Page:Federal Reporter, 1st Series, Volume 7.djvu/419

 EMMA, ETC., CO. (LIMITED) V. EMMA, ETC., CO. OP H. T. 407 �circuit court for the Southern district of Ne'w' York, and plead- ing its legal effect in three different ways : (a) As an adjudica- tion of the cause of action set forth in the bill ; (b) as a deter-
 * aination of the same facts as those involved in this suit and

charged in the bill; (c) as an adjudication of the cause of action set forth in the bill, styling the same "a transaction of sale," as in the bill, instead of a sale and oonveyanoe. �4. A joint plea of the defendant company, and of Park and Baxter, setting forth the proceedlngs in the two suits in the United States circuit court above set forth, and pleading that by sueh proceedings complainant bas elected to afi&rm, and bas, in legal effect, affirmed, the sale, and cannot be heard in equity to demand a rescission thereof. �Defendants moved, at the same time, for leave to file a still further plea, setting up all the facts, and pleading that they established such laches or acquiescence as to constitute a bar to the present suit. Leave to file this plea was denied. Upon complainant's motion an order was made that defend- ants file exemplified copies of the records alleged in their pleas. Eeported 17 Blatehf. 389; IFed. Eep. 39, Such rec- ords were found to establish the facts pleaded, so far as the existence of the records pleaded was concerned. The pleas were thereupon set down for argument, �J, G. McCullough, J. E, Burrill, and E. J. Phelps, for de- fendants, �H. L. Burnett and E. W. Stoiighton, for complainant, �Choate, D. j. 1. The three pleas in bar of the defendants Park and Baxter, and the plea in bar of the defendant the Emma Silver Mining Company of New York, may be con- veniently oonsidered together. These pleas all raise the same question, namely, whether the judgment in the suit at law in this court, in favor of the defendants Park and Baxter, ig a conolusive determination of the cause of action on which this bill proceeds for the avoidance of the contract of sale or of the facts constituting tjbat cause of action, It is oontanded •on the part of the complainant that, whatever may be the effect of the judgmentias to Park and Baxter, the defendant ♦corporation cannot avail itself of the judgment as a lar, or ��� �