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of this State may issue an attachment to seize, in this State, the property of a bank "not organized under any law of the United States" which is located out of this State, on the ground simply of non-residence, therefore it has, under the act of 1882, jurisdiction to do the same thing as to the property of a national bank located out of this State; still, in the face of the emphatic declaration as to what the law is, by the Supreme Court of the United States, adopted and followed by the Court of Appeals in 112 N. Y., we can not sustain this attachment, and the judgment of the Superior Court quashing it, is therefore affirmed.

But the court went further in the original action; the plaintiffs caused an original and alias summons to be issued against the defendant, which being returned not found, they proceeded to publish and mail under the provisions of the amendment of 1887 to Sec. 4 of the Practice Act of 1872. What might be the effect of a judgment, if taken, or whether judgment might be taken upon such a service, we are not called upon to decide. The proceeding is authorized by the statute. If it served only to amuse the plaintiffs and is void as to the defendant, that is not a cause for dismissing it. The defendants have their choice to appear in answer to the publication, or disregard it and risk the consequence.

The judgment dismissing the suit and for costs, is reversed, and the cause remanded, without costs in this court to either party.

Affirmed in part and reversed in part and remanded.

RUTH W. FLOYD

V.

CHARLES RATHLEDGE AND G. H. RATHLEDGE, Co

PARTNERS.

Mechanics' Liens-Sworn Statement—Waiver—Building Contract—Bal· ance Due-Extras.

Floyd v. Rathledge.

1. A party should not be held to waive that which is necessary to constitute a right of action against him, unless it fairly appears from the evidence in a given case, that he actually intended to waive it, or his conduct has been such as to estop him to deny that he did waive it.

2. In the case presented, this court holds that the evidence does not justify the assumption that the statement referred to in Sec. 35 of the amendments to the Mechanics' Lien law, was waived by the defendant herein.

[Opinion filed November 2, 1891.]

IN ERROR to the Circuit Court of Cook County; the Hon. RICHARD W. CLIFFORD, Judge, presiding.

Mr. D. H. PINNEY, for plaintiff in error.

Messrs. BAKER & GREELEY, for defendants in error.

MORAN, J. This is an action to recover a balance alleged to be due for work performed under a contract made by defendants in error with plaintiff to build a front on three stone buildings. There is also a claim for extras. There was a verdict and judgment in favor of defendants in error, and the record is brought to this court and various errors assigned. There were several material issues of fact between the ties on the trial, on which issues plaintiff in error contends that the evidence greatly preponderated in her favor.

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The point is pressed that there was no compliance with Sec. 35 of the amendments to the Mechanics' Lien Law, in force July 1, 1887, requiring the contractor to give to the owner a statement under oath of the number, name of every sub-contractor, etc. Said section declares that "until the statement provided for in this section is made in manner and form as herein provided, the contractor shall have no right of action or lien against the owner on account of such contract," etc.

It is not pretended that defendants in error did comply with this provision of the law, but it was contended that plaintiff in error waived such statement as the statute requires, and so the jury must have found by their verdict.

We have carefully considered all the evidence in the record going to show a waiver of this sworn statement, and we are

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forced to the conclusion that the verdict upon that issue is against the clear preponderance thereof. The pretended waiver is alleged to have occurred in a heated dispute about a settlement of the work as done, in which the parties called each other liars and rogues, and in which no disposition to waive any right can, in our opinion, be fairly discovered.

So far as the witnesses have attempted to relate what was actually said by the parties, it can not be inferred that either was talking of, or had in mind at all the sworn statement required by the statute. If regard were to be had to the conclusion of the witnesses for the defendants in error, it might be admitted that such a statement was being talked about. It is, however, what was said, and not what the witnesses concluded from what was said, that is to be regarded.

A party should not be held to waive that which is necessary to constitute a right of action against him, unless it fairly appears from the evidence that he actually intended to waive it, or his conduct has been such as to estop him to deny that he did waive it.

The evidence relating to the waiver in this case seems to us to be very unsatisfactory. It is strained, does not fit well together, and there appears to us to be an effort on the part of the witnesses to make words apply to this statement which, from their context in the conversation, were used with reference to a wholly different statement which the parties then had in mind.

The case is in other respects unsatisfactory on the evidence, but we forbear the discussion of other points now. We think justice is more likely to be attained by submitting the matter in dispute to another jury, and the judgment will therefore be reversed and the case remanded for a new trial.

Reversed and remanded.

Uhlendorf v. Kau'man.

LEBRECHT UHLENDORF

V.

ABRAHAM KAUFMAN ET AL.

Partnership-Judgment Notes-Right of Single Partner to Sign Firm

Name to.

1. While a partner is not authorized to sign the firm name to a power of attorney to confess a judginent, a judgment entered under such a power is not void, but voidable only as to, and at the instance of him whose name has thus been unwarrantably made use of.

2. Such judgment may be ratified by him either directly, or by waiving his right to object thereto.

3. A party to a given suit having a right to have a certain judgment set aside as to him, without reference to the merits, waives the right by pleading thereto.

4. Persons who enter into partnership thereby make their partners agents to bind them in all matters within the scope of the partnership agreement, and while the confession of judgments is not within the terms of an ordinarypartnership compact, the making of promissory notes is; likewise an agree ment extending or reducing the time within which a debt shall become due, as well as the taking up of old notes and the giving of new therefor.

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5. As a general rule where there is a complete execution of a power and something ex abundanti" added, which is improper, then the execution shall be good and only the excess void; but where there is not a complete execution of a power, or where the boundaries between the excess and execution are not distinguishable, it will be bad.

6. Where instruments to which one of several partners affixed the firm name embodied unauthorized powers of attorney to confess judgments, the same may, under certain circumstances, be valid as promissory notes of the firm.

[Opinion filed November 2, 1891.]

IN ERROR to the Superior Court of Cook County; the Hon. ELLIOTT ANTHONY, Judge, presiding.

November 27, 1888, a judgment, by confession, for the sum of $16,217.70, was entered in the Superior Court in favor of the defendants in error and against the plaintiff in error and one Henry Sues, they then being partners under the firm name of Sues & Uhlendorf.

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The declaration under which the judgment was entered contained two counts, each upon an instrument having embodied therein a note and a power of attorney to confess judgment. The signature to each instrument was "Sues & Uhlendorf." The judgment was entered in open court in term time.

November 28th, Lebrecht Uhlendorf, the plaintiff in error, filed his motion in the Superior Court to vacate the judgment as to him, upon the ground that the judgment notes, although for a valid indebtedness, were made entirely without his authority, knowledge or consent, and with such motion submitted the affidavits of himself and Henry Sues, to the effect that the making of the judgment notes was never authorized by Uhlendorf, and had never been assented to or ratified by him, the firm name having been signed by Sues to such notes without the knowledge of his partner.

Without directly denying this motion, the court ordered that Uhlendorf have leave to plead to the merits within ten days and that the judgment stand as security. No exception was taken to this order.

Uhlendorf thereupon filed three pleas, viz.: the general issue that he did not make and deliver the writing in the said declaration mentioned, and that he is not, and never was, jointly liable with Sues in respect to the said cause of action. pleas were verified.

These

An agreed statement of facts was submitted to the court, from which it appeared that the firm being largely indebted to the plaintiffs in October, 1889, Sues, with the consent of Uhlendorf, gave the firm's judgment notes therefor and left them with one Edmund Furthmann, it being agreed by all parties that Furthmann should hold them in escrow until their maturity in February, 1889.

The plaintiffs being dissatisfied with this arrangement, in November, 1888, applied to Sues, and at their request he signed the firm name to the judgment notes in question in this case; these he delivered to the plaintiffs and they gave them to Furthmann, who had all this time acted as the attorney for all parties. Uhlendorf was not consulted about the making of

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