Page:Federal Reporter, 1st Series, Volume 2.djvu/328

 i!I BH JORDAIf. S21 �tion. Undçr the law, as it was formerly declared in England, and 80 long as double proof was not permltted, it might be that the crediter was put to his election whether to proceed eventually against the firm estate or that of its members, though at the present day, since the aet of 1869, it may be that double proof might now be permitted. No such question of election can here arise, as our bankrupt act and the decisions of the courts here allow of double proof in cases •where a joint and several liability exists. �The foUowing are some of the English cases which permit proof of debt to be made when the executer or trustee has committed a breach of trust by improperly loaning the funds in his hands: Ex parte Watson, 3 V. & B. 41^; Ex parte Heaton, Buck's Bankruptcy Cases, 35, in which the vice chaneellor says: "Those who receive trust property from a trustee, in breach of his trust, become themselves trustees, if they have notice of the trust;" Ex parte Poulson, De Gex, 79 ; Ex parte Woodin, 3 Mont. Dea. & De Gex, 399 ; 6 De Gex, M. & G. 795, 801 ; Ex parte Ca/rne, L. E. 3 Ch. 463 ; Ex farte Narres, L. E. 4 Ch. 280 ; Ex parte Adamson, L. E. 8 Ch. Div. 807. �In Adair v. Shaw, 1 Sch. & Le Froy, a62, Lord Redesdale Bays: "Trusts are enforced, not only against those per- sons who rightfully are possessed of the trust property as trustees, but also against ail persons who corne into posses- sion of the property bound by the trust, with notice of the trust, and whoever so cornes into possession is considered as bound, with respect to that special property, to the execu- tion of the trust." Many of the authorities wHl be found in 2 Lindley on Part. 1247. �Judge Treat, in In re Tesson, 9 B. E. 379, held that where an executer had invested funds of the estate in his partner- ship business, with the knowledge and assent of his copart- ners, the parties entitled to the fund may prove their debts against the partnership, although they have proved against the estate of the executer. The only point upon which the leamed judge appears to have entertained any deubt was whether they could pursue both the firm and individus)- �v.2,no.3— 21 ����