Blacks Law Dict. 1st ed

MITIGATION

780

MISRECITAL

MISTAKE. Some unintentional act, omission, or error arising from ignorance, sur prise, imposition, or misplaced confidence. Code Ga. § 3117; 1 Story, Eq. Jur. § 110. That result of ignorance of law or fact which has misled a person to commit that which, if he had not been in error, he would not have done. Jeremy, Eq. Jur. 358. A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetful ness, imposition, or misplaced confidence. Bisph. Eq. § 185. Mistake of fact is a mistake not caused by th» neglect of a legal duty on the part of the person making the mistake, and consisting in (1) an un conscious ignorance or forgetfulness of a fact, past or present, material to the contract; or (2) belief in the present existence of a thing material to the contract which does not exist, or in the past ex istence of such a thing which has not existed. Civil Code Cal. $ 1577. A mistake of law happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference, arising from an imperfect or incorrect exercise of the judgment, upon facts as they really are; and, like a correct opinion, which is law, necessarily presupposes that the person forming it is in full possession of them. The facts precede the law, and the true and false opinion alike imply an acquaintance with them. Neither can exist without it. The one is the result of a correct application to them of legal principles, which every man is presumed to know, and i» called "law;" the other, the result of a faulty ap plication, and is called a "mistake of law." 13 Wis. 124. Mutual mistake is where the parties have » common intention, but it is induced by a common or mutual mistake. MISTERY. A trade or calling. Cowell. MISTRESS. The proper style of the wife of an esquire or a gentleman in England. MISTRIAL. An erroneous, invalid, or nugatory trial; a trial of an action which can not stand in law because of want of jurisdic tion, or a wrong drawing of jurors, or disre gard of some other fundamental requisite. MISUSER. Abuse of an office or fran chise. 2 Bl. Comm. 153. MITIGATION. Alleviation; abatement or diminution of a penalty or punishment im posed by law. "Mitigating circumstances" are such as do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be con

idea of its tenor or contents. See 5 Coke, 19; 6 East, 309; 2 Johns. 404. MISRECITAL. The erroneous or incor rect recital of a matter of fact, either in an agreement, deed, or pleading. MISREPRESENTATION. An inten tional false statement respecting a mat ter of fact, made by one of the parties to a contract, which is material to the con tract and influential in producing it. 29 N. J. Eq. 262. False or fraudulent misrepresentation is a representation contrary to the fact, made by a person with a knowledge of its falsehood, and being the cause of the other party's en tering into the contract. 6 Clark & F. 232. Negligent misrepresentation is a false rep resentation made by a person who has no reasonable grounds for believing it to be true, though he does not know that it is untrue, or even believes it to be true. L. B.4H.L 79. Innocent misrepresentation is where the person making the representation had rea sonable grounds for believing it to be true. L. R. 2 Q. B. 580. MISSA. The mass. MISS.E3 PRESBYTER. A priest in or ders. Blount. MISSAL. The mass-book. MISSILIA. In Roman law. Gifts or lib eralities, which the praetors and consuls were in the habit of throwing among the people. Inst. 2, 1, 45. MISSING SHIP. In maritime law. A vessel is so called when, computed from her known day of sailing, the time that has elapsed exceeds the average duration of simi lar voyages at the same season of the year. 2 Duer, Ins. 469. MISSIO. Lat. In the civil law. A send ing or putting. Missio in bona, a putting the creditor in possession of the debtor's prop erty. Mackeld. Rom. Law, § 521. Missio judicum in consilium, a sending out of the judices (or jury) to make up their sentence. Hallifax, Civil Law, b. 3, c. 13, no. 31. MISSIVES. In Scotch law. Writings passed between parties as evidence of a trans action. Bell. MISSTAICUS. In old records. A mes- •enger.

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