— Assumpsit upon three notes of hand, dated May 25, 1835, signed by the defendant jointly with Jotham Babcock, now alive, and running to one Springer, and by him indorsed. In the plaintiff’s declaration, it is alleged that Babcock had been decreed a bankrupt.
The defendant pleaded the general issue with a brief statement, setting up in defence the statute of limitations.
Under the general issue, the defendant claims to avail himself of the non-joinder of Babcock. In this he was overruled by the presiding Judge. .
If any person be omitted as defendant, who ought to be joined, in any action founded on a joint contract, whether on a specialty or not, the objection can only be taken advantage of by plea in abatement. 1 Saund. 291, b, note 4; Mitchell v. Tarbut, 5 T. R. 651; Wright v. Hunter, 1 East, 20; Robinson v. Robinson, 1 Fairf. 240; Trustees of Ministerial and School Fund in Dutton v. Kendrick, 3 Fairf. 381. And though the joint obligation be in writing, and the declaration show it to have been made by a party *587not joined, it is no variance at the trial. 1 Saund. Pl. 11; Mountstephen v. Brooke, 1 B. & A. 224; South v. Tanner, 2 Taunt. 254.
The defect in this case, being apparent upon the record, the defendant might have availed himself of its existence by motion, as well as by plea in abatement. Chamberlain v. Lake, 36 Maine, 388. But the motion must bo filed within the time allowed for pleas in abatement, otherwise it will be overruled. Nickerson v. Nickerson, 36 Maine, 417. By pleading the general issue, the defendant must be held to have waived all objection to the non-joinder of his co-promisor.
The statute of limitations of 1821, did not apply to this case. The action was commenced after the passage of the Act of 1838, c. 343, and falls under the provisions of that statute. Quimby v. Buzzell, 16 Maine, 470.
The instruction of the Court, “that the burden of proof was upon the plaintiff to prove that the notes were duly witnessed, and that if he had proved the subscribing witness to be out of the State, and that his signature was genuine, that was sufficient until the contrary appeared,” was not erroneous. It was tantamount to saying, that by proof of the genuineness of the signatures to the note, the plaintiff had made a prima facie case, sufficient, in the absence of other testimony, to authorize a verdict in his favor. This was right. Exceptions overruled.
Judgment on the verdict.