The rule of assessing damages for breach of covenant, either of seizin, or for quiet enjoyment, or warranty of title, after an eviction by legal proceedings, is to allow first, the amount of the consideration paid for the land : Secondly, interest thereon for so many years as the plaintiff will be liable for mesne profits; and, thirdly, the taxable costs paid in defending the suit which terminated in his eviction. Baldwin v. Munn, 2 Wend. 399. This rule was fully adopted in our state, in the case of Stewart v. Drake, 4 Halst. 142, and has never been since varied. The costs of defending, as mentioned under the third head, were adjudged to be taxed costs only, and did not extend to money expended for counsel fees, any more than to money laid out in improvements. Holmes v. The Devisees of Sinnickson, 3 Green, 313.

The defendants’ counsel supposes the costs on eviction are allowed, because it was the warrantor’s duty to defend the suit, upon receiving notice of the action ; and he objects to them in this case, because no notice was given to the warrantor or his representatives, of the pendency of the action. But all the cases agree in allowing the costs of eviction ; and it is immaterial whether he had notice or not. His covenant to warrant and defend is not a conditional one, if he has notice; otherwise want of notice might bar the warranty itself. He covenants to defend, as absolutely as he does to warrant. The intent of notice is not to make him liable for costs, it is to make the record of eviction conclude him in respect of the title.

If a warrantor upon learning that his title was defective, should make an admission of the fact, and request the covenantee *310not to run him to costs by making a useless defence, perhaps it might form a good exception to the general rule; but that point is not now before us, and requires no opinion to be given upon it.

Let there be allowed for damages, the amount of the consideration money, with six years interest thereon, and the taxed bills of cost paid in the suit on which the plaintiff was evicted, and no more, except the costs of this suit.

White, Dayton, and Nevitjs, Justices concurred.

Judgment for plaintiff, for consideration money, with six years interest, and costs of eviction.