agent. Young was not only agent for Mrs. Bigger by virtue of his contract of agency, but, as director and vice president of the old company, was by law trustee and agent for her, and thus doubly bound to promote and conserve her interests. He not only did not object to McCourt's proposition to sacrifice the rights of the old company in which she was so largely interested, but, although he subsequently had much business correspondence with her and knew that she was depending largely upon the income from the theatrical business for many of her own necessities, he made no reference to McCourt's avowed purpose. Not only so, but we are satisfied from the evidence that when Mr. Bigger, the husband of complainant, was in this country in the summer of 1899 making inquiries of both McCourt and Young concerning the prospect of renewal of the leases, information concerning McCourt's proposition was studiously withheld from him. If Young had been faithful to his duty and to the high trust he had undertaken, he would have denounced McCourt's declared purpose with indignation. Certainly, if for any reason it was embarrassing for him to act against McCourt, he should have informed his principal of McCourt's purpose in order that she might take appropriate steps for her own protection. He knew that execution of McCourt's purpose would have the effect to destroy the right of property resting in the reasonable expectancy of renewal of the old leases-put the Colorado Amusement Company wholly out of business and deprive her of much needed income. His consent to or acquiescence in that destructive purpose was far outside the scope of his agency. He was employed, as he says, "to serve her interests to the best of his ability," not to sacrifice them or deliberately give away or destroy her property. On the whole, we are impressed, from a careful consideration of all the proof, that the secrecy preserved by Young, when he should have spoken, especially the failure to disclose McCourt's purpose either to Mr. or Mrs. Bigger when opportunity by personal interview or correspondence offered, and the manifest partisanship on his part in favor of McCourt when the disclosure of his breach of trust was made, in 1901, evince bad faith and a fraudulent purpose on his part, and one known to and participated in by McCourt. Such bad faith and fraudulent conduct on the part of the agent, participated in by the wrongdoer, cannot form the basis of an estoppel against the principal's asserting its rights against the wrongdoer.

Conceding the proposition urged upon us by counsel for defendants that no trust relationship exists between stockholders as such, we are unable to perceive its application to facts of this case. McCourt voluntarily, and for compensation satisfactory to himself, assumed duties of care and management, which, as a stockholder, did not belong to him, and were not cast upon him. The assumption of those duties brought with it a burden of trust and responsibility towards shareholders which we have already sufficiently considered. There was, in our opinion, no error in holding the new corporation to be trustee for the old company so far as the new leases were concerned, or in the provisions of the decree requiring their transfer to the old company, or in the order for an accounting.

Before considering other assignments of error founded on the master's report, certain facts relating to the report and conclusions of law thereon should receive attention.

By the interlocutory decree passed March 13, 1903, after ordering the immediate assignment of certain two shares of stock to complainant and also the leases to the old company, and after making provision for putting the old company into full possession and enjoyment of the theaters as the equitable owner of the leases made to the new corporation, the cause was referred to a master of the court to take and state an account: (1) Showing what money came into the hands of defendants, Peter McCourt, Emma F. McCourt, and Frank C. Young, belonging to the old company and not accounted for by them; (2) showing the gains and profits resulting from the operation of the two theaters from and after the beginning of the new terms under the leases to the new corporation; (3) showing the reasonable value of the services of complainant's solicitor and any other costs and expenses incurred by her in bringing and maintaining this suit. On June 6, 1904, he made and filed his report, stating the accounts, as ordered, for the approval of the court. Many assignments of error are predicated upon the action of the trial court in sustaining and overruling exceptions to this report, but complainant's counsel insists that we cannot review the facts found by the master and approved by the court because of the condition of the record. There was no order requiring the master to report evidence or procedure before him, and no report of that kind was made. Before the interlocutory decree and before the case went to the master, much evidence relevant to the issues submitted to him had been taken. The order of reference leaves it uncertain whether that evidence went to the master or not, but we assume it did. From the nature of the duties imposed upon the master, as well as from the facts disclosed by the record, it appears that he heard and considered evidence not reported by him to the court and not filed in the case before the order of reference was made to him. (How much or how little we are unable to ascertain and do not know.) On the existence of this fact one of the defendant's assignments of error is predicated that "the court erred in permitting the master to take evidence and render any accounting whatsoever in the cause." The master states at the end of his report that:

"The transcript of the evidence produced in these proceedings, the brief and transcript of the argument of counsel, and the exhibits received in evidence, are filed herewith, excepting such exhibits as by consent of counsel are in possession of the parties."

Counsel for defendants contend that his certificate shows that the master sent to the Circuit Court all the evidence, whether heard before him or which he had considered. Such, in our opinion, is not the meaning of the language employed. He nowhere states that he returns any evidence taken before him. The certificate admits of a construction to the effect that he returned the evidence which had been taken in the case before it was referred to him, and this is probably true; for it clearly appears that he did not, in fact, return some

evidence which his report, as well as the assignment of error in the case, says he considered. Not having before us all the evidence upon which the master acted, it is impossible to review any question of fact determined by him and approved by the court.

Mr. Justice Clifford, when holding the Circuit Court in Massachusetts, in the case of Greene v. Bishop, 1 Cliff. 186, Fed. Cas. No. 5,763, quoting from Judge Story in Donnell v. Columbian Ins. Co., Fed. Cas. No. 3,987, says:

"When exceptions are taken to the report of a master in chancery, the evidence which furnishes the ground of the exception should be required by the party excepting to be stated by the master, and in effect declared that, unless it be done the court will not enter at large into the evidence in order to ascertain whether or not the master was wrong in his conclusion. Masters are required, in a case like the present, to report conclusions, and, in general, it is irregular for them to incorporate the details of the evidence into their reports, without the direction of the court. They should, however, especially when it is requested by either party, specify and identify the evidence, and refer to it in such a manner as to inform the court on what state of facts their conclusions are based."

The rule is firmly established that reports of masters appointed to take and state accounts depending as they do upon examination of books, oral testimony of witnesses, and perhaps expert testimony, have "every reasonable presumption in their favor and are not to be set aside or modified unless there clearly appears to have been error or mistake on his part." Camden v. Stuart, 144 U. S. 104, 118, '· 12 Sup. Ct. 585, 36 L. Ed. 363. "As every presumption is in favor of the referee's report, the court will, in reviewing the judgment upon appeal, intend that the referee did find such further fact in favor of the party recovering, as essential to support it." Meyer v. Lathrop, 13 N. Y. 315, 321. See, also, Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289.

In Sheffield, etc., Railway Co. v. Gordon, 151 U. S. 285, 293, 14 Sup. Ct. 343, 38 L. Ed. 164, the Supreme Court, in considering exceptions to a master's report, says:

"There is another objection, however, to our examination of the facts in this case. The order referring the case to the special master, though minute in its details, did not require him to send up the testimony; neither does he purport to do this in his report; and, while a number of depositions taken before him are filed, there is nothing to indicate that these were all the testimony in the case. In the absence of any certificate that the entire evidence taken by the master was sent up with his report, it is impossible to impeach his conclusion in this particular. Scotten v. Sutter, 37 Mich. 526: Nay v. Byers, 13 Ind. 412; Fellenzer v. Van Valzah, 95 Ind. 128. presumption that all the testimony was sent up."

** *

There is no

The court then, referring to a certain finding made by the master,

says:

"And there is no evidence to impeach his finding in that particular, and no objection or exception taken to the want of proof upon this point. There would appear to have been, from a memorandum we find in the testimony, a mechanic's lien introduced in evidence as an exhibit; but, as it is not attached to the record, it is impossible to say that it does not bear out the finding of the master."

The case before us falls fairly within the principles announced in the last-mentioned one, and we are constrained to hold that for want of any showing that we have before us the evidence which was before the master, and especially in the light of the affirmative showing that we have not before us all the evidence which was before him, it is impossible to review any of the findings made by him which from their nature may be affected one way or the other by evidence. Certain of his conclusions raise questions of law only, and these will now be considered.

The first assignment of error predicated upon the findings of the master relates to the charge allowed by the master and approved by the court of $2,972.22 as net profits made in operating the so-called Silver Circuit, which Mr. McCourt appropriated to his own use. This Silver Circuit was the name of an agency by which theatrical attractions were booked for theaters in smaller towns in Colorado. Complainant claims that the business of the agency was transacted by the employés of the Colorado Amusement Company for its account, and that it was entitled to all the net profits realized. McCourt claims that the agency was an outside venture of his own, and that the profits made belonged to him. The master, as it affirmatively appears from his report, heard evidence on this item which is not before us, particularly the testimony of Richard B. Mays. It is therefore impossible for us to review his conclusion.

It is next contended that the master improperly disallowed a claim made by McCourt against the funds of the old company for increased salary for the period between April 5, 1901, when the consolidated company first took possession of the Broadway Theater, to March 7, 1903. Before April 5, 1901, McCourt, by resolution of the old board, had his salary fixed at $600 per month. After he had, as he supposed, banished complainant from participation or representation in the business, he secured a resolution from his new board increasing his salary to $200 per week; the increase amounting for the period mentioned to $4,060. Some evidence may have been heard by the master concerning this item which does not appear in the record, and which would have fully justified his finding; but, if there was no such evidence, we think he did not err in disallowing the claim. It cannot be true that McCourt, after unlawfully despoiling the old company, could arbitrarily and without authority transfer its assets to a new one owned, managed, and controlled practically by himself, and substantially enlarge his compensation for services and make the same a charge against the old company. This would reward disloyalty in a way shocking to a court of conscience. Moreover, there is no evidence in the record except that of McCourt himself that the increase was reasonable, and this we regard as quite insufficient to overcome the presumption that the salary fixed for the same services by the board of directors of the old company, shortly before it was despoiled, was reasonable.

The next assignment challenges the ruling of the trial court approving the action of the master in allowing, against the fund re covered, attorney's fees and other expenses paid by complainant for 145 F.-8

the prosecution of the action, and in disallowing like fees and expenses paid by defendants in defending the action. Complainant claims that, as she undertook the burden and bore the expense of restoring to the old company property and funds which had been. taken from it, it should first repay to her out of the funds restored what she had paid for its benefit, before dividing the same between others, including those whose conduct rendered the outlays and expenses necessary. This claim is equitable and just and supported by abundant authority.

In Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157, our Supreme Court makes an exhaustive review of the English and American authorities on this subject, and, on pages 532, 533, and 536, 105 U. S. (26 L. Ed. 1157), makes use of the following language:

"It is also established by sufficient authority that, where one of many parties having a common interest in a trust fund at his own expense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contribution from those who accept the benefit of his effects. * * It has been the common practice, as well in the courts of the United States as in those of the states, to make fair and just allowances for expenses and counsel fees to the trustees, or other parties promoting the litigation and securing the due application of the property to the trusts and charges to which it was subject. * * Allowances of this kind, if made with moderation and a jealous regard to the rights of those who are interested in the fund, are not only admissible, but agreeable to the principles of equity and justice."

*

To the same effect are the following cases: Central Railroad & Banking Co. v. Pettus, 113 U. S. 122, 124, 126, 5 Sup. Ct. 387, 28 L. Ed. 915; Hobbs v. McClean, 117 U. S. 567, 582, 6 Sup. Ct. 870, 29 L. Ed. 940; Dodge v. Tulleys, 144 U. S. 457, 12 Sup. Ct. 728, 36 L. Ed. 501; Central Trust Co. v. Condon, 14 C. C. A. 314, 67 Fed. 84, 110; Burden Central Sugar Ref. Co. v. Ferris Sugar Mfg. Co., 31 C. C. A. 233, 87 Fed. 810; 2 Perry on Trusts, § 894 et seq.; In re Weed's Estate, 163 Pa. 599, 602, 30 Atl. 272, 278; White v. University Land Co., 49 Mo. App. 450.

The same reasons which justify an allowance out of the fund in favor of complainant for expenses incurred in restoring it require us to approve of the disallowance of such items in favor of the defendants. They did nothing to recover or save a trust fund, or to prevent its waste or dissipation, but everything in their power to prevent its recovery or restitution to its original owner. Their proceedings, while in the name of the old company, which was made a defendant, were adversary to its equitable rights. Instead of being rewarded by an allowance of costs and expenses, they should pay all the statutory costs taxable against them.

No authorities are cited by counsel or found by us sustaining defendants' claim, and we certainly shall not be the first to reward obstructionists out of a restored fund in proceedings necessarily and vigorously prosecuted to regain that fund.

The next item of charge against the old company disallowed by the master and Circuit Court is $2,678.01, loss said to have been incurred in 1902 and 1903, in operating a third theater called the Empire Theater, in Denver. Whether the venture was reasonably