delivered the opinion of the Court. [After stating the case.] Upon these facts the plaintiff contends, that the defendant, having a joint execution against Herschell, Joseph and Myers, was bound by law to levy it, so far as practicable, equally upon the property of each ; which would have left in his hands a balance of Joseph’s property sufficient to satisfy the plaintiff’s execution.
In a judgment against several where the joint property of the debtors, whether copartners or joint tenants, has been attached, as well as their several property, it would be the duty of the officer to levy upon the joint property, before he would have a right to take the several property of either to the prejudice of other attaching creditors. But in this case no joint property was attached, and the offi*230cer was bound to satisfy the execution by the severa, property which he had attached. Was he bound to marshal the assets in his hands with reference to subsequent attachments, or had he a legal right, either by the direction of the judgment creditor or according to his own discretion, to levy the execution upon the property of either of the debtors ?
The judgment was several as well as joint, and the execution ran against each for the whole debt, as well as against all of them.1 Had there been no subsequent attachment, it cannot be doubted that the officer would have been justified in satisfying the debt from the property of either, as would be most convenient to himself or the judgment creditor, leaving the debtors to settle between themselves the proportion which each ought to contribute. Can the rights of the attaching creditor, or the duty of the officer, be affected bv subsequent attachments ?
The plaintiff contends, that the officer, being conusant of the after attachment, is bound to levy the execution upon the property of the debtors as nearly as practicable in equal parts ; but we are clearly of opinion that such is not the legal duty of the officer. He is to look to the face of his precept for his authority, and if it is not void, it will fully justify him in following its directions. He is not required to look beyond it, nor in any case to inquire into its origin.
It is true that in a joint judgment the legal presumption is, that the debtors owe the amount in equal parts. But should the officer look behind the judgment, he would oftentimes find, that, as between the debtors, equity would require that they should pay in unequal proportions, or that one should pay the whole, the one perhaps being merely a surety for the other. It would in many, if not in most cases, be inconvenient both to debtors and creditors, to require the officer, on the original writ, to make attachments of the property of all the debtors, when the debt might as well be secured by an attachment of the property of one ot them, and even more inconvenient to require him on *231execution to make apportionment among several debtors and to sell several small parcels, where the debt might as well be satisfied by a single sale of sufficient property of one.
The same rule would require, where an equity of redemption was attached which could not be sold in parts, that the officer having sold it for enough to satisfy the whole debt, should seize and sell other property of the debtors, that a portion of the proceeds of the sale of the equity might be retained for subsequent attaching creditors or restored to the debtor.
The same principle, if well founded, must be applied to attachments of real estate, and would deprive the creditor of an election as to the estate to be levied upon, and compel him to accept several separate parcels instead of one. This would be inconsistent with the rights of the creditors, and by the increased expense impose an unjust burden upon the debtors.
The principle will appear still more objectionable when applied to eases which not unfrequently occur, where real estate of one debtor and. personal estate of another, are attached. The creditor would be compelled to levy upon the real estate of one and to seize the chattels of another, and thus be deprived of an option as to the manner of levying his execution, and as to the property upon which it is to be extended.
We think these considerations show very clearly, that the principle upon which the plaintiff relies would be inconvenient in practice, inconsistent with the rights of the first attaching cred itor, would be a restriction upon the authority of the officer irreconcilable with the express declaration of his precept, and not required by any provisions of law.
We are therefore of opinion, that the defendant, in applying the proceeds of the sale of the property of Joseph to the satisfaction of the first execution, whether acting by the direction of the creditor or from his own discretion, kept within the pale of his official duty.
Having seen that the defendant rightfully applied the property of Joseph to the payment of the first execution, it is immaterial to the plaintiff what disposition was made of Myers’s property. The plaintiff had no lien on it, and whether Aus*232tin’s attachment was or was not dissolved, it is not necessary m t^s case t0 mq™6- L may however be remarked, that at the time when the first execution was satisfied, the officer had no reason to suppose that any of the attachments would be dissolved by the negligence of the creditors or in any other way.
The form of the action was also objected to. The view which we have taken of the merits of this case renders it unnecessary to decide this question. But it will not be improper to state, that we think the action is misconceived. It is founded in tort and not in assumpsit. The gravamen of the plaintiff’s complaint is, not that the defendant has got into his hands money which belongs to the plaintiff, but that he has wrongfully applied property in his hands to the satisfaction of another execution, which he ought to have applied to the plaintiff’s. It is not a case in which the tort can be waived and assumpsit maintained. Had the defendant by a tortious act got into his hands money which in equity and good conscience belonged to the plaintiff, he might on this principle have maintained this action. But the very wrong complained of is the disposal ol money which he ought to have retained in his hands.
The motion to set aside the nonsuit is overruled.
See Collyer on Partn. 472, 473.