Page:Federal Reporter, 1st Series, Volume 7.djvu/429

 EMMA, ETC., 00. (MMITED) ». EMMA, ETC., 00, OP N. T. 417 �moneys advanced.' The fraud alleged is that Park falsely represented the moiley bo advanced to be in fact the moneya of complainaiit — earnings of the mine and proceeds of its ores. If this would constitute a good defenee to the action for money lent, it is howtoo la te for the complainant to prove'it; but if it were consistent with the plea that the claims of this defendant were still outstanding and in existence, although complainant might be estopped by the record to deny tho validity of his claim for these advances, it -wonld seem that upon a rescission of the contract, and the granting of the relief prayed for against Park consequent thereon, an injunc- tion against the collection of this claim might be a part of the relief to which the complainant -would be ehtitled. Upon a rescission oi a sale, full equity will be done between the par- ties in respect to their dealings with the subject of the sale subsequent thereto, and this advance of money to pay divi- dends seems to me to be so connected with the saleitself, and the subsequent use of the property, that accouiit ' would and must be taken of it in determiningthe whole relief to be given upon a rescission of the sale. So far as the facts relating to this advance of money are set forth as ground for complete relief upon a rescission of the sale, this plea does not purport to be a defenee to the bill, nor if this plea is sustained will it prevent the taking of such advance of money, and its repay- ment into account upon a decree of rescission ; but, as regards the separate claim of the complainant to an injunction against its collection, the plea does allege facts which make such an injunction inappropriate as part of the relief to which the complainant will be entitled. It shows that this claim for money lent bas been merged in a judgment, which bas been satisfied by payment. This plea is on this ground sustained, �5. The only plea remaining to be considered is the joint plea in bar of the defendant the Emma Silver Mining Com- pany of New York, and the defendants Park and Baxter. It is a plea to the whole bill, except the parts to which the pleas by the defendant Park, last considered, are pleaded, It sets forth the commencement and prosecution to judgment of the action for damages against Park and Baxter for the frauds �Y.7,no.4— 27 ��� �