
    Francis J. Titus et al. v. James Kyle.
    Where a note reads thus: 11 One year after date, we or either of us, as directors of the Hamilton, Middletown and Germantown Turnpike Road, promise to pay to J. K., or order, five hundred dollars, for value received, with eight per cent, interest until paid,” and dated and signed by the makers, without further designation of official capacity, they are liable individually.
    Where, in such case, no fraud or mistake in the execution of the instrument is averred by the makers, they will not be permitted to set up an intention on *their part not to bind themselves individually, but only in their representative capacity as directors, when such intention is different from the legal import of the writing itself, on its face.
    This is a motion for leave to file a petition in error to reverse the judgment of the district court of Butler county.
    The original action was brought by James Kyle, upon a promissory note of which the following is a copy:
    “$500. November 22, 1848.
    “One year after date, we, or either of us, as directors of the Hamilton, Middletown, and Germantown Turnpike Road, promise to pay James Kyle, or order, five hundred dollars for value received, with eight per cent, interest until paid.
    “ F. J. Titus,
    “John C. Negly,
    “Zbphenia Catrow,
    “ S. Hyndman,
    “ Wm. Barkalow.”
    
      The petition sought to charge the signers of the not.e as individually liable for its payment.
    The makers of the note, in their answer, say that they, as directors of the turnpike company, executed the note on behalf of the company, and for money borrowed for and used by the company, and deny their individual liability to pay the note.
    The district court, on appeal at the May term, 1859, held that, by the terms of the note, the makers thereof were individually and personally liable to pay it, and rendered judgment accordingly. To reverse this judgment, the makers of the note filed a motion in the Supreme Court for leave to file a petition in error therein.
    
      James Glark and N. G. McFarland, for the motion,
    cite Pentz v. Stanton, 10 Wend. 271; Townsend v. Hubbard, 4 Hill, 351; 9 Barb. 528; Rice v. Gove, 22 Pick. 158; Edwards on Prom. Notes, 83, 84, and cases there cited.
    
      * Thomas Millihin, contra,
    cites Trask v. Roberts, 1 B. Mon. 202; Fogg v. Virgin, 19 Maine, 352; 3 Wend. 98; 9 New H. 263-270; Bradly v. Boston Glass Co., 16 Pick. 373; Potts v. Rider, 3 Ohio, 70; Taft v. Brewster, 9 Johns. 333; Hunt et al. v. Walton, 5 Selden, 571.
   By the Court.

Held:

1. That the makers of the note are, by its terms, liable individually.

2. That no fraud or mistake, in the execution of the instrument, being averred by the makers, they will not be permitted to set up an intention on their part not to bind themselves individually, but only in their representative capacity as directors, such intention being differentfrom the legal import of the writing itself, on its face.

Motion overruled.  