delivered the opinion of this Court s
The appellee, John J. Requardt, applied to the Court of Common Pleas of the city of Baltimore, on the 7th day of February, 1863, for the benefit of the Insolvent Laws, and on the 1st day June of the same year obtained his final discharge. On the 31st day of May, 1865, the appellant filed his petition in the same Court, alleging himself to be a creditor of Requardt, against whom, he held a promissory note over-due and unpaid^ and that Requardt, when he petitioned, returned in his schedule that he had no property, which return was false and fraudulent. The appellant, in behalf of himself and other creditors, in pursuance of the 19th section 'of the 48th Article of the Code, filed with his petition the seven allegations set out at length in the record. The appellee, being summoned, appeared in Court, and by his counsel moved to dismiss the petition and allegations.
1st. Because “ the said Edward Jaeger was not, at the time of the application of this defendant for the benefit of the insolvent laws, one of his creditors, nor has he been so at any time since.”
2nd. “ Because this defendant never was indebted to said Edward Jaeger.”
3rd. “ Because said allegations are not in proper form to be submitted to a jury.”
4th. “ Because said allegations present questions of law and not questions of fact; and if issue were joined thereon they could not be properly triable by a jury, as they are prayed to be in said petition.”
5th. " And for other reasons.”
The Court sustained the motion and dismissed the petition and allegations. The appellant then entered a prayer for an appeal, and the Court, under the 13th section of the 5th Article of the Code, certified and stated the questions decided by it. By the Article and section last referred to, this *241Court is restricted to the consideration of the rulings of the Court below as certified.
Nevi owing these rulings, wo flunk the Court below properly decided that the petition and allegations were filed within two years, the time prescribed by the 19th section of the 48th Article of the Code.
Though the Court did not decide the second question raised by the appellee, that the appellant failed to show himself a creditor in limine, yet, we think it was the right of the petitioner, upon a proper issue made, to offer evidence to the jury to show the indebtedness of the appellee to him.
The Court below also erred in its rulings on the 3d, 4th, 5th and 6th questions stated in its certifícate. The jurisdiction of the Court to dispose of a case like the one at bar, arises out of the 19th section of the 48th Article, and attaches immediately upon the filing of the allegations within the time prescribed. It is a preliminary proceeding and secures to the party alleging himself to be accreditor, tbe right to have issues made upon the material facts set out in the allegations to be tried by a jury. If the facts relied oil tend to prove fraud, and that lire insolvent petitioner lias not complied with the requirements of the 1st section of the 48th Article, or lias been guilty of acts prohibited by the 6th, 7th or 8th sections of the same Article, it was the duty of the Court to have issues framed confining the petitioning creditor to such facts as, if found by the jury, would sustain the allegations of fraud as alleged.
Vc do not concur with the Court below in the opinion expressed and certified in the 3rd, 4th and 5th rulings. “We think the action of the Court was premature. The allegations present questions of fact, upon which issues might have been framed, and to which the appellee could have plead with an issue to the country.
The 6th ruling was incorrect because the petitioning creditor was precluded from showing by evidence to the jury when *242the facts set forth in his allegations did occur, which might; have been done by an issue framed for that purpose.
(Decided June 28th, 1866.)The simple du ty of the Court ivas to direct the framing of issues, and. to determine, in view of the provisions of the 48th Article of the Code, whether the facts presented in them, if found by the jury, would convict the insolvent of having acted' in derogation of those provisions, and if the issues were found against the insolvent to annul and rescind his discharge and release.
Entertaining the opinion that the ruling of the Court below dismissing the appellant’s petition and allegations was erroneous, we shall reverse the order with costs in this Court to the appellant, and remand the cause for further proceedings.
Order reversed and cause remanded.