(dissenting). I dissent and vote to affirm.
Vermont law does not require that in every case the court must search the record to discover the character of the act and to determine whether it falls within the exception of paragraph (2) of subdivision a of section 17 of the Bankruptcy Act. The clear import of the holding in Flanders v. Mullin (80 Vt. 124) is that the court may consider the record as a whole where it is impossible to determine from the judgment the nature of defendant’s act. Where, as here, the trial court made a separate and independent examination of the evidence, adjudged that the accident resulted from the willful and malicious acts or neglect of defendant, and issued execution confining defendant in close jail, there would appear to be no need or basis for any other court looking behind the judgments.
Matter of Grout (88 Vt. 318) is distinguishable, in that case •the court made special mention of the fact that the trial court did not find that the cause of action upon which the judgment was founded arose from the willful and malicious acts of the bankrupt, and consequently no such recital was contained in the judgment. That distinction was recognized in Matter of Cote (93 Vt. 10) but the court there examined the record solely for the purpose of determining whether the standard of willful and malicious conduct which warrants a close jail body execution in Vermont was identical with the standard provided under the Bankruptcy Act for the exemption of liabilities arising from injuries caused by willful and malicious conduct. Since it has now become well established that “ willful and malicious conduct ” is similarly defined in both statutes (Healy v. Moore, 108 Vt. 324; Matter of Greene, 87 F. 2d 951), the conclusion is inescapable that under Vermont law where a judgment contains a recital that the cause of action on which such judgment was founded arose from the willful and malicious acts or neglect of defendant, inspection of the pleadings or examination of the record is improper.
*272All of the issues which may be raised on the proposed hearing before the official referee have been or could have been presented to the court in the Vermont action. The gist of the judgment-debtor’s motion to have the Vermont judgments cancelled of record is an attempted retrial of issues previously tried and determined. The Vermont judgments are, therefore, res judicata. Accordingly, the order appealed from should be affirmed.
Van Voorhis and Beeitel, JJ., concur with Callahan, J.; Peck, P. J., dissents and votes to affirm in opinion in which Bore, J., concurs.
Order reversed, with $20 costs and disbursements to appellant and the matter remitted for a hearing before an official referee to make inquiry and report to the Special Term upon the question of dischargeability. Settle order on notice. [See post, p. 1030.]