Page:Federal Reporter, 1st Series, Volume 7.djvu/437

 EMMA, ETC., CO. (lIMITEd) V. EMMA, ETC., CO. OF N. Y. 425 �part thereof. It is true that it appears by these papers that the complaint in the action for deceit was verified and served before this second suit was commenced ; and ii is also true that, as to the greater part of the alleged fraudulent acts set forth in the bill, they are also set forth, with little difference of detail, in that complaint. But other facts stated in the bill — those, for instance, relating to the giving of qualification shares to all but one of the direetors, other than Park and Baxter, and the secret agreement with the American minis- ter under which he also became a director — are not stated in the complaint nor alluded to, unlessit be in the general state- ment near the close of the complaint that the defendants did "by the like deviees," that'is, among other things, "by the payment of large sums of money and other valuable consid- erations," etc., "and by bribery in varions forma, the particu- lars whereof are unknown to the plaintifi," "induce various persons to become direetors and trustees of the plaintiff Com- pany." Giving full effect to this as an admission of what the complainant knew at a time prior to the commencement of this second suit, I do not think it comes up to that full knowledge of the material facts which is necessary to make the commencement of that suit an act of election, precluding the plaintiff from proceeding for a rescission on those facts. The complaint shows a very imperfect knowledge of these facts as alleged in the bill ; indeed, it does not certainly show any accurate knowledge or information as to the dealing with any of the several direetors, as detailed in the bill. In this view of the case it is unnecessary to eonsider the point raised by the complainant, that this plea is too broad, on the ground that the part of the bill to which thig plea is pleaded states a case, and justifies relief against Park and Baxter, beyond the reseission of the contract and the relief consequent thereon; that it is, in fact, a bill against them also for the recovery of profits made by them while acting in a uduciary relation to the complainant, independently of the case for rescission. The plea must be overruled for want of the neces- sary averment that at the time of the commencement or dur- ing the prosecution of the second action the complainant wa& ��� �