Tom against O. Goodrich, who is impleaded with Oliver Barber, surviving co-partners of O. Barber, G. W. Barber, A. Hosford, A. Hosford, jun. and O. Goodrich, 2 Johns. 212

Tompxons, J. In this case two questions arise for our determination. 1. Whether the promise in the declaration ought to have been stated to have been made by those partners only who were living at the time the plaintiff paid the custom-house bond ? 2d. Whether the defendants are at all liable to the plaintiff in this action ? There can be little doubt that no right of action for money paid, laid out, and expended, arises in favour of a surety, against the principal, until the former has actually paid the debt, or his body has been taken in execution upon a judgment therefor. (Chilton v.

Whiffin and Cromwell, 3 Wilson, 13.) Before the plaintiff paid the first custom-house bond, (at which time, if ever, his right of action against the partnership accrued) George W. Barber died; and previous to the second payment, as surety for the said George W. Barber, Aaron Hosford also died. The declaration is upon the assumpsit of all the partners living at the time the bonds were executed. In the case of Spalding and another v.

Muse and others, (8 Term Rep. 363.) it was decided that in an action for money had and received, to the use of the plaintiffs, by three defendants, the former could not give evidence of money had and received to their use, by the three defendants and another person who had since died. This doctrine proceeded upon the undeniable principle, that to entitle himself to recover upon a promise, either express or implied, by the parties who are alleged in the declaration to have made it. Tire same doctrine has been recognized in this court, in the case of Holmes & Drake v.

De Camp, (1 Johnson, 36.) There can be no substantial, reason for applying a different principle in the action, for money paid, laid out, and expended, or in a case where the promise proved is by three persons only, when the promise laid in the declaration is by those three persons and others whom they have survived. A plea in abatement is not necessary where the contract is stated to have been jointly made by more persons than are proved, upon the trial, to have assumed ; but the plaintiff, in such case must fail upon the general issue of non assumpsit simul cum.

As the objection to the plaintiff’s right to retain the verdict upon the ground of a variance between the contract proved and the one stated in the declaration, might be obviated by an amendment, it becomes necessary to decide, whether the defendants are at all liable to the plaintiff, for the money paid by him as security for George W. Barber, one of the partners. In my opinion they are not. The law does not imply a promise by all the persons who may be benefited in consequence of payment by a surety, but only by the person whose debt is thereby discharged.

In this case upon the acceptance, by the custom-house officer, of the bond of the plaintiff and Barber, the claim of the United States, for the duties secured thereby, became confined to that bond, and the debt, if any previously existed in favour of the United States against all the parties for those duties, was extinguished. The previous debt to' the United States then became the debt of Barber only; and when the plaintiff became Ais surety, the promise of indemnity, and the promise upon the payment of the money, were implied against Barber only.

I am, therefore, of opinion, that the motion for a new trial ought to be granted; but that liberty be given to the plaintiff to amend his declaration, upon payment of she costs subsequent to the declaration. Thompson, J. was of the same opinion. Kent, Ch. J. I am of the same opinion, and would only add, on the merits of the case, that as George Barber gave the bond to the United States, and became thereby responsible, to the exclusion of his partners, the United States could look only to him. The plaintiff executed the bond as his surety,, and cannot charge any other person as principal.

There is no privity between the parties but what arises from the bond. It would be refining upon the doctrine of implied assumpsits, and going beyond every case, to consider the surety in a bond, as having by that act, a remedy at law against other persons, for whom the principal in the bond may have acted as trustee» George Barber, the principal here, was, as it is stated, a surety for the debt of his firm, and that debt might perhaps have arisen by their being sureties for other persons still behind them.

We can only look to the principal and surety in the bond to the United States, and to fhe obligations resulting from that relation, because the money was paid by the plaintiff in discharge of that bond, and in exoneration of the personal representatives of George Barber, who, alone, were legally responsible for that debt. It may be, that George Barber had received a full indemnity from his partner when he gave the bond.

We cannot, in this action, unravel the accounts between George Barber and his partners; and to push the implied assumpsit beyond the party to the bond, may iead to great difficulties, and produce injustice. New trial granted. Where one of two partners executes.a bond for duties oft goods imported, with a surety, and the surety advances his co-obligor money, with which he pays the bond, he may maintain an action against both of the partners, for money lent, this being a partnership transaction} although had the surety himself taken up'the bond, he could only have had an action against the partner who executed it.

Walden v. Sherburne, 15 John. 409. 3 Wilson 13, M, Shitton v. Whiffinet al. and 3- Wilson, 262. 346. 7 Term, 207. Harrison v. Rushfarth.