judged against him in said suit, and that he sustained damages in other sum of twenty-five dollars on account of loss of time attending court in respect of said suit, etc. This averment of a breach of the covenant is open to the same objection pointed out above to the first and second assignments of breach. It is not averred that the plaintiff was evicted by lawful title in the plaintiffs in the unlawful detainer action existing at the time the lease was executed by Mrs. Tyson.

6. This count or assignment of breach is further assailed for insufficiency by the demurrers, on the ground that it does not aver the notice given the defendant was in writing. On the general question of notice it is proper, in view of some of the assignments of demurrer, to observe here that, to the recovery of ordinary damages for the breach of a covenant of warranty or for quiet enjoyment, it is not essential that the plaintiff should allege or prove that he notified the defendant of the pendency of the suit in which there was judgment of eviction on title paramount, for if he was evicted by a paramount title, 162 and can so prove in an action on the covenant, it is wholly immaterial whether the defendant was notified of, and invited to defend, that action, or indeed whether any such action was ever prosecuted. But where there is an action for the land involving the title of the covenantor, and the covenantee notifies him of its pendency, and invites him to its defense, then the judgment in that action, whether the covenantor accepts the invitation and makes defense or not, will be conclusive upon him as to the superiority of the title therein asserted over his title; and the plaintiff need only to adduce such judgment, with proof that the title involved was not derived from himself, to establish that the title to which he yielded was paramount to the title of the defendant. But, as in the absence of notice to come and defend the judgment will not conclude the defendant, and the plaintiff will be put to evidence aliunde of the paramount character of the title under which he was evicted, the effect and only advantage of such notice "is simply to enable the covenantee to recover on less testimony, since he is then not obliged to show under what title the recovery was had, except that it was not a title derived from himself since the purchase." And the giving of the notice having thus only an effect upon the character of evidence by which the cause of action is to be proved, and neither its presence nor absence having any influence upon the cause of action itself, it is never necessary to aver notice at all when the effort is to re

cover damages only for the deprivation of the subject matter of the covenant: Rawle on Covenants, sec. 124; Sugden on Vendors, 612; Bever v. North, 107 Ind. 544.

But there is diversity of opinion as to whether notice to defend must be alleged and proved as an essential part of the cause of action when it is sought to recover special damages for expenses incurred, pains and trouble and loss of time suffered in defending the action wherein the covenantee was evicted of the premises to which the covenant pertains. Perhaps the greater number of adjudged cases hold that such damages are recoverable though the notice was not given: See Morris v. Rowan, 17 N. J. L. 306. The considerations which underlie the opposite view, however, are to our minds more satisfactory, and we shall adopt that conclusion. These considerations are well stated by the Maryland court of 163 appeals as follows: "There is some conflict in the cases as to the right to recover counsel fees paid in defending the ejectment. [And other legitimate expenses in that behalf stand upon the same footing.] It is the duty of the covenantor and those bound by the covenant, upon receiving notice, to defend the covenantee's title, and upon their refusal or neglect to do so it is clear that the latter would have the right to employ counsel for that purpose, and to recover, in an action on the covenant, such reasonable fees as they had been compelled to pay. But as the appellees did not give such notice, but voluntarily undertook to defend the title, they have no right to recover the counsel fees which they have paid. Had notice been given to the appellants they might have thought proper to defend the suit and employ their own counsel, or they might have come to the conclusion that the title of the plaintiff in the ejectment could not be successfully resisted, and they might, therefore, have determined not to incur a useless expense in making a defense, and preferred to perform their covenant by paying to the appellees the amount of damages to which they might be entitled": Crisfield v. Storr, 36 Md. 129, 151; 11 Am. Rep. 480. Of course, this rule would not apply to such of the costs of the ejectment suit as would be adjudged against the defendant therein, though no defense were made, as upon default for instance; and these, we apprehend, might be recovered on the covenant, notwithstanding notice to the covenantor had not been given, since it is only the expenses of defending the suit which he would have upon notice the election of incurring or not.

8. The special damages claimed in the second count or third assignment of breach of the original complaint would not, there

fore, be recoverable, even if the claim were otherwise sufficiently stated, unless notice of the suit whereby the plaintiff was evicted was given the defendant and he was requested to defend it. Speaking to the assignments of demurrer which bring in question the sufficiency of the averment of notice, without reference to the insufficiency of this part of the complaint in other respects, it becomes necessary to determine whether such notice should be in writing. Here again there is sharp conflict in the authorities, with perhaps a preponderance of the adjudged cases supporting the negative of 164 the proposition: Rawle on Covenants, sec. 119. The question is res integra in Alabama. It would doubtless be the better practice in all cases for such notices to be written, but this is, it seems to us, a matter of convenience and not of principle. All that is requisite in such cases is, that the covenantee shall, in unequivocal, certain, and explicit terms advise the covenantor of the pendency of the action and request him to defend the same. That this may be as well done by word of mouth as by writing there can be no doubt. The only advantage which the written notice has over a verbal one is in respect of subsequent proof that a notice has been given and its contents; and if the verbal notice and its terms are proved with certainty, as, of course, it may well be in a given case, this advantage disappears. The plaintiff takes the greater risk of being able to prove the verbal notice, but if he does prove to the satisfaction of the jury that a verbal notice was given, and that it was in the terms which the trial court instructs them are requisite, there is no reason, we conceive, that such notice, so proved, should not be as efficacious as one in writing. The count of the complaint or assignment of breach under consideration is not, in our opinion, open to the objection taken by the demurrers in respect of its failure to allege that the notice given was in writing.

9. But the notice, as we have seen, whether oral or written, must be certain and explicit, and it must also be given by the covenantee to the covenantor, and it must contain an express request or requirement that the latter defend the title he has warranted. Mere knowledge on the part of the covenantor of the pendency of the suit will not suffice. Notice by a third person other than an agent of the covenantee will not do. And even notice by the covenantee, unaccompanied by an invitation to the covenantor to attend the trial, it seems, will not meet the requirements of law. It follows that the notice alleged here is insufficient because it does not appear to have been given by

the covenantee. The averment is, that "the defendant was notified," etc. This averment is insufficient: Paul v. Witman, 3 Watts & S. 407, 410; Miner v. Clark, 15 Wend. 424; Somers v. Schmidt, 24 Wis. 421; 1 Am. Rep. 191; Collins v. Baker, 6 Mo. App. 588.

10. So much with reference to the original complaint and the demurrers thereto. After all these demurrers 165 had been sustained by the court, the plaintiff amended his complaint by changing the action against M. M. Tyson individually into an action against her as guardian of S. L. Tyson, and by adding a new count. This count sets out the lease as in the original complaint, and contains several distinct attempts to assign a breach of the covenant for quiet enjoyment. The first of such assignments is the same as the first assignment in the original complaint, and is wholly bad, for the reasons already given. The second assignment not only fails to aver that the plaintiff was evicted by title paramount to the title he acquired from the defendant, but affirmatively shows that the title conveyed to him by the defendant was superior to the title of his evictors, in that it is alleged that the eviction resulted solely from the failure of the defendant to come and defend that action. The third assignment of breach is open to the same construction, and is also bad for omission of averment that the eviction was by title paramount. There is in this assignment an averment that the plaintiffs in the action whereby this plaintiff was evicted "claimed their right of possession to said lands under and through the defendant." This is insufficient, and would be, even had the averment been that those plaintiffs claimed title under and through the defendant, for such averment would be filled by proof of a subletting by the covenantee to the plaintiffs in the action of unlawful detainer; a title rested upon such sublease would be a title under and through the defendant by mesne conveyances. And an eviction upon such title, of course, would not be a breach of the covenant: Norman v. Foster, 1 Mod. 101.

11. The fifth assignment of the breach, after stating the covenant, continues thus: "Plaintiff remained on said place under said contract of lease until, to wit, the twenty-third day of Jannary, 1891, when he was prevented from further occupying the premises by the acts of certain persons taking possession of said land, claiming the right to do so under the defendant, and by the conduct and acts of said parties claiming under the defendant the peaceful and legal possession of plaintiff under said lease was destroyed." In addition to the defects in assignment

8, pointed out above, this one is further at fault in that eviction, actual or constructive, upon a mere claim of adverse right or title, is not a breach of the covenant. 166 The evictors must not only claim paramount title but they must prove it. "Habens titulum," said Chief Justice Hale, "would have done your business": Norman v. Foster, 1 Mod. 101.

12. The fourth assignment of breach of the covenant in the amended complaint is in the following words: "In and by the terms of said contract, the defendant guaranteed to the plaintiff the peaceful and legal possession of said premises and lands therein described from, to wit, January 1, 1890, to January 1, 1894, that plaintiff remained on said place under said contract until, to wit, the twenty-third day of January, 1891, when he was evicted from the same under a title which was paramount to the title of the defendant." And another assignment, numbered 5, avers that the plaintiff was forced to surrender possession of the demised premises on a day certain pending the term under a judgment and writ of restitution rendered and issued in a suit of unlawful detainer prosecuted against him by S. J. Chestnut and three other named plaintiffs, and "that said judgment was obtained, and this plaintiff was evicted from said premises, under a title which was paramount to the title of the defendant." In passing upon the sufficiency of these assignments, some observations upon the requirements of good pleading, under our somewhat relaxed system, in respect of the particularity with which the paramount title must be stated, will be necessary. In general, it may be said that it is unnecessary to go further in averment than to substantially set forth the paramount title by an eviction under which the covenant sued on is broken. And while, of course, a complaint could not be bad for extreme particularity in this respect, a resort to it might be very embarrassing to the plaintiff when he is put to his proofs, and, being unnecessary, it is imprudent to aver such title with minute precision: Rawle on Covenants, sec. 86. The paramount title could not, however, be said to be substantially set forth unless there is an averment identifying the holders of it; it must, at least, appear who had and asserted the superior title; and for the absence of such averment assignment No. 4 is clearly bad, but that number 5 is not objectionable on this ground. Moreover, it must, as we have seen, be averred that the title relied on as working a breach of the covenant, through eviction under it, was 167 a lawful title. And further, inasmuch as no eviction under a title emanating from the covenantee would be a breach of the cove