
    ULMER & als. v. CUNNINGHAM.
    If the goods of one of several joint debtors be taken in execution and wasted, the remedy should bo sought by the owner of the goods alone, and not by-all the debtors jointly.
    So if the officer extorsively demand and receive of one of the debtors illegal fees.
    This was an action for money had and received. It appeared at the trial that the plaintiff TJlmer was late Sheriff of this county, and the other plaintiffs his bondsmen, against all of whom, jointly, the defendant, being a deputy sheriff, in the year 1813, had eighteen several writs of execution in favour of John T. Jlpthorp late treasurer of the Commonwealth of Massachusetts, issued for the benefit of divers creditors of said Ulmer, upon a judgment rendered upon hiá bond of office as Sheriff; — by virtue of which executions he seized a large quantity of lumber and other personal property belonging to some, but not to all the plaintiffs, in severalty, but it was admitted that no part of the goods seized belonged to all the plaintiffs jointly.
    The plaintiffs offered to prove that the writs of execution were never returned to the clerk’s' office from whence they issued, — that the defendant had never made any return nor exhibited any account of sales of said property, — that he had demanded and received of one of the plaintiffs fifty dollars in money in payment of said executions, over and above the money arising from the sales of the property, — that the defendant had charged the plaintiffs upwards of ninety dollars for. fees on the' executions, and retained the same to his own use out of the money arising from the sales, though a large portion of the fees thus received was illegally and extorsively demanded.
    But the Judge who presided at the trial rejected the evidence thus offered and directed a nonsuit, subject to the opinion of the whole Court, whether the action could be maintained.
    
      Greenleaf and J. Williamson, for the plaintiffs,
    argued — 3. That all the original debtors were rightly joined in the suit;— because they were jointly interested in the executions against them, — and because a recovery here would be a bar to any action by one -alone. Scammon v. Proprietors of Saco meeting house,1 GreenL 262. — 2. That a seizure on execution is no defence for the officer, unless he shews the execution returned. Cqles v. Mitchell, 3 Lev. 20. cited in 1 Esp. Dig. 103. And as the plaintiffs, when they shewed the taking, necessarily shewed it to be by color of process, they ought to have been permitted to shew the whole gravamen. — 3. That the defendant took illegal fees, for which this action well lies. Moses v. Macferlan, 2 Burr. 3,012.
    
      ¡¡Pilson and White% for the defendant,
    insisted that the remedy was wholly misconceived, several plaintiffs being joined wrho bad no interest whatever either in the property taken, or. the money paid. If there was any implied undertaking on the part of the defendant, it was with those only whose property he had taken, but not with those who have no right to retain the money they might recover in this action.
    The cause having been continued for advisement, the opinio» of the Court was now delivered, by
   Melubn C. J.

This being an action of assumpsit in which the plaintiffs declare on a promise made to them jointly, such promise must either be proved to have been made expressly, or else implied by law; — and the defendant may avail himself of the want of such proof, upon the general issue. Chilly 54. In the present case there is no proof of an express promise; and by the report it appears that the property, for the proceeds oí which the action was brought, “ belonged to some of the plain- “ tiffs, but not to all, in severalty: and that no part of the goods “ seized belonged to all the plaintiffs jointly A If the goods seized had not been sold, the plaintiffs could not have joined in an action of replevin- for them. Co. Litt. 145. b. — The nature of the promise which the law implies corresponds with the nature and ownership of the property which the defendant has taken, sold and turned into cash. That being the several and not the joint property of the plaintiffs, if any promise is implied on the part of the defendant to the plaintiffs in the present case$ it is not a joint one ; and of course does not support the declaration ; and if any unlawful fees were taken by the defendant, it appears that such fees ivere deducted from the money arising from the sales of the property: and that not belonging jointly to the plaintiffs, the amount of sales did not; nor, of course, the unlawful fees so retained. I'he objection, therefore,'lies to the whole sum demanded. In the case of Weller & al. v. Baker, 2 Wils. 423, the Court considered the interest of the Tunbridge Dippers as a joint one, and the injury which they had sustained by the act of the defendant as a joint injury. So in Conylon f all •s. Lilhebye, 2 Baund. 115, though the plaintiffs’interest in the mills was several, the damage they had suffered was joint. Both actions were maintained. In Osborn & al. v. Harper, 5 East. 225, the sum sued for had been paid by the plaintiffs from a joint fund procured on their joint credit. On this ground, after some doubt, the action was sustained. In the casé from Roll. Abr. 31, pl. 9. and cited in 2 Sdund. 116,5. there was an express promise made to the plaintiffs jointly, founded cm a joint consideration. On this ground the plaintiffs were permitted to recover. But all the before mentioned cases were different from the present, and founded and decided on different principles;

As we are all satisüed, for the reasons we have assigned, that the nonsuit was properly ordered,- it becomes unnecessary for us to examine the other branch of the defence; Accordingly the motion to set aside the nonsuit is overruled and there must be judgment entered for the defendant for his costs*  