The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Pasch. 4. Jacobi Regis.

Ford and Sheldon's Case, upon Information in the Exchequer for the King.

THomas Ford, a known Recusant b••fore the 23 of Eliz. for money lent to Sheldon; some before, and some after the said 23 Eliz. took Recognizance in the Names of others, and also a Rent-charge to them in Fee, with a Clause of Redemption by Deed; the Condition of the Recognizance, being for performance of the Covenanss in the Deeds; and afterward was made the Statute of the 28 Eliz. which was, That as often as any Failer was made, in the payment of 20 l. a Month, that so often the Queen, by Process out of the Exchequer, might take and enjoy all the Goods, and two Parts &c. And after the said Act, Ford lent the several Sums of Money, and took the Securities as aforesaid, amounting in all to 21000 l. which being to Ford's use, were all forfeited. Afterwards, 41 Eliz. was Convict of Recusancy, and did not pay the 20 l. a Month: If the King should have the B••nefit of these Recognizances and Securities, was the Q••estion.

1. Upon Debate, it was objected by Ford's Councel, That the Recognizances had not been Forfeited, though they had been made in Ford's Name; the Statute speak∣ing onely of Goods, which doth not include Debts. As if the King grant all the Goods of J. S. coming to him by Attainder, the Patentee shall not have Debts: And

a Penal Law shall not be extended by Equity.

Obj. 2. That three Recognizances are not with∣in the Intention of the Act, being Savers of the Realty, and acknowledged to perform Covenants, as to the Rent-charge.

Ob. 3. No Fraud was in the Case: And then no Statute being in this Case, the Common-Law gives no benefit to the King. As if Cestuy que use had been Attaint of Treason, the Use being but a Trust could not be for∣feited to the King: And it not a Use, A multo fortiori, a meer Trust.

Ob. 4. What Forfeiture accrues to the King in this Case, must be by force of the words (Goods) in the Sta∣tute, which cannot be, Ford having no Goods but a meer Trust. Also, one Recognizance was taken in the Names of others before the Stature, and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use.

Resolved 1. By all the Barons, and Popham Chief Ju∣stice of England, and divers other Justices, that Personal Actions are as well included within this Word (Goods) in an Act of Parliament, as Goods in Possession: But because by Law, things in Action cannot be granted o∣ver; therefore by General Grant, without special words, can never pass. And where the Statute saith, Shall take, seize, and enjoy all the Goods, and two parts, &c. the King may well enjoy a Debt due to a Recusant, and by Pro∣cess out of the Exchequer Levy it: and so take and seize, refers to Goods, and two Parts of Lands in Possessi∣on.

Resolved 2. That it was Originally for the Loan of Money, and both the Recognizance and Annuity were to secure the said Money. And Recognizances fotfeited, are but Chattels Personal.

Resolved 3. There was Covin apparent; for he being a Recusant always as aforesaid, and so chargeable to the King, his taking the Recognizances in the Name of o∣thers,

shall be Construed with an Intent to prevent the King of his Forfeiture: And so shall all Recognizan∣ces taken in others Names, after the said Act, be presumed to be taken. As to Ce••••uy que use, who neither hath Jus in Re, nor Jus ad Rem, true it is, he cannot Forfeit; but an Act done, to defraud the King of his lawful Duty, the King shall not be barred thereof per obliquum, if the Act was made, de directo. And for this, If a man out∣lawed buy Goods in the Names of others, the King shall have them notwithstanding. So if an Accountant to the King purchase Lands in others Names, yet the King shall s••ze those Lands for Money due to him. And this appears by Walter Cherton's Case, Trin. 24. Ed. 3. Rot. 4. in Scaccario; for Re•• fallere non vult, falli autem non po∣test. See another President, Trin. 24. Ed. 3. Pot. 11.

Resolved 4. No••resert, Whether the Duty do acc••ue to the King, by the Common-Law, or by the Statute: And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use: And though Ford was not Convict till the 41 of Eliz. that is not material; for he was subject to a Forfeiture before.