
    COURT OF APPEALS, JUNE TERM, 1821.
    Winingder vs. Diffenderffer’s Lessee.
    ^ ct l7™’ of'ufe’ ¿nut jume such tacts i») e\idi-ncealivn<*?the «.-i-tmcute.
    Where it , apP“J?n£y ^ above mentioned ¡“®“t ¡í‘g‘o'mheejSl üu<i 1 tiV"s?>5! aS ntjumcSS ¿ád\weuin">n^t been confined tor a longer period, «o negativo words are used tiie ca5\
    It is not noces^’“¿“ppifcauLif. [“alt1,L'a}nmatm-
    
    omission of "inch’min,«ii..icworult‘íuesccur» the same to re- or expect any profit or ndSf/re^ired a><1 ®ct,ut' íh™ meaning"^*-01lt!l
    sheriff's '“-of }\n aiisosveiu deljt01 um!tírsiU(1 it 1$ not necessa- . ry to state tlie exact notice given by him of the time of the sale of the property contained in the deed.
    Whether proceedings under lire insolvent laws pre liable to ail the objections incident to those of oflier special and limited authorities? Queve.
    
    Appeal from Baltimore county court. Ejectment for a lot of ground in the city of Baltimore, being' part of lot No. 50. The defendant in the court below, pleaded the general issue. A verdict was taken for the plaintiff, subject to the opinion of the court, on the following statement facts, viz. It is admitted that Christopher Guiesler, ing possessed and entitled to th'e premises in the declaration mentioned, for a term of 99 years, did, on thfe 17th . ... . ., i , of November 1782, duly make lus will, and died on tiie ni . . 1st of January 1783, and that said will was duly proved} by this will he devised to his wife Catharine th'e use of J whole of his estate, both real and personal, during her tural life} but in case she should marry during her widowhood, then she was only to be entitled to one third of it} after her death, he gave to his son Peter the whole of his estate as aforesaid, unless he married, if he did, he was only to be entitled to two thirds thereof. He appointed his wife Catharine his executrix. Christopher Guiesler, at his death, left his said widow Catharine, and his son Peter, his sole devisees and representatives} Catharine upon herself the execution of the will} and assented to 1 _ - * the bequests and devises made by it, and m pursuance 1 v 4 thereof took possession,'(among other parts of the property of the testator,) of the premises mentioned in the de*J y . 1 . claration, and continued to reside on and possess the same from the death of the testator until her own death, which happened about the 26th of March 1816, and never ried after the testator’s death. The following proceedings and discharge were had by and before John John Bankson, and Thomas TV.- Griffith, esquires, the persons before whom they purport to have taken place, viz. “State of Maryland, Baltimore county, to wit. Whereas a certain Peter Giesler, of Baltimore' county . , , , v 7 after having actually remained m the prison of ° J r county aforesaid, twenty days and upwards, in and by virtue of a writ at the suit of George Hass, for £¡37 10 flebt, and 34 shillings and 10 pence costs, also the amount of officers fees, did, by his petition in writing sigtied ' * o o «. the said Peter Giesler, and addressed to John Dougherty, ° v 7 John Bankson and Thomas Jf* Griffith, esquires, justices M ^ 7 « of the peace for said county, pray the benefit of the act of assembly of this state,' entitled, ‘An actJFor the benefit of insolvent debtors,’ passed at March session 1774. And whereas we the said justices, did, on the 1st of August 1808, appoint a meeting to be held at the courthouse for Baltimore county aforesaid, for the discharge of the said Peter Giesler, to wit, on the 1st of September next, in the year aforesaid, and issue a certificate of the said, appointment in the words following, to wit; ‘Whereas Peter Giesler hath petitioned us the subscribers, justices of the peace for the county aforesaid, and sets forth that he hath been confined in the gaol of Baltimore county aforesaid, twenty days and upwards, for debts he is unable to pay, and .for want of bail; these are therefore to command you to produce the body of Peter Giesler on the first day of September next, at the court-house of the said county, at 4 o’clock, P. M. and see that due notice, according to law, b.e given to his creditors to appear a.nd show cause, if any, why he should not be liberated according to law, and the act of assembly made for the benefit of insolvent debtors, passed at March session 1774, and this shall be your sufficient authority. Given under our hands and seals this 1st of August 1808.” Signed and sealed by the said three justices, and directed “To the Sheriff of Baltimore county.” “And whereas on the 1st of September in the year aforesaid, we, the said justices and the said sheriff, in pursuance of the said appointment, did meet at the court-house aforesaid, and the sheriff aforesaid having produced the body of Peter Giesler, the prisoner, personally before us the subscribers, two of the justices aforesaid, ‘ and he.ving proved to us that he did set up copies of the, said notice and appointment of our said meeting, one at the door of the county clerk’s office, and one other copy at the prison door of said county, on the 10th of August last, 1808, being twenty days and upwards previous to his discharge; and having also made known to us, the justices aforesaid, the cause of. the imprisonment of the said Peter Giesler, who hath actually been imprisoned for the space of fifty-two days; and it appearing to us, the said justices, from the cause of the imprisonment of the said Peter Giesler, that the whole debts due and owing by the said Peter Giesler, do not amount together to the sum of ¿6200 sterling-money, or the value thereof in current money of this state. And the said Peter Giesler having delivered to the sheriff á schedule of his whole estate, both real and personal, debts and credits, and also delivered a duplicate thereof td us, the said justices; to wit;—-‘A schedule of the goods and chattels,'debts and credits, of Peter Giesler, an insolvent debtor. ” Then follows a list of debts due by Peter Giesler, amounting to §508 Si, and his wearing apparel to amount of §10. Signed by him, and witnessed by the two justices, Bankson and Griffith. ‘‘Which said schedule and duplicate have been subscribed by the said Peter Giesler, in presence of the said justices, who have subscribed our names as witnesses. And we, the said justices, at the request of the said Peter Giesler, administered to him the following oath, prescribed by the said act of assembly, to wit: ‘I Peter Giesler, do solemnly swear, that the schedule which I have delivered to the sheriff of Baltimore county, doth contain a full and true account, to the best of my knowledge and i-emembrance, of my whole estate, both real and personal, or that I have any title to, or interest in, and of all debts, credits, and effects whatsoever, which I, or any in trust for me, have, or at the time of my petition had, or am, or was in any respect entitled to in possession, remainder or reversion; and that Í have not, directly or indirectly, at any time since my imprisonment, or before, sold, lessened 
      
      , or otherwise conveyed, disposed of, or entrusted, all or any part of my estate, goods, stock, money, or debts, thereby to defraud my creditors 
      , to secure the same to receive or expect any profit or advantage thereof. So help me God.’ Which said duplicate hath been by us transmitted to the clerk of the county aforesaid; and we the justices aforesaid, after delivering the schedule and duplicate aforesaid, and administering the. oath aforesaid, transferring the duplicate aforesaid, did, by our order in writing, command the sheriff forthwith to set at liberty the said Peter Giesler, which order shall be sufficient to discharge and indemnify the said sheriff against any escape or action whatsoever. Witness our hands and seals this 1st day of September 1808.” Signed and sealed by said Bankson and Griffith. Dougherty, Bankson and Griffith, were, at the time said proceedings took place, and when the said discharge was granted, justices of the peace for 
      Baltimore county, duly qualified. Peter Gieslef in said' proceedings mentioned, is the Peter Guiesler the aforesaid' devisee and son of Christopher Guiesler. A duplicate of said discharge and proceedings was d-U'ly and regularly transmitted to the clerk of Baltimore county court, and has there remained ever since. At the time of the release and discharge, of said Peter, John Hutchins was the sheriff of Baltimore county, but died some short time afterwards, without having in any maimer executed the duties imposed on him by said proceedings and discharge, as trustee of said Peter. At the death of Hutchins, William Merry-man was duly elected, and qualified, sheriff of Baltimore county; and after having been so qualified, and whilst he was sheriff of said county, did, on the 28th of August 1810, duly execute a deed to John Diffenderffer, the' lessor* of the plaintiff, for the premises mentioned in the declaration in this cause. This deed (which was duly acknowledged and recorded,) recited, that in pursuance of authority vested in Merryman, be set up and exposed to public sale, after giving due notice, on the 25th of August then-instant, all the estate, &c. of Peter Guiesler, of, in and to, a lot of ground No. 50, &e. and that at said sale Diffenderffer became the highest bidder and purchaser, for g580, tkc. Upon this statement the county court gave judgment for the plaintiff; and the defendant appealed to this court} when the cause was argued at this term before Chase, Ch. J. Buchanan, Earle, Johnson, and' Martin, J.
    Pinkney, and Williams, (assistant attorney-general,) for the appellant,
    relied on the act of 1774, ch. 28, s. 1. Johnson’s lessee vs. Kroner, 2 Harr, fy HP Hen. 243. Weems vs, Disney, 4 Harr. <$* MiHcn. 156. Giitings’ lessee vs. Hall, 1 Harr. Johns. 23. Loxoes vs. Holbrook, Ibid 134. Gibson’s lessee vs. Smith, Ibid 253. Parker vs. Rule’s lessee, 9 Cranch, 64, 70. Williams etal. vs. Peyton’s lessee, 4 Wheaton, 77. Houghton vs. Strong, 1 Caine’s Rep. 486, (and note.) Delamater vs. Borland, Ibid 394, (note.) King vs. Fuller, 3 Game’s Rep. 153. Powers vs. The People, 4 Johns. Rep. 292. Rex vs. Mayer, fye. of Liverpool, 4 Burr. 2244. Trever vs. Wall, 1 T. R. 154. Peacock vs. Bell, 1 Saund, 74, (note.) Ladbroke vs. James, Wittes’ Rep. 201.
    
      Winder and R. Johnson, for the appellee,
    also relied upon the act of 1774, ch. 28, and Johnson vs. Kroner. Por
      tips case, 1 Coke, 22, a. Howland vs. Veale, 1 Cowp. 19. Hex vs. Gayer, 1 Burr. Í24S. Martin vs. HuntePs lessee, 1 Wheaton, 361. BurPs Trial, 25..The State vs. Levy, 3 Harr, M‘Hcn. 591. The Bank of Columbia vs. Boss, 4 Harr. <$• M‘Hen. 456. Chapline vs. Shoot, 3 Harr, fy Ml'Hen. 350; and the acts of 1793, ch. 101, sub. ch. 8; and Nov. 1779, ch. 25, s. 18.
    
      
      
         This word should have been leased.
      
    
    
      
      
         The word or omitted here.
    
   Johnson, J.

delivered the opinion of the coiirt. An action of ejectment was brought in Baltimore county court, to recover the land in question, by John DiffenderffePs lessee, and a judgment was given for the plaintiff on a case stated, and from that judgment the defendant has appealed to this court.

By the cáse stated it appears, that Christopher Guiesler, or Kiesler, was'possessed and entitled to the premises in the declaration mentioned for the term of ninety-nine years, and on the 17th of November 1782, duly made and executed his last will and testament, by which he bequeathed to ids son Philip Kiesler; and by his will his wife is appointed his executrix, who, after his death, in due form of law obtained letters testamentary thereon.

It also appears that the executrix assented to the bequests of the will, and in pursuance thereof took possession, (amongst other parts of the testator’s property,) of the premises mentioned in the declaration, and that she died before the institution of this suit.

Peter Kiesler, on the death of his mother, took, or attempted to take, the benefit of the act, entitled, “An act for the relief of insolvent debtors,” passed in the year 1774. If he obtained the full benefit and the relief of that act, then by operation of law, all his real and personal estate, either in possession, remainder or reversion, became vested in the sheriff of Baltimore county, who is directed, first giving twenty days notice by advertisement set up at the court-house door and other public places of the county where the land lies, to sell the same at public sale for the best price.

By the act of 1774, ch. 24, if any person committed or charged in execution, or for the want of special bail, at anytime after he shall have actually remained in prison, by the space of twenty days, on such commitment or charge, shall petition any three justices of the peace of the county wherein such prisoner shall bedetained, for his discharge,, the justices shall thereupon appoint a time for their meet-n°t less than thirty nor more than forty days, at the court-house, or gaol, and shall certify in writing to the sheriff, who shall, twenty days at the least before the appointed time, affix one copy of the certificate at the door of the county clerk’s office; and another at the prison door of the county; at which day so to be appointed, the justices, or1 two of them, as well as the sheriff, are to attend at the court-house or prison, and the sheriff shall produce the body of such prisoner before the justices who shall attend, and shall make known to the justices the cause or causes of the imprisonment, and the time he hath been actually imprisoned under such commitment; and if it shall appear that such prisoner hath been actually imprisoned as before mentioned, and it doth not appear from the causé or causes of imprisonment, or by the allegations upon oath, of the ci editors, or some of them, that the-whole debts amount to £200 sterling, then such prisoner may deliver to the sheriff a schedule of his whole estate, debts and credits, which schedule shall be subscribed by the prisoner before the justices, who shall also subscribe the same as witnesses, and at the request of the prisoner the justices shall administer to him the oath pi-escribed by the act.

By the 4th section of the same law it is provided, that ño person shall obtain its benefit unless the petition is exhibited within sixty days after the commitment.

The land in question was sold by the sheriff of Baltimore county to the lessor of the plaintiff, and the right of the plaintiff below to recover, depends on the question, whether the title of Peter Kiesler passed, in virtue of the proceedings on his petition, to the lessor of the plaintiff, through the sheriff.

It appears, that on the 1st of August 1808, the application by petition was made to three of the justices of the peace of Baltimore county, who appointed the 1st day of September following for the meeting; that they certified in writing to the sheriff the application so made to them, and directed him to produce the body of the prisoner, to give due notice according to law to the creditors to appear and shew cause, (if any,) why he should not be liberated; and on the first of September, the justices and sheriff met, when- the person of Kiesler was produced; the sheriff' proved to them that he did set up the notices at the places mentioned in the act, on the 10th of August last, being twenty days and upwards previous to his discharge, and at, the same time made known to the justices the cause of the imprisonment, and that he had actually been imprisoned for the space of 52 days; and it appearing to them, from the cause of the imprisonment, that his whole debts did not amount to the sum of £200 sterling, or the value thereof, and the petitioner having delivered to the sheriff a schedule in conformity to the provisions of the above mentioned act, they administered an oath to him, and then gave him his discharge.

At the time of the petition, as disclosed by the certificate of the justices, Kiesler had actually remained in prison for twenty days and upwards, in virtue of a writ at the suit of George Hass, for £37 10 0 debt, and 34 shillings and 10 pence costs, and for officers fees. There was no other evidence produced to the court of the facts above set forth, except the proceedings themselves as returned to and deposited in. Baltimore county court office.

Various objections have been made to those proceedings as being defective previous to the time appointed for the meeting of the justices, and as defective afterwards on account of the oath which was administered; and it has also been urged, that the sale and the conveyance did not transfer the land in dispute in this cause.

In the first place it was contended, that evidence aliunde ought to have been produced to prove that the statement of facts, as set forth in the proceedings, even admitting that that statement in every respect corresponded with the act of assembly, was correct. But this objection, as it is most unquestionably unfounded, was relinquished. If it could be sustained, then it must follow, that every person claiming property sold under the act of 1774, must secure and preserve, (if it was practicable, as most evidently it is not,) extrinsic proof, to establish .the facts set forth by the officers selected to carry the law into execution.

But waiving this objection, it is said, that it doth not appear that the petitioner had been in confinement under the claim of the debt, and for the officers fees, for the time specified in the act, for although the sheriff made it known to the justices that he had been imprisoned 52 days, yet as no words are inserted, that he had not been there more than 60 days, and as a confinement for the latter period would exclude him from the provisions of the act, it is contended the proceedings are void.

It-is stated that he had been, at the time of the application, in confinement for the term of twenty days and upwards, and on the first of September, (the day of meeting,) he is represented as then having been confined fifty-two days, it does not necessarily follow that he might not have been there longer than that space of time; but. as it was the duty of the sheriff, from whom alone information of the fact was to be obtained, to disclose the whole truth, the ' court must infer, and no other fair inference can be drawn, that he had not been confined more than the fifty-two days; and as he is set forth to have been in confinement under the two claims on him, without specifying how long under the one, and how long under the other, the correct conclusion is, that the confinement was under both, for the period' stated. It is said that it does not negatively appear that his debts did not exceed ¿0200 sterling, but it affirmatively appears, that the claims under which he was imprisoned are under that sum, and as no allegations appear to have been made on the part of his creditors, on oath, setting forth the debts due from him exceeded that sum, the maxim de non apparentibus et non existmtibus eadem est ratio, must apply.

As then the proceedings, under which the discharge ■took place, were regular previous to the oath being administered, will the oath that was taken vitiate the discharge, and divest the property out of the officer, in whom the law designed to deposit it for -the interest of the respective parties?

The objection principally relied on is, that the word “or” as contained in-the form of the oath before the words “or to secure the same to: receive or expect any profit or advantage thereof,” has been omitted, and it is contended that.such omission renders the oath administered, and the one required by the act in question, substantially different. The prisoner,- it has been insisted, might, consistently with the oath he took, have secured his-property to others to defraud his creditors, provided he himself did not thereby receive, or expect to receive, any profit or advantage.

If the meaning of the oath, as administered, rested on . the omission of the word “or” before the words following it, then the objection would be sustained; but when the whole of the oath, as administered, is taken together, it appears improper to. conclude that such conveyances or dispositions of. his property could, without violating his oath, have been made, for as in the preceding part he swears that he has not “directly or indirectly sold, lessened, or otherwise conyeyed, disposed of or intrusted, all or any part of his estate, thereby to defraud his creditors,” .how could, conveyances of property, consistently with that part of the oath, have been fraudulently executed either for his own or any other person’s benefit?

But the omission of tb e word “or” in the place where it has been omitted in the case before us, does not change the meaning of tiie oath, on taking the context of the act of 1774 into view, as it will be perceived that the omission of this word, does not materially vary the oath it prescribes,and the obligation is perfect without it; with the word inserted, the oath is, that conveyances have not been made to defraud creditors for his own or any other person’s benefit; without it, that the insolvent “had not sold, corveyed, &c. to secure the same, to receive or expect any profit or advantage. ”

If then the proceedings are regular to the time of the discharge, has. the property in question that passed to the sheriff been transferred by him to the lessor of the plaintiff?

This is a contest on the part of a stranger who, without disclosing any interest except being on the land in contest, now calls in question the • validity of these proceedings. He objects to the sheriff’s sale, because by the deed it is not disclosed what was the notice given. The deed now objected to is that of a public trustee, that is, one who is selected by operation of law, and against whose conduct none who were parties to the original proceedings make any opposition.

To sustain this objection would render inadequate most of the deeds by trustees under decrees in chancery, who always have their course of proceeding pointed out; but, whether it is pursued or not, never appears on the face of the deeds they exécute for the property sold by them.

Although the court have determined on the various objections that have been made to the proceedings in this case, they do not wish it to be understood, that discharges under the insolvent laws are liable to all the objections that are usually reli ed on against proceedings of persons limited by special authorities; it is sufficient to say, that the objections that have been taken to the proceedings given in evidence in this cause, are not sustained, and therefore the judgment of the court below, founded, on their sufficiency, is affirmed.

JUDGMENT AFFIRMED.  