Page:Federal Reporter, 1st Series, Volume 8.djvu/474

460 FEDERAL aEPOilTBB. ���Gampbell and others v. Campbell. {Circuit Court, D. Oonnecticut. July 29, 1881.) �1. Evidence— BuBDBN op Proop. �The burden of proof is. on him who cliargcs a trustee with surchaiging and falsifying his accounts. �2. Trust Fuiros— Bueach op Trust. �A trustee cannot use trust f unda for his own profit. �3. Same — Samb. �A trustee purchased bonds with trust funds, tumea them over to the tru.=i estate at an enhanced priee, and treated thc difference as his individual profit. Hda, that the investment must be regarded as the estate's from the time of tho purchase. �Exceptions to Master's Eeport, �Shipman, D. J. The firat exception of the defendant to the mas- ter's report is allowed, on the ground that there was not, in my opin- ion, sufficient affirmative evidence that the defendant received $125 for the store fixtures. The second exception of the defendant to the master's report is allowed in part, to-wit, to the extent of $30, and interest thereon. As to the remaining $35 this exception is not allowed. The third, fourth, fifth, sixth, seventh, eighth, and ninth exceptions of the defendant to the master's report are disallowed. With the exception of the first, and $30 and interest on the second, item contained in the master's report, and the correspdnding correc- tions to be made in the eomputations of interest and in the addition of figures, the master's repoi-t is conarmed. The ground of all the exceptions is substantially the same, viz. : that the master erred in this, that he mistook upon whom lay the burden of proof of the items attempted by the plaintiff to be surcharged and falsified in the account of November 17, 1871, and was of opinion that the defend- ant was bound affirmatively to account for all moneys belonging to the estate which came into his hands ; whereas the master should have held and been of opinion that the plaintiffs were bound toprove, by sufficient affirmative evidence, the facts alleged in their bill, and to show affirmatively that the alleged alterations should be made. �I am of opinion that the idea of the defendant in regard to the master's action is incorrect, and that the defendant's and the master'B theory in regard to the burden of proof was the same; and that, in any event, the plaintiff affirmatively proved, and the defendant did not disprove, the facts found by the master in regard to each of the items except the first and second. ��� �