Page:Federal Reporter, 1st Series, Volume 7.djvu/421

 EUMA, ETC., CO. (LIUITED) V. BUHA, ETC., 00. OF N. T. 409 �forth as the ground of action in the former suit. No very material differences in this respect between the complaint and the bill have been pointed ont, and, if any differences exist, they may, perhaps, be deemed differences only in the mode of stating the same fraud, or in stating the acts done in f artherance and execution of the same alleged fraudnlent purpose or design, and, these differences might not affect the present question. �If however, there is a fact which must have been estab- lished in the former suit, to authorize the verdict and jadg- ment, which the complainant is not obliged to prove to entitle it to a decree avoiding the sale in this suit, or if such decree may, in this suit, pass upon proof of any of the allegations of the bill not necessarily determined against the complain- ant in the former suit, then the judgment is no bar, and thdse pleas must fail. A careful comparison of the former complaint and the present bill shows that there is a fact which the plaintiff in the former suit was obliged to prove in order to recover, which is not necessary to be proved in the present suit to entitle the complainant to a decree of rescis- sion, and that there are facts alleged as the ground for relief in the bill not necessarily determined adversely to the com- plainant in the former suit. Without going more into detail, it is clear that the bill alleges that the sale sought to be avoided was agreed to on behalf of the complainant corpora- tion by a board of directors who were not the independent representatives of the stockholders, but who were, with one exception, either the agents of the vendors, or qualified as directors by receiving from the vendors or promoters of the Company that number of shares which, by the articles of the association, it was requisite that they should hold in order to constitute them directors, and that some of them had other agreements with the promoters of the company, which created, or tended to create, in them a personal interest on their part in assenting to the sale that might be inconsistent with the true interests of the complainant corporation, which they vrere, as directors, bound alone to subserve. And it further appears by the bill that this mode of qualifying the directors, ��� �