
    Prescott C. Bridgham & another vs. Edward G. Tileston.
    An assignment, not under seal, of a lease which is under seal, does not give to the assignee the right to maintain an action in his own name for subsequently accruing rent.
    A claim due from the plaintiffs and another person, jointly, is not a subject of set-off^
    Contract brought by surviving lessors against a lessee for rent due upon a lease under seal.
    It was agreed in the superior court that the plaintiffs executed an assignment of the lease, not under seal, to a third person, for whose benefit the action was brought, before the rent sued for accrued ; and that the plaintiffs are surviving partners of a late firm of Bridgham, Beals & Co. the lessors, and that after the death of one of said firm, they formed a new partnership with another person, under the same style, and the defendant held a note signed by the new firm and purchased by him, which he claimed to be a proper subject of set-off in this action. Upon these facts, judgment was rendered in the superior court for the plaintiffs, and the defendant appealed to this court.
    
      
      J. A. Loring, for the plaintiffs.
    
      A. S. Wheeler, for the defendant.
   By the Court.

The plaintiffs are entitled to maintain this action for rent in their name as lessors. The assignment, not being under seal, did not transfer to the purchaser the legal title to the instrument, so as to enable him to maintain an action on its covenants. An assignment should be by an instrument of as high a nature as the instrument which it purports to transfer. Brewer v. Dyer, 7 Cush. 337. The purchaser of the lease by the written transfer, not under seal, became its equitable owner; but he has not such legal title as to maintain an action on it in his own name as assignee..

The claim in set-off cannot be allowed. It is not due from the plaintiffs only, but from them in connection with another person who is joint promisor with them. The claim is not, therefore, due in the same right, nor from the same persons, as that for which the action i» brought. Judgment for the plaintiffs.  