
    Moore R. Fletcher vs. William S. Bartlett.
    A. magistrate’s refusal of an application to be admitted to take the poor debtors’ oath, under St. 1857, c. 141, upon the ground that the debtor has property, is conclusive; and an appeal taken from the decision of the magistrate, finding him guilty upon charges of fraud filed at the same time, does not exempt him from arrest on the execution.
    Petition for a writ of habeas corpus, in behalf of a poor debtor, who, after being arrested on execution, entered into a recognizance under St. 1857, c. 141, § 10, for his surrender within ninety days; and applied to a master in chancery to be admitted to take the poor debtors’ oath; whereupon the creditor filed charges of fraud against him, and the master refused to administer the oath to him, on the ground that he possessed property, and also convicted him upon the charges of fraud and sentenced him accordingly. From this judgment he appealed, and entered into a recognizance under § 14 of the statute to prosecute his appeal, and was afterwards rearrested on the same execution.
    
      D. E. Ware, for the petitioner.
    
      H. C. Hutchins, for the creditor.
   Shaw, C. J.,

to whom this petition was presented, alter consulting Metcalf and Bigelow, JJ., expressed the opinion that the proceedings upon allegations of fraud were distinct from the ordinary proceedings upon an application to be admitted to take the poor debtors’ oath; that the ordinary inquiry upon such an examination was, whether the debtor had property, and if he had, the oath was refused, and from the decision of the magistrate on this point there was no appeal; that allegations of fraud, if filed, raised distinct issues, from the decision of the magistrate upon which both creditor and debtor had a right of appeal; that such appeal did not carry up the whole case, but only the finding upon the charge of fraud.

Petition dismissed.  