Debt by tbe administratrix of tbe assured upon a certificate of life insurance under seal for the insurance written for the benefit of the wife.

Two questions arise:

I. Can the administratrix maintain the suit, or must it be brought in the name of the wife, who survives? The covenant in the certificate was made with the assured. That was to pay to the wife, “or in in the event of her death to his (the assured’s) legal representative.” The covenant was with the assured to pay to the wife, if living, and the breach of it survived to his legal representative.

The law is well settled that where the covenant is with one person for the benefit of' another, or to pay to another, which is the same thing, the action for breach must be in the name of the covenantee, or if he be dead by his legal representative. The beneficiary, however, may use his name or the name of the representative for the purpose. Baldwin v. Emery, 89 Maine, 496.

II. Should the declaration have averred that the assessment amounted to at least $3000, the amount sued for? The covenant sued is to pay one assessment upon the members of the association, not to exceed $3000. The declaration calls for $3000 damages, without an averment. that the assessment amounted to that sum. Now the covenant is to pay one assessment and no more. To authorize a recovery for that sum the assessment must amount to it. It is the assessment that is due. That is the cause of action set out, and some averment of its amount seems necessary. This all appears from the declaration, for the certificate is recited therein *344in his verbis. The declaration, to state a cause of action arising from its internal structure, should aver that the assessment equaled the sum demanded. In other words, without some such averment, no sum appears to be due, and every declaration in an action of debt must show some certain amount due as damages. The action lies for a sum certain only.

But it is argued that precisely the same question was raised and decided in Grindle v. York Mutual Aid Association, 87 Maine, 177. Not so. The question there was whether the company was presumed to be in sufficient funds to pay the assessment in the absence of evidence to the contrary; and the decision was in favor of the presumption, that might be overcome by evidence. In other words, the court held the fact a traversable fact supported by a presumption to be settled by evidence if there be any. Now every traversable fact must be averred and proved; sometimes to be proved by presumptions, and at others by presumptions aided or controlled by evidence, but always proved. The wanting averment in plaintiff’s declaration was essential to entitle her to recover the sum named or any sum. When averred, a traverse would put it in issue. The law would presume the fact in her favor. That presumption, standing alone, would amount to proof. We think this defect, easily cured by amendment, a cause for demurrer.

Exceptions sustained.