Debt against the sureties on a town collector’s bond, executed jointly, by Samuel Drown as principal, and these defendants as sureties.
The plaintiffs set out a joint, and not a joint and several, bond, averring, with proper allegations of time and venue, that the defendants, “ together with one Samuel Brown,” by a certain writing obligatory, made, sealed and delivered to the plaintiffs “ as the deed of the said Hagar, Toothaker and Brown, and here in court to be produced, acknowledged themselves to be bound to the plaintiffs in the sum of $24,000, to be paid to them on demand.”
The defendants pleaded non est factum, with brief statement of omnia peiformaverunt.
The case comes up on report, stipulating, among other things, that this court, with jury powers as to the facts, “ are to render judgment, upon so much of the evidence as is legally admissible, according to the legal rights of the parties.” By this stipulation the pleadings must be considered.
The defendants contended at the argument that the action is not maintainable, for the reason that the bond is joint and only two of the three obligors are made defendants.
*455The plaintiffs replied that the non-joinder should have been pleaded in abatement, and that the bankruptcy of Brown excused the non-joinder.
To these positions the defendants rejoined: (1) That the plaintiffs having in their declaration informed the court that Brown was a joint obligor, the defendants were thereby relieved of the necessity of pleading that fact in abatement; and (2) That the debt, created by Brown’s defalcation, was fiduciary, and therefore not barred by his discharge in bankruptcy.
The rule of the common law has long been well settled that all of the joint obligors or promissors (with certain well known exceptions not essential to the decision of this case) ought to be made defendants; and that the plaintiff’ may be compelled to join them, if advantage be seasonably taken of any omission by proper plea. 1 Win. Saund. 291, b. n. 4. West v. Furbish, 67 Maine, 17. And the general rule is that objection to the nonjoinder of a defendant can be taken only by plea in abatement White v. Cushing, 30 Maine, 267. Reed v. Wilson, 39 Maine, 585. Richmond v. Brown, 67 Maine, 373.
But while there can be no doubt that, generally, in case of the non-joinder of defendants, unlike that of plaintiff's, it is essential for the party defendant to plead it in abatement, and therein give the plaintiff a better writ by giving the name of whomsoever else ought to be joined; it would seem to be equally well settled that when the plaintiff knows all who ought to be joined, and mentions them in his declaration, then there is no necessity for giving such information by way of plea in abatement; but that, in such case, the non-joinder is a good ground of demurrer, or motion in arrest of judgment; and in case of judgment, by default at least, it may be assigned for error. Harwood v. Roberts, 5 Maine, 381. Gould Plead., c. 5, § 115. 1 Chit. Plead. (16 Am. ed.) 54, note k.
That the objection cannot be taken at the trial, as a ground of nonsuit, on the general issue, was decided by Whelpdale’s case, 5 Co. 119, and by South v. Tanner, 2 Taunt. 254, in which the non-joinder appeared on the face of the declaration, but a nonsuit was set aside and a new trial granted. Neally v. Moulton, 12 *456N. H. 483. And we do not perceive any reason why it should. There is no variance, as it was formerly understood. The obligation is in law regarded as the deed of the defendants, although not their deed alone. It is none the less the defendants’ obligation because another was bound with them. Hapgood v. Watson, 65 Maine, 510. Gove v. Lawrence, 24 N. H. 128. “ It would be very odd,” said Mansfield, C. J., “ if proof that a bond was executed by three should disprove that it was executed by two of them.” South v. Tanner, supra.
The non-joinder might have been pleaded in abatement, notwithstanding it appeared in the declaration. Harwood v. Roberts, supra. Neally v. Moulton, supra. That is the means which enables one obligor to compel a joinder of all. Such a joinder may not be necessarily for the benefit of the plaintiff, but of the defendant. For, when all are joined, and judgment is rendered against all, any one of them may, by paying it, have contribution against the others; and the judgment will afford him conclusive evidence of the amount to be paid by them. If, then, a defendant omits to compel a joinder by pleading a non-joinder, he simply waives an advantage which he might have obtained. He would not thereby lose his right to contribution, to be sure, but he would have no judgment which would conclude his contributors.
The defendants did not demur. The statute forbids arrest of judgment. E. S., c. 82, § 26. Whether, if judgment be rendered against these defendants, they can reverse it by writ of error, we need not now decide, as no such writ is before us. We will suggest, however, in passing, that, generally, error does not lie on a judgment rendered on an agreed statement. Alfred v. Saco, 7 Mass. 380. Carroll v. Richardson, 9 Mass. 329. Gray v. Storer, 10 Mass. 163. Nor where facts proved before the jury are reported by the judge. Johnson v. Shed, 21 Pick. 225. Unless it be for an error disclosed by the record which will not be cured by the verdict. Smith v. Morse, 6 Maine, 275. Warren v. Coombs, 44 Maine, 88. Nor when the assigned error might have been pleaded in abatement; “ for it shall be accounted his folly for the plaintiff in error to neglect the time of that excep*457tion.” Bac. Abr. Error, K. 5. Merrill v. Coggell, 12 N. H. 97, 104. Neally v. Moulton, supra.
Under these pleadings, then, we perceive no legal objection to inquiring into the merits of this case. The question of waiver was not raised in Harwood v. Roberts, supra, the judgment sought to be reversed in that case having been rendered on default.
The warrant to the collector was defective, and imposed upon the collector no official obligation to collect the taxes committed to him ; but he and his sureties are held to account for the money actually paid to him by the tax-payers. Richmond v. Brown, 66 Maine, 373.
The case shows that, on February 20, 1873, the collector and these defendants as his sureties settled with the selectmen and treasurer ; and, in accordance with a practice of some years standing, gave their non-negotiable note fof $2,341.04, declaring therein that that was “ the amount due the town for its portion of taxes of 1872 committed to ” the collector “ for collection, as per settlement with the selectmen this day.” The note, not being negotiable, was not presumptively a payment (Bartlett v. Mayo, 33 Maine, 518); but it was a memorandum signed by these defendants, acknowledging the balance due on town taxes from their principal. And the town adopted this amount as correct by proving the note, March 10, 1874, in bankruptcy, against the estate of the collector, and receiving a dividend of $548.34.
Moreover, the collector was indebted to the town, not only for the sum indicated in the note for a balance due on town taxes, but for the additional sum of $4,393.36, balance due on state tax paid by the town on default of the collector, (R. $., c. 6, § 128); thus making the balance due from the collector to the town of $6,734.40. Gorham v. Hall, 57 Maine, 58, 62. This is the debit side of the account.
But, since February 20, 1873, (date of the note) the town has received from the collector divers unappropriated sums, which, including the dividend mentioned and $300 in the trustee action, amount to $4,236.32. Appropriating this amount of payment to the indebtment of the collector, leaves a balance due of $2,498.08.
*458The whole sum of $300, exclusive of costs, we allow in payment, inasmuch as the sureties are not liable to costs in a fruitless action against the principal, of the pendency of which they had no notice.' Baker v. Garrett, 3 Bing. 56.
The defendants cannot complain that the directions of R. S., c. 6, §§ 123 and 126, were not complied with. Gorham v. Hall, supra. The collector had been put into bankruptcy, and consequently he had no estate which could be destrained ; and his arrest would have been fruitless. Those provisions are directory. The defendants might as well complain that an assessment under § 127 was a prerequisite to payment of the state tax deficit.
Our conclusion, therefore, is that the plaintiffs are entitled to judgment for $2,198.08, and interest from the date of the writ.
Appleton, O. J., Daneorth, Beters and Libbey, JJ., concurred.