1843. REED v. O'BRIEN. The Defendants demurred ore tenus for want of parties, and stated several objections. Having regard to the allegations of the bill, I do not think, that as the case is now stated, the legal personal representative of General de Lacy is a necessary party. But the Plaintiffs are only assignees of a share once vested in Johanna Pierce, in trust for persons who are not parties; and it does not appear to me, that the suit can proceed in the absence of these cestuis que trust. The trusts are alleged to have been created in or about 1817 or 1818, for the benefit of the families or descendants of the sisters of General de Lacy. Johanna O'Brien, one of the sisters, died before 1795, leaving a daughter Johanna Pierce, who died in 1821, leaving children. Johanna Pierce was living in 1818, and, according to the statement in the bill, was entitled to a share of the trust funds, and upon her death, this share would pass to her legal personal representative. Mary de Lacy Pierce was one of the children of Johanna Pierce. In April 1836, she married Charles Nash, and in April 1837, it is alleged, that a deed was executed, whereby John Fitzmaurice Pierce (the surviving husband of Johanna Pierce), and other persons, assigned to the Plaintiff O'Connor and George Pierce a share of the 60,000 silver roubles, part of the alleged trust funds, in trust solely for the issue of the marriage of Charles Nash and Mary de Lacy Pierce. Such, at least, appears to me to be the effect of the statement of this deed which is in the bill; but the statement is in itself not only ambiguous, but so made, as to throw some doubt upon the nature of the principal trust alleged in the bill. It is subsequently alleged, that John Pierce (meaning, I presume, John Fitzmaurice Pierce) became the legal personal representative of his deceased wife Johanna, and that by a subsequent deed, the Plaintiff Reed was substituted as a trustee for George Pierce. This bill is filed by Reed and O'Connor, the trustees of the post-nuptial settlement of Nash and his wife; and it being stated that the settlement is made solely for the benefit of the issue of the marriage, it is said, that there is issue of the marriage; but they are not parties to the suit, and they may file a bill against these Defendants in respect of the same matters, after an adjudication in this suit in their absence. I am therefore of opinion, that they must be made parties before the cause can proceed. Allow the demurrer ore tenus for want of parties without costs, and let the Plaintiffs have leave to amend. I wish to add, that the frame of this bill is such, that having thought it right to overrule the demurrer for want of equity, I must nevertheless refuse to the Plaintiffs the costs of that demurrer. 1843. REED v. O'BRIEN. 1843. Nov. 3. A. B., being entitled to a legacy, and being indebted to C. D., by a deed which represented that it was "unincum bered," as D. upon trust, to retain a moiety, and UNDER BLISS v. PUTNAM. INDER the will of a testator, who died in 1838, John C. Putnam was entitled to a life interest in a moiety of the testator's residuary estate. John C. Putnam, being, together with his copartner, indebted to Messrs. Wild and Co. in the sum of signed it to C. 40001, executed an indenture, dated in September 1838, and thereby, after reciting the will, and that he had proposed to pay 2500l. to Messrs. Wild in discharge of his individual liability, and that he had represented, that his "life interest was not then incumbered," and had proposed to secure the 2500l. as after mentioned, John C. Putnam assigned to Messrs. Wild all the interest, &c. thereafter to arise from one moiety of the testator's residuary estate, upon trust to retain a moiety of the monies received by them, until 2500l. should be paid, and as to the residue of the monies in trust for John C. Putnam. as to the residue in trust for A. B. The fund was in Court, and liable to legacy duty. Held, first, that C. D.'s moiety must bear its share of the legacy duty; and, secondly, that C. D. was not entitled, as against A. B.'s share, to the costs of the clear and as certain the fund and ob tain payment. John C. Putnam died in July 1840; his interest thereupon ceased, and it was found that the moiety of his proceedings to portion of the income was insufficient to discharge the 2500l. The whole was in Court, and legacy duty, at the rate of 3 per cent., was payable on the amount. Messrs. Wild and Co. had incurred the costs of a petition presented by them, and of certain proceedings before the Master to inquire what was due under the deed, and what portion of the fund in Court had arisen from income accruing after the date of the deed. A petition A petition was now presented by the executors of John C. Putnam for payment to them of the money in Court, after providing for the claim of Wild and Co. The questions were, first, whether the moiety to which Messrs. Wild were entitled, was to bear its share of the legacy duty; and, secondly, whether Messrs. Wild's costs ought to be paid out of the portion of the fund belonging to the executors of John C. Putnam. Mr. Kindersley and Mr. Goodeve, for the executors of John C. Putnam. Mr. Turner and Mr. Stevens, for Messrs. Wild and Co. contended, that as John C. Putnam had represented his life estate to be unincumbered, and had agreed to assign an unincumbered moiety, his share ought to bear the whole amount of the duty; and, secondly, that Messrs. Wild were entitled to the costs incurred in obtaining the fund, especially as they were to some extent trustees. The MASTER of the ROLLS. The question is, what is to be done as to the legacy duty and the costs. The legacy duty being a government charge on the fund, does not, I think, come within the view of the parties under the word "incumbrance." It appears, therefore, to me that the legacy duty is payable out of the whole fund. As to the costs, I expected some authority would have been cited. If none can be found, my impression is, that the second moiety is not applicable to the payment of the costs, because by the deed it is made the property of John C. Putnam himself. Each party must bear his own costs. 1843. BLISS บ. PUTNAM. 1843. A. Dec. 5. NICHOLLS v. STRETTON. 4. on being IN January 1838, the Plaintiff took the Defendant as an articled clerk for five years without premium. At articled to B., covenanted 100%. for any such breach. admitted, acted in con travention of not to be con- the same time, an indenture was executed between them, cerned for any of B.'s clients, whereby the Defendant covenanted that he would not, and to forfeit during the said term of five years, nor at any time after the expiration of such term, either directly or indirectly, 4. after being interfere, or intermeddle with, or be concerned, as attorney, agent, or otherwise, for any person who had already been, or who should, from time to time thereafter, become or be the client or correspondent in busiby injunction. ness of or with the Plaintiff, or any partner or partners he might admit to a share or shares with him, or any person or persons, to whom he might sell or assign the whole or any part of his business or profession of attorney, solicitor, and conveyancer. And that he the Defendant would not act as partner, clerk, or assistant with or to any person or persons who should interfere or intermeddle as aforesaid. And in case the Defendant should commit any breach or breaches of his said covenants, promises, and agreements, he should forfeit and pay, as and for liquidated damages, the sum of 100%. for every such breach. And it was thereby declared, that each day's repetition or continuance of any interference or intermeddling, as aforesaid, should be deemed a fresh breach of covenant, and incur a new and separate penalty and right of action. Provided nevertheless, that the same covenant was not to restrict the Defendant from being concerned in business for any of the connections of the said Defendant, who might, through his introduction, become clients of the Plaintiff, and being on the |