case William gardener clerk plaintiff james cook clerk edward Griffith clerk  and John Griffith clerk defendant in court Lord chancellor if a advowson be  mortgage and the church become void the right of presentation be in the  mortgagor the that of July the plaintiff file his bill against the say  defendant set forth that king Charles two by letter patent under the great  seal bear date the that of November among other thing grant to John Lord  Freshville the advowson and right of presentation to the rectory of Ecklington  cum Kilwalmarsh in the county of Derby worth about pound per and for thirty  one year from Michaelmas that Lord Freshville by indenture hear date the that  of December assign over the say advowson to trustee who by indenture hear date  the that of February declare the trust for Samuel gardener doctor in divinity  that the that of February king Charles two grant the say advowson of the say  rectory to the say Lord Freshville for ninety nine year in trust for dr Samuel  gardener the plaintiff grandfather his executor administrator and assign who  enjoy the same as rector thereof for his life and the plaintiff father Samuel  gardener succeed the say dr gardener and be incumbent thereof during his life  and bring up the plaintiff a clergyman to succeed he in the say rectory that  the d of July the plaintiff father mortgage the term in the say rectory be  about sixty three year to come to the defendant cook a neighbour clergyman as  a security for which his father have before borrow of he on his bind and to  indemnify he against a bind for pound more for which the defendant cook be  surety for the mosely report plaintiff father that about July the defendant  cook press to have his money pay the plaintiff father procure the same and  acquaint cook therewith but he then decline receive it and desire it may not  be pay in till the lady day then next follow for fear he shall be rob his  house be old and ruinous and the plaintiff father be at that time in of the  sickness whereof he die the defendant cook promise that whenever he shall die  or immediate if he will resign that he will present the plaintiff and renew  the same assurance to the plaintiff at his father funeral that the plaintiff  father on the that of September die intestate and the plaintiff take  administration to he and thereby become entitle to the equity of redemption of  the premise and the plaintiff desire to be present the defendant cook insist  to have further security for the aforesaid pound and for his indemnity against  the aforesaid bind of pound and interest which the plaintiff be advice he can  not safe do without incur the danger of simony the church be then vacant upon  which the defendant cook private and without the previous knowledge of the  plaintiff execute a instrument for present the other defendant John Griffith  and cook pretend that the right of presentation be in he and that the  plaintiff consent be not necessary but only matter of form and the other  defendant promise he their interest for the live of Hitchinstoke in Hampshire  which the defendant John Griffith then enjoy and which will become vacant by  his acceptance of the other and have first warm he with liquor they prevail  upon he to consent before the bishop of Coventry and Litchfield to the  presentation of the defendant John Griffith though at first he positive refuse  and be at last prevail upon with great reluctance by the threat of the  defendant Edward Griffith and for fear of be throw into gaol for his father  debt for which he stand bind and which the defendant the Griffiths promise to  pay off if the plaintiff will consent to their proposal that the defendant  John Griffith have be since institute and induct into the say rectory and  afterward the defendant continue their assurance for procure preferment for  the plaintiff till they apprehend his time for bring a quare hinder be expire  and then there be a end of all promise of that kind the plaintiff therefore  offer to pay the say debt of pound and pound and interest and pray that upon  payment thereof the defendant cook may assign over the say rectory with the  appurtenance to the plaintiff for the residue of the say term of ninety nine  year and that the defendant John Griffith may resign the say rectory that  mosely report er p the plaintiff may be present thereto and enjoy the same to  which bill the say defendant put in their several answer and the cause come on  to be hear the that of January the council for the plaintiff argue that the  mosely report defendant cook have no right to the say rectory any further than  as a security for his principal and interest and until there be a foreclosure  the right of presentation upon a vacancy since such presentation can be apply  towards satisfaction of the principal and interest secure by the mortgage  ought in equity to be enjoy by the mortgagor accord to many precedent in the  court of chancery as sir John Hobart versus sergeant Selby Selby the mortgagee  have present but there be no institution and Lord Cowper decree that the  conveyance shall be consider only as a security and that he shall withdraw his  presentation and present he that sir John Hobart the mortgagee shall nominate  and wood and henchman versus sir bibi lake and Crofts vern Stanley be tenant  for life of the manor and advowson of Adderley mortgage it to sir bibi lake  who enter before the church become vacant then Stanley grant the next  avoidance to wood the incumbent die and sir bibi lake present Crofts to the  bishop who refuse he institution till wood be misinform by his council that he  have no right but from no imposition practice on he by sir bibi lake post  consent thereto before the bishop afterward wood present henchman and they  bring a quare hinder and a bill in this court against sir bibi lake and Crofts  and Lord Harcourt decree that the mortgage shall not be give in evidence upon  the quare hinder and that the defendant shall pay cost and the Lord chancellor  say in this case if a quare hinder have be bring in time he will have remove  everything out of the way in the same manner and they further insist that the  defendant cook always promise to present the plaintiff to the say rectory till  such time as the plaintiff refuse to comply with term which be not proper  during the vacancy thereof to which it be answer by the council for the  defendant first that as to the pretend trust and agreement that the defendant  cook shall present the plaintiff upon the death of his father the defendant  cook have positive deny it by his answer and the plaintiff have not make the  least proof whatsoever of it and the mortgage deed plain and express prove the  contrary second that the defendant cook by virtue of his mortgage have the  legal right of presentation in he with a express covenant and agreement enter  into by the plaintiff father that the say defendant shall present as often as  the rectory become void and that if the right of presentation be not effectual  assign to and vest in he by the mortgage deed that then the plaintiff father  his executor and administrator shall from time to time present mosely report  such person as the defendant cook shall nominate and no other this covenant in  the mortgage deed be not good be a collateral further security for thereby the  mortgagee will be entitle to the presentation as well as to his money Jennings  versus ware vern a lend money to b on a mortgage and take a covenant from b by  another deed that if a shall think fit b shall convey to a so much of the  mortgage estate as shall be of the value of the money lend at twenty year  purchase the master of the roll decree this covenant to be set aside as  unreasonable this be no further security of a valuable nature and therefore  differ from the case of Jennings versus ware three that the defendant cook  have no other security whatsoever for his money but the mortgage of the say  advowson or right of presentation in which the mortgagor have no interest but  a term of about sixty three year to come when the mortgage be make and which  possible one succeed incumbent may outlive and therefore it be high reasonable  the defendant cook shall have the presentation and that be the reason of those  particular covenant whereby contrary to the other case where a manor with a  advowson appendant be mortgage the mortgagor become a trustee of the  presentation for the mortgagee fourthly that the plaintiff himself consent  before the bishop to the defendant John Griffith be institute into the say  live this pretend consent be very unfair obtain for it be impossible in the  nature of the thing to imagine that such a consent can be a voluntary act if  he have be full apprise of his right for he be educate a clergyman with a view  to be provide for by this advowson and he have no other dependence for a  subsistence and have no manner of consideration for consent to a act which  will deprive he of his mosely report er p bread and the only prospect he have  for his subsistence save what be lie before he to delude he beside there be a  mispresentation of the truth the defendant cook have tell he that the right of  presentation be not in the plaintiff but in himself and that he have no  occasion for his consent and this be not in the power of the plaintiff to  contradict the defendant cook have all the title deed in his custody the  defendant likewise threaten to throw the plaintiff into gaol and other  threaten be make use of to terrify he into a compliance and at the same time  it be insinuate to he mosely report that it will be more for his interest to  comply and as a further imposition he be heat with liquor to induce he to  consent and notwithstanding all those unfair practice it appear that at the  time of this pretend consent the plaintiff be in the great confusion and  scarce know what he say or do the defendant by their answer have all deny that  they apply to the plaintiff for his consent or either threaten or promise he  any thing on that account nor do they think his consent necessary and when the  bishop send for he he tell he he will not institute the defendant John  Griffith without his consent and it be full prove by the bishop and his  secretary that the plaintiff do consent and that no argument be use by  Griffith the father or any body else to bring he to consent and it be not  credible that the reverend prelate shall take the consent of a man in drink  five the defendant John Griffith be present the that of December institute the  that and induct on the d of the same month and the bill be not exhibit till  the that of July so that six month be elapse after the institution and  induction before the bill be file and when the church have be full for six  month without any legal claim or process the wisdom of the law have think fit  to prevent any litigation or disturbance after that time this be occasion by  the defendant fraudulent practice unfair representation and delusive promise  and consequent this be a case of fraud the objection be of no weight in a  court of equity as have be always hold in the parallel case of the statute of  limitation and fine have be adjudge no bar on the same account though these  statute be make for the good and quiet of the subject in general the defendant  by their answer have deny all those several charge and the plaintiff have make  no proof of they and by the commonlaw if the church have be full but a day the  patron be bar and the statute have enlarge his time to six month there be no  occasion to carry it further and it will be of as in consequence not to bring  bill within the six month as not to bring action where upon the Lord  chancellor be please to order that the plaintiff bill so far as it relate to  the defendant John Griffith shall stand dismiss with cost because no quare  hinder have be bring nor the bill file till seven month after institution and  induction whereas the statute of Westminster the d Ch which have be inviolable  observe mosely report since the make of it allow but six month and on this act  his lordship ground his decree without consider the circumstance of the case  or by what misinformation or fraud the plaintiff consent be obtain for the  statute make plenarty a bar against all mankind even in case of a usurpation  if a quare hinder be not bring within six month and his lordship say nobill of  this nature have be ever bring in this court where a quare hinder have not be  first bring in that time and as to the defendant cook his lordship order and  decree that the plaintiff shall redeem on the common term otherwise his bill  be to be dismiss Inst clerg law   light b a b Woodss Inst hob   a this decree  be affirm in parliament without debate for the same reason on Friday the saint  of January mosely report er p mosely report de term S trin in cur porter