dissenting.
I am of opinion that the plaintiff cannot recover. It seems to me it should have been charged in the declaration, that the defendant fraudulently made the representations. The declaration says the representations were false and fraudulent, but doea not say they were so made.
It appears to me that the mistake existing in the case, is only a mistake of innocence ; it is mutual, the means of correct knowledge were equally open to the plaintiff as well as the defendant. The plaintiff should have assured himself how the lines would run. Before he can have any equity, he should offer to rescind the contract. The land he has may be more valuable than the land he did not get; he ought not to keep the land he got by mistake,’ and get the value of the land he supposed he was to get.