MISTAKE, contracts. An error committed in relation to some matter of fact affecting the rights of one of the parties to a contract.

2. Mistakes in making a contract are distinguished¹ ordinarily into, first, mistakes as to the motive²; secondly³, mistakes as to the person, with whom the contract is made; thirdly, as to the subject matter of the contract; and, lastly, mistakes of fact and of law. See Story, Eq. Jur. 110; Bouv. Inst. Index, h. t.; Ignorance; Motive.

3. In general, courts of equity⁴ will correct and rectify⁵ all mistakes in deeds and contracts founded on good consideration. 1 Ves. 317; 2 Atk. 203; Mitf. Pl. 116; 4 Vin. Ab. 277; 13 Vin. Ab. 41; 18 E. Com. Law Reps. 14; 8 Com. Digest, 75; Madd. Ch. Prac. Index, h. t.; 1 Story on Eq. ch. 5, p. 121; Jeremy's Eq. Jurisd. B. 3, part 2, p. 358. See article Surprise.

4. As to mistakes in the names of legatees, see 1 Rop. Leg. 131; Domat, l. 4, t. 2, s. 1, n. 22. As to mistakes made in practice, and as to the propriety⁶ or impropriety of taking advantage of them, see Chitt. Pr. Index, h. t. As to mistakes of law in relation to contracts, see 23 Am. Jur. 146 to 166.

MISTRIAL. An erroneous trial on account of some defect in the persons trying, as if the jury come from the wrong county or because there was no issue formed, as if no plea be entered; or some other defect of jurisdiction⁷. 3 Cro. 284; Hob. 5; 2 M. & S. 270.

MISUSE⁸ OF PROPERTY. The unlawful use of property.

2. The misuse of personal property delivered lawfully⁹ to the defendant¹⁰, is a conversion¹¹ which will enable the owner immediately to maintain trover. 6 Shepl. 382; 8 Leigh, 565; 3 Bouv. Inst. n. 3525.

MISUSER¹². An unlawful use of a right.

2. In cases of public officers and corporations, a misuser is sufficient to cause the right to be forfeited¹³. 2 Bl. Com. 153; 5 Pick. R. 163.

MITIGATION. To make less rigorous or penal¹⁴.

2. Crimes are frequently committed under circumstances which are not justifiable¹⁵ nor excusable, yet they show that the offender¹⁶ has been greatly tempted¹⁷; as, for example, when a starving man steals bread to satisfy his hunger, this circumstance is taken into consideration in mitigation of his sentence.

3. In actions for damages, or for torts, matters are frequently proved in mitigation of damages. In an action for criminal conversation with the plaintiff's wife, for example, evidence may be given of the wife's general bad character for want of chastity; or of particular acts of adultery committed by her, before she became acquainted with the defendant; 12 Mod. R. 232; Bull. N. P. 27, 296; Selw. N. P. 25; 1 Johns. Cas, 16: or that the plaintiff has carried on a criminal conversation with other women; Bull. N. P. 27; or that the plaintiff's wife has made the first advances to the defendant, 2 Esp. N. P. C. 562; Selw. N. P. 25. See 3 Am. Jur. 287, 313; Bouv. Inst. Index, h. t.

4. In actions for libel, although the defendant cannot under the general issue prove the crime, which is imputed¹⁸ to the plaintiff, yet he is in many cases allowed to give evidence of the plaintiff's general character in mitigation of damages. 2 Campb. R. 251; 1 M. & S. 284.