Covenant upon a warranty of lands made by the testator in his lifetime to the plaintiff, who now declares upon the same, and states that he, the testator, at the time he made said warranty and the deed containing the same, had not any title to said lands.

'• And after a very laborious argument on both sides, Roane and Hatwood, Judges, decided that an eviction must be alleged; otherwise this action cannot be sustained. And they relied upon Saund. 181, note 2; B. & P. 14; 3 Term, 584; 2 Johnston, 4; 7 Johnston, 258; 11 Johnston, 122; 3 Mass. 543; 4 Dall. 439.

The judgment given in favor of Stump ; and judgment given for the defendants on the demurrer.

See Ferris v. Harshea, Mar. & Yer. 52; Randolph v. Meeks, Mar. & Yer. 64; Allison v. Allison, 1 Yer. 16; Stipe v. Stipe, 2 Head, 169; Miller v. Bentley, 5 Sneed, 671; Meek v. Bearden, 5 Yer. 467; Young v. Butler, 1 Head, 640; King’s Digest, 4084-87, 4111-15.