delivered the opinion of the court:
The fact that Albro executed such a note, as the plaintiff set up and relied upon in his petition, is in our opinion fully established by the testimony. Upon a plea of non est factum by the defendant, it is incumbent on the plaintiff to prove the execution of the writing sued on, but there is no rule of evidence that requires the testimony of more than one witness for that purpose. And under the Code of Practice, the rule which required two witnesses or one witness and strong corroborating circumstances to overcome the denial contained in an answer in chancery, seems to have been changed, by the provision that the verification of the pleadings shall not make other or greater proof necessary on the side of the adverse party. But whether it is or not, is immaterial in this case, inasmuch as it is not an equitable action, but an action by ordinary proceedings.
2. A defect of parties should be relied on in the def’ts answer, otherwise it is to be regarded as waived. (Code of Frac., sec. 123.)The defendant did not alledge that he had paid the demand, and consequently it is not material whether he has been able to do it, or not, ever since the note was executed by him.
Nor is it material whether the note he executed was a partnership, or his individual note. In either case he was responsible for it, and the failure to sue the other partners, only amounted to a defect of parties, and as this ground of objection was not relied upon by the defendant in his answer, he must be deemed to have waived it. (Code Practice sec. 123.)
Wherefore, the judgment is affirmed.