
    HENRY COULTER v. THE TRUSTEES OF THE WESTERN THEOLOGICAL SEMINARY OF THE PRESBYTERIAN CHURCH OF THE UNITED STATES OF AMERICA, at Allegheny City, in the State of Pennsylvania.
    
      Decided June 12th, 1868.
    
    Pleadings ; sufficiency ; defect cured by verdict ; motion in arrest. Misnomer ; corporations.
    The principle upon which an arrest of judgment proceeds, is that the facts averred by the plaintiff, and found to be true by the jury, do not constitute a sufficient cause of action. p. 74
    But where the statement of the plaintiff’s case, and that only, is defective or inaccurate, the effect is cured by the verdict, because, “to entitle him to recover, all the circumstances necessary in form or substance to complete the title, so imperfectly stated, must be proved at the trial.” 
       p. 74
    If no cause of action is stated, the omission is not cured by the verdict.  p. 74
    In an action of debt on a sealed instrument, the nar. averred that the defendant, by his writing obligatory, dated the 1st of January, 1848, promised to pay the plaintiffs the sum of one hundred dollars, with interest thereon until paid. From the bond as set out on oyer, it appeared that the promise was to pay on the 1st of January, 1831. Held:
    
    *That the declaration set out a sufficient right of action, which was in nowise impaired by the production of the bond, which being part of the declaration, and a matter of record, apprised the defendant of the plaintiffs’ demand, and furnished a complete defense to a second suit on the same bond. p. 74
    Where the plaintiffs in an action of debt, are described in the nar. as “The Trustees of the Western Theological Seminary of the Presbyterian Church of the United States of America, at Allegheny City, in the State of Pennsylvania,” and the payees in the bond, are described in the same way, with the omission of the words, “in the State of Pennsylvania,” the variance is not such as will justify an arrest of judgment.  P. 75
    Where the pleas to an action of debt are payment and limitations, and the verdict is, “that the defendant is indebted to the plaintiffs in the sum of $189.35,” the verdict is sufficiently responsive to the issues. p. 75
    Appeal from the Court of Common Pleas.
    This was an action of debt on a sealed instrument, brought by the appellees against the appellant on the 2nd of April, 1863. The verdict being in favor of'the appellees, the appellant moved an arrest of judgment for the following reasons :
    .First. Because the bond set out in the declaration varies from that in the oyer, in this : That it is alleged in the declaration that the defendant by his writing obligatory, dated the 1st of January, 1848, promised to pay the plaintiffs the sum of one hundred dollars with interest thereon, until paid. Whereas, by the bond set out in the oyer, it appears that the promise was to pay on the first day of January, 1851.
    Second. Because the name of the plaintiffs, as set out in the declaration, varies from the name of the payees of the bond set out in the oyer.
    The court overruled the motion and entered up the judgment ■; and the defendant appealed.
    The cause was argued before- Bartol, C. J., Stewart, Miller and Robinson, JJ.
    
      *John M. Frasier and William H. Tuck, for -the appellant :
    The judgment ought to have been arrested for the reasons assigned. Whatever latitude the present rule of pleading may tolerate, it is at least necessary that the cause of action should be set out with reasonable certainty, according to its legal effect, not only to apprise the defendant of the case he is expected to defend, but, also, to enable him'to rely on the record in case of a second suit on the same cause of action. The cause of action mentioned in the declaration, imports a bond payable on demand ; for whenever no time of payment is mentioned in the instrument, the money is due immediately, and may be sued for the next day. Suppose that, under an issue of fact, this bond had been offered in evidence, would not an objection to its admissibility, on the principle of agreement between allegata and probata, have been allowed ? This seems to be manifest. Although the date of the bond is truly given, the day of payment is omitted altogether. 1 Chitty’s PI. 3, 4, 64, 305, 317, 318, 434 ; 1 Greenl. Ev. secs. 66, 67, 68, 69 ; Balto. Cemetery Co. v. First Ind. Church, 13 Md. 117 ; Penn. Del. & Md. Steam Nav. Co. v. Dandridge, 8 G. & J. 3 r 1 ; Shcehy v. Mandeville, 7 Cranch, 217.
    The plaintiffs mentioned in the nar. are not the same as those named as obligees in the bond. The declaration alleges that the defendant promised to pay the plaintiff the sum of $100 ; and these plaintiffs are described as the trustees of the Western Theological Seminary of the Presbyterian Church of the United States of America, at Allegheny City, in the State of Pennsylvania ; whereas, the payees in the cause of action are the trustees, etc., etc., at Allegheny City, omitting, “ in the State of Pennsylvania.”
    ■It may be supposed that the bond and declaration describe the same institution, but that is not a conclusion of law, nor a necessary conclusion of fact, because there may be two such institutions and two cities of Allegheny. It is not incumbent on the defendant to show that there are two ; but the plaintiff *must aver and show, that though differently described, they are one and the same, and that the plaintiffs are ,the same persons as those described in the bond as payees. The plaintiffs do not sue as a corporation, but as natural persons located at a particular place. Vansant v. Roberts, 3 Md. 119.
    The objections now made, arise on motion in arrest of judgment. Balt. Cemetery Co. v>. First Ind. Church, 13 Md. 117, 126 ; Dorsey v. Whipps, 8 Gill, 457.
    The verdict does not cover all the issues in the cause. Kcirle v. Shriver, it G. & J. 405; State v. Carleton, 1 Gill, 249 ; Hatton v. McClish, 6 Md. 407.'
    
      William Reynolds, Jr., for the appellees :
    There is no variance between the bond set out in the declara-tion and that in the oyer. After the bond was set out i.n the oyer it became part of the declaration. Birckhead v. Saunders, 2 H. & G. 86 ; Tucker v. State, 11 Md. 329 ; Snell v. Snell, 10 Serg. & Lowber, 457.
    And having become thus a part of the declaration by being set out on oyer, the court in construing the declaration must take the whole declaration together, (the bond included as part of it.) And if the court construe the description of the bond in the declaration to be incomplete, the imperfections and omissions thereof being supplied by the other part of the dec-" laration, viz.: The bond set out on oyer, then the declaration is good as it stands. Now, according to the rules of construction of pleadings, laid down by Chitty, “ where an expression is capable of different meanings, that shall be taken which will support the declaration, etc., and not the other which would defeat it.” 1 Chitty’s PI. 237, 237 a ; King v. Stevens, 5 East, 260 ; Wyatt v. Aland, 1 Salk. 325 ; Amhurst v. Skynner, 12 East, 270.
    If there were a variance in the declaration, it should have been taken advantage of by demurrer. Everything not expressly denied in pleading, must be regarded as admitted. *The pleas of payment and the statute of limitations — not denying that the defendant below executed the bond set out on oyer, and which he also sets out in these pleas ; nor that the bond so set out on oyer is the same referred to in the declaration — these things must be contsrued as admitted by the defendant below, who, thereby waived all objections to any informalities in the declaration. These could only have been taken advantage of on demurrer, or under the plea of non est factum. Birckhead v. Saunders, 2 H. & G. 86 ; Green v. Johnson, 3 G. & J. 396; Douglass v. Beam, 2 Binney, 76; Chapman v. Davis, 4 Gill, 176; Gould’s PL ch. 5, sec. 99.
    Even if a variance did exist in the declaration, it was cured by verdict. Gould’s Pl. ch. 10, sec. 13 ; 'Charlotte Hall School v. Greenwell, 4 G. & J. 418.
    In regard to the second reason, for the motion in arrest of judgment, there is no variance between the name of the appellees as set out in the declaration and in the bond on oyer ; the words “ in the State of Pennsylvania ” not being part of the corporate name, but simply descriptive of the corporation. If an individual to whom a bond was made payable under the name of A. £>., were to sue upon it under the name of A. B., of Baltimore City, it would be no variance ; why should it be so then in the case of a corporation ? Stafford v. Bolton, 1 Bos. & Pull. 40 ; Marine Bank v. Biays, 4 H. & J. 338 ; Peter v. Cocke, 1 Wash. (Va.) 257.
    If a corporation sues by a wrong name, advantage must be taken of it by plea in abatement. Bank of Metropolis v. Orme, 3 Gill, 444 ; Pres. & Hanover Savings Fund Soc. v. Suter, 1 Md. 503.
    In case the judgment of the count below should be reversed, the appellees would only be liable for their own costs, the appeal being taken upon a motion in arrest of judgment. Charlotte Hall School v. GreenweU, 4 G. & J. 417.
    
      
       Quoted from Lord Mansfield’s opinion in Rushton v. Aspinwell, Doug. 679.
    
    
      
       Cited in Balto. City Pass. Rwy. Co. v. Sewell, 35 Md. 230. See Blackburn v. Beall, 21 Md. 208, note (b)
    
    
      
       See Western Union Tel. Co. v. State, 82 Md. 294; as to inaccuracies in names, see Elliott v. Knott, 14 Md. 121, note (e). As to inaccuracies hrthe names of corporations, named in charitable devises in wills, see Provost, etc., v. Abercrombie, 46 Md. 172.
    
   * Robinson, J.,

delivered the opinion of the court.

The general principle, upon which an arrest of judgment proceeds, is, that the facts averred by the plaintiff, and found to be true by the jury, do not constitute a sufficient cause of action. And the criterion, by which to distinguish between such defects in a declaration as are, and such as are not cured by a general verdict for the plaintiff, is laid down by Lord Mansfield, in Rushton v. Aspinall, Doug. 679, to the following effect,: Where the statement of the plaintiff’s cause of action, and that only is defective or inaccurate, the defect is cured by the verdict, because, “ to entitle him to recover, all circumstances necessary in form or substance to complete the title, so imperfectly stated, must be proved at the trial.” But where no cause of action is stated, the omission is not cured by verdict. Gould’s PL 497.

That the declaration in this case sets out a sufficient right of action, and that this right is in no wise impaired by the production of the bond in the oyer; are questions which cannot admit of a doubt. Whether the bond was payable on demand, according to the legal intendment of the averment in the plaintiff’s declaration, or three years after date, as appears in the oyer, it was nevertheless due, and the right of action had accrued when this suit was instituted. The variance could not operate to the prejudice of the defendant, because the bond exhibited in the oyer, being part of the plaintiff’s declaration, and also a matter of record, (Birckhead v. Saunders, 2 H. & G. 82,) the defendant was not only apprised of the plaintiff’s demand, but the record wo'uld have furnished a complete defense to a second suit instituted on the same bond. A defective allegation .in the declaration, which might have furnished good cause of demurrer, cannot be taken advantage of after verdict. Merrick v. Bank of Metropolis, 8 Gill, 64; Vandersmith v. Washmein, 1 H. & G. 4.

In Balto. Cemetery Co. v. First Ind. Church, 13 Md. 117, relied upon by the appellant, the variance was fatal, because, by the instrument *set out in the oyer, it appeared that the obligation was to pay to the “ Trustees,” and not to the plaintiffs. The record, after judgment, disclosed that the plaintiffs had no cause of action. It was not, therefore, a case in which .the right of action was defectively or inaccurately stated, and consequently cured by the verdict, but where the cause of action was defective in itself.

The second reason assigned in arrest of judgment, because the name of the plaintiffs, as set out in the declaration, varies from the name of the payees in the bond, is equally untenable. The plaintiffs are described as the trustees of the Western Theological Seminary of the Presbyterian Church of the United States of America, at Allegheny City, in the State of Pennsylvania. The only variance between the bond and the declaration is, that in the former, the words in “ the State of Pennsylvania,” are added, being descriptive of the locality. But in each, the proper corporate name is set out.

The third reason assigned is, because the verdict does not cover the issues. The pleas were payment and the statute of limitations. The verdict being, “ that the defendant is indebted to the said plaintiff in the sum of $189.35,” we think it is sufficiently responsive to the issues. If the demand had been paid, or if'it were barred by the statute of limitations, the defendant could not have been indebted as found by the verdict.

For these reasons we affirm the judgment below.

Judgment affirmed.  