Fox

—Plaintiff brings this action as a dissatisfied stockholder and on behalf of the Consolidated California & Virginia Mining Company, which corporation is made a party defendant. The defendant, the Comstock Mill and Mining Company, was never served with process and is not interested in the litigation. John W. Mackay and John P. Jones are the real parties defendant. The corporation represented in this litiga *60 tion by plaintiff has two hundred and sixteen thousand shares. Plaintiff is the owner of five shares of this stock.

By the bill a conspiracy is charged against Mackay and Flood to defraud the Consolidated California & Virginia Mining Company. It is claimed that at all times prior to Flood’s death he and Mackay controlled this mining corporation, and that subsequent -to Flood’s death Mackay alone controlled it. That upon December 23, 1885, the mining company entered into a three years’ contract with J. P. Jones for the milling of its ores; that this contract was entered into by the connivance and procurement of Mackay, Flood, and Jones; that Mackay and Flood were interested with Jones in the profits of the contract, and also controlled the directors of the mining company, and…