Page:Federal Reporter, 1st Series, Volume 7.djvu/414

 4:02 FEDBBAIi REPORTER. �ferenee between its value and the price paid be recovered as dam- ���5. Bame— Samb — Action foe Damages— Pkiob Knowledge. �The commencement and prosecution of an action against the agents to recover damages for the failure to deliver part of the property which by the contract of sale the agents undertook, on their own behalf, as well as on behalf of the principal, to deliver, is an election to aflSrm the sale if at the tlme of the commencement or prosecution of the action the plalntifE had full knowledge of his rights and of the facts relied on for avoiding the sale. But a plea alleging such prier suit is bad which does uot also allege such knowledge of the facts. �6. NoNsuiT— Subsequent Suit. �A judgment of nonsuit against the plaintifE is not a bar to a subse- quent suit on the same cause of action. �7. Injunction— Fbaud — Rbscisbion of Contkact. �In a suit to obtain an injunction against the collection of promis- sory notes of the plaintifiE held by the defendant, and obtained from a third party to whom they were given by the plaintifE, on the ground that they were obtained by him in fraud of the plaintifl's rights, and as part of a scheme to defend against plaintiff's claim for fraud against himself, it is a defence that in a prior suit by the present defendant against the present plaintiff, on the notes, the present defendant obtained judgment by default after the court had acquired jurisdiction of the person of the defendant therein, the present plain- tifE, by service of process, the fraud being such as might have been set up and proved as a defence in the action on said notes ; and the transaction being one independent of the sale, an injunction against the collection of the notes would not be a part of the relief to which the plaintiff would be entitled upon a rescission. �8. Same— Same— Samb. �In a suit for an injunction against the collection by the defendant of a claim for moneys loaned by the defendant to the plaintiff for the payment of dividends on the capital stock of the plaintiff, a corpora- tion, on the ground that such loan was part of a fraudulent scheme for inducing the purchase of property by the plaintiff, it is a defence that the defendant has obtained judgment by default against' the plaintiff for said loan in an action in which the court obt^ned juris-> diction of the person of the defendant therein, the present plaintiff, and in which the alleged fraud might have been alleged and proved as a defence, where the former judgment has been satiafied by the sale on execution of the present plaintiff 's property, and the applica- tion thereto of the proceeds of the execution sale. �It geems that if said judgment had not been satisfled, an injunc- tion against the collection of the claim might be a proper part of the relief to be granted to the plaintiff upon a rescission of the sale, not- withstanding that the judgment was a conclusive determination against the plaintiff of the alleged fraud in loaning said moneys. ��� �