MARSHALLING OF ASSETS-continued. have contribution (if not compensation) as against each other. But no one has any right to compensation as against persons posterior to himself in the above list. See also title ADMINISTRATION ASSETS.

MARSHALSEA.

OF

The court or seat of the marshal of the king's house. This Court was originally held before the steward and marshal of the king's house, and was instituted to administer justice between the king's domestic servants, in order that they might not be drawn into other Courts, and thus deprive the king of their services. This Court latterly merged into the palace court (curia palatii) which was erected by King Charles I. to be held before the steward of the household

and knight marshal, and the steward of the Court or his deputy, with jurisdiction to hold plea of all manner of personal actions which should arise between any parties within twelve miles of the king's palace at Whitehall. The Court was held once a week, together with the ancient Court of Marshalsea, in the borough of Southwark, and a writ of error lay from there to the Court of King's Bench. The business of this Court has of late years much decreased, owing to the new Courts of request or conscience and the County Courts that have since been established. The word "Marshalsea" is also som times taken for the prison belonging to the Court of Queen's Bench, commonly called the Queen's Bench Prison, but by 5 Vict. e. 22, the style of it is changed to the Queen's Prison.

See title MARSHALSKA PRISON. MARSHALSEA PRISON. This prison, which was also styled the Prison of the Marshalsea of Her Majesty's Household, was a prison for debtors, and for petsous charged with contempt of Her Majesty's Court of the Marshalsen: the Court of the Queen's Palace of Westminster, commonly called the Palace Court, and the High Court of Admiralty; and also for Admiralty prisoners under sentence of courts martial. By 5 Vict. c. 22, this prison, the Flect, and the Queen's Bench, were consolidated under the title of the Queen's Prison. See 5 Vict. c. 22; 6 Jur. 251.

MARTIAL LAW. The law which is properly designated Martial Law consists of no settled code, but of the will and pleasure of the king or his lieutenant; for in the time of war, on account of the great necessity there is for guarding against dangers that often arise, and which require immediate attention, the king's power is absolute and Lis word is law. Neverthe

MARTIAL LAW-continued. less, martial law in that sense does not exist in time of peace (Grant v. Gould, 2 H. Bl. 69, 100); and the law of Courts Martial, sometimes called Military and Naval Law, is to be distinguished from it as that law which governs soldiers and sailors as such in times of peace, and for the due administration of which there are special Courts military or Courts naval provided. Yet so jealous of these jurisdictions is the Common Law of England that they have continuance for one year only, being annually reconstituted by the Mutiny and Marine Mutiny Acts which are passed at the beginning of each session of Parliament.

MASTER. This is a name descriptive of various officers or offices in the law, several of which have in recent times been abolished. For a description of each, see the several particular titles following.

MASTER IN CHANCERY.

The mas

ters in Chancery were officers of that Court. whose duty it was to make inquiries (when so required by the Court) into matters which, from the constitution of the Con.t, it could not conveniently, without the assistance of such officers, make for itself, and to report to the Court their findings or conclusions with respect to such matters. The duties of these masters were of a mixed character, being partly judicial, and partly ministerial, the powers which they possessed in both respects having been delegated to them by the Court. Whenever a master had acted in obedience to the directions of the Court, Le used to inform the Court, by a document in writing, of what he had done, or what conclusion he had come to; and in most cases this document was called the master's report. The masters in Chancery, in addition to their ordinary functions, acted as messengers from the House of Lords to the House of Commons. Two attended the House in rotation each day, and sat on the woolsacks, their duties consisting in carrying bills to the Commons which had been passed in the Lords, or in conveying any message which their Lordships night be desirous of communicating to the Commons. On arriving at the latter House they took their seats behind the chair of the sergeant at arms, and this officer, bearing the mace, walked up to the table and acquainted the Speaker that there was "a message from the Lords." The Speaker said, "Let the messenger be called in;" upon which the masters in chancery, accompanied by the sergeant-at-arms, approached the table, making their obeisances, and having deposited the bills thereon, or delivered their message, they

MASTER IN CHANCERY-continued. retired with the same forms, walking backwards until they reached the bar of the House. There were also certain other officers of the Court of Chancery called masters extraordinary in Chancery; these were usually solicitors, who were appointed by the Court to act in the various counties of England in taking affidavits, acknowledgments of deeds, recognizances, &c., which otherwise would have had to be taken before the masters in London, and would thus have occasioned to the suitors loss of time and expense in coming to London for that purpose (Gray's Ch. Prae. 103). The duties formerly discharged by the masters in ordinary in Chancery are now discharged by the chief clerks attached to the offices of the various judges; those formerly discharged by the masters extraordinary are now discharged by solicitors qualified as commissioners for taking oaths throughout the kingdom.

An

MASTER OF THE FACULTIES. officer under the Archbishop of Canterbury who grants licences and dispensations. He is mentioned in 22 & 23 Car. 2. Cowell.

MASTER OF THE ROLLS. One of the judges of the Court of Chancery; he is so called because he has the custody of the rolls of all patents and grauts which pass the great seal, and also of the records of Chancery. He presides in a court called the Rolls Court, and his duties are assistant to those of the Lord Chancellor. He is first called Master of the Rolls in 11 Hen. 7, c. 18: but his office is as ancient as the Court itself. Unlike that of the Vice-Chancellors, his jurisdiction is in the nature of a distinct jurisdiction, which the suitor may for certain purposes, which are now considerably diminished, cleet in preference to that of the Lord Chancellor.

MASTERS OF THE COURTS OF COMMON LAW. Each of the superior Courts of Common Law has five important oflicers attached to it, termed masters. These gentlemen are usually persons of consideration and learning, and are ordinarily members of the Bar. One of the masters of each Court always attends the sittings of his own Court in bane, and usually sits on the bench, appropriated for him and other officers, at the foot of the judicial bench. The Court of Error, also, is always attended by one of the masters. Their

chief duties, when attending the Court, consist in taking affidavits sworn in Court, in administering oaths to attorneys on their admission, and in certifying to the Court, in cases of doubt or difficulty what the practice of the Court is. Their principal duties out of Court consist in taxing

MASTERS OF THE COURTS OF COMMON LAW-continued.

attorney's costs, in computing principal and interest on bills of exchange, promissory notes, and other documents, under rules to compute,-in examining witnesses who are going abroad, for the purpose of obtaining their testimony,-in hearing and determining rules referred to them by the Court in the place of the Court itself,-and in reporting to the Court their conclusions with reference to the rules so referred to them. *

MASTER AND SERVANT. This is the relation which arises out of the contract of hiring. That contract may be either for an expressly defined period or for an indefinite or unexpressed period; but a general hiring, in the absence of any custom to the contrary is presumed to be a yearly hiring, and in all cases, a hiring at so much per month is a hiring for a year (Fawcett v. Cush, 3 N. & M. 177). In the case of domestic servants, such hiring may be determined by a month's notice or a month's wages in advance given or paid at any time (Turner v. Mason, 14 M. & W. 112); but in the case of clerks and respectable servants, the hiring, if general, is construed to be a hiring for one year, and so on from year to year, and must be determined with the year, at least in the absence of misconduct (Beeston v. Collyer, 4 Bing. 309). But a hiring at two guineas a week for one year has been held to be not a yearly but a weekly hiring (Robertson v. Jenner, 15 L. T. (N.S.) 514). So on a contract to pay a commercial traveller by commission, no implication arises of a yearly hiring. Nayler v. Yearsley, 2 F. & F. 41.

Every person suffering himself to be hired as a skilled artisan warrants that he possesses the requisite ability and sufficiency, and upon proof of his want of such ability or sufficiency; ... of his incompetency, his employer may discharge him, Harmer v. Cornelius, 5 C. B. (N.S.) 236.

A servant has a right to be paid for his work, and paying for same otherwise than by money is contrary to the Truck Act (1 & 2 Will. 4, c. 37), but that Act pro-, perly applies to labourers only. Riley v. Warden, 2 Ex. 59.

A servant is not personally liable on contracts made by him for his master; but he is liable for torts committed by him, although at the command of his master (Cranch v. White, 1 Scott, 314) (a case of trover); similarly he is civilly liable for assisting his master in a fraud (Cullen v. Thomson, 4 Macq. H. L. C, 441). Conversely, the master is liable for the tort of his servant committed in his service. McManus v. Crickett, 1 East, 106.

MASTER AND SERVANT-continued.

A master lies under certain duties to his servant. He is bound to provide an apprentice with medical attendance and medicine during sickness (Reg. v. Smith, 8 C. & P. 153); secus, in the case of a menial or general servant. He is bound to provide for the reasonable safety of his servant while engaged in his employment, as by fencing machinery and otherwise; but having done that, he is secure,—thus, a master was held not liable for an injury sustained by his servant through the breaking down of a carriage in which the servant was riding at the time on his master's business, through a defect in the carriage of which the master was not aware. Priestley v. Fowler, 3 M. & W. 1.

A master may maintain an action for debauching his servant (Fores v. Wilson, Peake, 55); and may even justify an assault in protecting his servant (Tickell v. Read, Lofft. 215). So also trespass will lie by a master for enticing his servant away. Hart v. Aldridge, Cowp. 54.

Under various statutes the justices have a summary jurisdiction in questions arising between masters and their servants, as for non-payment of wages by the master, for misconduct on the part of the servant, and such like.

MATRONS, JURY OF. A jury of matrons is a jury formed of women, which is impanelled to try the question whether a woman be with child or not.

See title DE VENTRE INSPICIENDO.

MATTER OF RECORD, MATTER IN DEED, AND MATTER IN PAIS. Matter of record signifies some judicial matter or proceeding entered upon one of the records of the Court, and of which the Court takes peculiar cognizance. Thus the pleadings in an action in the superior Courts, and in the Courts of record, being matter which is entered upon the records of the Court and filed with its officer as an authentic history of the suit, is thence termed a matter of record.

Matter in deed is some private matter or thing contained in a deed between two or more parties; as the covenants or recitals in a lease, or in a mortgage deed for instance; and these, although inrolled, that is, transcribed upon the records of one of the Queen's Courts at Westminster, or at a Court of Quarter Sessions, as they often are, for safe custody, do not thereby become matter of record, but are simple deeds recorded or inrolled; for there is a material difference between a matter of record and matter recorded for the purpose of being kept in memory; a record being an entry on parchment of judicial matters or proceedings which have taken place in a Court of record, and of

MATTER OF RECORD, MATTER IN

DEED, AND MATTER IN PAIS-cont. which the Court takes judicial notice, as matter coming peculiarly under its own cognizance, whereas the inrolment of a deed is a private act of the parties concerned, of which the Court takes no cognizance at the time when it is done.

Matter in Pais simply means matter of fact, probably so called because matters of fact are triable by the country, i.e., by a jury. The above several phrases are generally used in connection with the subject of estoppel. Thus any allegation of fact, or any admission made in pleading (whether it be express or implied, from pleading over, without a traverse), will preclude the party from afterwards contesting the truth of the matter so alleged or admitted, upon the trial of the issue in which such pleading terminates. This is an estoppel by matter of record. As an instance of an estoppel by deed, may be mentioned the case of a bond reciting a certain fact. The party executing that bond will be precluded from afterwards denying in any action brought upon that instrument the fact so recited. An example of an estoppel by matter in pais occurs when one man has accepted rent of another; in such case he will be estopped from afterwards denying in any action with such person that the latter was at the time of such acceptance his tenant. See title ESTOPPEL.

By 27

MEDIATORS OF QUESTIONS. Edw. 3, st. 2, c. 24, six persons, so called, were authorized when any question arose amongst merchants touching any unmarketable wool, or undue packing, to certify upon oath, and settle the same before the mayor and officers of the staple, and by whose award therein the parties concerned were to abide. Cowel.

MEDICAL PRACTITIONER. The stat. 55 Geo. 3, c. 194, makes regulations regarding the education, examination, admission, and practice of APOTHECARIES, and imposes a penalty of £20 for every violation thereof. Practising as an apothecary means mixing up and preparing medicines prescribed either by a physician or by the apothecary himself (Woodward v. Ball, 6 C. & P. 577). An apothecary violating the Act has no means of recovering his charges, s. 21. Steel v. Henley, 1 C. & P. 574.

The stat. 15 & 16 Vict. c. 56, regulates the qualification of pharmaceutical chemists; and the stats. 14 & 15 Vict. c. 13 (as to arsenic), and 31 & 32 Vict. c. 121 (as to other poisons generally), regulate the sale of medicines of a poisonous character.

The stats. 21 & 22 Vict. c. 90 (the

MEDICAL PRACTITIONER-continued. Medical Act), and 23 & 24 Vict. c. 66, and other Acts, regulate the qualifications and powers of surgeons and physicians, and constitute a council, the members of which are the sole judges of the correctness of professional conduct (Ex parte La Mert, 4 B. & S. 582). A physician registered under 21 & 22 Vict. c. 90, who attends a patient professionally, and who is not prohibited by any bye-law of the College of Physicians from suing for same, may recover his fees without an express contract (Gibbon v. Budd, 2 H. & C. 92); but before that Act a physician could not maintain an action for his fees. Chorley v. Balcot, 4 T. R. 317.

MEDICINE: See preceding title.

MEDIETAS LINGUÆ, A jury de medietate linguæ is a jury consisting one-half of natives and the other half of foreigners, to try a cause in which either the plaintiff or the defendant is a foreigner (Staun. Pl. Cor. Lib. 3, c. 7). But such juries are abolished by the Juries Act, 1870 (33 & 34 Vict. c. 77). Aliens who have been domiciled here for ten years or upwards, and being otherwise qualified, are now competent generally to serve on juries.

See title JURIES.

MEMORIAL OF DEEDS. By several Acts of Parliament all deeds and wills concerning the conveyance or disposition of estates in the counties of York, Kingstonupon-Hull, and Middlesex (subject to certain exceptions), are required to be registered, and such registration is effected by the execution and deposit of a memorial under the hand and seal of some or one of the grantors or grantees, his or their heirs, executors or administrators, guardians or trustees, which memorial is to contain,first, the day of the month and year when the instrument bears date, the names and additions of all the parties to it, and of the witnesses, and the places of their abode; and, secondly, a description of the property conveyed, or proposed to be conveyed or disposed of, the names of the parishes wherein it respectively lies, and the manner in which the same property is dealt with or affected by such instrument or instruments. It is proposed to render the registration of such memorials universal throughout England, by and in accordance with an Act to be intituled the Transfer of Land Act, but which Act has for the present been postponed.

MEMORY OF MAN. In law the memory of man is supposed to extend back to the time of Richard I.; and until the 2 & 3 Will. 4, c. 71, any custom might have been destroyed by proving that it had

MEMORY OF MAN-continued.

not existed uninterruptedly from that period. But though it was essential to the validity of a custom that it should have existed before the commencement of the reign of Richard I., yet proof of a regular usage for twenty years, not explained or contradicted, was that upon which many public and private rights were held, and sufficient for a jury in finding the existence of an immemorial custom. See Mounsey v. Ismay, 3 H. & C. 486; and title LEGAL MEMORY.

MENSÂ ET THORO: See title DIVORCE.

MERCY. "To be in mercy" was the usual conclusion of a judgment in an action at Common Law. When the judgment was for the plaintiff, the form was that the defendant "be in mercy" (misericordia), that is, be amerced or fined for his delay of justice; when for the defendant, that the plaintiff be in mercy for his false claim. The practice of imposing any actual amercement has been long obsolete. Steph. 122.

See title AMERCIAMENT.

The

MERE MOTION (mero motu). free and voluntary act of a party himself, without the suggestion or influence of another person. The phrase is used in letters patent, whereby the king grants, "of his especial grace, certain knowledge, and mere motion" (ex speciali gratiâ, certâ scientiâ, et mero motu), his licence, power, and authority to the patentee to use and enjoy, exclusively, the new invention; and it manifests that the grant is not made upon the suggestion or suit of the party, but of the free and unfettered will of the monarch himself. Webster on Patents, 76, n. (d).

The expression is also applied to the occasional interference of the Courts of Law, who, under certain circumstances, will (ex mero motu), of their own motion, object to an irregularity in the proceedings of the parties to an action, though no objection be taken to the informality by the plaintiff or defendant in the suit. 3 Chitty's Gen. Pr. 430; 3 Dowl. 110; 1 Bing. N. C. 258; 1 B. & P. 366.

MERGER-continued.

indicates that where the qualities of debtor and creditor become united in the same individual, there arises a confusion of rights which extinguishes both qualities; whence also merger is often called Extinguishment. And just as in the Roman Law the prætor in certain cases where merger would be inequitable, intercepted and prevented it, so also in English Law the Chancellor interferes in like cases to prevent it. And therefore it is a rule of English Law, that merger or extinguishment will or will not take place in Equity according to the intention actual or presumed of the person, in whom the two interests come to be united; and even at Law, merger is excluded in certain cases.

The doctrine of merger is chiefly of importance with reference to real property; and in examining the subject, it is convenient to divide it under two heads, namely:-

(1.) Cases in which the owner of the charge becomes also owner of the estate; and

(2.) Cases in which the owner of the estate

becomes also owner of the charge. Now, firstly, as a general rule, where the owner of the charge becomes also owner of the estate whether in fee simple or in fee tail, the charge is ipso facto merged and extinguished in the estate. But to this general rule there are the following exceptions, that is to say,-(1.) The charge may be kept alive, and the intention to keep it alive may be either expressed in so many words, or may be implied from circumstances or from conduct. For example, if a mortgagee who purchases the equity of redemption takes a conveyance thereof to a trustee for himself, and the conveyance contains a declaration that the mortgage security shall remain on foot, there, from the expressed intention of the party, merger is excluded. Again, the intention to prevent a merger, where not expressed, has been implied under the following circumstances, viz. :

(a.) The mortgagee, becoming beneficial devisee of the equity of redemption and being also excoutor of the testator-mortgagor, in his residuary account as exccutor stated that he had retained £467 out of the personal estate towards payment of his mortgage debt, and afterwards devised the property to X., Y., and Z., provided they undertook to receive the same with all the liabilities attaching thereunto; and it was held upon the intention which the se acts implied, that the charge had not been merged in the estate (Hatch v. Shelton, 20 Beav. 453). Again,

* See Brown's Savigny on Obligations, p 15.

MERGER-continued.

(b.) If the effect of suffering the charge to merge would be to give priority to subsequent incumbrances, it will be presumed, from the clear advantage arising to the owner of the estate from keeping the charge alive, that the charge has not become merged in the estate (Forbes v. Moffatt, 18 Ves. 384); and this will be à fortiori so, if the owner is a lunatic (Lord Compton v. Oxenden, 2 Ves. Jun. 261); and,

(c.) If the owner of the charge becomes entitled only to a limited interest in the estate, the charge will clearly not merge, although this case is hardly an exception to the general rule as stated above.

And, secondly, as a general rule, where the owner, whether in fee simple or in fee tail, becomes also owner of the charge, the charge is ipso facto merged or extinguished in the estate. This rule is almost without exception where the charge comes to the owner of the estate by succession or by bequest; and even where it comes to him by being purchased up by him, the general rule almost invariably holds, but with the following exceptions:-

(a.) When the owner of the estate who buys up the charge is not in possession of the estate, but is, say, a tenant in tail or in fee simple in remainder expectant upon some other estate, the owner of which might bar or exclude his interest altogether, in that case the charge will not merge (Wigsell v. Wigsell, 2 S. & S. 361), even although he should afterwards become entitled in possession (Horton v. Smith, 4 K. & J. 621); also,

(b.) Similarly, where the owner who buys up the charge has only a defeasible estate by reason of some executory devise over, which may or may not take effect, the charge will not merge in the estate, even although the owner should be in possession (Drinkwater v. Combe, 2 S. & S. 310); and,

(c.) If the owner who buys up the charge is an infant, the Court of Chancery sauctioning the purchase, there is no merger, as the infant can express no intention in the matter, and the Court will not prejudice him or the real or personal representatives who may claim under him (Alsop v. Bell, 24 Beav. 451); also,

(d.) If the owner who becomes entitled also to the charge has an interest in keeping the charge alive, eg., if the merger or extinguishment of the charge would give priority to subsequent incumbrances, in that case there will be no merger, in whatever manner, whether by succession, bequest, or purchase, the owner has acquired the charge (Grice v. Shaw, 10 Hare, 76); and,