Page:Federal Reporter, 1st Series, Volume 7.djvu/436

 424 FEDERAL REPORTER. �the claim now made, that the sale was void, and with a pur- pose to rescind and set it aside. Upon the authorities, and within the principle herein before laid down, the bringing of such an action deliberately and with full knowledge of the facts is an election to aiiQrm the contract. Clough v. Rail- tvcny, L. E. 7 Ex. 36; Conanhan v. Thompson, 111 Mass. 270, and other cases cited. In fact, it was a suit to recover the fruits of the contract, to which the plaintiff could be entitled only on the theory that the sale was valid and to continue in force. If such an action is brought by mistake, through inadvertenee or misunderstanding of counsel, it may not have the effect of an estoppel ; but the presumption certainly is that so solemn and deliberate an act, done in plaintili's behalf by attorneys of the court, is done advisedly and by the plaintifp's authority ; and if there is any circumstance depriving the act of this character, such circumstance, in excuse or avoidance of the act, must be alleged by the complainant. It is insisted, however, by the complainant, that it does not suffieiently appear on this plea that the act so relied on as an election to efiSrm was done with a f ull knowledge of the facts now alleged in the impeachment of the contract. I think that it does not suffieiently appear on the plea and the records, which, upon complainant's motion, have been made part of the plea, that this second action was commenced with a full knowledge of all these facts. The plea alleges that this second suit was commenced long after the complainant, in his bill, claims to have become fully cognizant cf all said facts. I have looked into the bill in vain to find any statement whatever therein as to the time when the facts alleged therein in impeachment of the sale, and therein alleged to have been concealed, were discovered by or became first known to the complainant. The complainant does not claim in the bill to have so become cog- nizant of these facts at any time prior to verifying the bill itself. This allegation of the plea, therefore, cannot be taken to be an averment of such knowledge at the time of the com- mencement or during the pendency of that suit. Nor is this defect of averment on this material point aided by the other parts of the plea, or by the records which are produced aa ��� �