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MERGER-continued.

(e.) If the owner who becomes entitled to the charge has only a limited interest in the estate, e.g., if he is only tenant for life, the charge will clearly not merge, at least when he has acquired the charge by pur chase (Burrell v. Earl of Egremont, 7 Beav. 205); and apparently (on principle at least), not even where he has acquired the charge by succession or bequest; but this case is, in fact, scarcely an exception to the general rule of merger as stated above (see Morley v. Morley, 5 De G. M. & G. 620); lastly,

(f) No merger will take place where a merely contracting purchaser of an estate pays off a charge upon it, before the completion of his purchase (Watts v. Symes, 1 De G. M. & G. 240); and apparently not even if the purchase is afterwards completed.

There are also other special causes excluding merger. Thus, tithes will not merge by mere unity of possession (Chapman v. Gatcombe, 2 Bing. N. C. 516); as neither will a commutation rent-charge in lieu of tithes; but provision has been made by certain recent statutes for effecting a merger of both whenever the land and the tithes or rent-charge belong to one and the same individual. Moreover, redeemed land-tax is on the same. footing as commutation rent-charge with regard to the question of merger. Ware v. Polhill, 11 Ves. 257.

Again, where the estate and the charge become vested in the same individual in different rights, e.g., the estate in his own right and the charge in autre droit, or vice cers, in such a case, the general rule, even at Law, is this, that the union of the two will not cause any merger, if such union be occasioned by the act of law, e.g., by descent or devise, and not by the act of the party, .g., by purchase. So, if the owner of a term make the freeholder his executor, the term will not merge; but if the executor holding the term as such, should himself purchase the immediate freehold, the better opinion is that the term will merge, subject only to the rights of the creditors (if any) of the testator.

Again, if one of two joint holders of a term obtain the immediate freehold, his moiety of the term will merge; and conversely, if the sole owner of a term obtain the immediate freehold jointly with another, one moiety of the term will merge, and the joint ownership of the freehold will continue, subject only to the remaining moiety of the term. See Will, Real Prop., p. 400.

MERITORIOUS CAUSE OF ACTION. A person is sometimes said to be the meritorious cause of action when the cause of action, or the consideration on which the

MERITORIOUS CAUSE OF ACTION

continued

action was founded, originated with, or was occasioned by, such person. Thus, in an action by husband and wife for the breach of an express promise to the wife in consideration of her personal labour and skill in curing a wound, she would be termed the meritorious cause of action. So in an action by husband and wife upon an agreement entered into with her before marriage, she would be the meritorious cause of action; for it originated or accrued out of a contract entered into with her. So a promissory note made to the wife during coverture in her own name is presumed to be made upon a consideration moving from her (Leake on Contracts, 240-1). In all such cases the husband and wife ought to be joined as co-plaintiff's, because in case the wife survive after commencement but before conclusion of the action, the right of recovery will survive to her, and the suit will not have abated by the husband's death. But it appears to be optional with the husband, if he chooses to take the risk, to sue alone in all such

cases.

MERITS. The real or substantial grounds of the action are frequently so termed, in contradistinction to some technical or collateral matter which has been raised in the course of the suit. Thus where, at a time when special demurrers were in use, a defendant demurred to the plaintiff's declaration on the ground of some informality, and the plaintiff, instead of amending. joined in demurrer, with the view of having the point argued before the Court; in such case, although he might be beaten upon the demurrer, by the Court deciding against the sufficiency of the declaration in point of form, yet as the merits, or substantial grounds of the action, still remained to be tried, he might ultimately be successful upon these. So an affidavit of merits signifies an affidavit that upon the substantial facts of the case justice is with the party so making such affidavit. Such an affidavit is required in support of certain motions to the Court, e.g., in order to let in a defendant to defend after judgment signed. Listed v. Lee, 1 Salk. 402; and, generally, Day's Common Law Practice, pp. 63-6.

MERTON. STATUTE OF. The 20 Hen. 3, is so called because it was passed in a convent of St. Augustin, situate at Merton, in Surrey. The particular provisions of the statute regarded, Ist. Legitimacy of children (see title LEGITIMATION); 2ndly. Dower; 3rdly. Inclosure of common lands; and, 4thly. Wardships.

Sec also title STATUTES.

MESNE (medius). Middle, intermediate, intervening. The word " mesne" is ordinarily used in the following combinations:-1st. Mesne Lord; 2nd. Mesne Process; 3rd. Mesne Assignments; 4th. Mesne Incumbrances; 5th. Mesne Profits.

1st. A Mesne Lord was applied in the feodal times to the lord of a manor who had tenants under him, and yet a superior lord over him, and so held an intermediate position between the two.

2nd. Mesne Process is generally used in contradistinction to final process, and signifies any writ or process issued between the commencement of the action and the suing out final process or execution in such action; and includes also the writ of summons, notwithstanding this is the process by which personal actions are commenced, and therefore cannot be regarded now as or intermediate process, in the literal sense of the word. See per Parke, B., in Harmer v. Johnson, 14 M. & W. 340.

mesne

3rd. Mesne Assignment signifies an intermediate assignment. Thus, if A. grant a lease of land to B., and B. assign his interest to C., and C. in his turn assign his interest therein to D., in this case the assignments so made by B. and C. would be termed mesne assignments; that is, they would be assignments intervening between A.'s original grant and the vesting of D.'s interest in the land under the last assignment.

4th. Mesne Incumbrances signify intermediate charges, burdens, liabilities, or incumbrances; that is, incumbrances which have been created or have attached to property between two given periods. Thus, when a vendor of an estate covenants to convey land to a purchaser free from all mesne incumbrances, it commonly means free from all charges, burdens, or liabilities which might by possibility have attached to it between the period of his purchase and the time of the proposed conveyance to the intended vendee.

the

5th. Mesne Profits are intermediate profits; that is, profits which have been accruing between two given periods. Thus, after a party has recovered the land itself in an action of ejectment, he frequently brings another action for the purpose of recovering profits which have been accruing or arising out of the land between the periods of his title to the possession accruing or being raised, and of his recovery in the action of ejectment, and such an action is thence termed an action for mesne profits. In ejectment by landlord against tenant, mesne profits are recoverable in the very action itself of ejectment, upon proof of title by the landlord; but in all other cases of ejectment, a special action for mesne profits must be brought as above.

MESNE-continued.

See Bull. & Leake, Prec. of Plead. pp. 421-2, n. (a).

MESNE, WRIT OF (de medio). A writ in the nature of a writ of right, which lay when, upon subinfeudation, the mesne or middle lord suffered his under-tenant, or tenant paravail, to be distrained upon by the lord paramount for the rent due to him by the mesne lord. 2 Inst. 374.

The

MESSAGES FROM THE CROWN. mode of communicating between the Sovereign and the Houses of Parliament. Such messages are brought either by a member of the House, being a minister of the Crown, or by one of the royal household. In the Lords, when there is such a message, the bearer of it having intimated that he has a message under the royal sign manual, the Lord Chancellor proceeds first to read it, and then the clerk at the table reads it over again. In the Commons the member appears at the bar and informs the Speaker that he has a letter from Her Majesty. He then takes it to the table and presents it, upon which the Speaker reads it, the members the meanwhile remaining uncovered. These forms having been gone through, the House proceeds to deal with the message accordingly. May's Parl. Pr.

MESSENGERS. The messenger of the Court of Chancery is an officer whose duty it is to attend on the great seal either in person or by deputy, and to be ready to execute all such orders as he shall receive from time to time from the Lord Chancellor, Lord Keeper, or Lords Commissioners (Chan. Com. Rep. 138, cited in Smith's Ch. Pr. 57). There are certain persons also who are attached to the Court of Bankruptcy who are styled messengers, and whose duty consists, amongst other things, in seizing and taking possession of the bankrupt's estate during the proceedings in the bankruptcy. See G. R. made in pursuance of the Bankruptcy Act, 1869, as to Messengers' Deposits; Yate Lee's Bankruptcy, pp. 898-900.

MESSUAGE. This word is now synony mous with the word "dwelling-house," but, as having once had a larger signification, it invariably precedes the word " dwellinghouse" in a description of parcels. A grant of a messuage with the appurtenances will pass not only the dwelling-house but also all buildings adjoining or attached to it, together with the curtilage, garden, and orchard, and the close in which the house is built, and any pleasure grounds adjoining and belonging to it. See 2 Bing. N. C. 618; Les Termes de la Ley.

METROPOLIS. Various statutes have

METROPOLIS-continued.

been passed, mostly in the present reign,
for the due management of the metropolis,
for a summary of the effect of which see
the following respective titles, viz. ;—
METROPOLITAN BUILDINGS;
METROPOLITAN BURIALS;
METROPOLITAN GAS;

METROPOLITAN MAGISTRATES;
METROPOLITAN POLICE; and
METROPOLITAN SEWERS.

METROPOLITAN. The Archbishop of Canterbury is styled "Primate of all England and the Metropolitan," because the province of Canterbury contains within it the metropolis or chief city. The metropolitans were so called because they presided over the churches of the principal cities of the province. It was their duty to ordain the bishops of their province, to convoke provincial councils, and exercise a general superintendence over the doctrine and discipline of the bishops and clergy within the provinces. The province of York anciently claimed and had a metropolitan jurisdiction over all the bishops of Scotland until about the year 1466, shortly after which time Pope Sixtus the Fourth created the Bishop of St. Andrew's Archbishop and Metropolitan of all Scotland. 1 Burn's Ecc. Law, by Phillimore, 194, 197, tit. "Bishops"; Rog. Ecc. Law, 105, 113.

The

METROPOLITAN BUILDINGS. stat. 18 & 19 Vict. c. 122 (the Metropolitan Building Act, 1855), amended by the Act 23 & 24 Vict. c. 52, taken in conjunction with 7 & 8 Vict. c. 84, ss. 54-63, regulates the construction and use of buildings in the metropolis and its neighbourhood. No contract for building in contravention of these Acts can be enforced (Stevens v. Gourley, 7 C. B. (N.S.) 99). It is in general necessary, before commencing buildings, to give notice thereof to the district surveyor, but in the case of buildings intended for Her Majesty's use or service, such notice is unnecessary (Reg. v. Jay, 8 El. & Bl. 469); and the rules of construction contained in Schedule 1 of the Act of 18 & 19 Vict. c. 122, have no reference to public buildings, all which latter class of buildings are to be constructed in such manner as may be approved by the district surveyor, from whom there is an appeal to the Metropolitan Board of Works (Reg. v. Carruthers, 10 Jur. (N.S.) 767). The Building Acts generally provide that no structure shall, without the consent in writing of the Metropolitan Board of Works, be erected beyond the general line of building, thus securing a certain regularity of frontage to the street (Tear v. Freebody, 4 C. B. (N.S.) 228).

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METROPOLITAN BURIALS. The stat. 10 & 11 Vict. c. 65, consolidates the provisions usually inserted in Acts for constructing cemeteries; and that and the subsequent Act, 15 & 16 Vict. c. 85, and other amending Acts, express the law regarding the interment of the dead within and beyond the limits of the metropolis. The stat. 20 & 21 Vict. c. 81, provides for the constitution of burial boards in parishes. A Cemetery Act usually provides that certain fees shall be paid by the cemetery company to the incumbent of the parish or other ecclesiastical district or division from which any body shall be removed for interment in the cemetery (Vaughan v. South Metropolitan Cemetery Company, 1 J. & H. 256); and the incumbent as a rule enjoys the like right under the ordinary Burial Acts.

METROPOLITAN GAS.

The stat. 3 &

4 Will. 4, c. 90, contains general provisions for lighting the parishes in England and Wales with gas; but its provisions are excluded in districts where the Public Health Acts are adopted (see title HEALTH, PUBLIC). The Gasworks Clauses Act, 1847 (10 & 11 Vict. c. 15), consolidates the provisions usually contained in Acts authorizing the construction of gasworks. The metropolis is supplied with gas by various companies, under the provisions of the Metropolis Gas Act, 1860 (23 & 24 Vict. c. 125).

The

METROPOLITAN MAGISTRATES. jurisdiction and duties of magistrates of the police courts established within the metropolitan police district are regulated by the stats. 2 & 3 Vict. c. 71, 3 & 4 Vict. c. 84, and 11 & 12 Vict. cc. 42, 43. These magistrates are appointed by the Queen in virtue of the stat. 21 & 22 Vict. c. 73, s. 14, when stipendiary; but in addition to such class of magistrates, there are also others entitled to act as magistrates within the metropolitan police district by virtue merely of being nominated on the commission of the peace for the county (see title JUSTICES OF THE PEACE). The 1st section of the stat. 21 & 22 Vict. c. 73, extending the jurisdiction of a stipendiary magistrate, when sitting alone, does not extend to the metropolitan police magistrates.

METROPOLITAN POLICE. The stats. 10 Geo. 4, c. 44, 2 & 3 Vict. c. 47, and

METROPOLITAN POLICE continued.

3 & 4 Vict. c. 84, regulate the police in and near the metropolis; and by the stat. 19 & 20 Vict. c. 2, one commissioner of police for the metropolis is to be henceforth appointed; but the Queen may appoint two assistant commissioners. Under the stat. 24 & 25 Vict. c. 51, s. 3, a penalty not exceeding £5 may be imposed upon any person who assaults a constable of the metropolitan police force in the execution of his duty.

METROPOLITAN SEWERS. The stat. 11 & 12 Vict. c. 112, consolidated the metropolitan commissions of sewers, which were continued for short intervals by subsequent Acts, until the year 1856, when by the stat. 18 & 19 Vict. c. 120, all duties, powers, and authorities vested in the Metropolitan Commissioners of Sewers ceased to be so vested, and the Metropolitan Board of Works was substituted in the place of these commissioners, and all property, matters, and things vested in the Metropolitan Commissioners of Sewers, except such sewers as were vested in any vestry or district board outside the limits defined in the schedules of the Act, were vested in the Metropolitan Board of Works. The city of London is not affected by these Acts, but is regulated by its own Act, viz., 11 & 12 Vict. c. 163 (City of London Sewers Act).

MEUBLES.

These are in French Law the moveables of English Law. Things are meubles from either of two causes,(1.) From their own nature, e.g., tables, chairs; or (2.) From the determination of the law, e.g., obligations.

MEUBLES MEUBLANS. These are in French Law the utensils and articles of ornament usual in a dwelling-house.

MIDDLESEX, BILL OF: See title BILL OF MIDDLESEX.

MILEAGE. A payment or charge of so much per mile is so termed. It is frequently used with reference to the charge made by sheriffs, when, for the purpose of executing writs, they have to travel any given number of miles.

MILITARY COURTS: See titles COURT MARTIAL and COURT OF CHIVALRY.

MILITIA: See title ARMY.

MILLS: See title FACTORIES.

MINES AND MINERALS. Prima facie the owner of the surface is entitled to the surface itself, and all below it, ex jure naturæ; and those who claim the property in the minerals below must do so by some

MINES AND MINERALS-continued. grant or conveyance by him; and in such latter case the rights of the grantee must depend on the terms of the grant; although, prima facie, it will be presumed, if the minerals are to be enjoyed, that a power to get them was also granted as a necessary incident (Rowbotham v. Wilson, 8 H. L. C. 348). Where the claim to mines or minerals is rested upon the Statute of Limitations, it is not enough to shew the absence for twenty years of enjoyment of the mines or minerals on the part of the plaintiff, but it is necessary further to shew the presence of enjoyment on the part of the defendant. Rowe v. Grenfel, Russ. & My. 396.

As to what are mines and minerals, it has been said (Cleveland v. Meyrick, 37 L. J. (Ch.) 124) that the definition depends on the mode of working and not upon the material obtained from the mine; and so in that case slates obtained by mining as opposed to quarrying were held to be mines. But this definition is exceptional, and, perhaps, it is even exceptionable; for in Micklethwaite v. Winter (6 Ex. 644), stones got by quarrying were held to be minerals. Therefore, generally (unless we are to distinguish between mines and minerals), the materials, and not the mode of working, must be made the criterion; or, speaking perhaps more accurately, mines are materials obtained by mining, and minerals are the like materials obtained either by mining or by quarrying, such materials being so very numerous and various as to admit of description or enumeration only, and not of definition. In strictness, mines are the openings only, and not the material extracted from the earth through these openings.

Where the surface of land belongs to one owner, and the mines and minerals belong to another owner,-Then

(a.) If nothing appears shewing their respective titles, or the measure of the respective grants of the respective hereditaments to the two respective owners, the mine-owner cannot so mine the vertical strata as to destroy the surface above, or even so as to occasion a subsidence thereof, while that surface remains in its natural state (Humphries v. Brogden, 15 Q. B. 739); and after buildings have stood on the surface for twenty years, the right of natural support to the land and buildings thereon from the vertical strata and also from the adjacent strata is acquired (Browne v. Robins, 4 H. & N. 186)"; and

(.) If the mode of the acquisition of the respective titles, or even the respective deeds of grant of the respective several tenements, are existing, then the words of the deeds are to be regarded;

MINES AND MINERALS-continued. and in consequence of such words the right of natural support, as well from the vertical as from the adjacent strata, may be found to have been either abandoned or diminished; but the Court fights against that conclusion. Compare Harris v. Ryding, 5 M. & W. 60; Williams v. Bagnall, 15 W. R. 273; and Smith v. Darby, L. R. 7 Q. B. 720.

MINISTERIAL POWERS. These powers, as the name indicates, are given for the good, not of the donee himself exclusively, or of the donee himself necessarily at all, but for the good of several persons, including or not including the donee also. They are so called because the donec of them is as a minister or servant in his exercise of them. They are of various kinds.

(1.) The ministerial powers of a tenant for life are the following, viz. :—

(A.) A power of leasing. This power depends upon and is regulated by the Act, 19 & 20 Vict. c. 120, and the Act 21 & 22 Vict. c. 77, called respectively the Leases and Sales of Settled Estates Act and the Act amending the same. Under these Acts it is lawful for a tenant for life who is so under a settlement dated after the 1st of November, 1856, which does not expressly exclude the Act, to demise for any term not exceeding twenty-one years any part of the settled estates (except the principal mansion-house or the demesnes thereof), provided he observes the following requisites, namely:— (a.) Lease only in possession; (b.) Make the demise by deed; (c.) Reserve the best obtainable rent; (d.) Take no premium or fore-gift; (e.) Make the lessee impeachable for

waste;

(f.) Insert a covenant for payment of rent, and other usual and proper

covenants;

(g.) Insert a condition of re-entry for nonpayment of rent for twenty-eight days, or for non-observance of the other covenants; and

(h.) Obtain the lessee to execute a counterpart of the lease.

The tenant for life may exercise the power of leasing to the extent aforesaid without any application to the Court of Chancery.

And in case the settlement is of a date prior to the 1st of November, 1856, or in case a longer term of demise than twentyone years is desired to be granted, then upon application to the Court of Chancery for its sanction there to, the tenant for life may (under certain conditions, for which see the Acts) grant the following varieties of lease, namely:

(a.) An agricultural lease for twentyone years or under;

MINISTERIAL POWERS-continued. (b.) An occupation lease for twenty-one years or under;

(c.) A mining lease for forty years or under;

(d.) A water lease or other easement lease for forty years or under; (e.) A repairing lease for sixty years or under;

(f.) A building lease for ninety-nine years or under.

And where it is possible to satisfy the Court that it is customary in the district and beneficial to the inheritance to grant longer leases than for the periods above mentioned, the Court will sanction the tenant for life granting leases for longer periods than those above mentioned in all the above mentioned varieties of lease, excepting only the agricultural lease or first variety.

(B.) A power of borrowing money for the improvement of the estate, and charging the loan upon the inheritance. This power was necessitated by the somewhat rigorous rule of Courts of Equity which denied any remuneration to tenants for life for the expenses they might have incurred, even for permanent improvements, unless the improvements were absolutely indispensable for the maintenance of the estate at its accustomed value (see Dent v. Dent, 30 Beav. 363); and now no prudent tenant for life should expend his own money on the estate, it being free to him to expend borrowed money for the purpose. His power of borrowing depends upon various Acts, that is to say

(a.) If, on the one hand, the money intended to be borrowed is to be expended in agricultural improvements, then he may have it from Government under the Improvement of Land Act, 1864 (27 & 28 Vict. c. 114), upon the terms of that Act; and (b.) If, on the other hand, the money intended to be borrowed is to be expended in the improvement of a residence, then he may have it from Government in like manner, although to a more limited extent, under the Limited Owners' Residences Act, 1870 (33 & 34 Vict. c. 56), and the Act amending same (34 & 35 Vict. c. 84) upon

the terms of those two Acts; and (C.) A power of selling the settled estates and conveying the same to the purchaser for an estate in fee simple. This power depends on various Acts, principally upon the Act 11 Geo. 4 & 1 Will. 4, c. 47, which authorizes a sale or mortgage of the lands, when that is requisite for the payment of the debts of the testator, being the

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