This was an action brought by the plaintiff against the defendants as executors de son tort of one Ferdinand Horne. The plaintiff amended her original declaration by adding a count for breach of a covenant contained in a certain lease for quiet enjoyment of certain premises mentioned therein. At the trial, the defendants demurred to this second count, on the ground that it introduced a new and distinct cause of action. The court sustained the demurrer, and plaintiff excepted.
1. The court did not err in striking the amendment from the plaintiff’s declaration. No amendment adding a new and distinct cause of action is allowable: Code, see. 3480. The judgment against the defendants in the original action as executors de son tort, if the case had been made out against them by the evidence, would have been for double the value of the property of Horne, 'wrongfully possessed and converted by them, whereas the judgmeut for a breach of a covenant for quiet enjoyment would have been governed by a different rule as to damages.
2. The plaintiff offered in evidence the interrogatories of *621Mason & Dibble for the purpose of showing that the defendants put them in possession of Horne’s property after his death. In answer to cross-interrogatories put to the witnesses, Mason, one of the firm of Mason & Dibble, answered, “that they went into possession of the property under a written lease. We did know of the lease to Horne, and we did lease the property subject to Horne’s lease.” The evidence offered was objected to by defendants, until the lease, under which the witnesses -went into possession, was produced. The court sustained the objection, and the plaintiff excepted. The defendants were sought to be made liable because they had leased the premises to Mason & Dibble, having previously leased a part thereof to Horne, who was dead, and whose lease had not expired at the time of the lease to Mason & Dibble. If they went into the possession of the property under that lease, they entered according to the terms of it. What were the terms of that lease? Did it authorize Mason & Dibble to take possession of the property previously leased to Horne, or was the property previously leased' to Hor.ne specially exempted in the lease to Mason & Dibble? They say that they leased the property from the defendants subject to Horne’s lease, and the lease itself was the highest and best evidence as ■to what property the defendants did lease to them, and should have been produced or its loss accounted for, .the more especially as-the plaintiff sought to charge the defendants with having wrongfully leased Horne’s property to Mason & Dibble, and thereby to make them liable as executors de son tort.
Let the judgment of the court below be affirmed.