The opinion of the Court was delivered by
Rogers, J.
—The second section of the act of congress of the 19th of April 1816, makes it the duty of the collector, in certain cases, previously to issuing a license to the owners of stills used for the purpose of distilling spirituous liquors, to take a bond from the proprietor with two or more sureties, conditioned for the payment of the duties. The bond on which this suit was brought purports on its face to have been taken in pursuance of this act, but varies from the direction of the act in this particular, that it is executed by the principal with one surety only. It is contended by the defendant that for this reason the bond is void; but the court of common pleas were of a different opinion, and in this position they are supported by the authorities cited at the bar. The provisions of the act of congress are in this respect directory, and were intended as much for the protection of the collector as for the security of the revenue. If the parties dispense with two sureties it is no reason the bond should be avoided, although it makes the collector responsible to the government for the amount of the duties. It would be unreasonable to give this effect to the transaction, when the additional surety may have been dispensed with at his request, and for his benefit. It is said that a penalty is imposed on the owner of a still who distils liquors without a license, but notwithstanding this provision, I cannot agree that the owner who obtains a license under the circumstances stated, incurs the penalty imposed by the act. The license, *23although irregularly obtained, would be an available defence to a suit for the penalty. The act inflicts the penalty only on those who undertake to distil without license. But in the conclusion of the charge we think there was error. The bond purports to be a joint and several bond, intended to be executed by John Laughlin, Jun., Alexander Sharp and William Laughlin, conditioned for the payment of 318 dollars 60 cents, being the full amount of the duties payable by John Lauglin, Jun., in virtue of the act of congress passed April 19th, 1816, entitled “ an act to abolish the existing duties on spirits distilled within the United States, and to lay other duties, in lieu of those at present imposed, on licenses to distillers of spirituous liquors.” The bond, at the time Alexander Sharp affixed his signature to it, was filled up with the above names, and contains the reference to the act of congress, which requires, as before remarked, a bond, with two or.more sureties. At the time, therefore, that Alexander Sharp, who was the obligor second named, signed the bond, he had a right to believe that it was the intention of all the parties that the bond was to be taken in strict conformity with the act of congress, and that William Laughlin would also execute the bond. If, therefore, (his reasonable expectation was disappointed, either wilfully or negligently, he has cause to complain. Plis signature is conditional, and unless it be shown that the condition, viz. the execution of the bond by William Laughlin, whose name was in the body of it, has been dispensed with by him, he has a good defence to the suit. A man may be willing to bind himself jointly with another, and still unwilling to make himself alone responsible. We cannot agree with the court of common pleas that there is nothing justifying the construction from the face of the bond, in the absence of any other proof, that it is void as to the present defendant. Unless the plaintiff can show that Sharp was informed that William Laughlin had not signed the bond, and agreed that he would alone be liable, the plaintiff cannot recover, and the court should have so instructed the jury. It has been urged that this defence could not be made under the plea of payment, with leave, &c., and on this point we had some doubts; but on examination we are inclined to believe that this point has been already decided. Parol evidence has been admitted under the plea of payment to a suit on a bond against a surety, to show that he executed the bond under a declaration by the obligee that his signing was a mere matter of form, and that he never should be called on for payment. Miller v. Henderson. That was a case of fraud ; and in this it is contended it differs from the present. But although in this transaction it is probable at the time the parties did not intend to commit a fraud on Sharp, yet there is fraud in attempting to make a fraudulent use of the bond by enforcing payment from the defendant.
Judgment reversed, and a venire ele novo awarded.