The defendant is appellant from a judgment which condemns her to transfer two certain lots to the plaintiff or to pay the value thereof, on receiving a re-conveyance of two others.

The parties entered into a contract, by which the plaintiff transferred to the defendant a lot in the Third Municipality of the city of New Orleans, in exchange for five others in the toWn of Baton Rouge, transferred to him by the defendant. The plaintiff charges that the defendant fraudulently deceived him and the notary, in giving the description of two of the lots contracted for.

The court was of opinion, that the evidence shows that the plaintiff contracted for, and was induced to believe he had acquired a title to two lots other than two of those which were transferred to him; and concluded that, his error falling on the substance of the thing, he was entitled to relief

The error of the plaintiff might induce the court to declare that he did not enter into any contract. Non videtur qui errat consentiré. It could not authorize the court to substitute another contract to that which the parties had made. A close examination of the evidence has left us under the impression * that nothing sustained the charge of fraud against the defendant. The person on whose description the notary and the plaintiff acted in the confection of the deed, does not appear to have been authorized to represent the defendant. Neither can we concur in the opinion of the judge, that there was error on the part of the plaintiff This appears to us doubtful; and justice seems to demand that he should be afforded the opportunity of adducing further proof.

It is, therefore, ordered that the judgment be annulled and reversed, and the case remanded for a new trial; the plaintiff and appellee paying the costs of the appeal.