case butler versus Marmaduke and henry allington march the defendant as to so  much of the bill as seek to discover whether after institution c to a he be  not present to two other live and institute c demurrer as such discovery tend  to show a avoidance of a the demurrer allow because he be not oblige by a  discovery to subject himself to a forfeiture or any thing in the nature of a  forfeiture the bill state that Philip butler be seize in fee of several manor  c and of the advowson of Aston in Hertfordshire by his will devise the first  and next presentation of the say church after his decease to Marmaduke  Allington and William Allington their executor c and all his manor land c to  the same person and their heir in trust for the plaintiff for life remainder  to his son Philip butler for life remainder to his first and every other son  in tall male remainder to his own right heir atkins the testator die without  issue leave Elizabeth Neville his only sister and heir at law who become seize  of the reversion and inheritance of the premise expectant on failure of issue  male of the plaintiff and his son Elizabeth Neville by her will devise this  reversion to Henry Allington for life with remainder to his first and other  son in tail remainder to Marmaduke Allington in fee on the that of may the  live of Aston become vacant the defendant Marmaduke Allington present the  defendant Henry who claim the estate in reversion under mrs neville will and  he be institute and induct on the that of August to this live which be upward  of pound per annum on the d of July the plaintiff discover that Henry  Allington have accept the live of Staingote and Swinhope by which the live of  Aston become vacant and the plaintiff by his bill insist he have a right to  nominate but that the defendant Marmaduke never inform he that the live be  become vacant and in breach of his trust on the that of October present the  defendant Henry a second time to the live of Aston and he be admit by the  bishop of Lincoln to Aston vacant by his session and institute and induct the  that of October follow the plaintiff likewise by his bill insist that  Marmaduke Allington have no right to present a second time and that the  defendant Henry Allington know Marmaduke have a right only to present on the  first vacancy after the death of the testator Philip butler as he lead see the  will of Philip butler and Elizabeth Neville and therefore the bill pray that  Henry Allington may set forth whether he be not institute and induct to Aston  the that of August and whether he do not afterward and when accept of the live  of Staingote and Swinhope and be not duly institute and induct thereto atkins  er p and in regard the time for bring a quare hinder be lapse before the  plaintiff hear of Henry be present a second time to Aston so that he have no  legal method of come at the live of Aston pray that the defendant may be  compel to resign the live and that such person may be present as he shall  nominate the plaintiff annex a affidavit to his bill that he have not hear  till the d of July that the defendant Henry have accept of the live of  Staingote and Swinhope and that he never know till that day the defendant  Marmaduke have present Henry a second time to Aston the defendant Henry  Allington as to so much of the bill as seek to discover whether after his  institution and induction to atkins Aston he be not present to Staingote and  Swinhope and institute and induct thereto demurrer as such discovery tend to  show a avoidance of Aston and as to so much as seek to compel the defendant to  resign Aston c plead that in October Marmaduke Allington present he thereto  and that in the same month he be duly admit institute and induct and that he  have ever since quiet hold the live of Aston without any disturbance from the  plaintiff till the fill the bill the three of may by mean whereof Aston be  full of a incumbent for the space of more than eighteen month before the fill  the bill or commencement of any suit concern the presentation and therefore  plead such plenarty in bar to the relief by his answer deny he ever see either  the original or a copy of Philip butler will or be inform of the content till  since the bill be file the live of Aston be state to be worth si per and and  Staingote and Swinhope together pound only Mr solicitor general for the  defendant Henry Allington the live of Aston be above the value of eight pound  in the king book and therefore the acceptance of a second live be a forfeiture  of the first and as the defendant if he shall make a discovery of this fact  will subject himself to a forfeiture he be within the common rule of this  court and may demurrer to such discovery Mr brown of the same side say there  never be any instance of come into this court to have such a question answer  where the person be in the actual possession of the live Lord chancellor I  take the rule to be that if a clergyman be in possession of a live of above  eight pound a year in the king book and accept of a second live under that  value it a absolute avoidance of the first or if a person in possession be of  a live under eight pound a year in the king book take a second live without a  dispensation the first be voidable at the election of the patron atkins Mr  Wilbraham of the same side cite Jones versus Meredith in the exchequer Lord Ch  b Comynss Rep where to a discovery seek by the bill whether defendant be  educate in the popish religion c and thereby incur the incapacity in the  statute of pound W they plead that act and it be allow he likewise cite  Monnins versus Monnins report in Chanc d part where the defendant demurrer to  the discovery of her marriage since the death of her husband as it amount to a  forfeiture be hold good Mr attorney general for the plaintiff say this be a  discovery of the fact upon which the very right to the presentation must  depend and therefore the demurrer of the defendant ought not to be allow Lord  chancellor the question as to the demurrer be immaterial except as to the  conformity to the rule of this court because it be a very easy matter to fix  the precise time of admission institution and induction the plea be of more  consequence because I know of no instance where upon a equitable right to d  presentation after the presentee have be in possession six month which make a  plenarty that the beneficiary and trust may come into this court to set aside  such presentation upon the general doctrine that there be no statute of  limitation which can affect a trust the cause be order to stand over till the  that of march to look into case in the mean time on that day Mr brown for the  defendant Henry Allington cite gardener versus Griffiths in p wms fol the  mortgagee of a advowson present the mortgagor bring his bill against the  presentee seven month after institution to compel he to resign Lord chancellor  king hold the bill must be within six month in the atkins er p same manner as  a quare hinder and therefore dismiss the bill as to that part which seek to  compel the defendant to resign his live Mr attorney general counsel for the  plaintiff observe that be a case between a mortgagor and a mortgagee and the  single point of equity be that the mortgagor be entitle to present here  Marmaduke Allington by virtue of the will of sir Philip butler have present to  the first turn after the decease of the testator who have give he so far a  beneficial interest but upon any other avoidance he have a mere legal right  only as a trustee and the defendant Henry Allington know his uncle atkins be  no more and that he have no right to present and yet accept of a presentation  from he with notice thereof and have not deny these fact in his answer and  there be not a single instance where a trustee be guilty of a breach of trust  but it have be hold he shall communicate that breach of trust to the person  who take a advantage from it Lord chancellor I be extreme well satisfy with  the determination I shall make in this case there be two matter in question  one upon the demurrer as to the discovery of the acceptance of the second live  and as to that I be of opinion the defendant have a right to demurrer not  because it be of any consequence to the plaintiff for the fact of which he  seek a discovery may very easy be ascertain by the bishop register but for the  sake of the rule of the court that a defendant be not oblige by a discovery to  subject himself to a forfeiture or any thing in the nature of a forfeiture and  therefore in all bill to stay waste a plaintiff be not entitle to a discovery  unless he wave the double penalty which be Triple damage by the statute of  Gloucester nor be a plaintiff entitle to a discovery upon the popish act touch  the disability of papist Harrison v Southcote atk it be object that it ought  not to be consider as a penalty under these act but as a limitation over in  favour of a protestant heir but hold notwithstanding the party shall not be  oblige to discover because these act create a incapacity which have the same  effect with a forfeiture a distinction be attempt here that by Henry see there  be no penalty fix but say only that the first benefice shall be adjudge in the  law to be void it have be compare to case where a estate for life have be  determine on the breach of a condition as where a woman hold only durante  widowhood and if she marry limit over Lucas v Lucas atk so the acceptance of a  second be the determination of the estate in the former live the court have  make a great difference between a determination by the party himself and a  determination by a act of parliament atkins suppose the statute of Henry have  say if he accept a second live the first shall be absolute void this will have  be a penalty but though the act of parliament do not say so in word yet it  amount to just the same thing and therefore I think the defendant be not  oblige to make a discovery in order to preserve the rule of the court entire  Lord Hardwicke allow the demurrer the next matter in question be as to a plea  of a plenarty of six month and upward this go to the point of right Marmaduke  Allington be entitle to one turn in the presentation of the live of Aston and  be a general trustee likewise of the advowson and whole estate to which it be  appendant and therefore in his own right may present to the first turn but as  to all the rest the beneficiary and trust be entitle to present after Henry  Allington have resign Aston to accept of two other live he be present a second  time to the live of Aston by Marmaduke Allington the bill be not bring till  above eighteen month after Henry Allingtons second presentation to the live of  Aston and as a quare hinder can be sue out after six month where a parson have  be present to a live by one who have not a right for it be the statute of  Westminster the d Edward c that make it a bar the question be whether the same  rule ought to hold in equity I be of opinion in general it ought for that act  be make for the sake of preserve the peace of the church a very useful law and  rigid adhere to ever since and very proper to be adopt in equity because it be  the general rule that equity follow the law whether original a resolution of  the commonlaw or introduce by statute atkins er p the case in p wms be a  strong case for this purpose and a very clear authority one mortgage a manor  with a advowson appendant and the church become void the mortgagee though in  possession shall not present to the church till the mortgage be foreclose but  if the mortgagee of a advowson present the bill by the mortgagor must be bring  within six month after a quare hinder so determine by Lord chancellor king in  gardener versus Griffith p wms N B the bill be dismiss as to that part which  seek to compel the defendant to resign his live gardener versus Griffith p wms  atkins then the question will be if there be any distinction between that case  and the present the distinction insist on by Mr attorney general be as to  Henry Allingtons notice of marmaduke be only a trustee at the time he accept  of the second presentation to Aston a man may know that Marmaduke Allington be  a trustee without know that he be guilty of fraud or a breach of trust for  Henry may conceive that Marmaduke have a right to present in the capacity of a  trustee and therefore the notice be of no consequence but consider how far it  will extend if this distinction be to prevail that where a man have be guilty  of a breach of trust in present a person to a live no length of time shall  avavail the presentee to quiet his possession it be true the statute of  limitation can be plead against a breach of trust nor can a person who have  take a conveyance from the trustee shelter himself under a plea of that  statute but if the rule shall hold as to a plenarty then after the defendant  have be in possession twenty or thirty year the plaintiff may set aside this  presentation for if the statute of Westminster the d which be consider here as  a statute of limitation shall not be admit as a bar of a equitable right as  well as a legal there be no period when you can stop therefore this doctrine  will be of mischievous consequence and subvert the intention of the statute of  Westminster the d which be to secure the peace of the church and for this  reason I be of opinion the rule of law ought to prevail in this court have say  this with regard to the rule of law and equity I will go a little further as  to the circumstance of this case that this be not such a one as a court ought  to strain in favour of the plaintiff for his chance of present be exact the  same as marmaduke first presentation be undoubted good and there be no  prejudice to the plaintiff in his present Henry a second time because upon the  death of Henry the plaintiff right of present accrue equal as if Henry have  never be present but once to this live Lord Hardwicke allow the plea