No matter what a man has done out- | before the judge to assist him in reachside the institution, the state has no right ing a proper conclusion in disposing of to degrade him; there can be no reforma- the case. He could then act intelligently tion in degradation. There is nothing in and discriminate between the defective, such treatment tending to return him to the first offender and the habitual crimsociety an honest, useful and better man. inal. "Prisoners should labor for their own well-being and to pay for their maintenance; a portion of their earnings should be devoted to the support of their families who are, in too many instances, left entirely unprovided for during the period of imprisonment. Their labor should provide them with a fund with which to begin life anew. To release them without some means of support is not only discouraging, but tends to drive them back to their old haunts and former as-provement in modern reformatories. sociations. "Facilities for this work could very easily be provided by utilizing our county jails for houses of detention, or establishing separate departments for the purpose, where prisoners awaiting trial or sentence could be kept under observation until the court disposed of their cases. Each prisoner should be studied and the defective manifesting criminal tendencies needing treatment separated from incorrigibles or those susceptible of im "As the disposition of the case should "There should be co-operation of be in accordance with the mental condimedical and psychological experts with tion and individual needs of the offender. the prison administrators and with the either custodial, reformatory, educational courts. Inmates should be kept under or otherwise, with a view to his mental. observation during confinement and be physical and moral rehabilitation, to acsubjected to expert examination for men-complish this object the state should estal and physical defects which might have a tendency to affect their future conduct. Such examinations would be of great value in connection with the administration of the indeterminate sentence and parole. "We must remember that crime is a symptom for which we should seek the reason and the remedy; the essence of the problem is not so much what the criminal is, but what has brought about his career. It is his character which presents the perplexity. Many offenders, because of physical abnormalities and mental deficiency are subjects for the physician and the psychologist rather than for the court. Yet under our present system the court must apply the remedy without any conception of the true situation." To remove this defect, Judge Osborne made this proposal: tablish institutions, or departments in existing institutions, where these cases may be studied. "All institutions should contain an observation department under the direction of the physical and mental condition of of a competent staff for the examination defectives confined there, whose duty it would be to recognize and report for transfer those so markedly deficient as to require separate treatment in institutions especially adapted to their needs. "There must be legal recognition of these defective delinquents and commitment to permanent custody." Other recommendations with reference to various minor phases of the criminal problem were made and in conclusion Judge Osborne said: "Men cannot be tortured into goodness. The knowledge which we have "Before sentence is pronounced, a gained through our experiences in the careful examination of the prisoner past, in conjunction with the intelligent should be made by medical and psycho- interest now being manifested in this logical experts in order to ascertain to subject, will modify the action of the what extent the act was due to deliber-courts and beneficially affect the methods ate intent or was the result of heredity, of treatment and management of prisunfortunate environment, physical ab- oners in our institutions to the ultimate normality or mental deficiency. The re-benefit of both society and the insult of this examination should be laid ' dividual.” face of the note thus presented, it would LANCASTER LAW REVIEW. be our duty to enter judgment in favor of the plaintiff, unless the defendant has VOL. XXXII.] FRIDAY, SEPT. 24, 1915. [No. 47 shown sufficient legal reasons to the contrary. In a suit on a promissory note by the payee against the maker an affidavit of defense is sufficient which avers that it was given for a pair of mules delivered to the defendant by the plaintiff under a parol agreement that the defendant was to feed them and the plaintiff was to procure a buyer for them and pay the note or its renewal out of the proceeds of the sale, and the mules had not been sold. In such case, while the defendant could not maintain his case on his own unsupported oath, the question of how he will be able to prove his case on the trial does not arise on consideration of the affidavit of defense which must be taken as true. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster Co., February Term, 1915, No. 44. H. M. Houser, for rule. John E. Malone, contra. The affidavit of defense admits the execution of the note. It, however, adds that it was given in payment of a pair of mules, which were delivered by the plaintiff to the defendant. It asserts that the mules were to be fed by the defendant and gotten in proper shape, and that the plaintiff was then to secure a purchaser for them, and, out of the proceeds of their sale, he was to pay the note and turn over the balance to the defendant; that the note was to be renewed, to carry out this agreement. The affidavit of defense also alleges that the mules had not been sold, that the plaintiff had made no effort to sell them, and that, under the terms of the arrangement or agreement, he, therefore, is not now indebted to the plaintiff. The plaintiff alleges that the allegations of the affidavit of defense are insufficient to contradict, alter or vary the note; that they are generally evasive and indefinite; that it sets up no legal grounds of defense, and that it fails to allege that, since the execution of the note, the defendant performed his part of the agreement, namely, that he fed the mules or got them into proper shape, or that he ever notified plaintiff to that effect, or that he ever called upon the plaintiff, June 26, 1915. Opinion by LANDIS, after so feeding the mules and getting P. J. them in proper shape, to secure a purchaser for the same, or pay the note out over the balance from the sale. of the proceeds of the same and turn The legal question raised on this motion for judgment is somewhat complicated by the apparent inconsistencies of the cases upon the subject. Thus, in Homewood People's Bank v. Heckert, 207 Pa., 231, it was held that, “in an action upon a promissory note, an affidavit of defense is insufficient which avers that the maker gave the note on the express oral agreement that he should use the money in the erection of certain buildings; that the note would be renewed from time to time until the buildings were sold, that then and not | tiff to give financial aid in the emer until then the note was to be paid, and that none of the buildings had been sold." But in Andrews v. Blue Ridge Packing Company, 206 Pa., 370, which was an action on certain promissory notes, an affidavit of defense was held sufficient which averred that the notes were given as memoranda for advancements by plaintiff to defendant on a contract under which the plaintiff was to take and sell on commission the entire product of defendant's fruit packing operations; that plaintiff had refused to take the whole product, and by reason thereof part of it was left over and lost; that the plaintiff had not accounted for the whole of the goods actually taken, had overcharged commissions on the part sold and accounted for; and that the plaintiff upon these transactions was indebted to the defendant in a greater sum than the amount of the notes sued upon. In Kennett Square National Bank v. Shaw, 209 Pa., 313, it was held, in an action on a promissory note by payee against maker, that an affidavit of defense was sufficient which averred that the note was to be discounted for the benefit of a certain corporation, and setting up a written agreement by payee to look to the dividends of said corporation for payment. In Keller v. Cohen, 217 Pa., 522, which was an action on two promissory notes, an affidavit of defense was held sufficient which averred, inter alia, that the maker was induced to accept the loan, sign the notes and execute and deliver the assignment on the faith of the representation made by the payee that the loan should be paid out of the immediate proceeds of profits derived from the sale of umbrella tubes made. and not otherwise, without which assurance and inducement the maker would not have accepted the loan, signed the notes or executed the assignment. In Gandy v. Weckerly, 220 Pa., 285, the action was upon a promissory note for $1.250. It appeared that the plaintiff, the payee of the note, was the president of a corporation of which the defendant, the maker of the note, was treasurer. The corporation being in want of funds, the defendant was requested by plain gency. The defendant in an affidavit of defense averred that the plaintiff "proposed to me that if I would loan to said company the sum of $1,250, taking its note there for at one year, before which time he said it would be easily able to pay it, he would sell to me 200 shares of its stock for the sum of $1,250, and take my note therefor, which note I would not be called upon to pay except out of and from the moneys to be repaid to me by said company in payment of its note held by me as aforesaid. He said he would make the note to him payable at the expiration of one year, because within that time the note of the company held by me would be paid, but that if, from any cause whatever, the amount of the note was not paid to me, I would not be called upon by him to pay the note to be given by me to him in payment of said stock. Relying upon this agreement that I would not be called upon to pay said note until the note given to me was paid, and without which agreement on his part I would not have purchased said stock or given my note therefor, I accepted his terms as above, loaned the company the sum of $1,250, taking its note therefor, purchased said stock, and gave to the plaintiff my note therefor, being the note in suit." The defendant further averred the refusal of the company to pay its note to him, and that he was and had been at all times ready to surrender that note, and his stock for the note in suit, or to pay to plaintiff as soon as he himself was paid by the company, or to return the shares of stock for the note in suit. It was held that the affidavit of defense was sufficient to prevent judgment. Mr. Justice Brown, delivering the opinion, in commenting upon the case of Homewood People's Bank 7. Heckert, supra, said that "the question of the effect of a contemporaneous promise as the inducement to the giving of the obligation was not passed upon because apparently not raised." In Faux v. Fitler, 223 Pa., 568, it was held that, "in an action on promissory notes, an affidavit of defense is sufficient which avers that the defendant, the maker, was induced to sign the notes by a contemporaneous agreement on the part of the plaintiff, the payee, that if losses should occur to an amount named in a partnership between the parties the note should not be enforced, and that such losses had in fact been made." In Martz v. W. H. Wilcox Company, 57 Sup., 169, it was decided that “a contemporaneous parol agreement made at the time a promissory note was given providing that the note should be held merely as a collateral security for a particular purpose will be sufficient to prevent the collection of the note, if it арpears that the contemporaneous agreement was violated;" and in Miller v. Fry, 57 Sup., 473, that "where a person is induced by a contemporaneous parol promise to sign a promissory note which he would not have signed except for the promise, a subsequent breach of the promise is a fraud upon his rights, and he may set up the breach as a defense to the note, and prove the promise by parol evidence. He is not required in his affidavit of defense to set forth the man ner in which the facts therein alleged will be proved, nor the evidence by which they will be substantiated." Whether or not the defendant can, by competent evidence, prove upon the trial the facts which he alleges, is, of course, not a matter of importance at this time. It would seem, however, from the cases thus fully quoted from, that, taking his version of this transaction as true, he has the right to go to a jury. He, of course, cannot then maintain his conten tion by his own unsupported oath. We feel that, under the circumstances presented, the rule for judgment must be discharged. Rule discharged. Landis Machine Company v. Zellner. Certiorari - Probated Claim-Produc tion of Testimony-Act of July 7, tion of Testimony-Act of July 7, 1879, P. L., 194—Justice of the Peace. It is no ground for setting aside the proceedings, that the justice's record fails to show that the writ was served in the county. The legal presumption is that it was served where there was legal authority to serve it. 66 The second specification is as follows: The record does not show that a certi fied affidavit of claim was served upon the defendant." It is true the record does not show that a duly certified copy of plaintiff's affidavit of claim was delivered to the constable and by him served at the time and in the manner that service was made of the summons in the case, where it does recite that the plaintiff had filed such an affidavit-yet, under the Act of July 7, 1879, P. L., 194, authorizing such procedure, the filing and service of such an affidavit is not compulsory, but is only for the purpose of enabling the plaintiff to take judgment for want of an affidavit of defense, if the defendant does not, by that means, reply to the affidavit of claim by the time the writ is returnable. A judgment for that kind of default was not taken in this case. If it had been, the proceeding would have been illegal, for the reason set out in the specification. The judgment purports to have been taken by reason of what was presented on the day fixed for return-and not for a lack of an affidavit of defense. "The plaintiff is not obliged to file an affidavit of claim; he has his option to do so, or proceed in the ordinary way;" Cook v. Minick, C. C., 603. It may well be that, after making the affidavit of claim, the plaintiff did not see fit to follow up that special form of procedure, and intentionally allowed the case afterwards to progress in the ordinary way. The record is entirely consistent with such an inference. In that condition of things, the lack complained of in this specification would not be fatal. In a proceeding of this kind, it is our duty to adopt that view of the case, rather than to reverse because the record does not show compliance with a form of procedure that may not have persistently attempted to have been followed up at all. This specification is overruled. Kulp, 385; Chambers v. Reynolds, 2 Dist., 402; Pearre v. White, 4 Dist., 504. "It is essential that the record should disclose that evidence was heard to establish the plaintiff's claim. Neither presentation of the demand by an agent authorized to make the claim, nor a sworn statement of claim admitted in evidence is sufficient to warrant the entry of a judgment by a justice of the peace. Where the record shows that no proofs were heard, a statement therein that judgment was entered, after hearing all proofs' will not give the judg ment validity; Wolf v. Sailer, 10 Dist., 601; Young v. Getz, 6 Dist., 78. The record says: "Plaintiff, Landis Machine Co., having filed a sworn affidavit of claim of $22.74 for goods sold and delivered to defendant, C. D. Zellner, demand $22.74 and interest. And now, on this 3rd day of April., 1915, after hearing all the proofs and allegations of the defendant and all testimony being offered by him, judgment is withheld. On the 10th day of April, 1915, judgment is publicly entered against C. D. Zellner, defendant, and in favor of Landis Machine Co., plaintiff, for the sum of $22.74, int. $1.25 and costs $3.60." It is obvious that the justice, accepting the affidavit of claim as proof, and without any agent for the plaintiff being present-(unless, as is sometimes the case, the justice was himself acting as agent)-called on the defendant to meet the plaintiff's claim, as so made out, and required him to submit his testimony The third specification is: "The record does not show that any proof was taken in support of the plaintiff's claim." The record only mentions the introduction of evidence against the claimnothing being specifically or even generally mentioned about evidence in support of the claim. The record does not even show that, on the day fixed for hearing, any one at all appeared before the justice in behalf of the plaintiff. If any evidence in support of the claim was con--and then, withholding judgment to no sidered by the justice-(judging from specific date, finally afterwards entered what appears in the record)-it must judgment for the plaintiff, without givhave been the affidavit filed by the Ma- ing any further special notice to defendchine Company, the plaintiff. But that ant. A court of record may, through affidavit would not be a sufficient basis the aid of rules and acts of assembly, for a judgment in favor of the plaintiff. give to a probated claim, unreplied to by "A justice's judgment will be reversed any counter pleading, a probative value, on certiorari, where the transcript shows that will support a judgment after it has that the only evidence offered for the once been given-but a justice of the plaintiff was a probated copy of a book peace-not being clothed by law with any account;" Munroe v. Klepser, 5 Dist., authority to invest an affidavit of claim 60; George v. McCutcheon, 8 Dist., 591. with a probative value not contemplated "Judgment cannot be entered without by the act of assembly-can only give hearing proof in support of the plain- judgment for a plaintiff when based on tiff's claim, though the defendant re-proofs and allegations"-and this fuses to defend;" McCowan v. Ward, 5 judgment does not stand on such a basis, |