Notes of Cases to mortgage, might not be unfavorably affected by the restriction, the Supreme Court, Appellate Division, held that the covenant was not a condition, in that no right of re entry for a breach was reserved, and that the jurisdiction of equity might be invoked to cancel an unenforceable covenant constitu ting a cloud on title, its unenforceability affecting not the jurisdiction of a court of equity, but merely the use of its discretion in exercising its jurisdiction. Per Scott, McLaughlin, and Houghton, JJ.; Patterson, P. J., and Laughlin, J., dissenting. Rector, Church Wardens and Vestrymen of St. Stephen's P. E. Church of New York v. Rector, etc., of Church of the Transfiguration in the City of New York, decided in January, 1909. Receivers. Conflicting Jurisdiction of State and Federal Courts. U. S. In the proceedings to forfeit the permit of the Waters-Pierce Oil Company to do busi ness in Texas, an interesting conflict arose between the federal and state courts as to the possession of the property by their respec tive receivers. A receiver was appointed in the state court and subsequently an appeal was taken to the Court of Civil Appeals and bond given to supersede the receivership. On the same day application was made in the Circuit Court of the United States for the appointment of a receiver. The appointment was made and the receiver was put into possession of the property on the theory that the proceedings in the state court left the property no longer in custodia legis, and hence it was liable to seizure by adverse proceedings. The state through its officers and receiver applied to the Circuit Court, asking it to set aside the order appointing the receiver. This it refused, an appeal was taken, and the case in due course reached the United States Supreme Court, Palmer v. Texas, 29 Sup. Ct. 230, 212 U. S. 118. The court laid down the broad proposition that if the state court had acquired jurisdiction by the proceedings to appoint the receiver and had not lost it by subsequent proceed ings, the federal court had no right to inter vene. The decisions of the state courts are reviewed to the effect that the appeal merely suspended the order appointing the receiver and the appellate court had jurisdiction of the res, just as the trial court had. The con clusion is reached that the state court did not lose jurisdiction by the appeal and supersedeas in the receivership proceedings, and the federal
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court ought not to have appointed a receiver to take possession of the property. Sales in Bulk. Constitutionality of Pro hibiting Statutes—Due Process of Law— Equal Protection of the Laws. U. S. In Lemieux v. Young (Jan., 211 U. S. 489, 29 Sup. Ct. Rep. 174) it was held that neither due process of law nor the equal protection of the laws was denied by a statute of Connecticut which prohibited sales of goods in bulk by retailers outside of the regular course of their business. A statute similar to the Connecticut one has been pronounced unconstitutional in Illi nois as class legislation. See Charles J. Off 6> Co. v. Morehead, 85 N. E. Rep. 264 (Green Bag, Mar. 1909, p. 129). Commenting upon the New York case of Wright v. Hart, decided a few years ago, which upheld the constitutionality of a "sales in bulk" statute of New York, the New York Law Journal observes editorially: "The over whelming weight of authority in the state courts is against the position of the majority of the New York Court of Appeals that Sales in Bulk statutes constitute class legislation. It is of great interest that the Supreme Court of the United States has recently expressed a similar view." Subrogation. Right of Surety to Reserve Fund—Assignments of Contracts. U. S. A contractor engaged in constructing a lock for the United States had agreed that all sums for labor or materials should be promptly paid. Finding himself unable to complete the undertaking he assigned the contract and a sum for work performed which had been withheld by the government. There was a loss on the operation which the surety on the bond had to pay. Both the assignee and the surety sought to recover the fund held in reserve, which had been paid into court. In Hardaway v. National Surety Co., 211 U. S. 552, 29 Sup. Ct. 202, the United States Supreme Court held that the sum should be credited upon the total amount paid by the surety for the satisfaction of labor claims. The right of the surety to be subrogated had attached prior to the assignment and was superior to any right of an assignee. Taxation. Exemption of After-Acquired Property of Hospital—Legislature's Promise Binding. N. Y. The Roosevelt Hospital in New York was
