Page:Federal Reporter, 1st Series, Volume 7.djvu/426

 414 FEDERAL REPORTBB. �decreed, because this plea is not to that part of the bill which Beeks a rescission. The case stated in the bill against the Illinois Tunnel Company notes is briefly this : That in the year 1872, while the ohairman of the complainant's board of direetors was in this country, the Illinois Tunnel Company made an excavation which struck a portion of the ores which the defendant Park had claimed to be within the patent of the Emma mine, and that a suit was instituted by the com- plainant against the tunnel company to recover damages for this trespass ; that the notes were given in settlement of this interfering claim of the Illinois Tunnel Company, and upon a transfer to complainant of its rights; that the settlement was made under the advice of Park, and collusively between him and the Hlinois Tunnel Company, for the amount of the notes, but really for a smaller consideration, the object of Park being to acquire some interest or color of title for the complainant in the ores claimed by the Illinois Tunnel Com- pany, and which he had led the complainant to believe were, but which in fact were not, within the purchase of the Emma mine, and thus also to protect himself at the expense of the complainant company, of which he was director, against a claim on its part against himself for deceit in the sale; that hedeceived the complainant by concealment of the facts as to the nature and effect of the agreement thus made between the complainant and the tunnel company. It is not alleged in the bill that this was a dishonest claim on the part of the Illinois Tunnel Company, or that that company knew of the fraudulent purpose of Park in making this agreement for a transfer of its claims to complainant. It appears to me that if the facts alleged in the bill with reference to these notes were true, they could have been availed of as a defence against Park in the suit at law if discovered by complainant at the time it was required to defend the suit, and that this transaction is so distinct from the original sale that the re- scission of the sale would not of itself affect the question of the liability of the complainant upon these notes. They pur- port to represent the consideration due to a third party upon the purchase of other property, or at least other and different ��� �