1843-Reed v. O'Brien.

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.

[*39]

*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.[1]

[1] Although a demurrer was allowed, with leave to the plaintiff to amend, yet as the objection was of a frivolous nature, the court refused costs of the demurrer. Balls v. Margrave, 3 Beav. 288.

1843.-Bliss v. Putnam.

*BLISS v. PUTNAM.

[*40]

1843: November 3.

A. B. being entitled to a legacy, and being indebted to C. D., by a deed which represented that it was "unincumbered," assigned it to C. D. upon trust, to retain a moiety, and 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 proceedings to clear and ascertain the fund and obtain payment.

UNDER 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 & Co. in the sum of 40007., 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 moneys received by them, until 25007. should be paid, and as to the residue of the moneys in trust for John C. Putnam.

John C. Putnam died in July, 1840; his interest thereupon ceased, and it was found that the moiety of his portion of the income was insufficient to discharge the 25001. The whole was in court, and legacy duty, at the rate of 3 per cent., was payable on the amount. Messrs. Wild & 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 was now presented by the executors of John [*41] C. Putnam for payment to them of the money in court, after providing for the claim of Wild & Co.

The questions were, first, whether the moiety to which Messrs. Wild were entitled, was to bear its share of the legacy duty; and,

1843.-Nicholls v. Stretton.

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 & 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.

[*42]

1843: December 5.

NICHOLLS v. STRETTON.

A. on being articled to B., covenanted not to be concerned for any of B.'s clients, and to forfeit 1001. for any such breach. A. after being admitted, acted in contravention of this covenant. He was restrained by injunction.

IN January, 1838, the plaintiff took the defendant as an articled c erk for five years without premium. At the same time, an indenture was executed between them, whereby the defend

1843.-Nicholls v. Stretton.

ant covenanted that he would not, during the said term of five years, nor at any time after the expiration of such term, either directly or indirectly, 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 business 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 agreement, he should forfeit and pay, as and for liquidated damages, the sum of 1007. 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 books of [*43] the plaintiff, admitted by him to have been so introduced by the said defendant. And it was thereby expressly declared, that it was the true intent and meaning of the now stating deed and of the said articles of clerkship, that the plaintiff should not be obliged to continue the said Charles Marston Stretton in his service, against his will, during the whole or any part of the said term of five years, but that the said defendant should and would, notwithstanding the said articles of clerkship, at any time quit the service of the plaintiff, on receiving from the plaintiff one week's notice in writing so to do, the plaintiff thereby agreeing to assign the said articles of clerkship to such other attorney as the defendant might, in such case, require, but such assignment of the said articles of clerkship, was not to affect or invalidate the covenants, promises, and agreements therein contained.

1843.-Nicholls v. Stretton.

At the expiration of the articles in 1843, the defendant left the plaintiff and was admitted an attorney.

The plaintiff, finding that the defendant transacted business for some country solicitors who had been his clients and connections, filed this bill, praying that the defendant might be perpetually restrained by injunction from interfering or intermeddling with, or being concerned, as an attorney, agent, or otherwise, for any client or correspondent of the plaintiff, or of the plaintiff and his partners, in the plaintiff's business of an attorney, solicitor, or conveyancer.

A motion was now made for an injunction in the terms of the prayer.

[*44]

*Mr. Pemberton Leigh and Mr. Goodeve, for the plaintiff, relied on Whitaker v. Howe.(a)

Mr. Kindersley and Mr. Rogers for the defendant.

The covenant is in restraint of trade, and so oppressive in its nature, that this court, if asked, would not interfere and direct. specific performance, but would leave the plaintiff to his action for damages. If so, it should not grant the injunction. The defendant was liable to be turned away at a week's notice, and yet, by the strict terms of the deed, if the plaintiff had ceased to be employed by a client before the defendant was born, and such client never intended to employ the plaintiff again, still the defendant was to be precluded from being concerned for him and no injury might be done to the plaintiff. It might be most detrimental to third parties to prevent the defendant acting for them. The deed was never executed by the plaintiff, and there is, therefore, no mutuality.

Mr. Pemberton Leigh, in reply.

THE MASTER OF THE ROLLS:-In all cases of this kind,

(a) 3 Beavan, 383; and see Davis v. Mason, 5 Term R. 118; Hitchcock v. Coker, 6 Adol. & El. 438; Archer v. Marsh, ib 959; Horner v. Graves, 7 Bing. 735; Proctor v. Sargent, 2 M. & Gr. 20; Ward v. Byrne, 5 Mee. & W. 548 ; Hinde v. Gray, 1 Man. & G. 195; Wallis v Day, 2 Mee. & W. 273.