Appeal from the Circuit Court of the United States for the Southern District of California.

This was a bill by Eugene Germain, Isaac B. Newton, and William H. Mitchell against Daniel Wilgus, for infringement of a patent granted to Clement Gauthier, July 17, 1888, for an improvement in atomizers. The circuit court sustained a demurrer to the bill for want of equity, and, complainants having declined to amend, entered a decree dismissing the bill. Complainants appeal.

Appellants filed in the United States circuit court for the Southern district of California, Ninth circuit, a bill in equity praying an injunction against the defendant, restraining him from making or using any specimen of a certain patented apparatus named in the bill, and also to enjoin an action at law instituted by appellee against appellants, in which appellee claimed that appellants were infringing a certain patent right granted to him. The bill sets forth that Clement Gauthier, of Narsas, in the republic of France, was the true, original, and first inventor of a certain new and useful apparatus, named in the patent therefor as “Improvements in Atomizers”; that said Clement Gauthier on the 7th day of March, 1890, assigned all his right, title, and interest in said Invention, for all the states and territories of the United States, to W. H. Mitchell, of Los Angeles, Cal.; that subsequently said Mitchell assigned an interest therein to appellants Germain and Newton; that a patent for said invention was granted to the said Gauthier by the United States, and letters patent delivered to him therefor, on the 17th day of July, 1888. Then there follows this part of said bill, which sets forth the equities which appellants claim entitle them to the relief prayed for, namely: “And your orators further show, on information and belief, that the said defendant, on and after the 9th day of June, 1890, and up to the commencement of this action, and within the term of seventeen years mentioned in said letters patent and after the granting of said letters patent, and after the said assignment of Eugene Germain and I. B. Newton, and within those parts of the United States covered by the' said grant to Clement Gauthier, and, afterwards assigned to your orators as aforesaid, unlawfully, wrongfully, and injuriously, and with intent to derive profit from making and using said apparatus, and to deprive your orators of the royalties which they might and otherwise would have derived from the' sale of rights to make and use specimens thereof, and without the license of your orators or the said Clement Gauthier, or either of them, and against the will of your orators, did make and did use, and did cause to be made and did cause to be used, sundry specimens of said apparatus, and of machines which contained and employed substantially the invention covered by said letters patent, in infringement of the said exclusive right secured to the said Clement Gauthier by the letters patent aforesaid, and granted by him to W. H. Mitchell, and then to your orators, as hereinbefore set forth, but how many such specimens the defendant so made and used, or caused to be •made and used, your orators are ignorant, and cannot set forth; .but your orators sn or, on information and belief, that defendant so made' and used, and caused to be made and used, a large number thereof, and that he derived large profits therefrom, hut to what amount your orators are ignorant, and cannot set forth, and that your orators have been deprived of large royalties by reason of the aforesaid infringement of the defendant, and have thus incurred large damages thereby. And your orators further show that the defendant is claiming the right to make and use, and cause to be made and used, specimens of said apparatus, and of machines which contain and employ substantially the invention covered by said letters pa tent, under a patent issued to him subsequent to said patent theretofore issued to said Clement Gauthier. And your orators further show that said defendant has commenced an action at law against your said orators, Kugene Germain, Isaac B. Newton, and William H. Mitchell, in the circuit court of the United Slates for the Southern district of California, in the Ninth circuit, for damages by reason of the use and sale of sundry specimens of said apparatus, and of machines which contain and employ substantially the invention covered by said letters patent theretofore issued to said Clement Gauthier. And your orators further show that said action is now pending and undetermined in said court, and, it' defendant is permitted to prosecute said action, it will put plaintiffs to groat expense for attorney’s fees, and to other costs and ex-ponses, in the preparation for and trial of said cause. And your ora,tor;; further show, on information and belief, that the defendant is unable to pay plaintiffs their costs ánd expenses in said action at law, in the event of it.-: further prosecution to final hearing and judgment, and determination against him. And your orators further show that they fear, and have reason to fear, that, unless the defendant is restrained by a writ of injunction issuing our. of this court, defendant will continue to prosecute said action at law, and to make and use numbers of specimens of said apparatus, and thereby will cause irreparable injury to your orators’ aforesaid exclusive rights.” The appellee demurred to this bill on the ground “that said complainants have not. by their said bill, made such a case as entitles them, in a court of equity, to any relief against defendant.” The court sustained this demurrer, gave appellants permission to amend their bill, which they declined to do, and thereupon the court entered a decree dismissing- the bill at appellant!-;’ cost This is assigned as error.