1785. signed. The condition must be taken to mean, that HARRINGTON he shall assign all offices which may legally be as

against KLOPROGGE,

signed.

Judgment for plaintiff.

T. T. 25 Geo.3.

a lease is not

liable to the

original lesse

for a breach of covenant not

running with

named in the

lease as a covenantor (a).

GREY against CUTHBERTSON and another.

The assignee of DECLARATION in covenant, stating that one William Mills was possessed of a term of years, and that by indenture, dated 22d September, 1770, between W. Mills and plaintiff, W. Mills demised certain the land, unless premises to plaintiff, habendum for fourteen years; and he be expressly amongst other covenants in the lease, the declaration set forth the following one: that at the end or expiration, or other sooner determination of the said demise, a fair valuation and appraisement should be made by two indifferent persons (one to be chosen by each of the parties to the said indenture, or their respective executors, administrators, or assigns) of all and every the fruit trees and bushes that should be then standing and growing, and which should have been planted and set by the said plaintiff, his executors, administrators, or assigns, upon the said demised premises, and that he the said plaintiff, his executors, administrators, or assigns, should yield and deliver up the same trees and bushes to the said William Mills, his executors, administrators, or assigns, at the value or appraisement thereof to be made and fixed as aforesaid; and the said William Mills, for himself, his executors, and administrators, did by the said indenture, &c. (amongst

(a) See 3 Wils. 27. 4 T. R. 720, 726, upon a covenant running with the land, which must concern real property, or the estate therein. 3 Wils. 29. 2 H. B. 133. 10 East, 138. 2 Marsh. 1, 4., the assignee of the lease is liable to an action for a breach of covenant after the assignment of the estate to him. Bac. Ab. tit. Covenant, E. 34. 3 Wils. 25. 2 Saund. 304, n. 12; and though he have not taken possession. 7T. R. 312. 2 Saund. 182. 1 Salk, 198. 1 Lord Raym. 322.

other things) covenant to and with the said plaintiff, his executors, administrators, and assigns, that he the said William Mills, his executors or administrators, should and would well and truly pay, or cause to be paid to the said plaintiff, his executors, administrators, or assigns, immediately after such valuation or appraisement should be made by two indifferent persons, as aforesaid, all such sum or sums of money for such trees and bushes as the same trees and bushes should be valued or appraised at. The declaration then alleged plaintiff's entry, and that all the said William Mills's interest in the premises, before the expiration of the term, became vested in the defendants; and then a breach of the said covenant by the defendants as assignees. Demurrer, and joinder in demurrer.

Clayton, for the defendant. The covenant on which this breach is assigned does not extend to an assignee, as he is not named therein. The lessee does not covenant for himself, his executors, administrators, and assigns, so it only binds him or his personal representatives. The covenant does not in its nature run with the land, as it concerns a thing not in esse. He cited Spencer's case, 5 Coke, and 3 Wils. Rep. 25.

Wood, contra. The covenant relates to a thing to be done on the land, and runs with it. The cases in Moor, 159. Ow. 151. Lev. 109. Kitchen v. Buckley, Cro. El. 493, are in the plaintiff's favour.

PER CURIAM. The plaintiff is not without remedy; he may bring an action against the original lessor, who always remains liable: but his right of action for a breach of this covenant cannot be extended to an assignee, without his being named in the covenant, as the subject matter of it does not relate to a thing in esse at the time of the demise. The Court recognized the authority of Spencer's case.

Judgment for defendant.

1785.

GREY against CUTHBERTSON

and another.

1785.

E. T. 25 Geo. 3.

JONES against OSBORN.

Semblee keeper DECLARATION that the said defendant, before

be declared

against as an innkeeper (a).

is subject to the and on, &c., was, and from thence hitherto hath same liabilities been, and still is, the master and keeper of a certain as an innkeeper, but he should common and public hotel, for the reception, lodging, and entertainment of guests; that is to say, a certain common and public hotel, commonly called or known by the name of Osborn's Adelphi Hotel, in the parish of, &c., in the county of, &c.: and whereas the said defendant, being such master and keeper of the said hotel, as aforesaid, the said plaintiff heretofore, to wit, on the day and year aforesaid, at, &c. aforesaid, entered, and was then and there received into the said hotel as the guest of him the said defendant therein; and during the time that he was such guest, to wit, on the day and year aforesaid, he the said defendant was lawfully possessed of a certain note of the Governor and Company of the Bank of England, commonly called a bank note, for the payment of the sum of twenty pounds, and of another large sum of money, to wit, the sum of seven pounds eighteen shillings of lawful of Great Britain, as of his own proper money note and money; and which said note and money were then and from thence, until the time of the loss

where

(a) See the late case of Thompson v. Lacy, 3 Barn. & Ald. 283, it was held, that a house of public entertainment in London, where beds, provisions, &c. were furnished for all persons paying for the same, but which was merely called a tavern and coffee-house, and was not frequented by stage coaches and waggons from the country, and which had no stables belonging to it, was to be considered as an inn, and the owner of it subject to the liabilities of innkeepers. Sed quære. See Doe v.Laming, 4Camp. 77, where it was held, that a coffee-house keeper was not an innkeeper, within the meaning of a policy of insurance against fire. See Jeremy, 139, Latch, 127. 1 Lord Raym. 479. 12 Mod. 254. Carth. 417. As to the liability of innkeepers, see Jeremy's Law of Carriers, 144. Jones on Bailments, 95. 8 Rep. 63.

thereof hereinafter mentioned, within the said hotel, to wit, at, &c. aforesaid; yet the said defendant, so being the master and keeper of the said hotel as aforesaid, not regarding his duty as such master and keeper thereof, did not keep the said note and money of the said plaintiff, so being within the said hotel as aforesaid, safely and without diminution or loss, so that no damage might arise or happen to the said plaintiff in any manner of way by the negligence or default of him the said defendant and his servants, but on the contrary thereof, he the said defendant and his servants so negligently and carelessly conducted themselves in this behalf, that afterwards and whilst the said plaintiff was a guest in the said hotel as aforesaid, to wit, on the day and year aforesaid, the said note and money were by and through the mere negligence and default of the said defendant and his servants, and without the consent or knowledge of him the said plaintiff, wrongfully and injuriously taken and carried from and out of the said hotel, or otherwise embezzled and secreted, by some person or persons to the said plaintiff unknown, and were thereby wholly lost to the said plaintiff.

Demurrer, assigning the following causes, viz. that the said hotel or house in the said declaration mentioned is not in or by the said declaration averred or shewn to be a common or public inn, or that the same and the said defendant, as such master or keeper thereof as aforesaid, are within the custom of this realm as to inn-keepers; and for that it does not appear in or by the said declaration, that the said note and money therein mentioned were ever delivered to the said defendant or his servants, or that he ever received the same or had the care thereof, or that he undertook or was obliged or bound to safely keep the same, or to take care thereof; and for that it does not appear in

1785.

JONES

against

OSBORN.

1785.

JONES against OSBORN.

or by the said declaration, that the said defendant was to have or receive any reward for the safe keeping or care of the said note and money; and for that no negligence or default is charged or alledged in the said declaration, either in the said defendant or his servants, otherwise than as against or in disregard of a supposed duty in him the said defendant, as such master or keeper of the said hotel in the said declaration mentioned as aforesaid; and also that the said declaration is in various other respects uncertain, insufficient, and informal, &c.

Joinder in demurrer.

Shepherd, for defendant. The objection to this declaration is, that the defendant is not stated to be a bailee in any character which can make him liable. An hotel-keeper cannot be considered a common innkeeper; and if so, the plaintiff ought to have described him as such. If a man acts as an inn-keeper, he is liable. But an hotel is not an inn. An inn is instituted for passengers, travellers, and wayfaring men. It cannot be said that an hotel is for this purpose an inn (b). If a man make a contract with an inn-keeper for a separate lodging, and has the exclusive possession thereof, as to him it is not an inn (c). Here the plaintiff may be considered as a mere lodger, and the defendant as a lodging-house keeper, who makes a contract with every man that comes; whereas an innkeeper is bound by the law of the realm, and not by contract, to receive guests (d).

PER CURIAM. The Court thought the defendant had better withdraw his demurrer, and that these objections would come more proper upon the trial, as the law must depend upon the facts of the case.

(b) Cayle's case, 8 Coke, 683.

(c) See Holt, C. N. P. 209. 1 Stark. 249.

(d) See Parkhurst v. Foster, 1 Salk. 387; and 3 B, and A. 287.