Swan vs. Benson, adm'r.

Johnson, was part of the consideration in their purchase, and was at the time a lien on the land.

There is no room for the presumption that Johnson, in taking the obligations of the defendants, intended to waive his lien, because they were not given as an additional security for James' debt, but in substitution for it; and if it was inequitable for James to have the land without paying for it, it seems to us to be equally so for the defendant.

The release set up by the appellant, was not averred to have been made upon any consideration; nor even to have been in writing.

"In a plea of release," says Story, "the defendant must set out the consideration upon which the release was made." Sto. Eq. Plead., sec 797; 1 Dan. Ch. Prac., 669.

A consideration is an essential part of every contract.

A release formerly, before private seals were abolished, must have been under seal; and, as a matter of course, must be in writing.

The demurrer to the appellant's answer was properly sustained; and there is no error in the decree,

Decree affirmed.

Page 387, Note 1, 1st line. Substitute "equitable" for "exuita

INDEX.

ABATEMENT.

See PRACTICE, 1. TAXATION, 8. TENDER.

ACCORD AND SATISFACTION.

An answer, in bar of an action of debt on a bond, that the defendant effected
a policy of insurance on his life, which was held by the agent of the plain-
tiff as security for the debt, presents no defense, and is demurrable. West
et al. vs. Carolina Life Ins. Co.

476

To constitute an account cognizable in equity, there must be mutual items
creating a running account, or such complications as distinguish the
transaction from a debt on one side, and a set-off on the other; and the
complaint should show the particular character of the accounts, or the
circumstances creating the necessity for equitable interposition. Trap-
nall ex'r., vs. Hill et al.

345

ACKNOWLEDGMENT.

See DEED, 3.

ACTION, RIGHT OF.

1.

Where promise to one for benefit of another.

A party for whose benefit a promise is made to another may maintain an
action thereon. Chamblee vs. McKenzie.

2. Right of action in bailee.

155

A landlord to whom a tenant delivers cotton as security for the payment of
rent acquires a right to the possession, and may maintain an action for
the disturbance thereof.

3. On promise to third party.

Id.

It is well settled that where a promise is made to one person for the benefit
of another, the latter may maintain an action thereon 'in his own name.
Talbot et al. vs. Wilkins et al.

411

4. By assignor in proceeding to enforce a lien, etc.

Where a note, which is a lien on property, is assigned as collateral security
for a debt, the assignor cannot maintain a proceeding in equity to enforce
the lien. Roberts et al. vs. Jacks.

5. Assignee of a note acquires.

597

The assignee of a note acquires the exclusive right of action therein.
6. To recover a legacy.

Id.

The distributees of an estate, or their assignee, cannot maintain an action
to recover a legacy or other chose in action due the intestate: The right
of action is in the administrator. Wheelan vs. Edwards.

723

ADMINISTRATION.

See DONATION, 3. EXECUTION, 1. PARTIES, 4. PROBATE COURT, 1-2-3. REM-
EDY, 2. SEISIN, 1. TRUST, 3.

1. Proceedings for sale of real estate, etc.

The proceedings prescribed in sec. 168, Gantt's Digest, for the sale of real
estate of deceased persons, applies to sales for the payment of purchase
money, as well as for the payment of debts generally. Montgomery and
wife vs. Johnson et al.

74

2. LIEN: Not displaced by the debtor's death.
Where a creditor has acquired a specific lien on particular property of his
debtor during his life time, it may be enforced after his death, and the
creditor need not resort to the general assets of his estate through the
Probate Court. Barber vs. Peay as adm'r.

3. Who may administer, etc.

392

Any competent resident of this State, preferring those who have an interest
in the estate, may, under our statute, be appointed administrator; or the
sheriff of the county in which the estate may be found, may, as public
administrator, assume such trust; but until he assumes the duty of ad-
ministering, or is directed by the court to do so, the sheriff does not be-
come the administrator of a particular estate, and cannot be required to
allow, or reject, a claim against it. Williamson vs. Furbush, adı'r., etc.
539

4. Proceeding to subject property to debts, etc.

A creditor of an estate cannot proceed to remove incumbrances from the
property thereof, and subject it to the payment of his debt, until he has
first presented it to the administrator, and had it allowed and classed. Id'
5. Disposition of assets on settlement of ancillary administration.
When an ancillary administration is closed, the residue of the assets should
be transmitted to the administrator of the domicil for final settlement
and distribution, and not exhausted in the payment of foreign debts. Id.