ART. 5] DISMISSAL OF APPEALS——CROSS APPEALS. 233

1888, art. 5, sec. 38. 1860, art 5, sec 30. 1841, ch. 46, sec. 2. 1842, ch 288
1864, ch. 322. 1888, ch. 34. Rule 16.

40. No appeal shall be dismissed because the transcript
shall not have been transmitted within the time prescribed, if
it shall appear to the court of appeals that such delay was
occasioned by the neglect, omission or inability of the clerk or
appellee; but such neglect, omission or inability shall not be
presumed, but must be shown by the appellant.

Hannon v State, 9 Gill, 440. Glenn v. Chesapeake Bank, 3 Md. 478. State
v. Mister, 5 Md 16. Sample v Motter, 5 Md 368. Dugan v. Hollins, 11 Md.
75. Mayor, etc., v. Reynolds, 18 Md. 272. Bowie v. Agric. Coll., 27 Md. 268.
Andrews v Poe, 30 Md. 486. O'Hern v. Browning, 33 Md 475. Hooper v.
Turnpike Co , 34 Md. 529. Mince v Tucker, 37 Md. 362. Lewin v. Simpson,
38 Md. 481. Meloy v. Squires, 39 Md 175. Bowie v Neal, 41 Md. 130.
Meloy v. Squires, 42 Md. 378. Ewell v. Taylor, 46 Md. 573. Nutwell v. Nut-
well, 47 Md 47. N. (J. R. R. Co. v. Rutledge, 48 Md. 262. Wilson v Merry-
man, 48 Md. 334. Rau v. Bennis, 49 Md. 316. Willis v. Jones, 57 Md. 366.
Biddison v. Mosely, 57 Md. 92. Downes v. Friel, 57 Md. 532. Mason v
Gauer, 62 Md. 263 B & O. R. R. v. State, 62 Md. 479. Parsons v. Padgett,

65 Md. 356 Chappell v. Chappell, 86 Md. 540. Steiner v. Harding, 88 Md.
344. Miller v. Gehr, 91 Md. 714.

Ibid sec. 39. 1864, ch 322.

41. If the clerk shall have prepared the record as required
by law, and the appellant or plaintiff in error shall have neglected
or omitted to pay for such record, or by any other neglect or
omission on the part of the appellant or plaintiff in error, the
said record shall not be sent to the court of appeals within
time, the court from which the appeal was taken may, on
motion, strike out the entry of such appeal and proceed to

execution, or other proceedings, as if such appeal had never
been entered, and thereafter no other appeal or writ of error
shall be allowed.

Meloy v. Squires, 39 Md. 176. Ibid. 42 Md. 378. Nutwell v. Nutwell, 47
Md. 47. Rau v. Bennis, 49 Md. 316.

Ibid. sec. 40. Rule 17

42. In all cases of cross-appeals, or of more than one appeal
being entered in the same case from any judgment, decree or
order, there shall be but one transcript of the record transmitted
to the court of appeals, and that shall be used upon the hear-
ing of all such appeals; in cases arising under this rule, the
court of appeals shall have power to award costs, including the
cost of transmitting the record, to either of the parties in its
discretion, or the costs may be apportioned as the said court
may deem just.