receiver who had been made a defendant was on the plaintiff's side of the controversy.121

It has been said: that where a small minority of the stockholders have been injured by a sale, it will not always be rescinded; but that the court may direct a valuation of the complainants' stock and the payment to them of the same under such a penalty as will give them ample security.122 A statute which provides that stockholders who do not consent to a sale or consolidation shall be paid the value of their shares does not afford an adequate remedy at law which will prevent a dissentient from enjoining such a consolidation or sale in violation of the statutory requirements. 123 Where an injunction is denied, the court may retain jurisdiction to grant any equitable relief to which the complainants may appear to be entitled after the effect of the consolidation is known,124 In a stockholders' suit to recover property fraudulently transferred, to wind up the affairs of a corporation and to distribute its funds among all the stockholders, the creditors must be given an opportunity to come in and enforce their claim against these funds.125 Where, pending a stockholder's suit against the company and the other stockholders, the latter paid into court a sum of money to abide its order and satisfy the complainant's demand, he was allowed to recover the entire amount after the reduction of costs. 126 The stockholder's bill to enforce a cause of action owned by his corporation is for the benefit of the corporation and not for the benefit of the stockholders. Ordinarily no relief will be granted which would not be for the benefit of the corporation.127 Where a majority of the stockholders have authorized a sale of the assets to a new company in which they received shares, but the minority do not; the burden of proving that the purchase price was the value of the property rests upon

121 Sharpe v. Bonham, 224 U. S. 241, L. ed. 747.

122 Binney V. Cumberland Copper Co., 183 Fed. 650, 653.

Ely

123 General Inv. Co. v. L. S. & M. S. Ry. Co., C. C. A., 250 Fed. 160.

124 Simon Borg & Co. v. New Orleans City R. Co., 244 Fed. 617.

125 In re Dennett, 221 Fed. 350. 126 Beltz v. Great Western Lead Mfg. Co., 251 Fed. 696.

127 Collins v. Penn Wyoming Copper Co.; Continental & Commercial Trust & Savings Bank v. same, 203 Fed. 726.

them.128

bill

the

the

In other cases, when the dissenter who files the does not offer to bid more for the assets than was paid at sale which he seeks to set aside; the court may direct that property be sold at public sale, no bid to be accepted for less than what has been already paid.129 Where the property has become so confused with the property of the vendee that it is practically impossible to place matters in statu quo, the court may declare the vendee a trustee and impress a lien upon the property the benefit of unpaid stockholders and creditors.1 130

One

stock

A statute, which provides compensation to be paid to a stockholder who refuses to join in a consolidation, refers to authorized by law and affords no adequate remedy to a holder who seeks to enjoin an illegal consolidation.131 When a stockholder sued to enjoin a consolidation, it was held that he was entitled to an accounting of all the earnings from the assets of his company made by the corporation into which it had been consolidated.132

In certain cases, where a small minority of stockholders have been injured by a fraud the sale will not always be rescinded; but the court may direct a valuation of the complainant's stock and the payment of this amount to them under such a penalty as will give them ample security.133 This will not be done where such a valuation is impracticable. 134 When the contract attacked transferred the assets directly or indirectly to a new company in which the complainants were given no interest, the court award to them such interest in the stock of the new company as would give them full compensation.135

may

§ 146. Bills to enjoin the infringement of patents. Accord

ing to the rules of pleading which were in force before adoption of the equity rules of 1912: a bill to restrai

128 Stebbins v. Michigan Wheelbarrow & Truck Co., C. C. A., 212 Fed. 19.

129 Geddes v. Anaconda Copper Mining Co., 222 Fed. 120.

130 Re Dennett, 221 Fed. 350.

131 General Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160.

132 Miller v. Chicago & A. R. Co., C. C. A., 204 Fed. 436.

the

the

infringement of a patent must allege: that the complainant or the person through whom he claims was the inventor or discoverer of the thing or process patented;1 that it has not been previously patented, nor described in any printed publication; 2 in this or in any foreign country; nor patented in any foreign country in the twelve months, or in the case of a design patent, in the four months, prior to the application; that it was not in public use nor on sale for more than two years before the application. It must show that the patent was duly issued; that the plaintiff has and had, at the time when the bill was filed,7 a title to the patent, or such an interest in the same as gives him the right to the protection from the court;

defendant has infringed, and still infringes, the patent= 9 or threatens to infringe the same.10 When the bill alleges: thata patent was issued, it is unnecessary to allege that an application was made. The filing of the application in due form Commensurate with the grant is presumed from the issue of patent.11 When, to meet a defense of prior public use, plaintiff relied upon a former application which had been abandoned, it was said that the date and facts concerning the same should have been pleaded in the bill.12

the the

that

It

It is the safer practice still to comply with these rules of pleading.13 It has been held, however, that an allegation the patentee has complied with all of the requirements of the statutes of the United States obviates the necessity of specifically pleading a compliance with each of such requirements.14 has also been held, that when the bill sets forth the issue of certain properly described letters patent to a person named as inventor, there is no need of alleging: that the invention new, novel or useful; that the patentee was the first and true inventor thereof; that it was not patented nor described in

Am. Graphophone Co. v. Nat. Phonograph Co., 127 Fed. 349. It has been held insufficient to aver simply the issue to complainant of the patent and that the letters-patent are in his possession. Lettelier v. Mann, 79 Fed. 81. But see Arrott v. Standard Mfg. Co., 113 Fed. 1014. When a bill alleged "that the patentee was the original, first and sole inventor of a certain new and useful improvement in the construction of cable railways, fully described in the specification of the said letterspatent, which had not been patented to himself or to others, with his knowledge or consent, in any country, and had not, to his or the orator's knowledge, been in public use or on sale in the United States for more than two years prior to his invention and discovery thereof, and application for letters-patent of the United States therefor" it was

Was

printed publication in this or any foreign country before his invention and discovery thereof, since such matters are presumed and inferred from the issue of the patent.15

The bill must also contain a substantial description of the patent or else set out the patent itself, or have the same annexed as an exhibit.16

Profert of the patent will, however, suffice,17 and will supply any deficiencies concerning its contents or signature which therein appear.18 In such a case, only its title need be set forth. 19 It is insufficient to allege: "as by the said letters patent and specifications, all in due form of law, ready in court to be produced, will fully appear;" 20 but it is the safer practice also to state the number of the patent, and the volume and page of its

15 Maxwell Steel Vault Co. V. Nat. Casket Co., 205 Fed. 515, 524.

16 Stirrat v. Excelsior Mfg. Co., 44 Fed. 142.

17 Wilder V. McCormack, 2 Blatchf. 31; McMillin v. St. Louis & Miss. Valley Transportation Co., 18 Fed. 260; Dickerson v. Green, 53 Fed. 247; Bogart v. Hinds, 25 Fed. 484; Hildreth v. Bee Candy Mfg. Co., 162 Fed. 40; Fichtel v. Barthel, 173 Fed. 489. "The demurrer says that the bill should make 'profert' of the letters patent, and the plaintiff replies the 'profert' is unknown to equity pleadings. Technically this may be so, but the equivalent of 'profert' is known; and whenever the law pleadings must make 'profert,' the equity pleadings must allege and prove with fullness enough to give all the benefit the 'profert' would give, and under a rule the production of the document would be compelled."' Hammond, J., in Electrolibration Co. v. Jackson, 52 Fed. 773, 776. It has been held to be sufficient allegation for the plaintiff to allege that he was the true, original and first inventor of a Fed. Prac. Vol. I-53

66

certain new and useful improved application of steam power to the captain of vessels, not known or used before," that a description or specification of the aforesaid improvement was given in his schedule to the aforesaid letters-patent annexed, accompanied by certain drawing refered to in said last mentioned schedule, and forming parts of said letters-patent,— the said letters-patent and the said specification thereto annexed (which, your orators will produce, which, or an exemplified copy of which, as your honors may direct) were duly recorded in the patent office.'' McMillin v. St. Louis & Mississippi Valley Transp. Co., 18 Fed. 260. See supra, § 136, infra, $366.

18 Fichtel v. Barthel, 173 Fed. 489.

19 McMillin v. St. Louis & Miss. Valley Transportation Co., 18 Fed. 260. See Dickerson v. Greene, 53 Fed. 247. 20 Wilder V. McCormick, 2 Blatchf. 31; Dickerson v. Greene, 53 Fed. 247; Bogart v. Hinds, 25 Fed. 484. See infra, § 366.