| MERCHANDISE. By
this term is understood all those things which merchants sell either
wholesale or retail, as dry goods, hardware, groceries, drugs, &c.
It is usually applied to personal chattels only, and to those which
are not required for food or immediate support, but such as remain
after having been used or which are used only by a slow consumption.
Vide Pardess. n. 8; Dig. 13, 3, 1; Id. 19, 4, 1; Id. 50, 16, 66. 8
Pet. 277; 2 Story, R. 16, 53, 54; 6 Wend. 335.
MERCHANT. One whose business it is to buy and sell merchandise;
this applies to all persons who habitually trade in merchandise.
1 Watts & S. 469; 2 Salk. 445.
2. In another sense, it signifies a person who owns ships, and
trades, by means of them, with foreign nations, or with the different
States of the United States; these are known by the name of shipping
merchants. Com. Dig. Merchant, A; Dyer, R. 279 b; Bac. Ab. h. t.
3. According to an old authority, there are four species of merchants,
namely, merchant adventurers, merchant dormant, merchant travellers,
and merchant residents. 2 Brownl. 99. Vide, generally, 9 Salk. R.
445; Bac. Ab. h. t.; Com. Dig. h. t.; 1 Bl. Com. 75, 260; 1 Pard.
Dr. Com. n. 78
MERCHANTMAN. A ship or vessel employed in a merchant's service.
This term is used in opposition to a ship of war.
MERCHANTS' ACCOUNTS. In the statute of limitations, 21 Jac.
1. c. 16, there is an exception which has been copied in the acts
of the legislatures of a number of the States, that its provisions
shall not apply to such accounts as concern trade and merchandise
between merchant and merchant, their factors or servants.
2. This exception, it has been holden, applies to actions of assumpsit
as well as to actions of account. 5 Cranch, 15. But to bring a case
within the exception, there must be an account, and that account
open and current, and it must concern trade. 12 Pet. 300. See 6
Pet. 151; 5 Mason, R. 505; Bac. Ab. Limitation of Actions, E 3;
and article Limitation.
MERCY, Practice. To be in mercy, signifies to be liable
to punishment at the discretion of the judge.
MERCY, crim. law. The total or partial remission of a punishment
to which a convict is subject. When the whole punishment is remitted,
it is called a pardon; (q. v.) when only a part of the punishment
is remitted, it is frequently a conditional pardon; or before sentence,
it is called clemency or mercy. Vide Rutherf. Inst. 224; 1 Kent,
Com. 265; 3 Story, Const. 1488.
MERE. This is the French word for mother. It is frequently
used as, in ventre sa mere, which signifies; a child unborn, or
in the womb.
MERGER. Where a greater and lesser thing meet, and the latter
loses its separate existence and sinks into the former. It is applied
to estates, rights, crimes, and torts.
MERGER, estates. When a greater estate and less coincide
and meet in one and the same person, without any intermediate estate,
the less is immediately merged, that is, sunk or drowned in the
latter; example, if there be a tenant for years, and the reversion
in fee simple descends to, or is purchased by him, the term of years
is merged in the inheritance, and no longer exists; but they must
be to one and the same person, at one and the same time, in one
and the same right. 2 BL Com. 177; 3 Mass. Rep. 172; Latch, 153;
Poph. 166; 1 John. Ch. R. 417; 3 John. Ch. R. 53; 6 Madd. Ch. R.
2. The estate in which the merger takes place, is not enlarged
by the accession of the preceding estate; and the greater, or only
subsisting estate, continues, after the merger, precisely of the
same quantity and extent of ownership, as it was before the accession
of the estate which is merged, and the lesser estate is extinguished.
Prest. on Conv. 7. As a general rule, equal estates will not drown
in each other.
3. The merger is produced, either from the meeting of an estate
of higher degree, with an estate of inferior degree; or from the
meeting of the particular estate and the immediate reversion, in
the same person. 4 Kent, Com. 98. Vide 3 Prest. on Conv. which is
devoted to this subject. Vide, generally, Bac. Ab. Leases, &c.
R; 15 Vin. Ab. 361; Dane's Ab. Index, h. t.; 10 Verm. R. 293;; 8
Watts, R. 146; Co. Litt. 338 b, note 4; Hill. Ab. Index, h. t.;
Bouv. Inst; Index, h. t.; and Confusion; Consolidation; Unity of
MERGER, crim. law. When a man commits a great crime which
includes a lesser, the latter is merged in the former.
2. Murder, when committed by blows, necessarily includes an assault
and battery; a battery, an assault; a burglary, when accompanied
with a felonious taking of personal property, a larceny in all these,
and similar cases, the lesser crime is merged in the greater.
3. But when one offence is of the same character with the other,
there is no merger; as in the case of a conspiracy to commit a misdemeanor,
and the misdemeanor is afterwards committed in pursuance of the
conspiracy. The two crimes being of equal degree, there can be no
legal merger. 4 Wend. R. 265. Vide Civil Remedy.
MERGER, rights. Rights are said to be merged when the same
person who is bound to pay is also entitled to receive. This is
more properly called a confusion of rights, or extinguishment.
2. When there is a confusion of rights, and the debtor and creditor
become the same person, there can be no right to put in execution;
but there is an immediate merger. 2 Ves. jr. 264. Example: a man
becomes indebted to a woman in a sum of money, and afterwards marries
her, there is immediately a confusion of rights, and the debt is
merged or extinguished.
MERGER, torts. Where a person in committing a felony also
commits a tort against a private person; in this case, the wrong
is sunk in the felony, at least, until after the felon's conviction.
2. The old maxim that a trespass is merged in a felony, has sometimes
been supposed to mean that there is no redress by civil action for
an injury which amounts to a felony. But it is now established that
the defendant is liable to the party injured either after his conviction;
Latch, 144; Noy, 82; W. Jones, 147; Sty. 346; 1 Mod. 282; 1 Hale,
P. C. 546; or acquittal. 12 East, R. 409; 1 Tayl. R. 58; 2 Hayw.
108. If the civil action be commenced before, the plaintiff will
be nonsuited. Yelv. 90, a, n. See Hamm. N. P. 63; Kely. 48; Cas.
Tempt. Hardw. 350; Lofft. 88; 2 T.R. 750; 3 Greenl. R. 458. Butler,
J., says, this doctrine is not extended beyond actions of trespass
or tort. 4 T. R. 333. See also 1 H. Bl. 583, 588, 594; 15 Mass.
R. 78; Id. 336. Vide Civil Remedy; Injury.
3. The Revised Statutes of New York, part 3, c. 4, t. 1, s. 2,
direct that the right of action of any person injured by any felony,
shall not, in any case, be merged in such felony, or be in any manner
affected thereby. In Kentucky, Pr. Dec. 203, and New Hampshire,
6 N. H. Rep. 454, the owner of stolen goods, may immediately. pursue
his civil remedy. See, generally, Minor, 8; 1 Stew. R. 70; 15 Mass.
336; Coxe, 115; 4 Ham. 376; 4 N. Hanp. Rep. 239; 1 Miles, R. 212;
6 Rand. 223; 1 Const. R. 231; 2 Root, 90.
MERITS. This word is used principally in matters of defence.
2. A defence upon the merits, is one that rests upon the justice
of the cause, and not upon technical grounds only; there is, therefore,
a difference between a good defence, which may be technical or not,
and a defence on the merits. 5 B. & Ald. 703 1 Ashm. R. 4; 5
John. R. 536; Id. 360; 3 John. R. 245 Id. 449; 6 John. R. 131; 4
John. R. 486; 2 Cowen, R. 281; 7 Cowen, R. 514; 6 Wend. R. 511;
6 Cowen, R. 895.
MERTON, STATUTTE OF. A statute so called, because the parliament
or rather council, which enacted it, sat at Merton, in Surrey. It
was made the 20 Hen. III. A. D. 1236. See Barr. an the Stat. 41.
MESCROYANT. Used in our ancient books. An unbeliever. Vide
MESE. An ancient word used to signify house, probably from
the French maison; it is said that by this word the buildings, curtilage,
orchards and gardens will pass. Co. Litt. 56.
MESNE. The middle between two extremes, that part between
the commencement and the end, as it relates to time.
2. Hence the profits wbich a man receives between disseisin and
recovery of lands are called mesne profits. (q. v.) Process which
is issued in a suit between the original and final process, is called
mesne process. (q . v.)
3. In England, the word mesne also applies to a dignity: those
persons who hold lordships or manors of some superior wbo is called
lord paramount, and grant the same to inferior persons, are called
MESNE PROCESS. Any process issued between original and final
process; that is, between the original writ and the execution. See
MESNE PROFITS, torts, remedies. The value of the premises,
recovered in ejectment, during the time that the lessor of the plaintiff
has been illegally kept out of the possession of his estate by the
defendant; such are properly recovered by an action of trespass,
quare clausum fregit, after a recovery in ejectment. 11 Serg. &
Rawle, 55; Bac. Ab. Ejectment, H; 3 Bl. Com. 205.
2. As a general rule, the plaintiff is entitled to recover for
such time as be can prove the defendant to have been in possession,
provided he does not go back beyond six years, for in that case,
the defendant may plead the statute of limitations. 3 Yeates' R,
13; B. N. P. 88.
3. The value of improvements made by the defendant, may be set
off against a claim for mesne profits, but profits before the demise
laid, should be first deducted from the value of the improvement's.
2 W. C. C. R. 165. Vide, generally, Bac. Ab. Ejectment, H; Woodf.
L. & T. ch. 14, s. 3; 2 Sell. Pr. 140; Fonbl. Eq. Index, h.
t.; Com. L & T. Index, h. t.; 2 Phil. Ev. 208; Adams on Ej.
ch. 13; Dane's Ab. Index, h. t.; Pow. Mortg. Index, h. t.; Bouv.
Inst. Index, h. t.
MESNE, WRIT of. The name of an ancient writ, which lies
when: the lord para- mount distrains on the tenant paravail; the
latter shall have a writ of mesne against the lord who is mesne.
F. N. B. 316