Rowland v Witherden
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1851 |
| Date | 08 November 1851 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 379
HIGH COURT OF CHANCERY
S. C. 21 L. J. Ch. 480. See Speight v. Gaunt, 1883, 9 App. Cas. 5.
[568] rowlands witherden. Feb. 11, 12, Nov. 8, 1851. [S, C. 21 L. J. Ch. 480. See Speight v. Gaunt, 1883, 9 App. Cas. 5.] In a suit where one of three Defendants had been examined by the Plaintiff, and the bill on that account dismissed as againat him, a decree was, nevertheless, made against the other two Defendants, the Court holding that, in order to obtain the relief prayed against the two, a decree against the third also was not necessary. Whether, since the Act 6 & 7 Viet. c. 87, a decree can be made against a Defendant who has been examined as a witness in the suit. Qucere.. Trustees of stock sold it out and committed the proceeds to their solicitor for investment, by whom it was misapplied and lost: Held, that the trustees were liable for a breach of trust, and that the cestuis que trust were entitled to relief against both the trustees and the solicitor, and that they might sue either the trustees alone, or the trustees jointly with the solicitor. This was an appeal by the Plaintiffs against a decision of the late Vice-Chancellor of England, dismissing a bill filed by Mrs. Rowland and her children, against the 380 BOWLAND V. WITHERDEN 3 MAC. 4s 0. W9t Defendants Witherden, Morpeth, and Jenner, the two former being trustees of certain stock, in which the Plaintiffs were respectively interested, and the Defendant Jenner having acted as their solicitor in dealing with a portion of that stock. [569] In 1838 the trustees sold out so much of the stock as produced 1115, and they paid that sum to the Defendant Jenner, for the purpose of its being invested on mortgage : Jenner, however, misapplied the money, and never made the intended investment. Of this misapplication by Jenner, the other Defendants had no notice until April 1847 ; but, up to that time, they were led by Jenner to believe that he had made the investment according to his duty and representations; and Jenner made remittances to Mrs. Rowland, as for interest received by him in respect of the investment which he professed to have made. In April 1847 the non-payment of the interest on the sum supposed to be invested, and other circumstances, induced inquiry, which led to the discovery that Jenner had misapplied the money. Upon this discovery, the Defendants Witherden and Morpeth endeavoured to obtain payment or security from Jenner, but before either was obtained, and in February 1848, the present suit was instituted against the trustees and Jenner. The bill prayed that the stock sold out might be...
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