a -suit of a civil at law," within the meaning of the agt of lSr5, and therefore could be removed to the United States wurt. Washington Imp. Go. v. Kansas Pacific Ry. Go., 5 Dill. 489. ' Third. Because it does not appear that the value of the petitioner's pecnniary interest in the proceeding is more than $500. In Kurtz v. Moffitt, 6 Sup. Ct. Rep. 148, (October term, 1885,) it was held that writs of habeas corpus are not removable from a state cotirt into a. circuit court, under the provisions of the act of 1875, because."a jurisdiction conferred by congress upon any court of the United States, of suits at law or in equity, in which the matter in dispute exceeda the sum or value of a certain number of dollars, includes no case 'in which the right of neither party is capable of being valued in money." In this case the right of the plaintiff, a half-brother of the decedent, in his estate, if the latter died intestate, is easily capable of being valued in money, and is far more than $500. There is no way of with exactness the value in money of a right to appeal from the probate of the decedent's will; but as the value of the plain. tiff's right in the estate directly depends upon the capacity to bring the question of the validity of his half·brother's will before the superior court, the pecuniary value of the matter in dispnte in this controversy is sufficient to bring the case within the jurisdiction of this court. Inasmuch as the parties are citizens of different states, and there is nothing in the nature of the suit which excludes or prevents this court from exercising jurisdiction, the motion to remand is denied.
and another v.
(Circuit Oourt, D. Oonnecticut. May 24, 1886.)
VENDOR AND VENDEE-RESCISSION-FRAUD-ELECTION.
In a bill in equity by a vendee for the rescission of a deed on the ground of the vendor's fraud and misrepresentation, relief in equity cannot be granted except the plaintiff have, within a reasonable time after the discovery of the fraud, elected to disaffirm the contract. and has, either before or at the trial, returned, or offered to return. the personal property received. and reconveyed. or offered to reconvey, the real estate of which he has the title,l Where a complaint asking both damages and equitable relief against a vendor's fraudulent sale of real and personal property is removed to a federal court, and a bilI in equity is filed therein for the equitable relief, and is tried, the action at law is not abandoned by the repleader, but remains on the common-law side of the court.
SAME-BILL IN EQUITY-REPLEADER.
SAME-RESCISSION-INJUNCTION-AcTION AT LAW.
A bill in equity asking for relief by the rescission of a deed, and of a note and mortgage given in part payment, on the ground of the vendor's fraud, and also by injunction restraining the transfer of the note and mortgage, although
\ Bee note at end of case.
denied so far as regards the rescission, will be granted so far as rega.rdl the in.lunction, when the plaintiff has instituted an action at law for damages, which can be set off against the note and mortgage, and when the defendant is a non-resident, and not a property owner to any amount.
In Equity·. W. F. Wilcox, for plaintiffs. Charles H. Briscoe and James P. Andrews, for defendants.
SHIPMAN, J. This suit was brought to the state court, the complaint alleging the defendants' fraud in the sale of Oreal and perboth for damages, and sonal property to the plaintiffs, and for equitable relief by a rescission of the deed, or of the note and mortgage which were given in part payment of the purchase price, and by an injunction restraining the transfer or assignment of the note and mortgage. The suit was removed to the circuit court, where the plaintiffs filed a separate bill in equity, the action at law remaining also in conrt. The bill in equity has been tried. The facts are as follows: In January, 1884, Mrs. Caroline Foote had the legal title to a farm of 75 acres in Killingworth, in this state, which her husband, John H. Foote, had previously pnrchased for $700, and had conveyed to his wife as a gift. Her husband, as her agent, and with her knowledge and approbation, concluded to sell the farm, and took measures to bring it to the attention of German immigrants to this country. In February, 1884, the notice of the two plaintiffs, who were Germans, orie of whom had been in this country about nine months, and the other about six months, was called to the plaintiff's advertisement of the farm, one-half of which was represented to be clear, and the other half to be in woodland, and both went to see the defendant John H. Foote at his house in Brooklyn, New York. He praised the farm; said that it was one-half clear, and the other half woodland; that it had an ice-house, and that a good mowing-machine belonged to it; and the three went to Killingworth in a couple of days to examine it. Examination was necessarily imperfect, as there was snow upon the ground. The farm is an old, worn-out rough farm of 75 acres, of which only ]0 or 12 acres, in the immediate vicinity of the house, are clear land, and are now capable of cultivation. The said John H. Foote pointed out to the plaintiffs, as embraced in and belonging to the farm, three lots of cultivated, cleared land, which he said were good grass lots, and a fourth lot which had been grown over with bushes. These lots, containing 12 acres, belonged to Norris Griswold. Said Foote also showed to the plaintiffs, as belonging to the farm, two cultivated, cleared lots, containing five acres, which actually belonged to Ezra G. L'Hommedieu. These six lots were near the defendant's dwellinghouse, and adjoining her lots, and, if they had belonged to the farm, would have greatly enhanced its value. Said Foote also said that a certain ditch was the line, which included a little strip of said Gris-