delivered the opinion of the court:
The style of the indorsement on which the petition in this case is founded is “ The Curlew Coal Companyand the only allegation to charge the appellants is, not they indorsed the bill in that name, but only that the company indorsed it, and that they were members of that company.
The answer, simply denied the allegation that the appellants were members of the said company; and the circuit court erred in sustaining a demurrer to that answer. Had the averment imported that the appellants indorsed the bill in the name and style of the company, as indorsed thereon, the mere denial that they were members of that company, not being fully responsive, would not have made a pertinent and decisive issue; because, admitting, as a demurrer would, that they were not members, still the untraversed allegation that they personally indorsed the bill, in the name of the company might, nevertheless, be true, and should be taken as virtually admitted, as hitherto adjudged by this court in 6th Dana, 128.
But according to the allegations of this petition, the gravamen is the charge that the appellants were members of the company which indorsed the bill; and unless, therefore, they were members, they are not apparently liable as indorsers. Consequently, the denial of the imputed membership was fully responsive, and concluded a material and decisive issue.
The answer was, therefore, good and sufficient.
Wherefore, the judgment is reversed, and the cause remanded, with leave to amend the petition.