#### Tillett, &c. *vs*Commonwealth, for Rainey.

Error, to the Garrard Circuit.

. *Verdict. Instructions. Practice in suits at law. Set-off. Husband and wife. ■Limitations.*

Debt. *Case*99.

*June*22.

Case stated and pleadings.

Chief Justice Marshall

delivered the opinion of the Court.

This action of debt was brought in the name of the Commonwealth, for the use of-G. Rainey and Maria his wife, formerly Maria Aldridge, upon the guardian’s-bond executed by Tillett as guardian of said Maria,, with S. G. Aldridge as his surety. The defendants pleaded jointly, a performance of the conditions of the bond, on which issue was taken; and Aldridge pleaded separately, that he was surety, &c.,'and relies upon the failure to sue on the bond within five years after the ward, Maria, arrived at full age, and within five years after the passage of the act of 1838, for the benefit of sureties. To this plea the plaintiff replied, that said Maria was an infant at the passage of the act of 1838, and that said Aldridge had, within five years next proceeding the institution of this suit, acknowledged said bond as a subsisting and binding obligation upon him, and pi’omised to pay it. The rejoinder denies that the ward, Maria, was an infant at the passage'of the act referred to, and also denies the alleged acknowledge-*439merit and promise -by the defendant, Aldridge, within five years, &c.-, and tendered issue which was joined.

Insteuclibns giv* en by Circuit Judge.

Under the first issue the plaintiff relied on a settlement made by^Tillett in 1836, with the commissioners, showing a balance against him of $419 37-J-, and also read theiecord of a suit in chancery upon a bill filed in February, 1840, by the defendant, Aldridge, stating his securitysbip and the settlement by the guardian, and praying that Tillett might be compelled to pay the sum found due by said settlement, to Maria Rainey, or some one for her use, and that he Aldridge, might be released from his liability. Tillett, in answer, admitted the settlement, but making his answer a cross bill, asserted various demands against Rainey, the husband, on account of payments made for him as surety, &c., which more than equalled the amount in his hands as guardian, and prayed that this amount be applied to the payment of his claim against Rainey, and that satisfaction of all claims against him as guardian, &c., be entered of record. Aldridge answered the cross bill in July, 1841. In February, 1844, the answer of Maria Rainey was filed, in which she resisted the proposed application of her money in the hands of her guardian, and alledging that her husband had made no provision for herself and children, prays that the money in her guardian’s hand be settled on her, &c. After this answer was filed, Aldridge, in November, 1845, dismissed his original bill, and the cause stood upon the cross bill alone, which after an answer from G. Rainey, was dismissed on motion of Tillett, in December, 1847.

The present action was commenced in November, 1848, more than ten years after the passage of the act of 1838, and it appeared that before the passage of that act, the ward had attained full age, and had intermarried with Rainey.

The Court, on motion of the plaintiff’s counsel, instructed the jury in substance; 1st, That they ought to find for the plaintiff the balance appearing due by the settlement, with interest, which they might, in their discretion, compute with annual rests, unless they should believe that Tillett had paid off the sum, or that it was *440expressly agreed between Tillett and Rainey, that the demands existing between them were to be considered as payment of the amount due on the guardian’s bond; and 2d. That though Mrs. Rainey was of full age at the passageof the act of 1838 referred to, and although five years may have elapsed from her majority, before the institution of this suit, the security, Aldridge, is not {hereby released, if within five years before the institution of the suit, he acknowledged the bond sued on as a subsisting and binding obligation upon him. And an instruction asked for by the defendant, Aldridge, to the effect, that a promise made after the bar had become complete under' the statute, though within five years before the commencement of the suit, would not support this action.

Judgment of the

The jury found for the plaintiff $459 79 cents in damages, and judgment was rendered for that sum as damages, without noticing the penalty oi the bond. And on motion of :the plaintiff’s counsel, the Clerk was directed to endorse on any *ji.fa.*which may issue herein, that the same is for the sole benefit of Maria Rainey. To reverse this judgment Tillett and Aldridge prosecute a joint writ of error.'

The objection to theform of the verdict and judgment as being for damages only, and not for the debt, (the penalty of the bond,) to be discharged by the sum found as damages, is purely technical, and as heretofore decided, is not an available ground for reversal; and although thé first instruction is erroneous in authorizing the jury to compound the interest annually from the date of the settlement in 1836 to the time of trial, yet as the jury did not do so, but gave in fact only about one years interest on the balance due by the settlement, the defendants were not prejudiced by this error, and it avails them nothing. The principal objection, however, that has been taken to the first instruction, is founded upon its requiring, that there should have been an express agreement between George Rainey, the husband of the ward, and Tillett, the guardian, that the demands between them should go in discharge of the *441guardian’s debt to his ward, in order to authorize such an application of them by the jury.

That the verdict of the jury is for a sum in damages only is not an available error. Though the Court err in ail instructionto the jury, yet if the jury disregard it, the party opposing it is not injured, and cannot reverse for that cause. It is error to compound interest upon a balance found in the hands of a guardian on settlement.

In an action by two joint obligees, the def’t. cannot set offhis demand against one of them without the consent of the other. Though husband and wife sue for a debt due to the wife before coverture, it subsists as a debt due to her, and will survive to until there be a joint judgment— And while it subsists unappropriated, vvillsuivive to either upon the death of the other. And nothingshort of the actual appropriation by the husband, or by an agreement to assign, based upon a valid executed consideration can extinguish the right of the wife. *(Quere, is this sufficient?)*In equity the actual assignment of the husband is not always re. garded as deprj. ving the wife 0f her equity t0 *442have provision, made for her out oí her ohoses in action, if they remain unfound".

*441But this proposition is, in our opinion at least, as favorable to the defendants as the law will allow. In the first place, in an ordinary action by two joint obligees, the obligor cannot set off his demand against one only of the plaintiffs, without the consent of the other. And although in the case of a debt due to a wife before coverture as this was, the husband may receive or release it, yet as long as it subsists in its original character, it subsists as a debt due to her, and would survive to her or go to her representative, until reduced to a joint judgment, which, while unsatisfied and unappropriated, would survive to either of them upon the death of the other; and nothing short of a reduction of the *chose in action*to the possession of the husband, or his actual appropriation of it to another by assignment, or at least by agreement to assign, upon a consideration executed, can ever, in a Court of law, be regarded as extinguishing her right; indeed, we greatly doubt whether any attempted appropriation to another, which did not amount to a transfer of the legal title, or to a receipt or release, could be regarded as extinguishing the right of the wife even at law. It is to be recollected that the demand upon the guardian belonged to the wife, and that until reduced to possession by the husband, or to a judgment, it did not belong to him either exclusively or jointly with his wife, and if his actual agreement that such a demand may go in discharge of his own debts to the guardian or to another, which would at most create but an equity, can operate as a virtual reduction to possession to extinguish the right of the wife, which we are not prepared to admit; we are satisfied that the mere implication of such an agreement to be drawn by a jury from their own opinion of what the husband may or should have intended, cannot have that effect. In a Court of equity, the actual assignment of the husband is not always regarded as extinguishing her equity to have a provision made for her out of the *chose in action,*if it remain unpaid. And we know of no case in which a Court of law has, against *442the wife’s consent, deprived her of her right by alloW4 ing a set-off against it, merely on the ground that the husband was indebted to the wife’s debtor. And if the law ^even could allow the implication that a husband ought to pay his own debts out of the *choses in action*of his wife, and on this implication authorize the inference that he had promised or agreed to do so, and give effect to this implied promise against the wife, it certainly would not do so -in the case of an insolvent husband.

When the remedy is lost against a surety upon a bond, to revive the bondandgive remedy thereon, the ohligor, with a knowledge of his rights, must acknowledge the obligation of the bond upon him *443with the intention of giving effect to it as a subsisting obligation — or knowingly and intentionally induced, some action in regard thereto by theobligeewhich it would be a fraud to defeat.

*442But further than this, the cross bill of Tillett filed in June, 1840, and setting up his demands against the husband in discharge of his debt to the wife, does not intimate -that there was any agreement or understanding, express -or implied, with the husband, that such arrangement should be made. Nor is any suggestion to that effect made during the pendency of his suit up to its dismissal in December 1847, before which time the wife had claimed the debt for her separate use. The record of the chancery suit goes far to preclude any inference or implication of an agreement, express or implied, to settle the demands in the manner referred to, and there is no evidence which would have authorized the jury to find such an agreement. Whether, therefore, we look to the law or the facts of the case, the defendants sustained no prejudice from the feature of the instruction now under consideration. But the first instruction is erroneous to the prejudice of Aldridge in authorizing a verdict against both defendants, if the jury should find the facts on which a verdict for the plaintiff is made by the instruction to depend. We are of opinion that the Court also erred to the prejudice of Aldridge in the second instruction given for the plaintiff.

Mrs. Rainey having been of age before the passage of the act of 1838, (3d *Stat. Law,*558,) the cause of action on the guardian’s bond was then complete, and the bar of the statute applied at the end of five years without suit as a release of the surety, if he chose to rely on it in any subsequent action on the bond, unless its application should be repelled by some of the circumstances referred to in the- 5th and 6th sections of *443the act. ’These five years'had elapsed more than five years before the commencement of the present action, and the question is, by what acts, if by any, the surety in whose favor this statutory bar existed, might after-, wards preclude himself from relying on it, or renew or continue the obligation of the bond, and the right of action upon-it. To this question we answer in analogy with the cases decided on the general statute of limita.tions as applicable to simple contracts, *(see Graham vs. Hunt,*8 *B. Monroe,*7,) that the' act which would have the effect referred to must be such as would itself sustain the action on the bond, and give it obligatory force, if it had none before, or such act as would estop the surety from afterwards relying on the bar. Under this .view of the law, a mere promise by the surety, (after the bar was complete,) to pay the bond, or a mere acknowledgment of its subsisting obligation would not preclude his subsequent reliance on the statute, unless he acted with a knowledge of his legal condition and rights with respect to the bond, and with the intention to give it efficacy as a bond by his promise or acknowledgment, or unless he thereby knowingly and intentionally induced some act on the other side, which it would be a fraud in him to defeat. If his promise or acknowledgment were made under the belief that the bond was at the time a subsisting obligation which he could not defeat at will; such promise or acknowledgment- could not give to it any additional obligation, or deprive him of an existing right of which he was ignorant.

The instruction given by the Court does not accord with this view of the law, and on this ground, and because there is no proof or fact which would authorize the finding of any such acknowledgment as the instruction supposes, it is deemed erroneous and misleading.

It follows also, from the foregoing principles,, that the plaintiff’s replication to the plea of Aldridge, so far as it sets up a promise and acknowledgment within five years before the commencement of this action, is insufficient — and that to have been good, it should either have shown a promise or acknowledgment made under *444circumstances, and with the intention above indicated as being sufficient, or it should have shown that the action was brought within five years after the ward became of age, or that some of the circumstances mentioned in the 5th and 6th sections of the act had existed to save it from the bar. As it appeared in the recoi’d that the suit was commenced more than ten years after the passage of the act of 1838, the mere denial that the ward was of age at its passage, was not a sufficient answer to the plea, which averred that the action had not been commenced within five years, &c.— The plaintiff was not entitled to a judgment on this replication.

*Dunlap and Burditt*for plaintiffs; *Burton*for defendant.

Wherefore, the judgment being joint, is reversed, for the errors prejudicial to Aldridge, and the cause is remanded, with directions that the parties have leave to readjust the pleadings upon Aldridge’s plea of the statute, and for a new trial consistent with this opinion.