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 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. (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 December, 1853, took place before the conviction of the 7th of the same month. There is no foundation in law for the first error, and the second is unsupported by the facts. The third is, that "it does not appear that the defendant was in Court, either during the trial or sentence." It appears by the record, that the plaintiff in error came into Court, and entered into recognisance for his appearance to answer the indictment; that he did appear and plead not guilty, and was tried and convicted on the same day; and that he was sentenced four days afterwards. It does not appear that he absented himself after his appearance and plea; and this Court will not presume that he forfeited his recognisance, and that a Court of competent jurisdiction violated the constitution by trying him in his absence, and pronouncing sentence against him without giving him an opportunity of being heard. His appearance being renewed when the issue was joined, he is presumed to continue in Court during the further proceedings in the cause. This is the rule which governs in civil cases. It is founded on good sense, and is equally applicable to criminal proceedings. The objection which rests upon the opposite presumption belongs to a generation of sickly technicalities begotten by judicial sympathy upon a sanguinary code, and fostered by institutions too far removed from the people to be influenced by their practical views of justice and reason. It is time that the cobwebs should be swept from our temples of justice. The progress of popular sovereignty, and the constant practice under its influence, of selecting the clerks of our Courts from among the plain men of the country who are entirely unskilled in the technicalities of the ancient common law forms, demand that our code of procedure should be influenced by a sprinkling of common sense. In practice it is so, and in sanctioning the long continued usage in making entries of record in our criminal Courts, we do no more than recognize the established common law of the State. Judgment affirmed. Dunn v. The Commonwealth, 6 Barr,384; Jacobs v. The Commonwealth, 5 S. & R. 314; Prine v. The Commonwealth, 6 Harris 103; Jewel v. The Commonwealth, 10 Id. 94; Holmes v. The Commonwealth, 1 Casey 221; Taylor v. The Commonwealth, 8 Wright 131; Commonwealth v. Drum, 8 P. F. Smith 9; Bishop's C. Procedure, vol. 1 22 682, 925. In the Supreme Court of Pennsylvania-Pittsburgh. HAZLETT V. THE COMMONWEALTH. (Vol. II., p. 114, 1854.) 1. The Court of Quarter Sessions has no jurisdiction of the crime of burglary. 2. Where an indictment for burglary appeared to have been found in the Court of Oyer and Terminer, and the docket entries of the trial, conviction and sentence were made in the Quarter Sessions, the Supreme Court, on reversing the judgment, will remand the prisoner to the jail of the proper county, that the Court may amend the record if the mistake is merely clerical, or that the indictment in the Oyer and Terminer may be proceeded with, in case the trial and conviction took place in the Sessions. ERROR to Quarter Sessions of Cambria County. This was an indictment for burglary, entitled in the caption, "in the Court of Oyer and Terminer for the County of Cambria." The docket entries and minutes, as certified on the record, are as follows: "Among the records of the Court of Quarter Sessions of the Peace, in and for the County of Cambria, it is, inter alia, thus contained: "Commonwealth v. Richard Hazlett and Daniel Smoy. No. 14, Sept. Sessions, 1853. Indictment, Burglary. September 6, 1853, a true bill. September 9, continued. December 6, 1853, defendants being arraigned, plead not guilty et de hoc. District Attorney, Similiter-issue. Jury called and sworn-who say that they find defendants guilty, &c." Three errors were assigned by T. J. Fox Alden, Esq., counsel for plaintiff in error: 1. The Court had no jurisdiction. 2. It does not appear that defendant was tried before sentence. 3. It does not appear, that defendant was in Court at the time of the trial or sentence. The learned counsel referred to the case of Sir John Ramorney in Walter Scott, as being the only authority for the principle, “hang a man first, and try him afterward." |