consideration to a note, then the burden is based on practically the same evidence. It not on the defendant, but on the plaintiff. is true the defendant denied that he owed We cannot give our assent to that departure from a well-established rule, even if there be authorities elsewhere to sustain it, for, call it what we may, it was an unmitigated fraud, not to speak of it as a crime, if the defendant's theory about this note is correct, and hence not only the authorities, but sim ple justice, should place the burden on him to establish by a preponderance of the evidence such a charge as the defendant makes. The general rule just referred to is well stated in 20 Cyc. 108:

"Fraud is never presumed, but must be affirmatively proved. On the contrary, the presumption, if any, is in favor of innocence; and according to general principles elsewhere discussed (referring to 16 Cyc. 928 et seq.), the burden falls on him who asserts fraud, whether he be plaintiff or defendant, to establish it by proving every material element of the cause of action by a preponderance of evidence."

the plaintiff anything, but in order to prove that statement he was compelled to explain how his signature, which was admitted, got on the note sued on, and hence the alleged fraud of the plaintiff was involved in it. It would therefore be utterly illogical to hold that the burden could not be placed on the plaintiff under the third prayer, but could be under the first and fifth. But, regardless of that, we are of the opinion that the better rule is to hold that the burden is generally on the maker to show a want of consideration to a promissory note in a suit between him and the payee. There may be circumstances which justify an exception to such a general rule. Sometimes the facts may be so peculiarly within the control of the plaintiff as to place the burden on him, or there may be some other reason for making an exception, but it seems to us that it is the wiser rule to adopt, in order to make negotiable instruments effective and of the value they are supposed to be. When the maker signs a negotiable instrument, it is presumed to be for value, and, without meaning that that is necessary, this one states on its face it is for "value received."

It is true that placing the burden on one who thus asserts fraud may be the means of the opposite party obtaining an unrighteous verdict, where there is oath against oath, but while such a result must be regretted, the defeat of an innocent party, falsely accused of such fraud by reason of the burden being on him, would be deplor-In business transactions notes are often able, as he would not only lose his money, but his reputation might be seriously injured. If, then, the defendant in a suit on a negotiable promissory note, which is admitted to bear his signature, attempts to escape payment of it by alleging fraud, or what is equivalent to fraud without the use of the term, in order to show want of consideration for the note, he ought not to complain if he has the burden of establishing it by a preponderance of proof, such burden continuing to the end of the case. This is enough to indicate that we must hold that the defendant's third prayer was properly rejected, because it asked the court to instruct the jury that, if they found that the note was signed by the defendant, and delivered in blank to the plaintiff, and that he or some one in his behalf filled in the note for the sum of $4,250, "under the evidence in this case the burden of proof is upon the plaintiff to show that the note was so filled in with the authority and consent of the defendant." Other objections to that prayer might be mentioned, but the above is sufficient. As we have seen, the plaintiff did not claim that the note was 'filled in" with the authority and consent of the defendant, but he denied that it was delivered to him in blank, and to place such a burden on him "under the evidence in this case" could not be justified by any wellconsidered authority that we are aware of. Returring to the first and fifth prayers, we find that the want of consideration is

taken in order to settle all questions about the amount of liability, etc., and to put them in such shape that they will speak for themselves, in case of the death of debtor or creditor, and yet, if the burden is put upon the payee to sustain the consideration, simply because the maker denies it, they are in fact of little more use between the parties than an open account would be. The creditor may destroy his checks or other evidence, if he has any, tending to prove consideration for a note which has been in existence for some time, or has been renewed from time to time, and if he has done so, then the fact that a negotiable promissory note imports consideration and the prima facie presumption that there was value are of little benefit, if the debtor can by offering some evidence that there was no consideration cast the burden on the plaintiff. It is, of course, wise not to make a note or a bill of exchange conclusive of a valid consideration, but the burden should at least be on the one setting up a want of consideration, and that burden should not be shifted, but should rest on him to the end of the case.

We do not understand the appellant to press his exception to the modification of the fourth prayer. That ruling was too clearly right to require a discussion of it. Finding no reversible error in the rulings of the court, we must affirm the judgment.

Judgment affirmed; the appellant to pay the costs.

(130 Md. 150)

WILLS 269-PROBATE
CEEDING.

LINTHICUM et al. v. LINTHICUM. (No. 23.) (Court of Appeals of Maryland. Jan. 31, 1917.) NOTICE OF PROCode Pub. Civ. Laws, art. 93, § 343, provides that if any of the next relations of a decedent attend when a will is exhibited and make no objections, or if reasonable notice of the time of exhibiting the same has been given to such relations as might be conveniently served and no person shall object, the register shall proceed to take probate. Sections 344 and 345 provide that if the will be exhibited to the orphans' court and next relations do not attend and no notice shall appear to have been given, the court may either direct summons to them to appear on a fixed day, or direct such notice to be given. Held, that it is only where none of the next relations of the testator, are present when a will is exhibited that it must be made to appear that notice was given, and where one of such relations did attend, though such attending relation was named as executor, and no objection was filed, the orphans' court might probate the will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 620-625.]

Appeal from Orphans' Court, Howard County.

"To be officially reported."

Petition by Charles G. Linthicum, Jr., and another against A. Howard Linthicum, executor of Charles G. Linthicum, praying that the probate of the will of decedent and the etters testamentary granted thereon should be revoked. From an order dismissing the petition, petitioners appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.

D. G. McIntosh, Jr., of Baltimore (D. G. McIntosh, of Baltimore, on the brief), for appellants. Joseph L. Donovan, of Ellicott City, for appellee.

one would be offered for probate, and that
the first notice received was in a letter from
the solicitor of the executor to one of the
petitioners the day after the probate. The
will was prepared by Drs. Nichols and Cis-
sell, and retained in the possession of Dr.
Nichols until presented by him to the or-
phans' court for probate. Those present at
the proof of the will were the witnesses to it
and the son, A. Howard Linthicum.
court refused to revoke the probate and the
letters testamentary granted thereon and dis-
missed the petition; and it is from that or-
der this appeal was taken.

The

The sole contention of the appellants is that, under the provisions of the Code, it was the duty of the one propounding the will for probate to have given reasonable notice to them of the time at which the will would be offered for probate, and that, therefore the orphans' court, in the absence of such notice, did not acquire jurisdiction to admit the will to probate. The provisions of the Code, affecting this question, are found in sections 343, 344, and 345, art. 93, and are as follows:

"343. If any will or codicil be exhibited for proof to the register of wills in the county wherein the same may be proved, in the recess of the court, and any of the next relations of the deceased shall attend and make no objections, or enter no caveat, or if it shall appear that reasonable notice of the time of exhibiting the same hath been given to such of the next relations as might conveniently be therewith served, and no person shall object or enter a caveat, the register shall proceed to take the probate thereof.

"344. If any such will be exhibited for probate to the orphans' court of the county where relations of the deceased shall attend, or if the same may be proved, and any of the next notice shall appear to have been given as aforesaid, and no caveat shall have been made against the same, the said court may forthwith proIceed to take probate thereof.

"345. If any will or codicil be exhibited to CONSTABLE, J. The appellants, two of the orphans' court, and none of the near relathe three only sons of the late Charles G. tions of the deceased shall attend, and no noLinthicum, filed their petition in the orphans' tice shall appear to have been given, the court court of Howard county, alleging that the lations, or some one or more of them, to appear may either direct summons to the said near rewill of the said Charles G. Linthicum had on some fixed day to show cause wherefore the been improvidently admitted to probate, in same should not be proved, or direct such notice that it was so admitted without notice hav- to be given in the public papers or otherwise, as they may think proper; and if no objection ing been given to the petitioners as to the shall be made or caveat entered on or before the time it was to be offered and without their day fixed, the court or register of wills in their attendance, and praying that the probate recess, may take the probate of such will; but if objection shall be made on or before the day thereof and the letters testamentary grant-appointed, the said court shall have cognizance ed thereon should be revoked. A. Howard of the affair, and shall determine according to Linthicum, the other son, to whom letters the testimony produced on both sides." testamentary had been issued, he having been designated as executor in the will, filed an answer, and testimony was taken at the hearing upon the petition and answer. From the testimony it appears that one of the petitioners lived in Baltimore city and the other in Howard county, within a few miles of his father's late home, and that the appellee made his home with his father, that the petitioners had no knowledge of the existence of a will, and were not notified by any one that

It is only very recently that this court has been called upon to again pass upon the authority of the orphans' court, as derived from these sections, and that case must be deemed as conclusive of the question here presented. In Lederer v. Johannsen, 124 Md. 453, 92 Atl. 1035, Judge Thomas speaking for the court, it is said:

of the deceased are present when the will is ex"It is only where none of the near relations hibited for probate that it must be made to appear that reasonable notice was given to them,

it having been conveyed to it by Jennie S. | tion to dissolve the injunction was made, tesEvers and Abraham M. Evers, her husband, timony was taken, and after a hearing the two of the appellees, who own a farm on the court passed a decree dissolving both injuncwesterly side of the turnpike which extends tions. From that decree this appeal was into the present limits of Hagerstown. Mil- taken. ton F. Hoover, another appellee, owns a small farm adjoining that of the Evers on the northwest side, extending to the Broadfording road, and fronting on the appellant's road between the latter and the lot conveyed to the appellant by Mr. and Mrs. Evers.

All of the defendants and all of the lessees except Mr. and Mrs. Evers and William S. Foley live on the Broadfording road. Just where it ends is not very clearly shown in the testimony, but it crosses the turnpike which runs from Williamsport, Md., to GreenOn the 15th of April, 1916, Mr. and Mrs. castle, Pa., and apparently reaches the appelEvers made a lease to J. Milton Long and lant's road again at Cearfoss, where the lat18 other persons of a "strip of land not more ter ends. There are also two county roads than 25 feet wide" "for the public use of a running from the Broadfording road to the road or way," for the term of one year, with appellant's road, as shown by a plat filed. the right of the lessees to renew the lease on William S. Foley lives on the appellant's the same terms and conditions for a period road, but his testimony shows that he had of five years longer at $15 per annum. Mil- nothing to do with the new road, excepting ton F. Hoover made a lease to the same par- he was employed to work on it a day and a ties on the same terms and conditions for a half, but never used and did not expect to strip of land on his farm, excepting there is use it. The appellant charges those coming no money consideration mentioned in the from the Broadfording road two cents toll lease. The road was laid out from a point on each way for a one-horse vehicle, and four the Broadfording road near the appellant's cents each way for a two-horse vehicle to road to the lot of the appellant, purchased of Hagerstown. After the limits of Hagerstown Mr. and Mrs. Evers, and then along and were extended the people along the Broadaround that lot until it reached the south-fording road applied to the appellant and to west corner of it, and from there it diverged the county commissioner to have the toll refrom that lot to a point not far from the duced, and, failing in that, a bill was offered turnpike, and then ran southeasterly to the in the Legislature to require a removal of corporate limits of Hagerstown. The pro- the tollgate from its present location to a posed road does not touch the turnpike at point half a mile further from Hagerstown. any point, but runs into what was formerly That bill passed the House of Delegates, but a part of it, and is now a street in Hagers- failed in the Senate, and the lessees then town. built the new road, apparently to secure from appellant a reduction of the tolls. They claim that the tolls charged are exorbitant, and testified in substance that their object in building the road was to have the tolls reduced, and that they did not intend to permit it to be used by any persons not living on the Broadfording road, excepting the Evers through whose farm it runs. They only use the appellant's road in going to Hagerstown 283 feet, since the city limits were extended, but there has been no reduc. tion of tolls.

A bill was filed by the appellant against Mr. and Mrs. Evers, Milton F. Hoover, Norman B. Holsinger, Benjamin R. Dorsey, J. Milton Long, and William S. Foley, asking for an injunction against Mr. and Mrs. Evers and Mr. Hoover prohibiting them "from granting permission or leasing to the other defendants any lands over which there is to be constructed a 'shun pike road,'" and against the five other defendants named, as well as others said to be unknown to the plaintiff, "from building and constructing any such 'shun pike road' or road around the south side of the complainant's tollgate to be used for the purpose of evading the payment of tolls to the complainant for the passage of any wagons, carriages, or vehicles of any kind passing over the Broadfording road, or over the turnpike road of this complainant to and from Broadfording and Cearfoss to Hagerstown." An injunction was granted on April 24, 1916. Later the plaintiff filed a petition, alleging that before the injunction was served on the defendants the road was built, and praying for a mandatory injunction prohibiting them from maintaining and keeping open the said road, and ordering them to close it. On May 1, 1916, an order was passed directing the issuance of that injunction. An answer was filed by Mr. and Mrs. Evers and Mr. Hoover, and another by

[1] The charter of the appellant was granted at the same session of the Legislature which adopted the general corporation law of the state, and included provisions for the formation and regulation of turnpike, plank road, and passenger railway companies. By section 216 of chapter 471 of the Acts of 1868, being the general corporation law referred to, it was declared that all corporations theretofore formed under the general laws of the state relating to corporations, or under any special act, were entitled to the benefit of and to be subject to all the regulations in that article contained for the government of the corporations therein referred to, so far as applicable to said corporations. There is nothing in the charter which indicates that that company should have more rights and powers than one incorporated un

mitted to the Legislature at the same session | of the whole country, has of late been to enand which were then adopted.

courage, and not to shut out competition, as there is no longer any necessity for it in order to induce capitalists to invest their money in new enterprises. Indeed, many of the states, including Maryland, have adopted the plan of building good roads, and of encour

An examination of the general laws will fail to show any intention to prohibit another turnpike company, or any kind of a road, from being built which might interfere with tolls of one so incorporated, and the same may be said of the charter of appel-aging the counties to build others, and thus lant. Any five citizens of the United States, make the public roads free from tolls (which a majority of them being citizens of this sometimes seem excessive), and in many ways state, could then organize a turnpike com- beneficial to the public at large. Of course pany, and since 1908 three adult persons, they should not, and cannot, be permitted to one of whom is a resident of this state, can interfere with the vested rights of corporado so. It is not only not necessary to apply tions whose stockholders have invested their to the Legislature for such authority, but money in them, but the point we make is, the Legislature was prohibited by the Con- that no company organized at such time as stitution from granting a charter for a cor- the appellant was, or since, has the right to poration which the general laws provided for. expect the state to exclude or prevent comIt is true that the appellees did not incor- petition, as was apparently done in some juporate, but we refer to these facts to show risdictions in former years. Without quotthat the conditions have entirely changed ing from it, we would refer here to the opinfrom what they once were, and there is no ion of Chief Justice Taney in Charles River longer any necessity for a state offering spe- Bridge Co. v. Warren Bridge Co., 11 Pet. cial inducements, in order to have a turnpike 420, 9 L. Ed. 773, where he so forcibly stated company organized, as there was in the early what would be the results if the privileges days of this and other states. It cannot be granted turnpike and other companies were said that the state is under any obligation to construed to be exclusive. What was there protect a corporation formed under the gen- said might happen was well illustrated in eral laws, or at such time as the appellant W. & B. Turnpike Co. v. B. & O. R. R. Co., was chartered, from other corporations of the 10 Gill & J. 392, where the turnpike comsame kind, as long as the new corporation pany actually sued the railroad company for does not violate existing laws or interfere a diversion of its travel and transportation with the legal rights of the first company. by building and operating a railroad from Such company has no right to exclude others Washington to Baltimore, between which from its territory, or to prevent them from points the turnpike was built, although the reducing its income by competition. Those railroad was built under special legislative interested in a turnpike company chartered authority. The opinion delivered by Chief in this state as late as 1868 presumably Justice Taney above referred to caused a knew that it was no longer an object for spe- radical change in the decisions of some of cial protection and aid from the state.

There is nothing whatever in the General Laws of 1868 or in the charter of appellant to suggest that the state would afford special protection to the appellant from interference with its tolls, or prohibit any other persons from building a road which might affect the appellant. It may be well to remember that section 107 of the General Laws of 1868, now section 382 of article 23 of Annotated Code, provides that:

"Corporations for making turnpikes or plank roads or passenger railways outside of the limits of the city of Baltimore may be formed," etc.

Turnpikes can claim no more protection from the state than passenger railway companies, under the statute, and it is common knowledge that passenger railways-not only those in Baltimore city, but in the countieshave at times had serious inroads upon their income by motor busses, running in some instances on the same road which such a passenger railway company is built upon, and in others on a road near by. There can be no reason for giving more privileges to turnpike companies than to passenger railway companies organized under the same section of

the courts. Those of Chancellor Kent in Croton Turnpike Road Co. v. Ryder, 1 Johns. Ch. (N. Y.) 611, and of the Newburgh & C. Turnpike Road Co. v. Miller, 5 Johns. Ch. (N. Y.) 101, 9 Am. Dec. 274, seem to have been largely responsible for the doctrine established in some jurisdictions with reference to the exclusion of others from the territory occupied by a turnpike or ferry company. While all courts must have the highest respect for the decisions of that great chancellor, the doctrine he announced as the foundation for those decisions was rejected by the Supreme Court of the United States in the case mentioned above, although both his Commentaries and his decision in Newburgh Turnpike Co. v. Miller were cited in argument. But the Court of Appeals of New York, in Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. 444, expressed its disapproval of those decisions. That was a proceeding "to restrain the defendant from making a way upon his own land, by the use of which travelers were enabled to avoid one of the plaintiff's tollgates." It was alleged that the road was made "with the intent to injure and defraud the plaintiffs." It was there held, quoting from the syllabus for con