By the Court.
Benning, J.delivering the opinion.
The Court below held that there was equity in the bilk - Was that decision right ?
The bill puts its claim for relief on two grounds: 1. A mistake existing between Carter and Kerr Doyce. 2. A misrepresentation made by Kerr Boyce to Carter.
. As to the first ground: The mistake consists in the sale by Carter to Ker Boyce of lot 156, when some other lot was intended.
This is a mistake of which neither Carter nor his assignee Can require the correction, except on the terms of tendering to Boyce’s executors that other lot, or at least that lot’s equivalent. Nothing could be a correction of that mistake, except a conveyance of that lot or that lot’s equivalent, by Carter or his assignee, to Boyce’s representative, and a re-conveyance of lot 156 by Boyce’s representative to Carter or to Carter’s assignee.
[1.] The bill makes no such tender. The sum of f300 tendered, is the price paid by Watson to Carter for lot 156.. The bill does not say that $300 is an equivalent for that other lot — that lot to which, if there was the mistake, Boyce was-. *521entitled, with respect to that lot, the bill makes no tender of any kind.
This one of the grounds, then, gives no. support to the claim of the bill. And support from this ground, is indispensable to the claim of the bill.
As to the second ground: The misrepresentation made by Noyce to Carter consisted in this: that Carter having sold to Noyce, a large number of lots of land, and not having kept a list of them, wrote to Boyce to know whether lot No. 156 was among the number, and Boyce, by inadvertence, replied that it wras not, when in fact it was.
The bill does not allege that Carter, in selling lot 156 to Watson, acted on this misrepresentation, or that Watson, in buying the lot from Carter, acted on the misrepresentation. Indeed, the bill, by the amendment made to it, shows that neither Carter nor Watson could have acted in the affair on the misrepresentation, for it shows that the misrepresentation was not made until after the sale of the lot by Carter to Watson. The bill shows the sale to have been made on the 18th of November, 1851; the letter containing the misrepresentation to have borne date on the 19th of February, 1852.
[2.] Now a misrepresentation that is not acted on, cannot, be the ground for a suit in Equity. (1 Story JEq. §191.)
I am not, myself, prepared to admit that even a misrepresentation which has been acted on, is a ground for a suit in Equity, if the misrepresentation be made by mere inadvertence, and be attended by no gain to the party making it.
We think, therefore, that there was no equity in the bill, and consequently, that the Court below erred in not sustaining the demurrer. . ‘