KFLCC Kingdom Law 2nd Ed.

MISERICORDIA

784

MISREPRESENTATION

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 "psalm of mercy." Whar ton. MISERICORDIA. Lat Mercy; a fine or amerciament; an arbitrary or discretion ary amercement —Misericordia communis. In old English law. A fine set on a whole county or hundred. MISFEASANCE. A misdeed or trespass. The doing what a party ought to do improp erly. 1 Tidd, Pr. 4. The improper perform ance of some act which a man may lawfully do. 3 Steph. Comm. 460. And see Bell v. Josselyn, 3 Gray (Mass.) 309, 63 Am. Dec. 741; Illinois Cent. R. Co. v. Foulks, 191 111. 57, 60 N. E. 890; Dudley v. Flemingsburg, 115 Ky~ 5, 72 S. W. 327, 60 L. R. A. 575, 103 Am. St. Rep. 253. Misfeasance, strictly, is not doing a lawful act in a proper manner, omitting to do it as it should be done; while malfeasance is the doing an act wholly wrongful; and non-feasance is an omission to perform a duty, or a total neglect of duty. But "misfeasance is often carelessly used in the sense of "malfeasance." Coite v. Lynes, 33 Conn. 109. See MISFEASANCE. MISFORTUNE. An adverse event, ca lamity, or evil fortune, arising by accident, (or without the will or concurrence of him who suffers from 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 always involves the further idea that the person causing the death is not at the time engaged in any un lawful act. 4 Bl. Comm. 182. See JOIN DEB. MISKENNING. In Saxon and old Eng lish law. An unjust or irregular summoning to court; to speak unsteadily in court; to vary in one's plea. Cowell; Blount; Spel man. MISLAY. To deposit in a place not aft erwards recollected; to lose anything by for getfulness of the place where it was laid. Shehane v. State, 13 Tex. App. 535. MISLEADING. Delusive; calculated to lead astray or to lead into error. Instruc tions which are of such a nature as to be misunderstood by the jury, or to give them a wrong impression, are said to be "mislead ing." MISNOMER. Mistake in name; the giv ing an incorrect name to a person in a plead ing, deed, or other instrument. MISPLEADING. Pleading incorrectly, or omitting anything in pleading which is es MISFEAZANCE. MISJOINDER.

sential to the support or defense of an action, is so called; 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 pleads "not guilty" instead of nil debet. Brown. See Lovett v. Pell, 22 Wend. (N. Y.) 376; Chicago & A. R. Co. v. Murphy, 198 111. 462, 64 N. BL 1011. MISPRISION. In criminal law. A term used to signify every considerable mis demeanor which has not a certain name giv en to it by law. 3 Inst. 36. But more par ticularly and properly the term denotes ei ther (1) a contempt against the sovereign, the government, or the courts of justice, includ ing not only contempts of <*court, properly so called, but also all forms of seditious or dis loyal conduct and leze-majesty; (2) malad ministration of high public office, including peculation of the public funds; (3) neglect or light account made of a crime, that is, failure in the duty of a citizen to endeavor to pre vent the commission of a crime, or, having knowledge of its commission, to reveal it to the proper authorities. See 4 Bl. Comm. 119 126. —Misprision of felony. The offense of con cealing a felony committed by another, but with out such previous concert with or subsequent assistance to the felon as would make the party concealing an accessory before or after the fact. 4 Steph. Comm. 260; 4 Bl. Comm. 121; Car penter v. State, 62 Ark. 286, 36 S. W. 900.— Misprision of treason. The bare knowledge and concealment of an act of treason or treason able plot, that is, without any assent or par ticipation therein, for if the latter elements be present the party becomes a principal. 4 Bl. Comm. 120; Pen. Code Cal. § 38.— Negative misprision. The concealment of something which ought to be revealed; that is, mis prision in the third of the specific meanings given above.—Positive misprision. The com mission of something which ought not to be done; that is, misprision in the first and second of the specific meanings given above. In practice. A clerical error or mistake made by a clerk or other judicial or minis terial officer in writing or keeping records. See Merrill v. Miller, 28 Mont 134, 72 Pac 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 man ner, so that he conceives a wrong idea of ita tenor or contents. See 5 Coke, 19; 6 East, 309; Hallenbeck v. Dewitt, 2 Johns. (N. Y.) 404. MISRECITAL. The erroneous or incor rect recital of a matter of fact, either in an agreement, deed, or pleading. An inten tional false statement respecting a matter of fact, made by one of the parties to a con tract, which is material to the contract and MISREPRESENTATION.