note as additional maker thereof." The defendant Kauffman, filed an answer in which he claimed that without his knowledge or consent, the name of D. D. Smucker was subscribed to the note as additional maker thereof, and that the note was thereby materially altered and changed, so that he (Kauffman) was discharged from all liability thereon.

The answer of Smucker being to the original petition, and not to the amended petition that has been filed since the verdict, denies that he agreed to guarantee the payment of said note, and denies that he is liable thereon either as guarantor or in any other capacity. On the issues thus made the parties went to trial; plaintiff contending that Kauffman was liable on the note as maker, and that Smucker was liable thereon as guarantor; Kauffman contending that he was discharged from all liability because the note had been materially altered; and Smucker insisting that he was not liable on the note in any capacity. The jury found in favor of the plaintiff against the defendant Smucker alone. Smucker now seeks to set aside the verdict, mainly on the ground that the court erred in its charge to the jury; and it is to that ground I will direct my attention. On the trial the fol lowing facts were undisputed:

First-On the twenty-seventh day of July, 1885, the defendant Kauffman alone executed and delivered the note in question.

Second-That on the first day of August, 1885, the defendant Smucker, in consideration of the sum of $50.00 signed said note on its face, immediately under the name of Kauffman, with the knowledge and consent of the holder of the note, and without the knowledge or consent of the original maker, Kauffman.

The court, on the point under consideration, charged the jury, in substance, as follows:

I. That if, after the note had been fully executed and delivered, the defendant Smucker, in consideration of the sum of $50.00, signed said note as a maker, with the knowledge and consent of its holder, and without the knowledge or consent of the original maker, Kauffman, such signing would be a material alteration of the note which would discharge Kauffman from all liability thereon.

II. And that Smucker had signed the note in such manner as to indicate that he was a maker, and as he did not claim to have done so "through inadvertence or mistake," he must be held to be a maker, and would not be permitted to escape liability by saying that the writing above his name was not his contract,

Was there any error in either of these charges, in the light of Smucker's own claim as made in his testimony? For in determining whether there was error prej udicial to him, his own claim must be carefully borne in mind. As to the first proposition charged there is, perhaps, no serious controversy or conflict of opinion. It was conceded that Smucker, after the note had been executed and delivered, in consideration of the sum of $50, signed it apparently as maker, with the knowledge and consent of its holder, and without the knowledge or consent of its original maker. These facts being admitted, the charge of the court amounted to simply this: That if he signed the note as maker, such signing would amount to a material alteration of the note which would discharge Kauffman from liability. Wallace & Park v. Jewell, 21 Ohio St., 163.

Prior to the time of signing his name on August 1, 1885, Smucker was a "stranger" to the note. On the trial, plaintiff sought to hold him as a guarantor, and not as a maker. It seems to be settled in Ohio;

First-That the mere indorsement on a note, of a stranger's name, in blank, after the note has been executed and delivered, is prima facie evidence of guaranty. Second-But the intention of the parties at the time of such indorsement may be shown by parol. Bright v. Carpenter et al., 9 Ohio, 139, 140; Champion et al. v. Griffith, 13 Ohio, 228; Seymour & Co. v. Mickey, 15 Ohio St., 515; Greenough et al. v. Smead et al., 3 Ohio St., 415; Castle v. Rickly, 44 Ohio St., 490; Robinson v. Abell et al., 17 Ohio, 36.

In this case, however, Smucker did not indorse the note; he did not "write on the back" of it. The question recurs, did the court err in charging the second proposition as before stated? While Smucker signed the note in the place or posi tion of maker, and apparently as maker, yet if he signed it in that place "through inadvertence or mistake," or "intending to be a guarantor," he can not be held as a maker of the note, and it would not be a material alteration discharging the origi nal maker, Kauffman. Wallace & Park v. Jewell, supra; Randolph on Commercial Paper, vol. 3, 860.

To be guilty of inadvertence is simply to be heedless, careless, negligent. A mistake is a fault in opinion, judgment or conduct. In my judgment, Smucker did not sign the note apparently as maker, "through inadvertence or mistake," as those terms are understood in legal contemplation. He labored under no mistake as to

what he was signing, nor as to where he was signing it. As to what he was doing in fact there was no "inadvertence or mistake;" and if there was any mistake at all on his part, it was simply as to the legal effect flowing or resulting from his deliberate act. "Where a note has been materially altered, it is error for the court, in its charge, to make the legal effect of the alteration depend on what the holder conceives to be its effect, etc." Wallace & Park v. Jewell, supra.

True, this citation refers to the holder of a note, but I apprehend the principle will apply as well to any other party to a note. In this particular case, it so happens that the plaintiff, Wright, had knowledge of the circumstances under which Smucker signed the note; but for the purpose of testing the principle, let us suppose the fact to be otherwise, and that Wright had no knowledge of such circumstances. Would the defendant be permitted to say: "True, I signed this note as an apparent maker; I know what I was signing and where I signed it; I received a consideration of $50.00 for such signing; I was not mistaken in regard to any fact relative thereto; but my legal opinion was that my signing it under such cirstances would have no legal effect?" If such is the law, and a person can thus tamper with negotiable paper, and send it forth into the commercial world without incurring any liability, it devolves upon every person taking commercial paper to exercise great caution.

"If, however, he signs it in that place by inadvertence, intending to be a guarantor, it will not render the note void," Randolph on Commercial Paper, supra.

There is no claim or pretense on the part of Smucker that he intended to become a guarantor. He claims, in his testimony, that he did not become a party to the note in any capacity, and in that claim, in my opinion, lies the weakness of his cause. If he had claimed that he signed the note as guarantor, or in some capacity other than that of maker, it would be a fair question whether the court did not err in its charge. Counsel have argued and cited authorities to show, that Smucker might introduce parol evidence to show what liability it was intended he should assume, and what relation he should sustain to the paper. The general proposition may be granted, and yet the defendant be liable.

The argument of counsel stripped of all tinsel and gauze, as applicable to the peculiar facts of this cause, comes to this complexion at last: A party to a note may show by parol evidence what his liability was intended to be; and in what character he is on the note, and what relation he sustains thereto; we can, therefore, by parol evidence, show that Smucker sustains no relation to this note; and that his name is not on it in any character or capacity whatever. Smucker claimed in his testimony that he signed the note under the name of Kauffman simply for the purpose of vouching that Kauffman was worth about $3,000.00. He disclaimed signing the note as maker, (either maker as principal or maker as surety), guarantor, indorser or in any character or capacity. He does not make a case then for the application of the rule which is frequently applicable, that a party to a note may show by parol evidence that his relation to it is different from what the position of his name would indicate. Smucker was a "stranger" to the note. For a valuable consideration he signed it as an apparent maker. When he so signed it there was no "inadvertence or mistake" as to any fact relative to such signing. While he disclaims signing it as maker, he also disclaims signing it in any other character. He must, therefore, be held to bear the relation to it which the position of his name upon it indicates.

Motion for new trial overruled.

E. J. Howenstine, for Wright.

West, Brown & West, for Kauffman.

William Lawrence, for Smucker.

STREETS.

[Superior Court of Cincinnati, Special Term.]

MILLER V. CINCINNATI.

121

The city cannot change the established name of a street at will, no good cause for it existing, except on petition of the abutting property owners.

MOORE, J.

Superior Court of Cincinnati.

121

The superior court of Cincinnati has decided that the established name of a street cannot be changed by a city council, except on petition of the property holders on such street. The name of Fairfield avenue, Cincinnati, had been changed by the city council to Shenendoah avenue, and that of Warner street to Dryden street, at the time of a general turning over of the nomenclature of the city's streets, by the council. I. J. Miller, the well known lawyer, lives on Fairfield avenue, and had built himself a home there which he named "Fairfield Place." He filed a petition asking for a perpetual injunction against council from changing the name of the avenue, averring that the change had been attempted without any petition for such a change having been filed by any property owner on Fairfield avenue or on Warner street, and that no good cause for such a change existed. The city solicitor demurred. Judge Moore overruled the demurrer, and the city not desiring to plead further, a decree was granted perpetually enjoining the proposed change.-Editorial.

[Superior Court of Cincinnati, General Term.]

PLATT & WASHBURN REFINING Co. v. JOHN GALT SMITH.

A valid lien upon the property of a non-resident of the state may be obtained by the levy of an attachment issued from a court of a county other than that wherein the property is situated, if there is also property of the defendant in the county where the action is brought, and an attachment issued in the same action is at the same time levied upon it, and in such case the fact that the last named property is subsequently exhausted in satisfying prior attachment liens does not invalidate the first named attachment.

ERROR to Special Term.

РЕСК, J.

The question in this case is one of jurisdiction. The principal defendant below, the Mystic Rubber Company, is a foreign corporation, and was served by summons and copy out of the jurisdiction. Writs of attachment had been issued by various parties in this action against that company, and among others, the defendant Smith caused such writ to be issued at the same time to the sheriff of this and of Montgomery counties. The writ was served in this county upon certain garnishees, who answered, admitting an indebtedness to the Rubber Co., but setting forth that such indebtedness had already been garnisheed by the other parties before mentioned. The writ to Montgomery county was served upon garnishees, who also admitted indebtedness, and have since paid the money into court, leaving it to be determined whether the plaintiff or the defendant is entitled thereto. The plaintiff commenced an action against the Rubber Co., in the court of common pleas of Montgomery county, and caused a writ of attachment to be issued and served upon the same garnishees who paid the money into this court, before such payment was made, but subsequent to the service of the writ issued by Smith herein, and the point to be determined is whether the latter writ under the circumstances, confers jurisdiction upon the court to render a judgment against the Rubber Co. as to the money paid in by the garnishes in the

122

Platt & Washburn Refining Co. v. Smith.

absence of service upon the company within the jurisdiction. The claimants to the fund all came into the court below and submitted their claims in that behalf to its judgment, where the decision was in favor of Smith, awarding the fund to him.

It is claimed on behalf of the Refining Co. that there was no jurisdiction to issue the writ of attachment to Montgomery county, because the defendant, the Rubber Co., was not found or served within the jurisdiction, and that the issue of an attachment and the service thereof upon garnishees in this county furnished no foundation for the issue of a like writ to another county, and 2d, that as to the garnishments in this county, it turned out subsequently, but prior to final judgment below, that the funds garnisheed were insufficient to pay the claims of prior attaching creditors, and no part of the same proved applicable to the payment of the claim of Smith. Wherefore it is claimed that even if a writ of attachment may issue to another county in a case where property has been levied upon in the county where the writ is issued, if it turns out afterwards that such property is consumed by prior claimants, it is as if nothing had been levied upon, and the court obtains no jurisdiction by virtue of the writ.

As to the first question, can a writ of attachment be issued to another county where the defendant is only in court by constructive service, in a case where a like writ issued by the same court is levied upon property of the defendant within the jurisdiction of the court issuing the writs?

The question is one of Ohio law. Following Judge McIlvaine in National Bank v. L. S. & M. S. R. Co., 21 Ohio St., 221, 228, we shall assume, for the purpose of this action, that it is within the power of the legislature to prescribe the manner in which service may be made in actions instituted in the courts of the state, in which property situate within the state is in any way involved or may be appropriated." Turning then to the statute, we find sec. 5030 provides that an action ** * against a non-resident of this state or a foreign corporation, may be brought in any county in which there is property of, or debts owing to the defendant." And sec. 5525, provides that "orders of attachment may be issued to the sheriffs of different counties, and several of them may, at the option of the plaintiff, be issued at the same time.

66

Here is plainly authority to commence an action in any county where there are debts owing to the defendant, and to issue writs of attachment to other counties, unless there is something else in the statutes, or in the policy of the law to modify the meaning of the language of these provisions. Our attention has not been called to any other statutory provi sions affecting the question, and to no principle or policy of the law other than that which is applied between jurisdictions foreign to each other and which rests upon constitutional principles not here involved. The laws of a state have no extra territorial force. The courts cannot render judgments effective as against persons or property not within the operation of the laws of the state or the reach of its officers; but this has no application to persons or property found within the state. The jurisdiction of the courts in different counties of the state is in no sense foreign to each other. The non-resident who has not been served with process in the state, can not be affected as to his person or property without the state by judicial proceedings within it. It is not within the power of the legislature to authorize a valid judgment in such a case. The citizen must be sued in the state of his residence, or where he can be found, but to a non-resident one county of the state is the same as another. It is

Superior Court of Cincinnati.

122

purely a matter of domestic regulation, for the legislature to determine when and upon what process property found within the state shall be applied to the claims of the creditors of the non-resident. Viewed as a matter of convenience, it certainly appears better for all parties that the claims should be heard and determined once for all in a single action, then that they should be put to the expense and trouble of litigation in each county where the defendant may have property. See Finnell v. Burt, Ohio Dec., 2 Handy, 223. We conclude that the first of plaintiff's propositions is not well founded.

Does the fact that it afterwards turned out that the debts garnisheed by Smith in this jurisdiction were consumed in paying the claims of prior attaching creditors, alter the case? There were debts owing to the Rubber Co. in this county, and Smith acquired a lien upon those funds by virtue of his levy. At the time of the levy neither the validity of the prior claims, nor their amount, had been judicially determined. If anything had remained it would have gone to Smith. To hold that because the property levied upon was insufficient to pay more than the prior claims there could be no jurisdiction, would be in effect holding that there was no jurisdiction, not because defendant had no property in the county, for he had such property; nor because it was not levied upon, but because of a fact which could not be ascertained at the time of the levy, which is the time as to which the question of jurisdiction is to be determined.

If we are right in our conclusion as to the first point, the second must also be resolved against the plaintiff in error, and the judgment is

affirmed.

TAFT and MOORE, JJ., concur.

Wilby & Wald, for plaintiff.
Bradstreet, for defendant.

124

BANKS.

[Superior Court of Cincinnati, Special Term.]

tH. H. WARNER V. ARMSTRONG, RECEIVER.

A few hours before the Fidelity National Bank closed its doors and at a time when its officers knew that it was hopelessly insolvent, and that no deposit made could be withdrawn, G., acting as agent of W., was allowed by said officers to deposit W's check on another bank to G's account in the Fidelity National Bank and receive in exchange therefor a draft of the Fidelity National Bank on a New York Bank where it had no funds. Held,

1 That W. as against the receiver of the Fidelity National Bank was entitled to rescind the contract of deposit of the check for fraud, and on the tender of the dishonored draft was entitled to a delivery up of the check.

2. That W. was entitled in equity to enjoin suit against himself by the receiver in a jurisdiction where G's assignee in insolvency, who held the dishonored draft and refused to deliver the same to W. or the receiver, could not be made party. 3. Under section 5242, Rev. Stat. of the United States, there is no power in a state to issue a temporary injunction before final decree against the receiver of a national bank.

† See Decision in case of Armstrong v. Warner, post 434.