¶1The following was delivered by Judge Roane as the opinion of the court.
¶2“The court (not deciding upon any other question occurring in this cause,) is of opinion that the declaration is defective in this, that there is no averment therein that the appellee did relinquish his pretension to administer on the estate of Satnuel Price, deceased, pursuant to the agreement therein stated, and because, for any thing in the said declaration averred, the said appellee may not have relinquished; but, on the contrary, the administration on said estate may have been granted to the appellant, on the decision of a motion, which may have been contested by the appellee notwithstanding the agreement aforesaid ; so that, if a recovery were had upon this declaration, it might be, for aught averred therein, wholly without consideration. On this ground, the judgment is reversed with costs, and judgment entered for the defendant.”