Appeal from Baltimore court of common pleas. Argued before ALVEY, C. J., and MILLER, STONE, BRYAN, MCSHERRY, IRVING, and ROBINSON, JJ. Thomas S. Hodson, for appellants. Charles Marshall and Thomas W. Hall, for appellees. are revoked, it shall be the duty of the court to appoint a new administrator. Held that, as the law does not provide for notice to creditors, it is the duty of the largest creditor to assert and claim his right of administration before the court is required to notice it; and, as the law fixes no time within which he must make his application, the court may, in its discretion, where the circumstances require it, appoint a new administrator immediately on the revocation of the letters of a former, though, as a general rule, it should wait a reasonable time for relatives and creditors to assert their claims. Appeal from orphans' court, Howard county. Argued before ALVEY, C. J., and ROBINSON, BRYAN, STONE, and MCSHERRY, JJ. Henry E. Wootten and Joseph D. McGuire, for appellant. John G. Rogers, for appellee. ROBINSON, J. We all agree that the appeal in this case must be dismissed. It must be dismissed because the judgment below from which it is taken is in no sense a final judgment, and decides no question under the insolvent laws, within the meaning of section 31, art. 47, Code. The case is this: Proceedings in insolvency were instituted against Tawes, Stirling & Co., on the ground that they had, within four months before the in- STONE, J. On the 6th of August, 1889, stitution of such proceedings, sold or trans- the orphans' court of Howard county passed ferred all or part of their property with in- an order revoking the letters of administratent to delay, hinder, or defraud their cred- tion granted to D'Arcey upon the estate of itors. To the petition of the creditors a de- his son Thomas B. Dorsey, and on the same murrer was filed by Tawes, Stirling & Co. on day appointed the appellant, McGuire, adthe ground (1) that the petition was filed in ministrator in the place of D'Arcey, removed. the name of two firms, Webster, Ford & Co. The revocation of the letters of D'Arcey was and Tyler, Leach & Co., and the affidavit to made for good and sufficient reasons, and the petition was made by Thomas F. Tyler there is no dispute upon that point; but, only; and (2) that the petition did not allege from what we can gather from the record, the insolvency of the defendants, or any act Rogers, the appellee, who is admitted to be of insolvency, except that the sales, assign- the largest creditor of the estate of Thomas ments, etc., of the property therein referred B. Dorsey, complains that sufficient time was to, were made with intent to hinder, delay, not allowed him, after the letters of D'Arcey and defraud their creditors. This demurrer were revoked, to claim his right to the letwas overruled, and the defendants were re-ters of administration. By section 33, art. quired to answer, and show cause why they should not be adjudicated insolvents, as prayed in said petition. The only adjudication by the court on the demurrer was as to the sufficiency of the affidavit, and the sufficiency of the allegations in the petition. From such an adjudication, which decides nothing as to the real merits of the case, it is plain no appeal will lie. The policy of the insolvent laws requires a speedy adjudication as to the question of insolvency, and a speedy settlement and distribution of the insolvent estate; and, if appeals like the one now before us can be taken, it would lead to unnecessary delay and protracted litigation, and the object of the statute would, in a measure, be substantially defeated. Appeal dismissed. 93, Code, it is provided that no notice need be given to a party entitled to administra tion, if he is out of the state, and that it is not necessary to notify any relations except a widow, child, grandchild, father, brother, sister, or mother, even if they are within the state. By the agreed statement of facts in this case, it appears that, at the time of the revocation of the letters of D'Arcey, Thomas B. Dorsey, the intestate, had no relatives living in this state who were entitled, as a matter of right, to notice before the orphans' court granted the letters to McGuire. By thirtieth and thirty-first sections of article 93 of the Code it is provided that, if there be no relations, administration shall be granted to the largest creditor applying for the same, and that, if the relations who are entitled to notice are incapable or decline upon proper summons or notice, or if other relations and creditors shall neglect to apply, administration shall be granted, at the discretion of the court. By section 243 of same article it is provided that, where letters of Code Md. art. 93, $$ 30, 31, provide that if administration are revoked, it shall be the there are no relatives administration shall be granted to the largest creditor of decedent; and, duty of the court to appoint a new adminisif the relatives or creditors decline to act or neg-trator. If we concede that, in a case where lect to apply, administration shall be granted at letters of administration are revoked, the the discretion of the court. Section 33 provides for notice to relatives within the state. Section 243 provides that, where letters of administration (71 Md. 587) MCGUIRE v. ROGERS. (Court of Appeals of Maryland. Dec. 18, 1889.) ADMINISTRATORS-REVOCATION OF LETTERS-NEW APPOINTMENT. Article 47 is on "Insolvents," and section 31 provides that "any person interested may appeal from the decision of the court on any question under this article." 2 Pub. Gen. Laws, 843. same rule applies, as to the persons who are entitled, that apply in the case of an original grant of letters, still the appellee, Rogers, had no legal cause of complaint. The largest creditor is not required to be notified or sum. moned; he must assert and claim the right of administration before the court is required to notice it. Now, the law nowhere fixes a time, in cases like the present, within which he must assert his claim, nor does it prescribe any time that the court must wait for him to do so. That matter, we think, is left to the sound legal discretion of the orphans' court. As a general rule, it is no doubt proper for the orphans' court to give some reasonable time for the relations who are not required to be notified, or creditors to assert their claims. But there may be cases where the security of the estate and the rights of creditors require immediate action. Of this the orphans' court is the best judge. From the rather imperfect record before us, we sup-nual assessment of such taxes should be depose the orphans' court concluded that they had no legal right to appoint the appellant, McGuire, administrator on the same day that they revoked the letters of D'Arcey. In this they were in error, and the order appealed from will be reversed, with costs. Order reversed with costs. (71 Md. 421) PERKINS . DYER. (Court of Appeals of Maryland. Dec. 17, 1889.) TAXATION COLLECTION-STATUTE OF LIMITATIONS. A promise by a tax-payer to pay city and county taxes which have been levied and uncollected for more than four years takes them out of the operation of Code Md. art. 81, § 83, which provides that, if these taxes are not collected within four years after they have been levied, the person from whom they are demanded may plead the section in bar of any recovery of the same; and, as they are made statutory liens, the collector has the right to enforce their payment by execution, and sale of the property. Appeal from circuit court, Prince George's county, in equity. Argued before ALVEY, C. J., and BRYAN, STONE, and ROBINSON, JJ. R. B. B. Chew, for appellant. · Geo. C. Merrick, for appellee. ROBINSON, J. The main question in this case turns on the construction of section 83, art. 81, Code, which provides that all county and city taxes shall be collected within four years after the same shall have been levied, and, if not collected within that time, the parties from whom such taxes are demanded may plead the section in bar of any recovery of the same. The taxes in controversy have been levied and uncollected more than four years, and the question is whether a promise to pay them by the party from whom they are demanded takes such taxes out of the operation of the statute. The object of the statute, it is said, was to enforce the speedy collection of taxes, and, if the collector has neglected to collect them within the time prescribed, it would be against public policy to allow him to enforce their payment, even though the party from whom they are demanded may have admitted them to be due, and may have promised to pay the same. We cannot agree to this construction of the act. Taxes are levied annually to meet the annual expenses of the county and city government, and, if the object was to provide for their speedy collection, we can hardly suppose the legisla ture would have extended the time of their collection to so long a period as four years. Nor do we see how the public is to be benefited, or any public policy subserved, by denying the right to collect such taxes after the expiration of the time prescribed by act in cases where the tax-payer admits them to be due and has promised to pay them. And besides, the legislature had by other acts made ample provision for the collection of county and city taxes. It had provided that a copy of the anlivered to the county and city collectors within 10 days after the assessment, and that such collectors should, within six months after its receipt, collect and pay to the county and city authorities all taxes thus levied, and upon failure to do so their bonds were made liable to suit, and the collectors themselves liable to indictment and punishment. By these acts full provision was made for the speedy collection of such taxes. Now, prior to Act 1852, c. 75, and Act 1874, c. 483, there was not, as we all know, any statute of limitations applicable to the collection of taxes, and the object of these acts was to prescribe a time within which county and city taxes should be collected, and, unless collected within that time, to allow the party from whom they are demanded the privilege of pleading the provisions of the act in bar of their recovery. These acts are nothing more or less than statutes of limitation applicable to the collection of county and city taxes, and founded on the same reasons and policy as all other statutes of limitations are founded, and must be construed in accordance with the settled rules which govern the construction of such statutes. This being so, a promise on the part of the tax-payer to pay such taxes, made after the expiration of the time prescribed, must be held to take them out of the operation of the statute; and, as these taxes are made statutory liens, the collector has the right, in such cases, to enforce their payment by execution and sale of the property. The remaining question, whether there was such a promise on the part of the appellee, is one about which there can be no contention. Not only the appellant himself, but Perkins, his agent and clerk, both of whom are competent witnesses, testify that, at different times during the years 1886, 1887, and 1889, the appellee repeatedly promised to pay these taxes, always begging for a little more indulgence, promising to pay them first out of one tobacco crop, and then the crop of another year, and finally out of some insurance money which he expected to get. These promises were made in the most explicit terms, and after he had examined each of the tax-bills separately. It is quite unnecessary to consider the exceptions to other proof on the part of the appellant tending to show a promise on the part of the appellee. We rest our conclusion on this point upon the testimony of the appellant, and of Perkins, his clerk. Order reversed, and bill dismissed. (71 Md. 508) DUMAY . SANCHEZ et al., (two cases.) (Court of Appeals of Maryland. Dec. 17, 1889.) ATTACHMENT-GROUNDS-APPEAL-RECORD. 1. Code Md. art. 9, § 35, provides that an attachment may issue on an affidavit alleging (1) that the debtor is about to abscond from the state; or (2) that he has fraudulently disposed of his property; or (3) that the debt sued for had been fraudulently contracted. Held, that an attachment obtained on an affidavit alleging the first two grounds mentioned in the statute will be quashed, where there is a failure of evidence to support the allegations, though there is strong evidence in support of the third ground mentioned in the statute. 2. To insert in the record on appeal, without apparent authority, and without any official authentication whatever, the entire mass of evidence have been stated in a greatly condensed form, is improper, and the appellants will be taxed with the costs of printing such record, though they succeed on the merits of the appeal. taken at the trial, when every material fact could Appeal from superior court of Baltimore city. Argued before ALVEY, C. J., and MILLER, STONE, and MCSHERRY, JJ. Wm. S. Bryan, Jr., and John Gill, Jr., for appellant. T. Ireland Elliott, for appellees. the order overruling the motion to quash, and from the judgment of condemnation, the defendant, Dumay, and the assignee, Bryan, entered their several appeals. Section 35, art. 9, Code, already referred to, in prescribing the conditions upon which an attachment under that statute may issue, provides that the affidavit shall state "that the plaintiff knows, or has good reason to believe either (1) that the debtor is about to abscond from this state; or (2) that the defendant has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property, or some portion thereof, with intent to defraud his creditors; or (3) that the defendant fraudulently contracted the debt or incurred the obligation respecting which the action is brought; or (4) that the defendant has removed, or is about to remove, his property, or some portion thereof, out of this state, with intent to defraud his creditors. The existence of some one, at least, of these conditions is essential to the validity of the attachment proceedings, under this particular statute; and unless the affidavit states some one or more of such conditions, as the foundation of the attachment, it cannot be sustained. The affidavit in this case, made by Gibson, one of the plaintiffs, states, as the ground for the attachment, "that the said plaintiffs have good reason to believe (1) that the said Edward Dumay is about to abscond from this state; and (2) that the said Edward Dumay has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property, or some portion thereof, with intent to defraud his creditors." These allegations are jurisdictional, and, as we have seen, they have been traversed, and charged to be false in fact, as well by the defendant as by the assignee, who claims the property seized under the attachment. ALVEY, C. J. The plaintiffs, the present appellees, sued out an attachment on original process against the defendant, Dumay, under the provisions contained in sections 35-38, art. 9, Code, and under which attachment certain personal effects of the defendant were seized by the sheriff. The claim of the plaintiffs consists of three promissory notes, the first dated the 27th of November, 1888, and the other two the 30th of January, 1889. The attachment was issued on the 3d of April, In the case of Barr v. Perry, 3 Gill, 313, it 1889, and on the next day thereafter the de- was held by the court of appeals that neither fendant made a general assignment of all his the defendant nor the garnishee could be conproperty for the benefit of all his creditors, cluded by the affidavit of the plaintiff, as to without priority or preference, to W. S. Bry- any jurisdictional fact necessary to appear in an, Jr., an appellant in one of the appeals in the affidavit as the foundation of the attachthe record now before us. On the same day ment; that the truth of such facts could be of the making of the assignment by Dumay, put in issue either by plea or by motion to motions were made, both by Dumay, the de- dissolve; and, in the same case, it was said fendant, and Bryan, the assignee, for the re- by the court, quoting the language of a court turn forthwith of the attachment, and that of a sister state, that the parties who issue the same be quashed, (1) because the affida- the attachment are bound to support it when vit upon which the attachment was issued it is attacked. Boyes v. Coppinger, 2 Yeates, was false in stating that the defendant, Du-277. The same principle has been laid down may, was about to abscond from the state; by other courts as the settled law in such and (2) because such affidavit was false in cases. Bank v. Barge Co., 52 Mich. 164, 17 stating that Dumay was about to fraudulently dispose of his property. On these motions an order was passed requiring the return of the attachment, and fixing a day for hearing the motions. The attachment was returned, and the motions were heard, and the court thereupon overruled the motions to quash, and entered judgment of condemnation of the property seized. There were other motions made in the cause, but it is not material that they be considered here. From N. W. Rep. 790; Wade, Attachm. § 281. The case appears to have been tried below upon the oral examination of witnesses before the court; but the testimony is presented to this court in a most irregular and unauthorized manner, though it seems to be by the consent of counsel for the appellees. On page 7 of the record, after the order to enter the appeals, we find this entry made by the clerk: "Papers inserted in record by order of the appellant;" and then follows what J. 494; Railroad Co. v. Trustees, 91 U. S. 127, 132. purports to be the testimony taken at the trial, but which is in no manner authenticated by the court, as in form of a bill of ex- However, without intending to allow this ception properly framed, (the regular and case to pass into a precedent, in view of the formal mode of presenting facts proved at fact that the counsel for both parties have the trial below to the appellate court, on an argued the case upon the facts, and treated appeal from a court of common law,) nor the evidence as being before us, we have even in form of depositions authorized to be carefully examined what purports to be the taken and used at the trial, and authenticated report of the evidence set out in the tranin the usual manner of taking evidence in script sent up, but entirely fail to find in it such form. But the whole mass, as we may any sufficient evidence to support either of suppose it to have been reported by a stenog- the two jurisdictional allegations in the affirapher, with all its irrelevancies, consisting davit upon which the attachment was foundof questions and answers, dialogues and di- ed. There is literally nothing to support gressions, and repetitions without limit, has the allegation that the defendant was in fact been inserted into the record without apparent about to abscond from the state. The only authority, or at least any official authentica-thing Mr. Gibson, the party who made the tion to this court whatever. It may be safely affidavit, can say in support of the allegation, stated that, of the whole testimony taken, is that, while he (the witness) did not know every material or relevant fact or circum- the defendant was going to run away, he stance to be gathered from it could have been well stated in a bill of exception that would not have covered more than two or three pages of the printed record; and yet we find 70 odd pages of the printed record occupied with what is denominated "testimony." This may be a very labor-saving method of getting a case before the court of appeals, but it is a very onerous one to suitors who have to pay for the transcript and the printing of the record. It would be to no purpose, indeed | quite useless, that the constitution of the state should require this court to make rules to abbreviate records, and to curtail costs to suitors in the court, if any such method as the present for making up the records for this court could be sanctioned. Our object in remarking upon the manner of making up the present record is simply to admonish the members of the bar that we cannot approve any such method, and that we will and must insist that records brought into this court shall be prepared and made up according to rule and established practice. The practice in this state is well settled as to the manner of presenting cases on appeal from rulings on summary motions to quash, or to set aside process. As in all other cases where extrinsic evidence is introduced at the trial, the facts must be properly presented to this court in some authenticated form; and the mode of presenting them is either by bill of exception, as in Campbell v. Morris, 3 Har. & McH. 535; Nesbitt v. Dallam, 7 Gill & J. 494; or by agreed statement of facts; or by deposi-evidence, no presumption of the fact should tions, taken under the authority of the court and reduced to form, and authenticated, and filed in the cause, as in the cases of Baldwin v. Wright, 3 Gill, 241; Moreland v. Bowling, Id. 500; and Howard v. Oppenheimer, 25 Md. 350. The record proper does not embrace anything, in the way of extrinsic evidence or proof produced on the trial, and therefore cannot be produced to this court unless it be made part of the record by bill of exception, agreed statement of facts, special verdict, or such depositions as may be authorized to be taken and filed in proper form, as means of proof. Nesbitt v. Dallam, 7 Gill & thought him capable of anything. And in be indulged. If the affidavit had alleged the third condition mentioned in the statute,that is, that the defendant fraudulently contracted the debt sued for,-the testimony of Mr. Sanchez, one of the plaintiffs, would have furnished strong evidence in support of that allegation. According to his testimony, credit for part of the debt, at least, was obtained by the defendant by false and deceptive representations as to his financial condition and prospects, and his ability to pay as the notes matured; but that allegation is not found in the affidavit, and consequently the attachment cannot be supported by such evi dence. In other words, the attachment was | 1888, she settled an account in the orphans' not founded upon the charge that the debt court. By this account it appears that she was fraudulently contracted by the defend- paid all the debts proved against the estate, ant, but upon the two specific charges that we have referred to. According to the view we have taken of the subject, the court below should have sustained the motion to quash the attachment, and should not, therefore, have entered judgment of condemnation. But, with respect to the costs in this court, we order and direct that the appellants pay the cost of printing the testimony inserted in the transcript by their order. Code, art. 5, 813. Judgment reversed. (71 Md. 608) VAN BIBBER v. REESE. and many others, and the legacy of $500, and the costs of administration, and there remained in her hands a balance amounting to $7,704.10. This balance belonged to her as residuary legatee. In addition to the personal estate included in this account, Mr. Reese owned in fee-simple, at the time of his death, a house situated in the city of Baltimore. This house, which is the real estate involved in the pending litigation, the appellee acquired under the will of her husband. On the 3d of September, 1888, Mrs. Reese sold the house to the appellant, Dr. Van Bibber, for $25,000, and on the 20th of the same month he took possession of it. We make no reference to the circumstances under which possession was taken, because they have no relation to the only question which we deem it necessary to consider and decide. Shortly after the memorandum of sale was Code Md. art. 93, §§ 109-112, require an executor to give notice of his appointment, and warn testator's creditors to present their claims in six months, and report to the orphans' court that such notice has been given, which report shall be re-signed, it was suggested that possibly Mr. corded. Article 16, § 188, provides that where any person dies leaving real estate, and not leaving personal estate sufficient to pay his debts and costs of administration, the court, on suit of a creditor, may decree that the real estate, or so much as may be necessary, shall be sold to pay his debts. Held, that the records of the orphans' court showing that an executrix, who was the sole devisee, after giving the required notice to creditors, had filed her final account, exhibiting, after the payment of all debts, legacies, and costs of administration, a large amount of personalty in her hands, were sufficient notice to her vendee that the title to the lands of the estate vested in her unincumbered by the claims of testator's creditors. Appeal from circuit court of Baltimore city. Argued before ALVEY, C. J., and ROBINSON, BRYAN, STONE, and MCSHERRY, JJ. W. Pinkney Whyte and Geo. L. Van Bibber, for appellant. John P. Poe and Frank Gosnell, for appellee. MCSHERRY, J. The bill in this case was filed by the appellee against the appellant to procure the specific performance of a contract for the sale of real estate located in the city of Baltimore. The facts upon which the main and the important question here involved depends are these: Edwin Reese, the husband of the appellee, died on November 22, 1887. By his last will and testament, which was admitted to probate by the orphans' court of Baltimore city shortly after his decease, he bequeathed to his father a legacy of $500, and made his widow his sole residuary devisee and legatee, and appointed her executrix. Letters testamentary were issued to her, and she at once gave notice, under article 93, § 109, of the Code, to the creditors of her deceased husband's estate, warning them to exhibit their claims, properly authenticated, on or before the 31st day of May, 1888. She subsequently made report to the orphans' court that she had given | this notice, and her report was ordered to be recorded pursuant to sections 110-112, art. 93, of the Code. On the 2d of November, Reese owed debts beyond the amount of the personal estate left by him, and that therefore his creditors might follow his real estate, and subject it to the payment of those debts, even though the appellant had purchased it from the devisee, and had paid her for it in full. This suggestion, after much fruitless negotiation, ultimately led Dr. Van Bibber to decline complying with the agree ment of September the 3d; and on January 3, 1889, Mrs. Reese filed the bill now before us for a specific performance of that contract. The relief prayed was granted by the circuit court of Baltimore city, and a decree was signed accordingly. From that decree Dr. Van Bibber has appealed. That Section 188, art. 16, of the Code gives rise to the main controversy in the case. section, which is a codification of the Act of 1785, c. 72, § 5, and its various amendments, provides that, "when any person dies, leaving any real estate in possession, remainder, or reversion, and not leaving personal estate sufficient to pay his debts and costs of administration, the court, on any suit, instituted by any of his creditors, may decree that all the real estate of such person, or so much thereof as may be necessary, shall be sold to pay his debts," etc. By the common law, as is well known, the heir of a deceased debtor was only bound for the payment of the specialty debts of his ancestor, because of the express terms of the obligation; and then only in respect and to the extent of the real assets descended. And if a debtor, instead of suffering his real estate to descend to his heirs, devised it to any person; or if the heir aliened the land before an action was brought against him, the creditor was without a remedy. To obviate this injustice the statute of 3 & 4 Wm. & Mary, c. 14, was enacted, and the heir and devisee were made liable to the extent of the value of the land so acquired and then sold by them, though the land itself, in the hands of a bona fide purchaser from either |