英文法律词典 M-136

MISCASTING. By this term is not understood any pretended miscasting or mis- valuing, but simply an error in auditing¹ and numbering. 4 Bouv. Inst. n. 4128.

MISCOGNlSANT. This word, which is but little used, signifies ignorant or not knowing. Stat. 32 H. VIII. c. 9.

MISCONDUCT. Unlawful behaviour by a person entrusted² in any degree: with the administration of justice, by which the rights of the parties and the justice of the, case may have been affected³.

2. A verdict will be set aside when any of the jury have been guilty of such misconduct, and a court will set aside an award, if it has been obtained by the misconduct of an arbitrator. 2 Atk. 501, 504; 2 Chit. R. 44; 1 Salk. 71; 3 P. Wms. 362; 1 Dick. 66.

MISCONTINUANCE, practice. By this term is understood a continuance of a suit by undue⁴ process. Its effect is the same as a discontinuance. (q. v.) 2 Hawk⁵. 299; Kitch. 231; Jenk. Cent. 57.

MISDEMEANOR, crim. law. This term is used to express every offence infe- rior to felony, punishable by indictment⁶, or by particular prescribed proceedings⁷; in its usual acceptation, it is applied⁸ to all those crimes and offences for which the law has not provided a particular name; this word is generally used in contradistinction to felony; misdemeanors comprehending all indictable offences, which do not amount to felony, as perjury⁹, battery, libels, conspiracies¹⁰ and public nuisances.

2. Misdemeanors have sometimes been called misprisions. (q. v.) Burn's Just. tit. Misdemeanor; 4 Bl. Com. 5, n. 2; 2 Bar. & Adolph. 75: 1 Russell, 43; 1 Chitty, Pr. 14; 3 Verm. 347; 2 Hill, S. C. 674; Addis. 21; 3 Pick. 26; 1 Greenl. 226; 2 P. A. Browne, 249; 9 Pick. 1; 1 S. & R. 342; 6 Call. 245; 4 Wend. 229; 2 Stew¹¹. & Port. 379. And see 4 Wend. 229, 265; 12 Pick. 496; 3 Mass. 254; 5 Mass. 106. See Offence.

MISDIRECTION, practice. An error made by a judge in charging the jury in a special case.

2. Such misdirection is either in relation to matters of law or matters of fact.

3. - 1. When the judge at the trial misdirects the jury, on matters of law, material to the issue, whatever may be the nature of the case, the verdict will be set aside, and a new trial granted; 6 Mod. 242; 2 Salk. 649; 2 Wils. 269; or if such misdirection appear in the bill of exceptions or otherwise upon the record, a judgment¹² founded on a verdict thus obtained, will be reversed. When the issue consists of a mixed question of law and fact and there is a conceded state of facts, the rest is a question for the court; 2 Wend. R. 596; and a misdirection in this respect will avoid the verdict.

4. - 2. Misdirection as to matters of fact will in some cases be sufficient to vitiate the proceedings. If, for example, the judge should undertake to dictate¹³ to the jury. When the, judge delivers, his opinion to the jury on a matter of fact, it should be delivered as mere¹⁴ opinion, and not as direc- tion. 12 John. R. 513. But the judge is in general allowed to very liberal discretion¹⁵ in charging a jury on matters of fact. 1 McCl. & Y. 286.

5. As to its effects, misdirection must be calculated to do injustice¹⁶; for if justice has been done, and a new trial would produce the same result, a new trial will not be granted on that account, 2 Salk. 644, 646; 2 T. R. 4; 1 B. & P. 338; 5 Mass. R. 1; 7 Greenl. R. 442; 2 Pick. R. 310; 4 Day's R. 42; 5 Day's R. 329; 3 John. R. 528; 2 Penna. R. 325.