ment that the plaintiff shall not take any thing by his writ of assise. And so in such case the lessor shall be aided, and yet no writing was ever made of the condition. For as well as the jurors may have conusance of the (152) lease, they also as well may have conusance of the condition which was declared and rehearsed upon the lease. "For as well as the jurors may have conusance, &c." Hereby 227 b. it appeareth, that they that have conusance of any thing, are to have conusance also of all incidents and dependants thereupon, for an incident is a thing necessarily depending upon another. 10 H. 4. 9. "By which the lessor entered." Here it appeareth, that the con- 31 Ass. pl. 21. dition is executed by re-entry, and yet the lessor after his re-entry shall not, by the opinion of Littleton, plead the condition without showing the deed, because he was party and privy to the condition, for the parties must show forth the deed, unless it be by the act and wrong of his adversary, as hath been said; (i) but an estranger) See more which is not privy to the condition, nor claimeth under the same, as in the cases abovesaid appeareth, shall not, after the condition is executed, in pleading be enforced to show forth the deed; and by this diversity all the books and authorities in law, which seem to be at variance, are reconciled. See also for this matter the section next following. IN the same manner it is of a feoffment in fee, or a gift in tail, upon condition, although no writing were ever made of it (153). And as it is said of a verdict at large in an assise, &c. in the same manner it is of a writ of entry founded upon a disseisin; and in all other actions where the justices will take the verdict at large, there (154) where such verdict at large is made, the manner of the whole entry is put in the issue, &c. before in this Chapter, sec. 36. (Sid.369. 6 Rep. 38.) (108) * LITTLETON. [Sect. 367. 228 a.] ALSO, in such case where the inquest may give their verdict LITTLETON. at large, if they will take upon them the knowledge of the law [Sect.368. 228 a.] upon the matter, they may give their verdict generally, as is put in their charge; as in the case aforesaid they may well say, that the lessor did not disseise the lessee, if they will, &c. ALSO in the same case, if the case were such, that after that, the lessor had entered for default of payment, &c. that the lessee had entered upon the lessor, and him disseised, in this case if the lessor arraign an assise against the lessee, the lessee may bar him of the assise; for he may plead against him in bar, how the lessor who is plaintiff made a lease to the defendant for term of his life, saving the reversion to the plaintiff, which is a good plea in bar, insomuch as he acknowledges the reversion to be to the plaintiff. (155) In this case the plaintiff hath no (156) matter to aid (152) lease, auxy bien ils poient aver conusance de le, not in L. and M. nor Roh. (153) &c. L. and M. and Roh. (154) par la ou tiel verdict a large fait la nature de matter mys en l'issue, L. and M. and Roh. (155) Et added in L. and M. and Roh. (156) ascun not in L. and M. nor Roh. (109)* 228 b. 18 E. 4. 10. 12 Ass. 38. 10 Ass. 16. 26 H. 6. Bar. 4. 31 Ass.26. 39 Ass. 3. 43 Ass. 18. 44 Ass. 3. 77. 31 E. 3. himself, but the condition made upon the lease, and this he cannot plead, because he hath not any writing of this: and inasmuch as he cannot answer the bar, he shall be barred. And so in this case you may see that a man is (157) disseised, and yet he shall not have assise. And yet if the lessee be plaintiff, and the lessor defendant, he shall bar the lessee by verdict of the assise, &c. But in this case, where the lessee is defendant, if he will not plead the said plead in bar, but plea nul tort, nul diss. then the lessor shall recover by assise, causâ quâ suprâ. *Hereby it also appeareth, that albeit the condition was executed by re-entry, yet the lessor cannot plead it without showing of a deed. But of this matter sufficient hath been said before in the two next preceding sections. "Which is a good plea in bar." In a case where there have been some variety of opinions in our books, Littleton here cleareth the doubt, and that upon a good ground. For he himself reporteth 9. 38 Ass. 26. in our books, that it was holden by all the justices of England, that a lease for life, the reversion to the plaintiff, was a good bar in an assise, and also that a lease for years, the reversion to the plaintiff, 18 E. 3. Ass. might be pleaded in an assise and so of a feoffment in fee with Ibid. 97. 18 warranty. And herein the diversity of pleading is to be observed; 4 Eliz. Dyer for in the case here put by Littleton of a lease for life, the tenant shall 207. 8Eliz. plead it in bar; but in a case of a lease for years, or an estate of tenant by statute or elegit, the defendant shall not plead in bar, as to say assisa non, &c. but justify by force of the lease, &c. and conclude et issint sans tort. And if the tenant of the freehold be not named, he shall plead nul tenant de franktenement nosme en le briefe and in the case of the feoffment with warranty, he must rely upon the warranty (н 3). Ass. 22. Dyer 246. *229 a. (Ante, 201 a.) LITTLETON. Where the feoffor may plead a con- * ALSO, if a feoffment be made by deed poll upon condition [Sect.375. (158), and for that the condition is not performed, the feoffor 231 a.] entereth and getteth the possession of the deed poll, if the feoffee brings an action for this entry against the feoffor, it hath been a question if the feoffor may plead the condition by the said deed poll against the feoffee. And some have said he cannot, inasmuch as it seems unto them that a deed poll, and the property of the same deed belongeth to him to whom the deed is made, and not to him which maketh the deed. And inasmuch as such a deed doth not appertain to the feoffor, it seems unto them that he cannot plead it (159). And others have said the contrary, and have showed divers reasons. One is, if the case were such, that in an action between them, if the feoffee plead (5 Rep. 76.) the same deed, and show (160) it (161) to the court, in this case, (110)* (157) disseisie-seisie, L. and M. and Roh. (158) &c. added in L. and M. and Roh. (159) &c. added in L. and M. (160) ceo, L. and M. and Roh. (H 3) For otherwise, if it be a feoffment of the party himself, or of an ancestor from whom he claims in fee, the plea would be double. Hawk. Abr. 316.—[Ed.] insomuch as the deed is in court, the feoffor may show to the court how in the deed there are divers conditions to be performed (162) of the part of the feoffee, &c. (here is implied if the condition be to be performed on the part of the feoffor or by a stranger), and [COKE, because they were not performed, he entered, &c. and to this he shall be received. By the same reason when the feoffor hath the deed in hand, and show this to the court, he shall (163) well be received to plead it, &c. and namely, when the feoffor is privy 231 b.] to the fait, for (164) he must be privy to the deed when he makes (1 Rep. 38.) the deed, &c. 231 b. Here the latter opinion is clear law at this day, and is Littleton's (*) Vid. sect. own opinion, (k) as before hath been observed. 170. 302, 340. "Insomuch as the deed is in court, &c." And herewith do agree Faits 55. (7) many authorities in law. "Have showed divers reasons." Felix qui potuit rerum cognoscere causas. The residue of this section needeth no explanation. (D) 40 Ass. 34. lib. 5. 75 b. Wymark's case. ALSO, if two men do a trespass to another, who releases to LITTLETON. one of them by his deed all actions personal, and notwithstanding [Sect.376. 232 a.] sueth an action of trespass against the other, the defendant may well show that the trespass was done by him, and by another his fellow, and that the plaintiff by (165) his deed (which he showeth forth) released to his fellow all actions personal, and demands the judgment, &c. and yet such deed belongeth to his fellow, and not to him. But because he may have advantage by the deed, if he will show the deed to the court, he may (166) well plead this, &c. By the same reason (ubi eadem ratio, ibi idem jus) (167) may the feoffor* in the other case when (168) he ought to have advantage by the condition (169) comprised within the deed poll (170). a [COKE, 232 a.] 27 (111)* 232 a. E. 3. 83. 13 E. 4. 2. 15 E. 4. 26. 21 E. 4. 72. Here by this section it is to be understood, that when divers do trespass, the same is joint or several at the will of him to whom the wrong is done, yet if he release to one of them, all are discharged, because his own deed shall be taken most strongly against himself; 22 E. 4.7. but otherwise it is in case of appeal of death, &c. As if two men 20 H. 6. 41. be jointly and severally bounden in an obligation, if the obligee 21 H. 6. Arbirelease to one of them, both are discharged; and seeing the trespas- 2R. 3.9a. sers are parties and privies in wrong, the one shall not plead a release 34 H. 8. tit. 8 H. 6. 15. trement 41. 14 H. 8. 10. (167) poit le feoffor not in L. and M. nor Roh. (168) le feoffor, L. and M. and Roh. Estrange al to the other without showing of it forth, albeit the deed appertain to Fait 21.3H.6. the other (1). 18. 26. (11 Rep. 5. 2 Rol. Abr. 412. Hob. 66. 2 Sid. 41. Post, 125 b.) (112)* 13 E. 2. tit. Monstrans *If an action of debt upon an obligation be brought against an heir, des Faits 42. he may plead in bar a release made by the obligee to the executors. But, albeit the deed belong to another, yet must he show it forth, for both of them are privy to the testator (1 3). (Plo. 439 b. Dyer 344. 6 Rep. 7. 10 Rep. 93 b.) (1) "26 H. 6 T. Barre 37. Obligee made an acquittance to one obligor, which was dated before the obligation, but was delivered afterwards; the other obligor pleads this in bar, and it was adjudged a good plea in bar. Nota, each was bound in the entirety, therefore it was joint and several. 34 H. 6. So in the case of the king, if he releases to one of the obligors, the other shall take advantage. 5 Rep. 56. contra. And as a release in deed to one obligor discharges the other, so of a release in law, as 8 Rep. 136. Needham's case. A woman obligee marries the obligor, that is another sort of discharge. 264 b. But 17 Car. B. R. two were bound jointly and severally. The plaintiff sued both, and afterwards entered a retraxit against one; whether that discharged the other was the question. Berkley said it was, for it amounts to a release in law, as the plaintiff confesses thereby that he had not cause of action, and therefore he cannot have judgment, as in Hickmot's case, 9 Rep. and retraxit is a bar to an action; and the plaintiff by his own act has altered the deed from joint to several, and therefore the other shall have advantage of it. Co. Inst. contra; for a retraxit is only in the nature of an estoppel; and therefore the other shall not have advantage; neither is it a release, though it be in the nature of a release; and if the obligee sues both, and then covenants with one not to sue farther, that is in the nature of a release, but the other shall not take advantage of it; and in 21 H. 6. it is said, that there must be an actual release to one obligor to discharge the other. See March. Rep. 165.-Pas. 18 Car. Hannan v. Roll. The obligee releases to one obligor; the other, in consideration of the forbearence, undertakes to pay, and in an action upon the case the matter was found specially; and Rolls argued, that the debt was not absolutely discharged, but only sub modo, viz. if the other can have the release to plead, and because the forbearance was a good consideration. But the court was of opinion, that the debt was absolutely discharged, and therefore the consideration was insufficient.-See Hob. Rep. 70. Parker v. Sir John Lawrence. In trespass against three, they divided on the pleading. Judgment against one. Then he entered a noli prosequi against the two others; it was held to be no discharge to him against whom judgment was had; for as to him, the action was determined by the judgment, and the others are divided from him, and not subject to the damages recovered against him; but a noli prosequi, or non-suit before judgment against one, would discharge all.”—Lord Nott. MSS. [Butler. Note 144.] [In trover against two, one pleaded not guilty, and a verdict passed against him; the other pleaded a release, and the verdict was for him: on motion for judgment against him, who was found guilty, it was denied, because the trover being joint, a release of all actions discharged both. Kiffin v. Willis, 4 Mod. 379. If two are bound in an obligation, and the obligee releases to one of them, proviso that the other shall not take advantage of it; this proviso is void. Lit. Rep. 190. But if A be bound to B. and C. solvend'. the moiety to B. and the other moiety to C. this is a several obligation, and the release of one shall not prejudice the other. Moor 64. So, where several enter into several covenants in the same deed, a release to one of the covenantors will not discharge the others. Cro. Eliz. 408. 470. 2 Salk. 574. With respect to a covenant not to sue, it is observable, that the principle upon which a covenant of this kind is held to operate as a release, is to avoid circuity of action; but it goes no further. Therefore, if two be jointly and severally bound, and the obligee cove nants with one of them not to sue him, he may nevertheless sue the other. Lacy v. Kinaston, 12 Mod. 548. 552. S. C. 1 Ld. Raym. 688. Dean v. Newhall, 8 T. R. 168. So a covenant not to sue one of two joint debtors, does not operate as a release to the other. Hutton v. Eyre, 6 Taunt. 289. And it seems to be now settled, that the rule, that a covenant not to sue operates as a release, applies only to cases where the covenantor and covenantee are single. S. C. 6 Taunt. 296. Dean v. Newhall, supra. See further on the subject of the above annotation, 2 Saund. 48 ed. Wms. Post, Book III. Chap. 6. Of Pleading.]—[Ed.] (13) Formerly, if a man did not show a deed to the court when he ought, the omission ALSO, if the feoffee granteth the deed to the feoffor, such LITTLETON. grant shall be good, and then the deed, and the property thereof, [Sect. 377. belongeth to the feoffor, &c. And when the feoffor hath the 232 a.] deed in hand, and (172) is pleaded to the court, it shall be rather intended, that he cometh to the deed by lawful means, than by a wrongful mean. And so it seemeth unto them, that the feoffor may well plead such deed poll which compriseth the condition, &c. if he hath the same in hand (173). Ideo semper quære de dubiis, quia per rationes pervenitur ad legitimam rationem, &c. a "The property of the deed belongeth to the feoffor." Hereby it appeareth, that a man may give or grant his deed to another, and such a grant by parol is good. *And it is also implied, that if man hath an obligation, though he cannot grant the thing in action, yet he may give or grant the deed, viz. the parchment and wax, to another, who may cancel and use the same at his pleasure (K 3). (172) est-ceo, L. and M. and Roh. (173) &c. added L. and M. and Roh. was esteemed matter of substance, and not helped upon a general demurrer. 2 Cro. 292. 10 Co. 94. But now it is aided on a general demurrer, Lut. 1355; and the statute 4 & 5 Ann. c. 16. enacts, that no exception shall be taken for not alleging the bringing into court any bond, indenture, or other deed, unless shown for cause of demurrer. And by the 16 & 17 Car. 2. c. 8. after verdict no judgment shall be stayed or reversed for want of alleging the bringing into court of any bond, bill, indenture, or other deed, mentioned in the declaration or other pleading, or letters testamentary, or letters of administration. Com. Dig. 478. (o 17).—[Ed.] (K 3) By the common law, a chose in action (except in the case of the king, 2 Ves. 181.) cannot be assigned or granted over, Lampert's case, 10 Co. 48 a; and the reason of the law's not allowing such assignment was, because it tended to champerty and maintenance, and to pass debts into the hands of the more powerful, who were thus enabled to oppress the inferior orders. 1 Mad. Ch. 435. But in equity a chose in action may be assigned, Squibb v. Wynn, 1 P. Wms. 381. Wright v. Wright, 1 Ves. 411. Row v. Dawson, 1 Ves. 333; and according to the case of Lord Cateret v. Paschall, even without a consideration. 3 P. Wms. 199. Sed vid. 2 Vern. 595. 3 Ch. Rep. 90. Anon. 2 Freem. 145. Robinson v. Bavasor, Vin Abr. tit. Assignment, (D) Ca. 29. And an assignment of a chose in action is good against creditors under a bankruptcy, brown v. Heathcote, 1 Atk. 160; and in the assignment no particular words are necessary (1 Ves. 332), though it usually contains an agreement to permit the assignee to make use of the name of the assignor to recover the property, and is considered in the nature of a declaration of trust. 3 P. Wms. 199. And though a chose in action be assigned, in consideration of love and affection, and advancement of children, it is good against the representatives of the assignor. Wright v. Wright, 1 Ves. 409. Fearn. Ex. Dev. 524. An assignee of a chose in action, as he is entitled to all the remedies of the seller (Ex parte Lloyd, 17 Ves. 245.), so he takes it, subject to the same equity as it was liable to in the assignor's hands (Coles v. Jones, 2 Vern. 692. Turton v. Benson, 2 Vern. 764. Hill v. Caillovel, 1 Ves. 122. Davies v. Austen, 1 Ves. jun. 247.), except in the case of the assignment of bills of exchange, or notes, before they are due, which may be enforced by an assignee for a valuable consideration, though no consideration was given by the person who assigned to him; an exception made in favour of trade. Anon. Com. Rep. 49. S. C. 2 Eq. Abr. 85. If a legacy be assigned, the executor, when called upon, cannot set off a debt due to himself from the legatee. Whitaker v. Rush, Ambl. 407. And if a bond debt be due to B., and B. assigns, the obligor is bound by having notice of the assignment, and his payment to B. afterwards will not be a discharge as to the assignee. Langley v. Lord Oxford, Ambl. 17. Baldwin v. Billingsley, 2 Vern. 540. It would, however, be otherwise if there were no notice of the assignment. 1 Ch Ca. 232. A chose in action, once assigned, cannot, generally speaking, be afterwards assigned, though the assignment be without notice. Tourville v. Naish, 3 P. Wms. 307. Brace v. Duchess of Marlborough, 2 P. Wms. 496. If, however, the purchaser of an equitable right gives no notice to the trustee of his pur |