text:
    Smith’s Executors versus Wagenseller and Others.
    1. Though it would be a good cause for challenge that a person called as a juror had acted as such in another cause between the same parties, involving the same questions and determined on the same evidence; yet where the second case is to be submitted upon different grounds he is competent.
    2. In a feigned issue between creditors to determine whether or not a judgment had been paid, a written agreement between the parties to a judgment in controversy, showing that the judgment was designed as a collateral -security, was admissible in evidence, on part of those opposing the judgment, •in connection with proof that the endorsements, designed to be secured by it and other judgments between the.same parties, had been paid.
    " 3. In such an issue between creditors, the debtor or defendant in the judgment, not a party to the issue, is a competent witness in the case to prove that the judgment in question was satisfied.
    Error to the Common Pleas of Union county.

    This was a feigned issue directed between William F. Wagenseller, Henry ILuester, and Gfeorge Hartman, as plaintiffs, and Mary Smith and' Charles S. Davis, executors of the will of Jacob W. Smith, deceased, defendants. It was directed to try whether a judgment in favor of J. W,. Smith v. John Hartman, junior, to September Term, 1851, No. 91, for $1779.03, was payable or not out of the proceeds of sheriff’s sale of real estate of said John Hartman.
    On 15th November, 1851, several judgments were entered to September Term, 1851, on warrants of attorney, in favor of-said Smith v. John Hartman, viz.: one, No. 91, for $1779.03 (the one in question), on single bill, dated 1st October, 1850, payable in one year from its date.
    One, No. 92, for $6000, on single bill, dated 3d September, 1851, payable sixty days after date. One to same term, No. 94, for $3000, on single bill, dated 4th January, 1850, payable sixty days after date.
    On the same day, judgments were entered against the said John Hartman in favor of other persons. And subsequently, in the same month, other judgments were entered against the said John Hartman, one of them being in favor of Henry Iiuester, and another in favor of George Hartman, who were also plaintiffs in the feigned issue.
    On the part of the plaintiffs, after their judgments had been given in evidence, was offered the agreement of 15th November, 1851, between John Hartman and J. W. Smith, by which Smith transferred his store, two canal-boats, mules, &c.; also book accounts connected with the store. In consideration of which Smith agreed to .pay $7000, in payments; which payments were to be applied by Smith in payment of certain notes specified, on some of which Smith was endorser. It was stated that the agreement was offered “ in connection with the proof that all the endorsements by Smith for Hartman, had been paid and satisfied, and that the judgment for $1779.03 was given as collateral security to secure said endorsements.” It was objected to, but was admitted.
    The real estate of John Hartman was sold at sheriff’s sale in July, 1852. ■
    In pursuance of the same petition an issue was also directed with respect to the $3000 judgment in favor of Smith, which issue had been tried before the issue involved in this proceeding was tried. On the trial of this issue four persons were called as jurors, who had been jurors in the trial of the issue as to the $3000 judgment, in which issue a verdict had been rendered for the plaintiffs.

    These persons were objected to, on the part of the defendants in the issue, on the ground that the same questions arose as to the judgment attacked in this issue, which were passed on in the issue which had been tried.

      The challenge for cause was objected to on part of the plaintiffs on the allegation that it was a different judgment which was involved in this issue, and unconnected with the other; and that it would be assailed on different evidence.
    The challenge for cause was not allowed, and exception was taken on part of the defendants.
    • On the trial, John Hartman, the debtor and defendant in the judgments, was offered as a witness on the part of the plaintiffs, to prove that the judgment in controversy was given by him to Smith as collateral security for endorsements made and to be made, and that all the liabilities of Smith for Hartman had been paid and satisfied by Hartman. He was objected to as incompetent on the ground of interest; as being incompetent to prove that the judgment in controversy was paid; and because “ his testimony, according to the offer, would tend to discharge a part of his liabilities.” He was admitted.
    December 18, 1852, verdict for plaintiffs.
    Error was assigned, 1. To the overruling of the challenge to the four jurors; 2. To the admission of the written agreement; 3. To the admission of John Hartman as a witness.

      Slenher and Miller, for plaintiffs in error.
    — It was, inter alia, alleged that though the testimony as to the judgment for $3000, and that relative to the judgment for $1779.03, was in some respects different, yet the witnesses examined in the first case were nearly all the same who were examined -in this case, and that the testimony in the two cases was of a similar character. That under these circumstances the jurors might confound the testimony in the two cases.
    As to the competency of Hartman, the debtor, reference was made to 3 W. & Ser. 557, Davenport v. Freeman; 1 Barr 435, Wolf v. Fink; 4 Harris 170, Summer’s Appeal.

      Woods and Qasey, contrá.
    — The judgment in this case was obtained under an instrument given at a different time from that under which the judgment for $3000 was entered, and, it was alleged, under different circumstances. It was stated, that though some of the witnesses, who testified in the issue directed as to the $3000 judgment, were called on the trial of this issue, their testimony was different. That several who were called in the other issue were not called in this case, and others were called in this case who did not testify on the trial of the other. That the cause of challenge was insufficient, was cited 11 Ser. R. 280, Harper v. Kean; 13 Id. 110, Grratz v. Benner.

      As to the 3d assignment: That Hartman, the debtor, was competent, reference was made to Talmage v. Burlingame, 9 Barr 21; 1 Watts 303; Id. 135; 1 Harris 112, Search’s Appeal; 5 Johns. Rep. 144, Van Dusen v. Same; 5 Pick. 144. As to the case of Davenport v. Freeman, cited, it was observed that the rule in Walton v. Shelly was confined to negotiable instruments actually negotiated; and in the case of Wolf v. Fink, the person offered was a party to the record.
    September 7,
   The opinion of the Court was delivered, by

Knox, J.

— It is essential to the due administration of justice, that the minds of jurors should be free from prejudice or bias, and it certainly would be a good cause of challenge, if one had already acted as a juror in a cause between the same parties, and involving the same questions to be determined .by the same evidence as the issue upon which he is the second time called upon to decide.

We have not been furnished with the evidence which was given in this case, and in its absence we must take for truth the allegation of the defendant in error, that this judgment was attacked and defended, upon different grounds than the one which had already been decided between the parties. It cannot therefore be said that the jurors who were attempted to be challenged for cause, were not competent to hear and determine this suit. It is not to be presumed that any intelligent juror would be affected by evidence given in a former cause, but not offered in the one trying.

The second error assigned is not sustained. The evidence offered was clearly pertinent to the issue, as its tendency was to prove payment to Smith of the endorsements made by him for. Hartman, and to secure which it was alleged the judgment in controversy was given.

The admission of Hartman as a witness for the plaintiffs, forms the third, and only remaining alleged error.

I cannot conceive upon what ground his competency can be successfully attacked. The issue was between creditors to determine whether or not the judgment had been paid. He was not a party to it, and therefore could not be affected by it. An affirma-. tive finding would not relieve him from the judgment, nor would the contrary prevent him from asserting in some future proceeding that it had been satisfied. Hot being a party to the record, the result could neither benefit or injure him. Being interested in the question, but not in the case, his credibility but not his competency was liable to be questioned.

It is scarcely necessary to say that the rule which precludes parties to negotiable instruments actually negotiated, from impugning their validity, or that which declares that an assignee of a chose in action shall not make merchandise of his oath as well as his claim, has .no application here.

I am not disposed to extend the rules which prevent persons, ' the most likely of all to know the truth, from telling it.

Judgment affirmed.


source: Caselaw Access Project

author: Black, C. J.

license: Public Domain

text:
    Covanhovan versus Hart.
    1. A conveyance of land hy a debtor in failing circumstances to a creditor, to pay an existing debt, is not fraudulent although the parties contemplate that thereby the claims of other creditors will be defeated. See the opinion in this case in reference to the case of Ashmead v. Hean, 1 Harris.

    2. In the case of an alleged fraudulent conveyance of land, the declarations and conduct of the grantor, about the same time, in relation to other of his property also claimed by the grantee, though made in the absence of the defendant, the grantee, may be given in evidence to establish the fraud.
    3. Also his declarations, made before his alleged indebtedness to the grantee, that the latter was in debt to him, were also admissible in evidence.
    4. The admission of the former evidence of an absent witness will not be ground of reversal, unless the proof is palpably insufficient to excuse his non-production.-
    5. A witness having been examined to prove acts of ownership, after sale, exercised hy the grantor of the land alleged to have been fraudulently conveyed, it was competent, upon cross-examination, to inquire as to the acts of ownership by the vendee over the same land.
    6. The decision of the Court in allowing or refusing a witness to he recalled and cross-examined, is not, generally, the subject of exception. But when the object of recalling the witness is to lay the foundation for proving his declarations out of Court, it must be allowed; if refused, and if proof of the witness’s declarations be rejected because he had no previous opportunity for explanation, it is error.
    7. Where a rule of the Common Pleas requires that before the deposition of a witness resident within forty miles can be read, he shall have been duly subpoenaed, the deposition may nevertheless be read without subpoenaing the witness in case he is paralytic and entirely unable to attend. The law does not require vain or impossible things.
    8. The pecuniary condition of the parties to an alleged fraudulent transfer of property, at or about the time of the transactions in question, is generally competent and important proof. And where the consideration for a conveyance of land was alleged to be a prior indebtedness of vendor to vendee for loaned money, it was Held that it was competent to prove, in support of the allegation of such loans, that the vendor, who had set up a store about the time they were made, was possessed of no considerable means or .property.
    Error to Common Pleas of Sullivan county.

    This was an issue in ejectment, directed by the Court below, in the names of James H. Hart and William B. Hart, plaintiffs, v. John Covanhovan, defendant, for 144 acres of land, upon a return of proceedings before a sheriff’s inquest to obtain possession under a sheriff’s sale of the lands to plaintiffs, as the property of William M. Covanhovan.

      September 21st, 1848, James H. and William B. Hart obtained judgment upon an award of arbitrators, in the Court of Common Pleas of Sullivan county, against William M. Covanhovan, for $736.45. Nov. 1st, 1848, a fi. fa., issued upon this judgment, levied Nov. 3d upon personal property, afterwards sold for $589.56. Near two years subsequently the Harts proceeded against the tract of land in controversy, as the property of Wm. M. Covanhovan; the same was sold to them by the sheriff Dec. 17, 1850, for $145.50, and they received the sheriff’s deed therefor. The plaintiffs having shown these facts, rested.
    The defendant, John Covanhovan, then gave in evidence a deed from William M. Covanhovan and wife to himself for the land, dated and acknowledged 19th September, 1848 (viz. two days before the entry of the award above referred to), and recorded next day; consideration stated $2850. He also proved notice of his title at the sheriff’s sale.
    The plaintiffs, in reply, alleged that this conveyance of 19th September, 1848, was in fraud of creditors, under the statute 13 Eliz., c. 5, and that was the leading inquiry at the trial. They proved that William M. Covanhovan was indebted about $4000 in Sept. 1848 — resided and had a store upon the premises in Cherry, Sullivan county, and had just erected a grist-mill thereon. That he had refused to give plaintiffs a judgment upon his indebtedness to them, and after their bringing suit executed the deed of 19th September, 1848. John, the brother, to whom the deed was made, resided in Columbia county, about forty miles distant, but came to Sullivan a day or two before the deed was executed, and upon obtaining it had it recorded. John was at the arbitration of plaintiff’s suit against William, and acted for him, objecting to an item of $25, which William alleged was wrong. William, after the sale to John, continued to keep his store upon the premises until November, when it was levied upon and sold by the sheriff, along with some other personal property. The plaintiffs proved (under exception by defendant), that when the store was levied upon, William said the goods belonged to his brother John, and that when the sale took place John sent $125 to bid off such articles as William would most need, which was done. The admission of this evidence constituted the first assignment of error.
    There was contradictory evidence as to the manner in which William remained upon the property after September, 1848. He removed therefrom in 1850, before the sheriff’s sale of the land to plaintiffs.
    The plaintiffs offered to read the notes of the testimony, given before arbitrators in the case, by Richard A. Biddle, one of their witnesses, and, to lay grounds for the introduction of the evidence, proved that frequent inquiries had been made for Mr. Biddle; that he went west in the fall, and had not returned; had no family; about twenty-two years of age. Some of his neighbors said they thought he would return by next spring. Did not know whether he has relations.
    The Court permitted the testimony to be read, against objection by defendant; and this constituted the second assignment of error.
    The plaintiffs called a witness, who testified as follows : “I had the store-room on this property rented. I took possession in May, 1849, and had it about a year. I paid the rent to William M. Covanhovan. While William resided at Dushore he gave some orders on the mill for grain, but whether in his own name or that of his brother I do not know. Slater rented the store before I went in, and I took his lease.” The defendant, upon cross-examination, proposed to ask the witness this question: “ Did you hear John Covanhovan direct William to get certain work done— repairs to the mill — while you were there in the store, as you have stated?”
    Upon objection by the plaintiffs’ counsel, the Court refused to permit the question to be put, which refusal constituted the third assignment of error by defendant. The plaintiffs gave some other evidence, and rested.
    The defendant, in explanation of the transaction of purchase thus assailed, proceeded to prove, that his brother William resided in Orangeville, Columbia county, where he commenced storekeeping in 1843; that he continued there until the spring of 1846, when he moved his store to Cambra, Luzerne county,whence he removed to Sullivan, in the fall of 1847. William, upon his examination, testified that his brother John loaned him, at several times from 1843 to 1845, sums of money, for which notes were given, and that this indebtedness constituted the consideration of the deed of 19th September, 1848. He further testified, that the sums so borrowed had been invested by him in the mercantile business, and remained due to his brother in 1848. The notes were also produced and put in evidence. The defendant proved by several witnesses, that they were present at different times when loans were made, and also proved contemporaneous declarations made by him in the presence of William, that he was loaning him money, and assisting him; and acknowledgments of William at other times of the same fact.
    Defendant then proposed to ask a witness “whether, when William came to Orangeville, or before he began to keep store, he was possessed of any considerable means or property, so far as the witness had knowledge.” Plaintiffs objected to the question. The Court sustained the objection, and rejected the evidence; which rejection constituted the fourth assignment of error.
    The defendant submitted other evidence, and rested.

      The plaintiffs then, having re-opened their case, proposed to recall William M. Covanhovan, defendant’s witness, and ask him,- on further cross-examination, whether he had not stated to certain persons, between 1838 and 1843, that his brother John owed him a large sum of money. Defendant objected to the proposed inquiry, and extending it back to a period as early as 1838 or 1840, on the ground that it is irrelevant, and not properly a cross-examination.! The Court however allowed the inquiry as proposed; which decision was thejfifth error assigned by defendant. •
    William M. Covanhovan having been re-cross-examined by plaintiffs as to his declarations between 1838 and 1843, plaintiffs proposed to contradict him by testimony of Andrew Crouse and others, that he had declared that his brother owed him money. The Court admitted the evidence against the objection of defendant, which admission was the sixth error assigned.
    Plaintiffs further offered, inter alia, deposition of Clement Gr. Rickets, a witness resident within forty miles, and submitted the evidence of his being paralytic at the time. Defendant’s counsel, under the forty-first rule of Court, requiring that the witness should have been subpoenaed, objected to the reading the deposition. The Court overruled the objection, and admitted the evidence, which was assigned as the seventh error.
    After the plaintiffs had concluded their evidence, the defendant called A. B. Stewart, and offered to prove by him, “ that he kept a considerable part of the accounts between William and John Covanhovan from 1838 to the spring of 1842, and knew the state of the demands between them; that in 1841, and afterwards, William was indebted to John upon their dealings, upwards of $ 100; and that William was also indebted to the partnership of witness and John Covanhovan about the time he began store-keeping, in 1843. Eurther, that in a settlement made by witness for defendant with William, about 1839, including all dealings and demands, there was then due William about $5150.” This offer was made for the purpose of explaining and rebutting the evidence given by plaintiffs. Upon objection by plaintiffs, the Court rejected the evidence, and thereon the defendant made his eighth assignment of error.
    The case wa? tried before Wilmot, President J.
    He referred to the jury to determine whether the deed from William to John Covanhovan was made with intent, on the part of William, to hinder, delay, or defraud his creditors, and if so, whether John participated in such fraudulent intent; or whether the conveyance was bond fide and for the purpose of paying to John a debt fairly due to him. That it was not sufficient to avoid the deed that William, the grantor, was influenced by a fraudulent intent; that to produce that result it must be found that John, the grantee, participated in it, and that he “ in some degree at least, was influenced in the purchase by an intent to hinder, delay, or defraud the creditors of William in the collection of their debts.”
    Verdict was rendered for the plaintiffs.
    In addition to the assignments before referred to, a number of errors were assigned to the charge of the Court, and answers to points submitted by the parties. Por the material ones, see the opinion in this case.
    Buehalew, with whom was Blwell and Metcalf, for plaintiff in error.
    — It was, inter alia,. contended that the defendant below, proved himself to be a creditor (and a meritorious one) of the vendor: That the conveyance was in consideration of the indebtedness to him — that the price was about the fair value of the pro-property — that he had paid the balance over his claim — that his deed was immediately left for record — that the vendor’s retention of possession was under a lease, and that the purchase was made some time before the conveyance. That if this evidence was believed, the defendant had performed all that the law required, and that his claim was not subject to conjectures by the jury of a secret speculative intention to delay or injure other creditors. That fraud, in such a case, must be distinctly proved, not inferred from circumstances.
    It was further said that there was a distinction between a purchase by a volunteer, and one by a creditor. That in the latter case the jury should not be permitted to search after an intent to defraud, in order to avoid the purchase. Either the intent, in such a case, is immaterial, or it is concluded and negatived by the nature of the transaction. It cannot be a fraud upon other creditors that the purchaser creditor receives the payment of his claim. His rights are not to be measured by the intention of his debtor, nor will his own knowledge of it create an equity in favor of others not more meritorious than himself. A conveyance to a creditor cannot be said to be in fraud of creditors unless accompanied with some qualification or alien contrivance which imposes upon it that character. A naked intention of either party or of both, that the creditor shall be preferred and other creditors hindered, will not of itself avoid a conveyance: Wood v. Dixie, 7 Q. B. 892; 1 Smith’s Leading Cases 12, and cases there cited: 13 Ohio 20; 7 Barr 263; 6 W. & Ser. 72; 3 Pa. Rep. 374; 5 Term Rep. 235; 3 M. & S. 371; 1 Gallison 419; 4 Wheaton 503; 11 Id. 78; 8 Id. 268; 16 Peters 106; 4 Watts 359; Lloyd v. Williams, (antea 327). In Ashmead v. Hean, 1 Harris 584, the conveyance was to one not a creditor. That the same may be said of the case of Dean v. Connelly, 6 Barr 239; cases cited by Lord Mansfield in the case of Cadogan v. Kennet, Cowper 432; and the case of Zerbe v. Miller, 4 Harris 488.

      Watson, with whom were Morning, Maynard, and Beitriclc, for defendants in error.
    — It was, inter alia, contended that the intent to defraud other creditors will invalidate the conveyance: Ashmead v. Hean, 1 Harris 587; Cowper 434, Cadogan v. Kennet; 1 Burrows 474; 4 Harris 497, Zerbe v. Miller.
    September 8, 1853,
   The opinion of the Court was delivered, by

Black, C. J.

— This was ejectment. The plaintiffs below claimed the land in dispute under a deed from the sheriff, who sold it as the property of William M. Covanhovan. John Covanhovan, the defendant below, who is a brother of William, relies upon a deed made to him by his brother before the plaintiffs obtained their judgment. The consideration of the deed was alleged to be a debt equal to the value of the property, and due from William to John. The Court charged that, though the debt was believed by the jury to be. honestly due, and a fair price for the land, yet the defendant’s deed was void if he was not moved to the purchase by honest and upright motives — that if John knew of William’s indebtedness to other persons, and took the property to place it beyond their reach, to hinder, delay, and defraud them, it would taint the purchase with fraud; and this whether the claim for which he took it was true or false.

If a debtor, with the purpose to cheat his creditors, converts his land into money because money is more easily shuffled out of sight than land, he of course commits a gross fraud. If his object in making the sale is known to the purchaser, and he, nevertheless, aids and assists in executing it, his title is worthless, as against creditors, though he may have paid a full price. But the rule is different when property is taken for a debt. One creditor of a failing debtor is not bound to take care of another. It cannot be said that one is defrauded by the payment of another. In such, cases if the assets are not large enough to pay all, somebody must suffer. It is a race in which it is impossible for every one to be foremost. He who has the -advantage, whether he gets it by the preference of the debtor or by his own superior vigilance, or by both causes combined, is entitled to what he wins, provided he takes no more than his honest due. To pay a creditor his just debt in land, at a fair valuation, is no more a fraud upon other creditors than to pay him in bank notes or silver dollars. Neither is it any worse or more fraudulent for a creditor to secure himself by taking a conveyance, than it would be to enter up a judgment. He gets no greater advantage by the former means than by the latter. The notion of the defendants in error seems to be that the creditor of an insolvent man cannot avoid the imputation of fraud in any way except by cheating himself. But they themselves did not act upon that principle. They struggled to get a lien upon the very property in dispute; and if they had succeeded, would have done to the plaintiff the same injury (if it be an injury), which he did to them by taking the conveyance.

The judge said in his charge that little room is left to attribute fraudulent motives, when a debt is actually due from the vendor nearly equal to the value of the property. He should have said there is no room at all. A human tribunal can take no cognisance of feelings and intentions which are not manifested by external conduct. We are not permitted to assign a bad motive to an act which is not wrong either in itself or in its necessary consequences. A creditor is not acting wrongly when he receives payment or takes security for his debt, though he knows that other persons, who have the same rights with himself, may be less vigilant or less fortunate. The act being right, no secret feeling can change its character. Indeed it may be said that the motive which results in proper action cannot be a bad one.

It cannot be denied that there is authority in our books for the decision of the Court below. The unfortunate case of Summer’s Appeal, Ashmead v. Hean (1 Harris 587), and some others, decided about the same time, would sustain it if they could be themselves sustained. But reason and justice have vindicated their supremacy against these judicial invasions of it. The legislature did what it could to restore the law, and this Court has been compelled, by considerations heretofore fully stated, to abandon the error. A rule which requires a man to take care of his neighbor’s interests at the expense of his own, is utterly impracticable in the present state of human society. It runs against the bent of a natural feeling which will not be crushed or extinguished. Naturam expelías furca ; tamen usque reeurret. The attempt to enforce it had no result but intolerable mischief.

This was a question of actual, and not of legal or constructive fraud. If the debt was not real and honest, but merely pretended, or if it did not amount to a fair price for the land, the conveyance was fraudulent and void. But if that was established to the satisfaction of the jury, and if the land was given in good faith to satisfy the debt, the knowledge of the vendee that there were other creditors who would take the property if he did not, or the fact that he took the conveyance to prevent them from securing their .claims by the loss of his, is not enough to make the transaction illegal.

These general remarks on the charge make it unnecessary to advert more particularly to the several specifications of error, which the defendant has put on the record.

There are eight exceptions to the admission and rejection of evidence, which it is proper we should notice, and we will do so briefly:

1. The facts contained in the first hill were within the wide range which the rules of evidence allow such investigations to take.

2. If the Court below was satisfied with the proof of Biddle’s absence, we ought not to reverse, and the rule is that we never do, unless the facts proved are palpably insufficient to excuse the non-production of the witness. Here the proof was ample and clear.

3. If the plaintiffs below produced any evidence whatever tending to show that the sale to the defendant was not made in good faith, and if the continued possession of the premises by the vendor was one of the circumstances relied on for that purpose, it was proper to let in proof that the vendee had also exercised acts of ownership upon the land. We think, therefore, that the evidence contained in the third bill was erroneously rejected.

4. The pecuniary condition of the parties to an alleged fraudulent transfer, at, and about the' time of the transactions under investigation, is generally competent and important proof, for it helps the jury to judge of the reasonableness of their conduct. We think it was competent for the defendant to show that when his brother began to keep store, he was not possessed of any considerable means or property.

5. A witness who has been examined and dismissed, may be recalled and cross-examined by permission of the Court, and the decision of the Court allowing or refusing it is not generally the subject of exception. When the object of recalling the witness is to lay the foundation for proving his declarations out of Court, it must always be allowed. If it be refused, and if proof of the witness’s declarations be rejected because he had no previous opportunity of explanation, it is error.

6. William’s declarations that John was indebted to him, though made before the date of the obligation which he incurred to John, do not relate to a collateral matter. If the fact was so, it had an important bearing on the main question in dispute. The declarations were very properly admitted.

7. A rule of the Common Pleas requires that a witness whose deposition has been taken, shall be subpoenaed if he be a resident of the state and within forty miles of the court-house; otherwise the deposition shall not be read. A witness in this ease was paralytic, and absolutely unable to attend the trial, or even to rise from his bed. An officer in whose hands the subpoena had been placed, went to the house, but knowing his condition did not intrude into the sick room to make a service. The rule must have a reasonable construction. What good would a service have done ? or what injury did the defendant suffer from the omission ? Lex neminem eogib ad vana seu impossibilia. Things which are merely vain are placed by this maxim in the same category with impossibilities. Suppose the witness to be so sick that. the service could not be made without doing him injury; or insane, so that he could not be approached with safety to the officer ? Is the rule so inflexible that it would not yield to the justice of such a case ? And if it bends at all, why should it not bend as far as reason requires ?

8. The evidence offered and set forth in the eighth bill of exceptions, ought to have been received. The inquiry into the business of the two brothers and their pecuniary relations with one another, had been carried back by the plaintiffs as far as 1838. Circumstances somewhat remote, and loose declarations of the parties had been relied on to establish .John’s indebtedness to William. Here was an offer to prove the contrary by a witness who knew the state of their accounts during the same period of time. We think it was a fair answer. If it had been offered out of time, and the Court had rejected it for that reason, there would have been no error that we could correct. But it was tendered as soon as the defendant could get it in, after the Court had heard that to which it was a reply.

Judgment reversed and ven. de novo awarded.


author: Woodward, J.

text:
    Kase versus Getchell.
    1. The giving notice to endorsers is the official duty of a notary; and when duly certified and not contradicted or questioned the presumption is that it was given according to law.
    2. In the case of a negotiable note payable at the Lebanon Bank in this state, the notary certified that he exhibited at said bank the original note, &c., and “ demanding payment, received for answer that no provision was made there for the payment thereof, of which I gave notice in writing to the endorsers of said note.-” 'In the absence of other evidence as to the character of the notice, it was Held, that the certificate was prmá facie evidence ih&i personal notice was given, though in fact the endorser sued lived in Danville, Montour county, in this state.
    Error to the Common Pleas of Montour county.

    This was an action of assumpsit by H. M. Getchell, as endorsee, v. Simon P. Kase, as endorser of a promissory note, as follows:—
    $200. Lebanon, August 9, 1848.
    Six months after date, we promise to pay to Simon P. Kase, or order, at the Lebanon Bank two hundred dollars, without defalcation, for value received. E. G. Lantz.
    Endorsed: Simon Kase. ' Solomon Meter.
    The note was also endorsed — “Washington Heald,” “Pay to the order of G. Gleim, Cashier, J. W. Weir, Cash’r.” Under the endorsement of the defendant was written in lead pencil, “ Dan-ville, Columbia county, Pa.”
    The only evidence given on the part of the plaintiff, was the. note and protest. The admission of the protest in evidence was excepted to. No evidence was given on part of the defendant. The only point made by the defendant’s counsel in the Court below was, that the protest of the notary was insufficient in law to charge the defendant with notice of non-payment'of the note.
    The certificate of protest, dated at Lebanon, the 12th day of February, 1849, was by a notary at Lebanon, and it was stated therein that “on the day of the date hereof” (meaning the date of the protest), at the request of the cashier of the Lebanon Rank, at Lebanon, he exhibited, at said bank, the original note, &c., “ and demanding payment, received for answer, that no provision was made there for the payment thereof, of which I gave notice in writing to the endorsers of said note,” &e.
    The objection to the certificate of protest was, that it was no evidence of notice to the endorser because it did not set out when the notary gave the notice, or how the notice was given, whether personally or by letter through the post office; and if the latter, that it does not state to what office it was sent.
    The protest was admitted.
    In the Act of 2d January, 1815, it is enacted, “ That from and after the passing of this Act, the official acts, protests, and attestations of all notaries public (acting by the authority of this Commonwealth) certified according to law under their respective hands and seals of office, may be read and received in evidence of the facts therein certified, in all suits that now are or hereafter shall be depending; provided, that any party may be permitted to contradict by other evidence, any such certificate.”
    Cohyngham, Pres. Judge, after explaining the general principle regulating the liability of endorsers, charged the jury, that the protest admitted in evidence was primá facie sufficient to charge the endorsee with notice, so as to make him liable under his endorsement on the failure of the drawers to pay the note on demand at maturity. That no evidence to gainsay it, having been offered on the part of the defendant, and no other objection advanced against a recovery but the alleged want of proof of due notice, there was nothing in the objection to prevent a recovery by the plaintiff.
    February 2, 1853, verdict for plaintiff.
    It was assigned for error, that the Court erred in admitting the protest as evidence of notice of non-payment of the note; and secondly, to the charge, the substance of which is stated above.

      Baldy, for plaintiff in error.
    — It was stated that the protests of notaries are evidence of the facts therein certified. That the notary certified, that “he gave-notice in writing to the endorsers, but it was said that notice to affect an endorser was a mixed question of laio and fact.” That if the law did not recognise any other notice to an endorser than personal notice, the notice stated in the protest would be considered to be personal notice. But that the law admitted of notice through the post office, in cases where the endorsers do not reside at the place of protest; and in this case it did not appear whether the notice meant by the notary was personal notice, or notice through the post office. That if the latter was meant, then the post office should have been designated in the protest, that it might appear whether it was the post office nearest to the residence or reputed residence of the endorser: 7 Barr 443, Schœneman v. Fegeley; 19 Wend. 383, 2 Supplement to U. S. Digest 456. It was contended that it appeared from the protest itself, that the notice meant by the notary was not personal notice to the endorsers, because the Harrisburg Bank, through its cashier, was one of the endorsers, and that notice to that bank must hav-e been through the post office. Also, that the memorandum in pencil mark under the name of the defendant on the note, showed that he resided at Danville, and that therefore the notary, residing in Lebanon, did not give him personal notice on the day of the protest. That this was prohibited by the distance. Thus the law recognises notice through the post office as well as personal notice, and the notary has not certified which he gave; secondly, the remote residence of the endorsers shows that personal notice was not given. A notary should state in the protest what he did. If he gave fersonal notice, it should be stated; and if he gave notice through the post office, he should so state and designate the post office. It was contended that if he does not do so, the protest was indefinite and was not competent proof of notice. That in this case it was attempted to establish by the certificate, hoih the law and the fact. That on the trial of the ease of Bennett v. Young, 6 Harris 261, the Court below expressed a doubt whether the certificate in that case was any evidence at all; and that this was held not to be error. That in the case of Bellemire v. Bank U. S., 4 Wharton 113, it was said, that “ the official character of the notary extends only to the protest, and not to the hunting up of the parties; that neither he nor the bank is bound to know any one in the transaction but the last endorser.” It was said, that in eases like the present, where one bank sends a note to another, the usage is for the notary employed by the collecting bank, to send all the notices to the first bank.

      Comly, for defendant.
    — A protest of the character of the one in this case has been held to be evidence of notice: 6 Ser. JR.
      484. In Stewart v. Allison, Id. 324, it was held that such certificate was evidence, though contradicted by the testimony of the notary. In 4 Wharton 486, the protest was held to be admissible however insufficiently or defectively the facts in relation to demand and notice may be stated in it. That the meaning of the protest is for the jury, as the testimony of the notary in person would be: 5 Watts 32. In the case of Jenks v. Doylestown Bank, 4 W. & Ser. 510, the certificate of the notary was that He had notified the endorser by mail, of the non-payment of the note; and whether this fact, thus proved primd fade, was refuted either by the testimony of the notary or of others, was for the jury. In the case of Bennett v. Young, cited contrá, the notary attempted to certify the quality of the search made by him; but as that depended on the acts done by him, the Court held that a notary was bound to certify the acts done by him, that the Court might judge whether the search was diligent or not.
    September 8, 1853,
   The opinion of the Court was delivered, by

Woodward, J.

— It has been long settled that under the Act of of Assembly of 2d January, 1815, -which makes the acts, protests, and attestations of notaries public primd fade evidence, the giving notice of protest to endorsers'is an official act of the notary, and his certificate is evidence of the notice. It was said by C. J. Tilghman, in Browne v. The Philadelphia Bank, 6 Ser. & R. 484, that such was the customary law before the Act of ’15 was passed. ISTor is there anything in Bennett v. Young, 6 Harris 261, that contravenes the rule. It was held there that it is no part of the official duty of the notary to look up the parties to make demand; and the necessary sequence was, that his certificate of diligent search, without describing the search, was not evidence. But notice to endorsers is part of the official duty of the notary, and when duly certified, and not contradicted or questioned, the presumptions that always arise in favor of official acts, require us to intend it was given according to law.

In the case before us the notary certifies that he presented the note at the Lebanon Bank and demanded payment, on the day which appears to Lave been the last day of grace, and received for answer that no provision was made for the payment of it, “ of which I gave notice in writing to the endorsers of said note.” The argument is that this was not even primd fade evidence of notice, because it appeared the endorser lived in Danville, and the protest being in Lebanon, the notice must have been sent by -post, and the notary should have stated to what post .office he directed it. But non constat that it was not served personally. The notary •“ gave the notice in writing.” The endorser may have been in Lebanon, or personal service may have been made in Danville. Had it been sent by mail tbe fact would doubtless have been stated, and then tbe certificate should have told where it was sent. As the case was presented to the Court, destitute of any evidence tending to rebut the presumption of personal service, the ruling was right and the judgment is affirmed.


text:
    Reaney versus Culbertson.
    1. By an agreement in writing the plaintiffs agreed to build a high-pressure engine of the first class, to be delivered at a time designated. The plaintiffs were to “ find one man to put up said engine and stay with it two weeks after-completion.” The defendants were “to furnish all such help as may be required by our man for the putting of said engine and boilers in operation.”
    It was Held, 1. That the construction of the contract was for the Court and not for the jury. 2. That it was not obligatory on the plaintiffs to direct the construction of the foundations of the mill or walls of the building for which the engine was intended.
    2. A principal is liable for the act of his agent only when the latter is acting within the scope of his authority; and if the agent of the plaintiffs for the special purpose of putting the engine in operation was consulted by the defendants as to the construction of the walls of the building, the plaintiffs are not answerable for his mistakes in respect to the latter.
    3. The defendants were entitled to a deduction from the price of the engine for loss sustained by stoppage of the mill pccasioned by defects in the construction of the engine — also for loss occasioned by their hands being unemployed from the same cause.
    Error to the Common Pleas of Union county.

    This was an action of assumpsit by Heaney, Neafie, and Levey, as partners, v. John Culbertson, Benjamin Griffey, and Charles Gudykunst, founded on two promissory notes, dated September 2, 1851; one for $637.50, at four months, on which was endorsed a credit of $500.00 on 28th January, 1852; and the other for $337.50, at six months. The plea was, payment with leave; and, subsequently, set-off.
    The plaintiffs were manufacturers of steam-engines, in PhiladeL phia. In February, 1851, two of the defendants applied to them for a steam-engine for a saw-mill, and a written agreement was entered into, which was as follows: “ Memorandum pf an agreement entered into this 22d day of February, A. D. 1851, by and between James .Culbertson and Benjamin Griffey, of the first part, and Reaney, Neafie & Co. of the second part, viz.: The parties of the second part agree and bind themselves to build or cause to be built, one horizontal high-pressure engine of the first class — cylinder 12|- inch bore, 36 inch stroke; with 3 cylinder boilers, 30 inch diameter, 30 feet long; fire front, grate bars, smoke stack, and cast-iron plate for pipe, and everything complete, of the best material and workmanship, delivered on board a boat at our wharf in six to seven weeks from date. The parties of the second part to find one man to put up said engine, and stay with it two weeks after completion. The parties of the first part to pay all expenses of getting said engine to its destination, and risk of same, and to furnish all such help as may be required by our man for the putting of said engine and boilers in operation, and to find the man with good and comfortable board and lodging at their expense. The parties of the first part agree and bind themselves that they will pay, or cause to be paid, $2550 in the following manner: One-fourth when said engine is shipped in Philadelphia; one-fourth when said engine is started; the balance in two negotiable notes, . one at four months, the other at six months, dated from last payment.”
    On-the part of the plaintiffs it was alleged that, in pursuance of the agreement, the plaintiffs had an engine constructed, which, it was said on their part, was finished a short time after the time fixed in the agreement; but that owing to a break in the canal, the engine did not reach its place of destination (which is near where Clinton county joins Union) for some weeks. That the plaintiffs sent a man (Mr. Kirk) to superintend the putting up of the engine. Before his arrival the masonry had been commenced. That Mr. Griffey, one of the defendants, was a millwright, and had a draft. The engine was put up, and the plaintiffs’ agent remained with it for two weeks. That the defendants were called on for the money and notes mentioned in the agreement, when they claimed a deduction on account of the engine not having arrived in time. To this Reaney, one of the plaintiffs, objected; but at length, for the purpose of having the matter settled, he consented to a deduction of $300, and executed a paper to that effect, in which it was stated, that if some small articles which defendants found fault with, proved defective, the plaintiffs would furnish others when notified. Some money was paid, and notes given for the balance. That the defendants paid $500 on one of the notes. It was after-wards alleged on the part of the defendants, that the engine was not made according to contract, and that the foundations were not properly constructed. Suit was brought on the notes.
    On the trial, on the part of the defendants it was offered to prove (inter alia) that the heater pipes bursted, in' consequence of which the mill was stopped some time; and it was also offered to prove the damage sustained in consequence of the saw-mill standing idle for some time; also to prove the expense of reconstructing the walls on which the machine had been placed. To this the plaintiffs’ counsel objected; but the Court overruled the objection and admitted the evidence.
    On part of the plaintiffs, points were submitted as follows:
    1. That under the agreement of 22d February, 1851, the plaintiffs were not bound to superintend the putting up of the foundation for the engine and boilers.
    2. The plaintiffs were not bound to direct the manner of constructing the foundation walls.
    3. That the defendants were not entitled to a deduction for loss sustained in consequence of the mill standing idle.
    4. That if any part of the machinery was defective, it was the duty of the defendants to give the plaintiffs notice of the defect in a reasonable 'time, and if they failed to do so, they cannot be relieved from payment.
    In answer to the first exception, Wilson, J., charged the jury, inter alia, that the agreement was that the plaintiffs shall find one man to put up the engine. It does not specify the work to be done or attended to by the man putting it up, and what would be required of the person superintending the putting of it up will depend on what you shall find was necessary under the agreement. If it was the mere setting up of the engine and boilers properly on the foundation, in order to put the machinery in operation, and not the superintending of the building of the foundation, for any defect or damage in consequence of mal-construction of the foundation, the plaintiffs would not be answerable; and under the evidence in this case we submit it to you whether the plaintiffs were or were not bound to superintend the putting up the foundation for the engine and boilers.
    In the answer to the second point he declined to say there was no evidence that the plaintiffs were not bound to direct the mode and manner of construction of the foundation walls, but that question was left to the jury to say under the evidence, whether it was provided for by the agreement of the parties ; and that this must depend not alone on the agreement itself, but what was the duty of the man sent by the makers to put the engine in operation, as to which a resort was had by the parties to oral testimony.
    To the third point he answered, that the question as to deduction depended on whether the jury find that the mill stood idle in consequence of the deficiency or construction of any part of the work that was to have been done by the plaintiffs. If so, the law would not be as here stated. But if otherwise, the plaintiffs would not be answerable.
    As to the fourth point, he charged that though the defendants did not give notice of defect in machinery, they would still be entitled to a deduction from the price for what would be reasonable for the deficiency of the machine and the construction of the work which the plaintiffs had undertaken.
    May 27, 1753, verdict was rendered for plaintiffs for $137.50.
    ■ On the trial, various bills of exception to the admission of evideuce were taken on part of the plaintiffs. The first bill related to an offer on part of the defendants to prove certain facts stated in the notice of special matter, which related to alleged defects in the machinery, and that it was put up by the plaintiffs imperfectly, and that in consequence expense was incurred by the defendants, and injury sustained from delay. The objection on part of plaintiffs was overruled.
    According to the 2d bill, the offer was to prove that one of the defendants objected to the plaintiffs’ agent locating the heater where it was located. The Court gave leave to prove the objection made, and the reply of the agent. 3d bill. That in consequence of the piston head having broken, and the heater pipes bursting, the defendants were compelled to stop the mill for about ten days. It was objected to as not set out in the notice of special matter, and as not admissible on the trial of the issue. It was admitted as growing out of the transaction.
    4th. The offer was to prove how many persons the defendants had in their employ when the mill was stopped, and whether they continued in their employ till the mill was put in operation.
    5th. The offer was to prove what would be the cost, and expense of taking down the engine and boiler and re-setting the same in a proper and workmanlike manner. This was offered to show the damage sustained by the defendants in consequence of the breach of contract by the plaintiffs, and to show that nothing is due by the defendants. Plaintiffs objected, 1. Plaintiffs had nothing to do with putting up the walls. 2. That the damage, if any, was sustained in consequence of the misconstruction of the walls, and cannot be sot off in this action. 3. Is irrelevant. Objection-overruled, and plaintiffs’ counsel excepted.
    The first five assignments of error related to the admission of the evidence referred to in the five bills of exceptions. The sixth was to the answer to the first point submitted, and the 7th, 8th, and 9th were to the answers to the other points in numerical order.

      Miller, for plaintiff in error.
    — As to the 1st, 3d, 4th, and 5th bills of exceptions, it was observed that the Court permitted the defendants to show that in consequence of part of the machinery breaking, the mill was idle for some time, and also the number of hands employed at the time, and the expense of resetting the engine and boiler; but it was said that the difficulty occurred from the foundation walls giving way, which caused the engine to get out of its proper place. It was said that the primary end of damages is compensation, but not for every injurious consequence that may have been suffered: 2 Harris 97. It was contended that the plaintiffs had nothing to do with the construction of the walls.

      As to the points, it was contended that there was no ambiguity in the agreement, and no parol evidence to vary or change it was given, and that the Court should have given it a legal construction : 3 Bin. 327; 7 Ser. & R. 372; 4 Id. 279; 8 Id. 381; 15 Id. 100; 3 Harris 74. It was error to submit to the jury to decide as to the construction of the foundation.

      Pollock, for defendants.
    — It was said that the delay in the delivery of the engine was not owing to a breach in the canal — that the engine was to have been ready for delivery in April, but was not ready till August, and that the failure caused inconvenience and loss to the defendants. But it was said that the dispute on that account was arranged.
    It was said that the engine was not as good as was contracted for, and required repairing. In this action the defendants seek some compensation by way of defence and set-off. The evidence referred to in the 1st, 3d, 4th, and 5th bills of exceptions related to the loss occasioned by the deficiency of the engine: the money expended in having it repaired, in re-setting it, and in paying hands during the time the mill was not in operation, viz. the natural consequences of the plaintiff’s failure to fulfil their contract. The profits which the defendants might have made if the mill had been in operation were not claimed. They were not bound to discharge their hands at the risk of losing them. The measure of damages is not always the difference between the value of the article in a sound, and in an unsound state. The rule is to give actual compensation by graduating the amount of the damage to the extent of the loss: 2 Harris 97, Forsyth v. Palmer. The defendants in this case did not claim for any injurious consequence as loss of property, inconvenience, trouble, &c., but for actual loss and injury. As to the question of damages was also cited 3 Harris 242-5; 2 Id. 294; 6 W. & Ser. 150.
    As to the answers to points: It was said that “ the plaintiffs were to find one man to put up said engine.” The' defendants were “ to furnish all such help as may be required by our man for the putting of said engine and boilers in operation.” What was necessary to be done, and what work and labor are involved in putting up an engine, are questions of fact; and it was contended that the Court was right in referring to the jury, under the evidence, to determine what the plaintiffs were to do in putting up the engine and boilers, and putting them in operation. The agreement requires that “a first class" engine be furnished, and it was submitted whether it was the province of the Court to give a legal construction to those words.
    It was said that the proper construction of the foundation for the engine, and the walls enclosing the boilers, was essential to the proper putting up of the engine and boilers; and it was contended that it was as much the duty of the plaintiff’s agent to have this rightly done, as it was to see that the pipes and joints of the engine were properly placed and fitted.
    As to the third point, it was observed that the proof of actual loss during the time the mill was idle, was proper to be considered by the jury: 2 Harris 294.
    As to the fourth point, it was observed that the question of notice did not arise, as the engine was retained by the defendants. The recission of the contract was not asked, but damages for loss occasioned by the failure of the plaintiffs to perform their agreement. ‘
    September 8,
   The opinion of the Court was delivered, by

Woodward, J.

— The fundamental error in this record consisted in referring to the jury the construction of the agreement of the 22d February, 1851. That led to the erroneous admission of the •evidence in the fifth bill of exceptions, and to the exceptionable instructions of the Court on the measure of damages.

The plaintiffs called on the Court to say that, under the agreement, they “ were not hound to superintend the putting up of the foundations for the engine and boilers.” This raised a question of construction, which according to all the authorities was for the Court and not for the jury. And, in our apprehension, there was no difficulty in the question. Reaney, FTeafie & Co. bound themselves to construct an engine of specified dimensions and character, and “ to find one man to put up said engine, and to stay with it two weeks after completion.” Culbertson, Griffey and Gudykunst, the parties of the first part, agreed, among other things, “ to furnish all such help as may be required by our man for the putting of said engine and boilers in operation." We suppose that these provisions interpret each other; that the putting up said engine, and putting said engine and boilers in operation, are equivalent expressions, and that neither of them include the construction of the foundations any more than the building which was to contain the engine. And that this was the understanding of the parties is shown by the draft which was furnished, and by the fact that the foundation of the boilers was commenced by the parties of the first part, before Mr. Kirk, the agent of the parties of the second part, had arrived.

Any man, with a draft of the engine and boilers before him, could lay out the foundations, and the building them was the work of a mason. Doubtless their permanence would affect the running of the engine; but if the defendants intended the plaintiffs should be responsible for the masonry, they should have put it into the agreement, and then left the plaintiffs to select their masons, and to determine the depth and size of the walls. Erom the tenor of the contract, and from the conduct of the parties, we entertain no doubt that the erection of the foundation and side walls — all that was properly masonry — belonged to the defendants to do, and if defectively done it was their misfortune, which, under the. agreement, they have no right to charge against the plaintiffs.

The Court ought so to have instructed the jury, and of course' to have excluded all consideration of damages resulting from defective masonry. After Kirk’s arrival, he advised about the walls; but, as the agent of the defendants, he could bind them only whilst acting within the sphere of his authority. If the plaintiffs sent him there to put the engine and boilers in operation, what he did in performance of that duty was their act. If, being there for that purpose, the defendants consulted him, or allowed him tp direct about the walls, the plaintiffs are no more responsible for his mistakes in this regard than they would be for the mistakes of the masons employed by the defendants.

We consider none of the exceptions or errors sustained, save those which relate to the foundation and side walls, and therefore dismiss them without special remark.

The judgment is reversed, and a venire de novo awarded.


author: Lewis, J.

text:
    Insurance Company versus Updegraff.
    1. A vendor of real estate, after articles of agreement and before conveyance, may, Hire any other trustee, insure to the full value of the buildings, if he thinks proper.
    2. If he intended to insure the whole interest, legal and equitable, he may, iu case of loss by fire; recover the whole extent of the insurance, under a trust, as to the surplus, to hold it for the vendee.
    3. Where the policy is in form an insurance upon the buildings, and not upon the debt due to the vendor, it is prima facie an insurance upon the whole legal and equitable estate, and not upon the balance of the purchase-money remaining unpaid; and the burden of showing that it was upon the latter alone rests upon the underwriters.
    4. The premium paid is generally decisive of the question; for if the insur anee was only upon the money due to the vendor, the premium would be quite insignificant on account of the value of the ground included in the sale, and the obligation of the vendee, both of which would stand as indemnities to the underwriters, who would be entitled to a cession of the vendor’s claims upon them.
    5. Where the insurance is only upon a certain proportion of the value of the buildings, the underwriters would only be entitled, in case of payment of the loss, to a cession of such proportion of the buildings as was covered by the policy.
    6. But where there is an actual total loss — where there is neither property nor spes recuperandi, the cession has nothing to operate upon, and would be an idle ceremony.

      7. "Where the insurance is upon the "building and not npon the purchase-money due, the underwriters have no claim to a cession of the vendor’s title to the lot, nor to his claim against the vendee.
    Euuoa to the Common Pleas of Lycoming county.

    This was an action of assumpsit to December Term, 1851, by Abraham Updegraff for the use of A. A. Winegardner n. The State Mutual Eire Insurance Company. The plea was' non assumpsit, and payment with leave, &c. •-
    The action was brought upon a policy of insurance No. 549, by which the said company, “ Eor and in consideration of the sum of ten dollars, and of the premium note of twenty dollars, by the said company received, do insure Abraham Updegraff of Williams-port, in the county of Lycoming, and state of Pennsylvania, against loss or damage by fire, to the amount of one thousand dollars, on the following property, as described in application and survey No. 549, viz.: on his wooden block $1000.”
    “ And the said company do hereby promise and agree, to and with the said insured, to make good unto him, his executors, administrators, and assigns, all such loss- or damage, not exceeding in amount the sum insured, as shall happen by fire to the property as above specified, during the term of two- years from the seventh day of August, one thousand eight hundred and fifty, at 12 o’clock at noon, unto the seventh day of August, one thousand eight hundred and fifty-two, at 12 o’clock at noon; the said loss or damage to be estimated according to the true and actual value of the said property, at the time the same shall happen, &c.”
    In the application by Updegraff, the plaintiff, which was given in evidence on the part of the plaintiff, on the trial, in answer to the questions: “ Is it (the property) encumbered ? If so, to what amount?” Updegraff answered, “Sold to Winegardner under contract to convey title when the purchase-money is paid, to be.paid in annual instalments of $500 — $500 paid on it.”
    The premium note, dated August 7, 1850, for $20, was given by Updegraff.
    Erom a copy of articles of agreement between Abraham Updegraff and Abraham A. Winegardner, dated 15th October, 1849, given in evidence, it appeared, that on that day Updegraff entered into an agreement with Winegardner for the sale of the property insured, for the sum of $2800; $500 to be paid on the 1st April, 1850, when possession is to be" given, and $500 on the 1st of each succeeding April, until $2500 are paid, and $800 on the next April, which will be the last payment.”
    By the same agreement, Winegardner agreed to rent a part of the premises to Updegraff, then occupied by said Updegraff as a store, for two years from the time he, Winegardner, got possession, for $100 per annum.

      The premises insured were entirely consumed by fire, on the 16th July, 1851. It was testified that the loss of the house was total.

      After the imuranee, and before the fire, as appeared by endorsements on the articles of agreement above mentioned, Updegraff had received from Winegardner, on the purchase-money, $1108, making the whole payment on account of it $1618.
    One of the conditions of the policy of insurance was in the following words: “ The interest of the insured in this policy is not assignable, unless the assignee, before any loss happens, shall give notice in writing of the assignment, in pursuance of the by-laws of this company, and have the same endorsed on, or annexed to this policy.”
    Article 19, of extracts from the by-laws annexed to and printed on the same sheet with the policy, is as follows:
    “Article 19. — In all cases when the policy is to be assigned, the assignee must sign the premium note — give a new note, or give security for the payment of the same. The assignment should be made out on the back of the policy, and sent;to the secretary, or a true copy, with fifty cents recording fees, to be approved by a director, and recorded on the policy assigned.”
    It did not appear from the evidence in the case, that the policy on which suit was brought, had ever been assigned by Updegraff to Winegardner.
    On the part of the defendant it was proposed to ask a witness whether he knew how Updegraff held the property, whether as owner or tenant ?
    The proposed evidence was overruled. First bill.
    Offer was also made to prove the value of the lot, after the building was burned. This was offered in order to show that Updegraff had not sustained any loss. Objected to because the lot was not insured, and as irrelevant. Objection sustained. Excepted to. 2d bill.
    On the part of the plaintiff, it was testified under exception, by O. Lloyd, that he acted as agent of the company in effecting the insurance. He further testified, “ I went to Updegraff, and told him I thought the application should be made in his name; that he was legal owner of the property. He said he had no objection to put his name to the note; I should do as I thought best. I told Updegraff I would send an application in his name, stating in the application precisely hoW the property was situated; if it was not right the company would return it to me for correction; if they approved of the application they would issue a policy, and it would be all right. I accordingly made out the application, which has been given in evidence here. I forwarded the application to the company ; the policy issued on it to Updegraff; can’t recollect if it was sent to me or Updegraff. Updegraff disclosed to me all the facts.”
    This was the 3d bill.
    The defendant’s counsel submitted points as follows:
    1. That if the jury believe the value of the lot, after the destruction of the buildings, was sufficient to pay and satisfy Updegraff the balance of the purchase-money due him at the time of the fire, then the said Updegraff had no insurable interest at the time of the fire, and sustained no loss, and cannot recover in this action.
    2. That to entitle the plaintiff to recover, he must satisfy the jury he had an interest at the time of the. insurance, and at the time the fire happened; and that, as the policy is strictly a contract of indemnity, he can only recover the value of his beneficial interest at the time of the fire, if any, in the property destroyed.
    3. That if the plaintiff, Updegraff, is entitled to recover the loss which he has sustained, if any, then the company have a right to be subrogated to all his securities as against his vendee, Winegardner.
    4. That Winegardner having paid to Updegraff, subsequent to the insurance, the sum of $1108, on the article of agreement for the sale of the premises, such payment reduces the liability of the company pro tanto.

      5. That under all the circumstances in this case the plaintiff is not entitled to recover.
    Jordan, J., answered the foregoing points in the negative, and instructed the jury that the plaintiff was entitled to recover.
    May 12, 1853, verdict for plaintiff, for $1089.50.
    Error was assigned to the action of the Court relative to the evidence offered, as stated in the three bills of exception; and to the answers to the points, and the charge.

      Scates, with whom was Pollock, for plaintiff in error.
    — As to the second assignment, relating to the rejection of evidence of the value of the lot, it was said that if Updegraff sustained no loss, neither he, nor Winegardner in his name, could recover. That Updegraff retained the legal title as security for the purchase-money. That that interest only was insured by him — after the insurance and before the fire, he received on account $1108, leaving a balance of about $1200. It was contended that if the value of the premises after the fire equalled or exceeded $1200, as it was said the defendants were prepared to prove, then Updegraff sustained no damage. That the contract of insurance is one .of indemnity, and the contract was with Updegraff. That the lot of ground being full security to Updegraff for the balance of the purchase-money, and he having received from Winegardner more than the full value of the builclings before and since the insurance (the appraised value of the building being stated to be $1500), he had at the time no insurable interest and consequently sustained no loss. That in this view the value of the lot was material, and evidence of it should have been received.
    It was said that in the present case Updegraff cannot recover, because he has sustained no loss; and Winegardner, his vendee, cannot recover, because he is not .a party to the contract; that ¡ there was no evidence that the insurance was made for him, by' his direction, with his knowledge or consent. The application was made, money paid, note given, and all other acts done by Updegraff, and his interest alone insured.
    As to the third bill of exceptions: It was said that the evidence offered ought not to have been received. The contract of insurance is to be construed by its own terms, expressed in the policy, and it cannot be varied by parol proof: New York Gas-Light Co. v. The Mechanics’ F. I. Co., 2 Hall 108; Thompson v. Ketchum, 8 Johnson R. 189.
    That conversations at the time of its execution are inadmissible: 13 Mass. 99; Id. 172; Ham. on Ins. 79.
    As to the second and third points, it was, inter alia, observed, that a policy against loss by fire is a personal contract, and a contract of indemnity to the assured only: Ham. on Ins. 7; 1 Hall 111-12.
    The party insured must have a property in the subject insured, or he can sustain no loss: 4 Bro. P. Ca. 431; 2 Atk. 554; Ham. on Ins. 18.
    If the insured parts with his interest before loss happens, so that he has no interest left, he cannot recover : 2 Pick. 249. It was said that if a recovery can be had in this case, it must be upon the ground that Updegraff has sustained a loss by the fire. It was said that he was not a trustee for Winegardner, and that the latter could not avail himself of the insurance, not being a party to it, and it not having been assigned to him, as prescribed in the policy, with the assent of the Company. That Winegardner was liable to Updegraff on the contract of sale. The case of Smith v. Ins. Co., 5 Harris 253—260, was cited.
    It was said that if Updegraff was entitled to recover, the company have the right of subrogation to all his securities, as against Winegardner, his vendee: 5 Harris, above cited; 6 Mass. 81.

      Maynard and Armstrong, for defendant in error.
    — The parties had valued the property at $2800. The house was said to be worth from $1500 to $1600. This latter sum deducted from $2800 will leave $1200 for the lot. There remained due to'Updegraff at the time of the fire $1419.60. This would leave to' Updegraff an interest in the building of $219.40. If he had an insurable interest he may recover damages done to the property not exceeding the sum insured: 9 Barr 199.
    But the plaintiffs considered the value of the lot, irrespective of the buildings insured, as irrelevant. Updegraff held the legal title. The executory contract was not to be completed till April, 1855, when the last payment became due. Updegraff’s interest pervaded the entire premises, and it did not attach specifically to the lot exclusive of the building. He had the legal title in both lot and building. It was a higher species of claim than a mere security. Some of the cases cited on part of the plaintiff in error, were cases where the legal title had been parted with, and security by mortgage or otherwise taken, and insurance on the security.
    The insurance in this ease was not on the lot, but upon the buildings; and the accidental increase or diminution of the value of the lot, on which the buildings were erected, could not affect the question as to recovery for the value of the buildings in case of their destruction. With as much propriety could it be alleged that in case the value of the real estate rise between the time the policy was effected and the time of the loss, to the value of the insurance, that no recovery could be had on the policy, in the case of injury to the building by fire.
    The plaintiff was the legal owner of the property, and he insured it. The fact that he had contracted to sell it was not material, as it respected the rights of either plaintiff or defendant. The suit is in the name of Updegraff, and as far as the right of the company is concerned, it is immaterial whether Updegraff receives the amount received, or whether Winegardner receives it.
    The evidence of the agent was not received to vary the terms of the contract, but for the purpose of showing that all the facts of the case were disclosed at the time of the application: 2 W. k Ser. 545.
    September 15,
   The opinion was delivered, by

Lewis, J.

— This was an action on a policy of insurance effected by the vendor after articles for the sale of the property and before conveyance. The sum due to the vendor, at the time of the insurance, was $2800, which was reduced by payments afterwards, so that the sum due to him at the time of-the loss was only $1192. The verdict was in his favor for the sum of $1080.50; a sum not sufficient to cover the whole extent of his interest. The house was destroyed by fire. The defence was that the lot is sufficient security for the unpaid purchase-money, and that the insured has no insurable interest beyond.

It is sometimos stated, in general terms, that by the contract of sale the purchaser of real estate becomes in equity the owner; but this rule applies only as between the parties to the contract, and cannot be extended so as to affect the interests of others. The purchaser, before the contract is carried into effect, cannot, against strangers to the contract, enforce equities attaching to the property: Darts. Vend. & Purch. 115; 3 Mylne & Craig, 70. A stranger cannot set up the equitable title of the vendee to defeat an ejectment brought by the vendor against the clear equitable title of the vendee. At law the vendor, before payment of the purchase-money and delivery of the conveyance, is, to all intents and purposes, the owner of the estate. It is true that he is a trustee for the vendee, who, as between the parties to the contract, is bound to take the estate subject to every loss which may happen to it without the fault of the vendor, and is consequently entitled to every benefit accruing to it after the agreement: Paine v. Meller, 6 Ves. Jun. 349; Sugden 199. The right to the benefits of the purchase fix him with the losses which may happen to it; but the latter branch of the proposition has not been established without reluctance, because there is a hardship in compelling payment after the consideration fails. The vendee’s liability to pay for a house which was burnt down after the contract, and before the time appointed for payment of the purchase-money, was at one time doubted; Stent v. Baily, 2 P. Wms. 220; at another time his liability was placed upon the special ground that he had been infeft before the burning:” Hunter v. Wilsons, and Atchison v. Dickson, Sugden on Vend. 200, n. 1. At another time it was held that, in the case of a sale before the master, he was not liable for a loss which happened-after the report had been confirmed nisi: 11 Ves. Jun. 559 ; and a lessee was relieved because the fire happened before the time appointed for the commencement of the term, although after the date of the contract: Wood v. Hubbel, 6 Month. Law Rep. 237. These eases show that, notwithstanding the rule, the hardship of the case secures for the vendee the favourable consideration of the Court, and that slight circumstances will be laid hold of for his relief. Following the spirit of these decisions, the Courts will make no presumptions, in the case of an insurance by the vendor, that it was his intention, in the event of a loss, that the vendee should bear not only the measure of it which fell upon hur; by the accident, but that he should also indemnify the insurance company. On the contrary, as the vendor is a trustee for the vendee, every act of his in relation to the estate will be presumed to be for the benefit of the vendee, subject of course to the prior claims of the vendor himself. This is reasonable, because,'as the vendee must suffer the losses which may happen to the property, it is just that he should have the advantage of any benefits which accrue to it; and, next to'the security of his own interest, a trustee will be presumed to have in view the interest of the cestui que trust. Although the vendor is not bound to insure, or even to continue an insurance already made, he may, like any other trustee having the legal title, insure if he thinks proper, to the full value of the property: 1 Arnould 259 ; 2 B. & P. N. R. 324. It is true that in the case of a mortgagee of a ship he can only recover to the extent of his mortgage debt, unless it appears that in effecting the insurance he intended to cover, not Ms own interest only, but that of the mortgagor also: 2 B. & Ad. 193; 1 Moody & Rob. 153. If he intended to cover the whole interest, both legal and equitable, he may recover the whole amount of the insurance, under a trust, as to the surplus, to hold it for the mortgagor: Carothers v. Shedden, 6 Taunt. 17; 1 Arnould, 252. The same rule applies to the case of an insurance by a vendor. There is this difference, however, that as the whole estate is at law in the vendor, and the vendee has only a title to go into equity, the insurance company cannot assert the rights of the latter, or go into equity in respect to them, except upon princijdes of equity and good conscience. An insurance upon a house, effected by the vendor, is primé facie an insurance -upon the whole legal and equitable estate, and not upon the balance of the purchase-money. Where the form of the policy shows it to be upon the house, and not upon the debt secured by it, the burthen of showing that the insurance was upon the latter and not upon the former, rests upon the underwriters. There is no hardship in this. The premium paid, as compared with that usually charged where the insurance is upon houses, and not upon debts secured by them, is generally decisive of the question, and the rates of insurance are peculiarly within the knowledge of the insurance company. If the insurance was upon the whole estate, the premium would be according to the usual rates for houses of that description and location; if it was only upon the debt due to the vendor, there would be a large reduction, on account of the responsibility of the vendee, and the value of the lot of ground included in the sale, because both of these would, in that case, stand as indemnities to the underwriters. They would be entitled to a ceésion of the vendor’s claims, from which an ample indemnity might be recovered. If the lot was worth the balance of the purchase-money, there would be no risk whatever, and the premium would be quite insignificant. If the intention was to insure only the debt due to the vendor, and a full premium was charged, without deduction for the securities which the underwriters knew he held, a portion of the premium should have been returned, upon the principles which require a return of premium for short interest, for over insurance, and for double insurance: 11 Pick. 85; 1 Met. 16; 2 Arn. 1226.

But there was no evidence tending to prove that the premium was less than the usual rates for houses of the description set forth in the policy, where the whole estate is insured. Nor was there any offer to return any portion of the premium. On the contrary, all the evidence tended to show that the insurance company was fairly informed of all material facts — that its agent advised the insurance to be taken in the name of the vendor, because the latter were “the legal owners,” and that the vendor replied that he had “ no objection to sign the premium note.” Unless the intention was to cover both interests, there was no ground, for question, or for taking or giving advice in regard to which name should be used, or for the vendor’s consideration whether he had or had not any objection to signing the premium note.

The instrument before us is an open policy of limited extent. The underwriters agree to make -good to the insured, not all Ms loss, but all such loss or damage, not exceeding the sum stated, as shall happen by fire to the property — the loss or damage to be estimated, not according to the balance of purchase-money which may remain unpaid at the time of the damage, nor according to the probabilities of recovering such balance from the vendee, or from the lot, but “ according to the true and actual value of the said property.” The policy is in form an insurance upon the house, and not upon the debt; and no evidence whatever was given to change its character, or to show that anything more or less was intended by the parties. It follows that the plaintiff below was entitled to recover, under a trust, as to the surplus, for the benefit of the vendee. The underwriters have shown no equitable right to intermeddle between the vendor and the vendee. Under such circumstances they must be content to respond to the party with whom they made the contract of insurance.

In Smith v. Columbia Ins. Co., 5 Harris 353, the insurance expressly included the lot, and was stated to be to cover a mortgage. As the insurance company, on such a policy, would have been entitled to a cession of the mortgage, upon payment of the amount, it was properly held that the concealment of prior encumbrances which made it worthless, and would, if known, have enhanced the premium, was a good defence. But here the insurance is upon the building alone — it is not expressed to be to cover a debt — and the lot is not included. The underwriters are therefore not entitled to a cession of the vendor’s title to the lot, or of his claim upon the vendee. The cession of a part of the house, according to the proportion of its value insured, would be all that could be demanded under such an insurance. But even this has become impossible by reason of its entire destruction. The testimony is, that it was a total loss — not a mere technical total loss, but an actual total loss — that it was entirely burnt down; that “ not one stick was left upon another.” Where there is no vestige of the property left, or (which is the same thing) where it has been finally condemned as lawful prize by the Court of the last resort, the cession has nothing to operate upon. There is neither property nor spes recuperandi, and the cession in such case would be an idle ceremony: 4 Bin. 462; 8 John. 245; 1 Peters 215.

The Court was therefore correct in the instruction that the plaintiff was entitled to recover.

■We see no error whatever in the proceedings, and the judgment is therefore affirmed.

Judgment affirmed.


author: Lowrie, J.

text:
    Beck versus Stitzel.
    The defendant charged that the' plaintiff when administrator, (he having taken an oath or affirmation and been otherwise duly qualified as such), “ had a room in which were two beds and both beds were full of leather, which he had smuggled away at the time of the appraisement.” It was jHeld, that the words were actionable without proof of special damage.
    Error to the Common Pleas of Northumberland county.

    This was an action of slander brought by Jacob Stitzel v. Samuel L. Beck.
    The plaintiff was one of the administrators of the estate of Adam Stitzel, deceased, and the words charged as have been spoken by the defendant and which were alleged to be slanderous, were, that “he, the said Jacob, had a room in which were two beds, and both beds were full of leather which he had smuggled away at the time of the appraisement.”
    In the declaration it was averred that the plaintiff had been legally appointed administrator, and had entered upon the performance of the duties of administrator; that the words were spoken “ of and concerning the execution of his office as administrator,” and that in speaking the words it was meant that the plaintiff had smuggled away at the time of the appraisement, and secreted two beds full of leather from the appraisers, and that he had acted “ unjustly, fraudulently, deceitfully, and illegally in his said office of administrator.”
    The final account of the administrators of the intestate, had been settled upwards of sixteen years before the words complained of were spoken.
    - On the trial it was contended on the part of the defendant, that the words were not actionable. That if they were actionable if spoken of an administrator, the plaintiff was not entitled to recover, as, at the time of the speaking of the words, he had ceased to be administrator. No special damage was alleged in. the narr., and none was proved.
    Jordan, J., charged the jury, that if the words charged were spoken of the plaintiff as administrator, they were actionable, but that if the plaintiff, at the time the words were spoken, was not administrator, he could not recover; that there was no evidence before the Court that the plaintiff had been discharged from his trust as administrator, though his account was filed in November, 1832, and the balance distributed, and there was no evidence that he had done any act as administrator since. Having accepted the trust, and no evidence of his discharge having been given, in the opinion of the Court he was to be considered as administrator.
    He charged that the plaintiff was entitled to recover.
    April 15, 1852, verdict for plaintiff for $100.

      Miller, for the plaintiff in error.
    — It was said that no special damage was proved. That the office of administrator was not of such a character as that words spoken of an administrator were actionable which would not be actionable when spoken of another person. That every charge imputing an offence which subjects a party to indictment and imprisonment, is not actionable, as assault and battery, forcible entry and detainer: 3 Ser. & R. 261. In Turner v. Ogden, 2 Salk. 696, Lord Holt states that to render words actionable, imprisonment must not only be the punishment, but the punishment must be infamous: 5 John. Rep. 191; 5 Bin. 218 ; 3 Wh. 138; 2 W. & Ser. 408.
    It was further contended that the final administration account 'having been filed and confirmed 16 years before the words complained of were spoken, the plaintiff was not to be considered to be an administrator of the estate; 5 Watts 90; 3 Harris 110; 2 Barr 432.

      Pollock, for defendant in error.
    — It was contended that the words complained of having been spoken of the plaintiff as administrator, relating to the execution of his office, were actionable: 6 Bacon 212, Title Slander; 6 Id. 213-214; 5 Bin. 221; 16 Ser. & R. 385; 1 Barr 62.
    It was contended that the plaintiff remained administrator at the time the words were spoken. He was not discharged and he never resigned. That the filing of a final account may terminate the active duties of an administrator, but not the office.

    Sept. 27, 1853,
   The opinion of the Court was delivered, by

Lowrie, J.

— There is only one question here that demands any special notice, and that is whether or not the words charged are actionable. The plaintiff below had been duly constituted administrator of his father’s estate, had had it appraised and had settled what appears to be a final account, and sixteen years after that, in 1849, the defendant charged him with having, at the time of the appraisement, secreted and smuggled away from the appraisers, two bed-fulls of leather of the estate. Is this actionable slander ?

If the answer depended upon the damage done to the plaintiff in his office of administrator, perhaps it would be a negative one; for we do not see how any such damage could possibly arise. His liability to be called'to a new account is no damage in the eye of the law.

Following the ordinary definition of slander, 3 Bl. 123, the question is, are these words malicious, scandalous, and slanderous, and tending to the plaintiff’s damage ? Their untruth having been established, they are malicious, scandalous, and slanderous, and then the only element wanting to make them actionable is that they be to the plaintiff’s damage. Ho special damage is alleged and proved, and hence arises the difficulty. But there are slanders so plainly tending to a man’s injury that the law, following common sense, assumes this result, and allows the jury to fix the measure of it without special proof. Will damage be presumed to follow such a slander as this ?

The general action on the case was intended to be a remedy. “ adapted to the specialty, reason, and equity of the very case,” 3 Bl. 52, and of course, to be continually adaptive. And such is still its character, of which the definitions of at least two of its specifications, slander and nuisance, and the course of decisions upon them, are instructive illustrations. Matters are now regarded as slander and as nuisance which were not in former times, and the remedy and the definitions are broad .enough to require this adaptation of the decisions to the changes in the social state. We are therefore to inquire here, not necessarily for decisions in just such a case as this, but for the principle on which the Courts presume that damage is sustained.

Where the charge is of an offence, it is usually said that it must involve moral turpitude and danger of punishment. This element of moral turpitude is necessarily adaptive; for it is itself defined by the state of public morals, and thus far fits the action to be at all times accommodated to the common sense of the community. The other element, danger of punishment, is not a necessary one ; for it is said in 14 Johns. 233, and repeated here in 5 State Rep. 376, that words are actionable, even though they charge an offence barred by a statute of limitations, and it has often been decided that words are actionable though they charge that the punishment has been already inflicted: 5 State Rep. 376; 2 Wils. 300; 2 M. & Rob. 119; Cro. Jac. 536.

The rule therefore would rather seem to be that damages are presumed where the slander involves a charge of both legal and moral turpitude, though it does not involve a danger of punishment. And the legal turpitude need not be very great; for liability to a penal action is sufficient, as for removing land-marks: 10 Ser. & R. 21. Here the moral turpitude is very gross, consisting of a positive and fraudulent breach of an official oath. The ■legal turpitude is marked by the fact of a violation of a legal oath, which is good cause for a disgraceful dismissal from office, and possibly for an indictment as a misdemeanor. A man’s general character must suffer from such a charge if believed, and therefore the words are actionable.

Judgment affirmed.

Black, C. J., dissented.


text:
    Union County versus James.
    1. The salary of a professor in a college is subject to taxation under the Act of 29th April 1844.
    2. The defendant is not properly an officer of the corporation, hut a person in employment; and he in liable to the tax of one per cent, upon bis occupation.
    Error to the Common Pleas of Union county.

    This was a case stated between The County of Union as plaintiff, and C. S. James as defendant. It was stated that the defendant was a professor in the University of Lewisbuig, in Union county, wherein he was employed at a salary of $800 per annum.
    The University was incorporated by Act of 5th February, 1846, and the questions for decision were, whether, holding such a. position, he was liable to taxation for state purposes — and if so, whether he was liaFle to taxation to the amount of two per cent, as the holder of an office, or to only owe per cent., the tax imposed by the Act of 29th April, 1844, on professions or occupations.
    In the Court below, on 21st June, 1853, judgment was entered for the defendant.

    Error was assigned to the judgment.
    Extract from the Act “ to establish the University at Lewis-burg,” Pamph. Laws, 1846, page 33.
    Art. 3, Sec. 4. “A majority of the votes of such quorum or board (of trustees) shall be capable of doing and transacting all the business and concerns of said University, not otherwise provided for by this Act, and particularly, &c., of- electing or appointing the president, professors, tutors, and, other teachers of said University ; of agreeing with them for their salaries and stipends ; of removing them for misconduct, breaches of the ordinances of the institution, or other sufficient causes,” &c.
    Art. 4, Sec. 1. “ The president, professors, tutors, and other teachers, or a majority of them for the time being, shall constitute the faculty of the University, and in their respective departments, shall have the power of enforcing the rules and regulations adopted by the trustees for the government and instruction of the students,” &c.
    This case arose under the following sections of “ An Act to reduce the state debt, &c.,” passed the 29th of April, 1844, Pamph. Laws, page 486:
    Sec. 82. “And whereas, it is necessary that provision be made for the payment of the interest on the state debt, therefore, be it further enacted, that from and after the passage of this Act, all real estate, viz.: &c. — also all personal estate, &c. — also all household furniture, &c. — -also all pleasure carriages, both of two and four wheels; salaries and emoluments of office, all oeeioes and posts of profit, professions, trades, and occupations, except the occupation of farmer, together with all other things now taxable by- the laws of this Commonwealth, shall be valued and assessed, and subject to taxation for the purposes in this Act mentioned, and for all state and county purposes whatsoever.”
    Sec. 34. “ That the county commissioners of each and every county shall be and are hereby required, annually, at the time of making county rates and levies, to assess for the use of the Commonwealth, Upon pleasure carriages, &c.; upon watches, &c.; upon all salaries, emoluments of office, created by or held under the constitution or laws of this Commonwealth, or created by or held under any corporation, institution, or company incorporated by this Commonwealth, where such salaries or emoluments exceed $200, a tax of two per cent, on every dollar of the value thereof above $200; upon trades, occupations, and professions, one per cent, upon every dollar of the value thereof, above $200,” &c.

      O. Merrill, for the County.
    — It was said that the University was a corporation; and it was contended that the defendant having been appointed by the trustees of the institution as professor, his position was an office. That in the case of Commonwealth v. Cuyler, 5 W. & Ser. 275, the decision in favor of the defendant was on the ground that his salary was not- received for his services as a corporator, but as a spiritual teacher, and was made up by voluntary contributions. This case and the case of Agnew reported with it, were made on the Acts of 1840 and 1841.

      But if the defendant be not liable to a tax of two per cent, on his income, as a salary or emolument of office, it was submitted whether he was not liable to taxation to the amount of one per cent, on his income from an occupation or profession.
    Miller, contrá.
    — It was contended that the defendant in the case stated was not an officer. That a railroad company was incorporated for pecuniary profit to its stockholders, but that there were no stockholders in the University of Lewisbfirg. All that was paid by its contributors was given as donations.
    It was not intended by the legislature to tax education: Commonwealth v. Agnew, 5 W. & Ser. 278.
    September 27,1853,
   The opinion of the Court was delivered, by

Lowrie, J.

— Most certainly the Act of 1844 is general enough to include the- salary of a professor in a college as a subject of taxation; and we discover nothing in the law and no public policy that entitles us to Say that the legislature did not intend to include it. Starting with the principle that all persons ought to contribute to the expenses of government, we should rather presume the contrary. But it is said that the state does not tax the means of education, either secular or religious. True enough, yet it may tax those who make education their business and livelihood. This is certainly as reasonable as taxing the salaries paid by the public itself out of the taxes. The defendant is not however properly an officer of the corporation, but a person in its employment, and his salary ought to be taxed only one per cent, as for an occupation or profession: 5 W. & Ser. 275.

Judgment reversed, and judgment for plaintiff for six dollars.