y Co. v. Schulz, 237 U.S. 159; Blackstone's Commentaries, Bk. 1, ch. 2, p. 159; Blount's Case, Wharton's St. Tr. 200; Bogart v. So. Pac. Co., 228 U.S. 137; Bryant Co. v. N.Y. Steamfitting Co., 235 U.S. 327; Burke's Works, Little, Brown Co., 1866, vol. XI, p. 96; Burton v. United States, 202 U.S. 344; Cohens v. Virginia, 6 Wheat. 264; The Fair v. Kohler Die Co., 228 U.S. 22; Fore River Ship Building Co. v. Hagg, 219 U.S. 175; Grant Shoe Co. v. Laird, 212 U.S. 445; Globe Newspaper Co. v. Walker, 210 U.S. 356; Greene v. Henkel, 183 U.S. 249; Healy v. Sea Gull Co., 237 U.S. 479; House Rep., No. 677, 63d Cong., 2d Sess.; House Res., 63d Cong., 2d Sess., Cong. Rec., p. 8831; Hyde v. United States, 225 U.S. 347; The Jefferson, 215 U.S. 130; Louisville Trust Co. v. Knott, 191 U.S. 225; Mackenzie v. Hare, 239 U.S. 299; Mississippi R.R. Com. v. Louis. Nash. R.R., 225 U.S. 272; North Am. Storage Co. v. Chicago, 211 U.S. 306; Kelly v. Common Council, 77 N.Y. 503; Pettit v. Walshe, 194 U.S. 205; Steinfeld v. Leckendorf, 239 U.S. 26; Story's Comm., 1st ed., § 791; Tucker on the Const., § 199; United States v. Barnow, 239 U.S. 74; United States v. Cook, 17 Wall. 174; United States v. Cruikshank, 92 U.S. 542; United States v. Hess, 124 U.S. 483; United States v. Mills, 7 Pet. 142; United States v. Mouat, 124 U.S. 303; United States v. Smith, 124 U.S. 525. MR. JUSTICE HOLMES delivered the opinion of the court.

Ex parte American Steel Barrel Co., 230 U.S. 35, 45, 33 S. Ct. 1007, 57 L. Ed. 1379. Nor is the writ permitted to be employed as a substitute for the ordinary modes of review (appeal and writ of error). Ex parte Transportes Maritimos, 264 U.S. 105, 44 S. Ct. 236, 68 L. Ed. 580; Ex parte Riddle, 255 U.S. 450, 41 S. Ct. 450, 55 L. Ed. 725; Ex parte Tiffany, 252 U.S. 32, 40 S. Ct. 239, 64 L. Ed. 443; United States v. Thompson, 251 U.S. 407, 40 S. Ct. 289, 64 L. Ed. 333; Ex parte Roe, 234 U.S. 70, 34 S. Ct. 772, 58 L. Ed. 1217; Ex parte First Nat'l Bank, 228 U.S. 516, 33 S. Ct. 591, 57 L. Ed. 946. Whether a trial court has followed a mandate may be examined on appeal. Steinfeld v. Zeckendorf, 239 U.S. 26, 36 S. Ct. 14, 60 L. Ed. 125. Here, the very matters sought to be presented by the petition for the writ are preserved in the pending appeals from the same decrees. The matter of poverty is no reason why this court should act by mandamus instead of upon the appeals.

Moreover, as a majority stockholder who profited at the expense of its corporation it can hardly be heard to urge that the action which resulted in benefit to the corporation should go unrewarded; its attack on plaintiff's motives under the circumstances comes with ill grace. Watkins v. Sedberry, 261 U.S. 571, 43 S.Ct. 411, 67 L.Ed. 802; Steinfeld v. Zeckendorf, 15 Ariz. 335, 138 P. 1044, affirmed 239 U.S. 26, 36 S.Ct. 14, 60 L.Ed. 125; Merle v. Beifeld, 275 Ill. 594, 114 N.E. 369. The same remarks may apply, though to a lesser extent, to Vulcan. True, any allowance will come out of the moneys recovered by it, but it has benefited substantially by reason of petitioner's efforts irrespective of the motive prompting them — efforts which Vulcan refused to make in order to recover moneys belonging to it.

There are a number of judicial exceptions to the "American Rule" such as the Common Fund Doctrine. Steinfeld v. Zeckendorf, 15 Ariz. 335, 138 P. 1044 (1914), aff'd, 239 U.S. 26, 36 S.Ct. 14, 60 L.Ed. 125 (1915). Given the eroded status of the "American Rule" and the benefit to Arizona citizens from public interest litigation, we adopt and apply the private attorney general doctrine here.

The argument is that the terms of our remittitur were disregarded by this postponement of the final ruling. We think the argument will not hold. There is no need to determine to what extent jurisdiction is inherent in this court to revise an order involving a departure from its mandate, for we are satisfied that in this instance no departure has been shown ( Matter of Sanford Fork Tool Co., 160 U.S. 247; Ex parte Sawyer, 21 Wall. 235; Perkins v. Fourniquet, 14 How. [U.S.] 328, 330; Steinfeld v. Zeckendorf, 239 U.S. 26; People v. Priori, 163 N.Y. 99, 101). We required the Appellate Division to act.

B. ¶ 15 The common fund doctrine in Arizona has its basis in Steinfeld v. Zeckendorf, 15 Ariz. 335, 342, 138 P. 1044, 1047 (1914), aff'd, 239 U.S. 26, 36 S.Ct. 14, 60 L.Ed. 125 (1915). In that case the Arizona Supreme Court upheld an award of fees from a common fund as a matter of "right and justice."

"* * * [A] person or persons who employ attorneys for the preservation of a common fund may be entitled to have their attorney's fees paid out of that fund. Steinfeld v. Zeckendorf, 15 Ariz. 335, 138 P. 1044 (1914), affirmed, 239 U.S. 26, 36 S.Ct. 14, 60 L.Ed. 125 (1915)."

Unless displaced by the particular provisions of this title, the principles of law and equity supplement its provisions. We agree that the provisions of A.R.S. § 14-1103 expand the jurisdiction of the probate court and confer power upon it that it did not have when Balke and its successors were decided. Further, we agree that it is a general rule of equity long recognized in Arizona that a person or persons who employ attorneys for the preservation of a common fund may be entitled to have their attorney's fees paid out of that fund. Steinfeld v. Zeckendorf, 15 Ariz. 335, 138 P. 1044 (1914), affirmed, 239 U.S. 26, 36 S.Ct. 14, 60 L.Ed. 125 (1915). This, the so-called common fund theory of recovery, is a recognized exception to the rule that attorney's fees in Arizona are allowed pursuant only to statute or contract.

There are exceptions to the general rule which allow the court, in order to do equity, to assess attorney's fees against the defendant. One such exception is the "common fund" theory adopted in Steinfeld v. Zeckendorf, 15 Ariz. 335, 138 P. 1044 (1914), aff'd 239 U.S. 26, 36 S.Ct. 14, 60 L.Ed. 125 (1915), where a stockholder's suit for the benefit of the corporation resulted in the recovery of monies by the corporation. The court stated:

In such a case, attorney's fees may be paid the successful litigant from such a fund. Steinfeld v. Zeckendorf, 15 Ariz. 335, 138 P. 1044 (1914), aff'd, 239 U.S. 26, 36 S.Ct. 14, 60 L.Ed. 125 (1915); 49 A.L.R. 1149. Such an exception, if viable in probate proceedings, is of no help to Cavness, as the fund which was created was the distributive share of the two adopted minors from the Caroline Brandt O'Brien estate, and no one questions the right of Cavness to be paid attorney's fees from this source.