Front Page Titles (by Subject) Ford and Sheldon's Case. - Selected Writings of Sir Edward Coke, vol. I
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Ford and Sheldon’s Case. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Ford and Sheldon’s Case.
(1606) Easter Term, 4 James I
In the Exchequer-Chamber.
First Published in the Reports, volume 12, page 1.
Ed.: Thomas Ford was a recusant, a person who refused to attend church in violation of the Law, making himself liable for a fine of £20 per month for non-attendance and for other penalties, includingforfeitureofhisgoods. Ford lent money to Sheldon, who gave Ford a deed giving him interests in some of his rents as well as recognizances, which are rather like the modern promissory note, for £21,000. When Ford was convicted of recusancy, the question arose of whether the recognizances, and the debt they represented, could be forfeit to the crown. In the Exchequer before all the judges and Chief Justice Popham of the King’s Bench, the court considered that debts are goods, that a penal Law cannot be extended by equity, but that the court construed the recognizances to have been entered in an effort to keep the money that might have been forfeit.
In an information in the Exchequer-Chamber for the King, against Thomas Ford, Esquire, Ralph Sheldon, Esquire, and divers others; the Case was thus.
Thomas Ford was at all times before the Statute of 23 Eliz. a Recusant; and for money lent to Sheldon, some before 23 Eliz. and some after. Ford took a Recognizance in the names of the other Defendants, and took also a grant of a Rent-charge to them in fee, with condition of Redemption by Deedindented: And the Recognizance was conditioned for performance of Covenants in the said Indenture, and afterward the Statute of the 29 Eliz. was made, by which it was enacted, that if default of payment was made in any part of payment (viz.) of 20 l. for every month, &c. And that then and so often the Queens Majesty by processe out of the Exchequer may take, seize, and enjoy all the goods, and two parts, &c. And after the said Act, and before the 34th year of the reign of the late Queen, Ford lent great summs of money to Sheldon, and for assurance of it took a Rent-charge by Deed Indented, with condition of Redemption: and took also several Recognizances in the names of some of the other Defendants, for performance of Covenants, &c. as is aforesaid;which Recognizances did amount in all to the sum of 21,000 l. all which were to the use of the said Ford, and to be at his disposition, and they were forfeited: And afterwards, viz. 41 Eliz., Ford was convict of Recusancy, and did not pay 20 l. per mensem,1 according to the Statute. And if upon all this Case the King should have the benefit of these Recognizances, was the question.
And this Case was debated by Counsell learned on both sides in Court. And it was objected by the Counsell of Ford, that if the Recognizance had been acknowledged to Ford himself, they should not be forfeited to the King, for the Statute speaks only of Goods. And Debts are not included within the word (Goods). And therefore, if the King grant all the Goods which came to him by the Attainder of J. S., the Patentee shall not have Debts due to him, for that the Grant only extends to Goods in possession, and not to things in action. And this Act is a Penall Law, and shall not be extended by equity.
2. It was objected that these Recognizances were acknowledged good to perform Covenants in an Indenture concerning a Rent-charge: And therefore savers of the realty, and are not within the intention of the said Act, which speaks only of Goods.
3. No fraud or covin appears in the Case; And then forasmuch as no Act of Parliament extends to this Case, it was said, that the Common Law doth not give any benefit to the King: for at the Common Law, in a far stronger Case, if Cestuy que use2 had been attaint of treason; this use forasmuch | as it was but a trust and confidence, of which the Law did not take notice, it was not forfeited to the King, and could not be granted: and if an Use shall not be forfeited, of which there shall be a Possessio fratris, &c.3 and which shall descend to the heir; A multo fortiori,4 a mere trust and confidence shall not be forfeited.
4. It was objected, that if the Forfeiture in this Case at the Bar accrues to the King, by the Statute of 29 Eliz. it ought to be by force of this word (Goods): But that shall not be without question in this Case. For Ford hath not any Goods, but only a mere trust and confidence, which is nothinginconsideration of Law.
And the Court cannot adjudge that these Recognizances belong to the King by equity of the said Statute, because it is penall: Also one Recognizance was taken in the names of some of the other Defendants, before the Statute of the 29 Eliz. which gave the Forfeiture.
And for that reason, it cannot be imagined that it was to defeat the King of a forfeiture, which then was not in Esse,5 but given afterwards.
As to the first objection, it was answered and resolved by all the Barons and by Popham, Chief Justice of England, and diverse others of the Justices, with whom they conferred, that if the recognizances had been acknowledged to the party himself, that they were given to the King without question for personall actions are as well included within this word, Goods, in an Act of Parliament, as Goods in possession. But inasmuch as by the Law things in action cannot be granted over, for that cause by his generall grant, things in action (which only he may grant by his prerogative) without special words passe not for his Prerogative, can never passe by general words. And it was affirmed, that so it had been resolved before, That is to say, that Debts were forfeited to the King by the said Act of the 29 Eliz. And where the Statute saith, “shall take, seize, and enjoy all the Goods, and two parts, &c.” Although a debt due to a recusant cannot be taken and seised, yet inasmuch as there is another word, viz. Enjoy, the King may well enjoy the Debt; and by process out of the Exchequer levy it; and so “take and seise” refers to two parts of Lands in possession, and Enjoy relates to goods.
As to the second objection. It was originally for the loan and forbearance of mony. And as well the Recognizance as the Annuity were made for the security of the payment of the said money: Also when the Recognizances are forfeited, they are but Chattels personal.
As to the third objection, there was Covin6 apparent: for when he was a Recusant continually after that Statute of the 23 Eliz. and for that chargeable to the King, for the forfeiture given by the same Act, it shall be intended that he took these Recognizances in the name of others, with an intent to prevent the King of levying of the Forfeiture: and all the Recognizances, which were taken in other men’s names after the said Act, shall be presumed in Law to be so taken, to the intent to defeat the King of his Forfeiture: True it is, that an Use or Trust shall not be forfeited for Treason or other offence by the Common Law, because it is not a thing of which the Common Law taketh any notice, for that Cestuy que use, hath neither Jus in re,7 nor Jus ad rem;8 but by the Common Law, when any act is done with an intent and purpose to defraud the King of his lawfull duty, or Forfeiture by the Duty, or Forfeiture by the Common Law, or Act of Parliament, the King shall not be barred of his lawful Duty or Forfeiture Per obliquum,9 which belongs to him by the Law, if the act was made De directo.10
And therefore if a man Out-lawed buy Goods in the names of others, the King shall have the Goods in the same manner, as if he had taken them directly in his own name: So if any Accountant to the King purchase Lands in the names of others, the King shall seize those lands for mony due unto him. | And this appears by the Case of Walter Chirton, Trin. 24 Ed. 3. Rot. 4 in Scaccario, where the Case was, that Walter de Chirton was indebted to the King 1800 l. which he had received of the King’s Treasure, and did purchase certain Lands with the Kings money; and by Covin had caused the Vendor to enfeoff his Friends in Fee to defraud the King, and notwithstanding took the Profits himself: and afterwards Walter Chirton was committed to the Fleet for the said Debt. And all the matter was found by Inquisition, and by Judgment the Land was seised into the King’s hands Quousque;11 for in case of the King, an act done by Covin, Per obliquum, shall be equal to on act done De directo, to the party himself; for Rex fallere non vult, falli autem non potest:12 See another President, Trin. 24 Ed. 3. Rot 11. Ex Recum. Regis, where one Thomas Favell was Collector of Tithes and Fifteenths, and was seised ofcertain Lands in Fee-simple, and having diverse Goods and Chattels, Dieintromissionis de collectione et levatione13 of Tenths and Fifteenths Languidus in extremis alienavit tenementa sua et bona et catalla diversis personis,14 and died without Heir or Executor. In this case by the Prerogative of the King, Proces was made as well against the Ter-tenants, as against the possessors of the Goods and Chattells although they were not Executors, &c. Ad computandum pro collectione praedicta et ad respondendum et satisfaciendum inde Regni, &c. Et hoc per Cancellarium Angliae et Capitales Justiciarios Angliae, et aliorum Justiciariorum utriusque Banci; quod nota bene.15
As to the fourth objection, Non refert, whether the duty to accrue to the King by the Common Law, or by Statute; but be it the one way or the other, no subterfuge that the party can use can defeat or defraud the King: and although one of the recognizances was taken before the Statute of 29 Eliz. yet that was to his use, and for that it is in the nature of a Chattell in him, and was taken in the names of others to prevent the Queen of her forfeiture, which she might have by the Act of 23 Eliz.; and although Ford was not convict until 41 Eliz. that is not material, for at all times before that, he was subject to a Forfeiture for his Recusancy.
[1. ][Ed.: each month,]
[2. ][Ed.: the person for whose benefit a use has been established.]
[3. ][Ed.: Writ establishing the claim of a half-brother when another sibling has entered the land upon the death of their ancestor.]
[4. ][Ed.: So much the more so,]
[5. ][Ed.: in being,]
[6. ][Ed.: A secret agreement to defraud; a conspiracy.]
[7. ][Ed.: A right in the thing,]
[8. ][Ed.: A right to the thing;]
[9. ][Ed.: By reference; implicitly,]
[10. ][Ed.: By order of the law, explicitly.]
[11. ][Ed.: “until;” a temporary prohibition, an order good until an event, such as payment of a debt.]
[12. ][Ed.: The king does not wish to deceive, and cannot be deceived:]
[13. ][Ed.: On the day of the audit of the collection and levying.]
[14. ][Ed.: in his last illness he alienated his tenements and goods and chattels to various persons,]
[15. ][Ed.: To account for the aforesaid collection and to answer and make satisfaction to the lord king, etc. And this was by the chancellor of England and the chief Justices of England, and the other Justices of both benches: which note well.]