KFLCC Kingdom Law 2nd Ed.

MISREPRESENTATION

785

MITIOR SENSUS

Influential in producing it Wise v. Fuller, 29 N. J. Eq. 262. False or fraudulent misrepresention 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 E. 4 H. 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. Lat The mass. MISSiE PRESBYTER. A priest in or ders. Blount MISSAL. The mass-book. MISSIIiIA. 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 judicium 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 transaction. Bell. MISSTAICUS. In old records. A mes senger. 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, forgetfulness, imposition, or misplaced confidence. Bisph. Eq. S 185. And see Allen v. Elder, 76 Ga. 677, BL.LAW DICT.(2D ED.)—50

2 Am. St Rep. 63; Russell v. Colyar, 4 Heisk. (Tenn.) 154; Peasley v. McFadden, 68 Cal. 611, 10 Pac. 179; Cummins v. Bulgin, 37 N. J. Eq. 476; Chicago, etc., R. Co. v. Hay, 119 111. 493, 10 N. E. 29; McLoney v. Edgar, 7 Pa. Co. Ct R. 29. Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in (1) an unconscious 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 existence of such a thing which has not existed. Civ. Code Cal. § 1577. A mistake of law happens when a party, hav ing full knowledge of the facts, comes to an er roneous conclusion as to their legal effect. It is a mistaken opinion or inference, arising from an imperfect or incorrect exercise of the judg ment, upon facts as they really are; and, like a correct opinion, which is law, necessarily pre supposes 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 is called "law;" the other, the result of a faulty applica tion, and is called a "mistake of law." Hurd v. Hall, 12 Wis. 124. Mutual mistake is where the parties have a common intention, but it is induced by a com mon or mutual mistake. MISTERT. 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 cannot stand in law because of want of juris diction, or a wrong drawing of jurors, or dis regard 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 sidered as extenuating or reducing the degree of moral culpability. See Heaton v. Wright, 10 How. Prac. (N. Y.) 82; Wandell v. Ed wards, 25 Hun (N. Y.) 500; Hess v. New York Press Co., 26 App. Div. 73, 49 N. Y. Supp. 894. —Mitigation of damages. A reduction of the amount of damages, not by proof of facts which are a bar to a part of the plaintiffs cause of action, or a justification, nor yet of facts which constitute a cause of action in favor of the defendant, but rather facts which show that the plaintiff's conceded cause of action does not entitle him to so large an amount as the show ing on his side would otherwise justify the jury in allowing him. 1 Suth. Dam. 226. MITIOR SENSUS. Lat The more fa vorable acceptation.