delivered the opinion of the court.
There were two jury trials in this case. On the first trial the jury rendered a verdict for the defendant, which, upon motion of the plaintiff, was set aside and a new trial granted him. To this ruling of the court the defendant • excepted, and the evidence was certified by the court.
Upon the second trial the verdict of the jury was for the plaintiff. And the defendant moved the court to set it aside, and to grant her a new trial, upon the ground that the verdict was contrary to law and the evidence, and also because the instructions given to the jury at the instance of the plaintiff, and those given in answer to inquiries made by the jury, were illegal and improper, and tended to mislead the jury, and went too far towards deciding the facts, instead of the law of the case. If there was no error in setting aside the first verdict and granting the plaintiff •a new trial, I think there was error in overruling the defendant’s motion to set aside the verdict on the second trial, and to grant her a new trial.
To understand the questions raised by the bills of exceptions, it is proper to state that the suit was an action of *657debt, in tlie name of W. R. Warren, administrator e. t. a., of Milly Rice, deceased, against Mary B. Brown, upon two bonds—one for $1,900, bearing date the 24th of February, 1869, payable one day after date, with interest from the 1st of July, 1869; the other for $491.55, of the same date, payable on or before the 1st of July, 1869. Both bonds are executed by Mary B. Brown, the plaintiff in error, “administratrix of A. W. Brown, deceased,” and are made payable to Milly Rice, testatrix of defendant in error. Upon the first trial the defence relied upon two special pleas, which alleged in substance that the said Milly Rice held two notes of A. W. & J. G. Brown—one for $3,392.66, bearing date the 16th of February, 1854, and payable on demand, and the other for $391.39, bearing date the 16th day of February, 1857, and payable on demand; that the said A. W. & J. G. Brown were partners, and that said notes were executed by them in their firm-name as partners. That J. G. Brown died in 1857, and that A. W. Brown was liable as his survivor for the payment of said notes, and died in October, 1861, and administration of his estate was granted to his son, B. S. Brown, and the plaintiff in error, his widow; that the former acted as the sole administrator during his life, the latter taking no active part in the administration until after his death, which occurred in 1868; and that she executed the said bonds to the said Milly Rice for the one-half of the said notes which her deceased husband and J. G. Brown, as partners, had executed to the said Milly Rice, believing that they were valid subsisting debts, binding her husband’s estate, the said notes being in the custody of the said Milly Rice, and had never been seen by her. Upon the fraudulent representation of the said Milly Rice, through her agent, W. R. Warren, now plaintiff in this suit as her administrator e. t a., that they were, and that by so doing she could release her husband’s estate from its legal liability for the other *658half of the debt, as the said Milly Rice proposed through her said agent that if she would execute her bonds as the administratrix of A. W. Brown for a moiety of said debts, she would release the estate of J. G. Brown from its liability for the other moiety, which she would give to the widow of J. G. Brown, deceased, by her will, who was a. daughter of the said Milly Rice. And she avers that the said notes were not a subsisting valid debt against either J. G. Brown’s or A. W. Brown’s estate; but that the same were barred by the statute of limitations in the lifetime of J. G. Brown, and could not be revived against his estate, which was not liable therefor, or any part thereof, which fact was fraudulently concealed from the said Mary B. Brown, the defendant, and was not known to her when she executed her said bonds. But, on the contrary, she executed the said bonds in her character as administratrix, believing that her intestate’s estate was liable for the whole of said debt, and would thereby be released from the one-half thereof.
Upon the second trial, the defendant relied upon two additional pleas, in which it is alleged that her said bonds were executed to the said Milly Rice for one-half of the two notes of A. W. & J. G. Brown aforesaid, through the mistake of both parties; that they were subsisting and valid debts against the estate of her intestate, A. W. Brown, deceased, and that his estate was legally liable for them; upon the promise and agreement of the said Milly Rice, that if she, the defendant, as administratrix of the said A. W. Brown, deceased, would execute her bonds for the one-half of the said notes, and the interest then in arrear and unpaid thereon, that she, the said Milly Rice, would release her intestate’s estate from the other half thereof; when she, the defendant, averred that there in fact existed no liability whatever on her intestate’s estate to pay the said note of $3,392.66, or any part thereof, but that the said *659debt was barred by the statute of limitations in the lifetime of her intestate, and was thereby extinguished, and could not be revived against his estate.,
The first instruction given for the plaintiff upon the second trial, undertakes to give a statement of the evidence in detail, and tells the jury that if they believe they are all the material facts proved by the defendant in the maintenance of her pleas, then she has failed to prove either of said pleas, and they should find a verdict for the whole amount of the bonds sued on.
This instruction seems to exclude any evidence which the plaintiff might have introduced which tended to prove the defendant’s pleas, and to have restricted them to the evidence adduced by the defendant. And if there should be other evidence in the cause than that detailed, the question whether it is material or not, is referred to the jury. Indeed, the instruction seems to imply, or might have been so understood by the jury, that the evidence detailed was the only material evidence in the cause, upon which their verdict should be founded.
There were most material facts proved by the evidence as certified, which are not adverted to in the instruction— i. e., that the note for $3,392.66 was barred by the statute of limitations in the lifetime of the defendant’s intestate, and that his estate was not liable therefor, or for any part thereof—the same being extinct and incapable of revival against his estate. (Seig, Adm’r v. Acord’s Executor, 21 Gratt. 369, 371). And that said bonds of defendant were executed by her, as administratrix of said intestate, for one-half of said notes of $3,392.66 and $361.39 by A. W. & J. G. Brown, and the interest which had accrued on said notes, which was in arrear and unpaid, and upon the consideration that the said Milly Rice would release defendant’s intestate’s estate from all liability for the other half of said notes, and for no other consideration whatever; all of which is *660■ignored by said instruction. Also, the evidence which tended to prove that said bonds were executed by the said defendant, as administratrix of her intestate, through mistake, both by Milly Eice and her said agent, and by the said defendant, that the estate of A. W. Brown was liable for the said note of $3,392.66, when it was not so liable.
The said agent of Milly Eice, as appears from his own testimony, was mistaken as to the liability of defendant’s intestate for the note of $3,392.66. He believed it was not barred by the statute of limitations.
The proposition made through him that if the defendant, as administratrix, would execute her bonds to Milly Eice for the half of said notes, she would release her intestate’s estate from its liability for the other half, was a representation that there was a subsisting liability on her intestate’s estate for the whole debt. But it is further shown by the endorsement on the notes of A. W. & J. G. Brown by "W. E. Warren, agent as aforesaid, and more fully by his receipt for the bonds of the defendant aforesaid, that he understood that there was a liability on the estate of defendant’s said intestate for both of said notes, and that the defendant’s said bonds were executed by her in her character of administratrix, with the understanding of both parties that there was a subsisting liability of the estate of defendant’s intestate for both notes, and that the bonds in suit under that mistake were executed to relieve said estate of such liability for one-half of said debt. But no reference is made to this important evidence by the court in detailing the evidence upon which the jury was instructed they should find for the plaintiff. And in stating that John T. Harris was her friend and legal adviser, and that he advised her to execute the bonds, it omits to state that the said Harris never saw the notes; and learning from Warren that the aforesaid proposition had been made to the defendant, no question was suggested to his mind as to *661the subsisting liability of the defendant’s intestate’s estate, and he advised her to accept the proposition, and in the instruction this fact or circumstance is also left out of view. I am of opinion that the instruction in the form it was given was calculated to mislead the jury, and was improperly and erroneously given.
Plaintiff’s 2d instruction. Whilst the court properly said to the jury that fraud or mistake must be clearly proved, it should have added that it may be proved by circumstances, as well as by direct proof.
Instruction 3. The instruction that- no ignorance or mistake of law can be considered as a defence in this case, because the suit was in a court of law, is erroneous, because the defendant’s defences were under equitable pleas, which in a court of law entitled her to the same relief she would have been entitled to in a court of equity.
Instructions 4th and 8th, so far as they conflict with defendant’s instructions Eos. 17 and 18, are erroneous. 5th instruction expounds the law correctly as far as it goes. But it should have been added that the jury may deduce fraud or mistake from the facts and circumstances proved, if, in their opinion, such deduction is reasonable.
Instruction 6. The question whether the notes of A. W. & J. G. Brown were or were not barred by the statute of limitations in the lifetime of the defendant’s intestate, was an important question involved in the pleadings, and was necessary to be decided by the jury, and had a direct bearing upon the question of fraud or mistake, and the instruction as given was calculated to mislead the jury.
Instruction 7. Whilst an obligor may be individually bound by his bond, though he executed it as administrator, yet the fact that he so executed it with the intention of binding the estate only which he represented, is a circumstance which, in connection with other facts and circumstances, may be properly considered by a jury upon the *662question of fraud or mistake. I am of opinion, therefore, that this instruction in the form it was given, was not correct, and was restrictive of the defendant’s rights as to the effect to which her evidence was entitled.
Instruction 9. That instruction was properly given.
Instruction 10 was properly refused by the court.
Instruction 11 is the law—though under the facts and proofs in this cause it is rather an enunciation of an abstract principle. Twelfth and thirteenth instructions are in conflict with the instructions given for the defendant— Hos. 12, 16, 17, 18, 19, 20 and 22. The twelfth instruction would have been valid, if the latter clause, all after the words “ if Mrs. Brown had,” were stricken out, and the following words were inserted, or substituted: “ known that the estate of her intestate was not liable for said note, and that its liability could not be revived.” It is not a question of diligence; for the greatest diligence on her part in making inquiry could not have benefited Mrs. Eice, who could sustain no loss by her lack of diligence. It was a question of mistake—either of mutual mistake, or of the mistake of Mrs. Brown alone. Was the proposition made to her to execute the bonds by Mrs. Eice, or her agent, for one-half of the debt, in consideration whereof she would release her intestate’s estate from the other half of the debt, under the mistaken belief of Mrs. Eice, or her agent, Warren, that the estate of Mrs. Brown’s intestate was liable for the whole debt ? And was the proposition accepted by Mrs. Brown under the mistaken apprehension that her intestate’s estate was liable for the whole debt, and that by giving her bond as administratrix, binding his estate for one-half the debt, she would relieve his estate of the other half, for which it was bound ? If so, she executed her bond under a mistake, and the mistake was mutual, and was a proper case for relief in equity. And if Mrs. Eice, or her agent, knew that Mrs. Brown’s intestate’s estate was *663not liable, but proposed to relieve it from a liability which they knew did not exist, upon the consideration that Mrs. Brown would execute her bonds for half the debt, then, regarding the proposition itself as containing a false representation, it was a fraud upon Mrs. Brown, which a court of equity would relieve against. But if Mrs. Bice, or her agent, was not mistaken, the mistake was of Mrs. Brown alone, but her right to relief in equity would have been even stronger than if the mistake had been mutual.
It seems to me that the proposition from Mrs. Bice, to release Mrs. Brown’s intestate’s estate from liability for one-half the debt if she would execute her bonds as administratrix for the other half, was an unqualified and unequivocal representation that said estate was liable for the whole. If the asseveration had been made in express terms, it would not have been a more influential representation.
If the notes were on the table when Mrs. Brown was present, anl when the aforesaid proposition was made to her by Mrs. Bice, and if Mrs. Brown’s attention had been called “to the notes, or she was aware that they were there, which does not appear (the witness, Warren, says he had no conversation with her); and although she was aware that she had access to them, and could examine them for herself, she did not think worth while to do so, confiding in the representation of Mrs. Bice, which was plainly implied in her proposition that the estate of her intestate was liable for the whole debt, which she received as true without question, as did her counsel and adviser, Mr. Harris, at another time, and by whose advice she acted upon it, it is not for Mrs. Bice, or her agent or personal representative, afterwards to object to Mrs. Brown’s equitable relief against such mistake, upon the ground that she ought not to have acted upon their representations, but have investigated the matter for herself.
Nor can the circumstances or facts that the notes were *664put by Warren in the hands of Koogler, who was the brother of Mrs. Brown, and that he had taken them to Wartmann to make a calculation of what was due on them; that Wartmann made the calculation, which was returned by Koogler to Warren, who adopted it, and prepared the bonds which he sent to Mrs. Brown by Koogler, which she executed, show that the said bonds were not executed by Mrs. Brown through mistake, from which she should be relieved by a court of equity. If Koogler had been the authorized agent of Mrs. Brown, of which there is no proof, what proof there is tends rather to show that he was selected by Warren to bear his messages to her, and that he was the agent of Warren rather than the agent of Mrs. Brown. But if he was the agent of Mrs. Brown, he was as liable to be mistaken as Warren himself was, or Mrs. Rice. It is evident that he never communicated to Mrs. Brown that her intestate’s estate was not liable. If he had she would never have executed her bonds. It is most probable that she never inspected the notes, and it is remarkable that Wartmann, in his statement, describes them as “bonds,” which she probably did see. And Mrs. Rice, in her will, describes them as “two certain bonds, executed by A. W. & J. G. Brown”; and again, “that portion of the A. W. & J. G. Brown bonds donated to Mary Brown,” &c. The presumption is that when she made her proposition to Mary B. Brown, as testified by Warren, she spoke of them to her in the same way as bonds. And when Warren, in making known to Mr. John T. Harris, the counsel and adviser of Mary B. Brown, what was the proposition of Mrs. Rice, he did it in a way not even to suggest a thought in the astute mind of her counsellor that the estate of his friend’s intestate was not liable for the debt, or any part of it, and he advised her to accept the proposition.
I perceive no substantial error in the 37th and 38th instructions given by the court to the jury, responsive to the inquiries made by them.
*665. The court gave the instructions tendered, by the defendant, to which I do not find that any exception was taken by the plaintiff.
I am of opinion that for the errors in the instructions given by the court, as pointed out, the verdict on the second trial ought to have been set aside and a new trial awarded the defendant; and upon the further ground that the defendant was evidently surprised by the testimony of the plaintiff, whom she had introduced as a witness. He was not, under the circumstances, a witness of her selection,, but was the plaintiff in the suit and had an interest adverse to hers. His testimony on the first trial, as certified by the judge, was such as to induce her to introduce him as a witness on the second trial; and his testimony varying, as ir does, so materially from what he testified on the first trial, was evidently a surprise to her. Although the-certificate of the court of his testimony at the former trial was not legitimate evidence before the jury to discredit his testimony on the second trial, I think it was proper to be considered.by the court upon the motion for a new trial upon the ground of surprise.
But I am of opinion that the court did err in setting aside the first verdict and granting the plaintiff a new trial. The jury rendered a verdict in favor of the plaintiff for $195.59, part of the debt in the declaration mentioned, with interest from the 16th of February, 1869, till paid, which,, upon motion of the plaintiff, was set aside and a new trial awarded him. To which ruling of the court the defendant excepted, and her bill of exceptions was signed, sealed and made a part of the record, and all the evidence was certified by the court. If it appears from the evidence so certified that the verdict of the jury was warranted by it, the court erred in setting aside the verdict and granting a new trial to the plaintiff; and all the proceedings subsequent thereto were erroneous and should be set aside, and the appellate *666•court may enter such judgment as should have been ren-' dered by the circuit court.
I deem it unnecessary to review the testimony in detail, on the first trial, but will content myself with the remark that under the 6th, 7th, 10th, 11th, 12th and 14th instructions given by the court for the defendant, to which there was no exception by the plaintiff, I cannot perceive how the verdict of the jury could have been different upon the evidence as certified. The evidence does not show actual ■or intentional fraud, yet the finding of the jury was warranted by the instructions before referred to.
The judgment is de bonis propriis against the defendant, the plaintiff in error, for $2,391.55, with interest from the 1st day of July, 1869, till paid. The record shows conclusively that she never intended to bind herself personally for that debt, and that she never received the consideration of one cent for it, and that in the execution of her bonds as administratrix, she had no thought of binding herself personally, but only the estate of her intestate, which she believed was bound for double the amount, and that she executed the bonds for the one-half to bind the estate upon the consideration that the estate would be released from the other half which she was induced erroneously to believe it was legally bound. Such was not only her mistake, but it is evident that it was so understood by the plaintiff’s intestate, and her agent, who is the plaintiff, who first brought suit against her not in personam, but in her representative character, seeking only to bind her intestate’s estate—which he dismissed, and afterwards brought this suit, to subject her personally to the payment of the debt, though in the transaction it was never understood by either party that she was to be personally liable. The record shows conclusively that it was the intention of both parties not to bind her personally, but only her intestate’s estate, for a debt for which they mutually believed *667'it was legally bound, and that they were both mistaken in that belief. And it appearing' now conclusively from the record that they were both mistaken, and that the defendant’s intestate’s estate was not bound for the debt, and that the demand of the plaintiff reaches beyond evén anything that was intended by the parties, and seeks to bind the defendant personally for a debt of her intestate, for a debt for which he was not liable, it seems to me that the whole transaction was founded on mistake, and works an injustice .against which equity should relieve.
As the case is presented by the whole record to the appellate court, I am of opinion that the defendant is not ■equitably liable to the estate of Milly Bice for more than "the verdict of the jury, upon the first trial, awarded the plaintiff, which is a moiety of the note for f391.39, due from her intestate to the estate of Milly Bice, the other moiety having been bequeathed and released by her will to Mary Brown, the widow of J. G. Brown; and I am of opinion that justice will be attained by rendering judgment against the said defendant for the amount of the verdict of the jury in the first trial, and an end put to this protracted litigation. I am opinion, therefore, to reverse the judgment of the court setting aside the first verdict, and all the subsequent proceedings, and of rendering judgment thereon, as the circuit court ought to have done.
Judgment reversed.