In the Supreme Court of Pennsylvania.

HILL v. ROGERS.

(Vol. II., p. 110, 1854.)

In an action on the case for negligence against the owners of a tow-boat for an injury done to a boat which she was towing, it is no defence that the captain of the latter gave directions and advice to the pilot of the towboat, which he followed at the time of the accident.

ERROR to the District Court of Allegheny County.

1

The opinion of the Court was delivered, October 17, 1854, by LOWRIE, J.-The jury had all the evidence before them that was proper, and have decided that the injury here complained of arose from want of ordinary care and skill on the part of the defendant below.

But, as a test of the question of care, the defendant prayed the Court to instruct the jury, that if the owner of the boat in tow interfered with the management, and gave directions to the pilot of the tow-boat, which he obeyed, the defendant is not responsible for the consequences of that obedience.

The evidence on this point was, that when the danger was discovered, the engine of the tow-boat was stopped, and then the owner of the boat in tow cried out, "For God's sake, go ahead," and at the same time the captain of the tow gave the order, "Go ahead," which was done, and the accident then occurred.

We do not think that this evidence justifies the point put by the defendant, or that any jury could have properly found in his favor under it, if the point had been affirmed. The captain and owner of the tow-boat were bound for the care with which the trip was performed, and he had no right in a dangerous position to receive such an expression otherwise than as an opinion of another in relation to the best mode of escaping the danger. The question still remained open, did he use ordinary skill in avoiding or escaping the danger? The jury have decided that he did not. Judgment affirmed.

In the Supreme Court of Pennsylvania.

PENTLAND . MCCLELLAND.

(Vol. II., p. 110, 1854.)

1. In a suit by the payee of a promissory note against a third person who had irregularly endorsed it, the defendant is prima facie liable for the amount of the note, and an affidavit of defence which relies solely on the inadequateness of the endorsement to sustain the action, is insufficient. 2. Kyner v. Shower, 1 Harris 444, sustained.

ERROR to the District Court of Allegheny County.

This was an action of assumpsit, brought by A. H. McClelland against A. W. Pentland, on an irregular endorsement of a promissory note, of which the following is a copy:

"PITTSBURGH, July 1, 1854. "$320. Twelve months after date I promise to pay to the order of A. H. McClelland three hundred and twenty dollars, without defalcation, value received.

Endorsed "A. W. Pentland."

"ALEXANDER BLACK."

The defendant's affidavit stated that he had a full defence "in that the plaintiff is the payee of the note sued upon, and which is alleged to be endorsed by the defendant, and consequently cannot recover from a subsequent accommodation endorser."

The Court below entered judgment for want of a sufficient affidavit of defence. This was assigned for error.

Messrs. McCandless and Selden, for plaintiff in error, cited Taylor v. McCune, 1 Jones 467.

Messrs. Flanegin and Hasbrouck, for defendant in error, cited Kyner v. Shower, 1 Harris 444.

PER CURIAM.-If we were to follow the case of Taylor v. McCune, 11 Penn. St. 467, we should feel inclined to reverse this judgment, on the ground that the plaintiff's affidavit shows no cause of action; but the later and contrary case of Kyner v. Shower, 13 Penn. St. 444, seems to us better founded, and to

require a different conclusion.

And as the defendant depends entirely on this supposed weakness of the plaintiff's case, the judgment is right.

Judgment affirmed.

See Leech v. Hill, 4 Watts 448; Jack v. Morrison, 12 Wright 113; Fegenbush v. Lang, 4 Casey 193; Schollenberger v. Nehf, 4 Id. 189; Barto v. Schmeck, 4 Id. 447; Steininger v. Hoch's Exr's, 3 Wright 263; Ins. Co. v. Bowman, 8 Id. 89; Smith v. Kesler, 8 Id. 142; Heilbruner v. Waite, 1 P. F. Smith 259; Schaffer v. Bank, 9 Id. 144; Murray v. McKee, 10 Id. 35; Ross v. Espy, 16 Id. 481; Becker v. Levy, 2 Amer. L. R. O. S. 444.

In the Supreme Court of Pennsylvania-Pittsburgh.

HOSKINSON'S EXECUTOR v. BRADFORD.

(Vol. II., p. 114, 1854.)

An action of covenant against a lessee, in which there is only a count for a breach of a covenant to leave the premises in good repair, cannot be sustained during the continuance of the lease.

ERROR to the Common Pleas of Greene County.

This was an action of covenant, commenced by the plaintiff's testator before a Justice of the Peace, on a written lease, dated November 25, 1847, for two years, commencing 1st April, 1848, in which the lessee covenanted to leave the premises in as good order, condition, and repair as he found the same. The suit was commenced 16th March, 1850, and before the defendant had left the premises. The Court, Gilmore, P. J., directed a verdict for defendant, on the ground, that under the breach alleged, the action was prematurely brought. This was assigned for error.

Downey and Purman, for plaintiff in error, cited 6 B. & C. 327; 11 Mass. 302; 6 Watts 262.

The case was argued by James Lindsey, Esq., for defendant in

error.

The opinion of the Court was delivered by

LOWRIE, J.-The plaintiff declares in covenant and the only covenant that is alleged to have been broken, is one to leave the farm in like good order and repair that he found the same, usual wear and tear excepted, and the breach offered to be proved is that which avers that the defendant did plow up and sow down, in wheat and rye, five of the largest fields on said farm, containing seventy-five acres, which, at the time of the lease, were covered with timothy and other good grass, and contained twentyfive acres more than one-half of the tillable lands of said farm, exclusive of the meadows.

When the evidence to prove this breach was offered, it was objected to, because the declaration contains no count of a covenant to which such a breach could apply, and the Court rejected the evidence because the suit had been brought before the expiration of the term.

Is either of these reasons valid?

Perhaps the covenant to leave the property in good order and repair may be regarded as including all the duties of good husbandry. And if it does not, the duty is implied in the relation of landlord and tenant: 5 T. R. 373; 3 E. C. L. R. 6; 2 Esp. N. P. 590; Com. L. & T. 188, 198; 4 East 154. And the relation being, in the present case, instituted by covenant, this duty would be an implied covenant. If the plaintiff had counted on this latter covenant, possibly the act of ploughing up and seeding an undue proportion of the land in the last year of his tenancy, might have been laid as a breach of covenant as soon as done. But he has counted for it on a covenant to leave the land in good order, which cannot be broken until it is left in bad order. right of action does not arise until the end of the term.

The

Judgment affirmed.

LEWIS, J., and WOODWARD, J., dissenting.

In the Supreme Court of Pennsylvania-Pittsburgh.

HAZLETT V. THE COMMONWEALTH.

(Vol. II., p. 114, 1854.)

1. The Court of Quarter Sessions has jurisdiction of the crime of larceny. 2. Where a record of a trial and conviction for larceny shows that the defendant pleaded "not guilty,” and that on the same day a jury was sworn and returned a verdict of guilty, and that sentence was pronounced in a few days afterwards, it will be presumed that the defendant was present at the trial and when the sentence was pronounced.

ERROR to Quarter Sessions of Cambria Co.

This was an indictment for larceny, entitled, found, and tried in the Court of Quarter Sessions of Cambria County, against Harman Paul and Richard Haslett. Paul was acquitted on the 9th September, 1853. On the back of the indictment was the usual form of issue, as follows:-"And now to wit, December 7th, 1853, Richard Haslett pleads not guilty.' District Attorney, Similiter-issue." There was no minute on the docket of an arraignment of Haslett, nor of his plea. The next entry immediately after that of Paul's discharge, is "7th December, 1853. Jury called and sworn, who find defendant 'guilty.' 11th December, Court sentence, &c."

T. J. Fox Alden, for plaintiff in error, assigned the following specifications in error.

1. The Court had no jurisdiction.

2. It does not appear that the defendant was ever called and arraigned.

3. It does not appear that there ever was a trial by jury. 4. It does not appear that defendant was present in Court when sentence was pronounced, or during the trial.

Mr. Hutchinson, District Attorney, submitted the case in a brief printed argument.

The opinion of the Court was delivered by

LEWIS, J.-We know not why the counsel for the plaintiff in error should suppose that the Court of Quarter Sessions has no jurisdiction of the crime of larceny; and we are equally unable to imagine his reason for believing that the sentence of the 11th