This is a petition for a writ of prohibition to prohibit the respondent from admitting one Sam Arnold, who was the defendant in an action brought by the petitioner, and who is now imprisoned on execution, to take the poor debtor's oath under cap. 326, Gen. Laws, R.I. 1909.
As the plaintiff in the original suit (who is the petitioner here) saw fit to sue out his writ in an action of trespass on the case, and to draw his declaration in the same form of action; and also to take judgment thereon by agreement with the defendant, and to take execution thereon in the same form, the court is of the opinion that the plaintiff (petitioner) can not now claim that the action can be treated as an action of trespass. We think it must be regarded, as the plaintiff has seen fit to make it himself, as an action of trespass on the case.
We are therefore of the opinion that the action, being trespass on the case, and the defendant being imprisoned for debt on the execution thereon, was entitled to apply for leave to take the poor debtor's oath under Gen. Laws, R.I. 1909, cap. 326, § 1; and that the action is not one of those mentioned in section 10 of the same chapter 326, in which the defendant *Page 556 is not to be admitted to take the oath; for the same reasons as set forth in Taylor, Symonds Co., v. Bliss, 30 R.I. 453, the petition for a writ of prohibition is therefore
Denied and dismissed.