
    John McGregor vs. Edward Crane & another.
    If the magistrate who takes the affidavit and makes the certificate under the Gen. Sts. c. 124, § 5, to authorize the arrest of a judgment debtor on an execution, is at the same time attorney of the judgment creditor in the same matter, a recognizance given under § 10 to obtain the debtor’s discharge from such arrest is void.
    Contract on a recognizance taken under the Gen. Sts. c. 124, | 10. In the superior court these facts were agreed : This plaintiff, having recovered judgment and obtained execution against the defendant Crane in an action in the superior court, made the affidavit and procured the certificate of a master in chancery, under the Gen. Sts. c. 124, § 5, to authorize the arrest )f the judgment debtor on the execution, who, being arrested thereon, entered with a surety into this recognizance, which he afterwards forfeited. But the master in chancery who took the plaintiff’s affidavit and made the certificate that he was satisfied that there was reasonable cause to believe that the charges therein contained were true, preliminary to the arrest, “ had been attorney of said plaintiff in prosecuting said action ; and at the same time was his attorney in several actions then pending in which said plaintiff was a party; and further, expected to act as the attorney of said plaintiff upon the examination of said Crane, if any examination should have been had; and further, filled up the blank form of affidavit, acting in behalf of the plaintiff, who employed no other attorney.” Judgment was ordered for the defendants; and the plaintiff appealed.
    
      N. W. Harmon, for the plaintiff.
    
      S. B. Ives, Jr., for the defendants.
   Gray, J.

In order to authorize the arrest of a debtor on execution, the judgment creditor, or some one in his behalf, must not only make affidavit to certain facts, but must prove them to the satisfaction of the magistrate before whom the affidavit is taken, and the affidavit, with a certificate of the magistrate that he is satisfied that there is reasonable cause to believe the truth of the charges therein contained or some one of them, must be annexed to the execution. Gen. Sts. c. 124, § 5. The magistrate, in determining whether the evidence laid before him is sufficient to satisfy him of such a state of facts as the statute requires, performs a judicial duty. The case stated shows that the master in chancery, who took the affidavit and made the certificate upon which the defendant was arrested, was at the same time the attorney of the plaintiff in this very matter. He was thereby disqualified from acting judicially therein; for no man can be at once the judge and an attorney for one of the parties. Bonham's case, 8 Co. 118 a. Richardson v. Welcome, 6 Cush. 332. The arrest of the defendant was therefore unlawful, and the recognizance given in order to obtain his discharge from imprisonment was void. Norton v. Danvers, 7 T. R. 375. Met. Con. 24, 25. Judgment for the defendants.  