Holmes, J.
The fifth charge mentioned in the Pub. Sts. c. 162, § 17, having been proved to the satisfaction of the commissioner of insolvency, the arrest of the petitioner was lawful, notwithstanding the fact that the first charge was also sworn to in the affidavits. Frost's case, 127 Mass. 550.
When a debtor is lawfully arrested, he is arrested and held by virtue of the execution, not by virtue of the charge or magistrate’s certificate; Stewart v. Griswold, 134 Mass. 391, 393; and, apart from exceptions such as that provided in § 37, the nature of the charge has nothing to do with the mode of getting discharged from imprisonment. If the debtor wishes to get discharged without paying his debt, he can only do so by a new process, in the way and on the conditions provided by statute. Speaking generally, there is only one such way, and there is one universal condition; and that is to take the poor debtor’s *470oath. When the certificate is granted, as here, on the fifth charge of § 17, the two issues of fraud and property are distinct, and the debtor must prevail on the latter before he can be discharged. See Fletcher v. Bartlett, 10 Gray, 491; Mowry's case, 112 Mass. 894, 398. This appears in terms from § 52, when the issue of fraud is tried and found against him. For that section authorizes him to renew his application to take the oath after the expiration of any sentence for fraud. There is no reason for a different rule when the charge of fraud fails. And the fact that the foundation of the whole proceeding to obtain a discharge is an application to take the oath shows very plainly that the rule is the same. It is clear that the debtor must apply to take the oath, because the statute provides no other way to get a hearing. It is equally clear that the oath must be taken before the debtor can be discharged. Pub. Sts. c. 162, §§ 28, 38-40, 44, 52. Indeed, in the present case the petitioner did not ask to be discharged without taking the oath, for he applied and wished to take it; but he contended that the magistrate had no right to refuse it, or to decide the question of property, because the certificate had been issued upon the fifth charge. In, this form, however, the argument is suicidal, for it amounts to saying that the magistrate had jurisdiction to administer the oath, but had not jurisdiction to comply with the statutory condition of his right to administer it; which is, that he should be satisfied upon examination of the truth of the facts set forth in the oath and the certificate which he is to sign. Pub. Sts. c. 162, § 39.
The true view is, that, after the debtor has been arrested, proof of fraud is simply a means of meeting the debtor’s proof of ability to take the oath; and, if the creditor is satisfied that he can defeat the debtor on the issue of property, he need go no further. Prisoner remanded.