#### Benjamin Rupert, Plaintiff in Error vs. William J. Madden, Trustee, &c., Defendant in Error.

Where, in an action brought upon a promissory note, executed by the defendant, as trustee of a company, whereby he promised to pay, and also upon another note which he subscribed with his o,vn proper name, but adding his representative name of trustee, a general demurrer to the declaration will not be sustained.

The addition in the body of the notes, as appended to the name of the maker subscribed thereto, is a ipore *deseriptio persona*of the party making the note and cannot bo so construed as to exempt him. from personal liability. The description which he gives of himself, either in the notes or in subscribing the same, is to be regarded as merely descriptivo of his person; but cannot be construed as relieving him from personal liability.

Error to the late District Court for the County of Iowa.

This was an action of Assumpsit, brought in Iowa County, on two promissory notes, one of which is declared upon as having been executed by the defendant below, as Trustee of the Louisiana Company; and the other as having been executed by the defendant below in his own *147pame and individual character; but signed and executed by the defendant as Trustee of the said Louisiana Company. There were also, in the declaration, the usual money counts. Throughout, in the declaration, the defendant below is described as Trustee of the Louisiana Company.

To this declaration the defendant below demurred generally; and on the argument, the District Judge sustained the demurrer as being well taken.

The cause was brought into this Court by writ of error to the decision of the Judge.

*Eaton*& *Cotliren,*for Plaintiff in Error.

*Crawford,*for Defendant in Error.

For the plaintiff in error it was contended that the character in which the defendant in error executed one of the notes declared upon, and the addition of his representative-, character, with which he subscribed the other, were mere descriptions of his person, and did not invest him with any exemption from personal liability; and that having in the body of the notes, promised to pay, irrespective of the company, whose name he appended in addition to his own signature, did not. change the nature of his responsibility.

That the liability of the maker of the notes could not be properly tested by the demurrer, and that the demurrer did not give him the opportunity of testing the character in which he executed the notes, so as to be available as a defence.

On the part of the defendant in error it was contended that the suit was substantially against the plaintiff in error, *as trustee,*and that no proof of his representative *148character could be made; and that a judgment rendered against one, sued as a trustee, seekitag to recover against him personally, was a thing unknown to the law. That, therefore, the demurrer to the declaration was well taken.

*By the Court.*

Stow, C. J.

-The declaration in this case commences “ Benjam Rupert, plaintiff, complains of Wm. J. Madden, Trustee of the Louisiana Company, defendant, in a plea of trespass on the case, upon promises, &c;” and sets forth two promissory notes; in one of which, the defendant, “as Trustee of the Louisiana Co.,” promises to pay, &c.; and the other is in the common form of an individual note, but is signed “Wm, J. Madden, Trustee Louisiana Co.” There are, also, the usual common counts. Throughout the declaration, the defendant is described as Trustee of the Louisiana Co. The defendant demurred generally, and the demurrer was sustained by the Court below.

On the argument, it was contended, that the declaration shows that the defendant is sued in his fiduciary character as trustee, and that if judgment were to pass against him, it would bind the trust fund; which he contended, cannot be done by a proceeding at Jaw. Qn examining tire declaration, we are of opinion that the defendant is not sued as trustee, but in his natural character, and that the words “Trustee, &c.” are only descriptive of his person" and that, therefore, the demurrer is bad.

The judgment of the District Court is reversed.