follow that the testimony which is yet to be taken in this case will show, as it did in the former case, that a confidential relation continued to exist between these parties, nor that the physical condition of Mrs. Hammersly was the same at the date of the execution of the deeds assailed in this case as it was when those assailed in the former case were executed. The two transactions are distinct and independent, and their validity must be determined by the circumstances attending them respectively, and it may be observed here that the deeds assailed in the former case were there discussed in argument and considered by the court as deeds, and not as testamentary papers, as the appellees in their brief in this case seek to treat them. This cannot be done consistently with the character of the proceeding in this case, the prayer for relief being that the deeds may be "set aside and annulled." If they could be regarded as testamentary papers there would be no jurisdiction in a court of equity to annul or set them aside, and the counsel for the appellees would not have invoked the relief which they seek.

This case, in respect to the number of similar sets of conveyances alleged in the answer to have been intended to accomplish the same results, is unlike any case to which we have been referred; but if the truth of that allegation in the answer and the bona fides of the transactions be assumed for the purpose of considering only the character of these papers, all those which followed the execution of the first set might be fairly regarded as confirmatory of the title which had been adequately and fully conveyed by the first set. Whether the unusual and peculiar course pursued indicates a persistent and cunningly devised scheme of Horner and wife to dominate the feeble will of an infirm old woman, and by undue influence to acquire possession of the bulk of her property, or whether it disclosed a fixed purpose on the part of a woman of strong will and business capacity to dispose of her property in her lifetime according to a design of her own, can only be properly determined from testimony taken for a hearing upon the merits of the case. The doctrine of res adjudicata can in no event be applied to the Baltimore city stock, since that was nowhere mentioned in the former case, and was no part of the rem upon which the decree operated. Nor do we think it can be applied at all in this case. The principles which govern the application of this doctrine are stated with admirable clearness and precision in Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. That was an action on four bonds of Sac county, and four coupons attached, for interest. To defeat this action the defendant relied upon the estoppel of a judgment in favor of the county in a former action brought by one Smith upon certain earlier maturing coupons on the same bonds, accompanied with proof that Cromwell was at the

time the real owner of the coupons in that action, and that the action was prosecuted for his sole use and benefit. Mr. Justice Field there said: "It should be borne in mind that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties, upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered. * Only upon such matters is the judgment conclusive in another action."

*

In the former case mentioned in Cromwell v. Sac County it appeared that the bonds in question which were negotiable instruments were issued and delivered to a person who had contracted to erect a county courthouse, but never did erect it. It also appeared that the plaintiff in the former suit became the holder before maturity of 25 coupons which had been attached to some of these bonds, but there was no finding that he had ever given any value for them, and upon those findings the court held the bonds were void as against the county, and gave judgment accordingly. In Cromwell v. Sac County the plaintiff offered to prove that he gave value before maturity for the bonds and coupons then in suit, but was not allowed to do so, because of the supposed effect of the former judgment mentioned. The court said: "There was nothing adjudged in the former action in the finding that the plaintiff had not made such proof in that case which can preclude the present plaintiff from making such proof here. The fact that a party may not have shown that he gave value for one bond or coupon is not even presumptive, much less conclusive, evidence that he may not have given value for another and different bond or coupon. The exclusion of the evidence offered by the plaintiff was erroneous, and the judgment must be reversed." The analogy between that case and the case before us is obvious. In the case of Horner v. Bell, 102 Md. 435, 62 Atl. 736, the court held that the burden of proof was upon Horner to sustain the conveyances then before the court, and as he failed to offer any such evidence, the court struck down those particular conveyances. But the fact that he did not offer such evidence is not conclusive, nor is it even presumptive, evidence that he cannot or will not offer such evidence in this action which involves different and later conveyances of the same property. It was adjudged in the former case that he took no title under those conveyances, but there was no ad

judication that he could take no title to the same property under different and later conveyances. An illustration of the manner in which this doctrine is treated when sought to be applied to the title to land may be found in Applegate v. Dowell, 15 Or. 513, 16 Pac. 651, in which it was held that in a suit by a plaintiff to remove a cloud upon his title a decree in a former suit against the plaintiff and his grantor and others rendered subsequent to the plaintiff's purchase of the land and declaring his grantor's deed to be fraudulent did not estop the plaintiff from claiming title to the land. That case was decided upon the authority of Cromwell v. County of Sac. The court said: "The bill only sought to annul the deed from Jesse Applegate to Wm. H. H. Applegate, though the latter had long before conveyed to the plaintiff for a valuable consideration. Dowell contented himself with impeaching the deed from Jesse to Wm. H. H., but left the deed from the latter to the plaintiff in statu quo. If the validity of the deed from Wm. H. H. to the plaintiff had been made an issue in the suit, the decree would have been conclusive upon the question, but it would have had to be put directly in issue, and not merely collaterally litigated. The decree does not conclude the appellant from asserting title to the land." In Packham v. Ludwig (Md.) 63 Atl. 1049, where a somewhat similar state of facts was alleged as to successive wills, this court said: "A charge of fraud in a particular transaction cannot be proved by evidence of other and independent frauds of the party charged, though in a similar transaction, unless it appears that there is such a connection between the transactions as to authorize the inference that the frauds are both parts of a general scheme or purpose to defraud;" but the existence of this scheme is a question of proof, in no way involving any question of estoppel.

For these reasons the decree of the circuit court No. 2 will be reversed, the injunction will be dissolved, and the case remanded.

Decree reversed with costs to the appellant above and below. Injunction dissolved, and case remanded.

(105 Md. 318)

SESSMENTS-STATUTES.

real or personal property. Section 23 declares that no man should be deprived of property except by the judgment of his peers or the law of the land. Acts 1906, p. 143. c. 113, § 22, authorizing the mayor and common council of a city to cause to be constructed, as they may determine necessary for the public benefit, sidewalks in any of the streets, and to assess upon abutting land the cost thereof, and making the assessment a lien on the property and recoverable as taxes, is not invalid as violative of the Bill of Rights, and especially of sections 15 and 23 thereof.

3. APPEAL AND ERROR-PRESUMPTIONS.

On appeal from an order overruling a demurrer to a bill to enjoin a street assessment, in the absence of any allegations on the question of notice, it will be assumed that the property owners were given proper notice pursuant to the statute.

Appeal from Circuit Court, Prince George's County, in Equity; Geo. C. Merrick, Judge.

Suit by Mary Smith and others against the mayor and common council of Hyattsville and others. From an order overruling a demurrer to the bill, defendants appeal. Reversed, and bill dismissed.

Argued before BOYD, PEARCE, BRISCOE, SCHMUCKER, BURKE, and ROGERS, JJ.

Marion Duckett and Robert W. Wells, for appellants. F. Snowden Hill and James C. Rogers, for appellees.

BURKE, J. The appellees are the owners of four lots of ground numbered, respectively, 11, 12, 13, and 14, in block B, in the town of Hyattsville, in Prince George's county, Md. Each of said lots has a frontage of 45 feet on the north side of Johnson avenue, between Maryland avenue and Wine avenue. Johnson avenue is one of the public streets of the town. Two of these lots are owned by Mary Smith, one by Rufus L. B. Clark, and one by Mary D. Sutton. The appellant is a municipal corporation, and in the year 1906 passed an ordinance providing for the laying of a new cement sidewalk upon the part of the north side of Johnson avenue which lies between Maryland avenue and Wine avenue, to replace a sidewalk then existing, but which was then in a bad condition. This old sidewalk had been constructed in 1895 by the commissioners of Hyattsville, a corporation of which the appellant is the successor. In the month of September, 1906, the appellant caused the old sidewalk to be torn up, and a new cement sidewalk to be laid in its place, and in October, 1906, assessed against each of the appellees' lots the sum of 60 cents per front foot as its proportion of the total cost of said new cement sidewalk, which assessment constituted under the terms of the act which will be hereafter referred to and considered a lien upon the lots, and collectible by the municipality. No request was made by either of the appellees to the appellant to lay the sidewalk, nor has either assumed or promised to pay the cost of its construction, or any part thereof. The total cost of laying the sidewalk was $604.55, and the appellant has as

sessed against the lots on the north side of Johnson avenue fronting the sidewalk the cost of its construction in the proportion that their respective number of front feet bears to the total cost, and by this method or rule of assessment the sum payable by Mary Smith is $54.45; by Rufus L. B. Clark, $27.222; and by Mary D. Sutton, $27.22%. The mayor and common council of Hyattsville claims the right to make these assessments, and to collect the same from the appellees under the authority of chapter 113, p. 142, of the Acts of Assembly of 1906. The bill in this case was filed to restrain the collection of each of said assessments, and for a decree declaring the assessments to be null and void.

The grounds upon which this relief was asked are stated in the 6th, 7th, and 8th paragraphs of the bill, and are as follows: “(6) That said mayor and common council of Hyattsville has not authority to assess against each of your complainants' said lot or lots a proportion of the total cost of said new ce ment sidewalk based on the front feet of his or her said lot or lots, or collect the same of your complainants as aforesaid. (7) That said mayor and common council of Hyattsville had no authority under section 22, c. 113, p. 143, Acts 1906, or any other law, either to repave said Johnson avenue as aforesaid, or collect the whole cost of said repaving from the owners of lots fronting the same, and on the north side of said Johnson avenue, or assess the same against their said lots as aforesaid, and said collection from each of the plaintiffs therein and assessments against his or her said lot or lots as aforesaid is illegal and void. (8) That said section 22, c. 113, p. 143, Acts 1906, is unconstitutional and void, being in conflict with the Bill of Rights and Constitution of the state of Maryland, especially with sections 15 and 23 of said Bill of Rights, and each of said assessments is illegal and void." A preliminary injunction was issued as prayed. The appellant demurred to the whole bill, which demurrer the court overruled, and required the appellant to answer the bill within 10 days. From the order of the court overruling the demurrer, the mayor and common council of Hyattsville has brought this appeal.

A motion has been made to dismiss the appeal, because no appeal is allowed from an order overruling a demurrer to the entire bill of complaint. That such an order is in the nature of a final decree from which a party has a right of appeal has been settled by the cases of Chappell v. Funk, 57 Md. 465, and Hecht v. Colquhoun, 57 Md. 563. The appellees rely in support of their motion upon the cases of Cunningham v. Board of School Commissioners, 93 Md. 738, 48 Atl. 1046; State v. Tag, 100 Md. 588, 60 Atl. 465; and McNiece v. Eliason, 78 Md. 175, 27 Atl. 940. Neither of these cases support their motion, nor modify or change in any manner the ruling on this point in the Cases of Chappell

and Hecht, supra. In the Cunningham Case the appeal was from the opinion of the court. In Tag's Case a demurrer to an indictment had been sustained, but there was no judgment on the demurrer in favor of the defendant; and in the McNiece Case the court held that an appeal would lie to this court from an order sustaining the demurrer to the entire bill. The motion to dismiss will, therefore, be overruled.

2. We will now consider the main and important question presented by the appeal which is this: Is the twenty-second section of chapter 113, p. 143, of the Acts of 1906, unconstitutional as alleged by the appellees? That section is in the following words: "Section 22: And be it enacted that the mayor and common council shall cause to be constructed, as they may determine necessary for the public benefit, sidewalks in any of the streets of said town not less than four feet in width, of brick, cement, concrete, or other material, and shall assess upon the land abutting said sidewalks the cost thereof, which assessment shall be a lien upon such abutting property, to be assessed at such time as we mayor and common council may determine, and to be recovered from the owners of such abutting property by said mayor and common council as taxes due the corporation of Hyattsville are collected. The mayor and common council shall have power to make all necessary regulations as to the notice of such assessments to property owners." The bill is silent upon the question of notice, and in the absence of all allegations upon that subject, upon the presumption as to the regularity and validity of all governmental acts, it must be assumed that proper notice had been given. Judge Cooley, in the case of People v. Salem, 20 Mich. 473, 4 Am. Rep. 400, said that in order to render valid a burden imposed by the Legislature under the exercise of the power of taxation, the following requisites must appear: (1) It must be imposed for a public and not for a mere private purpose. Taxation is a mode of raising revenue for public purposes only, and, as is said in some of the cases, when it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder. (2) The tax must be laid according to some rule of apportionment, not arbitrarily or by caprice, but so that the burden may be made to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest. A state burden is not to be imposed upon any territory smaller than the whole state, nor is the county burden upon any territory smaller or greater than the county. Equality in the imposition of the burden is of the very essence of the power itself, and though absolute equality and absolute justice are never attainable, the adoption of some rule leading to that end is indispensable. (3) As a corollary from the preceding, if the tax is

imposed upon one of the municipal subdivisions of the state only, the purpose must not only be a public purpose, as regards the people of that subdivision, but it must also be local, that is to say, the people of that municipality must have a special and peculiar interest in the object to be accomplished, which will make it just, proper, and equitable that they should bear the burden rather than the state at large, or any more considerable portion of the state. (4) To these propositions, which are stated by Judge Cooley to be fundamental maxims in the law of taxation, two others, which have been long and firmly fixed in the law of this state, may be added: First, that the Legislature has the power of taxing particular districts for local benefits or improvements; and, secondly, to authorize a municipal corporation to open, grade, pave, curb, etc., any street, or part of a street, and to assess the cost of doing such work upon the property binding on such street, or part thereof, and that in the absence of any declaration of intent to the contrary the presumption would be that the Legislature considered that the purpose for which the tax or assessment was levied was a public purpose, and that the improvement would inure to the special benefit and advantage of the adjacent owner upon whose property the assessment is laid. These propositions were declared in the cases of Mayor v. Moore & Johnson, 6 Har. & J. 375; Mayor v. Howard, 6 Har. & J. 383; Burns v. Mayor, etc., 48 Md. 198; Mayor v. Hanson, 61 Md. 462; Mayor v. Hopkins Hospital, 56 Md. 28,

In Burns v. Mayor, etc., supra, the court said that the theory and foundation of all previous legislation imposing these special assessments for improvements of this character upon the owners of adjacent property is that the improvement is for their benefit, and that they derive such an advantage from it, in the enhanced value of their property, over and above what is conferred upon the public at large, that it is just that they should be specially assessed therefor, and on this ground the validity of such laws have been sustained. There is an obvious distinction between the public purpose, the existence of which in the particular case is essential to the exercise of the taxing power, and the special advantages which will accrue to the adjacent owner by reason of the improvement. The one concerns the general public interest or welfare; the other, the private benefit to the individual owner over and above that which he would receive from the improvements as a member of the state, municipality, or taxing district in which he may reside.

Chief Judge Alvey, in Baltimore v. Hanson, supra, said: "Unless there be a public benefit in the use of the street, the city clearly would have no authority to improve it, and assess the cost, or any part of the cost, upon the property of the citizens along the line of such street." As is well

and clearly said by Judge Dillon (2 Dillon, Mun. Corp. § 752, note): "In order to justify an assessment, the improvement must be for a public purpose, since the public have no right to tax a citizen to make improvements for his own benefit solely. All streets which are opened for public use are public benefits, and it is upon that ground only that the state can take private property for streets; but the cost of opening and improving them is assessed on adjoining owners on the ground of private benefit. And this is the precise ground upon which the power of assessment is placed by this court in Alexander & Wilson v. City of Baltimore, 5 Gill, 383, 46 Am. Dec. 630." When the provisions of section 22, c. 113, p. 143, of the Acts of 1906, are examined in the light of these principles it would seem to be entirely free of any valid objection against its constitutionality. By that section, which has been herein before quoted in full, the appellant was authorized to construct sidewalks "not less than four feet in width, of brick, concrete, cement, or other materials." It then provided that when the appellant should have determined the condition under which the sidewalks should be constructed, viz., when it should determine that a sidewalk was necessary for a public benefit, it should "assess upon the land abutting said sidewalk the cost thereof, which assessment shall be a lien upon such abutting property."

It is argued upon the part of the appellees that by the use of the language employed in this section the Legislature intended that this sidewalk should be constructed for the sole and exclusive benefit of the general public convenience and interest of the people in Hyattsville, and "with no reference whatever to local benefits to owners of adjoining property, and, therefore, that the cost of the improvement should be borne exclusively from the public treasury." Hanson's Case, 61 Md. 466. It is apparent from what we have said that we cannot agree to this contention. We cannot impute to the Legislature an intention to impose upon the adjacent property holders the cost of making an improvement in which they had no benefit distinct from that of the general public. Such an act would be so unjust and oppressive that it cannot be supposed to have been within the contemplation of the lawmaking body, unless it clearly appears that such was its intention. This act is silent upon the subject of special interests and advantages, and the presumption is that the lawmakers "contemplated local benefits as well as the general public convenience." The special assessment is not void, because the improvement is determined to be necessary for the public benefit. The construction we have given this act has the support, not only of the Maryland cases to which we have referred, but also of well-considered cases in other states, among which we may refer to Sears v. Street Commissioners, 180 Mass.

274, 62 N. E. 397, 62 L. R. A. 144; Rogers v. In Sears' City of St. Paul, 22 Minn. 498. Case, supra, the court said: "The fact that the improvement is for a public purpose is no Harvard College v. objection to the tax. Aldermen of Boston, 104 Mass. 470, 486; Lincoln v. Street Commissioners, 176 Mass. 210, 213, 214, 57 N. E. 356. To invalidate the betterment assessment the general public benefit must be the only result of the improvement. Such a change (in the streets) may have a double aspect of general public benefit, and also of peculiar local advantage. Gleason v. Waukesha County, 103 Wis. 225, 237, 79 N. W. 249. It is suggested, to be sure, that the special benefit cannot be made the basis of a tax when they are only incidental and not the object to which the improvement was directed. But we see nothing in the Constitution to prevent it, or to make the power of the Legislature depend upon which of two resultant advantages is especially before its mind when it makes a change in the streets. In this case, plainly it contemplates the improving of the petitioners' land as it provided for making them pay their share of the cost of the improvement." The facts of the cases of Mayor v. Moore, 6 Har. & G. 375; Burns v. Mayor, etc., 48 Md. 198; Mayor v. Hanson, 61 Md. 462, upon which the appellees mainly rely to sustain the order of the lower court, are wholly dissimilar to the facts in this case. No question of the constitutionality of an act of assembly was presented in either of those cases. The questions before the court in all of those cases related to the validity of certain ordinances of the mayor and city council of Baltimore authorizing the paving of streets.

The conclusion we have reached is in entire accord with the principles announced in those cases. We, accordingly, decide that section 22, c. 113, of the Acts of 1906, under which the improvement in question was made, is valid, and that the rule of apportionment of the cost of the improvement adopted by the appellants was fair, just, and equitable. It follows that the order appealed against must be reversed, and the bill dismissed.

Order reversed, and bill dismissed, with costs.

(105 Md. 164

TIME.

The cashier of a bank has no implied power by virtue of his office to extend the time of payment of a note, without the knowledge or consent of a party primarily liable thereon.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 6, Banks and Banking, §§ 257-260, 539546.]

4. ALTERATION

ACT OF

OF INSTRUMENTS AGENT-AUTHORITY-EVIDENCE. Where in an action on a note it was claimed that one of the co-makers signed as surety only, and that the note had been altered by the cashier of the bank to which it was payable, in that a notation thereon of the due date had been so changed as to extend the time of payment without the surety's consent, evidence of such fact was inadmissible as against the bank, in the absence of proof that the alteration was within the scope of the cashier's authority.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Alteration of Instruments, §§ 66, 251.]

Appeal from Circuit Court, Frederick County; James McSherry and John C. Motter, Judges.

Action by the Farmers' & Mechanics' National Bank of Westminster against Florence Leigh Vanderford, as executrix of William H. Vanderford, deceased. From a judgment for plaintiff, defendant appeals. firmed.

Af

Argued before BRISCOE, BOYD, BURKE, PEARCE, SCHMUCKER, and ROGERS, JJ. Charles E. Fink, for appellant. F. Neal Parke and Jas. A. C. Bond, for appellee.

BURKE, J. The Farmers' & Mechanics' National Bank of Westminster sued Garnett Savage, Edwin J. Lawyer, and William H. Vanderford upon a promissory note dated August 4, 1902, for $300, and payable to the order of the plaintiff in two months from its date. The note is in the following words:

"Two months after date we jointly and severally promise to pay to the order of the Farmers' & Mechanics' National Bank of Westminster, Md., three hundred dollars, payable at the banking house of the said Farmers' & Mechanics' National Bank of Westminster, for value received, hereby waiving the right of all homestead, stay, and exemption laws. "$300.

Garnett Savage. "Edwin J. Lawyer. "Wm. H. Vanderford."

The declaration contains the six common counts, and a special count setting out the note. Vanderford pleaded the general issue pleas, and four special pleas, two of which