Page:Federal Reporter, 1st Series, Volume 7.djvu/427

 BHHA, ETC., CO. (LIHITED) V. EMMA, ETC., 00. OF N. T. 415 �claims to property. I think, therefore, that the complainant is esiopped by this record from showing that, by reason cf the facts alleged in the bill, the complainant did not o\^e him the amount of these notes. Those facts are in effect negatived by the jndgment, and it seems that the burden is on the complainant to aver and show, if the fact be so, a subsequent discovery of those facts which might have given it a case for relief in equity, which it could not avail itself of at law, and which would excuse its failure to defend the action, and thus to deprive the judgment of its character as an estoppel. The notes were given in 1874. The suit was commenced in 1876. The bill certainly does not allege a discovery of the facts sub- sequent to the commencement of the suit, or their continued eoncealment all that time. Assuming, then, that the com- plainant is estopped to deny that the notes were due to Park, it fnrther appears to me that there is no such connection between these notes, or the agreement between complainant and the tunnel company, under which they were given, that the amount paid to or recovered by the defendant Park upon them can be set off or charged against any sum that com- plainant may recover against him upon the rescission of the sale. What he has so recovered was recovered upon a dis- tinct cause of action, disconnected with the sale. This plea must, therefore, be sustained. �4. The third separate plea of the defendant Park is to that part of the bill which prays relief by injunction against the collection by said Park of his alleged claim for moneys ad- vanced to pay dividends. The plea alleges that a judgment in a suit at law has been recovered upon the identical claim in the United States district court for the territory of Utah ; that the process was "duly served upon the orator, defendant therein, through its authorized agent." It also avers that the defendant therein, this complainant, duly appeared in said action, and filed a demurrer to the complaint, and made a motion to discharge an attachment made in the suit. These acts constitute a voluntary appearance of the defendant. They are not contradicted, but confirmed, by the recitals con- tained in the records produced as part of the plea. It muat ��� �