
    [Philadelphia,
    January 14, 1836.]
    The PHILADELPHIA LIBRARY COMPANY against INGHAM.
    IN ERROR.
    1. The owner of a Ground Rent, in fee, is not liable for any part of the taxes assessed upon the land, out of which the rent issues.
    2. The decision of the president Judge of the Court of Common Pleas, upon an exception to his jurisdiction, under the act relating to Special Courts, cannot be reviewed in this court; it being a matter entirely within his discretion.
    This was a writ of error to the Court of Common Pleas of Bucks County, to remove the record in an action of replevin, brought to September Term, 1833, of that Court, by Samuel D. Ingham, against Thomas Sands, constable of Solebury Township, for a quantity of hay.
    The defendant, Sands, made cognizance as the bailiff of the Library Company of Philadelphia, for the use of the Loganian Library, as follows:
    And the defendant, by Mathias Morris, his attorney, comes and defends the wrong and injury, when, &c., and as the bailiff of the Library Company of Philadelphia, in trust for the use of the Loganian Library, well acknowledges the taking of the said goods and chattels in the said declaration mentioned, in the plaintiff’s barn and justly detained the same for the sum of twenty-five pounds sterling, as for and in the name of a distress for rent due and in arrear to the said Library Company, because he says, that by a certain lease by indenture, dated the 1st day of May, 1747, and duly recorded in the office for Recording of Deeds, in and for the County of Bucks, from James Logan to Jonathan Ingham, he.the said James Logan, for himself, his heirs and assigns, did grant and demise to the said Jonathan Ingham, his heirs and assigns, a certain piece or tract of land, situate in the said township of Solebury, containing three hundred and ninety-six acres and one hundred and twenty perches of land, with the appurtenances, at and under a certain yearly rent, to wit: the yearly rent of twenty-five pounds sterling, in English money, to be paid to him, the said James Logan, his heirs and assigns, from and after the 1st day of March, in the year 1760, for and during the full term of one hundred years, then next ensuing, that is, until the year 1860, which said piece or tract of land, with the appurtenances, to wdt, the barn of the plaintiff aforesaid, is the same whereon the goods and chattels in the declaration mentioned, were taken and detained by the defendant aforesaid; and the said defendant, by his attorney, saith, that the said Library Company of Philadelphia, in trust for the use of the Loganian Library, became, and were at the time of the taking aforesaid, entitled, by virtue of good and sufficient assurances, to receive the yearly rent of twenty-five pounds sterling from the plaintiff, who, at the time of the taking aforesaid, held and occupied the said land and premises, under and by virtue of the lease aforesaid, from the said James Logan to the said Jonathan Ingham, his heirs and assigns: and the said defendant, by his attorney, further saith, that the said yearly rent and sum of twenty-five pounds sterling, in English money, was due, in arrear, and unpaid from the said plaintiff to the said Library Company of Philadelphia, for the use aforesaid, for the term and period of one year, then last past, on the 1st day of March, 1833, and is still in arrear and unpaid, and this the said defendant is ready to verify, whereof, &c.”
    The counsel of Mr. Ingham filed the following plea:
    “ October 31st, 1834. Defendant” (meaning the plaintiff) “pleads payment and no rent in arrear, and replies that he is not liable to pay the sum of twenty-five pounds sterling, per year, to any one, and that he is liable to pay no moré than the balance of the said sum, after the taxes upon the land and rent-charge are first deducted, and that the plaintiffs (meaning the defendants) in said suit, have no right to recover any thing of him.”
    On the 6th of November, 1834, the cause came on for trial, when the jury was sworn as between Samuel D. Ingham, plaintiff and the Library Company of Philadelphia, in trust for the use of the Loganian Library Company, defendants.
    
      On the trial, it appeared that by indenture dated the 1st of May, 1747, James Logan, granted three hundred and ninety-six acres and three-quarters of land in Solebury township, Bucks County, to Jonathan Ingham, his heirs and assigns forever; “ he and they paying to the' said James Logan, his heirs and assigns, for the first seven years, from and after the 1st day of March, 1753 (4) the sum of twenty-one pounds, sterling money, as it passes in the kingdom of England, on the 1st day of March in every year, for and during the full term of seven years, the first payment whereof to be on the 1st day of March, 1754 (5), and yielding and paying to him, the said James Logan, his heirs and assigns, from and after the expiration of the seven years, for and during the full term of one hundred years, then next ensuing, the yearly rent or sum of five and twenty pounds, sterling money aforesaid, as it shall pass in the kingdom of England, on the 1st day of March, yearly; the first payment of which last mentioned rent, is to be made on the 1st day of March, 1761; and after the expiration of the last mentioned term, that is to say, the term of one hundred and seven years from the time of the first entry on the said land, in pursuance of the said grant, which will be in the year of our Lord 1861, and said tract of land and plantation, with all the improvements thereon, are to be valued by four judicious and impartial men, to be indifferently chosen by the heirs and assigns of the said James Logan, and the executors, administrators and assigns of the said Jonathan Ingham;- and by how much the true value of the said land and improvements shall, in the estimation of the said four persons, exceed the rent in the said deed, before reserved, one full half part or moiety of the said excess, shall be added to the rent before last mentioned in the said deed, and thereby reserved, and from that time, shall become a new rent, and shall be yearly yielded and duly paid to the heirs or assigns of the said Jonathan Logan,by the executors, administrators or assigns of the said James Ingham, on the 1st day of March, yearly, forever. And in like manner, the like proceedings shall be renewed at the expiration of every term of one hundred and twenty-one years thereafter.”.
    By force and virtue of divers conveyances and assurances in law, and of an act of assembly, passed the 31st of March, 1792, annexing the Loganian Library to the Library Company of Philadelphia, the land above described, charged with the above mentioned rent, became vested in Samuel D. Ingham, the defendant in error, and the rent so charged became vested in the Library Company of Philadelphia, in trust for the use of the Loganian Library, the plaintiffs in error.
    On the. 1st of March, 1833, one year’s rent, amounting to twenty-five pounds sterling, or one hundred and eleven dollars and eleven cents, became due; and on the 1st of August, 1833, Mr. Ingham paid the sum of eighty-three dollars, and eleven cents, on account of the said rent charge, retaining a balance of twenty-eight dollars, which sum he alleged was the proportion for which the rent was liable for taxes, and therefore he claimed aright to deduct it. This balance was the matter in dispute, the Library Company contending that the said rent was not chargeable with so large a proportion of taxes, the same having been estimated above its par value. The Library Company therefore distrained for the rent alleged to be in arrear, and Mr. Ingham replevied the goods distrained.
    The question relative to the par value of this rent-charge, was brought before the Court of Common Pleas of Bucks County, for their opinion, by a petition presented by the Library Company to September term, 1829, and an appeal from the triennial assessment, under a special act of assembly, passed the 14th of April, 1828. The present president judge (Fox) having been concerned in that case as counsel for Mr. Ingham, and having received his commission before it was decided, certified it to the Special Court (King, President,) for argument; and the Special Court made the following decree:—
    “ In the Special Court of Common Pleas of Bucks County, January Term, 1831.
    Library Company ) Appeal from the Triennial Assessment. JanuCase. ) ary 1st, A. D. 1831.
    Hon. Edward King, Esq., President of said Court.
    Wm. Watts, Wm. Long, Esqs., Associates.
    In the matter of the appeal of the Loganian Library Company of Philadelphia, against the assessments of taxes on certain ground rents belonging to the said Company, issuing out of .lands in the township of Solebury, in the County of Bucks, owned by Samuel D. Ingham, Richard Randolph, and John Bye : The Court are of opinion and accordingly decree, that the equitable and just valuation of the ground rent of twenty-five pounds sterling, issuing out of the lands granted by James Logan to Jonathan Ingham, on the 1st day of May, 1747, is eighteen hundred and fifty dollars; and that the equitable and just valuation of the ground rent of ten pounds sterling, issuing out of the lands granted on the 26th day of May, 1747, by James Logan to Jacob Dean, is seven hundred and forty dollars, and no more; and accordingly do adjudge, order and decree that the sum to be levied and assessed on the said ground rent of twenty-five pounds sterling, for county rates and levies, shall be three dollars and seventy cents; and that the sum to be levied and assessed on the said ground rent of ten pounds sterling for county rates and levies, shall be one dollar and fifty-eight cents, the same being at the rate of twenty cents of tax to the one hundred dollars of value; and the Court do further order and adjudge, that the County of Bucks shall pay the costs of the said appeal.”
    Prior to swearing the jury in the present cause, the following plea to the jurisdiction of the court was filed :—
    “ And the said defendant,” (Sands, the constable,) “ by his attorney, further says, that the trial of the suit aforesaid, is not subject to the jurisdiction of the president judge of the district of which the County of Bucks is a part, but that it is subject to the jurisdiction of a special court, appointed, and to be held by the president of another district; for that the said president judge of the said County of Bucks has been concerned as counsel, “ touching the same subject-matter,” in a former suit or case, to wit, in the matter of the petition and appeal of the Library Company of Philadelphia, to September term, 1829, in this court; which said suit or case and proceeding, the said president judge of the said court certified to a special court for argument and decision; and the said defendant, by his attorney, and on behalf of the Library Company of Philadelphia, in trust for the Loganian Library, respectfully requests that the suit aforesaid may be certified to the Special Court, to be held in the said county, for trial.”
    The court overruled the above plea, in reference to which, the president judge delivered the following opinion :—
    “ The ground of this request is, that the-president judge has been concerned as counsel, “ touching the same subject-matter,” in a former suit, to wit, in the matter of the petition and appeal of the Library Company of Philadelphia, in this court, to September term, 1829.
    “ The act of assembly provides, that whenever the president judge has been concerned as,counsel for either of the parties in any suit instituted in the Court of Common Pleas, touching the same subject-matter, then such suit shall be subject to the jurisdiction of a Special Court, The counsel for the Library Company supposes that if the subject-matter be the same, the case is subject to the jurisdiction of the Special Court, although the parties may be different, and has drawn his plea with a view to such a case. I differ with him. I think the parties and subject matter must be the same; and therefore entertain jurisdiction of the cause, and overrule the plea.
    “ I have heretofore been inclined to send to the Special Court all cases, wherein either party supposed, I had been in any wise connected, either as to party, or subject-matter, or question; but I am now disposed to confine the removal strictly to cases where it is required to be done by the act of assembly. It is now nearly five years since I was appointed president judge of this district; and a considerable part of the business certified to the Special Court remains undisposed of, and probably some of it will yet remain long undetermined. The removal of a case to that court, I therefore consider as an injury to one of the parties, which I have no right to inflict unless the law requires me to do so.”
    To this opinion, exception was taken by the counsel of the Library Company.
    In the course of the trial, the counsel of the plaintiff below, called as a witness, Jonathan Ely, who testified as follows: — “I live in Solebury township, where this property is situated. I have been the assessor of that township, and am at this time. I was the assessor at the last triennial assessment in 1831. I was the assessor in 1830. Previous to the last triennial assessment, it was assessed separately, a portion of it vyas assessed to the tenants, and a part to the company ; in 1831, it was assessed to the tenants, the whole to Mr. Ingham, and Mr. Randolph. In 1828 to 1831, the valuation put upon that part belonging to the Loganian Library, was assessed at eight thousand eight hundred and sixty-two dollars. In 1831, the whole was assessed to Mr. Ingham and Mr. Randolph, and valued at $34080, on the 396 A., 120 P.
    In 1825, it was valued at 8730,
    In 1822, it was valued at 10611,
    In 1819, it was valued at the same,
    In 1816, it was valued at ' 11790,
    In 1815, it was valued at 4000.”
    The counsel of the plaintiff below, then propounded to the witness the following question: “ Are you acquainted with the Loganian interest in the premises; and what value would you put upon it V’ The question was objected to by the counsel for the Library Company, but the court overruled the objection, and exception was taken to their opinion. • The witness then proceeded as follows :— “ It would be a very difficult matter to say what it is worth, but in assessing, we put the bona fide value that it would sell for. I should suppose it would bring four thousand dollars' — the valuation in 1815. I have reason to believe it would sell for four thousand dollars', if it was put up at market. I did not assess the property before 1831, at the triennial assessment. There has been a barn built on it since my recollection. I heard Mr. Ingham say, he was willing to give four thousand dollars for it — have had frequent conversations on the subject — I think that is a pretty good reason. From what I know of the property, independent of that, I should suppose it was somewhere about the valuation. That is all the reason I have for supposing it would bring four thousand dollars.”
    The counsel for the plaintiff below, then called Dr. John Wilson, who testified as follows: — “ It is a subject I have thought of, being agent for the Library Company for some years, and I have frequently talked with the members of that company, with respect to the sale of their interest in it. I have never fixed with them any valuation, although I have advised them to sell. I have been acquainted with what the tenants were willing to give Richard Randolph ; he informed me that they were willing to give four thousand dollars, including Samuel D. Ingham, and himself; he, Randolph, holds a part of it. I should have advised the Library Company to accept the four thousand dollars. It had been on my mind to advise them to accept it. I was agent for that company from 1817-18, till 1826. I should think that a fair valuation, as near as my judgment would establish a value. I do not know the amount of the rent; the property, exclusive of the mills, rented for six hundred dollars, Ingham’s part, in 1829-30. I have heard it said the paper mill rented for eleven hundred dollars a year. Randolph’s property, until a year or two, was to the shares; the mill rented by Randolph, is for six hundred dollars a year; the land is worked to the ■ shares ; there was a large barn on Ingham’s part, and a grist mill and oil mill on Randolph’s part. During many years that I was agent for the company, I have had many conversations with Randolph on the subject; cannot recollect the time. I don’t know that he ever made an offer of any specific sum, though he had frequent interviews with the company on the subject. I don’t recollect that he informed me he offered any specific sum to them. He, Dr. Park, always told me he didn’t think the company were prepared, generally, to sell. I had frequent conversations with Samuel Coats, the former treasurer and secretary of the company.”
    The counsel for the plaintiff below, then gave in evidence a receipt, dated August 1st, 1833, from Thomas Sands to Samuel D. Ingham, for eighty-three dollars eleven cents, and on account of a certain ground rent for the year, ending March 1st, 1833, for Samuel D. Ingham and Richard Randolph; and also one other receipt, dated December 9th, 1833, for sixty-nine dollars ninety-two cents, Thomas Sands to Samuel D. Ingham, in full for county and state tax, including the tax on the Loganian ground rent; and also one other receipt, dated August 1st, 1833, Thomas Sands to Richard Randolph, for two dollars fifty-four cents, balance of county tax for 1832, also for eighty-five cents in full, of balance of state tax, for the year 1832; and also one other receipt, dated August 1st, 1832, Thomas Sands to Richard Randolph, for two dollars fifty-four cents, for road tax for the year 1832.
    
      The counsel for the plaintiff below, also gave in evidence certain duplicates, showing that in the year 1833, the state tax upon the land and ground rent included, amounting to sixteen dollars thirty-' six cents, at the rate of one mill to the dollar, upon the land occupied by Samuel D. Ingham, exclusive of the tax upon the land occupied by Richard Randolph; that the land and ground rent were valued at twelve thousand three hundred and sixty dollars, and the paper mill at four thousand dollars, amounting in the whole to sixteen thousand three hundred and sixty dollars, which, at the rate of thirty cents to every hundred dollars of value, made the
    county tax $49 08
    The state tax at one mill to the dollar, was 16 36
    The road tax for that year, the same as the county
    tax 49 08
    Making upon the part occupied by Samuel D. Ingham $114 52
    And also that the eighty-four acres, occupied by Richard Randolph, were assessed to him at forty dollars per acre, amounting to three thousand three hundred and sixty dollars; and that the whole of the taxes upon that part amounted to 23 46
    Making the taxes upon the Loganian lands $137 98
    occupied by Samuel D. Ingham, and Richard Randolph.
    The counsel for the plaintiff below, then examined Thomas Sands, who testified as follows: — “The road tax for 1832, was paid by Mr. Ingham; he sent the tax by Joseph Cooper. I gave him a receipt. Cooper was the supervisor. The road tax and county tax were the same that year ; last season they were changed. I made Ingham’s distress at the house and barn. I distrained some hay, I forget whether any thing else, in the east end of the barn. Did’nt make any distress upon the part occupied by Richard Randolph. I cannot say whether the money, eighty-three dollars eleven cents, was paid before the distress. The warrant was issued before the payment was made. My impression is, that the rent was paid at the time I went to the house to make the distress.”
    After the evidence for the plaintiff was closed, the counsel for the defendants below, offered in evidence, the petition and appeal of the Library Company, for the use, &c. in the Court of Common Pleas of Bucks County, to September Term, 1829, from the triennial assessment of taxes, and the decree of the Special Court thereupon. The evidence was objected to by the counsel for the plaintiff below, and rejected by the court; who signed a bill of exceptions.
    The evidence in the cause being closed, it was contended on the part of the plaintiff, that, as he had paid eighty-three dollars eleven cents, on account of the rent charge, he had a right to defalk, and retain the balance of twenty-eight dollars, for the proportion of taxes paid by him to the collector, which ought to be borne by the rent charge; alleging that the proportion accruing upon the rent charge, amounted to twenty-eight dollars. He also contended that the Library Company were bound to allow and pay the taxes accruing not only upon the rent charge, but also on the land on which it was charged, and that he was entitled to defalk and retain out out of the said rent, the whole amount of taxes, as well upon the land as upon the rent charge. These propositions were denied by the counsel for the Library Company; who submitted certain propositions to the court, on which he requested them to instruct the jury-
    The president Judge delivered to the jury the following charge:
    “ The Library Company claim from Samuel D. Ingham, one hundred and eleven dollars eleven cents, or twenty-five pounds sterling, as a ground rent due from him to them. It is proved and admitted, that Mr. Ingham has paid to the Library Company, on account of this claim, the sum of eighty-three dollars eleven cents; and he further contends that he has paid to the proper collector of taxes, the taxes upon the land, and upon the ground rent, the amount and more of the balance claimed, and that he is entitled to defalk it out of the rent claimed of him. He claims that under the sixth section of the act of the 3d April, 1806, directing the mode of selling unseated lands for taxes, and the eighth section of the road law of the 6th April, 1802, he is entitled to pay all taxes which may be assessed on the land, and ground rent, and defalk the amount from the rent.
    The Library Company deny that the acts of assembly so relied upon, apply to cases of ground rent. I can see no reason why their provisions should not be applied to cases of ground rent, as well as to any other rent. The terms of the law are general, and the reasons for such provisions will apply equally to all cases.
    The next question is, who is properly chargeable with the taxes ? The Library Company admit that they are chargeable with the taxes on the ground rent, but aver that Mr. Ingham must pay the taxes on the land. I believe that in the City and County of Philadelphia, the practice always has been to have a clause in the ground rent deed, providing for the payment by the tenant, of all taxes which may be assessed, as well upon the land, as upon the rent. I believe that the opinion in Pennsylvania at the bar, is uniform, that the landlord is bound to pay the taxes, unless there be some agreement to the contrary, between him and his tenant. I am unable to distinguish this case, in this particular, from any cither between landlord and tenant, and I therefore say, that as there is no provision in the deed, nor any other evidence of a contract, by which the tenant agreed to pay the taxes, they must be paid by the landlord.
    The tenant, therefore, has a right to defalk, as well the taxes upon the land; as upon the ground rent, out of the rent.
    The only remaining question, is the value of the ground rent. That must be estimated by what it will fairly sell for in the market, for ready money, and is a question of fact for you to decide. If you believe the witnesses, it would bring in the market four thousand dollars.”
    The following is a statement of the points submitted to the court, and the answers of the president to them, viz.:
    1. That the Library Company of Philadelphia, in trust, for the use of the Loganian Library, were entitled to receive from the plaintiff on the 1st of March, 1833, the amount of the rent charge for one year, ending at that time, charged upon the plaintiff's land, by virtue of the deed from James Logan to Jonathan Ingham, and by virtue of the other assurances given in evidence in the cause, to wit, the sum of twenty-five pounds sterling.
    Answer. They were so entitled, unless ike plaintiff had a right to defalk the taxes bn the land, or ground rent.
    
    3. That the act of assembly authorizing a tenant to defalk from the amount of the rent, the taxes which he has paid upon the land, does not apply to a case of this description.
    Answer. The act of assembly does apply.
    
    3. That the assessment of taxes upon the ground refit mentioned, is to be at its present bona fide valué, to wit, at the value of one thousand eight hundred and fifty dollars, and no more.
    Answer. It is to be at its bona fide value; but what that value is, is a question of fact for the jury.
    
    4. That if there is any defalcation to be made by the plaintiff from the ground rent, for taxes paid by him, it is to be made and apportioned according to the valuation above mentioned, and not higher; and it is to be only for the value of the ground rent, and not for the taxes assessed upon the land.
    Answer. That is not true. The value is a question of fact, and 
      
      the tenant is entitled to defalk the taxes paid hy him, as well upon the land as upon the ground rent.
    
    Under the instructions thus given, the jury returned a verdict in these words, viz.:
    “ The jurors in the above case do find, that under the evidence produced in the cause, the present value of the rent charge of twenty-five pounds sterling, annually accruing upon the land of the plaintiff and his assigns, to wit, the said Samuel D. Ingham and Richard Randolph, to the defendants, is four thousand dollars; that this sum was the value of the same rent charge in 1832 ; that the said plaintiff paid to the defendants in part of the said twenty-five pounds sterling, (or one hundred and eleven dollars eleven cents,) the sum of eighty-three dollars eleven cents, for the year ending 1st March, 1833, leaving a balance of twenty-eight dollai’s: that the said amount was paid in taxes by the plaintiff in the following manner, at the rate of thirty cents to the hundred dollars, which was the standard of assessment for that year, and was
    County tax $12 00,
    Road tax 12 00,
    State tax 4 00,
    $28 00.
    That the plaintiff is entitled to a deduction of the above amount of twenty-eight dollars, on account of taxes paid as aforesaid. They therefore find for the plaintiff.”
    In this court, the following specification of errors were filed:
    1. The court below erred in overruling the plea filed on behalf of the defendants below, to the jurisdiction of the court.
    2. The court below erred in refusing to receive in evidence the proceedings and decree of the Special Court, by which the value of the rent charge was fixed at one thousand eight hundred and fifty dollars, on the appeal by the defendants below from the triennial assessment.
    3. The court below erred in permitting the witnesses of the plaintiff below to answer the following question, propounded by his counsel: “ are you acquainted with the Loganian interest in the premises, and what value would you put upon it?”
    4. The court below erred in their charge to the jury.
    5. The court below er’red in their answers to all the propositions submitted to them by the counsel of the plaintiffs in error, for their opinion.
    
      
      Mr. W. Ramie, Jr., for the plaintiffs in error:
    1. The plea to the jurisdiction of the president judge ought not to have been overruled. The intention of the act of 23d of March, 1813, was to prevent the opinions and prejudices of counsel interfering with the administration of justice. It is not necessary that the parties should be the same on the record. If the person for whom the judge was counsel, was a party in interest, it is sufficient. In' this case, there is no doubt that the defendant in error was the real party in interest, and that “ the subject matter” was the same. The act of the 14th April, 1834, section 37, chapter 4, is decisive upon the point.
    2. The judge erred in supposing that any taxes were due from the Library Company. By the act of 1799, relating to “ County rates and levies,” ground rents are treated as a species of property, distinct from the land out of which they issue; and so they have always been considered. By that act they were first made taxable; and the obvious intention was to create a new source of revenue; not to divide the burthen between the owner of the ground rent and the owner of the land. No tax can be demanded, unless all the steps mentioned in the act of 1799 have been previously taken; and in this case none of these requisites appear to have been attended to in respect to the ground rent. The valuation by the assessors is material. Respublica v. Deaves, (3 Yeates, 465.) If the result of this case should deprive the county of the tax on these ground rents, for the time being, we are not to blame, having always been ready to pay the tax properly assessed on the ground rent.
    3. If the ground rent had been duly assessed, .the defendants in error had no right to deduct the amount of the tax from the arrears of rent. His claim to do so rests upon two acts of assembly, which relate to matter of a different description, (Acts of 6th April, 1802, s. 8, and 3d April, 1804,'s. 6.) Both of these acts refer to tenants for years, and have no application to a rent, payable out of the fee, like the present.
    4. The standard by which the value of the ground rent was estimated, was uncertain and inequitable. That the opinions of witnesses are no evidence, except in certain cases of science and trade, is well settled. 1 Phillip’s Evid. 226. There are two standards, either of which might have been taken. — 1. The value of money, or 2d. That adopted by the Special Court. Whatever may be the value of the increased ground rent in 1861, it will be then properly assessed, and the company, or the owner of it, will be bound to pay a tax in proportion to that value. But it would be obviously unjust to take that future value as the basis of present assessment. The decree of the Special Court was an express adjudication upon the same subject matter, and ought to have been followed.
    5. The doctrine that the owner of a ground rent is bound to pay the taxes upon the land, out of which the rent issues, is clearly untenable. A ground rent is a rent reserved upon a grant in fee. It differs materially from a rent reserved upon a lease for years, which is always for a less term than the lessor has in the premises. 3 Cruise Dig. Tit. 32, s; 1. The grantor has an estate in fee upon a condition subsequent. Litt. Sec. 325. Co. Litt. 201. The rent has all the qualities of real estate. Hurst v. Lithgow, (2 Yeates, 24.) Wilder v. Foster, .(2 Penn. Rep. 26.) If this doctrine were established, the consequences would be ruinous to the owners of this species of property. In fact, the point has been decided by this court, (Franciscas v. Reigart, Harrisburgh, 1835, MS.)
    
    
      Mr. W.' M. Meredith, for the defendant in error.
    This court will look to the real points in dispute, and not reverse for incidental expressions of the judge below.
    1. A judge is not to be excluded from sitting, because he has fixed views upon any principle of law. The question is, whether he had been concerned for one of the parties. Now, Mr. Ingham was not a party to the appeal. The parties really and nominally were the County Commissioners and the Library Company. Besides, this was a question addressed to the discretion of the judge, and not examinable in a Court of Error. Ellmaher v. Buckley, (16 S. Sp R. 72.)
    
    
      2, 3. A ground rent in Pennsylvania, means a rent of inheritance. In this case, the rent was reserved for years, though the land was conveyed in fee. It was therefore a chattel interest for the first hundred years, though the company claim an interest in the. land beyond the present rent. The act of 1799, does not say that the rent must be assessed separately. In the act of 1724, “ lands and tenements” were spoken of generally, as subjects of taxation. (Hall 4r Sellers’ Laws, 132.) In England, the original subsidies were on the rental. (1 Com. Dig. tit. Seioers, F. 5 4~ E. 2.) The visible owner of property must be assessed. Sheaffer v. M’Kabe, (2 Watts, 422.) Here the tax was laid upon the whole — rent and land — and Mr. Ingham, having paid more than his proportion, ought to be allowed to deduct the excess. Such is the rule in England, in the case of the land tax. (Platt on Covenants, 211. Comyn on Land. 4' Ten. 187.) The acts of assembly expressly authorizes a tenant to deduct the tax from his rent. {Act of 1799, s. 25, and Act of 1804.) In 4 Term Rep. 511, it was held that to an avowry for rent, the tenant might plead payment of a ground rent to the original landlord.
    4. The real question here is, what is the true standard of the value of the ground rent. .The judge of the Common Pleas said, that the jury were to consider what it would fairly sell for in the market ' for ready money. Now this is almost literally according to the act of 1799, (s. 8.) There .cannot be two standards of value, each absolutely certain, as was asserted on the other side. The value of money varies with the varying situation o&the country and other circumstances. There is no instance' e..'<lhe assessment of ground rents at six per cent. The decree of 1829, cannot control subsequent assessments. The law requires assessments to be made triennially. If the par value of the ground rent is the true standard, why did Judge King go beyond the sixteen years and two-thirds purchase? The true measure is the price the company would be willing now to take, looking at the certain' future increase.
    5. This is not the case of an ordinary ground rent, if it can be called by that name. The Library Company have an interest in the land beyond the rent. It is more like a rent for a long term of years. If rent be reserved to a man and his heirs upon a lease for years, the executor cannot take. Gilbert on Rents, 66. The case of Darragh v. Wilson, (Cro. Eliz. 645,) shows that on the death of Mr. Logan this rent went to his Executors.
    This was a rent-seck, not a rent-charge. Gilbert on Rents, 14,15. Co. Litt. 143, s. 216, 217. 3 Cruise Dig. 188. The Slat. 4 Geo. 2, c. 38, s. 5, which extends the remedy by distress to rents-sech, is not in force in this state. [KennedV, J. That is not so certain. We had a case recently at Harrisburg in which it was supposed to be in force.]
    The Court declined hearing Mr. Sergeant, (with whom was Mr. Chauncey,) in reply.
   The opinion of the court was delivered by

Gibson, C. J.

The only principle that could produce an effect

on the event, has already been determined in Franciscus v. Reigart; where it was held that the conditional owner of the fee cannot defalcate taxes assessed on the land. What is there in this case besides ? It is not pretended that there was a separate assessment on the ground rent; and if there had been, what concern would the occupant have had with it ? The act of the 3d of April, 1804, subjects the tenant to taxes assessed on the land, and empowers him to recover it from his landlord by action or defalcation; but the tax on ground rent is chargeable on a distinct species of property. Besides, though the owner of it is usually called the ground landlord, the expression is evidently an inaccurate one. Subinfeudation no more exists here than it does in England, since the statute of quia empierres; and there is nothing like tenure, where the rent is not incident to the reversion. Now, such a rent as the present, is charged on the land, the instant the ground landlord parts with the fee, leaving in him but a condition of re-entry; and even the reservation of that may b.e omitted. And it may, by force of the deed, be charged on land of which the ground landlord never was the owner. The clause in the act above quoted, has respect to taxes, for whi<¿ the tenant is liable by his position as the occupant, but for wh*?a he is not liable by any agreement with his landlord. His case would call for a liberal construction, if he were exposed to payment of the ground rent taxes,- but by no statute whatever is his person or chattels chargeable with any burthen, that is not assessed specifically on the land. The statute has expressly subjected ground rents to taxation, eo nomine; but it has provided no remedy to enforce payment by distress on the land from which it issues; and the tax is consequently to be collected as a tax on land was previously to be collected — by recourse to the person or chattels of the owner. It is undoubtedly true, that he, like the owner of land when the tenant was irresponsible, may be beyond the reach of the collector. Taking for granted, however, that this species of property, unlike a chattel interest which attends the person of the owner, is to be taxed, but in the county where the land lies, the right of taxing it not being determinable by the domicil, yet, as the statute which makes the tenant liable for taxes assessed on the land, has not made him liable for taxes on quit rents issuing out of the land, we cannot supply what we might’ suppose to be the effect of an oversight. Nor do we conceive that the defect, if there be one, is of great.magnitude, as it is the practice in the country to assess a full tax on the land, without regard to incumbrances, and to overlook the quit rents altogether; in consequence of which, an inconvenience from want of means within, in the county, has not been so striking as to challenge legislative inquiry. But if that were otherwise, to provide such means would exceed our power.

The proposition also asserted here, that separate taxes, on separate subjects of taxation, separately owned by distinct persons, may' be indiscriminately assessed on the same subject matter, leaving the owners to settle their respective proportions of what would thus be made a common burthen, is still more extravagant. To admit that a tax on the quit rent may be assessed conjointly with that on the land, would deprive the rent-holder of his separate right of appeal, which, by a particular legislative provision, lies in this case to the Common Pleas. There was in fact and in law, therefore, no assessment on the quit rent, and no duty owing for it; but if that were otherwise, it would not be material to inquire whether there was error in the method adopted to ascertain the measure of its relative proportion; for,whether it were assessed jointly or separately, the occupant could not, by voluntary payment, make himself a creditor of the person properly chargeable with it.

But the exception to the jurisdiction is not sustained. We have already intimated. that an objection to competency, under the act for the establishment of Special Courts, must be addressed to the discretion of the judge himself; and this is conformably to the principle of the common law, which exempts a judge from challenge. Nor can there be danger in leaving the matter to him. A sense of duty in keeping his administration not only pure but unsuspected ,* and the reprobation that would ensue an evident desire to favour a party by retaining the cause, must always incline him to surrender it where he may do so by the most comprehensive construction. Into the supposed relations of the parties, therefore, we are forbidden to inquire; and we are bound to suppose that the legal discretion of the judge, in holding himself exempt from the bias incident to the imputed causes of it, has been soundly exercised.

Judgment reversed and a venire de novo awarded.  