Page:Black's Law Dictionary (Second Edition).djvu/792

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which was commonly used to be given by the ordinary to such condemned malefactors as were allowed the benefit of clergy; whence it is also called the "palm of mercy." Wharton.

MISERICORDIA. Lat. Mercy; a fine or amercement; an arbitrary or discretionary amercement.

—l\’Iise1-ieordia communis. In old English law. A line set on a whole county or hundred.

MISFEASANCE. A misdeed or trespass. The doing what a party ought to do improp- erlv. 1 Tim]. Pr. 4. The improper perform- ance of some act which a man may lawfully do. 3 Steph. Coinin. 460. And see Bell v. Jusselyn. 3 Gray (Mass.) 309. 63 Am. Dec. 741; Illinois Cent. R. Co. v. Foulks. 191 Ill. 57, 60 N. E. 800; Dudley v. Fleniingsburg, 115 Ky. 5, 72 S. W. 327, 60 L. R. A. 575, 103 Am. St. Rep. 258.

Misfeasance, strictly, is not doing a lawful act in a proper manner, omitting to do it as should be done; wlule l.|]€llfl3(lSfli1CeIlS the doing an act wholly wrongful; and non-feasance is an omission to perform a duty, or a total neglect of duty. But "inisEeas:ince’ is often carelessly usul in the sense of "malfeasance." Coite V. L;-nes, 33 Conn. 160.


MISFORTUNE. An adverse event, ca- lamity, or evil fortune, arising by accident. (or without the ulll or concurrence of him who suffers trom it.) and not to be foreseen or guarded against by care or prudence. See 20 Q. B. Div. 816. In its application to the law of homicide, this term niwnys involves the further idea that the person causing the denlh is not at the time engaged in any un- ia'wi'1il act. 4 Bl. Comm. 1S2.

MISJOINDER. See Jonvnna.

MISKENNING. In Saxon and old English law. An unjust or irregular summoning to court; to speak unsteadily in court; to

vary in one's plea. Cowell; Biount; Spel- man. MISLAY. To deposit in a place not aft-

eru ards recollected; to lose anything by torgetfulness of the place where it was laid. Shehane v. State, 13 Tex. App. 533.

MISLEADING. Delusive; calculated to lead astray or to lead into error. Instructions which are of such a nature as to be misundeistood by the jury, or to give them a wrong impression, are said to be “misiead- lug."

MISNOMER. Mlstalae in name: the giv-

ing an incorrect name to a person in a pleading, deed, or other instrument.

MISPLEADING. Pleading incorrectly, or omitting anything in pleading which is es-



sentiai to the support or detense of an action. is so called; as in the case of a plaluiifl' not merely stating his title in a detective manner.‘ but setting forth a title which is e defective in itself; or if. to an action of the detendant pleads "not guilty" inslfl nil dcbet. Brown. See Loiett v. Pefi. Wend. (N. Y.) 376; Chicago & A. ll. Coy. Murphy, 198 Ill. 462, 64 N. E. 1011.

MISPRISION. In criminal law. _A term used to signify eiery considerable in‘: demeanor which has not a certain nnuie @- en to it by law. 3 Inst. 36. But more yarticuiariy and properly the term denotes either (I) a contempt against the sovedzu, the government, or the courts of justice, incliiding not only contempts of court, properly so called, but also all forms of seditious or ii.» loyal conduct and leze-majesty: (2) malad- miuistration of high public office, inciufiig peculation of the public funds; (3) neglect or light account made or a crime, that is, tiillre in the duty of a citizen to ende.ivor to pre- vent the commission oil a crime. or. having knowledge 01! its commission, to reveal it to the proper authorities. See 4 Bl. Comm H9- 126.

—Misprision of felony. The offense of cocnealing a felony committed by another, but without such previous concert with or siitmpient assistance to the felon as would make the party concealing an accessory before or after the fact. 4 Stcph. Comm. 260: 4 Bl. Comm. 121: (‘orpnnter v. State, (‘-2 Ark. 286. 36 S. W, 900.- Misprision of treason. The bere knowledge and concealment of an act of treason or manablc plot. that is, without any assent or participation therein, for if the latt_er_elements he

resent the party becomes a principal. 4 BL

mum. 120; Pen. Code Cal. § 38.—Negativs mis rision. The concealment of soiuorhing \\ ' ought to be revealed: that is, nu-or prision in the third of me speeihc meaning: giicn nhove.—-Positive misprision. The corn- uiissiun of someihing nhich oiiziir not to he done; that is. misprision in the first and second of the specific meanings given above.

In practice. A clerical error or mlstnLs made by a clerk or other judicial or ministerial oliicer in writing or keeping records. See Merrill v. Miller, 28 Mont 134, 72 Pnc. 427.

MISREADING. Reading a deed or other instrument to an illiterate or blind man (who is a party to it) in a false or deceitful manner, so that he conceives ti Wrong idea of its tenor or contents. See 5 Coke. 19: 6 East. 309: Hallenbeck v. Dewitt, 2 Johns (N. Y.) -104.

MISRECITAL. The erroneous or incorrect recital of a matter of tact, either in an agreement, deed, or pleading.

IVIISRIIPRJESENTATION. An intentional fulse statement respecting a matter of

fact, made by one of the parties to it contract, which Is material to the cuniract and