
    Ivers C. Phillips vs. Allen F. Gray & another.
    The refusal by a creditor to pay the fees arising under St. 1857, c. 141, § 29, authorizes the magistrate to discharge a debtor who has been arrested on execution, without administering to him the oath for the relief of poor debtors.
    Contract on a recognizance taken under St. 1857, c. 141, concerning imprisonment for debt, with condition that the defendant Gray, who had been arrested on an execution in favor of the plaintiff, should, within ninety days from the time of his arrest, deliver himself up for examination, giving notice as therein provided, and making no default, and abide the order of the magistrate thereon. In the superior court, where by consent of parties the case was tried by the court, without a jury, it appeared that a time and place for the examination were duly fixed, at which Gray and the plaintiff’s attorney were present, and the magistrate demanded of the latter the fees provided by statute, which he refused to pay, and thereupon the magistrate discharged Gray without administering to him the oath. Upon these facts, Morton, J. ruled that the plaintiff was not entitled to recover, and the plaintiff alleged exceptions.
    
      J. M. Way, for the plaintiff.
    
      T. S. Harlow, for the defendant.
   By the Court.

The magistrate was not obliged to administer the oath without payment of his fees.

Exceptions overruled.  