Swenk v. Stout

■ By the court. The declaration might have been more artificially drawn, but we consider it as substantially good. It is said (1Burr. 319 ) that the rules of pleading are founded in the closest logic, and the good sense of the cases cited must be, that as the plaintiff must entitle himself to his action, and as in covenants of quiet enjoyment and warranty the acts of wrong doers are not comprehended, (1 Stra. 400. Hob. 35, 3 Term Rep. 584 ) he should state a case, wherein the title of the covenanter must nécessarily have come in question. A lawful opposing right should therefore be averred, though it need not be set out. 4 Term. Rep. 617. The plaintiff here has asserted, that the defendant at the time of the sale had no right or title to any part of the lands sold, and the demurrer confessing all facts which have been well pleaded, (Co. Lit. 72. a. 5 Co. 69. Carth. 31) it follows, that the recovery could only have been under a good and and elder title, inconsistent with the right of the now defendant, and not under that right. The declaration is certain to a common intent, and the notice stated to have been given of the commencement of the ejectment precludes every idea of collusion. Judgment for the plaintiff, and writ of inquiry of damages awarded.