amount at the present time claimed to be due by the plaintiff is $72.50, with interest.

By the affidavit of defense, the defendant admits that he executed the lease, but he alleges that the plaintiff promised him that any repairs that might be necessary to put the house in tenantable condition would be made, and that, when the plaintiff had prepared the lease, the defendant signed it upon the express condition that if any repairs should be found necessary, the plaintiff would have them made. It is alleged that the defendant moved into the premises on February 4, 1915, and that, some time thereafter, the particular dates of which are not specified, he found, in heavy rains, the water at the angle between the main and back buildings came in through the walls and stood in drops on the inside, and that, in four rooms of the house, the walls became so damp and wet that they were mouldy, and that water also ran down on the inside of a bay window located in the front part of the house in considerable quantities. He asserts that he notified the plaintiff to have these necessary repairs made, but the plaintiff failed to do so, and that, thereupon, he gave the plaintiff notice that he would move on September 1; that about that time he did move, and upon so doing he delivered the keys to the plaintiff's place of business. He also asserts that, about the middle of August, the plaintiff put up a sign for rent on the house. These are practically the facts upon which he relies as a defense to the present action.

The law is, that there is no implied covenant arising out of the relation of landlord and tenant, whereby the landlord warrants that the leased premises shall be tenantable, nor is it implied thereby that the landlord undertakes to keep the premises in such condition. Therefore, it is no defense in an action for rent that the demised premises were not in tenantable condition. Reeves v. McComeskey, 168 Pa., 571. In Jackson v. Stewart, 31 Sup., 58, it was alleged that the demised building was not habitable and the defect complained of was dampness. Henderson, J., in the opinion of the Court, said: "After having had an opportunity to inspect the premises, the appellants are not in a situation to complain that the location of the house was such as to create dampness; nor does the statement of the agent that he thought the

dampness discovered by one of the defendants was owing to the fact that the house had been closed, relieve the defendants from the responsibility imposed upon them by the examination made. There being no provision in the lease for repairs by the lessor, a tenant cannot defend against the payment of rent on the ground that the premises are not in a tenantable condition: Kline v. Jacobs, 68 Pa., 57; Huber v. Baum, 152 Pa., 626. .... If the dampness was due, as alleged by one of the defendants' witnesses, to 'a very heavy rain in the summer and the water settled at the front of the house and at the back of the house,' the condition was one for which the landlord was apparently not responsible and one which the defendants might as easily anticipate as the owner. The defendants leased with their eyes open as to the location of the house, and it does not appear from the evidence that its condition changed after the execution of the lease, except as it may have been affected by the heavy rain referred to." It was also held in that case that "the defendants did not relieve themselves from their covenant by leaving the key of the house at the office of the plaintiff's agent;" that, "if the landlord had accepted the key, such act would have amounted to a dissolution of the tenancy, unless he informed the tenants that he would hold them for the rent;" but, as in the case now before us, there was no evidence that the key was accepted or that the landlord released the tenants. In Moore v. Weber, 71 Pa., 429, it was also held that "there is no implied obligation on the landlord to repair; nor does he undertake that the premises are fit for the purposes for which they are rented, that they are tenantable or shall continue so." As there is no covenant in this lease for repairs to be made either at the time of entry or subsequently, it would, therefore, appear on the face of the papers that, under the law, the rent claimed is due and owing by the defendant.

Is, then, this situation changed by the allegation that the house would be put in tenantable condition, or that, if repairs should be found necessary, the plaintiff would have them made? It has been decided that a contemporaneous parol agreement made at the time a written agreement is entered into, which is the inducement for the signing of the written agreement, is good between the

parties, and that the violation of such contemporaneous agreement is a defense in an action brought upon the written agreement. Gandy v. Weckerly, 220 Pa., 285; Martz v. Wilcox Company, 57 Sup., 169; Miller v. Fry, 57 Sup., 473; Huye v. Leed, 32 Lanc. Law Review, 377. If that principle applies in the present case and the allegations as to the parol agreement are sufficient, it would follow that the rule must be discharged. I do not, however, think that it covers this case. The words of the affidavit of defense are uncertain in their application, and seem to me to set forth, not a continuing promise to repair at all times during the term of the lease, but a promise that if, upon the defendant's entry on the premises, repairs were necessary to render the house habitable, the plaintiff would make them. There is no allegation that the house was in an uninhabitable condition at that time, or in fact that any repairs were then necessary for its occupancy. If the house was then in a tenantable condition and there were then no repairs found necessary, the fact that subsequently the water came in is not a sufficient defense. Again, the mere fact that water came into the house on occasions of heavy rain afterwards does not show such lack of repairs as would enable the defendant to cancel the lease. Every one knows that bricks are porous, and, in heavy rain, under some circumstances, water comes through the heading courses of the ordinary nine-inch wall. If it does, it is bound to leave dampness behind. The only remedy for this is, not repairs, but either the rebuilding of the wall or the stripping and replastering of it. But surely no sensible person would contend that such a burden is imposed upon a landlord, unless he specifically assumes it.

Nor does the fact that the landlord put up a notice and endeavored to rent the house lessen the defendant's liability. If, by so doing, he attetmpted to save the defendant from loss, I do not see upon what ground the latter can complain. In Reeves v. McComeskey, supra, it was held that "the putting of a bill 'for rent' or 'for sale' on premises vacated by a tenant before the expiration of his term does not deprive the landlord of his right to collect the rent until the expiration of the term.”

It appears to me that the affidavit of defense is insufficient, and for this reason the rule should be made

absolute. This is accordingly done, and judgment is entered in favor of the plaintiff for $72.50, with interest from February 11, 1916, making $74.40.

Rule made absolute and judgment for plaintiff and against defendant for $74.40.

COMMONWEALTH v. MAX ECKER.

Justice's Record-Summary Conviction-Cruelty to Animals -Act 29th March, 1869-Certiorari.

In order to sustain a conviction under act 29th March, 1869, P. L. 22, which makes it a misdemeanor to "wantonly or cruelly ill-treat, overload or otherwise abuse any animal," etc., a lawless act of defendant and consequent injury to or suffering by the animal must be alleged and affirmatively proved.

That defendant's cow, at the time of witnesses' visit, a winter morning, was housed in a small building which was not in proper condition as to cleanliness, ventilation and drainage, does not constitute an offense against the statute, where there is no evidence, either direct or circumstantial, of any ailment or physical discomfort suffered by the animal, and nothing to suggest wanton cruelty.

Wanton cruelty necessarily implies an act not only inhuman in its nature, but essentially lawless in practice or manner of perpetration. A lawful act, though liable to inflict pain and suffering upon an unoffending animal, is not wanton.

The statute gives an alderman no authority to impose a sentence of imprisonment. The only penalty is a fine, in default of payment of which the convict may be taken in execution by his body and thus detained in jail until discharged by due course of law.

Certiorari. In the Court of Common Pleas of Lackawanna County. No. 770, January Term, 1916.

E. E. Merrifield, for Commonwealth.
L. M. Levy, for Defendant.

Newcomb, J., June 28, 1916-By procedings had under the act of 29th March, 1869, P. L. 22, defendant was convicted of cruelty to animals. Thereupon he was sentenced to pay a fine and costs, and in default thereof to undergo imprisonment of thirty days in the county jail.

This was error. The statute gives the alderman no authority to impose imprisonment either for thirty days or thirty seconds. The only penalty is a fine. If that is not forthcoming, however, the convict may be taken in

execution by his body and thus detained in jail until discharged "by due course of law." That is one thing; a sentence to imprisonment, a very different thing.

If there were nothing else, the defect could be treated as merely formal and the proceeding put in shape by remitting it for amendment. But there is a more serious objection which goes to the merits, and is believed to be fatal.

On the face of the complaint itself it would seem to be doubtful whether the facts alleged constitute an offense against the statute. That impression is confirmed by what appeared at the hearing.

The clause of the act upon which the case must stand or fall makes it a misdemeanor to "wantonly or cruelly ill-treat, overload or otherwise abuse any animal," etc.

It is set out in the information that at his premises in the borough of Taylor defendant did "wantonly and cruelly ill-treat and otherwise abuse a cow by keeping her in a shed that was too small to house the animal without jeopardizing her health. Said shed being in a filthy condition. Without ventilation and no drain. Said cow was compelled to stand and lie in its own filth. No bedding." The complaint was neither made nor supported by anyone in or on behalf of the borough, but by certain functionaries attached to the alderman's office in this city. This has provoked counsel to a somewhat spirited criticism impugning the motive underlying the prosecution; but with that this writ has no concern.

As might be anticipated from the character of the complaint, what developed on the trial was a dispute as to defendant's care of his stable. It was visited by the two witnesses on one occasion, and that on a winter morning. Their knowledge of the subject was, therefore, limited. There was no evidence, either direct or circumstantial, of physical discomfort to say nothing of any ailment suffered by the animal. What is more, there was nothing to suggest wanton cruelty. At its maximum the proof could be said to show that for the use of himself and family defendant, like many others of his apparent station in life, keeps a cow; and that his stable is not so commodious and well appointed as might be, though such as corresponds with his circumstances.

Wanton cruelty necessarily implies an act not only