
    Culpeper Agricultural and Manufacturing Society v. Digges, &c.
    Pleading and Practice — Pleading without Bail — Join-der of Issue — Effect.—Where a Defendant is permitted to appear and plead without giving special bail, and the Plaintiff joins issue, without making any objection, such objections is waived by the Plaintiff, and the appearance bail is discharged,
    Coporations — Suit by — Corporate Name. — A bond executed to the "President and Managers of the Culpeper Agricultural and Manufacturing Society,” may be sued upon by tbe "Culpeper Agricultural and Manufacturing Society,” that being the legal style of the Corporation.
    Same — Same—Same.—Corporations must sue in their true names; but contracts may be made by or with them, by a mistaken name if the mistake be only in syllabis' et yerbis, and not in sensu et reipsa.
    Appeal from the Superior Court of Daw for Fauquier County.
    The Culpeper Agricultural & Manufacturing Society brought an action of debt against William H. Digges and Whiting Digges, who were the obligors in a note under seal, executed to the “President and Managers of the Culpeper Agricultural and Manufacturing Society. ” The Declaration avers that the said note was executed to the Plaintiffs, by the name and style of “The President and Managers of,” &c.
    The Writ was executed and appearance bail given. The Defendants appeared, without having given special *bail, and pleaded, that the Plaintiffs were an unchartered Bank, and therefore an illegal company ; to which plea the plaintiffs replied generally, and issue was joined. The Defendants afterwards demurred, and the Plaintiffs joined in demurrer.
    On the demurrer, the Court gave judgment for the Defendants, and the Plaintiffs appealed. 1
    Harrison, for the Appellants,
    objected, first, to the Defendants’ being permitted to appear and plead, without having given special bail. Secondly, that the error in the style of the Corporation in the bond, is not such an one as to debar the Plaintiffs, from suing in their proper corporate name. For this, he cited 10 Co. Rep. 125; 11 Co. Rep. 19, 20, 21; 2 Bac. Abr. 5, tit. “Corporation College of Physicians v. Dr. Salmon, Ld. Raym. 680; Sidney College v. ■-, 1 Wils. 184; Dutch East India Company v. Henriqueü, Ld. Raym. 612; Mayor, &c. v. Biamire, 8 East, 492.
    Leigh, for the Appellees,
    contended, that the variance here was material. 2 Com. Dig. 298, tit. “Capacity,” B. 5. The addition of a name is material. Croydon Hospital v. Earley, 6 Taunt. Rep. 467. As to the Defendants’ being allowed to plead without bail, the objection was waived by the plea and issue, and the bail, both common and special, were discharged. If the Plaintiff objected to this proceeding, he ought to have objected at the time; and if his objection was overruled, he ought to liutrp PYPPTlfprl
    
      
       Corpoi atious — Suits by. — In First National Bank v. Huntington Distilling Co., 41 W. Va. 534, 33 S. E. Rep. 704, it is said: “It is true that corporations are mere legal creatures, and must sue and be sued in their true names. Porter v. Nekervis (1836), 4 Rand. 359; Society v. Digges (1828), 6 Rand. 165. Yet if some words are added to or omitted in the true name of a corporation, this is not a fatal variance, if there be enough to distinguish the corporation, from all others, and to show that the corporation suing or being sued was intended. 6 Rand. 165, 167. It is enough if it be idem re et sensu. It need not be idem syllabis seu verbis. Mayor, etc., of Lynne Regis (1613). 10 Coke, 133 a; Dr. Ayray’s Case. 11 Coke, 18b. If a corporation be misnamed in a suit against it, it may be pleaded, but only in abatement. 6 Com. Dig. 300; 1 Thomp. Corp. §§ 284, 201.”
      See further monographic note on “Corporations (Private)” appended to Slaughter v. Com., 13 Gratt. 767.
    
   March 4.

JUDGE GREEN

delivered his opinion.

The objection now taken by' the Appellants, that the Appellees were improperly permitted to appear, plead and demur, without giving special bail, was waived by the Appellants’ taking issue on the plea, and joining in the demurrer-, *without making this objection in. terms; and the appearance bail was thereby discharged, as was decided in Grays v. Hines, 4 Munf. 437. The appearance of the Defendants, and pleading' without'giving special bail, superceded the issue joined upon the plea put in by the bail for their appearánce, and rendered it null. In strictness, perhaps, it ought to have been set aside; but, the omission to do so, is no error to the injury of the. Appellants.

The Declaration alleges, that the Plaintiffs were incorporated by the name of “The Culpeper Agricultural and Manufacturing Society;” and avers that the Defendants executed their obligation to them, by the ■name of “The President and Managers of the Culpeper Agricultural and Manufacturing Society;” and upon a demurrer to this Declaration, the question is, whether such an averment can be made, against the terms of the obligation as described in the Declaration? If it can, then, instead of demurring, the Defendants should have pleaded, that certain persons by name, were: “The President and Managers of the Society,” and that the bond was made and delivered to those persons individually, and traversed this averment in the Declaration. For, by demurring, they admit the averment to be true, if it is competent to the Plaintiffs to make it. This averment might, I think, be well made. Although a Corporation cannot sue but in its true name, contracts may be made by and with it, by a mistaken name, if the mistake be only in syllabis et verbis, and not in sensu et reipsa, as is said bj’ the Court in the case of The Mayor aqd Burgesses of Lynn Regis, 10 Co. 125; and such a mistake may be averred in pleading, or shown in evidence, upon the general issue. Ibid, and Gilb. Hist. C. B. 179, Cap. 17, cited 6 Vin. Abr. 320. If some words are added to or omitted in, the true name of a Corporation, this is not a fatal variance, if there be enough to distinguish the Corporation from all others and to show, that the Corporation claiming, or against which a claim is asserted, was intended; of which many examples are given in the case cited from Coke’s Reports.

*If, in this case, the bond had been given to “ A. B., President, and C. D., Managers of the Culpeper Agricultural and Manufacturing Bank Society,” or to the “President and Managers of the Culpeper Agricultural and Manufacturing Bank,” I should have thought that it could not have been averred or shown by proofs, that it was in truth given to the “Culpeper Agricultural and Manufacturing Society for, this would be an opposition to the legal import of the Deed itself. In the first case, the legal effect of the Deed would be, to create an obligation to the individuals named, and the addition of “President and Managers” would be only a superfluous description of the particular individuals meant, or at most an indication that the obligation was made to them, for the benefit of the Corporation; and in the other, the name of the Corporation in the bond, would be different in sense, from the true name of the Corporation claiming it as made to them. But in this case, the naming of the ‘‘President and Managers, without using their proper names, does not, in any degree, contradict the averment that the bond was made to the Corporation ; but, is entirely consistent with it, since it clearly indicates that the bond was given to them and the other Corporators, not in their individual, but in their corporate characters.

I think the Judgment should be reversed, the demurrer overruled, and the cause remanded fo'r a trial of the issue in fact joined between the parties.

The other Judges concurred, and the judgment reversed, &c.  