The opinion of the court was delivered by
Williams, Ch. J.— This case comes before us on exceptions,. taken to a judgment rendered on demurrer for the plaintiff, and on exceptions taken to the decision of the court on the trial of certain issues by the jury. The action is a scire facias on a probate bond, in which a judgment for the penalty has heretofore been rendered at the suit of one Taft. To maintain this scire facias it was necessary for the plaintiff to set forth, that he had such an interest in the bond, or that he stood in that relation to Daniel T. Aldrich of whom the defendant, Williams, was guardian, and for whose faithful performance of his duty, as guardian, the defendants executed the bond in suit, that he would be affected by a breach of the condition. This results from the nature of the proceedings on probate bonds. The breach, in the first instance, may be ascertained at the suit of any individual injured, and judgment rendered for the penalty, and whenever any other person brings a writ of scire facias thereon, as he may do, *418it is a new suit and every material allegation therein may be denied. The plaintiff, or prosecutor, sets forth in the writ that Daniel T. Aldrich, the distracted person of whom Williams is guardian, was indebted to him in the several sums stated in the declaration, for money had and received, paid laid out and expended, &c. It was competent for the defendants to deny this fact, and if they could prevail in defeating the claim of indebtedness, the plaintiff’s writ must fail. By no general plea to the writ could this fact have been put in issue. To this indebtedness the defendant pleads the general issue and the statute of limitations, and as either of these pleas, if properly pleaded, would have shown that the prosecutor could not maintain this action, they were suitable, pertinent pleas thereto. As the statute begins to run from the time of the promise, in any suit directly between the promissor and promissee, the plea should be non assumpsit infra sex annos. This would be the appropriate plea, unless there was something in the nature of the action which would require it to be in a different shape.
There is nothing in the statute, which prevents the creditors of such person from pursuing their respective claims against the person put under guardianship, or which protects the person thus under guardianship from any suits which may be brought against him. An obligation is laid on the guardian to pay the debt, and it may be necessary for him to obtain an order from the court of probate for that purpose. But there is no provision for subjecting the claims of the creditors to a dividend or to compel them to prove their debts. They are left at liberty to pursue their debtor by the usual common law actions,and if the person or property of the ward is exposed in consequence of the guardian failing to make a proper defence,or to apply the proceeds of the estate,whether real or personal, in payment of the debts,it would be unfaithful guardianship and he would be liable therefor. As we do not discover in the statute any thing which barred or suspended the right of action, which the plaintiff may have had for the recovery of his claim, we are led to the conclusion that the plea of the statute of limitations was good both in substance and form.
The enquiry then is, whether the replication to this plea is sufficient to avoid the effect of it. The replication is pay*419ment in part. That payment may be evidence of an ac-1 1 J J knowldgment, or of a new promise, so as to avoid the operation of the statue, is undoubted — whether it would in every case, may be more doubtful. Bringing money into „ . , . , court is not sufficient to take a case out of the statute as to the residue. Long v. Greville, 4 Barn. &. Gres. 10 ; and the payment of the principal into court does not revive the claim for interest when it is barred by the statute. Payment, or acknowledgment of a debt, is sufficient evidence, generally, to warrant a jury in finding against the statute. But such acts are but evidence and I apprehend could not be pleaded, and if specially found by the jury, would not warrant the judgment of the court thereon. No plea of this kind is found in any of the books of forms, or adverted to in any case,but the questions, in relation to the effect of payment and acknowledgment,have been considered on the trial of the usual replication, to wit, a traverse of the plea. As the plea does not allege,either directly or argumentatively, any new promisse, and instead of traversing the plea and alleging that the promises were made within six years, only sets forth that which, at best, is but evidence of an acknowldgment, we think it bad on general demurrer. The effect of this must be to reverse the judgment of the county court, and judgment must be rendered that the replication to the first plea in bar is insufficient.