ever adopted in a Christian country. The proposition of the civil law is very plain; but it turned upon local circumstances. All conditions upon marriage, without reasoning upon the effect or nature of them, were contrary to a positive law made in encouragement of marriage upon the peculiar circumstances of the Roman world at that time, antecedent to the two laws, Lex Julia and Lex Papia Poppaa.

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With regard to marshalling the assets, in Prowse v. Abingdon, 1 Atk. 482, Lord Hardwicke had the point pressed upon him by Mr. Fazakerly; and Lord Hardwicke declared it impossible to marshal in any case, except where in the first instance the person entitled to the legacy had an established claim distinctly and solely upon the personal estate; and there could be no case for marshalling, where the legacy fails to affect the real estate in consequence of an event, that happened subsequent to the death of the testator; as the death of the legatee before the time of payment. If marshalling could be carried to the extent of Reynish v. Martin, it might have been pursued in all the cases that have been decided. There is a singularity in the doctrine, as it now stands; that as far as it affects one fund, it is good; as far as it affects the other, bad: but it would be still more singular, if it shall sink in one case and not in the other, but the land making good the personal estate shall be charged. The point was of very little moment in Reynish v. Martin; for in [140] Mr. Forrester's note the gross amount of the personal estate is stated to be 100l.; and Mr. Wilbraham, in Lord Hardwicke's note says, it is 1007. odd shillings and pence; therefore he speaks accurately from an account of it. The legacy was 8001. Therefore I would not follow that case to introduce a new point with regard to marshalling assets against established rules. The assets cannot be marshalled. It would be directly against Prowse v. Abingdon: the contingency is the same; and I cannot charge the real estate indirectly. I have found in Lord Hardwicke's Note Book the case mentioned by the Solicitor General. There is very little of it, but exactly what he states. The note is this: "Lowe v. Mosely upon the will of Mills. 3007. given to his daughter: 1507. at the age of twenty-four; 150l. at twenty-six. He devises his real estate to his son James, he paying debts and legacies. Several questions upon acts the son had done. He had mortgaged; question, whether the charge remained against the mortgagee. She died between twenty-four and twenty-six. I was of opinion, that 1507. was due, but that the other 1501. sunk in the real estate, she dying under twenty-six." Not a word said about marshalling. It was a mixed fund; and a mortgage, I think, was one of the charges, that affected the personal estate.

SEE, ante, note 4, to Stackpole v. Beaumont, 3 V. 89, and to the authorities there cited, in support of the doctrine, that a portion charged upon land, payable at a future day, does not vest till the time of payment, see Phipps v. Lord Mulgrave, 3 Ves. 613.

BOULTON v. BULL.

[1796, JUNE 2.]

INJUNCTION; that the validity of a patent might be tried at law: verdict for the patentee, subject to the opinion of the Court upon the case: the Court equally divided: the patentee must bring another action: but the Court on the possession would not impose any terms upon him, nor dissolve the injunction in the mean time. (a)

BOULTON and Watts had obtained a patent for a fire-engine; under which they had been in possession twenty-seven years (1). The bill was filed for an injunction to restrain Defendants from infringing the patent; and an injunction was obtained, that the question as to the validity of the patent might be tried in an action. The Plaintiffs brought an action in the Court of Common Pleas ; and obobtained a verdict, subject to the opinion of the Court upon a case stated. Upon argument of that case the Court was equally divided (2).

In the

[141]

Mr. Graham and Mr. Alexander moved to dissolve the injunction. Attorney General [Sir John Scott], for the Plaintiffs. It is the most ordinary jurisdiction of the Court to say, they will not alter the possession, *till the right is decided. In the case of waste it is the specific right of the party to have the interference of the Court. In that case the Court would not permit the timber to be cut upon giving security for the value. So here there is a specific right, which the law will protect. I admit, we are bound to bring another action.

Lord CHANCELLOR [LOUGHBOROUGH]. I cannot put the patentees upon the acceptance of terms, that upon collateral reasons they think may be disadvantageous to the exercise of the right, of which they are in full possession: neither can I put them out of possession upon the difference of opinion of the Court. That is not the fault of the Plaintiffs. What has passed in the Court of Common Pleas does not shake their right; but strongly supports it. The verdict, though it has failed of effect, is not to be disregarded. The opinions of the Judges on both sides are deserving of great respect. If nothing can be done upon this, there must be another action. In

(a) The law has been settled in England, with regard to the granting of injunctions, that statute privileges, no less than common law rights, when in actual possession and exercise, will not be permitted to be disturbed, until the opponent has fairly tried them at law and overthrown their pretension. The Federal Courts, under the patent laws of Congress, have equally protected the right by injunction. Livingston v. Van Ingen, 9 Johns. 585. See Rogers v. Abbott, 4 Wesh. C. C. 514; Ogle v. Ege, Ib. 534. If a new trial is proposed to be moved for, this is a ground, on the part of the defendant, for opposing a motion by the plaintiff to make the injunction perpetual, and on the part of the plaintiff, for opposing a motion of the defendant to dissolve it. Godson, Patents, 631; Gibbs v. Cole, 3 P. W. 256. See Phillips, Patents, 451-469, ch. 24.

(1) The patent, which was originally granted in 1769 for 14 years, was by Stat. 15, Geo. III. renewed for 25 years.

(2) 2 H. Blackst. 453; Hornblower v. Bolton, 8 Term Rep. 95.

the mean time the injunction must be continued. I will not put them to compensation. I will not disturb the possession of their specific right. It is of notoriety, that this fire-engine has been erected in many parts of the country with great advantage.

For the Defendants. It was then desired, that the action might be brought in the Court of King's Bench: to which it was answered, that they might have a special verdict in the Common Pleas ; upon which there might be a writ of error.

Lord CHANCELLOR. I will not lay them under any terms in bringing the action (1).,

Ir any infringement of a patent be attempted, after there has been an undisputed enjoyment by the patentee under the grant, for a considerable time; Courts of Equity will deem it a less inconvenience to issue an injunction until the right can be determined at law, than to refuse such preventive interference, merely because it is possible the grant of the Crown may, upon investigation, prove to be invalid. Such a question is not to be considered as it affects the parties on the record alone; for, unless the injunction issues, any person might violate the patent, and the consequence would be, that the patentee must be ruined by litigation. Harmer v. Plane, 14 Ves. 132; Universities of Oxford and Cambridge v. Richardson, 6 Ves. 707; Williams v. Williams, 3 Meriv. 160. But, if the patent be a very recent one, and its validity is disputed, an injunction will not be granted before the patentee has established his legal right. Hill v. Thompson, 3 Meriv. 624.

ATTORNEY GENERAL v. WHITCHURCH.

[ROLLS.-1796, JUNE 6.]

WHERE a charity cannot be executed as directed, but the general purpose appears distinct, and may be in substance attained by another mode, it shall be executed cy pres: but a personal bequest attached to a void charity, as an endowment, must fall with its principal. (a)

THOMAS COOKSEY devised four tenements in Jiggin Street, in the parish of St. Martin's, Sarum, to the churchwardens and vestry-men of the said parish "in trust for them to give to such poor men of this parish, as they think fit; if any of the descendants of John

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Jenneway, formerly of this parish, apply, I desire, that [142] they may be preferred to have it; and as I intend these four house to be in the manner and custom of alms-houses for men and their wives, I give and bequeath to the churchwardens and vestry-men of this parish of St. Martins, Sarum, the sum of 20007., that is to say, in the 47. per cent. Government securities, in special trust for them to dispose of the interest in the following manner that is to say, my will is for them to give or allow to each of the four persons, that they allow or permit to inhabit the four

(1) Harmer v. Plane, post, vol. xiv. 130; Hill v. Thompson, 3 Mer. 622. (a) As to the doctrine of cy pres, see, post, 633, note (a) to Attorney General v. Andrew.

houses in Jiggin Street, the sum of 137. per annum, or 5s. a week, to be paid weekly, monthly, or at their discretion; that is for a man and his wife if one of them die, the single one to have 3s. 6d. a week; and not permitted to bring in a second husband or wife.”

The testator then gave the remainder of the said interest to other charitable purposes; to which there was no objection. He appointed executors; but made no disposition of the residue.

The testator afterwards having placed in the four tenements in Jiggin Street, four of his relations, namely, John Jenneway the elder, John Jenneway the younger, Mathew Jenneway and Samuel Smith, son of Elizabeth Smith, daughter of John Jenneway mentioned in the will, upon the 27th of December, 1792, by deed conveyed the said four tenements to trustees, to hold to them and their heirs to such charitable purposes as aforesaid; particularly directing, that the said four tenements should at all times for ever after be held and used as almshouses, to be at all times hereafter occupied by four poor men and their wives, to be chosen and placed therein from time to time in manner therein mentioned: but he directed, that upon all occasions persons descended of John Jenneway, formerly of that parish, should be preferred thereto. This deed was duly enrolled in the Court of Chancery on the 10th of January, 1793. The testator died on the 29th of September, 1793. The information was filed at the relation of the churchwardens and vestry-men of the parish of St. Martin's, and a bill by John Jenneway the younger, and Smith, praying an account of the personal estate ; that the bequest of the 2000l. stock might be established, and the fund transferred to the relators to be appropriated according to the intention of the testator, or as nearly thereto, as the circumstances might admit; or otherwise that it might be declared, to what extent the bequest was good. The Plaintiffs [*143] charged, that if so much of the bequest of 2000l. stock, as related to the persons to be inhabitants of the said four tenements, was void, yet the Plaintiffs were entitled to the benefit thereof for their lives as a personal bounty to them.

Mr. Lloyd and Mr. Hart, for the Plaintiffs. The bequest is good, unless it is so annexed to the houses as to bring it within Wheatley's Case, which went upon the locality; the church being to be built in a particular place. Attorney General v. Goulding, 2 Bro. C. C. 428, has been since disapproved: ante, Vol. II. 388. The general charitable purpose shall be established, though the particular mode fails. Here the substantial purpose is to provide for four poor men and their wives. Moggridge v. Thackwell, 3 Bro. C. C. 517, ante, Vol. I. 464 (1). In De Costa v. De Pas, Amb. 228, a legacy to establish a Jewish synagogue was given to the Foundling Hospital.

Mr. Piggott and Mr. Romilly, for the widow: Mr. Graham and Mr. Daniel, for the next of kin. This is an endowment of these

(1) Post, vol. vii. 36. See the notes, ante, vol. i. 469, 554.

alms-houses, not a general charitable purpose. The distinction attempted would set aside the Statute of Mortmain: in the case of a school or an hospital it would be said, the purpose was education or the cure of sick. It was attempted in Grieves v. Case, 4 Bro. C. C. 68, ante, Vol. I. 548: but it did not prevail. There is no such specific object here as in Blanford v. Thackerell, 4 Bro. C. C. 394, ante, Vol. II. 238; where the primary object clearly was to educate the relations.

MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. Upon this charitable disposition it was contended, that though it must be admitted, that the gift of the four tenements is void by the Statute of Mortmain, yet the other part, so far as it concerns the 2000l. stock appropriated for the maintenance of the poor men and women, may be supported as not being essentially connected with or belonging to it, but as denoting a general intention; which, though the rest fails, may remain and be fulfilled. With regard to the principles, upon which this Court has administered charities, where the same cannot be carried literally into effect, I refer and adhere to those principles, which I laid down as the rule, by which I conceive this Court ought to govern itself, in The Attorney General v. [144] Boultbee, * ante, Vol. II. 380, post, 220. A charitable bequest cannot be defeated by the negligence or default of the person to administer it, or by the impossibility to give effect to every circumstance. If the general intention appears consistent with the rules of law, and not against the Mortmain Act, it shall be carried into effect without regard to the secondary objects, which the testator might have intended.

The doctrine of cy pres, which has been so much discussed in this Court, and by which I understand the rule to execute the charitable intention as nearly as possible, however wildly and extravagantly it has been acted upon in former cases, is by late decisions, particularly since the Statute, administered in this way. The Court will not administer a charity in a different manner from that pointed out, unless they see, that though it cannot be literally executed, another mode may be adopted, by which it may be carried into ef fect in substance without infringing upon the rules of law. If the mode becomes impossible, the general object, if attainable, shall not be defeated. Therefore, though I agree with Lord Northington in The Attorney General v. Tyndall, Amb. 614, (1), that this Court is not to study to evade the Statute, with that restriction, I agree with Lord Hardwicke; in whose time the Statute passed, and to whose decisions upon this Statute and upon all other points I shall pay the greatest respect. At the same time I must admit, that the authority of The Attorney General v. Bowles, 2 Ves. 547; 3 Atk. 806, has been shaken by subsequent authorities; and it is not one of those decisions of his, that I can entirely concur in : I mean that part of it where admitting, that the object was to erect a building upon

(1) 2 Eden, 207.

land