Whether appurtenant, or in gross. See EASEMENTS, 2, 3, 4.
ASSIGNEE OF NEGOTIABLE PAPER.
1. Before and after maturity-sale by agent without authority-
whether assignee protected—and of defences in equity. Where the
holder and owner of two notes indorsed in blank, the one over-due and
the other not, placed them in the hands of an agent to receive payment
of them only, and the latter sold and delivered them to an innocent pur-
chaser having no notice, in fact, of the agent's want of authority to nego-
tiate the same, it was held, that the purchaser, as to the note past due,
was put on inquiry to ascertain whether the agent had authority to nego-
tiate the same, and took no title as to such note, but as to the note not
due the purchaser acquired the legal title. Towner et al. v. McClelland,
2. While a purchaser in good faith of a note before its maturity, which
is indorsed in blank, acquires the legal title, and may enforce his rights
in a court of law, yet if the note is secured by mortgage on real estate,
and he resorts to a court of equity to foreclose the mortgage, that court
will let in any defence which would have been good against the mortgage
in the hands of the mortgagee. Ibid. 542.
3. A mortgage, not being assignable at law, the assignee takes it sub-
ject to equities between the parties; and the fact that he takes the note
secured by the mortgage by assignment before maturity, free from all
defences at law, does not protect the mortgage against equitable defences.
Ibid. 542.
4. The equitable assignee of a mortgage, to protect his rights against
a payment by the mortgagor to the mortgagee, must give the former notice,
actual or constructive, of its assignment. He may place the assignment
on record, or give notice to the mortgagor, and thus protect his equitable
rights. If he does neither, a payment of the debt to the mortgagee,-
and there are no circumstances to put the mortgagor on inquiry as to the
fact of the assignment,-will satisfy the mortgage and defeat a fore-
closure. But such payment to the mortgagee after the legal transfer of
the note before maturity, will not discharge the note, and it may be en-
forced at law. Ibid. 542.
ASSIGNMENT TO AGENT OR TRUSTEE.
5. Change of possession. Where a party made a writing purporting
to convey all his real and personal estate to a trustee, for the purpose of
sales and collections for the benefit of the maker, the trustee to be paid
a commission on all moneys by him received and paid over as directed,
and afterwards executed and delivered to another person an assignment
of a bond, and mortgage securing the same, and delivered the bond and
ASSIGNMENT. ASSIGNMENT TO AGENT OR TRustee. Continued.
mortgage to the assignee, and there was no proof that the trustee ever
had possession of the same, it was held, that the assignment and delivery
passed the beneficial title to the assignee. Wellington v. Heermans
et al. 564.
6. Change of possession to pass title. The title to chattels or choses
in action does not pass by sale or gift, as to creditors or purchasers,
unless accompanied by possession, either actual or constructive. Ibid.
564.
7. Where a person by a written document granted and conveyed all
his estate, real and personal, to a nephew, in trust, to sell his lands and
convert his means into money, and to manage the estate for the grantor's
benefit, the proceeds to be paid out and distributed as the grantor might
direct, and it appeared that both persons occupied the same office both
before and after the making of such writing, and it did not appear that
any change in the possession of the grantor's choses in action was ever
made, and the grantor afterwards transferred a bond and mortgage to a
grand-nephew, and delivered the same to him as a gift, it was held, that
there was no such delivery to the trustee shown as would pass the title
to the bond and mortgage as against the donee. If the trustee was not a
mere volunteer, but a purchaser, it seems the same strictness of proof of
a delivery would not have been required. Ibid. 564.
8. Redemption by judgment creditor-rights of the parties. See
REDEMPTION, 10.
ATTACHMENT OF ABSENT WITNESS.
QUESTIONS ON ANSWER TO ATTACHMENT. See CONTINUANCE, 3.
RECOVERY BY ONE MEMBER OF A FIRM.
1. For services not embraced in the business of the partnership.
See PARTIES, 5.
ASSIGNMENT OF COUNSEL TO PRISONER.
2. Duty of court and counsel. See CRIMINAL LAW, 33.
DEFENDING ON CRIMINAL CHARGE.
Liability of county where attorney defends by appointment of the
court. See COUNTIES, 3.
1. After discharge in bankruptcy. A discharge in bankruptcy will
not avail as a defence against a creditor of the bankrupt, if the latter,
after his discharge, makes an unconditional promise to his creditor to pay
him. But the promise to pay must be express and direct, the mere
expression of an intention to pay will not avail. Katz v. Moessinger,
Admx. 372.
IN BENEVOLENT ASSOCIATION. See INSURANCE, 6, 7, 8.
BILLS OF EXCEPTIONS. See EXCEPTIONS AND BILLS OF EX-
CEPTIONS, 1.
CERTIFICATE OF MEMBERSHIP.
1. How far to be considered as property, so that a court of equity
will interpose to protect the owner in its enjoyment—and generally, as
to property rights not subject to judicial sale. A person engaged in
the milling business in Chicago employed an agent to manage the finan-
cial part thereof, and furnished him with a certificate of membership in
the board of trade of that city, to enable him to conduct that part of the
business advantageously, and such agent, on leaving his employment,
refused to transfer such certificate and surrender the same to his em-
ployer: Held, that a court of equity would compel him to assign the
same in blank, and deliver the same to his employer. Weaver v. Fisher,
146.
2. There is a large class of legal rights in which there is a property
interest, which, by reason of the personal and peculiar character of such
rights, can not be made the subject of transfer by judicial sale, such as,
an interest in real estate conditioned to become void on alienation or
transfer to another; contracts for personal services requiring the indi-
vidual care and skill of the one party in and about some matter affecting
the person or personal tastes of the other party. But still, a court of
equity will interpose to prevent a deprivation of their enjoyment. Ibid.
146.
3. Former decision-as to property in certificate of membership in
board of trade. It is a misapprehension to suppose that this court held
in Barclay v. Smith, 107 Ill. 349, that there are no property rights of
any kind in a certificate of membership in the board of trade of the city
of Chicago. It was simply held in that case that such a certificate is not
property which is liable to be subjected to the payment of the debts of
the holder by legal proceedings, under the law as it now exists. Ibid. 146.
SETTLED BY PAROL AGREEMENT.
1. The owners of adjoining tracts of land may, by parol agreement,
settle and permanently establish a boundary line between their lands,
which, when followed by possession according to the line thus agreed
upon, is binding and conclusive, not only upon them, but also upon their
grantees. Grim et al. v. Murphy, 271. Also, see DESCRIPTION—
BOUNDARIES.
1. Condition precedent that the town provide one-half the funds.
The board of supervisors of a county are not bound to make an appro-
priation to aid the commissioners of highways of a town, until "one-half
the necessary funds have been provided by the town authorities." This
is a condition precedent for the protection of the tax-payers of the county.
Supervisors of Stark County v. The People ex rel. 577.
2. As to the manner in which the town may provide for one-half the
necessary funds. A mere arrangement by the commissioners of high-
ways, not sanctioned by a vote of the people of the town, under section
111, of the Road law of 1879, to borrow money with which to pay one-
half of the cost of building a bridge, can not be regarded as legally pro-
viding for money to meet this kind of an improvement, as they are under
no legal obligation to consummate the arrangement, and it can not form
the basis for an application to the county board for an appropriation of
the other half of the cost of the bridge. Ibid. 577.
3. Under section 90 of the Road and Bridge act of 1879, there is no
authority for borrowing money by the commissioners of highways for
providing for one-half the cost of building a bridge, without a vote of
the town, nor for requiring counties to pay one-half the expense of
building bridges when private parties may be willing to pay the other
half. Ibid. 577.
4. In building bridges on demand of a town-conditions to fix lia-
bility of the county-the statute construed. The 110th section of the
Road and Bridge law of 1879 does not authorize the county board to pay
one-half the cost of bridges already built and paid for by towns, without
reference to the requirements of that section. People ex rel. v. Super-
visors of McHenry County, 93.
5. In order to entitle the commissioners of highways of a town to
demand of the county board to pay one-half of the cost of a bridge,
they must proceed and act under section 110 of the Road and Bridge
law of 1879. To hold the county liable, the commissioners should, on
ascertaining the cost of the bridge, have applied to the county board for
aid before proceeding to build the bridge. If they proceed under sec-
tion 111, and call an election, and vote to issue town bonds sufficient to
BRIDGES. COUNTY AID TO TOWNS.
raise money enough to build the bridge, this will show that the town has
acted without the intention of calling on the county for aid. People
ex rel. v. Supervisors of McHenry County, 93.
6. Of the discretion of the county board. Where the commissioners
of highways have determined that the construction of a bridge or bridges
across any stream in their town is necessary, and that the cost thereof is
too great a burden to be reasonably borne by the town, and apply to the
county board for an appropriation for one-half of the cost of its con-
struction, having first provided for the other half of the necessary ex-
penses, under the act of 1879 the county board has no discretion to refuse
the aid sought. Town of New Boston v. Supervisors of Mercer County,
197.
7. Whether too late to apply for county aid after the contract is
made-who to determine the character of bridge to be built. Applica-
tion to the county board for such an appropriation is not too late after
the commissioners of highways have let the contract for building the
bridge. The committee appointed by the county board have nothing
whatever to do in connection with the commissioners of highways, or
otherwise, in determining the character of the bridge to be built or in the
letting of the contract to build the same. Those matters are intrusted
by law exclusively to the commissioners of highways. Ibid. 197.
8. Duty of the county-whether imperative. By section 110 of the
act of 1879, entitled "Roads and Bridges," an absolute duty is imposed
upon counties to aid in the building of bridges by the town authorities,
whenever a case is clearly brought within its provisions. This section
differs from the law in the act of 1872, in giving the county boards no
discretion in the matter of aid, and making the duty imperative. Super-
visors of Will County v. The People ex rel. Comrs. of Highways, 511.
9. Constitutionality of act of 1879. The provisions of section 110 of
the Road and Bridge act of 1879, making counties liable to contribute
one-half of the expense of town bridges upon certain contingencies, is
not in contravention of sections 9 and 10, of article 9, of the constitution,
as to what corporate authorities may be invested with the power of taxa-
tion. Ibid. 511.
TAXATION FOR BUILDING BRIDGES.
10. Whether for a local corporate purpose. The raising of money
by taxation in towns or counties, in pursuance of a general law of the
State, for the purpose of building bridges, maintaining public highways,
and for other objects of a similar character, in which the people of the
State at large are directly interested, is not the levying of a tax for a
strictly local corporate purpose, within the meaning of the constitution.
(Art. 9, secs. 9 and 10.) Ibid. 511.
11. Municipal authorities, in levying taxes for such purposes, are in
a large sense mere agencies of the State in carrying into effect general
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