Joseph Story

“ The last exception is, that the breach does not set forth any entry or eviction of the plaintiff under the assignment and patent to John Hawkins Craig. Assuming that an averment of an entry and eviction under an elder title be in general necessary to sustain an action on a covenant against incumbrances, (on which we give no opinion,) it is clear that it cannot be always necessary. ”

“ In the first place, it is stated, that a material variance exists between the writ and declaration, of which (being shown upon oyer) the court, upon a general demurrer to the declaration, are bound to take notice; and if so, it is fatal to the action. ”