Limitation of Actions.-Effect of Death upon the Rights of Creditors. 9. Limitation of Actions. Actions of account upon any debt or contract, or upon the case, except such accounts as concern merchant and merchant, their factors and servants, who are non-residents of the state, and actions of debt upon any contract, or lending without specialty, must be brought within three years after the cause of action has accrued. All actions upon bonds, judgments, or writings under seal, must be brought within twelve years after the cause of action first accrues. In the first class of cases, there is a saving of the rights of infants, feme coverts, and persons non compos mentis, for the term of three years after the removal of their respective disabilities; in the latter class for the similar period of five years. (a) 10. Effect of Death upon the Rights of Creditors. The personal estate of a decedent constitutes the primary fund for the payment of his debts, and must be exhausted before a creditor can reach the realty. Where the personal estate is insufficient, the Court of Chancery will direct a sale of the real estate upon such application. The Court of Chancery will distribute the proceeds ratably among all the creditors of the deceased. (b) In the distribution of an estate, debts by judgment or decree within the state, are to be first paid; and then all other debts, whether by specialty or simple contract, are put upon an equality. The executor or administrator, upon giving notice by advertisement six months before the settlement of his account, may close his administration, and bar all creditors whose claims have not been presented within one year. 11. Attachment. A creditor may obtain an attachment against the lands, tenements, goods, chattels, and credits of a debtor, who is either a (a) 1 Dorsey, c. 23, 10. (b) Ib. 210. 1 Harr. & Gill. 504; 6 Gils. 29, 424. Attachment. non-resident, or being a citizen absconds or secretes himself, with intent to evade the payment of his just debts. (a) Any person residing in any part of the United States, or who may sue out mesne process, may prosecute the writ of attachment. (b) The provisions of the law likewise extend to the case of corporations, whether incorporated by the state or not, and whether plaintiffs or defendants. (c) Where the debtor is not a citizen of the state, the creditor must make an oath or affirmation that he either knows, or is credibly informed and believes that such is the fact, and where the debtor is a citizen, the creditor must make a similar oath that he has either fled from justice, or removed from his place of abode with intent to defraud or injure his creditors. This oath or affirmation may be made before any judge of the General Court, justice of the peace or of the County Court, or before any judge of any other of the United States. In the latter case there must be annexed the certificate of the clerk of the court of which he is judge, or of the governor, chief magistrate or notary public of such state, that he has power to administer such oath. The creditor must also make oath that the debtor is bona fide indebted to him in the sum of $- over and above all discounts, at the same time producing the bond, bill, or account on which he is indebted. (d) Attachments may be laid upon debts and upon judgments or decrees, or upon stock or other funded property. (e) When the creditor, or any person for him, makes oath that he believes the person against whom the attachment is to be served, has property belonging to the defendant in his possession, or under his care, or is indebted to the defendant in any sum, though not then due, and that he has just cause to fear that said garnishee is about to remove from the county where he resides, the clerk may insert in the attachment a clause of capias against said garnishee, and he shall be held to sufficient bail to appear at court and make answer to the plaintiff's interrogatories, and to render his body to prison, or pay the condemnation money, if judgment shall pass against him. (f) (a) 1 Dorsey 320. (b) 1 Ib. 832. (e) 2 Dor. 1067, 1101. (c) 2 Ib. 1088. (d) 1 Ib. 320. (f) 1 Ib. 320. Proceedings in Civil Suits. Attachment against a non-resident debtor will not be dissolved unless defendant, or some one for him, enter into bond, with security, to satisfy any judgment that may be obtained against defendant. Where either of the plaintiffs or defendants was a citizen of the state at the time the contract was made, or debt accrued, upon which the attachment issues, the attachment will not be dissolved unless some one of the defendants give bond to be approved by the court, on condition to pay the plaintiff the value of such goods as may have been levied on, in the event of his recovery. (a) Judgments in attachment have preference according to the order of the periods of levying the attachment. (b) Bail.-Bail cannot be required of females, or of executors or administrators sued as such, or of insolvent debtors. It cannot be required in actions of debt upon bonds with collateral condition, or upon judgments where bail was given in the original action. It may be required on producing the evidences of debt, in all actions ex contractu, whatever may be their form, and whether their evidences be the written acknowledgment of the party, or the affidavit of the plaintiff. Where the injury arises from a breach of contract sounding in damages, it is usual to hold to bail upon affidavit stating that the party is injured by the breach of contract set forth in the affidavit, to a particular amount. For the manner in which a debtor imprisoned on mesne process may obtain his discharge, see title "Insolvent Law." Judgment and execution. The lands of a judgment debtor are bound from the rendition of the judgment: his goods only from the delivery of the execution to the officer. The equitable interest of a judgment debtor in land, may be taken and sold on an execution at law; (c) but not so his equitable interest in personalty. To reach the latter interest, the creditor must levy his execution, and cause it to be returned, by which he acquires a prior right in equity, to be satisfied from its proceeds. (d) (a) Acts of 1839, 39. (b) Dorsey 946. (c) Dor. 1810, 160, 602. Insolvent Law. Judgments in a Magistrate's Court do not create a lien upon lands and tenements. (a) The three general executions in use are the writs of attachment, fieri facias, and capias ad satisfaciendum. As to the manner in which the debtor may release himself from the last, see title "Insolvent Law." Courts. The county courts have original jurisdiction in all cases where the matter in dispute is of the value of fifty dollars and upwards. They are held twice a year in each county. There are six judicial districts in the state, each comprising two, three or more counties. For each district, there are a chief judge and two associates, who constitute the county courts for the respective districts. There are besides, the Orphans' Court held in each county, and the Court of Chancery, whose jurisdiction is coextensive with the state. 13. Insolvent Law. (b) The insolvent system of Maryland, is regulated by the act of 1805, and its numerous supplements. Any debtor wishing to avail himself of its provisions, who has resided sixty days within the state, may make an application in writing to the County Court, or a judge thereof, or to the Orphans' Court, offering to deliver up all his property to his creditors. A schedule of his estate with a list of his creditors, verified by affidavit, must accompany the petition; upon which the court shall direct that notice of such application, and of the time fixed for the appearance of the debtor, shall be given to the creditors; and on the appearance of the debtor at the time fixed, and he must give security for his appearance at that time, the court administers an oath to him, to the effect that he has surrendered all his property, and that he has not directly or indirectly disposed of any part of it, with a view to defraud his creditors or secure the same to himself: whereupon the court shall appoint such persons as a majority of the creditors (a) Acts of 1838, 380. (b) The above outline of the Insolvent Law of Maryland is mainly taken from the Western Law Journal, vol. ii. 389, with the permission of the author, F. W. Brune, Jr., of Baltimore. Insolvent Law. in value shall recommend, but in case they recommend no one, such person as the court may think proper, to be trustee for the benefit of the creditors. The trustee shall give bond, and upon the debtor's executing a deed to him of all his property, the debtor shall be discharged from all debts and contracts due or contracted at the time of his application, provided that any property which the debtor may afterwards acquire by gift, descent, or in his own right by bequest, devise, or in the course of distribution, shall be liable for the payment of his debts, and vest in his trustee for that purpose. Any creditor may allege within two years from his application, that the debtor hath disposed of or purchased in trust for himself or his family, or concealed any part of his property to deceive and defraud his creditors, or hath lost more than one hundred dollars by gaming at any one time within three years from the date of the application: and the court may thereupon, at the election of the creditor making these allegations, examine the debtor and the persons to whom he may have transferred his property, on oath, or may direct an issue in a summary way, to try the truth of such allegations: and if the debtor is found guilty of the charges alleged against him, he shall be forever precluded from any benefit of the insolvent law, and be liable to be convicted and punished for perjury. Provision is also made for cases in which the debtor is imprisoned at the time of the application, by which he may in such cases obtain a personal discharge. All conveyances to creditors, or sureties, and all judgments confessed to them, when made by the debtor with a view or under an expectation of applying for the benefit of the insolvent laws, and for the purpose of preferring such creditor or surety, are declared void, and the property attempted to be conveyed or assured, shall vest in the trustee of such debtor. By the act of 1834, chap. 293, all conveyances and dispositions of property, made by a debtor in Baltimore city or county, with an intent to prefer any creditors or security, when such debtor has no reasonable expectation of being exempted from liability or execution on account of his debts, without applying for the benefit of the insolvent laws, are declared void, except as against persons claiming for a valuable consideration under such creditors or their legal representatives, or where the creditor or security |