
    In the matter of Horace Wheelock, on Habeas Corpus.
    
    
      (Practice.)
    
    Where judgment is for the plaintiff, in an action of tort, it is necessary, to prevent the debtor from taking the benefit of the poor debtor’s oath, that the court, at the time of rendering the judgment, should adjudge that the cause of action arose from the wilful act or neglect of the defendant, and that a minute of such adjudication he inserted in or certified upon such execution.
    Where the certificate was ‘ that the cause of action arose from the wilful and malicious act of the defendant; ’ It was held, that such certificate was erroneous, and it was ordered to be vacated.
    Hobace Wheelock preferred his complaint to this court substantially stating that he was imprisoned in the common jail by virtue of a writ of execution (a copy whereof was annexed) and that by a minute which he was advised and believed was erroneously and improperly made thereon, he was 0]3st,.ucte¿ -m taking the benefit of the law in relation to poor debtors, and praying for a habeas corpus cum causa and for further relief. The motion for the writ was granted, and on return of the habeas corpus it appeared that the complainant was imprisoned by virtue of an execution in common form, issued on a judgment rendered Dec. 19, 1840, by Thaddeus Alexander, a justice of the peace, in favor of one James Weaver, whereon was indorsed a minute in the following words:—
    “ I hereby certify that the cause of action on which the within judgment was rendered arose from the wilful and malicious act of the defendant.
    Thaddeus Alexander, Jus. Peace.”
    And that the return of commitment thereon was as follows:
    
      “ Windham county,ss. Newfane, December 23,1840, then by virtue of the within execution to me directed, and for want of personal property of said Horace Wheelock shewn to me or found within my precinct to satisfy the same and the legal fees thereon, I took the body of the said HoraceWheelock, and him committed to the keeper of the county jail in New-fane, in said county of Windham, within the said prison, and delivered a true copy of this writ of execution to said keeper, and this my return hereon thereon endorsed.
    Attest, Jonathan Austin, Dep. Sheriff.”
    The counsel for the creditor being in court and appearing gratis, the hearing proceeded.
    
      Wm. C. Bradley, for the complainant,
    after stating that the officers, to whom the duties under the act in relation to poor debtors belonged, persisted in treating the minute made on the execution as a valid one under the statute, contended that as it did not appear, by the return, that the officer had ever made any demand on the debtor before taking his body, agreeably to 3d section of chapter 42, of the Revised Statutes, p. 239, the commitment was illegal, and therefore the prisoner ought to be discharged absolutely. But, at any rate, that he ought at least to be kept in prison no longer than until he could take, if otherwise qualified, the poor debtor’s oath, for he contended that the minute on the back of the execution ought to be no obstacle to the complainant’s taking the oath, as the certificate did not conform to the requisitions of the statute, chap. 103, section 21, inasmuch as it was not only w'ithout date, but did not show that the court had ever adjudicated on the wilfulness or malice of the prisoner, either at “the time of rendering the judgment,” or at any other time, and it did not even appear, either by the execution or minute, that the action in which the judgment was rendered was “ founded on tort,” which the statute expressly requires.
   By the Court.

By the existing laws on this subject, it is necessary that the court, rendering any judgment in an action of tort, to prevent the debtor from taking the benefit of the poor debtor’s oath, should, “at the time of rendering the judgment, adjudge that the cause of action arose from the wilful and malicious act or neglect of the defendant,” and “ a minute thereof be inserted in or certified upon such execution.” The certificate should be, not that the cause of action arose from, &c., but that, at the time of rendering such judgment, it was adjudged by the court, that the cause of action, &fc. There is nothing in the present certificate to show that any such adjudication of the court was made at the time of rendering judgment.

It is therefore adjudged by this court, that the certificate in this case, was erroneously and improperly granted, and that the same be vacated and the relator remanded to his custody on the execution.

Redfield. J.

From a comparison of the 17th section with the 21st section of chapter 103, of the Revised Statutes, it would seem, that, in order to prevent the debtor, in actions of tort, from obtaining the liberties of the jail yard, it is necessary that the court, at the time of rendering judgment, should adjudge, that the cause of action arose’ from the wilful and malicious act or neglect of the defendant, and that the court, from a consideration of the facts, do consider, that the defendant ought to be confined to close jail, and the same be properly certified : And when this latter clause in the certificate is omitted, the debtor is entitled to the liberties of the jail yard, upon giving bond, but cannot admitted to the benefit of the poor debtor’s oath, if the part of the adjudication is properly certified. Such a practice is known to have obtained on habeas corpus jjr01jgjjt belore the different members of the court, in cases of this character, under the Revised Statutes; but as this case required no such decision, I have not felt justified in reporting any suggestions upon that point, as the opinion of the court.  