
    Elmendorph against Tappen, Tremper and others.
    Where JL. B. and C. being partners in a distillery, became jointly hound with B* as their surety, en a bond to the United States, oTthetiutiesTn distilled spirits, the obligors, requested E. to pay the amount due on the bond to the United raised8’thatP he having caiRdonS.^viio shouidSebV!paid! of ^assumpsk against* aiíy the oo-ohiigors, ^for on the bond, it was held that D. one of the obligors, being a surety only, and having no interest in the distillery, was not liable: Though the other two obligors being parties in interest, would be liable on an implied assumpsit, arising from the promise of Ji,
    
    THIS cause came before the court, on a writ of error, from the court of'common pleas of Ulster county.
    The plaintiff sued the defendants below, in an action of assumpsit. The declaration was for goods sold and delivered, money lent, and money had and received tor the use °f the plaintiff; and on an inshnul computassent.■ rpjle defendants pleaded non assumpsit.
    
    At the trial, the plaintiff gave in evidence a bond, dated ire. ’ the 26th of August, 1798, executed by the defendants to e the United States, for 2,000 dollars* conditioned that if George Tappen, John Tappen and William Gilmore, (being all the defendants except Tremper,) shall at the expiration of nine months, well and truly pay, or cause t0 be paid to the United States, &c. the full amount of duties payable by the laws of the United States, on a^ such spirits distilled, at a certain distillery at Kings-belonging to the said George Tappen, John Tap-j)en and William Gilmore, which shall be removed from . . , . , , the said distillery, within three months next ensuing, • o then, &c. otherwise, See.
    
      ' The plaintiff then proved, that in 1799 or 1800, tire defendant, John Tappen, in a conversation with the plaintiff, who was an officer of the revenue to collect the duties on distilled spirits, requested the plaintiff to pay the amount due on the bond (56 dollars and 22 cents) to the supervisor of the revenue, and he would be paid ; and that the plaintiff afterwards paid to the supervisor the amount. The plaintiff further proved, that in 1806, before the commencement of the suit below, the bond was shown to the defendant, John Tappen, who was informed, that the plaintiff had paid the amount marked for duties, to the United States; that John Tappen, admitted the sum marked on the bond to be due, and that it ought to have been paid, and would have been paid, but that he wished to see one of the other defendants, George Tappen, before he did pay it. The counsel for the defendant then insisted, that this promise to pay, being made by John Tappen only, he alone was liable ; and the court below being of that opinion, nonsuited the plaintiff; on which a bill of exceptions was tendered to the opinion of the court.
    Sudam, for the plaintiff in error.
    
      Hawkins and Buggies, contra.
   Kent, Ch. J.

delivered the opinion of the court. The plaintiff below declared upon a joint promise by all the defendants ; and unless the evidence offered, supported the charge of a joint assumpsit, either express or implied, he was properly nonsuited. I did think, at first, that the consent of all the joint debtors was implied, by thé request of one of them to the plaintiff, to pay their bond; but on adverting to the condition of the bond, this inference cannot be supported. It appears on the face of the bond that the debt was the proper debt of three of the co-obli* , , _ . , gors5 but that Tremper, the other co-obligor, was mere* ly a surety, and that he had no interest in the distillery, for securing the duties on which the bond was given. A request by one of the debtors might, perhaps, well enure as the request of all who were concerned in interest and were ultimately responsible to each other, for the payment of a ratable proportion of the debt. If the defendant who made the request to the plaintiff, had himself paid off the bond, he never could have called upon Tremper to contribute, though as between the other defendants, who had equal interest, he might; They were partners in the distillery, and the act of one might, perhaps, well be deemed the act of all. This however ought not to be extended to Tremper. When the bond was once discharged, he had no further concern or interest in the transaction; and a payment at the request of one of the obligors, ought not to have a greater operation than an actual payment by that one. The court are accordingly of opinion, that the law in this case will not imply an assumpsit in Tremper, that the nonsuit was properly directed; and that the judgment must be affirmed.

Judgment affirmed,  