MERGER. The absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist but the greater is not increased.
In 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. For 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 inherit ance, 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 Blackstone, Comm. 177 ; Latch, 153 ; Poph. 166 ; 6 Madd. Ch. 119 ; 1 Johns. Ch. N. Y. 417 ; 3 id. 53 ; 3 Mass. 172.
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. Preston, Cony. 7 ; Washburn, Real Prop. As a general rule, equal estates will not merge in each other. The merger is produced either from the meeting of an estate of higher degree with an estate of inferior degree, or froim the meeting of the particular estate and the im mediate reversion in the same person. 4 Kent, Comm. 98. See Washburn, Real Prop. Index ; 3 Preston, Cony. ; 15 Viner, Abr. 361; 10 Vt. 293 ; 8 Watts, Penn. 146.
In Criminal Law. When a man commits a great crime which includes a lesser, the lat ter is merged in the former.
3. Murder, when committed by blows, ne cessarily includes an assault and battery ; a battery, an assault ; a burglary, when accom panied with a felonious taking of personal property, a larceny : in all these and similar cases, the lesser crime is merged in the greater.
But when one offence is of the same cha racter with the other, there is no merger : as, in the case of a conspiracy to commit a mis demeanor, and the subsequent commission of the misdemeanor in pursuance of the con spiracy ; the two crimes being of equal de gree, there can be no legal merger. 4 Wend.
N. Y. 265.
Of Rights. Rights are said to be merged when the same person who is bound to pay is also entitled to receive. This is more pro perly called a confusion of rights, or extin guishment.
4. When there is a confusion of rights, and the debtor and creditor become the same person, there can be no right to put in execu tion ; but there is an immediate merger. 2 Ves. Ch. 264. Example : a man becomes in debted 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.
In 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 con viction.
5. The old rule, 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 ; Styles, 346 ; 1 Mod. 282 ; 1 Hale, Pl. Cr. 546, or acquittal. 12 East, 409 ; 1 Tayl. No. C. 58 ; 2 Hay w. No. C. 108. If the civil action be commenced before, the plaintiff will be nonsuited. Yelv. 90 a, n. See Hammond, Nisi P. 63 ; Kel. 48 Cas. temp. Hardw. 350 ; Lofft, 88 ; 2 Term, 750 ; 3 Me. 458. Butler, J., says this doctrine is not extended beyond actions of trespass or tort. 4 Term, 333. See, also, 1 H. Blackst. 583, 588, 594 ; 15 Mass. 78, 336 ; 1 Gray, Mass. 83, 100.
6. The Revised Statutes of New York, pt. 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 Ken tucky, Pr. Dec. 203, New Hampshire, 6 N. H. 454, and MassaChusetts, 1 Gray, Mass. 83, 100, the owner of stolen goods may imme diately pursue his civil remedy. See, gene rally, 1 Ala. 8 ; 2 id. 70 ; 15 Mass. 336 ; 1 Gray, Masa. 83, 100 ; 1 Coxe, N. J. 115 ; 4 Ohio, 376 ; 4 N. H. 239 ; 1 Miles, Penn. 312; 6 Rand. Va. 223 ; 1 Const. So. C. 231 ; 2 Root, Conn. 90.