The right of appeal, by which a trial by jury is given, is a great constitutional right, securing a precious privilege to the citizen, and one of which on principle he ought not to be deprived by the wilful or accidental omission of a justice of the peace.

June 22, 1914. STEWART, J.

This is a rule to show cause why an appeal from the judgment of a justice should not be entered nunc pro tunc. The important and undisputed facts are that a hearing of the case was had on December 29, 1913. Judgment was entered on January 3, 1914. On January 6th, at 8 p. m., the squire mailed to defendant's attorney a letter which was received on January 7th. The letter is as follows:

"Pen Argyl, Pa., Jan. 5, 1914. Wm. Schneller, Esq. : Dear Sir:-Judgment rendered against defendant, for $100.00 and cost of suit. Yours truly,

Isaiah Martin, J. P."

On January 12th the defendant's attorney notified the squire that he would appeal and asked for a transcript. On January 16th the squire sent a transcript to defendant's attorney, which, however, was incorrect in that it did not state that any judgment had been entered at all. There is some question whether there was another page of the transcript enclosed, but we think it clearly appears from the original attached to the petition, that the mistake was that the squire omitted the other page. The transcript sent has his official seal attached to it and the certificate is signed "Isaiah Martin," in the same handwriting as the two letters referred to. On January 24th defendant's counsel and his client tried to take an appeal, and the squire refused it because he said they were too late. The important disputed fact is whether the squire, on December 29th, announced that he would render his judgment on the 3d or not. The squire and plaintiff's counsel and plaintiff herself testify positively that he made that announcement. The defendant's counsel testifies positively that he did not hear the announcement made. The depositions show: Q. What occasioned you to say that he had ten days to render his decision? A. When he said

that he would reserve his decision, as a matter of courtesy I said you have ten days and that he should take his time. Q. Did he not say that he would render his decision on January 3rd, at 7.00 p. m.? A. I do not remember that, nor did I hear it." The first question has reference to an admitted statement made by defendant's counsel, that the squire would have ten days in which to render his decision. All heard that. On the argument it was contended by the defendant that the plain reading of the letter of January 5th, supra, implies that the judgment was entered on January 5th. On behalf of the plaintiff it was contended that the plain reading of the letter referred to some past date on which judgment had been rendered, and that it was the business of defendant to find out what that date was. It is true that a

66

note begins to run from its date, and a letter usually speaks from its date, but if the last statement that the defendant's counsel made, was that the squire had ten days in which to enter the judgment, and he did not hear the other announcement, he might rely on January 5th as being the date of the entry. The squire must have been in a hurry when he wrote the letter because he dated it 1913 when it plainly should have been 1914. He should have stated "Judgment was rendered on the 3rd against the defendant," &c. The learned counsel for the plaintiff concludes his brief as follows: "To allow this appeal is to say that an appeal may be allowed to be entered nunc pro tunc by setting up that one of the parties failed to hear some remark made by a justice." We would not subscribe to that doctrine. Each case must be determined on its circumstances. We have here the positive statement of the defendant's counsel that he did not hear the remark made. When he received the letter of the 5th, what did he do? He immediately wrote for a transcript and received one that afforded him no information as to the time for an appeal, and then within the time dating from January 5th, he went with his client to take his appeal. Can it be held that he was negligent? It is manifest that his negligence consisted in not hearing the squire's remark. If after stating that

Your sincerity and genial engaging manners attracted and endeared you to us, and those of us who know you the most intimately admire and care for you the more.

But our individual loss is magnified by that of the State. It, and all its people, in losing you, lose a Judge who for so many years has, using Judge Story's language, faithfully ministered at the altar of justice. At the end of your long service on the bench in this great State, you can, without fear, repeat the language of the Great Lawgiver and Judge of Israel just before his death when he asserted, that he had never as a Judge wrested judgment, or respected persons. or taken a gift, however speciously it was disguised.

We testify that such an assertion by you would be true, and we now and here make it for you.

In the decision of any cause a personal element often unconsciously does enter into, and perhaps influences, the result. It may be a bias in favor of or against a certain class of persons; or in condemnation or approbation of the claim made or defense made in some certain class of cases; or for or against certain individuals; or the effect of the decision on some favored view of a current public question. That such bias, which does affect the conclusion should be as far as possible eliminated, is obvious to all.

Our common law is necessarily patchwork. Hundreds of years of hard work by very many learned and conscientious men by legislation and repeated decisions have produced it piece by piece. It is the wisdom of the ages. Admittedly, changing times 'require changes in the law, and the legislative department of government, as it often has in the past, can, and should, cautiously enact the remedy when the need thereof is apparent. This is in accord with our theory of government, that the Legislature shall make the law, the Courts shall in

To adopt a rule which some seem now to favor, by which in any case the judge may disregard precedents and rule as the prevailing public sentiment seems to ask, or as he may himself think is on the whole advisable, is to center a most dangerous power in one or a few men elected, it may be, for a long term of years or appointed for life. It makes almost useless the learning of the past; it increases the chance of bias in decisions; and in the end it bears most heavily and unfortunately upon the average man.

Please remark that I speak of precedents and principles used to arrive at a decision, and not of the mere rules of practice which all courts, from time to time, change as circumstances seem to require.

It is greatly to your credit, sir, that you have stood firm by the ancient ways. You sought in each of the cases before you to do right, and, to ascertain what the right was, you did as your predecessors for a hundred years have done,— used the appropriate tools to gain the desired end. From tangled facts, you elicited those which were material, and, applying to them the assured and tried principles and decisions of the law, you came to a just conclusion. You never thought that your own opinion of what should be done in any given case or any public clamor of the day should control, for you knew that to tread such a path unsettles the law and leads to favoritism and rank injustice. You were always loyal to your sacred duties as a Judge.

Then you were so kindly and so fair in your great office as Chief Justice. You did enforce, as you had to, the rules of your Court, but you did so in so kindly a manner that one blamed oneself and not you that he gave you cause to do so.

Pennsylvania has had many great Chief Justices, and this within, the knowledge of some of us here present. Sharswood, Agnew, Mitchell and Thompson are some of those, but no one of them left us more regretted than the Bar now regrets your departure.

And now, sir, you see around you very many of those who in this county have for many years argued cases before you,

and you also see many of the judges of courts of original jurisdiction whose decisions you have reviewed. You miss, as we all do, some of those who were, in their day, among the ablest members of our bench and the Bar. To name a few, I recall Judges Stowe and Collier and White and Ewing and Bailey and Hawkins and others, each so long upon the Bench of Allegheny County; and of members of the Bar I recall McCleave and Rodgers and Ferguson and Miller and Shoyer and so many others. Each of them has passed over and it may be -I think is quite appropriate to pause a moment to express our regard for them and our sorrow that they are not with us tonight.

We who remain, meet here tonight to do you honor-to testify, as we each truthfully can, that you yield up your great office with the thanks of the Bar for the honest, able and conscientious manner you have fulfilled the duties of that high place. We respect you. We would, oh, so gladly, keep you, did not our fundamental law forbid.

As we must part, we now, one and all, salute you. We most earnestly wish you well. We know your ermine is unspotted, and we name you as an equal with the Great Chief Justices of the past. We wish you many years of health and prosperity.

In replying Chief Justice Fell paid a high compliment to the attorneys of the Allegheny County Bar, saying in part: Gentlemen:

I appreciate most highly the honor done my colleagues and myself by the Allegheny County Bar Association and I am grateful for your kind expression of respect and good-will.

In the years that I have been with you I have formed a strong attachment to the Allegheny Bar. No bar in the State has been more helpful to the Court in its work. No bar has sustained a higher standard of professional conduct. The fairness and courtesy and consideration of its members in their relations to each other and to the Court have made our intercourse most agreeable. In the mastery of the rare art of presenting

causes clearly and concisely, of knowing what to say and how to say it and of quitting when done, your bar has had no equal.

With the present term of court I shall have ended nearly a half-century of work in our profession, thirty-eight years of which will have been spent on the bench, twenty-one of them in part with you. During these years as I have passed from the junior bar to become the oldest in commission of the Judges of the Commonwealth, time has wrought many changes and over the retrospect are the commingled shades of light and of darkness, of sunshine and of shadow. At my own bar there are left but few men who were in practice when I entered it and there is no judge in Philadelphia who was in commission when I went on the

Common Pleas Bench. In Allegheny County I think there is but one judge who was in commission when I first met you in 1894 and there are now comparatively few members of your bar who were then in active practice in the Supreme Court. There has been no decadence in the bar or the bench. The men who have come upon the scene and on whom now rests the duty and the responsibility to secure the just and stable administration of the law, are fully equal in character and attainments to their predecessors. But I realize with sadness, and the thought has roads that death has made in your ranks been quickened as I have noted the inthe past year, the truth that,

"As life runs on the road grows strange,
With faces new, and near the end,
The milestones into headstones change,
'Neath every one a friend."

In giving up a work in which I have been so long engaged, my chief regret will be the severance of my closer personal and official relations with my colleagues, and with the bench and the bar of the State. They have been to me more than co-workers, they have been my friends, and it will be the breaking of endearing ties. Among my keenest regrets will be the parting with the bar of Allegheny County and of Western Pennsylvania.

$199.52. As of August 22, 1910, there

$99.52 to be due, and it is for this

Orphans' Court.

Estate of Wm. K. Winters, dec'd. Decedents' estates-Claim for work done -Payment.

The books of a claimant against a de

a

cedent's estate for work done, showed charge of $199.52 and a credit dated August 22, of a note for $100 making his claim $99.52. A receipted bill for $99.52 was produced undated, also note of decedent dated August 28 for $100 endorsed to the claimant and paid.

Held, that the claim should be disallowed. Adjudication. O. C. of Lancaster County. February Term, 1914, No. 33. Coyle & Keller, for claimant.

T. Roberts Appel, for accountant. October 29, 1914. By SMITH, P. J. The only question to be considered is whether or not A. B. Demmy has proved a claim against the estate. The widow, Annie W. H. Winters, who is the executrix, has contributed from her independent estate sufficient to meet all of the decedent's obligations and exhibits an account free from commissions and attorney's fees, with balance enough to meet the present demand.

By Demmy's book of original entries it appears that he had painted twohouses for William K. Winters and also did paper-hanging. The work was begun on the first house September 4. 1909, and on the second, April 9, 1910. The charge on account of the first is $107.53. and for the second $99.52, which includes $12.38 for paper-hanging. There is a credit as of April 7, 1910, of $7.53, and a balance of $100.00 was struck on April 9, 1910, the date on which the second job of painting was undertaken. Charges follow for the work and materials which make the bill of $99.52. To the balance of $100.00 was added the $99.52, making a total of

made.

In behalf of the estate there were offered a bill dated March 31, 1910, for the $107.53. on which Demmy receipted. for $7.53; a bill dated June 21, 1910, for wall-papering amounting to $12.38, which is receipted in full by Demmy; a bill dated July 21, 1910, for the $99.52, which includes the wall-paper bill, and which is also receipted in full by Demmy. None of the receipts are dated. This would balance the account if the note for $100.000 has been paid, and as evidence that it has been the executrix offers a note dated August 28, 1910, made by William K. Winters, payable ninety days after date to the order of Aaron Demmy for $100.00, and endorsed A. B. Demmy. dorsed A. B. Demmy. This note was paid. Why the claimant gave credit for a note on August 22, 1910, and a corresponding note is dated August 28, 1910, we have no way of finding out, but it undoubtedly is the fact that the testimony is unimpeached showing that he has received as much as he alleges Winters owed him, and therefore there is no alternative but to disallow the claim.

The balance is awarded on account of compensation to Annie W. H. Winters, the executrix.

* * * *

Common Pleas--Law

Farmers Trust Co. v. Byron Franks. Judgment as collateral-Change of

purpose.

Parties may change the purpose for which a

judgment is held as security and upon payment of the loan for which the judgment was originally given as collateral security it made afterwards where third parties are not may be continued as security for other loans affected. It would be inequitable to permit a debtor to repudiate such agreement after his judgment creditor had acted upon it.

Rule to open judgment. C. P. of Lancaster County. August Term, 1912, No. 194.