a private person without being signed would make it his deed. Tut the reord of a patent would not necessarily be as much a recognition of its validity as a personal delivery by the recorder, because he only atu's to the recording and is not required to do it in person. The only way in which he can lawfully and effectually recognize the validity of a patent is by personally countersigning i Again, it is said that the act of March 3, 1853 (5 Stat. 627), reme lics the defect because it provides "that literal exemplifications of any such records which may have been or may be granted in virtue of the provisions of the sev· enth section of the act * entitled 'an act to re-organize the General Land Office,' shall be deemed and held be of the same validity all preceedings, whether at law or in equity, wherein such exemplid Lions are te duced in evidence, as if the ames of the officers signing and counter-iing the same had been fully insertel therein." This act do:s not, however, dis pense with the signing and countersigning. The record. to prove a valid porn, must still show that these provisions of the law were complied with. names need not be fully inserted in the record, but it must appear in some form that the names were actually signed to the patent when it issued. If they are partially inserted in the record it will be presumed they fully appeared in e patent, but no such presumption will be raised if no signature is shown by the record. Here no signature does appear, and consequently none will be presumed. The The failure to record the patent does not defeat the grant. It only takes from the party one of the means of making his proof. If he can produce the patent itself, and that is executed with all the formalities required by the law, he can still maintain his rights under it. He is not, therefore, necessarily deprived of his title because of a defective record. He is in no worse condition with the signatures omitted than he would have been if the description of his lånd had been erroneously copied or other mistakes had been made which rendered the record useless for the purposes of evidence. A perfect record of a perfect patent proves the grant, but a perfect record of an imperfect patent or an imperfect record of a perfect patent has no such effect. In such a case, if a perfect patent has issued it must be proved in some other way than by the record. It is undoubtedly true that when a right to a patent is complete and the last formalities of the law in respect to its execution and issue have been complied with by the officers of the government charged with that duty, the record will be treated as presumptive evidence of its delivery to and acceptance by the grantee. But until the patent is complete it can not properly be recorded, and consequently an incomplete record raises no such presumption. Again, it is said that the record of an instrument which the law requires to be recorded is prima facie evidence of the validity of the instrument. That is undoubtedly true if the instrument recorded is apparently valid. The presumption arising from the record is that whatever appears to have been done actually was done. If the record shows a perfect instrument the presumption is in favor of its validity, but if it shows an imperfect instrument a corresponding presumption follows. Here the instrument recorded appears to have been incomplete, and consequently it must be presumed to be invalid. This presumption will continue until overcome by proof that the instrument as executed and delivered was valid. We are of the opinion that because this record does not show a patent countersigned by the recorder it is not sufficient to prove title in McGarrahan. This makes it unnecessary to consider any of the other questions which have been argued, and the judgment is affirmed. Mr. Justice FIELD took no part in the decision of this cause. Supreme Court of Illinois. (June Term, 1877.) [Filed October 9, 1877.] GIVENS vs. MERCHANTS' NATIONAL BANK. PROMISSORY NOTES. 1. PLEA IN ABATEMENT-NON-RESIDENCE OF PARTIES.-In suit on a promissory note by indorsee against indorser, it is not a good plea in abatement that, when the cause of action accrued, and when suit was brought, both plaintiff and defendant were non-residents of the State in which suit was bought. 2. INDORSEMENT JOINT LIABILITY.-The fact that a note is indorsed "St. Louis Marble Co., by James Givens, President, James Givens, I. V. W. Dutcher," raises no presumption that it is a joint undertaking of the two latter. 3. PRESENTMENT AND NOTICE-WAIVER.-Knowledge of the fact that a note is past maturity, and no presentment has been made or notice given to indorsers, is necessary in order to make good a waiver of such fact by a promise of an indorser to pay the note. But proof of direct knowledge is not essential; it may be inferred from circumstances. SCHOLFIELD, C. J., delivered the opinion of the court. Appellee recovered a judgment against appellant, in the court below, as indorser of a promissory note, made by one Charles L. Rice to the St. Louis Marble Company. The note was executed and indorsed in St. Louis, Missouri, where appellant resides. The suit was commenced by attachment, and the first objection urged is, the court below erred in sustaining a demurrer to appellant's plea in abatement. The plea alleged that both appellant and appellee were, when the cause of action occurred, and when the suit was brought, non-residents of the State of Illinois, and residents of the State of Missouri. The objection is not well taken. It is expressly overruled in Mitchell vs. Shook, 72 Ill. 492; see, also, Mason vs. Burton, 54 id. 353; Schulter vs. Piatt, 12 id. 418. Another objection urged is, that there is a variance between the allegations and proofs in this: The note offered in evidence is indorsed thus: "ST. LOUIS MARBLE CO., I. V. W. DUTCHER." Dutcher is not noticed in the declaration. It is insisted he is jointly liable as endorser with appellants. This, in our opinion, is a misapprehension. The only evidence from such an inference is pretended to be drawn, is the simple endorsement of the names on the note in blank in the order we have given ; and this, very clearly, instead of raising the presumption of a joint undertaking authorizes the presumption that the undertaking was not joint, but that of successive endorsers; and in that view the suit was well brought against alone, without noticing the subsequent endorser. 2 Parsons on Bills and Notes, 19. The principal contest is, however, whether the case is made out in respect of presentment and notice, the note having been executed and endorsed, and it being stipulated that, by the law of that State, proof of presentment and notice is required to fix the liability of the endorser. We understand the law in that state to be as it is recognized in many of the other states and laid down in text-books, that the consequences of a neglect to give notice of non-payment of a bill or note may be waived by the person entitled to take advantage of them, and that such waiver may be presumed from a promise made after maturity to pay the note with full knowledge of the facts, or under under circumstances from which it is to be inferred the party ought to have had full knowledge of the facts. Chitty on Bills (8th Am. Ed.), 523–534; 1 Parsons on Notes and Bills, 595; Story on Prom. Notes, § 276; Dorsey v. Watson, 14 Mo. 62; Mentz v. Osborn, 5 id. 546. It is proved that appellant, on several occasions, after the maturity of the note, promised to pay it; but, he says, he was not aware at the time he made these promises that he had any legal defense to the note. This may be true, and have resulted simply from his ignorance of the law, or it may have been true he was ignorant of the facts. If it was because of his ignorance of the law, it can not avail him, and he must be charged with full knowledge. Chitty on Bills (8th Am. Ed.), 735a; Story on Prom. Notes, § 362; Parsons on Notes and Bills, 607-608; Tibbetts v. Dowd, 23 Wend. 378. It is said in Parsons on Notes and Bills, p. 602: "It has been sometimes said that a waiver can not be inferred. But, if this is meant that direct knowledge must be proved, we think it correct. Indeed, there does not appear to be any good reason why knowledge may not be proved in the same manner, and by the same evidence in this matter as any other. A jury will be justified in inferring knowledge from a variety of circumstances, such as the situation and connection of the parties, the words and acts of the endorser, the time which has elapsed between the maturity of the note or bill and the promise, and the like." See, also, Story on Prom. Notes, § 359. This seems to have been recognized by the court in Mentz v. Osborn, supra. pay 1 Here, in addition to the deliberate and unqualified promise of appellant to the note, made after its maturity, there was this additional evidence : The note matured Nov. 1st. 1873, and on the 22d of December, 1873, the following letter was written by appellent and sent to the president of appellee: "ST LOUIS, Dec. 22d, 1873. Louis B. Parsons, Esq., Pres't.: DEAR SIR :-In case you prosecute Charles L. Rice, on his note for $10,000, we agree to reimburse you all attorney's fees and other expenses attending such prosecution; this agreement not to interfere or prevent your bank from T bringing suit againt us, or either of us, should you desire to do so. Very respectfully, ST LOUIS MARBLE CO. By James Givens, Vice-Pres't. JAMES GIVENS. I. V. W. DUTCHER." Pursuant to this request suit was instituted against the maker of the note, on the 24th day of December, 1873, in the Superior Court of Cook County, Illinois, in which county the maker resided, and judgment therein was rendered in favor of the plaintiff, for the amount due on the note, on the first Monday of March, 1874. And, thereupon, on the 18th day of April, 1874, appellant executed and caused to be delivered to appellee's president, the following agreement in writing: “Should it be necessary to institute proceedings to put C. L. Rice into bankruptcy, I hereby agree and bind myself to pay any and all expenses of any kind incurred by reason of such proceedings. April 10th, 1874. ST. LOUIS MARBLE CO. In conformity with this, appellee instituted, on the 20th day of April, 1874, in the United States Court for the Northern District of Illinois, proper proceedings to put the maker of the note into bankruptcy, which resulted, in due time, in a decree to that effect. Execution was issued on the judgment and returned "No property found ;" and nothing was realized from the proceedings in bank.uptcy. Other evidence clearly shows the insolvency of the maker of the note, at the time of its maturity. We think the evidence is abundantly sufficient to show that appellant had full notice of all the facts affecting his rights when he made the promise of payment. He knew the note was due and unpaid. He knew what notice had been given himself of its presentment and non-payment, and he evidently also knew that the solvency of the maker was at least very doubtful. We think the judgment is substantially right and that it should be affimed. Notes of Recent Decisions. Carrier of passenger: liability of steamboat company for loss of baggage.—A steamboat company is liable for the value of passenger's baggage destroyed by a fire on the steamer, unless it be clearly proved that the fire occurred from some cause over which the company had no control. Court of Q. B., Quebec, Dec. 14, 1877. Canadian Nav. Co. vs. McConkey (Mont. L. News). Fire insurance: omission to state previous insurance: verbal notice to agent.-The plaintiff, when making application for insurance, mentioned to the defendants' agent that there was a previous insurance in the Gore Mutual, but could not remember the amount which was on the property insured with the defendants. The policy contained a proviso that in case the insured should have already any other insurance against less by fire on the property, and not notified to the company and mentioned in or indorsed upon the policy, the insurance should be void. The policy contained no mention of the insurance in the Gore Mutual. Held, that the plaintiff could not recover. Court of Error and Appeal, Ontario, Dec. 17, 1877. Billington vs. Provincial Ins. Co. (Mont. L. News). Life tenancy: open mines: waste: right of life tenant to pursue, underground, reins of open mines restricted.—A. died, seized of two tracts of land, separated by an intervening tract. Upon one of them a coal mine had been opened in A.'s lifetime. A.'s widow, who was a tenant for life under A.'s will, leased both the tracts to the Westmoreland Coal Company, who owned the intervening tract, and within the boundary of the other tract. Held, that the taking of coal from the second tract constituted waste. Sup. Ct. Pennsylvania, Nov. 5, 1877. Westmoreland Coal Company's Appeal (4 W. N. Cas. 533). Maritime law: life salvage: liability of owners of lost ship to contribute.Where lives and cargo have been salved from a ship, but the ship has been totally lost, the owners of the cargo are liable to pay salvage in respect of the lives, and the owners of the lost ship are not liable to contribute to such payLife salvage awards can only be made out of the resalved, and not against owners of a ship personally. Eng. High Ct. of Justice, P. B. & A. Div. Nov. 27, 1877. The Specie ex Sarpedon (37 L. J. Rep. N. S. 505). ment. Municipal corporation: grading and paving: after contract is properly let the city has no right to alter it by an ordinance: no recovery can be had by a contractor on a quantum meruit.—Where the law requires that all municipal work of a certain character shall be performed under contract let to the lowest and best bidder after due advertisement, no recovery can be had for work done in any other manner; and neither the municipality nor its subordinate officers can make a binding contract for such work except in compliance with the requirements of the law. Sup. Ct. Pennsylvania, Nov. 12, 1877. Addis vs. City of Pittsburgh (4 W. N. Cas. 529). Construction of contract for surrender and re-issue of railroad bonds.-There being matters of dispute between S. and D. and A. Railroad Company, in which certain bonds of the company were involved, S. proposed in writing to surrender all of such bonds and procure a release from D., if the company would in exchange therefor execute and deliver to him a specified number and amount of new bonds secured by mortgage on the railroad. were handed in and cancelled and new ones issued. With reference to the other A portion of the old bonds old bonds there was a dispute between S. and third parties. Held, that the company was not bound to make the exchange with reference to the remaining bonds until S. obtained control of them and surrendered them. Decree of Cir 4 |