JACKSONVILLE, T. & K. W. RY. CO. et al. v. AMERICAN CONST. CO. et al., 57 F. 66

PER CURIAM. The certificate of the clerk, authenticating the transcript in this case, is sufficient. See Pennsylvania Co. for Insurance on Lives and for Granting Annuities v. Jacksonville, T. & K. W. Ry. Co., 2 U. S. App. 606, 5 C. C. A. 53, 55 Fed. Rep. 131. “A decree by a circuit court of the United States, directing that the complainant he paid his> costs and expenses out of the fund in court, — the fund in the mean time remaining in the court, in course of administration, — is, pro tanto, a final decree, from which, if the amount be sufficient, an appeal will lie.” Trustees v. Greenough, 105 U.

S. 527. “When many persons have a common interest in a trust property or fund, and one of them, for the benefit of all, and at bis own cost and expense, brings a suit for its preservation or administration, the court of equity in which the suit is brought will order that the plaintiff be reimbursed his outlay from the property of the trust, or by proportional contribution from those who accept the benefits of his efforts. See Trustees v. Greenough, 105 U. S. 527, where the subject is discussed by Mr. Justice Bradley, and the cases cited, and Banking Co. v. Pettus, 113 U. S. 116, 5 Sup. Ct. Rep. 387.

But where one brings adversary proceedings to take the possession of trust property from those entitled to it, in order that he may distribute it to those who claim adversely, and fails in his purpose, it has never been held, in any ease brought to our notice, that such person had any right to demand reimbursement of his expenses out of the trust fund, or contribution from those whose property he sought to misappropriate.” Hobbs v. McLean, 117 U. S. 567-582, 6 Sup. Ct. Rep. 870.

The allowance of compensation to the appellees in this case, to be paid out of the fund in the hands of the court, was erroneous, because it was, in any event, premature, and because the adversary proceedings to take possession of the trust property for control, management, and possible distribution, failed in their purpose. The motion to dismiss the appeal is overruled, and the order appealed from is reversed, with costs.