Bowen Matlack et al. v. Jones and Hazlewood. or otherwise used, with a view to profit--all lands used exclusively as grave-yards, or grounds for burying the dead, except such as are held by any person or persons, company or corporation, with a view to profit, or for the purpose of speculation in the sale thereof," shall be exempt from taxation. Other clauses of the act refer to property belonging to the general, State or municipal governments; and where it was so held by the latter, the same limitations are annexed as those which attach to the first class of exceptions. From these provisions, it would appear, that it was not intended to exempt the property of any religious society, or literary institute, unless actually used and occupied for religious or literary purposes. Houses of public worship, and such additional grounds connected with them, as are necessary to their use, occupation and enjoyment, are expressly reserved; and this would, doubtless, include a liberal quantity of adjacent land, for such purposes, as may be essential to its convenience and protection, but a vacant lot, purchased in contemplation of its use for the future erection of a church, or the interment of the dead, can not be within the legal reservation, until the purpose for which it is alleged to have been acquired is apparent, by its actual use for strictly religious objects. In former times, no church or churchyard was regarded as bearing a religious character, until both were solemnly dedicated to pious use; and the publicity of the act not only established their claim to sanctity, but gave notoriety to the fact that the worship of the living, and the quiet repose of the dead, would be alike protected, within the walls of the one, or beneath the soil of the other. Our law requires no such ceremony; but it does demand some clear and unequivocal evidence, by which the real intention of those who assume to set apart property for religious uses, shall be manifested; and in applying this rule, it is but the ordinary principle which gives effect to every public dedication, when the right to its enjoyment is called in question. The property now sought to be exempted, was acquired Bowen Matlack et al. v. Jones and Hazlewood. by the plaintiffs in 1853. Whether the fee was conveyed to the corporate body, or held in trust for its use, does not appear from the pleadings; nor does it appear at what time the title was acquired by the church, nor what title they now possess; but, it is admitted, a portion of the lot was sold, and the residue remained vacant and unoccupied until 1856, when the erection of the church edifice was commenced. In the interval, the property was practically withdrawn from taxation, and the burden, which would have been imposed upon it, under ordinary circumstances, was borne by others. This state of facts presents an interesting question, though its solution may not be difficult. The reason why property appropriated for religious objects is excepted from taxation is obvious. It is that an edifice, or a burial ground, erected or acquired by the contributions or grants of christian people, and devoted to the worship of God, or the interment of the dead, should be released from the ordinary burdens of the government, more especially as there is no private interest in the corporation, except to protect the common estate from being perverted to other than its legitimate uses, or destroyed; and the idea of a church structure must include all the appurtenances necessary to its proper enjoyment, whether it shall be adjacent ground, like the glebe of the established church in England, or, perhaps, a parsonage or a rectory; but where there is no such building in being, and none is in progress of erection, it is difficult to understand on what principle exemption can be claimed for land, part of which has already been sold, as the residue might have been, without any perversion, on the part of the plaintiffs, of any existing trust. If we could suppose, without violence to the statute, when a lot is purchased by a religious society, and preparations are speedily or within a reasonable time, made to build a house of worship, and the building is actually in progress of erection when the tax is assessed, that the exemption might properly apply, in such a case, the work must not be delayed, in its inception, nor cover a series of years in its com Bowen Matlack et al. v. Jones and Hazlewood. pletion. A mere intention, however, in good faith, it may have been entertained, to appropriate the property at some future period, to religious purposes, can not give a present character to the property itself, other than it would bear if owned by an individual, and he had resolved to dedicate it to religious purposes, but had never legally accomplished his determination by a grant of the estate. There must be an occupation of the land, consistent with, and significant of the purpose for which it is intended it shall be enjoyed; until which it can not be maintained that it is set apart for pious uses. On any other view of the 'question, the trustees of a religious society might purchase the most desirable city property, hold it for years without improvement, and, if it should, meanwhile, increase in value, dispose of it, reaping the benefit of the speculation, without having paid a dollar to the public treasury to sustain the government, which has protected the property from injury and enabled the owners to acquire, as well as to alien it; nay, further, if ever there should be such a case, a religious body, already possessed of a church edifice might be desirous to erect a new and more commodious building, and, in anticipation of such an event, purchase another location for the prospective edifice, and, on the theory of the plaintiffs, the newly acquired property, as well as that already possessed, would be exempted from taxation. The effect of such an example would be, as we have already intimated, to withdraw property from taxation for an indefinite period, to be limited only by the will or the convenience of the owners; and though, it is said it may yield in the interval no profit to the proprietors, the difficulty is not obviated. It still exists; for, such an answer, to be of any value, must as well apply to individuals who own vacant and unproductive city lots; they may derive no revenue from their estate, but they are never excused from the payment of the taxes with which it is assessed. On the whole case, we are satisfied, there is no error in Charles Conahan v. Adolphus H. Smith. the decision of the judge at special term. We, therefore, affirm the judgment. Judgment affirmed. CHARLES CONAHAN v. ADOLPHUS H. SMITH. (No. 2,716.) 1. When a promissory note is made and indorsed in Kentucky, though payable in Ohio, the liabilities of the indorser are fixed by the law of the former State; and, the laws of that State providing, that, before any indorser can be made liable, except on negotiable notes made payable at and discounted by an incorporated bank within the State, the maker of the note must be first prosecuted to insolvency, by judgment and execution, no recovery can be had in this State, against the indorser, without proof that such preliminary conditions had been complied with. GENERAL TERM.-Proceeding in error to reverse a judgment rendered against the plaintiff, at special term in June, A. D. 1857, by Spencer, J. The action was tried at special term on submission. It was founded on a promissory note for $1,250, dated Covington, Kentucky, March 7, 1854, made by Chas. Leggitt, and payable to A. H. Smith and M. A. Finch, or order, in one year, at the Ohio Life Insurance and Trust Company, in Cincinnati. Leggitt and Finch were not served with process, and the case proceeded to judgment against Smith only. The plaintiff claimed title through the indorsements of both payees, and sought to recover the amount of the note and interest. Smith resisted his right to do so, setting forth in his answer, among other things, that he indorsed the note in Kentucky, and there delivered it to Finch; and, by the law of that State, before any indorser can be made liable, except on negotiable notes, made payable at and discounted by an incorporated bank within the State, the maker of the note must be first prosecuted to insolvency, by judgment and execution, which, it is averred, had not been done. Charles Conahan v. Adolphus H. Smith. It was in evidence, however, that the note had been presented for payment at the office of the Ohio Life Insurance and Trust Company on the day it became due, and the proper steps taken, in due time, to charge the indorsers. The judge who heard the cause, having decided that the defendant could not be held upon his indorsement, at the request of the plaintiff's counsel, found the matters of fact appearing on trial, and the determination of the questions of law arising thereon, separately, as provided by the code. Ketchum & Headington, for plaintiff in error. Ferguson & Long, for defendant in error. STORER, J. delivered the opinion of the court. The important, and it may be said the only question to be decided here, is whether the lex loci or the lex fori shall determine the liability of the defendant in error; and this directly involves the inquiry whether the judge who tried the cause erred in the judgment rendered. It can not be denied but every indorsement upon a note, or bill is a new contract, imposing an independent obligation, though subject to the conditions upon which every such agreement is supposed to be made. While, therefore, the indorser may, in every proper case, be required to discharge the debt he has transferred, he can only be compelled to do so where the maker or acceptor has refused to pay, and legal evidence of such refusal is communicated to him. The delinquency does not, of itself, create a liability against him, nor can the knowledge of the fact derived in the ordinary course of business. The holder, who has presented the note or bill for payment, must advise, without delay, the party he is desirous to charge with the debt; and he must prove, moreover, affirmatively, that such a course was pursued. Hence it is that the law merchant, which many of |