c THEXTON v bet advowson mortgage the plaintiff testator be incumbent of a  parsonage and have a grant of the next avoidance mortgage the next avoidance  for twentyfive pound he be dead the plaintiff be his executor and bring his  bill to redeem and the defendant demurrer per curian he shall not redeem for  now the advowson the presentation to the actual vacancy be of course mean not  the perpetual advowson be become in that plight that it can be transfer in law  the party shall never be decree here to transfer it and the plaintiff bill be  to be dismiss but if the defendant take the benefit of present the mortgagee  of a advowson have a right at commonlaw to present cross v Powell comens but  as the presentation be or be understand to be gratuitous and the mortgagee can  account with the mortgagor for any benefit derive from it a court of equity  will order such mortgagee to present the nominee of the mortgagor Jori v Cox  Prec in Charles and this even though the mortgage be as in the present case of  a naked advowson Mackenzie v Robinson atk gubbins v creed Sch and Lef post c p  but if the mortgagee present wrongful a bill to compel the incumbent to resign  must be bring within six month after the death of the previous incumbent or a  plea of plenarty will hold mutter v Chauvel Meriv gardener v Griffiths p wms  the presentation to the actual vacancy be of course mean not the perpetual  advowson he shall not also sue for his money freeman it be propose that though  the defendant can not by law assign the next avoidance now it be fall and so  can not be decree to do a act against law yet this court may compel the  mortgagee upon receipt of his money to present the nominee of the mortgagor  but that the Lord keeper say he will never do for that will be for this court  to do the same thing in substance which the law allow not to be do and may  tend to encourage simony but as the authority cite in the last note seem to  establish that the mortgagee though his money be unpay must present the  nominee of the mortgagor it will be a inconsequence too gross to be contend  for now that the receipt of the money by the mortgagee shall deprive the  mortgagor of his right of nomination this will tend to encourage something  worse than simony the fact be that the canon law do not well amalgamate with  English jurisprudence and though as be observe in the margin of Bacon  abridgement ad title simony the stat of the Elizabeth c by which the offence  be define do not adopt all the wile notion of the canon law it may be well  worth considerationwere this the proper place for the discussionwhether the  interest either of the church or of morality will be impair by discard the  wile notion of the canonist more complete Reg lib b fol demurrer allow without  cost and the bill dismiss but without prejudice and therefore he will never do  it and he say the grant of the next avoidance come as near simony as may be  freeman er p