Page:Prerogatives of the Crown.djvu/343

 Ch.XII. Pt.II. Sec. IV.] Ea^tents in aid. 323 his Majesty's customs, &c. and that the same debt is a just and true debt, originally due to the said A,^ bond Jide without any manner of trust, and that the said debt hath not been put in suit in any other Court, and that he hath not received the same nor any part thereof, except so much, &c. ; and that C. is justly indebted to him the said jB., originally and bond Jide without trust ; and that C. is much decayed in his estate, so that unless a speedy course be taken against the said C, the said debt by him owing is in great danger to be lost." And though these rules have been said by the Court in some instances to be obsolete, yet that observation must be confined to such of these rules as do not appear to have been acted upon ; but where the practice shews that they have been ad- hered to, in those points they are still considered as binding. And as far as respects the allegations at present under con- sideration, all the affidavits for extents in aid, prove that these rules have been adhered to, and these allegations considered necessary ingredients on the affidavit {a). With respect to the allegation in the affidavit, that the debt to the Crown debtor is due " originally and bond fide and with- out trust," it is said to have been decided in the case of the King u Mainwaring (5), that this express allegation is not indispensable ; but it seems that this decision is only applicable to cases in which it is evident that the debt could not be a trust debt, or not originally due to the prosecutor of the extent, and is not applicable to cases where the debt might been a trust debt, and not originally due to the prosecutor of the extent (c). It has been the uniform practice to insert this allegation in the affidavit, and the practice of inserting the other allegation, viz. that the debt had not been put in suit, was, in the case of the King V, Boyes {d considered to be decisiv®. of the necessity of such allegation. And it seems perfectly clear that an ex- tent in aid cannot be maintained for a debt which is not origi- nally bond Jide due to the prosecutor of the extent, but which has been assigned to him for the purpose of enabling him to use the Crown process for the Recovery of it {e). (a) West, 278. 154. 1 Anstr. 190. 13ut a debt due (i) 1 Price's R. 202. to the prosecutor JMr« uxoris is sufficient. (c) West, 2*T8. 2 Cro. 524. Breadman c. Coles, Hob. (rf) See Ibid. 282. 253. Parker, 271, 2. {^) Bunb. 225. West,280, I. Noy, y2 With