delivered the opinion of this court.
The legality of the sale made by the sheriff of Montgomery county, and certified in his return to the venditioni in this case, is not now an open question.
Objections were made in Montgomery county court to the sale, and the court after deliberation thereon passed the following order:—“The court upon due consideration of the proceedings aforesaid, with all things thereunto relating, order and adjudge that the motion for a habere facias be overruled, as to all the lands conveyed by John Brewer to Caleb R. Penn and wife: the court further order and adjudge that the writ of the State of Maryland of habere facias possessionem, issue for the residue of the lands sold as aforesaid.” From this order of the county court, William G. Penn and John Penn appealed to the Court of Appeals, and at June term, 1846, this court affirmed the judgment of the county court.
It was insisted by the counsel of Penn, that the writ of liabere facias should have been directed to Henry Harding, late sheriff of Montgomery county, who sold the land mentioned in the writ.
To this argument, the act of 1831, chap. 41, furnishes an answer, which in its first section, is as follows: “ that in all *213cases under the original act to which this is a supplement, it shall and may be lawful for any of the courts of this State, mentioned in said law, in case the sheriff, coroner or elisor shall die, resign, be removed from or disqualified for office, or have his authority otherwise terminated, after the sales mentioned in said law, and before the writ in the nature of a writ of habere facias possessionem shall have been issued and executed, to issue said writ in the nature of a writ of habere facias possessionem, to any succeeding sheriff, coroner or elisor, so that all the other provisions of said law are complied with and observed.”
In this case, the term of office of the sheriff who made the sale had expired, and it was to prevent the writ being directed to his successor in office, that the application was made for the appointment for an elisor. The same reason does not exist in law, for confiding the execution of a writ of habere facias possessionem, to the sheriff who made the sale, as does for directing a venditioni exponas to the sheriff who levied the fieri facias ; in the former case, no property vests in the sheriff by the sale; in the latter case the law does clothe the sheriff with, a qualified property by virtue of the levy made under the fieri facias. We therefore think there is no force in this objection.
The answer to the objection, that the writ of habere facias possessionem, commands the elisor to deliver more land than was sold by the sheriff is, that the command of the writ pursues strictly the return of the sheriff, and the order of the Court of Appeals, and the return made by the elisor to the writ of habere facias possessionem certifies that he has delivered to Isherwood, the land named and described in the writ of habere facias possessionem.
It was insisted by the counsel for the motion, that the appointment of the elisor was not made according to the provisions of the acts of Assembly of 1794, ch. 54, sec. 5, and 1843, ch. 270, and therefore illegal.
The argument was that these acts require, that the judge should not be satisfied that the sheriff could not with safety be *214trusted to execute the writ by the affidavit of the party himself, but that the affidavit must he made by a disinterested person, one who would be a legal and competent witness at common law. This construction of the words “ satisfied by affidavit or otherwise,” would not only be a construction which might be productive of great inconvenience, hut frequently deprive parties of the benefits intended by those statutes. The design of the statutes was that the judge should he satisfied of the truth of the allegation, that the sheriff could not safely be trusted, and not to decide any matter of right.
The language in the act of 1794, ch. 54, sec. 5, is “and no such appointment shall be made by any judge or justice, unless he shall be satisfied by affidavit that the sheriff or coroner of the county cannot safely be trusted with the execution thereof.” The words of the act of 1843, ch. 271, sec. 1, are “ in any case where the said court or justice shall be satisfied by affidavit or otherwise.”
It is our opinion that the practice of the courts of the State from 1773 to this time, settles the construction of these words. The act of 1773, ch. 7, sec. 7, provides, that the justices of the provincial court or any county court, upon application made to them in court by any party or parties in or to any action or civil suit depending or shall he depending before them, and upon satisfaction being given to such court, by affidavit or otherwise, that there are material and competent witnesses in such cause, residing or living out of this province, to direct the clerk of such court to issue commission, &c. If there has been any case, where any court in Maryland has refused to order a commission under this act, on the affidavit of the party, or any case in which the legality of such an order has been even questioned, it has escaped our attention: and we believe it is the universal practice in all the county courts of this State, to order such commissions to issue upon the affidavit of the parlies, where no other objection is made, than the insufficiency of the affidavit of the party himself for such a purpose.
THE MOTION IN THIS CASE IS OVERRULED.