COVENANT TO REPAIR. 427 



the Court of Exchequer held that the measure of damages in an action 

 by the lessee against the under-lessee on his covenant, was the sum it 

 would cost to put the premises into repair ; and that the plaintiff was 

 not entitled to recover as special damage in such an action the damages 

 and costs recovered in a former action, brought against him by his 

 lessor, for breach of the covenant in the lease {Penley v. Watts). But 

 qimre would the plaintiflp have been entitled to recover them if the cove- 

 nants had been identical {ib.). And see JSfeaJe v. Wyllle. 



A covenant to yield up in repair at the end of a term, runs ivith the 

 land, and binds an assignee, though not named {Martyn Adx. v. Clue). 

 Defendant, who was the assignee of the lessee, pleaded, among other 

 pleas, as to suffering the premises to be ruinous and out of repair, and 

 so leaving them, that the lessor did not at any time from the assign- 

 ment till the expiration of the term provide on the premises any rough 

 timber whatever. It was held by the Court of Common Pleas on de- 

 murrer to this plea, that it was sufficient on this record to aver that the 

 lessor was always ready and willing to furnish timber, without stating 

 that he actually did furnish ; and that the plea was also bad, for that 

 the condition precedent to the defendant's obligation to repair was 

 sufficiently performed, if he was ready and willing to supply timber 

 when required (/&.). Li a covenant by a lessee, not naming assigns, to 

 repair and yield up in repair all buildings and erections, an assignee is 

 liable in respect of the non-repair of buildings erected during the term 

 {Minshull v. OaJces). Willes J. held in WoolcocJc v. Dew, that by a 

 covenant in a lease of a farm and cottages to keep, support, and main- 

 tain the premises in good repair, the lessee or assignee is bound to Jceejj 

 the cottages in situ, and to repair them if ruinous, or at least to replace 

 them as nearly as might be in the position in which they were when 

 demised, and is held liable, having pulled them down, for their value 

 as they stood, without reference to the result of their removal as 

 regarded the general improvement of the farm. 



The rule as to keeping premises in repair was specially laid down in 

 Payne v. Haine. The defendant on becoming tenant to the plaintiff 

 of a farm and outbuildings agreed " to Iceep) the same, and at the expi- 

 ration of the tenancy to deliver up the same, in good repair, order, and 

 condition." At the trial the plaintiff proved bad repair of the thatch 

 on the outbuildings, as also of the gates, while the defendant sought to 

 prove that the gates had fallen to pieces from age alone, and the thatch 

 was better when he left than when he entered the farm. Piatt B. told 

 the jury to consider the state of the premises when the defendant 

 entered, adding that it was enough if the defendant left them' in as good 

 plight as he found them, and that he was not bound on quitting the 



