The opinion of the Court was drawn up by
Shepeey J.The plaintiffs were sureties for the defendant on a bond given by him to the treasurer of the town of Gorham,, to secure the faithful discharge of his duties as collector of taxes. The defendant having failed to collect, and pay as required, and the plaintiffs having been called upon, they made and signed a note payable to the treasurer for the amount said to be due from the collector. The case states, “ and it was further proved, that the plaintiffs liad di?) ,- paid said note before the bringing of the action. The defeiidaoJi counsel objected, that the action could not be maintained, because the plaintiffs could not join in the action, they not being partners, nor having paid said note out of any joint fund; and there being no evidence of any express promise to them jointly by the defendant to pay or indemnify them against said note or *224their liabilities.” The jury were instructed, “ that the plaintiffs were rightly joined in the action.”
In simple contracts where the consideration is joint, as payment from a joint fund; or where there is an express joint promise; or where the consideration has moved separately from each and the benefit to be derived from the contract is joint; the action should be in the name of all. 1 Roll. Ab. 31, pi. 9; 5 East, 225, Osborne et al. v. Harper; 1 Taunt. 7, Hill v. Tucker. But where two, or more, are liable to pay for others, and pay separately they cannot join. 2 T. R. 282, Graham et als. v. Robertson; 3 Bos. & Pull. 235, Brand et al. v. Boulcot. In this case there is no evidence, whether the payment was made from a joint fund, or separately by each. There being no evidence of a partnership, or joint interest, the presumption is, that each fulfilled his duty by paying his own share. If one were to sue the other for contribution, the presumption would be, that each paid the share which the law exacted of him, and that presumption must be removed by proof. The case of Osborne et al. v. Harper, as first presented to the Court, was like this case in that respect, the proof being, that the attorney paid the money, at the request of the plaintiffs. After argument, the Court directed the attorney to make affidavit, and it so being made to appear, that the money had been partly advanced on their joint credit, and partly borrowed on their joint note, the action was sustained. And such proof seems to have been considered as necessary to sustain it.
Where the assessors of a town had paid money for which they were liable, it was held to be the presumption of law, that the assessors had individually paid their proportions of the same. 7 Pick. 18, Nelson v. Milford.
The plaintiff’s, counsel in argument asserts, that the payment in this case was in fact made out of a joint fund, obtained by their performing a joint contract for the support of the poi^r. If such testimony had appeared in the case, it would have beeff sufficient to enable them to maintain the action jointly, but as it does not, this Court cannot so consider it. It has not become necessary to consider the other point in the case, as a new trial must be granted, and any defect of testimony may be supplied.
Exceptions sustained and new trial granted.