¶1By 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.
¶2It 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.
¶3From 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 *378the 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.