A New Law Dictionary and Institute of the Whole Law

MINISTERIAL POWERS-continued. settlor; the provisions, however, of which Act have been largely superseded by the provisions of the Trustee Act, 1850 (13 & 14 Vict. c. 60). and of the Leases and Sales of Settled Estates Act, 1856 (19 & 20 Vict. c. 120).

(2.) The ministerial powers of a tenant for life in right of his wife, and of a tenant by the curtesy or in dower, depend as to leasing on the Leases and Sales of Settled Estates Act, 1856, and are generally subject to the same or the like provisions as are above stated regarding a tenant for life in his own right; and

(3.) The ministerial powers of a tenant in tail depend partly on the stat. 3 & 4 Will. 4, c. 74 (as to leasing), and partly on the Leases and Sales of Settled Estates Act, 1856; but owing to the facility with which he may at the present day bar the entail and become absolute owner, the question of his ministerial powers is comparatively insignificant.

See also title CONVEYANCES.

MINORS..

A person who has not attained his majority is usually so termed, in the Irish Reports principally; that is, an infant under the age of twenty-one years. See title INFANCY.

MISDEMEANOR. A misdemeanor is an act committed, or omitted, in violation of a public law either forbidding or commanding it. This general definition, however, comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms, though in common usage the word "crimes" is made to denote such offences as are of a deeper and more atrocious dye, while smaller faults and omissions of less consequence are comprised under the milder term of misdemeanors only. In the English Law the word "misdemeanor" is generally used in contradistinction to felony, and misdemeanors comprehend all indictable offences which do not amount to felony-as libels, conspiracies, attempts and solicitations to commit felonies, &c. 4 Chitty's Bl. 5, and n. 3.

MISERICORDIA. This word was commonly used in our law to signify a discretionary mulct or amerciament imposed upon a person for an offence; thus, when the plaintiff or defendant in an action was amerced the entry was always ideo in misericordiâ, and it was so called because the fine was but small (and therefore merciful) in proportion to the offence; and if a man was outrageously amerced in a Court not of record-as in a Court Baron, for instance there was a writ called Moderatâ Misericordia, to be directed to the lord or

MISERICORDIA-continued.

his bailiff, commanding them that they take moderate amerciaments in just proportion to the offence of the party to be amerced. When a fine was amerced on a whole county instead of an individual, it was then termed Misericordia Communis. F. N. B. 75; Les Termes de la Ley.

MISFEASANCE, Doing evil, trespassing, &c.; and he who does so is sometimes called a misfeasor (Cowel). The term is used in contradistinction to a non-feasance, which means simply an abstention from doing altogether. An interesting application of this distinction is to be found in the Six Carpenters Case (1 Sm. L. C. 132), where the mere refusal to pay for the wine (sc. beer) which the men had drunk in a public-house was declared not sufficient to make them trespassers ab initio in coming upon the premises at all, as breaking the pots or doing other wilful damages and misfeasances, it was stated, would have made them.

MISJOINDER. The joining of two or more persons together as the plaintiffs or defendants in an action who ought not to be joined. Nonjoinder is the omitting to join one or more persons who ought to have been joined as the plaintiffs or defendants in an action. See also title NONJOINDER; and generally as to modes of remedying or taking advantage of misjoinder or non-joinder, see title AMEND

MENT.

MISNOMER. The mistake in a name or the using one name for another. It is a general rule of law that a misnomer has no effect if the subject matter or person is certain or ascertainable notwithstanding the misnomer, "Falsa demonstratio non nocet, si de corpore constat ;" and in its application to legacies, "Falsa demonstratione legatum non peremi," Just. Inst. ii. 20, 30; and "Longè magis falsa causa non nocet." Just. Inst. ii. 20, 30.

MISPLEADING.

Pleading incorrectly, or omitting anything in pleading, which is essential to the support or defence of an action, as in the case of a plaintiff not merely stating his title in a defective manner, but setting forth a title which is essentially defective in itself; or, if to an action of debt the defendant pleaded not guilty instead of nil debet, this was mispleading (Salk. 365). Also, in Chancery suits, it is a mispleading in certain cases if the defendant do not allege the absence of notice, see title NOTICE.

MISPRISION (from the French mépris, neglect or contempt). Misprision is gene

MISPRISION-continued. rally understood to be all such high offences as are under the degree of capital but closely bordering thereon; and it is said that a misprision is contained in every treason and felony whatsoever. Misprisions are generally divided into two sorts, negative and positive, the former consisting in the concealment of something which ought to be revealed, the latter in the commission of something which ought not to be done. Of the first, or negative kind, is what is called misprision of treason, which consists in the bare knowledge and concealment of treason, without any degree of assent thereto. Of this negative kind is also misprision of felony, which is the concealment of a felony which a man knows but never assented to. The concealment of treasure trove, which belongs to the king or his grantees by royal prerogative, is also a species of negative misprision. Positive misprisions are generally denominated contempts or high misdemeanors; such, for example, are the mal-administration of such high officers as are in public trust and employment; the embezzling of the public money; contempts against the king's prerogative, his person, and government, or his title, &c. 1 Hawk. P. C. 60.

MITTER LE DROIT (to pass or transfer the right). This phrase is used in contradistinction to that of mitter l'estate, and both are employed to point out the mode in which releases of land operate. A release might be a conveyance of a right to a person in possession. Thus, where a person was disseised or put out of possession of lands, although the disseisor thereby acquired the possession, still the right of possession and property remained in the disseisee; but if the disseisee agreed to transfer his right to the disseisor, the proper mode of carrying such an agreement into execution was by a release, the disseisor already having the possession; and as in such cases nothing but the bare right passed, the release was said to enure by way of mitter le droit, i.e., transferring the right. A release was said to enure by way of mitter l'estate, i.e., of passing the estate, e.g., when two or more persons become seised of the same estate by a joint title, either by contract or descent, as joint tenants or co-parceners, and one of them releases his right to the other, such release is said to enure by way of mitter l'estate, i.e., transferring the estate. 4 Cru. Dig. 84, 85.

And see title CONVEYANCES, sub-title
Release.

MITTER L'ESTATE: See title MITTER LE DROIT.

MITTIMUS, A writ by which records

MITTIMUS-continued.

are transferred from one Court to another, sometimes immediately, as out of the King's Bench into the Exchequer; and sometimes by a certiorari into Chancery, and from thence by a mittimus into another Court. This word is also used to signify a precept that is directed by a justice of the peace to a gaoler for the receiving and safe keeping of a felon or other offender committed by the said justice to the gaol. Les Termes de la Ley.

MIXED ACTIONS are such as partake of the twofold nature of real and personal actions, having for their object the demand and restitution of real property, and also personal damages for a wrong sustained.

MODUS DECIMANDI (the manner of tithing, or paying tithes). A discharge from the payment of tithes, by custom or prescription, is said to be either de modo decimandi (i.e., in the manner of tithing or paying titles), or de non decimando (i.e., in paying no tithes). A modus decimandi, commonly called by the simple name of modus only, is where there is by custom a particular manner of tithing allowed, different from the general manner of taking tithes in kind; and this is sometimes effected by a pecuniary compensation, as twopence an acre for the tithe of land; sometimes it is a compensation partly in work and labour, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him, and the like; in short, any means whereby the general law of tithing is altered, and a new method of taking tithes is introduced, is called a modus decimandi, or special manner of tithing. A discharge from the payment of tithes by a custom or prescription, de non decimando, arises either from some personal privileges which the party enjoys who is so discharged, or by a real composition made in lieu of payment of tithes, or from some other like circumstance. Thus, the king, by his prerogative, is discharged from all tithes; so a vicar is discharged from paying tithes to the rector, and the rector to the vicar. A real composition is made by an agreement between the owner of lands and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes in consideration of some land or other REAL recompense being given to the parson in lieu and satisfaction thereof. 2 Iust. 490; 14 M. & W. 393.

See also title TITHES.

MOIETY (from the French, moitié, half). The half or part of anything. Thus, Ꭱ

MOIETY-continued.

joint tenants are sometimes said to hold by moieties (Cowel). The shares of two joint tenants are of necessity moieties; but the shares of two tenants in common entitled equally, would also be moieties. An inaccurate use of the word "moiety" is that in which it signifies merely part, share, or proportion, whether equal or unequal.

MOLLITER MANUS IMPOSUIT (he laid hands on him gently). When a person is sued for an assault, he may set forth the whole case, and plead that he laid hands on him gently, molliter manus imposuit. From these words having been so used in pleas, several justifications in actions of trespass for assault are called by this phrase (1 Sid. 301). The degree of gentleness [or of roughness] necessarily varies with the degree of the resistance.

MONEY-BILLS. Originally, the Lords and Commons in Parliament voted separate supplies, the last of such votes of which there is any trace having been in 18 Edw. 3. For a brief period subsequently to that date, the Lords and Commons appear to have voted joint supplies; but from the reign of Richard II. probably, and from that of Henry IV. certainly, the practice was for the Commons singly to vote the supplies, and for the Lords merely to assent thereto. See Rolls 9 Hen. 4, where mention is made of the Commons having remonstrated to the King on account of the Lords interfering in the matter of the grant of supplies, and the King is represented to have thereupon conceded that the Commons should for the future determine all such grants without interference from the Lords. This practice appears to have been all the more reasonable in those early reigns, because the supplies fell principally upon the Commons, and in the case of the tenths and fifteenths of goods fell exclusively upon them, unless in the exceptional instance in which the Lords were expressly subjected to the tax.

not in

Originally, money-bills were general entered in the statute book, being only so entered when (as was, however, the frequent practice) some relief of grievances was so interwoven with them as to render their entry unavoidable. This was the case, for example, with the money-bill 14 Edw. 3, stat. 1, c. 21. It is not till the reign of Henry VII. that money-bills, being purely such, appear in the statute book, and even then they appear occasionally only; however, by the reign of Henry VIII. they are entered regularly.

In their first mode of entry in the statutebook, money-bills are expressed to be enacted by the authority of Parliament;

MONEY-BILLS-continued.

but by the reign of Charles I. the Commons began the practice of omitting the names of the Lords in the preamble and of retaining it only in the enacting part; and this is the present practice (see, e.g., 36 & 37 Vict. c. 3).

About 1661, the Commons began for the first time to object to the Lords making any alterations in money-bills, the immediate occasion of their objection being certain alterations made by the Lords in a bill of that year, introduced by the Commons for providing for the paving of the streets of Westminster. Again, in 1671, the Commons having introduced a bill imposing a tax on sugar, and the Lords having proposed some modifications in it, the Commons remonstrated, and a conference ensued between the two Houses, and in this conference the Commons laid claim to an exclusive privilege in the matter of money-bills. The conference ended in nothing definitive, but the exclusive right which was then claimed has since been acquiesced in, although it has never been expressly acknowledged by the Lords. A like exclusive privilege, which was claimed shortly after 1688, in the matter of bills imposing pecuniary penalties, was similarly acquiesced in, not acknowledged.

MONEY COUNTS. These are simple forms of pleading in actions of assumpsit, and were provided by the C. L. P. Act, 1852, Sch. B. They are goods sold, work done and materials provided, money lent, money paid, money received, and such like other counts, which are also sometimes called the common indebitatus count.

See titles ASSUMPSIT; and INDE-
BITATUS ASSUMPSIT.

MONITION. An order, or admonitory epistle, issuing from a spiritual Court, and addressed to some person or persons of fending against the laws ecclesiastical, advising or monishing them to act in obedience to those laws. When a party has been duly served with a monition, le is technically said to have been ished." See Rog. Erc. Law; Burn's Ecc. Law, tit. "Monition."

"mon

MONK. The profession of a religious person of this character made him dead in law, or civilly dead (see titles CIVIL DEATH, CLERGYMAN); but since the Reformation, the monkish profession is not recognised by law in England; and amounting, therefore, to no religious profession at all, it no longer renders the monk civilly dead. In re Metcalfe, 33 L. J. (Ch.) 308.

MONOPOLY is the sole right of selling a particular article of manufacture. The power to grant such a right was in early

MONOPOLY-continued.

times claimed as a prerogative of the Crown. Its exercise was in many cases most beneficial, as ingenious foreign workmen were from time to time drawn to England by the expectation of substantial commercial advantages being secured to them by royal letters patent (being, in fact, these grants of monopoly); and enterprising Englishmen were also induced by the like expectation to travel abroad and acquire a practical knowledge of trades and arts. But the Crown experiencing in those days the evils of no regular taxation-the chief of which was a perpetually-recurring want of money to conduct the affairs of Government-the prerogative was exposed to, and its exercise soon became affected with, many abuses, principally in this respect, that the monopoly was sold at a ruinous price, usually to the highest bidder, whether or not he was the true and first inventor of the process of manufacture, and latterly without any regard at all to his capacity or ability as an inventor or manufacturer, and frequently indeed to courtiers, who made it a means of gain exclusively, and did not assist the national industry at all. The evils arising from this abuse of the prerogative were become so great by the latter end of the reign of Elizabeth, that the Courts of Common Law, in the Case of Monopolies (Darcy v. Allen, 11 Rep. 84), 44 Eliz., adjudged monopolies to be illegal; and parliament took up the matter as early as 1601, and, in the next reign, succeeded in regulating the abuse by enacting the Patent Act (21 Jac. 1, c. 3), which is the basis of the Patent Law at the present day. See title PATENTS. MONSTER.

One who has not the shape of a human being, and, although born in lawful wedlock, cannot be heir to any land. But mere deformity of person does not make any one a monster.

MONSTRANS DE DROIT (shewing of right). One of the Common Law methods of obtaining possession or restitution from the Crown, of either real or personal property, is by monstrans de droit, manifestation or plea of right, which may now be preferred or prosecuted either in the Chancery or in any of the Common Law Courts, although originally in the Chancery and Exchequer only (see Petitions of Right Act, 1860, 23 & 24 Vict. c. 84). A monstrans de droit lies when the right of the party, as well as the right of the Crown, appears upon record, which is putting in a claim of right. grounded on facts already acknowledged and established, and praying the judgment of the Court whether, upon those facts, the king or the subject has the right. Skin. 609; Day's Common Law Pro. 562.

MONTH, in law, is a lunar month, or twenty-eight days, unless otherwise expressed. Hence a lease for twelve months is for forty-eight weeks only; but if it be for "a twelvemonth," it is good for the whole year. In a contract, if the parties obviously intended that a month should be a calendar month, the law will give effect to that intention. If money be lent for nine months, it must be understood calendar months (Str. 446); similarly in the case of bills of exchange and promissory notes. In legal proceedings, as in time to plead, a month is four weeks (3 Burr. 1455), but is to denote in future a calendar month, see Order LI., r. 1, Proposed Rules under Judicature Act, 1873. But where a statute speaks of a year, it shall be computed by the whole twelve months (2 Cro. 167); and so generally in all statutes.

MORT CIVILE, in French Law denoted civil death, as upon conviction for felony. It was nominally abolished by a law of the 31st of May, 1854, but something very similar to it, in effect at least, still remains. Thus, the property of the condemned possessed by him at the date of his conviction goes and belongs to his successors (héritiers), as in case of an intestacy; and his future acquired property goes to the State by right of its prerogative (par droit de désherence), but the State may, as a matter of grace, make it over in whole or in part to the widow and children.

MORT D'ANCESTOR. An assize of mort d'ancestor was a writ which lay for a person whose ancestor died seised of lands, &c., that he had in fee simple, and after his death a stranger abated; and this writ directed the sheriff to summon a jury or assize, who should view the land in question, and recognise whether such ancestor were seised thereof on the day of his death, and whether the demandant were the next heir.

MORTGAGE (mortgagium, from mort, death, and gage, pledge). A mortgage may be described to be a conveyance of lands by a debtor to his creditor, as a pledge or security for the repayment of a sum of money borrowed. The debtor who so makes a conveyance of his lands, or so puts them in pledge, is termed the mortgagor, and the creditor to whom the lands are so conveyed as a security for the money lent, is termed the mortgagee. The mortgagee with respect to the tenure which he acquires in the lands so conveyed to him, is also termed a tenant in mortgage.

Mortgages of freehold lands are of two sorts either the lands are conveyed to the mortgagee and his heirs in fee simple,

MORTGAGE-continued.

with a proviso that if the mortgagor pays the money borrowed on a certain day, the mortgagee will reconvey the lands; or else the lands are conveyed to the mortgagee, his executors, administrators, and assigns for a long term of years, with a proviso that if the money borrowed is repaid on a certain day, the term shall cease and become void. There is also another kind of mortgage, where the proviso for redemption does not oblige the mortgagor to pay the money on a particular day, but allows him to do it at any indefinite time; and this is called a Welsh mortgage. 2 Cruise, 81; 2 Bl. 152.

Mortgages of leasehold lands are likewise of two sorts, being either (1) by assignment, in which case the mortgagee coming into legal privity with the lessor becomes liable to the latter on the rents and covenants; or (2) by underlease, in which case the mortgagee by reason simply of the absence of that privity with the lessor does not become liable to the latter on the rents and covenants. In either case, there is the usual proviso for the reassignment or surrender of the premises upon repayment of the principal money lent and interest and costs.

Mortgages of copyhold lands, where they constitute the principal or entire security, are usually made by surrender without admittance, subject to a proviso making void the surrender upon repayment of the principal, interest, and costs; but where they are only a subordinate part of the security, the mortgagee is frequently satisfied with a covenant to surrender which he takes from the mortgagor, subject to the usual proviso that the covenant shall be discharged and become void upon repayment of the mortgage debt and interest and costs.

A mortgagee may realise the mortgage debt in various ways,-(1.) By Foreclosure, which he effectuates by means of a suit in Equity; (2.) By Sale, which he carries out either by exercising his power of sale (if any) contained in the mortgage deed, in which case he must carefully conform to the terms of the power, or by exercising the statutory power of sale, which is to be taken (in the absence of an express one) to be implied in every mortgage deed (23 & 24 Vict. c. 145), in which case he must carefully comply with the words of the enabling statute. The mortgagor's remedy against his mortgagee is,-By Redemption, which in the ordinary case he exercises by simply paying back the borrowed money, and in all cases of peculiarity or of unsettled accounts by means of a suit in Equity. Where an estate is mortgaged for successive debts to successive mortgagees, if any mesne mortgagee wishes to realise

MORTGAGE-continued.

his mortgage debt he files a bill in Equity offering to redeem the prior mortgagees, and praying to foreclose those that are posterior to himself, according to the rule of practice, "Redeem up, foreclose down."

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