¶1There was error in the charge of the court.
¶2The right of a party to recover reasonable attorneys’ fees, as special damages, in cases of fraud, is confined to cases where a party is obliged to take the initiative, in order to redress a wrong perpetrated through fraud or malice. Where a plaintiff has an apparently good cause of action, arising ex contractu, and the defendant sets up fraud, as a defence, he cannot recover special damages.
¶3In the case of Bracken v. Neill, 15 Tex. Rep. 109, the District Court allowed the plaintiff, Neill, to recover special damages, on the ground that the defendant, Bracken, had committed a fraudulent breach of trust, in the misuse of money committed to his care; and that Neill had been driven to his action, to recover the money. It appeared, however, that no money had, in point of fact, been entrusted to Bracken; but that Bracken, being indebted to Neill, undertook to pay the amount of his debt to a third person, to whom Neill wished to transmit the *256amount, and had executed a receipt to Neill, reciting that the money had been placed in his hands, by Neill, to be by him handed over to the third party. Upon this state of the case, this court required Neill to remit the special damages, which he had recovered as attorneys’ fees, in the court below. The defendant in the present case, had no right to recover damages, much less against an administrator, whose duty it was to prosecute the suit which he found pending at the time of his intestate’s death.
¶4There was also error in the second instruction given to the jury. They were told that, if they believed from the testimony, that the note sued on was given in consideration of a debt due from another, which was, at the date of the note, barred by limitation, they should find for defendant.
¶5In the absence of fraud, or any circumstances of imposition, a party may undoubtedly bind himself to pay the debt of another, although the debt be barred by limitation, at the time of the new contract.
¶6The judge below, on the trial of this cause, so framed his charge to the jury, that they could not find for the plaintiff, without first arriving at the conclusion, that the debt, for which the note was executed, was not barred by limitation, at the date of the note; and yet, the jury were not told what circumstances, or what lapse of time, would bar the original debt.
¶7Resides, if the question of limitation was a material question in the case, the burden of proof was on the defendant, to show that the original claim was barred by limitation; and the plaintiff could not be called upon to show that the claim was not barred. The question of fraud should have been distinctly submitted to the jury, for that was the main question in the case. The judge ought to have instructed the jury, what circumstances would constitute such a fraud, as the defendant could properly claim to be relieved against; for it is not every fraud against which the law will relieve.
¶8There was error in the judgment, for which it is reversed, and the cause remanded for another trial.
¶9Reversed and remanded.