
    [Pittsburg,
    September, 15, 1823.]
    BOGGS against CURTIN, and others.
    IN ERROR.
    Two distinct firms A. B. and C. D. became sureties for E. F., and they ail join in giving a joint and several note for the debt of E. F.; A. B. and C. D. cannot jointly recover against E. F. on proving a payment made by them of the note, without also proving, that such payment was made out of the joint funds of A.B. and C. D.
    
      Roland Curtin, and Moses Boggs, John Mitchel and David Mitchel, (the two former composing thefirm of Curtin and Boggs, the two latter that of J. and D. Mitchel,) defendants in error, and plaintiffs below, brought this action of assumpsit against Jlndrew Boggs, in the Court of Common Pleas of Indiana county, and declared for money paid laid out and expended by the plaintiffs for the use of the defendant, and at his special influence and request. The defendant pleaded non assumpsit and the statute of limitations., and issues were joined.
    On the trial the plaintiffs proved that Boggs, the defendant, being indebted to the firm of Duncan and Foster, in the sum of 1,428 dollars, 72 cents, and having removed to Pittsburg, the plaintiffs at the instance of J. Mitchel, the defendant’s agent, gave him their joint note for that sum in favour of Duncan and Foster, and the plaintiffs afterwards paid Duncan and Foster the amount, and took up the note. The note was a common promissory note, signed, “for A.Boggs, J. Mitchel, J. andD. Mitchel, Curtin and, Boggs” promising that they, or either of them, would pay Duncan and Foster, on the first of April, next, 1428 dollars, 72 cents, for value received. The receipt for the money indorsed was as follows: “Received November, 26th. 1813, of Messrs. Curtin and Boggs, and John and' David Mitchel, the bail of Boggs, the full amount of the within note. Duncan and Foster.”
    
    The defendant then read in evidence by consent, the deposition of John Mitchel, one of the plaintiffs, in which being interrogated, •whether Andrew Boggs had not settled with him for any money or interest he might have in the suit in which he was named as one of the plaintiffs, he answered that he had, and that he, (Boggs) had his receipt. The defendant then read in evidence the following receipt of J. and D. Mitchel. “ Received March, 21 st. 1817, of Andrew Boggs, Robert T. Stewart’s note for 1500 dollars payable in Centre Bank, in full of all accounts whatever until this day: the note at 90 days, dated the 1st. April, 1817.
    . J. and D. Mitchel.
    
    The defendant thereupon prayed the court to charge the jury,
    1. That the action could not be maintained; it ought to have been brought by Curtin and Boggs only, for contribution.
    2. The receipt of John and David Mitchel, operated as a release of the present demand.
    The court charged, however, in favour of the plaintiffs and the defendant excepted to their opinion. A verdict and judgment were rendered in favour of the plaintiffs.
    The above points were now assigned for error.
    
      Alexander, for the plaintiff in error, contended,
    1. That a action by the present plaintiffs could not be sustained. The note was a joint and several one. The two firms had no joint fund out of which to pay this money. The action cán be joint only where the interest of the plaintiffs is joint. B. N. P. 157. 1 Saund. 154, note, 1; 2 Mod. 182. 20 Vin. 103, pl. 2 & 3. 12 John. 1. Dyer 370. If the payments are several, the action must be several, for the assümpsit is implied from the payment of the money, and partakes of the nature of the consideration. 1 Chitty Plead. 7. To sustain a joint demand there must be an express contract with all. 2 T. R. 284. 5 East. 225. 2 Mass. Rep. 293. 6 Mass. Rep. 460.
    2. On the second point he cited, 1 Phill. Evid. 444. 14 Ver. 161. 12 Mass. Rep. 102. 5 Bac. M. 702, 3 Johns. 70. 4 Burr. 375. 1 Serg. & Rawle, 493. 6 Burr. 411. 5 Serg. & Rawle, 396. 7 Cranch. 158.
    
      Fisher, contra.
    1. The receipt is joint, the note is joint, and indeed the whole transaction is joint. It does not appear that the money was not paid out of a joint fund: prima facie it was. That* was a matter of evidence, and the cause was not put on that ground. On the general issue pleaded, we were not bound to prove the payment to be out of joint funds. Bro. Rep. 147. But there was evidence from which the jury might infer payment out of joint funds.
    2. On the second point the court stopped Foster, not considering it necessary to be’ decided.
   The opinion of the court, (TilghmAn, C. J. being absent,) was delivered by,

Gibson, J.

The action of assumpsit must be joint or several accordingly as the promise on which it is founded, is joint or several. Where the promise is express, there can be little difficulty in determining to which class it belongs, as its nature necessarily appears on the face of the contract itself; and if it be joint, all to whom it is made, must, or at least may sue on it jointly, and after having recovered, settle among themselves the proportion of the damages to which each is respectively entitled: as in the case put in the note to Cory ton v. Lithebye, (2 Saund. 116, a. note 2.) where there was a promise to two, in consideration of 10^6 to procure the re-delivery of their several cattle which had been distrained. But an implied promise, being altogether ideal and raised out of the consideration only by intendment of law, follows the nature of the consideration; and as that is joint or several, so will the promise be: as in the case of the'implied promise to contribute, which arises in favour of sureties, or persons who have paid a debt for which along with others, they were jointly liable; and on which they cannot sue jointly, but each has a separate action, for what he has paid beyond his aliquot part. Graham v. Robinson, (2 T. R. 282.) Brand & Herbert v. Boulcott, (3 Bos & P. 235.) Now, in an action for money paid, laid out, and expended, to the defendants use, actual payment without regard to the liability under which it was made, is the consideration of the assumpsit. It is because the plaintiff has paid, not because he was bound to pay, •that the law implies a promise, the obligation to pay only supplying the place of a precedent request, which would otherwise be necessary. The criterion, therefore, is not Whether the plaintiffs were jointly ¡liable to pay the debt,- but whether they actually paid it jointly. If one had paid the whole it would be clear that all could not sue. But joint payment can be made only with joint funds5 for each must contribute to the whole, and as payment with the money of the one, cannot be payment by the other, there must nécessarily be an undivided interest in the fund out of which the money comes: otherwise, there will separately be payment by each, of particular parts of the debt. Now there was no evidence that the defendants debt was paid with funds held in common by the respective firms of Curtin and Boggs, and of J. and D. Mitchel. The receipt of Duncan and Foster,' contains no assertion of the fact, nor would it be evidence against the defendant if it did. On the other hand, the receipt of J. and I). Mitchel, to the defendant, for the part which they had advanced, shows that they considered it to have been their separate property; for had it been the joint property of the two firms when it was paid out, it would hardly have been treated as the separate property of either, when it was returned, as that would have had the effect of securing the one, and of casting the risque of recovering what remained due, on the other. Then, under the pleadings, payment out of a common fund, was a necessary part of the plaintiffs case and one which they were bound to prove; and having failed to prove it, the defendant was entitled to a direction that they had not made out a case on which they ought to recover. The remaining point was not necessarily involved in the cause, and need not have been stirred if the court below had given the direction required. It is unnecessary therefore to decide it here.

Judgment reversed.  