to escape the injury that was at the time manifestly inevita ble. In this case the deceased was killed by his own act, in going upon the track at least one hour and a half after he was put off the train, which the conductor had no reason to believe, from his actual condition, as it appeared to him, was probable.

As the lower court refused to give any instruction according with the views here expressed, but, instead, gave those which are either abstract or erroneous and misleading, the judgment is reversed, and cause remanded for a new trial consistent with this opinion.

CARRIERS OF PASSENGERS - EJECTION OF DRUNKEN PASSENGER. — Passengers may be expelled from vehicles of common carriage for intoxication, offensive conduct, or boisterous demonstrations; but they must be exposed to as little peril as is possible under the circumstances: Note to Cincinnati elc. R. R. Co. v. Cooper, 16 Am. St. Rep. 339, 340.

MOKENSEY V. EDWARDS.

188 KENTUCKY, 272.J

CORPORATIONS - LIABILITY OF DIRECTORS ON NOTE EXECUTED BY THEM. - A note by which "the directors" of a corporation promise to pay a certain sum, and signed by them without official designation, must be regarded as the undertaking of the parties whose names appear to it as obligors, and not that of the corporation; and the question of individual or corporate liability must be raised by answer, and not by demurrer. CORPORATIONS-LIABILITY ON NOTE SIGNED BY DIRECTORS. A note by which the directors of a corporation promise to pay a certain sum, and signed by them without official designation, is prima facie the obligation of the signers alone, and imports no undertaking to pay on the part of the corporation. In order to make it liable on the note, it is necessary to aver and prove that the undertaking was for the use and benefit of the corporation, and that by mutual mistake the note was executed and signed by the obligors as individuals.

J. J. Landrum, for the appellant.

J. W. Greene, for the appellees.

HOLT, J. The appellant, R. McKensey, as the assignee of the obligation, seeks to obtain a personal judgment upon this note:

"JONESVILLE, KY., Aug. 12, 1879. "The directors of the Jonesville and Glencoe Turnpike

Road promise to pay to Andrew Hearne two hundred dollars, this note bearing ten per cent until paid.

"J. W. EDWARDS.
"G. W. HERNDON.
"JOSEPH BROCK.
"J. L. GREEN.
"LEMUEL BEATTY.

"JOHN MCKENSEY."

The petition is in the usual form when based upon a promissory note. A demurrer was sustained to it, and the action dismissed upon the ground that the writing is the obligation of the corporation, and not of the signers as individuals. We find no case decided by this court where the obligation sued upon was exactly similar.

In the cases of Trask v. Roberts, 1 B. Mon. 201, and Whitney v. Sudduth, 4 Met. 296, the promise of the defendants to pay was both joint and several. The obligations were clearly of this form, and the cases were made to turn upon this point, as it was held that the several promise could not be otherwise than personal. The case of Yowell v. Dodd, 3 Bush, 581, is distinguishable from the one now before us. In that case the obligation reads thus:

"Twelve months after date, the president and directors of the Hustonville and Bradfordsville Turnpike Road Company will pay Leroy Yowell twelve hundred dollars, for value received, at six per cent interest from date, this 16th of November, 1865.

"E. J. DODD, Pres.
"JAMES YOWELL.
"JAS. J. DRYE.
"M. P. DRYE.

"WM. L. MCCAIN."

It was held to be the obligation of the company. The differences between it and the writing now in question are Italicized above. It does not appear that the president of the company united in the execution of this one. This, however, may not be material. The record does not disclose whether it is so or not. The word "company," however, does not appear in it, and no official designation is annexed to the name of any one of the signers. Upon the other hand, no personal pronouns or words expressly indicating a personal liability are used. No action could, however, have been maintained upon it against the corporation without an averment of mis

take or fraud in its execution. No company is mentioned. Upon the face of the note there is no one to sue but the makers of it. A petition founded upon it against the corporation would not have been sufficient, if drawn in the usual form upon a note. It would have been necessary to aver a mistake in its execution, and ask a reformation of the obligation. The party would have been compelled to set up the omission as a mistake in the drafting of the note, and that by inadvertence, or for some other reason, it did not show the real and true obligor.

The face of the obligation does not show that the corporation received the consideration, or that it was applied to its benefit, and an action could not be maintained upon it against a corporation without averring and proving, if denied, that it was executed and received as its obligation, and that by a mutual mistake in its execution this fact was not made to appear. Upon the face of the note the corporation is not prima facie liable. It cannot properly be said that upon its face it purports to be the note of the company. The "company" does not promise to pay it. As it would have been necessary to make these independent averments to maintain an action against the corporation upon it, it necessarily results that the writing must, upon its face, be regarded as the undertaking of the parties whose names appear to it as obligors; and the question of individual or corporate liability must be raised by a proper answer, and not by demurrer: Pack v. White, 78 Ky. 243.

Judgment reversed, and cause remanded, with directions to overrule the demurrer, and for further proceedings consistent with this opinion.

CORPORATIONS-PERSONAL LIABILITY OF DIRECTORS. The personal responsibility of the directors of a corporation upon contracts entered into on behalf of the corporation is governed by the ordinary law of principal and agent; if they fail to contract in such a manner as to bind the corporation, they bind themselves. So where they execute a note, affixing merely their individual names, they are individually liable thereon: Note to Hodges v. New England Screw Co., 53 Am. Dec. 649, 650. Where the president of a corporation, having no seal, executes a contract as president, under his hand and a common scroll for a seal, it will neither be his own contract nor that of the corporation: McCaulley v. Jenney, 5 Houst. 32. A deed purporting to be executed by a corporation to one as a trustee, which bears the signature and seal of the president, with the suffix of "President of D. R. Co.," and also the signature and seal of the trustee, with but one subscribing witness, is not the deed of the corporation, but the personal act of the president: Clayton ▼.

Cagle, 97 N. C. 300. The corporation may, however, by ratification bind itself upon such contracts on which it would not otherwise be liable: Taylor v. Navigation Co., 105 N. C. 484; Patterson v. Robinson, 116 N. Y. 193. Compare Liebscher v. Kraus, 74 Wis. 387; 17 Am. St. Rep. 171, and note.

LEATHERMAN v. TIMES COMPANY.

[88 KENTUCKY, 291.]

STATUTE OF LIMITATIONS-AMENDMENTS BRINGING IN NEW PARTIES. Where a plaintiff commences his action against a corporation, and it is served with summons as such, when no such corporation exists, and, after the statute of limitations has fully run, he amends his petition so as to bring in new parties as partners and defendants, the new parties so brought in may successfully rely upon the statute of limitations as a defense.

J. M. Chatterson, and Baker, Kinney, and Kinney, for the appellant.

F. Hagan, for the appellees.

BENNETT, J. The appellant, in November, 1884, commenced action against the Times Company as an incorporated institution for the purpose of printing and publishing a newspaper, called the Louisville Times, etc., and Dr. Keller. The appellant sought to recover damages for an alleged libel published in said paper upon him. The appellant dismissed the action as to Dr. Keller.

An answer was filed in the name of the Times Company, without disclosing whether or not it was an incorporated institution or merely a private concern, alleging the truth of the libelous matter charged. The pleadings having been made up for more than a year, the Times Company filed an amended answer, disclosing the fact that it was not incorporated. Thereupon the appellant filed an amended petition, setting up the fact that his allegation that the Times Company was a corporation was a mistake, and that the Times was a private concern, owned and published by the appellees Haldeman and Logan as partners. These two persons were summoned to answer this amended petition. They answered, among other things, that more than one year having elapsed since the publication complained of, the action against them was barred by the statute of limitations of one year. The lower court, deeming the reply to this plea insufficient, sustained a demurrer to it, and the appellant declining to plead

further, his action was dismissed. The sole question is, Was the demurrer properly sustained?

The appellant, in support of his contention that the demurrer was improperly sustained, relies upon the case of Heckman's Adm'r v. Louisville and Nashville R. R. Co., 85 Ky. 631.

In that case the administrator, by mistake, sued the Louisville, Cincinnati, and Lexington Railway Company for an injury to his intestate, resulting in his death. An answer was filed, apparently in the name of said company. It was discov ered afterwards that the Louisville and Nashville Railroad Company operated the road, and did the injury complained of, instead of the Louisville, Cincinnati, and Lexington Railroad Company, and that the Louisville and Nashville Railroad Company had in fact filed the answer. Upon the discovery of the mistake, the true state of case, by amendment, was set up, and judgment was asked against the Louisville and Nashville Railroad Company. To the action as amended the Louisville and Nashville Railroad Company interposed the plea of the statute of limitations. It was held that where a person against whom a cause of action exists is sued by the wrong name, and a summons is served upon him, though in his wrong name, and he appears and files an answer, though in the name by which he was sued, he is thereby effectually brought before the court. Thus if a person having a cause of action against A sues him in the name of B, and A is served with summons in the name of B, and answers in that name, he thereby adopts the alias, and effectually brings himself before the court.

Here the attempt was made to bring the Times Company before the court as a corporation, and to recover judgment against it as a corporation, but no such corporation was in existence; therefore the Times Company representing individ uals as partners, and not a corporation, such individuals were not brought before the court by filing the action against the Times Company and issuing summons thereon in that name alone. Had the appellees been made defendants to the original action, in connection with the Times Company as an alleged corporation, and had been summoned and answered, or had appeared and answered without having been summoned, in such case the mistake in suing the Times Company as a corporation would not have availed the appellees on their plea of the statute of limitations. But the appellees, as the owners of the Times, were not made defendants until more than