this covenant falls within the second resolution in Spencer's Case, 5 Co. 16; 1 Sm. L. C. 45, 6th ed.; but the covenant there referred to, is described as relating to something "to be done upon some part of the thing demised," such as a new wall to be built thereon, which when built will form part of it, or to some matter otherwise distinctly and directly connected with it, such as rent issuing out of it. But the present covenant is rather within the latter part of the same resolution, where instances are given of covenants which do not run, as "to build a house upon the land of the lessor which is no parcel of the demise." This covenant concerns, not the condition of the land itself, but only the value of trade carried on there, and is in that sense collateral to the land. Judgment for the defendant. THOMPSON v. ROSE. NEW YORK SUPREME COURT. 1828. [Reported 8 Cowen, 266.] COVENANT; tried at the Dutchess Circuit, December 6th, 1826, before Betts, late C. Judge. The declaration was upon a lease under seal, dated August 19th, 1812, by which the defendant demised a farm to the plaintiff for the term of ten years from the 1st of May, 1813, at a rent of twenty dollars; and he covenanted to pay the plaintiff, at the expiration of the term, for such buildings as he might erect during the term for the accommodation and pursuit of his business, the value to be fixed by men to be chosen by the parties, who mutually bound themselves to performance in the penalty of five hundred dollars. The declaration averred the erection, during the term, of a dwelling house, blacksmith shop, shed and necessary, for the value of which this action was brought. The defendant pleaded an arbitrament and award between him and the plaintiff after the end of the term, and also a release from the plaintiff'; who replied, that after the buildings were erected, and before the award or release, he assigned the lease and covenant of the defendant, of which he had notice, to Richard Harcourt, who assigned to Benjamin Harcourt, for whose benefit this suit was brought; on which issue was joined. The main question at the trial was, whether the assignments passed the covenant of the defendant. The assignment to Richard Harcourt was dated in April, 1815, by which the plaintiff sold and conveyed to Richard Harcourt all the plaintiff's right, title, interest, claim and demand, both in law and equity, and as well in possession as in expectancy, of, in and to all that certain house and lot or piece of land, &c. (the demised premises), with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining. The plaintiff also covenanted to consult R. Harcourt as to the men who were to value the improvements, and not to choose without his approbation. The assignment from Richard to Benjamin Harcourt, in 1818, was substantially like that from the plaintiff, except in wanting the clause relative to the choice of arbitrators. The defendant having proved the arbitration and release subsequent to these assignments, and notice of them, objected that the covenant did not pass by the assignments; but the objection was overruled. The defendant then attempted to prove a surrender of the lease by R. Harcourt, but failed; and Harcourt was received as a witness for the plaintiff. Verdict, for the plaintiff, seven hundred and nine dollars. S. Stevens, for the defendant. S. Cleveland, contra. Curia, per SUTHERLAND, J. The issues joined between the parties were, first, whether Benjamin Harcourt was the owner of the lease, and was entitled, by virtue of the assignment to him, to receive compensation for the buildings and improvements erected and made upon the demised premises, &c. 2. Whether the defendant had notice of the assignment of the lease to Richard Harcourt before the release from Thompson. is Upon the first point, it is clear that all the interest of Thompson in the leased premises, not only his right to the unexpired term, but also to compensation for the improvements, passed by his assignment to Richard Harcourt. The assignment contains a special provision upon this point, and also a covenant that Thompson, the assignor, will consult Harcourt in the selection of the individual, to be named by him, according to the provisions of the lease, to ascertain the value of those improvements. It is equally clear that all the interest which Richard Harcourt thus acquired in the demised premises, and the improvements thereon, passed by his assignment to Benjamin Harcourt, for whose benefit this action is brought. T lot or he terms in which the subject or interest intended to be assigned, escribed, are, all the right, title, interest, claim and demand, both in law and equity, and as well in possession as in expectancy, of the said party of the first part, of, in and to all that certain house and piece of land, situate, &c., with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining." The improvements or buildings for which compensation was soughby this action under the covenant in the lease, were the dwelling shed and blacksmith shop, which had been erected by ThompNow all the assignor's interest in the house, not only present, but in expectancy, is expressly assigned, and his interest in the other buildings passed, because they were appurtenant and belonged to the house son. house and lot. The judge, therefore, ruled correctly, that the assignments sufficiently supported the first issue in behalf of the plaintiff. Notice to the defendant of the assignments of the lease to Richard and Benjamin Harcourt, before the release from Thompson was given. was clearly proved. The action was properly brought in the name of Thompson, the original lessee. The covenant on the part of the defendant to pay for the buildings to be erected, &c., is with Thompson only, and not with his assigns. The subject of the covenant was not in esse at the date of the lease. It was to pay for buildings to be erected, not to repair existing houses, sheds, &c. Such a covenant to repair, extends to the support of the thing demised, and is, quodammodo, annexed and appurtenant to it, and shall bind the assignee, though he be not named. But when the covenant relates to a thing which is not in being at the time of the demise, it cannot be appurtenant to the thing which hath no being. Spencer's Case, 5 Co. 17. Of course, it does not run with the land. Suppose the lease had contained a covenant on the part of Thompson to erect the buildings, as well as a covenant on the part of the lessor to pay for such buildings as should be erected. Spencer's Case decides, beyond all doubt, that the assignees of Thompson, not being named in the covenant, would not have been bound by it; and if a covenant to build does not run with the land, and bind the assignees, where they are not named, it would seem to follow that a covenant on the part of the lessor to pay for buildings to be erected, is a personal covenant only, and not one which runs with the land. If so, the action for a breach of it must be brought in the name of the original covenantee. There is no privity, either of estate or contract, between the covenantor and the assignee. This doctrine is recognized and supported by the case of Lametti and Others, Executors, &c. v. Anderson, 6 Cowen, 302. The action in that case was sustained in the name of the executors of the assignee. But the assignees were expressly named in the covenant. The plaintiff's damages were not limited to the penal sum mentioned in the lease. That principle applies only to cases of surety, except the bond be conditioned for the payment of money only. Doug. 49; 2 Bl. Rep. 1190; 6 T. R. 303; 2 T. R. 388. The evidence was not entirely harmonious as to the value of the buildings. The jury have adopted about the medium value as established by the witnesses. Richard Harcourt was a competent witness. He was not objected to on the ground of interest, but because he had voluntarily, as was alleged, surrendered the lease on which the action was brought, to the defendant; and was, therefore, incompetent to impeach or invalidate his own act, by sustaining the present action. The evidence does not establish the fact of a surrender of the lease, by Richard Harcourt, with a view to its being cancelled. It was conditional, and in the expectation of receiving a deed for the demised premises upon a new contract; which contract appears never to have been carried into effect. The lease never was, in fact, cancelled. It was produced by the plaintiff upon the trial, and must have been restored by the defendant after the alleged surrender. Motion for new trial denied. HANSEN v. MEYER. SUPREME COURT OF ILLINOIS. 1876. [Reported 81 Ill. 321.] APPEAL from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. Messrs. Bloomfield, Pollock, and Campbell, for the appellant. MR. JUSTICE SHELDON delivered the opinion of the court. This was a suit to recover damages for the breach of a covenant in a lease, brought by the lessee against the assignees of the reversion. The facts are: On the 15th day of December, 1872, Matthew Hansen, the appellant, leased of one John Hoffman, by written lease, premises described in the lease as follows: "Store-room on first floor in the hotel building on corner of C. and A. R. R. and Chestnut Street, on part of lot one, &c., in Bloomington, Ill.," the lease, by its terms, to continue one year, with monthly rental in advance, with the privilege to lessee to extend the lease by giving sixty days' notice each year. The lease was the ordinary blank used for such purpose, and after the leasing part, has the following written in the body of the lease: "Party of the second part is to put in counters and shelving, which said counters and shelving the party of the first part hereby agrees to buy from party of the second part at a reasonable price at the expiration of the first year of this lease. Party of the first part is to put in good fixtures and other things necessary to the said room." Hansen took possession of the room under this lease, and put in counters and shelving for his use in the retail dry goods business, which he engaged in. He remained in possession, using these counters and shelving himself, until the trial of this cause, June 14, 1875. On the 1st day of July, 1873, Hoffman, the lessor, sold the hotel building and premises in which this room was situate, to the appellees, Hansen being then in possession. At the end of the first year, Hansen brought this suit against appellees, on the lease, to recover from them the value of these counters and shelving. The lease, in terms, states that the covenants therein shall extend to and be binding upon the heirs, executors, and administrators of the parties, and nowhere mentions or includes assigns of either party. The cause was tried by the court below without a jury, and judgment rendered for the defendants. The plaintiff appealed. The question presented is, Are appellees, as assignees of the reversion, liable, under this lease, to appellant, the lessee, for the value of the counters and shelving? The covenant in the lease is, that Hansen "is to put in counters and shelving." This was to be done in the future; the covenant related to a thing not in esse at the time of the execution of the lease, and does not bind assigns when, as here, not expressly named in the covenant. The leading authority on this question is Spencer's Case, 5 Rep. 16. That case was a covenant by the lessee for him, his executors (not assigns), that he, his executors, administrators or assigns, would build a brick wall on the demised premises. His assignee being sued, it was held that he was not bound, because the thing in respect to which the covenant was made was not in esse, and had not yet become a part of the land. Its existence was in contemplation. And yet it was agreed that, because it was a thing that would directly affect the demised premises, if the word assigns had been used, the covenant would have bound the assignee. The assignee is to take the benefit of it and shall be bound by express words. In Grey v. Cuthbertson, 2 Chit. R. 482, the covenant was by the lessor, but not for his assigns, to take and pay for all fruit-trees and bushes growing, at the end of the term, which the lessee should plant. The assignee of the lessor was held not to be liable, for want of the word "assigns;" though it was admitted that this word would have charged him. The decision was on the distinction in Spencer's Case, that the thing did not exist at the time of the covenant. But it is supposed by appellant's counsel that the following Statute of this State gives this right of action against the assignees of the reversion, viz. : "The lessees of any lands, their assigns or personal representatives, shall have the same remedy, by action or otherwise, against the lessor, his grantees, assignees, or his or their representatives, for the breach of any agreement in such lease, as such lessee might have had against his immediate lessor." Rev. Stat. 1874, p. 659, § 15 (in force July 1, 1873). This lease was executed December 15, 1872. The lessor, Hoffman, sold and conveyed the property to appellees July 1, 1873. This Statute did not go into effect until July 1, 1873. Without regard to the question whether a covenant of such a character as this is within the purview of the Statute, we are of opinion that this Statute does not apply in this case, as it was enacted after the lease was executed. To hold it as applying to this lease would be to give the Statute a retrospective operation. Retrospective laws are viewed with disfavor, and courts do not allow Statutes to have a retroactive effect on past transactions, unless it appears that such was the intention of the legislature manifested by clear and unequivocal expressions. In the Matter of the Will of Tuller, 79 Ill. 99, and the authorities there referred to. The very |