The principal question raised in this case is as to the authority of those, who are conducting the present action, to institute the suit and prosecute the same to final judgment in the name of the plaintiffs. The defendant contends that bv *364virtue of the articles of association of the original members of the Charitable Association in Middle Granville, which preceded the act incorporating the plaintiffs, and, as is said, by force and effect of their charter became incorporated with the same for the future government of the association, no suit could be instituted upon promissory notes given to the association, except with the advice and consent of the major part of the advising committee of said association—a committee to be chosen by the association annually. It is then further contended that the present organization of the association is illegal and in violation of. the articles of association, and the provisions of the act of incorporation, inasmuch as persons not competent to become members have been admitted, and acted as such at the annual meetings ; and that the present advising committee were chosen by the votes of persons not legal members ; and that the majority of the individuals composing said advising committee were not eligible as such, not being legal members. The defendant insists that for these causes the persons composing said committee are not empowered to act in the matter of instituting actions on the promissory notes given to the association, and that the present suit, having been instituted without the advice and consent of any legal advising committee, was instituted without authority, and in violation of the rights of the defendant, and ought therefore to be dismissed.
In the view we have taken of this case, we have not thought it necessary to determine what effect should be given to the bylaw, or article of association under consideration, if a suit had been instituted upon one of the notes of the association without the advice and consent of those acting as the advising committee. Whether this by-law merely enjoins a duty upon the officers of the corporation rather than secures a privilege to the debtors, and if a privilege, whether it was not to be construed as a collateral agreement, which under the decisions of this court in Dow v. Tuttle, 4 Mass. 414, and Allen v. Kimball, 23 Pick., would not bar the present action, but leave the party to recover his damages in a cross action, would, in such a state of the facts, require our particulai consideration. But it seems to the court *365that those questions cannot be properly raised in the present case. The case finds that at the regular annual meeting of this association, an agent and an advising committee were declared to be regularly chosen, and that the persons thus chosen are the individuals who have advised and consented to this suit. These persons are, de facto, the agents and advising committee ; and the case does not show that any other individuals claim to hold these offices, or to have been legally elected to them, or to assert any rights as such. The persons composing the advising committee being then officers de facto, and no other persons claiming the right to act in that capacity, it is not competent for the defendant to resist the payment of his notes, upon the ground that the committee were not duly elected, and are not legally authorized to act as such. The defendant cannot, we think, thus raise the question of the legality of the election of the present officers of the corporation, or of the authority of the corporation to alter their by-laws regulating the admission of members and prescribing their qualifications.
An independent objection was taken to one of the notes sought to be recovered in this action, that, upon the face of it, it was not made payable to the plaintiffs by their appropriate name. It is not denied that the plaintiffs were the parties to whom the promise was intended to be made, but merely that there is a misnomer of the payee. This objection cannot avail the defendant. Where the parties to a contract can be ascertained, and the suit is instituted in the name of the real party, a mistake in the name of the promisee, as described in the promise, will not furnish any ground of defence. Medway Cotton Manufactory v. Adams, 10 Mass. 360. Commercial Bank v. French, 21 Pick. 490. City of Lowell v. Morse, (post. 473.)
Upon the whole matter, the court perceive no sufficient reason why the plaintiffs should not maintain their action.
Defendant defaulted.