MISE, English law. In a writ1 of right which is intended to be tried by the grand assize, the general issue is called the mise. Lawes, Civ. Pl. 111; 7 Cowen, 51. This word also signifies expenses, and it is so commonly used in the entries of judgments3 in personal actions; as when the plaintiff recovers, the judgment2 is quod recuperet damna sua for such value, and pro4 mises et custagiis for costs and charges for so much, &c.
MISERABILE DEPOSITUM, civ. law. The name of an involuntary deposit, made under pressing necessity; as, for instance, shipwreck5, fire, or other inevitable6 calamity7. Poth. Proced. Civ. 5eme part., ch. 1, 1 Louis. Code, 2935.
MISERICORDIA, mercy. An arbitrary or discretionary amercement.
2. To be in mercy, is to be liable to such punishment as the judge may in his discretion8 inflict9. According to Spelman, misericordia is so called, because the party is in mercy, and to distinguish this fine from redemptions, or heavy fines. Spelm. GI. ad voc.; see Co. Litt. 126 b, and Madox's Excheq. c. 14. See Judgment of Misericordia.
MISFEASANCE, torts, contracts. The performance of an act which might lawfully10 be done, in an improper11 manner, by which another person receives an injury. It differs from malfeasance, (q. v.) or, nonfeasance (q. v.) Vide, generally, 2 Vin. Ab. 35; 2 Kent, Com. 443; Doct. Pl. 62; Story, Bail12. 9.
2. It seems to be settled that there is a distinction between misfeasance and nonfeasance in the case of mandates13. In cases of nonfeasance, the mandatary is not generally liable, because his undertaking14 being gratuitous15, there is no consideration to support it; but in cases of misfeasance, the common law gives a remedy for the injury done, and to the extent of that injury. 5 T. R. 143; 4 John. Rep. 84; Story, Bailment16, 165; 2 Ld. Raym. 909, 919, 920; 2 Johns. Cas. 92; Doct. & Stu. 210; 1 Esp. R. 74; 1 Russ. Cr. 140; Bouv. Inst. Index h. t.
MISJOINDER, pleading. Misjoinder of causes of action, or counts, consists in joining, in different counts in one declaration, several demands, which the law does not permit to be joined, to enforce several distinct, substantive17 rights of recovery; as, where a declaration joins a count in trespass18 with another in case, for distinct wrongs or a count in tort, with another in contract. Gould. 6n PI. c. 4, 98; Archb. Civ. PI. 61, 78 176; Serg. and Rawle, 358; Dane's Ab. Index, h. t.
2. Misjoinder of parties, consists in joining as plaintiffs or defendants20, persons, who have not a joint21 interest. When the misjoinder relates to the plaintiffs, the defendants may, at common law, plead the matter in abatement22, whether the action be real; 12 H. IV., 15; personal; Johns. Ch. R. 350, 438; 12 John. R. 1; 2 Mass. R. 293; or mixed; or it will be good cause of nonsuit at the trial. 3 Bos. & Pull. 235. Where the objection appears upon the face of the declaration, the defendant19 may demur23 generally; 2 Saund. 145; or move in arrest of judgment; or bring a writ of error.
3. When in actions ex contractu against several, there is a misjoinder of the defendants, as if there be too many persons made defendants, and the objection appears on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error; and, if the objection do not appear on the pleadings, the plaintiff may be nonsuited upon the trial, if he fail in proving a joint contract. 5 Johns. R. 280; 2 Johns. R. 213; 11 Johns. R. 101; 5 Mass. R. 270.
4. In actions ex delicto, the misjoinder cannot in general be objected to, because in actions for torts, one defendant may be found guilty and the others acquitted24. Archb. Civ. Pl. 79. As to the cases in which a misjoinder may be aided by a nolle prosequi, see 2 Archb. Pr. 218-220.
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