the time summons is served on him. Heckman v. L. & N. R. Co., 85 Ky. 631, 9 R. 297.

Misnomer of the corporation by omitting "and company," not fatal; but the bond recoverable upon by averring it was executed to the corporation. Pendleton v. Bank of Ky., 1 Mon. 175.

A corporation, when sued upon a contract giving it a wrong name, must by answer or plea in abatement set forth the misnomer, so that plaintiff may amend if desired; but where such plea was not made in the trial court and there was a defense on the merits, the corporation cannot complain on appeal that judgment went against it in the name by which it was sued, which was its true name. Studebaker Corp. of America v. Dodds & Runge, 161 Ky. 542, 171 S. W. 167.

MISPRISION.-See CLERICAL MISPRISION.

MISREPRESENTATIONS.—A misrepresentation constitutes fraud relievable in equity only when: (a) it is untrue; (b) the party making it knew, or should have known, it to be untrue, and it was made by him to induce the other party to act, or omit to act; (c) it induced the other party to act, or omit to act; and (d) it is a material fact. Taylor v. Mullins, 151 Ky. 597, 152 S. W. 774.

Misrepresentations which will render a contract fraudulent, includes only misrepresentations or suppressions of the truth in relation to the contract which is the subject of the litigation; the court will not go outside of the case for the purpose of examining the conduct of the parties in other matters, or question their general character for fair dealing. HamburgBremen Fire Ins. Co. v. Ohio Valley Dry Goods Co.'s Trustee, 160 Ky. 252, 169 S. W. 724.

"All statements or descriptions in any application for a policy of insurance shall be deemed and held representations and not warranties; nor shall any misrepresentations, unless material or fraudulent, prevent a recovery on the policy." Ky. Stats., Sec. 639.

Under Ky. Stats., Sec. 639, it is the duty of the employer to take reasonable precautions to ascertain the facts stated.

by it in the application; and if, after doing so, he makes answers which he believes are correct, this is all that is required of him, the word "misrepresentations" in the statute referring in such case to statements known to be untrue. Fidelity & Guar. Co. v. Western Bank, 94 S. W. 3, 29 R. 639. See, also, REPRESENTATIONS MATERIAL MISREPRESENTATIONS.

MISTAKE. See, also, MUTUAL MISTAKE.

"The rule is that an act done or contract made under a mistake of a material fact is voidable and relievable in equity; but it is essential that the fact must be material to the act or contract, and an efficient cause for its execution, and such as the party could not by reasonable diligence obtain knowledge of it. 1 Story Equity, 148. It is also a well recognized rule of equity where the means of information are open to both parties, and where each is presumed to exercise his own diligence and judgment in regard to all extraneous circumstances, a court of equity will not interfere; or where the fact is equally well known to both parties, and each has equal or adequate means of information, or where the fact is doubtful from its own nature, the parties have acted in entirely good faith, no relief will be granted." Western German Savings Bank v. Farmers and Drovers Bank, 73 Ky. 674. Story Equity, 156; Ker on Fraud and Mistake.

Elaborate and interesting discussion of the doctrine in question will be found in the opinions in the following cases: Hill v. Pettit, 66 S. W. 188, 23 R. 2001; Coleman, etc. v. Ill. Life Ins. Co., 82 S. W. 616, 26 R. 900; Bevins v. J. A. Coaks & Son, 96 S. W. 585, 29 R. 978; East Jellico Coal Co. v. Carter, 97 S. W. 769, 30 R. 174; Crabtree v. Sisk, 99 S. W. 268, 30 R. 572; Duff & Oney v. Rose, 149 Ky. 482, 149 S. W. 884.

In order to entitle a person to recover money paid under a mistake of fact the mistake must be mutual, and must be concerning some existing fact which is material to the transaction. The fact must be such that it animated and controlled the conduct of the parties; it must go to the essence of the object in view and not be merely incidental, and the court must be satisfied that but for the mistake the obligation from which

the relief is sought would never have been assumed. Tucker v. Denton, 106 S. W. 280, 32 R. 521.

A general allegation that "the note was inadvertently or through mistake, written and signed for $300," without stating that he did not read it, or that he signed it believing it to be otherwise worded, is insufficient. Turpin v. Marksberry, 3 J. J. M. 626. There must be an allegation of fraud or mistake. Higgins v. Conner, 3 Dana, 2.

Equity will not grant relief in cases of alleged mistake except upon very clear evidence; and where the fact of mistake is denied, evidence to overcome the denial must be of the most persuasive character. Ashmore v. Hannen, 157 Ky. 437, 163 S. W. 222.

To justify the reformation of an instrument on the ground of mistake, the evidence must be clear and the proof satisfactory that a mistake has been made. Graves v. Mattingly, 69 Ky. 361; Crabtree's Admr. v. Sisk, 99 S. W. 268, 30 R. 572; Rockport Coal Co. v. Carter, 157 Ky. 555, 163 S. W. 734.

Money paid under a material mistake of fact may be recov ered back, although there was negligence on the part of the person making the payment, unless the position of the person to whom the payment was made has been so changed in consequence of the payment that he can not be placed in statu quo. First Natl. Bank of Chattanooga v. Behan, 91 Ky. 560, 13 R. 148, 12 R. 95.

Money paid without consideration under mistake of law or fact, and not owing in law or conscience nor the result of compromise, may be recovered back. Interest paid on a judgment which did not carry interest was allowed to be recovered. McMurtry v. Ky. C. R. Co., 84 Ky. 462, 8 R. 455.

Where the legal rights of the parties have been changed by mistake, equity restores them to their former condition, when it can be done without interfering with any rights acquired on the faith and strength of the altered condition, and without doing injustice to other parties. Farmers and Drovers Ins. Co. v. German Ins. Co., 79 Ky. 598, 3 R. 432.

Mistakes can furnish no ground of relief to the party by whose fault it occurs. Brown v. Geiger, 3 R. 239.

A mistake on one side is ground for relief when such mistake is caused by fraud of the other party. Germer v. Gambill, 140 Ky. 469, 131 S. W. 268.

Equity only has jurisdiction to correct mistakes when they are apparent on the face of the will. Parol evidence or evidence dehors the will is not admissible to vary or control the terms of the will, although it is admissible to remove a latent ambiguity. Jackson v. Payne, 2 Met. 567.

Party not allowed to avail himself of a mistake in the writ ing and thereby to have the benefit of a contract which never was made or intended. Davis v. Phelps, 7 Mon. 635.

When by mistake, oversight, or fraud the deed or written memorial does not conform to the real contract of the parties, the chancellor can reform it on satisfactory parol evidence and then enforce a specific performance according to the real contract. Worley v. Tuggle, 4 Bush, 170.

To authorize the chancellor to annul or modify the terms of a conveyance or other written instrument on the ground of mistake as to its contents or legal effect when executed, such mistake must be established, and must not be a mere inference from the weight of evidence. Mattingly v. Speak, 4 Bush, 316. Where land not sold is conveyed by mistake, and vendor has no title to that part, it will furnish vendee no ground for rescission of the contract. Butler v. Miller, 15 B. M. 626.

Where money has been paid through a clear and palpable mistake of law or fact essentially bearing upon or affecting the contract, without consideration, which was not due, and in honor and conscience ought not to be retained, it may be recovered back. Ashbrook v. Watkins, 3 Mon. 82; Jones v. Murray, 3 Mon. 86; Underwood v. Brockman, 4 Dana, 309; Ray v. Bank Ky., 3 B. M. 514; Gratz v. Redd, 4 B. M. 190; Louisville v. Zanone, 1 Met. 153; Covington v. Powell, 2 Met. 228; Louisville v. Hemming, 1 Bush, 383.

Where the means of information are open to both parties, and each is presumed to exercise his own diligence and judgment in regard to all extrinsic circumstances, a court of equity will not interfere; or where the fact is equally unknown to both parties, and each has equal or adequate means for information,

or when the fact is doubtful from its own nature, the parties having acted in entire good faith, no relief will be granted. Western G. S. Bank v. F. & D. Bank, 10 Bush, 674.

An act done or a contract made under a mistake of a material fact is voidable, and relievable in equity; but it is essential that the fact must be material to the act or contract, and an efficient cause for its execution, and such as the party could not by reasonable diligence obtain knowledge of. Western G. S. Bank v. F. & D. Bank, 10 Bush, 674.

Mistake or ignorance of facts in parties is a proper subject of relief only when it constitutes a material ingredient in the contract of the parties and disappoints their intention by a material error, or when it is inconsistent with good faith and proceeds from a violation of the obligations which are imposed by law upon the conscience of either party. Graves v. Mattingly, 6 Bush, 365.

"It is a peculiar province of courts of equity to correct or to relieve against mistake, but such relief will not be granted to the party who caused the mistake, when to correct it would. shift the loss upon another." Columbia Malting Co. v. Glenmore Distilleries Co., 150 Ky. 229, 150 S. W. 53.

Where relief is sought on account of mistake, the mistake must be established by proof that it was mutual, and must be shown to the satisfaction of the court. Sanders v. Wilson, 6 Ky. Opin. 572.

Where a stenographer's report of evidence is relied on in a prosecution for false swearing, evidence that a stenographer in making notes sometimes makes mistakes is not admissible. Milstead v. Com., 51 S. W. 451, 21 R. 358.

Whether or not a mistake was made is a question of fact for the jury. Continental Ins. Co. v. Randolph, 2 R. 313.

MISUSER. Where a lighting company had a franchise to furnish a city and its inhabitants with gas, and was not to furnish gas to persons outside of the city, the franchise will not be forfeited for misuser upon the general and vague allega tion that the corporation has been furnishing gas to unnamed persons residing outside of the city, without specifying any