majority">C. Allen, J.

The affidavit included the first and fifth charges contained in the Pub. Sts. c. 162, § 17. The first charge required notice to the debtor, before a certificate authorizing arrest could be made; the fifth charge did not. No notice was issued, and the magistrate certified that, after due hearing, he was satisfied there was reasonable cause to believe that thé charge made in the affidavit was true; and he authorized an arrest accordingly. This certificate, under these circumstances, could only refer properly to the fifth charge; and such, we think, is its proper construction. It is, however, contended by the defendants, that, as the action in which the judgment was recovered was itself founded upon a judgment, the fifth charge was not applicable to the case; and that it could not properly be said “ that the debtor contracted the debt with an intention not to pay the same,” that debt being a judgment. But if that judgment was founded upon a debt which was contracted with an intention not to pay it, the obtaining of the judgment would not exonerate the debtor from liability to arrest under the fifth charge. See Choteau v. Richardson, 12 Allen, 365; Murphy v. Manning, 134 Mass. 488.

The constable who made the return of non est inventus upon the execution was the same officer who took the bail bond; and the execution might lawfully be delivered to him. Brown v. Wallace, 7 Mass. 208. Crane v. Shaw, 13 Mass. 213.

The death of the debtor after the return upon the execution, and before final judgment on the scire facias, did not discharge the bail. Their liability had been fixed by the return. Bradford v. Earle, 4 Pick. 120. Niles v. Field, 2 Met. 327. This rule is not changed by any provisions of the Pub. Sts. c. 163, §§ 7, 12; and the St. of 1884, c. 260, providing that the death of the principal before final judgment on the scire facias shall be a defence, is not available to the defendants in this case, the statute having been passed since the plaintiff’s action was commenced. Judgment for the plaintiff.

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