英文法律词典 A-42

ACCOUCHEMENT. The act of giving birth to a child. It is frequently important to prove the filiation of an individual; this may be done in several ways. The fact of the accouchement may be proved by the direct testimony of one who was present, as a physician, a midwife, or other person. 1 Bouv. Inst. u. 314.

ACCOUNT, remedies. This is the name of a writ or action more properly called account render.

2. It is applicable to the, case of an unliquidated demand, against a person who is chargeable as bailiff or receiver. The use of it, is where the plaintiff wants an account and cannot give evidence of his right without it. 5 Taunt. 431 It is necessary. where the receipt was directed to a merchandising which makes all uncertainty of the nett remain, till the account is finished; or where a man is charged as bailiff, whereupon the certainty of his receipt appears not till account. Hob. 209.; See also 8 Cowen, R. 304; 9 Conn. R. 556; 2 Day, R. 28; Kirby, 164; 3 Gill & John. 388; 3 Verm. 485; 4 Watts, 420; 8 Cowen, 220. It is also the proper remedy by one partner against another. 15 S. & R. 153 3 Binn. 317; 10 S. & R. 220; 2 Conn. 425; 4 Verm. 137; 1 Dall. 340; 2 Watts 86.

3. The interlocutory judgment in this action is (quod computet) that the defendant render an account upon which judgment auditors are assigned to him to hear and report his account. (See I Lutwych, 47; 3 Leon. 149, for precedents) As the principal object of the action is to compel a settlement of the account in the first instance, special bail cannot be demanded, (2 Roll. Rep. 53; 2 Keble, 404,) nor are damagos awarded upon the first judgment, nor given except ratione interplacitationis, (Cro. Eliz. 83; 5 Binn. 664; 24 Ed. 3. 16; 18 Ed. 3. 55; Reg. Brev. 136 b,) although it is usual to conclude the count with a demand of damages. (Lib. Int. fo. 16. fo. 20; 1 Lutw. 51. 58; 2 H. 7. 13.) The reason assigned for this rule, is, that it may be the defendant will not be found in arrears after he has accounted, and the court cannot know until the settlement of the account whether the plaintiff has been endamaged or not. 7 H. 6. 38.

4. This action combines the properties of a legal and equitable action. The proceedings up to the judgment quod computet, and subsequent to the account reported by the auditors are conducted upon the principles of the common law. But the account is to be adjusted upon the most liberal principles of equity and, good faith. (Per Herle, Ch. J. 3 Ed. 3. 10.) The court it is said are judges of the action – the auditors of the account, Bro. Ab. Ace. 48, and both are judges of record, 4 H. 6. 17; Stat. West. 2. c. 11. This action has received extension in Pennsylvania. 1 Dall. 339, 340.

5. The fist judgment (quod computet) is enforeed by a capias ad computandum where defendant refuses to appear before the auditors, upon which he may be held to bail, or in default of bail be made to account in prison. The final judgment quod recuperet is enforeed by fi. fa. or such other process as the law allows for the recovery of debts.

6. If the defendant charged as bailiff is found in surplusage, no judgment oan be entered thereon to recover the amount so found in his favor against the plaintiff, but as the auditors are judges of record, he may bring an action of debt, or by some authorities a sci. fac. against the plaintiff, whereon he may have judgment and execution against the plaintiff. See Palm. 512; 2 Bulst. 277-8; 1 Leon. 219; 3 Keble Rep. 362; 1 Roll. Ab. 599, pl. 11; Bro. Ab. Acc. 62; 1 Roll. Rep. 87. See Bailiff, in account render.

7. In those states where they have courts of chancery, this action is nearly superseded by the better remedy which is given by a bill in equity, by which the complainant can elicit a discovery of the acts from the defendant under his oath, instead of relying merely on the evidence he may be able to produce. 9 John. R. 470; 1 Paige, R. 41; 2 Caines' Cas. Err. 38, 62; 1 J. J. Marsh. R. 82; Cooke, R. 420; 1 Yerg. R. 360; 2 John. Ch. R. 424; 10 John. R. 587; 2 Rand. R. 449; 1 Hen. & M9; 2 M'Cord's Ch. R. 469; 2 Leigh's R. 6.

8. Courts of equity have concurrent jurisdiction in matters of account with courts of law, and sometimes exclusive jurisdiction at least in some respects: For example; if a plaintiff be entitled to an account, a court of equity will restrain the defendant from proceeding in a claim, the correctness of which cannot be ascertained until the account be taken; but not where the subject is a matter of set-off. 1 Sch. & Lef. 309; Eden on Injunct. 23, 24.

9. When an account has voluntarily been stated between parties, an action of assumpsit may be maintained thereon. 3 Bl. Com. 162; 8 Com. Dig. 7; 1 Com. Dig. 180; 2 Ib. 468; 1 Vin. Ab. 135; Bac. Ab. h. t.; Doct. Pl. 26; Yelv. 202; 1 Supp. to Ves. Jr, 117; 2 Ib. 48, 136. Vide 1 Binn. R. 191; 4 Dall. R. 434; Whart. Dig. h. t. ; 3 Wils. 73, 94; 8 D.& R. 596; Bull. N. P. 128; 5 Taunt. 431; U. S. Dig. h. t.; 2 Greenl. Ev. 34-39.