DES'iT.UCTION OF LEASED PREMISES BY FIEE. 429 



of contract to repcur daring the existence of the term, is the difference 

 between the price for which the reversion would sell if the covenant 

 were unbroken, from that for which it would sell if the covenant were 

 broken {ib.). And per Parke B. : " The measure of damages as laid 

 down in some of the cases, and by my brother Coleridge in Doe t. Roiu- 

 lands, is too low. The true measure is to be ascertained by considering 

 what w^ould be the loss to the reversion, if it were sold at the time of 

 the commencement of the action" {it).). And in Vivian v. Champion, 

 Lord Holt C.J. says : " If the premises were out of repair in the an- 

 cestor's time, yet if the lessee suffers them to continue out of repair in 

 the time of the heir, that is a damage to the heir, and he shall have an 

 action ; and in these actions there ouglit to be very good damages ; 

 and it has been always practised so before me, and everybody else that 

 I ever knew. We always inquire in these cases what it will cost to put 

 the premises in repair, and give so much damages ; and the plaintiff 

 ought in justice to apply the damages to the repair of the premises." 



A testator directed his trustees to allow A. B. to occupy a mill, &c., 

 so long as he should think proper so to do, he nevertheless keeping the 

 premises in good and tenantable repair, and paying a rent of £100. 

 A. B. accepted the gift, but the premises were afterwards totally de- 

 stroyed ly accidental fire, and it was held that A. B. was bound to 

 reinstate them, or pay a sufficient sum for that purpose, and was liable 

 for the rent in the meanwhile, and that he could not escape from the 

 liability to rebuild by declining any longer to retain them {Gregg v. 

 Coates ; Hodgson v. Goatcs). 



It was decided in Baker v. Holtpzaffell that the landlord of a house 

 demised under a written agreement not under seal, nmy recover against the 

 tenant in occuiMtion and use and occupation for the rent accruing after the 

 premises are burnt down. And so in Izon v. Gorton, where there was no 

 written agreement, but a mere tenancy from year to year (which until 

 it is determined by a notice to quit, is, as to its legal character and 

 consequences the same as a term for years) ; for in order to enable a 

 tenant to avoid his lease there must be a default on the part of the 

 landlord {ib.). In Holtpzaffell v. Baker, where the plaintiff offered to 

 surrender his term, praying relief from the previous action. Lord Eldon 

 Ch. held that he was entitled to no relief, although the agreement con- 

 tained an engagement by the tenant to repair the premises, and keep 

 them in repair, " reasonable use and wear and damage by fire excepted." 

 A te?iant has no equitg to compel his landlord to expend money received 

 from an insurance office on the demised piremises being burnt down, in 

 rebuilding the premises, or to restrain the landlord from suing for the 

 rent until the premises are rebuilt {Leeds v. Chectham). An attempt 



