The opinion of the court was delivered,
by Sharswood, J.That part of the charge of the learned judge below, which forms the subject of the 1st assignment of error, is not open to the objection which has been made to it. Taken in connection with the answer to the plaintiff’s 3d point, in which it was said: “ In measuring the damages you must take into consideration the age and health of the widow, and it has been held that the rule of damages would be the amount of the depreciation of the fee simple interest according to the consideration-money paid to the covenantor.” The rule laid down clearly appears to have been that the jury should find for the plaintiff the value of the life interest of the widow, estimating the fee simple by the purchase-money. This is certainly in accordance with the authorities : Bender v. Fromberger, 4 Dall. 441; Brown v. Dickerson, 2 Jones 372; Patterson v. Stewart, 6 W. & S. 527. If there was evidence that the land had since that time depreciated in value, and if the law is that the consideration paid is not absolutely the measure of damages, but only the limit beyond which they cannot be carried, that question should have been raised by an hypothetical point presented to the court, which in this case was not done.
The 2d and 3d assignments of error give rise to the contention which has been most earnestly pressed that it was error to instruct the jury that under the facts of this case the plaintiff below was entitled to recover as a part of his damages reasonable counsel *403fees paid by him in the dower suit. It must be conceded that as notice had been given to the defendant below of the pendency of that action, and that he should take defence, of which he did not avail himself, the judgment in that case was conclusive that there was an eviction under it by lawful title which constitutéd a breach of the warranty. The learned judge below was of opinion, and SC instructed the jury, that the plaintiff below was entitled to recover his counsel fees and expenses in his unsuccessful defence of the suit for dower. In this, as it appears to us, he was in error. Without undertaking to lay down any general rule, it would seem to be most reasonable to hold, that where a covenantor has been notified to appear and defend, and decline's or fails to do so, and the covenantee chooses to proceed and incur costs and expenses in what it may be presumed that the covenantor considered to be an unnecessary and hopeless contest, he does so certainly upon his own responsibility. “If,” said Mr. Justice Huston, in Fulweiler v. Baugher, 15 S. & R. 55, “the vendee does not give notice but appears and defends, it has not been allowed him to recover his counsel fees paid and his own expenses; for there may be no ground of defence, and he shall not subject his vendor, without his knowledge and against his will, to more than he is liable to on his covenant of warranty. This generally. There may possibly be exceptions when the warrantor has left the state, and expense must be incurred before he can be found and notice served, as in cases of fraud in the warrantor.” The reason of this decision applies with equal if not greater force where notice has been given and the warrantor has refused or declined to take defence. In the ancient warranty when the warrantor was vouched to warranty, he must either appear and become tenant and take the defence of the title upon him, or judgment was given against him by default, and there vm a recovery over in value. The substitution of the modern covenant for the ancient warranty ought not to change, and practically it has not changed the rights and obligations of the respective parties. That an opposite doctrine might lead to serious wrong is illustrated in this very case, where it will be seen that the counsel fees and expenses make an addition of nearly 50 per cent, to the amount of the damages.
The 4th assignment of error is, that the paper sent out with the jury comprehended an item of $20 for expenses, of which no evidence had been given. As we hold that such expenses were not reasonable, it seems to be entirely unnecessary to consider this point, as upon another trial it cannot arise. It is certainly error, however, for the court to permit the jury to take out a statement made by either party containing items as to which no evidence was offered: Morrison v. Moreland, 15 S. & R. 61; Hall v. Rupley, 10 Barr 231. But in Kline v. Gundrum, 1 Jones 252, where there was as here a general exception to the statement sent *404out, it was held that, it was the duty, of the party excepting, to point out and call the attention of the court to the particular item or items which were unsupported by any evidence. “ It was the duty of the counsel,” said Mr. Justice Coulter, “ to have examined these accounts of claims, and if there was anything wrong in any item or any number of items, to have called the attention of the court below to those items and requested that they should be stricken out. As they did not do that we cannot and will not say that the court erred, because it does not appear that they were requested to, or that they did exercise any judgment of the suitableness or admissibility of those items.”
Judgment reversed, and venire facias de novo awarded.