For a piece of cloth, by a person under guardianship. For that the said plaintiff, on &c., at &c., was possessed of a certain piece of drab cloth, of the value of $-, as of his own proper goods and chattels, and afterwards casually lost the same; and the same afterwards, on &c., at &c., came by finding, into the hands and possession of the said D, who well knowing the same goods and chattels to belong to the said plaintiff, and that he was under guardianship as aforesaid, but intending to defraud him, and injure his said guardian, there, on &c., refused to deliver the said cloth to the said plaintiff, or his said guardian, though thereto lawfully requested; and thereafterwards, on the same day, converted the same, to his, the said D's own use.

N. DANE.

By executor for goods belonging to the deceased.

For that whereas the said A, at &c., on &c., was possessed of the goods and articles, mentioned in the annexed schedule, of the value of $-, and which were of the goods of the said A, at the time of his decease, as of his own goods and chattels, and thereafterwards, on the same day, casually lost the same, which thereafterwards, on the same day, came to the hands of the said D, by finding, who well knew the same to have been the property of the said A, at the time of his decease, and to be the property of the plaintiff, but intending to embezzle the same, and maliciously intending to defraud the said plaintiff thereof, he, the said D, though requested, viz. thereafterwards, on &c., refused to deliver the same to the said plaintiff, and then and there wickedly converted the same to his own use; to the damage, &c. Main, administratrix, v. Boden, Essex, 1798. S. SEWALL.

By husband and wife, for a spinning-wheel belonging to wife and converted before marriage.

For that the said A [the wife,] on &c., at &c., was possessed of a certain spinning-wheel, of the value of $-, as of her own proper goods and chattels, and afterwards, on the same day, casually lost the same; and thereafterwards, on the same day, the same wheel came, by finding, to the possession of the said D, who knowing the same to be the property of the said A, never delivered the same to the said A while sole, nor to the said B and A since their intermarriage, though requested, viz. on &c., at &c.; but then and

there converted the same to his own use; to the damage of the said B, [the husband.]

NOTE. It would be bad to say, to the damage of the said B and A. Salk. 114.

By administrators for property belonging to deceased.

For that the said plaintiffs, in their said capacity, at &c., on &c., were possessed of &c., the property of said intestate; and being so thereof possessed, then and there, casually lost the same; and afterwards, there on the same day, the same goods came to the possession of the said D, by finding; yet the said D, well knowing the same to be the goods of the plaintiffs as aforesaid, has not delivered them to the plaintiffs, though on &c., at &c., thereto requested; but thereafterwards, on the same day converted the same to his own use; to the damage of the said plaintiffs, in their said capacity, &c.

NOTE. If Trover were first, and administration afterwards, the plaintiff may declare specially, or lay Trover after the administration. Per Holt. Comb. 304; Mod. Ent. 366; for executor has a constructive possession from the testator's death. 1 T. R. 480.

It seems, Trover does not lie against an executor or administrator with the will annexed, for a conversion by the testator. The distinction, as to what actions survive, is that where damages only for an injury are recoverable, the action will not survive against the executor; but where value is recoverable the action will survive. See Hambly v. Trott, Cowp. 371.

Under the Rev. Stat. of Mass. ch. 93, sec. 7, Trover survives for and against an executor or administrator.

For two bonds.

For that the said plaintiff, at &c., on &c., was possessed of divers goods and chattels, to wit, one bond, by which one A was bound and obliged to pay the plaintiff $-yearly during her life, of one bond, by which one B was bound and obliged to pay the plaintiff the like sum of $- yearly during her life, and of one other bond, by which one C was bound and obliged to pay the plaintiff the like sum of $yearly during her life, of the value of $-, as of her own. proper goods and chattels, and being so thereof possessed, the said plaintiff, thereafterwards, on the same day, casually lost the same, which said goods and chattels thereafterwards, on the same day, came into the possession of the said D, by finding; yet the said D, well knowing the said goods and chattels to be the property of the plaintiff, but contriv

ing and intending to defraud and injure her in this behalf, has not returned the said goods and chattels to the plaintiff, though requested, but afterwards, to wit, on &c., at &c., converted the same to his own use; to the damage, &c. Bartlett v. Currier, Essex, 1800. T. PARSONS.

By an administrator for goods contained in a schedule. For that the plaintiffs, in their said capacities of administrators as aforesaid, on &c., at &c., were possessed of divers goods and chattels, which in the lifetime of the said A B, and at his decease, belonged to him, and among other things, of the goods and chattels in the schedule hereto annexed, and of the value therein mentioned, as of their own proper goods and chattels as administrators aforesaid; and being so thereof possessed, then and there casually lost the same, and the said D, thereafterwards, on the same day, found the same and knew that truly and of right they belonged to the plaintiffs in their said capacity, but evilly and wickedly contriving and intending to defraud the plaintiffs in their said capacity thereof, though on the same day, and often since requested, would not deliver the same to the plaintiffs, in their said capacity, but afterwards, on the same day, converted the same to his own use, to the hindrance and delay of the said administrators, and to the damage, &c. Administrators of Hewell v. Desilver. J. ADAMS.

COVENANT.

THIS action lies only upon agreements or other instruments under seal. And therefore where a contract under seal is varied by a written agreement not under seal, Assumpsit is the proper remedy for a breach of the unsealed contract. Mill-dam Foundry v. Hovey, 21 Pick.

417.

It will lie, however, upon an agreement or covenant, in law, or implied in a deed, as well as upon an express one. Covenants in law, are such as are implied from the express covenants, or words in the deed, which are necessary to the enjoyment of the express covenants, or to the operation of the deed. Cro. Eliz. 214; 4 Co. 80; 3 Keb. 465; 1 Leo. 122; 1 Saund. 322; 16 East, 352.

This action may be maintained against an executor or administrator, whether named in the covenant or not. Cro. Eliz. 553. And whether the covenant is express or implied, if broken in the lifetime of the

covenantor; but not on an implied covenant, broken after his death. Dyer, 257, a.

This action may be maintained against an heir, if named; otherwise not, as heir; but he may be charged as assignee, if the covenant runs with the land. 4 T. R. 75.

So, for a breach in the lifetime of the covenantee, Covenant may be maintained by an executor or administrator, whether named in the cov enant or not. 1 Vent. 176.

But for a breach of a covenant that runs with the land, taking place after the death of the covenantee, the heir alone can sue; and this he may do, whether named in the covenant or not. lb. 2 Lev. 92.

If A in a deed-poll covenants to pay money, &c. to B, who is not a party to the indenture, B may maintain Covenant for the money, &c. See 2 Lev. 71.

So if B is a party but does not execute, he may maintain Covenant against A. Lut. 305.

If there is a breach of covenant in the time of an administrator, Cov. enant may be maintained, and he must answer out of his own goods. Ld. Raym. 554.

Of actions by and against assigns or assignees.

Assignees of all choses in action, not negotiable, must sue in the name of the promisee, obligee, covenantee, &c. 14 Mass. R. 107. If such covenantee or promisee is dead, the action must be brought in the name of his executor or administrator.

And the covenantec's or promisee's name being merely used for the sake of form, he cannot discontinue the suit, nor release the demand. Nor is his consent necessary to this use of his name; and the same remark applies to his executor or administrator. See 1 Bin. 423; 1 Dal. 139; 9 Mass. R. 337; 15 Johns. R. 405.

For breach of covenants that run with the land, an assignee, whether he come in by act of law, or by an assignment by act of the assignor, shall maintain Covenant, and will declare in his own name as assignee. And for this purpose, tenant by the curtesy; the husband of lessee for years who survives; tenant by statute merchant, &c. are assignees. 5 Co. 17, a.

An assignee of a lessor, who has accepted of rent from the assignee of the lessee, may maintain Covenant against the lessee for rent growing due after the assignment, as well as before.

So an assignee of a reversion, who hath accepted rent from the assignee of the lessee, shall nevertheless have Covenant against the execu tor of the lessee, and for a breach of covenant happening after the assignment by lessee; for the covenant runs with the land, and the lessee shall not discharge himself by his own act. Cro. Jac. 521; 2 Show. 134.

Covenants that run with the land, bind an assignee, though not named. As if lessee covenants to repair the house demised, this covenant shall bind his assignees to repair, though they are not named. 5 Co. 16; Cro. Jac. 125; 5 Co. 24; 2 H. Bl. 133.

Covenants that do not run with the land, shall not bind the assignee unless named. As if lessee covenants to build a wall on the land demised, this shall not bind the assignee unless named. Ib. But if the covenant mentions the assignee, he shall be bound. Ib.

But where the covenant is to do a thing merely collateral, as to build a house on other land of the lessor, the assignee shall not be bound, though expressly named in the deed. Ib.

For a breach of covenant, complete before the assignment, an assignee is not liable. Salk. 199; 3 Bur. 1271.

An under-lessee is not liable for a breach of covenants that run with the land. For that purpose, he must be assignee of the whole term. Doug. 174.

Covenants that run with the land, bind whoever is an assignee by act of law. 5 Co. 17, b.

Lessees are liable for breach of covenants after assignment.

Assignees are liable for no breaches of covenants that run with the land, except such as take place after the assignment to them, and be fore they assign over again. Salk. 81; Doug. 735.

An assignee shall not have an action upon a breach of covenant before his time. Cro. Eliz. 163.

Upon a breach during his estate, he may maintain an action after the determination of it. Owen. 152; Buls. 281.

Of joint and several covenants.

If a covenant be with several, and it appears by the deed that their interest in fact is joint, all must join in the declaration, though the covenant is to them and each of them. And so, if the action is against them, and their covenant is joint, all must be sued together. See Willes, 248; 5 Co. 19, b; Salk. 137; 1 Show. 8.

But if the interest of the covenantees be several, and the covenant is with them and each of them, every one may sue separately, in respect of his several interest. 5 Co. 226.

So, if A and B covenant severally, Covenant lies against A for his several breach. Noy. 86.

Where a covenant is joint and several, and the action is brought against one, the breach must be assigned in the neglect of both or all,. since, by the performance of any one of them, the covenant is complied with. Str. 553.

If one named in the indenture does not execute, he may be excluded by an averment that he did not execute, or they must all join in the action. Stra. 1146.

Quære.

Further observations on this action.

In an action by an heir, who sues upon a grant or covenant to his ancestor and his heirs, he must be named heir. Otherwise, if he sues in his own right, though he comes to the right by descent. And he must show how heir. 1 Salk. 355. Quære.

In an action of Covenant for breach of warranty of lands, brought against an heir and devisee, they should be jointly sued. Quære. See 9 Mass. R. 395.

Where covenants are secured by a penalty, which is a sum of money in gross, Debt or Covenant may be brought; but the penalty is not to be considered as liquidated damages. 3 Bos. & Pul. 630; 7 Wheat. 13; See Stearns v. Barrett, 1 Pick. 443.