portions of his real and personal estate. The wife took all the proceeds of the estate for the maintenance of herself and family, and for the

education of the children. At the time of the decease of the testator, he was supposed to be wealthy, and the wife continued to live in the same manner after, as before the decease of her husband. After her death, the surviving executor was charged with a devastavit, for having allowed the expenditures of the widow of the testator to be so large. The auditor to whom the accounts of the executors were referred, made an estimate of the expenses of the family of the widow for twelve years, without having called for vouchers for all the items of the expenditures. The court held, the allowance of 6000 dollars for the expenses of the family, for twelve years, must certainly be a very moderate charge. It was a proper subject of inquiry for the auditor, and there is no ground upon which the court could say the allowance is exceptionable. From the nature of the expenditure for the daily expenses of the family, it could hardly be expected that a regular account would be kept; and especially, under the large discretion given by the testator in his will in relation to the maintenance of his family. Peter v. Beverly, 10 Peters, 532.

44. The amounts paid by the executors for the curtails and discounts on the notes running in the banks, were properly allowed to their credit. These were debts due from the estate, and whatever payments were made were for and on account of the estate. Ibid.

ACKNOWLEDGMENT OF A DEBT, WHICH WILL PREVENT THE OPERATION OF

THE STATUTE OF LIMITATIONS.

1. A recital in a deed, is good evidence to take a case out of the statute of limitations. King v. Riddle, 7 Cranch, 168, 171; 2 Cond. Rep. 459.

2. Where the plaintiff brought an action of assumpsit for money paid, laid out, and expended

for the plaintiff's use, the defendant pleaded the statute of limitations, and the plaintiff replied a new promise; the plaintiff gave in evidence a deed of assignment, executed by the defendant, within the period of limitations, as reciting that the plaintiff and others had become his sureties for a certain debt, and having become accountable, had paid the debt, and for which he, the defendant, was desirous to secure the sureties as far as possible, and assigned certain bonds to one of the sureties for the purpose, in trust, to pay the said debt out of the moneys to be collected by him. It was held, that this recital was a sufficient acknowledgment of the debt to take the case out of the statute of limitations. Ibid.

3. In the case of King v. Riddle, the court said, that although not willing to extend the effect of casual or accidental expressions further than it has been extended, to take a case out of the statute of limitations; and although the court might be of opinion that the cases on this point have gone too far; yet the recital in a deed of a debt due, was not a casual or incautious expression, and it admitted the debt due at the date of the deed, which period was within the

statute. Ibid.

4. It has been frequently decided that the acknowledgment of a debt, barred by the statute of limitations, takes the case out of that statute, and revives the original cause of action. Clementson v. Williams, 8 Cranch, 72, 74; 3 Cond. Rep. 37.

5. In the case of Clementson v. Williams, it was said, so far as the decisions have gone on this point, principles may be considered as settled, and the court will not lightly unsettle them. Ibid.

6. But the decisions, taking cases out of the statute of limitations, by evidence of an acknowledgment, have gone full as far as they ought to be carried; and the court is not inclined to extend them. Ibid.

7. The statute of limitations is entitled to the

same respect as other statutes, and ought not to be explained away. Thus, where an action of assumpsit was brought against J. C. & J. W., partners in trade, under the firm of J. C. & Co., and the statute of limitations was pleaded in bar; the plaintiff produced a witness, who testified that he presented to J. C. a certain account J.C. stated the account was due, and he supagainst J. C. & Co., in favour of the plaintiff, and posed it had been paid by his partner, J. W., had not paid it himself, and did not know it had ever been paid; it was held, that this was not sufficient evidence to take this case out of the statute. It was no promise, conditional or unconditional, but a simple acknowledgment. The the action; but that was not enough. The acacknowledgment went to the original justice of knowledgment must be that the debt is still due.

Ibid.

but

8. An acknowledgment of a debt which will take a case out of the statute of limitations, must be unqualified and unconditional. Wetzell v. Bussard, 11 Wheat. 909; 6 Cond. Rep. 322.

9. Where an action was brought, on a promise in writing to deliver a quantity of powder, and

« PreviousContinue »