The opinion of the Court was delivered by

By pleading to the merits, the defendant admits the corporate capacity or name, or the official character of a plaintiff. So in the present case, the plea admits the existence of a *82partnership of that name. When a corporation sues, it is not necessary to state, or prove the corporators. But in cases where the contract is made with persons acting in the name of a copart-nership, the suit cannot be brought in tire firm name, but the persons composing it must sue in their ov/n names.

Partnerships may, and often do, exist, doing business under the same copartnership name, while the persons composing the firm are wholly changed. While the plea admits the existence of a firm of that name, it remained to be proved, that the plaintiffs were the persons composing that firm at the time the contract was made. The plea would not admit that Otis Norcross was one of the firm when the contract was made, because that film name may be lawfully used by others after he has ceased to be one of the persons composing that firm.

Exceptions sustained, and a new trial granted*