¶1In the absence of any report of evidence tending to prove the alleged duress, the only question presented by the bill of exceptions or argued by the defendants pertains to the admissibility of the bond. And wo have no doubt of the correctness of the ruling which ^ admitted it. The plea was mom est factum, and the only issue was whether a bond jointly and severally executed by three would prove that it was executed by two of them. We have no doubt of the correctness of the ruling admitting the bond. This practice is sustained by ancient and modern authorities.
¶2“It is material,” said Story, J., “to state that the bond on which the suit is brought, is a joint and several bond. Under such circumstances, the plaintiff might have commenced suit against each of the obligors severally, or a joint suit against all. But in strictness of law, he has no right to commence a suit against any intermediate member. He must sue all or one. The objection however is not fatal to the merits, but is pleadable in abatement only ; and if not so pleaded, it is waived by pleading to the merits. The reason is that the obligation is still the deed of all the obligors who are sued, though not solely their deed; and therefore there is no variance in point of law, between the deed declared on and that proved. It is still the joint deed of the parties sued, although others have joined in it.” Minor v. Mechanics’ Bank, 1 Pet. 46, 73. 1 Saund. 291, c. n. 4. Gould’s Pl., c. 5, § 114. Neally v. Moulton, 12 N. H. 485. Gove v. Lawrence, 24 N. H. *414128. Richmond v. Toothaker, 69 Maine, 451, and cases there cited. Hapgood v. Watson, 65 Maine, 510. First National Bank of Biddeford v. McKenney, 67 Maine, 272.
¶3If it be said that the action Was originally against all and after the time for filing pleas in abatement had expired' the plaintiff discontinued as to one, the answer is the defendants should have demurred instead of pleading the general issue. Richmond v. Toothaher, supra.
¶4 Exceptions overruled.