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days before taking effect," all of which is It is of course meant by this that the orrequired to be done by the act of 1851. dinance of 1870 is repealed by that of Upon these facts we are asked to sus

1871,-but the latter ordinance has never tain the first exception and set aside the been completed, and is now inoperative. report.

This was recognized by the counsel who The objections then are, if we divide the argued the exception, but he urged the exception into such parts as will enable view upon us that at any moment, notus the more readily to discuss it :

withstanding the lapse of time, the necesist. That the eastern terminis is not a

sary steps may be taken to give life to

this dead enactment, and that then the public point. 2nd. That South street has not been

pending appeals from the assessment of

damages will end, and an impassible baropened to the borough line.

rier erected to those who seek to enter 3rd. That there is no ordinance ex

the borough by means of this road. tant requiring it to be opened. In the first place it is to be observed

It is enough for our present purpose that the general road law of 1836, (2 that no such no action has as yet be taken, Purdon 1272) nowhere provides that a

and it is perhaps well to suggest, that afpublic road shall terminate at a public ter the ordinance extending this street, the point—the 11th section of that act which appointment of viewers to assess the provides for the laying out of roads from damages and the confirmation of their redwellings or plantations to a highway or port, it is at least doubtful whether the place of necessary public resort,” has ref- borough has the legal right to repeal the erence entirely to private roads, and the ordinance of 1870. Certainly not if indi3rd section of the act requires the viewers vidual rights have vested, and it would to report "whether the road desired be seem from the cases, that those to whom necessary for a public or private road. I damages were awarded have acquired a admit that the current of judicial construc- vested right to the sum so awarded. tion gives color to the assumption that a

(1 Wend. 54, 520.) 2 Wr. 249. public as well as a private road must have Again it was insisted that the appeals such an outlet-hence we find the courts now pending must be disposed of before determining what constitutes a public the borough authories can proceed to place, and they have held a "grist mill,” open the street, and that after that they and a "saw mill," a "cemetery" and a

may open the street or not as they see fit "church” to be points at which a public and that the court would have no more road may terminate.

power to compel them to do it, than it In the case we have in hand, it is diffi- would have to compel the legislature to cult to conceive a more public point in the enact a certain law, and that the legislacounty of Cumberland than its county ture and the councils stood upon the same seat, and we do not suppose the learned footing.” counsel who argued the exceptions in- It is true that the questions relating to tended more by his argument and excep- damages must be adjusted before South tion, than that there was no way of get- street can be formally opened, but when ting beyond the inclosed field and into the that is done, we have no doubt that those borough—in other words that the road entitled to receive the money can apply proposed is a mere cul de sac.

¡ to the court for a writ of mandamus to It is true that South street has not been compel the borough authorities to pay the opened to the borough line, but we do not amounts, and if necessary to collect the agree "that there is no ordinance extant money by appropriate assessment, and requiring it to be opened."

that if they refuse to open the street that

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the court would have ample power to is- learned predecessor in that district, dissue a similar writ and compel them to missed the exceptions and confirmed the do their duty. They have the absolute report, which was afterward affirmed by right to determine whether the public the Supreme Court. convenience and interests require them to No opinion was filed in the court beordain additional streets or extentions of low, but the decision doubtless proceeded those already opened—and as it is a matter upon the broad ground that the borough in their discretion no court can compel line was a public point, and that when the them to act—but after the ordinance has travelers over Spring Garden Road sought passed, and the question of damages set- admission to the borough, the Councils of tled, the right of the citizen commences, York would furnish an avenue through and the power of the court may be in- which to enter. No street had been orvoked. The Supreme Court long ago dained connecting with the “post on the decided that in this regard, there is no borough line," but the authorities, mindanalogy between the legislature and city ful of their duty to the public, soon supor borough councils : 20 Smith 469; plied the missing link. 7 Wright 400.

It is no answer to these petitioners The case cited on the argument by the that they may reach Carlisle by other learned counsel who appeared for the re

roads as was said on the argument.

It port, was not unlike the one in hand.

was said of old that “all roads lead to (Road in Jefferson and Rush Townships, Rome,” and it may doubtless be said with 2 W. N. C. 138.) Said the court below, equal truth, that in Cumberland county, “An unopened state or county road may

all roads lead to Carlisle—but when sevbe a suitable place for the termination of enty-five respectable citizens complain of a public road. When the former road is the inconvenience of access to it, and the opened, according to the duty of the report of viewers lays out a road for pubsupervisors, it would certainly be a public lic use, from which its necessity must be point, and the newly laid out road will inferred, (17 S. & R. 388) it ought to reperhaps not be opened before the earlier quire something more than the barren one. It becomes the duty of the super- technicalities here interposed, to defeat

. visors to open both for the benefit of the the public convenience. people and then the community may be We are therefore of opinion, for the accommodated with highways as fast as reasons assigned, that the first exception to required.” This was affirmed.

this report ought not to be sustained. We A stronger case than either is Spring merit under the authority of the case

think the second exception also withont Garden Road, 7 Wr. 144, the facts are im

above cited (17 S. & R. 388). There are perfectly reported—but enough appears other exceptions pending, relating to the to show that the road was prayed for and damages assessed the land owners through laid out to the line of the borough of whose property this road is laid out. They York." The petition and report show

have not been argued, and until disposed more fully that the western terminus of

of no order can issue to open the road. the road was “through the improved lands of George Welsh to a post at the line of

For the present therefore we only disthe borough of York on the east side of miss the first and second exceptions. said borough on lands of George Welsh." The fifth exception filed to that report was

Deeds without words convey no real that, "the western terminus of said road estate. has no public outlet or connection with Court plaster-Damages for breach of any other public road or highway." My | promise.

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COMMON PLEAS

that he does not take it subject to the secret C. P. of Adams County. equities of third persons.

This is very

familiar doctrine and has been repeatedly Socks v. Socks.

enforced by the Supreme Court of this Judgment—-Assignment of—-Equities be- State. In Davis v. Barr, 9 S. & R. 140, it tween original parties.

was said by Gibson J.: "It certainly is

not a general principle of equity, that a A petition was presented by the children of A., deceased, alleging

that the judgment originally given by purchaser for valuable consideration of B. to c. was to secure moneys which c., as guardian of said children, had loaned to B; that the judgment had the legal title to any kind of property, been assigned by C. to the present equitable plaintiffs, and praying the Court to set aside said assignment, and should take it subject to an equity of which that the judgment be decreed for the use of said children. HELD, That the judgment being to C. absolutely, and he had no notice.” And again on p. 141: having no ear-marks on it to show the presence of any secret equities and there being no evidence that the as

“But with any agreement between the signees had notice of such equities, the assignment will not be disturbed.

original parties inconsistent with the purRule to set aside assignment, &c.

port or legal effect of the instrument, the

assignee had nothing to do. No such The petition of Margaretta Socks, defendant in the above judgment, alleges act; and the assignee is not bound to call

agreement is within the purview of the that she being about to purchase some

on the obligor for information about land as a home for herself and family matters, the existence of which he has no made an arrangement with the guardian,

reason to suspect, the necessity of inquiry with the consent of her children, to invest being limited to want of consideration and their money in land, and that the

set off.'' money secured by said judgment against her is a trust fund, invested in the pro- cited by the learned counsel for the peti,

It would appear that the authorities perty, now and ever since occupied by tioners do not sustain his present attempt her and said children. This judgment was given to the guardian in his individual to set up the alleged equities of third capacity, and not as guardian. The judg- parties against the assignees. ment was afterwards assigned and reviv

In the case of Jacob Frantz, for the use ed, and is now held by Edward McPher- of John Garberich v. Philip Brown, I P. son, Margaretta Socks and Edward J. & W. 257, the parol agreement was beCox. The guardian died insolvent. This tween the obligor and obligee for the rule was taken to set aside the assign- benefit of the obligor, not strangers to the ment, and the judgment marked for the bond. There is no question in the case at use of the children of Lieut. John Socks, bar, affecting the existence or quan tum of deceased.

the debt. June 25, 1883. MCCLEAN, P.J. The In Mann v. Dungan, Assignee of Morris, Court is prayed that all the assignments II S. & R. 75, a set off was permitted may be deemed invalid and set aside, and between the original parties, against the the judgment be decreed and held in trust assignee of the bond. In Gochenauer et for the use of Peter Socks, Sophia Shildt, al v. Gooper et al, 8 S. & R. 203, the Elizabeth Sheely and Annie Socks, chil- question was with the assignees under the dren of Lieut. John Socks, deceased, and Insolvent Act. of Margaretta Socks, the defendant in In the case of Bury, assignee of Binkjudgment, on the equitable ground that ley v. Hartman, 4 S. & R. 186, the questhe judgment represented trust funds of tion was a payment made by the obligor said children. "It is very true that the to the obligee before notice of the assignassignee of a judgment or mortgage takes ment.

ment. So it was in Wheeler, assignee of it subject to all the defences of the obligor Baynton v. Hughes' Ex., 1 Dallas 27. against the obligee, but it is equally true In Rundle et al v. Ettwein, 2 Yeates

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VOL. IV.

No. 17

YORK LEGAL RECORD. will gain or lose by the decision ; vide

McMurray's Appeal, 13 W. N. C. 136. THURSDAY, JUNE 28, 1883.

The next witness John F. Socks does

not prove anything about the consider23, the bond, was without consideration. ation of the judgment, neither does John In Reed's Appeal, 1 Harris 476, the ques- Sheely. tion was as to the title to the land.

Peter Socks testifies in relation to it, but There is nothing in evidence whatever can it be contended that he is a compethat would have put the assignees as pru- himself and others against the act of the

tent witness ? He is directly claiming for dent men upon inquiry. I am inclined to

man who is dead. Peter must certainly the opinion that in any point of view they gain or lose by the decision in this prowere not subject to the duty of inquiry for ceeding. Neither does the calling of such latent equities as it is sought to set Peter by the respondents to depose before up against them, and that they can stand another officer remove his incompetency upon their clear legal title to the judg- Under Sect. 2 of Act 15 April 1869, a

when called to testify in his own behalf. ment. The principles stated here received party to the record of any civil proceeding recent recognition and application in ap- in law or equity or a person for whose peal of the Mifflin Co. Nat. Bank, reported immediate benefit such proceeding is in Outerbridge 150. The present claim- prosecuted or defended, may be examined

as if under cross-examination, at the inants by petition are strangers to the record.

stance of the adverse party, or any of them, The note with warrant of attorney is exe- and for that purpose may be compelled, in cuted to John Socks, Sr., not as guardian. the same manner, and subject to the same It has no ear marks whatever indicating rules for examination, as any other witthat it was for trust funds. And still ness, to testify: but the party calling for

such examination shall not be concluded further, there is no competent or sufficient thereby but may rebut it by counter-tesevidence that the judgment represented tiniony. guardian money. We have no testimony And the third section provides that the from Mr. Woods, the attorney who drew testimony of witnesses authorized by the the note, as to the nature of the debt. But act may be had by depositions, &c. what are we offered ? First, the testimony

Well, when he is called by the adverse of the petitioner, Margaretta Socks the party his testimony does not prove the obligor, who alleges in her petition that consideration of the judgment. But it she being about to purchase some land as weighs against his mother and himself, a home for herself and family, made an when he shows that he read the judgment arrangement with said guardian, with the of revival in favor of John N. Socks and consent of her children, to invest their Edward McPherson and explained to his money in said land, and that the money mother as he was able, notwithstanding secured by said judgment against her is a

the force of this may be somewhat obtrust fund, invested in the property, now

scured by other statements of his not conand ever since occupied by her and said sistent with it. children. She seeks to defeat the right Sophia Shildt, another of the parties, and effort of the assignees to collect from does not prove the issue, and she is clearly her. Her interest and attitude are directly incompetent. in conflict with the unqualified terms of The standing and testimony of the the judgment and with the interests of the last witness for the petitioners, Margaretta assignees.

Socks, sen., must be examined with some The obligee assigned the judgment note care. She is the widow of John Socks just before judgment was entered upon it. the elder, and also one of the assignees of She disputes and denies the lawfulness of the judgment. Mr. Duncan appeared for this assignment and seeks to impress upon her, but has not answered. It may be the fund a character which it does not said that she testifies against her own inbear upon the record, and all this with the terest, as an assignee of a part of the mouth of the other principal party closed judgment. But the effect of this is to rein death. She is directly interested in the lieve the estate of her deceased husband question and case before the Court? She and to benefit her consequently if that

answer

estate were solvent. Her testimony is Rule to open judgment, &c. claimed to be adverse to the act of her

This judgment is on sci. fa. and alias husband in the assignment of the judg. sci. fa. against John E. Lingg, Joseph F. ment and he is dead.

Lingg, Francina Lingg, and Jacob H. But without determining the question McMaster, guardian of Elizabeth R. of the competency of this witness, and Lingg, David A Lingg, Sarah Emma taking the testimony, what does she Lingg, Mary W. Lingg and Harry M. prove? she says: “I never saw the re- Lingg, minor children of David Lingg. ceipts. He (the old man) told me that he The petition asked to have the judgment had a judgment. He told me that he had opened, alleging that Francina was a got a judgment instead of the receipts. married woman at the time of issuing the He said nothing about giving back the sci. fa., and that her husband was not receipts. He said nothing to me about jointed in the writ. It also appeared in the receipts." Thus seriously impairing the testimony that she was a minor at the the previous statement and on cross-ex- time of giving the original judgment. amination “I can't tell what it (the judgment) was given for. My husband Wm. Heaffer conveyed the land to dedid not tell me what the note was taken fendants in consideration of the judgment for." In such uncertain, self-contradic

note in controversy. The sum of this tary testimony sufficient for the purpose judgment also included an indebtedness of decreeing a judgment of record to be of the father of these defendants to not the property of the beneficial plain- Heaffer, and the entire arrangement was tiffs of record, but for the use of strangers clear title to the land. The petition at

entered into in order to give defendants a of the record.

Still further Edward McPherson and tacked the validity of the original judgEdward J. Cox in their sworn

ment, and all the questions raised are deny the truth of the statements made by stated in the Court's opinion. the petitioner Margaretta Socks, in her June 25, 1883 MCLEAN, P. J. The petition, as to certain arrangements made petition verified by affidavit alleges a debetween her and the said John Socks, Sr., fence to the original Judgment No. 46 of for the investment of the money of her Aug. T. 1876, on the part of the first three children in real estate bought by her and named defendants, in the sci. fa. who as to the payment thereof and the receipts were the defendants in the ali. sci. fa. to given therefore. If even the testimony of wit John E. Lingg, Joseph F. Lingg and Margaretta Socks, sr., was full and per- Francina C. Lingg, and against whom fect, we might well in equity call for the upon two returns of nihil, the judgment testimony of more than one witness be- of November 15, 1881, was entered. fore depriving the assignees of their pro

No defence whatever is offered upon perty, after a revival by the defendant, of the ground of any matter subsequent to the judgment to the original assignee and to Edward McPherson, and after five the original judgment, except the coveryears have elapsed since the assignment sufficient as appears further on and there

ture of Francina and that is deemed into Mr. McPherson, and after his assignor, fore the opening of the judgment upon John N. Socks, has become insolvent, as

the two nihils would avail the defendants is represented in the petition : Burk's

Graham v.

nothing. Appeal, 39 Leg. Int. 314. Donaldson T. W. 453.

As to the judgment by confession of Rule discharged.

Jacob H. McMaster, guardian, upon the

scire facias, he has had no day in Court Adams County. in this proceeding. A rule should be

served upon him to show cause why he Heaffer v. Lingg et. al.

should not become a party and why the Judgment-Opening of-Minors.

judgment confessed by him should not be When an arrangement is entered into with minor chil- opened. It is quite plain that his act dren, through their guardiau, the rights of all parties cannot bind Elizabeth B. Lingg if she was

. children will allowed to profit by an unlawful act.

of age before the confession of judgment Defendants, being minors, gave judgment in consid by the guardian, upon the sci. ia. But eration of a conveyance of land. While of course an exe

Jacob H. McMaster is the legal guardian cution on such judgment must be restricted to the land in question, they will not be permitted to refuse to pay at this time of Sarah Emma, Mary V. and their share of said judgment and at the same time retain

Harry M. Lingg. It appears from the

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C. P. of

their interest in the land.

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