This is the contract which the bill seeks to set aside; it alleges that the appellee was induced to make it by various representations and declarations of the appellant, especially those contained in certain letters, particularly referred to in the bill, written by the appellant to Nathaniel and Charles H. Richards, which the bill charges to have been false, fraudulent and deceptive, and made for the purpose of deluding and deceiving the appellee and other persons, and inducing them to purchase at an exorbitant and unconscionable price; and by specimens of washings of said gold mine, which were exhibited to the appellee as fair specimens and samples of the Goochland mine, which the bill charges were not fair samples; and that the appellant knew that they were not fair samples, and that he caused them to be exhibited to the appellees as fair specimens and samples of said mine, for the express purpose of defrauding him, by inducing him to purchase a part of his interest in said mine, upon the faith of said specimens, as well as the false, fraudulent, and deceptive representations. The bill further charges that one of the letters of the appellant to Nathaniel Richards, dated January 21st, 1833, containing a description of the Goochland mine, was read to him, and the specimen exhibited to him, at the express request of the appellant, by Nathaniel Richards, in the month of June, 1833, a short time before his pur

chase.

It further charges that the appellant had represented to the appellee that he was well skilled in the business of mining, having been employed in that business in South America; that he understood the directions of veins in a mine, and the cost and expense of extracting gold from the foreign materials, by which it is surrounded, and in which gold is most usually found. That the Virginia Mining Company, relying upon the fitness of the appellant for the business aforesaid, and his skill in the principles and process of mining, employed him as their agent; and that during the whole time of the negotiations and representations concerning the Goochland mine he was the agent of the Virginia Mining Company. That the appellee never was at the Goochland gold mine, nor did he ever visit the tract of land in which it was represented by the appellant to be situated; but that in the months of June and July, 1833, believing the appellant to be a man of strict honor, honesty, truth, and veracity, he reposed the most 32] implicit faith in his declarations with regard to said gold mine, and relied exclusively upon his representations, especially his letter of the 21st January, 1833, to Nathaniel Richards, and his several letters to Charles H. Richards, as containing accurate, fair, and correct descriptions of the Goochland mine.

The bill then proceeds to charge certain spe

1st. That there are not, and never have been, any veins of gold whatever in the Goochland mine, and that that fact was well known to Smith at the time when he wrote the letters and made the representations before stated; and that neither one hundred, nor any other number of feet, on a vein in said mine, was or were, at the date of the letter from the appellant to Nathaniel Richards, or at any other time, opened or developed.

2d. That so far from there being rich veins of gold in the mine, as the appellant in the last mentioned letter (that is, as we understand it, of the 21st of January, 1833, to Nathaniel Richards) asserted; that there were cuts, and searches which had recently, and since his purchase, been made at the said mine in various directions, and no veins of gold whatever could be discovered; and that the purchasers thereof, including the appellee, had been compelled, after many searches, sinking shafts, making cuts and experiments, and expending a great deal of money in the enterprise, to abandon the search after gold in said mine; to dismiss their workmen, and give up the project of mining altogether.

3d. That there are, and were at the time of the appellant's representations in relation to said mine, fine particles of gold to be found on the premises, including within the bounds of the Goochland mine. But that such particles are and were so minute, so few, and so mixed up with sand and other foreign substances, that the cost of extracting the gold from such materials would far exceed the value of the gold when extracted; and that the four hundred and fifty-six acres, and the one hundred acres of land specified in the receipt of Nathaniel Richards, before stated, are utterly worthless as a gold mine; and the appellee's interest therein is of no value whatever.

4th. That the specimens of washings of said gold mine, exhibited to the appellee and others by the order and direction of the appellant, as fair specimens and examples of said gold mine, are not, and were not at the time when they were forwarded by the appellant to Nathaniel Richards, fair samples or specimens of said mine; and the appellee expresses his belief that they were not taken from the Goochland mine.

5th. That the Goochland premises do not contain veins of gold, nor any considerable deposits of gold; nor are they rich in gold, or of any value whatever, for any purpose of mining, either for gold or any other metal.

The answer of the defendant, in various parts of it, utterly and unqualifiedly denies any intention or purpose to deceive or delude "the appellee, or that he had ever done, [*83 or permitted to be done, anything to produce that effect. It denies that he ever made any the mine, to induce any person to give an inorinflated representations, or false descriptions of dinate price for his interest therein. It insists that in the letter of the 21st January, 1833, to Nathaniel Richards, his object was to give a true and accurate account of the Goochland mine, so far as the facts could be ascertained by his own observation and from the information of others on whom he could rely; and that in those addressed to Charles H. Richards, no fact was stated as being known to him, which

an interest therein in the full reliance that whatever this defendant had said, declared, or written on the subject of the Goochland mine, was strictly true; but does not admit that the appellee purchased solely on the faith of his representations, declarations, and letters.

It insists, in general, that in all the statements he ever made, at any time, to any person concerning the Goochland mine, whether in writing or verbally, so far as facts were given within his knowledge, they were strictly true; so far as the information derived from others was given he believed it to be true; and so far as his opinion has been expressed on the subject of the Goochland mine, such opinion was honestly entertained, without any interest, motive or view, directly or indirectly to deceive the appellee or any other person. It insists that there are and were veins of gold in the Goochland mine, and that from personal examination, before any representation was made, he knows that the Goochland mine contains veins of gold of extraordinary richness, and of great intrinsic value. It insists that, at the time he wrote the letter to Nathaniel Richards, there were an hundred feet or up wards, according to his best judgment, developed on the vein in said mine.

The answer admits that the appellant may have been informed by Nathaniel Richards that he had shown or read the letter of the 21st January, 1833, to the appellee and others, but at what time he is unable to state; that he was informed by Charles H. Richards that said letter had been read to him and others, including the appellee, before the purchase made by him and them of his interest in the Goochland gold mine; that he had been informed, and believes it to be true, that about the month of June, 1833, Nathaniel Richards did exhibit to the appellee and others the specimens or washings of gold ore, forwarded by the appellant, as specimens of the Goochland mine, and its productions of gold; that in June, 1833, the appellant wrote several letters to Charles H. Richards; that in describing the Goochland | mine in those letters he used language of a very decided character, as being the very richest 34] mine in Virginia, or in the United States; that the appellant esteemed himself well skilled in the business of mining, and that the appellee relied on such skill in making the purchase; that during the whole time of the negotiation and representations concerning the Goochland mine, he was employed as the agent of the Virginia Mining Company; that the appellee did not visit the mine, or the tract of land on which it was, before he bought an interest therein; that the negotiation for the purchase of the mine was carried on principally through Nathaniel and Charles H. Richards; that he believes the appellee, when he purchased an interest in the gold mine, fully believed the declarations and representations and letters of the appellant to be true, so far as he may have

Having thus stated the material allegations in the bill, and as well the denials as the admissions in the answer, we are enabled to see what the questions are which we are called upon to decide. But, before we state them, we will present, in a condensed form, those parts of the representation, the alleged falsehood of which constitutes the gravamen of the appellee's bill. In the letter from the appellant to Nathaniel Richards, under date of January 21st, 1833, in which he professes to give an account and his views of the Goochland mine, amongst other things, he states that there has been upwards of one hundred feet on the vein developed, which proves to be very rich indeed, much richer than anything yet discovered in the United States, and the quality of the gold surpasses any heretofore discovered in any country; that the surface is rich in gold. In regard to the formations in which the ore is found, he says: It is quite wide, a distance in one place of twelve feet has been cut, and the veins are disseminated throughout the whole formation, in threads of from two to six inches wide, and in many have several concentrated together; at another point it has been found to be several feet wider; and that there is ore from this mine that will, without doubt, give several hundred pennyweights of gold to the hundred pounds. This letter was written after the appellant had, as he himself says, made a careful personal examination of the vein as far as it had been developed, which he says was for a distance of one hundred feet lengthwise.

On the 11th of June, 1833, the appellant wrote to Nathaniel Richards, requesting him to show all the specimens, washings, plat, and description of the mine, to Guy (the appellee) and others. This letter and these specimens, washings, etc., were shown to the appellee in compliance with this request. The representations in relation to the mine, then, consist, in part, of the statements above, extracted from the letter of the 21st of January, 1833, which was shown or read to the appellee, and, in part, of the specimens, washings, etc., exhibited [*35 to him at the appellant's request, whilst a negotiation was going on between the appellant and Charles H. Richards, for the purchase of the appellant's interest in the mine, for himself and others, of whom the appellee was one, and but a very short time before the purchase was made.

The first question in order is, were these representations true or untrue?

We have examined the evidence in the record on both sides with much care, and we think it unnecessary to go into a detailed examination and comparison of that evidence here, inasmuch as it would extend this opinion to a useless length. We, therefore, will only state the conclusions of fact at which we have arrived. They are these:

We think it not true that there was one hundred feet developed on the vein, which proved to be very rich indeed. We do not mean to

say that a continuous exposure of the vein for one hundred feet was implied by the use of the term developed; on the contrary, we are of opinion, from the evidence, that the sinking shafts, or making cuts, at intervals, for that distance, would satisfy the meaning of this expression, and that we think was done. But we mean to say, that although there was a small quantity of ore found in part of this vein, which was rich, yet in any one of the pits it was relatively a small proportion; that in some there was but little, and one, we think the weight of evidence is, that there was none at all. We think it not true that the surface was rich in gold.

We think it not true that the formation was at any point twelve feet wide, or that the veins were disseminated throughout the whole formation, in threads of from two to six inches wide, and in many had several concentrated together.

We think it not true that there was ore from that mine that would give several hundred pennyweights of gold to the hundred pounds. We will not say that there might not be a small | piece selected which would yield at that rate, but we think that this representation was calculated to produce the impression, and justify the belief, that an hundred pounds of ore might be gotten together, which would produce several hundred pennyweights of gold. Any other interpretation of this language would, in our opinion, impute to the appellant the grossest deception.

We think that the specimens and washings which were forwarded to Nathaniel Richards were not fair samples of the mine.

tion of the words, whether knowingly or not; and the part of the proposition embraced by these words, is founded upon the case of Ainslie v. Medlicot, 9 Vesey, 21, which fully sustains Mr. Maddock. In this latter case the following strong language is used: "No doubt, by a representation a party may bind himself just as much as by an express covenant. If, knowingly, he represents what is not true, no doubt he is bound. If, without knowing that it is not true, he takes upon himself to make a representation to another, upon the faith of which that other acts, no doubt he is bound, though his mistake was perfectly innocent."

But the doctrine is laid down with more comprehensiveness and precision by a still more modern writer on equity, who gives us, in the form of distinct propositions, what he considers the result of the various cases on the subject, and marks, with particularity, the modifications which belong to it.

In 1 Story's Equity, 201, 202, it is thus stated: "Where the party intentionally, or by design, misrepresents a material fact, or produces a false impression, in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him, in every such case there is a positive fraud, in the truest sense of the terms; there is an evil act, with an evil intent-dolum malum, ad circumveniendum. And the misrepresentation may be as well by deeds or acts, as by words-by artifices to mislead, as by positive assertions."

Whether the party thus misrepresenting a fact, knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial, for the affirmation of what one does not know, or believe to be true, is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false. And even if the party innocently misrepresents a fact by mistake, it is equally conclusive, for it operates as a surprise and imposition on the other party. Or, as Lord Thurlow expresses it, in Neville v. *Wilkinson, [*37 "it misleads the parties contracting, on the subject of the contract."

36] Having come to these conclusions in relation to the facts of this case, the next inquiry in order is, what is the law of the case? It is an ancient and well established prinziple, that whenever suppressio veri or suggestio falsi occur, and more especially both together, they afford a sufficient ground to set aside any release or conveyence.

This ancient principle, thus expressed with so much sententious brevity, is laid down in terms somewhat more comprehensive, and having a direct bearing on the present case, by a modern text writer on equity.

The misrepresentation must be of something material, constituting an inducement, or motive to the act, or omission of the other. and by which he is actually misled to his injury.

In the next place, the misrepresentation must not only be in something material, but it must be in something, in regard to which the one party places a known trust and confidence in the other. It must not be a mere matter of opinion, equally open to both parties for examination and inquiry; and where neither party is presumed to trust to the other, but to rely on his own judgment.

In support of this proposition, several cases have been cited at the bar: let us examine them. The case of Baglehole v. Walters, 3 Camp. 154, was this: The defendant being about to sell a vessel, the subject of the suit had printed particulars of sale, of which a copy was delivered to the plaintiff, in the following words: "For sale, the good brig Iris, burthen per register 208 tons; will carry 17 keels of coal and glass, or 300 loads of timber; has lately deliv ered a cargo of sugar from the West Indies, in

Now, in our opinion, that is emphatically the case in the suit before us. The mine, we think, not only constituted a motive, but the sole motive to the purchaser; he was induced to purchase an interest at a high price, in that which has turned out to be worthless; and he has, therefore, been misled greatly to his injury.

It must, in the next place, be in something in which the one party places a known trust and confidence in the other.

Nothing could be stronger than the confidence here, because the appellee had never seen the mine, and the appellant knew it; the appellee had seen the letter of description and specimens, 40*] and the appellant knew that he had; the appellee confided in the truth of the appellant's representation, and his skill in mines, and in mining operations, and the appellant knew that he did.

But it has been earnestly contended at the bar, that whatever might be the effect of misrepresentation in cases in which there was nothing to countervail it; that in this case, at least, it cannot avail the appellee, on account of the particular character of the contract.

The purchase of an interest in the gold mine was made through the agency of Charles H. Richards, acting for himself and others, and amongst them, for the appellee. Richards, by his letter of the 18th June, 1833, to the appellant, amongst other things, said, "But after all the above named gentlemen (amongst whom was the appellee) had seen your letter, we concluded, at any rate, we would look at the samples or ore, and have done so, and your letter describing the premises to N. R. (Nathaniel Richards) he read to us. The ore is rich beyond dispute; but how much there is of it, remains to be seen. In regard to the extent of the mine, and its richness, we must, of course, rely on your judgment." The appellant in his letter of the 21st of June, 1883, in reply to the above letter of Charles H. Richards, speaking of the gold mine, says: "I, however, sell it for what it is, gold or snowballs; and I leave it to you to decide whether you will take it at my price or not." It is said that the contract having been concluded, upon the basis of this correspondence, the purchase was one, with all faults; that is, in effect, that the seller was absolved from all liability, by reason of any rep

The plaintiff undertook to prove that at the time of the sale the ship had several secret defects in her; that these were known to the defendant; and that he did not disclose them to the plaintiff. And he relied upon a previous case of Mellish v. Motteaux, Peake's Cases, 215, in which Lord Kenyon had held that the seller of a ship is bound to disclose to the buyer all latent defects known to him; observing that the terms to which the plaintiff acceded of taking the ship with all faults, and without warranty, must be understood to relate only to those faults which the plaintiff could have discovered, or which the defendants were unacquainted with. But Lord Ellenborough, "disapproving [*41 of the doctrine of the case above cited, held that where a ship is sold with all faults, the seller is not liable to an action, in respect of latent defects which he knew of without disclosing at the time of the sale, unless he used some artifice to conceal them from the purchaser.

In the same volume of Campbell, 505, a case is reported of Schneider et al. v. Heath, which was tried before Mansfield, Chief Justice; the opinion expressed by the Chief Justice is founded in so much good sense and justice, that we should have felt disposed, in a conflict of authorities, to have adopted it, even if it had not been, as, in the sequel of this opinion, we shall show it was, subsequently recognized and acted upon by the court. The opinion is in these words: "The words," that is, with all faults as they lie, "are very large to exclude the buyer from calling upon the seller for any defect in the thing sold; but if the seller was guilty of any positive fraud in the case, these words will not protect him. There might be such fraud, either in a false representation, or in using means to conceal some defect. I think the particular is evidence here, by way of representation; that states the hull to be nearly as good as when launched, and that the vessel required a most trifling outfit. Now, is this true or false? If false, it is a fraud, which vitiates the contract. What was the fact? The hull was worm-eaten, the keel was broken, and the ship could not be rendered seaworthy, without a most expensive outfit. The agent tells us he framed this particular, without knowing anything of the matter. But it signifies nothing, whether a man represents thing to be different from what he knows it to be, or whether he makes a representation which he does not know at the time to be true or