¶1The debtor, having entered into a recognizance under the Gen. Sts. c. 124, § 10, to abide the final order of the magistrate, was not liable to arrest until the magistrate had made and certified upon the execution an order refusing him the poor debtor’s oath; and his failure to be in attendance at that time, when an officer was present for the purpose of taking him to jail, was a breach of the recognizance. Lothrop v. Bailey, 14 Allen, 514.
¶2No disqualification is shown of the justice of the peace who took the affidavit upon which the debtor was arrested on execution. He was not the attorney of the creditor, and does not appear to have had any pecuniary interest in the case or to have received any compensation for his services therein. The student Dr clerk of an attorney at law does not stand in the same relation as the attorney himself to his clients. Barnes v. Harris, 7 Cush. 576. Andrews v. Solomon, Pet. C. C. 356. Goodtitle v. Badtitle, 8 T. R. 638. The case is thus distinguished from McGregor v. Crane, 98 Mass. 530, in which the magistrate who took such an affidavit was the attorney of the party.
¶3Judgment for the plaintiff*