52 STRIKE'S CASE.—1 BLAND.

might be allowed to assume the position of a co-plaintiff before the

decree.
But the established practice is for the creditors to come in by filing the

vouchers of their claims in the Chancerj office, (h)
In this form a creditor may come in at any time before a distribution of the

proceeds of the sale has been actually made; and before a final audit

has been ordered and ratified. But if the auditor has previously made

a statement, the cost of the re-statement must be borne exclusively by

such new applicant, (i)
No higher proof of such claims is required than such as would induce the

Orphans' Court to allow the claim according to the testamentary system,

in case no objections are made, (k)
Against such claims the Statute of Limitations may be relied on by any

other creditor, as well as by the plaintiff, or a defendant. (l)
But a party cannot first contest a claim on its merits, and then afterwards

plead limitations. (Note.} (m)

(h) Approved in Thomas v. Farmers Bank, 46 Md. 55. See Baleh v. Zent-
meyer, 11 G. & J. 268, note.

(i) Approved in Ohio Trust Co. v. Winn, 4 Md. Ch. 363. Cf. Trayhern v.
Nat. Mech. Bank, 57 Md. 598; Cape Sable Co's Case, 3 Bland, 642.

(k) See Jackson v. West, 22 Md. 82; Evans v. Bonner, 2 H. & McH. 377,
note; Carey's Forms, pp. 70, et seq.

(1) Cited in Estate of Leiman, 32 Md. 243, where it was held that under the
insolvent laws the trust is an express trust for the benefit of the creditors of
the insolvent, who are such at the date of his application, and their claims,
unless then barred by limitations, are not afterwards affected by lapse of
time. In Williams v. Bank, 19 Md. 23, it was held that where a claim has
been allowed by the Court of Appeals, and the cause remanded for further
proceedings, it is then too late to plead to such claim, for the first time, the
Statute of Limitations. See note (m), infra.

(m) Approved in Hall v. Bidgely, 33 Md. 311; Welch v. Stewart, 2 Bland,
43. In a creditors' suit, "any creditor not named as complainant in the bill,
may come in after institution of the suit and make himself a party thereto,
by Bimply filing the voucher of his claim with the clerk, and as against any
claim so filed the statute runs down to the time it was thus filed, that being
regarded as the time of commencement of the suit with respect to such
claim. To a claim thus filed, any party interested in contesting it may rely
upon limitations in the same summary and informal manner in which the
claim itself was presented, by a short note in any form, without oath, stat-
ing in substance that he relies upon the bar of the statute. Carroll v. War-
ing, 3 G. & J. 494. As a general rule he may present this defence at any
time after the claim has been filed, either before the case has gone to the
auditor, or after he has made a report upon it, or by way of exception to an
account allowing it, (Welch v. Stewart, 2 Bland, 42; McDowell v. Goldsmith,
24 Md. 219.) unless he has done some act, or stands by and suffers some act
to be done, which necessarily implies a waiver of that defence on his part,
as for instance he cannot first contest such claim on its merits, and then
afterwards plead limitations to it: (McMechen v. Chase, 1 Bland, 85, note c,
and 2 Bland, 43,) or where an original complainant presents his claim with
his bill, and the defendant in his answer denies its existence, but does not
plead limitations thereto, he cannot, after the case has been contested on the
ground of the existence of the claim, rely upon the statute by way of ex-