Fox

This action is brought by Theodore Fox, a stockholder of the Consolidated California and Virginia Mining Company, against John W. Mackay and the aforesaid corporation. The action is prosecuted by Fox, as he alleges, in the *581 interest and for the benefit of the corporation. The gist of the cause of action alleged against Mackay is, that he conspired to defraud, and did defraud, the mining company, with the aid and connivance of its board of directors, out of the sum of fifty thousand dollars. It is now sought by this appeal to compel him to replace that amount of money in the treasury of the company. The basis of plaintiff’s claim is found in the payment to one W. H. Patton, an employee of the company and superintendent of the mine, of the sum of fifty thousand dollars, in four monthly installments of twelve thousand five hundred dollars each. This money was paid to Patton under a resolution of the board of directors reciting that it was done in consideration of the extraordinary and valuable services rendered to the company in the extinguishment of a fire of long standing in the lower levels of the mine. The denials of Mackay’s answer to these various charges of fraud were full…