Page:Harvard Law Review Volume 9.djvu/247

RECENT CASES, 219 at time of failure, but cannot come in as preferred creditor with respect to the amount since realized from the assets by the receiver. Boone County Aat. Bank v. Laiinur et al., 67 Fed. Rep. 27. It is now pretty well settled that where trust property has been confused with other property of the same kind the equity is not destroyed, but converted into a charge upon the entire mass, giving the cestui que trust a prior right over other creditors. / etas v. Bain^ 133 U. S. 693. But here the assets realized on by the receiver were not, in part or in whole, the product of the converted money, and the principle just stated has never been extended to allowing a priority against funds other than those with which the trust money was mixed. The case is clearly right on both points. Bills AND Notes — Negotiability. — A promissory note contained an agreement that if there should be any depreciation, before the maturity of the note, in collateral deposited to secure its payment, the payee or holder might call for further security, and if it were not furnished within two days, might sell the collateral and apply the pro- ceeds towards extinguishing the note. Held, non-negotiable. There might be a pay- ment of an uncertain sum before maturity, thus rendering the amount payable at maturity somewhat less than the amount specified on the face of the paper. Lincoln Nat. Bank v. Perry, 66 Fed. Rep. 887. This decision is based on the principle that a note for an uncertain amount is non- negotiable. But, it is submitted, there is no uncertainty here as to amount ; a definite sum, $5000, mus* be paid, and the only uncertainty is as to the time of payment, the holder having an option under certain circumstances to force payment of the whole or part before maturity. This option should not be held to destroy the negotiability of the note. The time of payment must certainly come, and an option in the maker to pay, or in the holder to enforce payment, before maturity, does not affect the negotiability of notes. Jordan v. late, 19 Ohio St. 586. Constitutional Law — Bar of Statute of Limitations — Vested Right. — A school district issued bonds that were declared void after the statute of limitations had run against the recovery of the original consideration. The Illinois Legislature passed an act giving holders of such bonds one year in which to sue for the recovery of their money. It was objected that this was a taking of property without due ])ro- cess of law within the meaning of the prohibition in the State constitution. H: Id, that the right to set up the bar of the statute of limitations as a defence to a debt was a vested right, and could not be suspended by the legislature. Board of Education v. Blodg.tt, 40 N. E. Rep. 1025 (111.). The authorities are practically unanimous that a title to property acquired by the statute is a vested right. Cooley, Const. Lim. (6th ed.) 448. In regard to the right to plead the statute as a def nee to a debt, the great authority of the Unite I States Supreme Court is against it. Campbell v. Noli, 11^ U.S. 620, 6 Supr. Ct. 209. So in Texas and Alabama. Benfinck v. Franklin, 38 Tex. 458 ; Jones v. Jones. 18 Ala. 248. But in eigh- teen other American jurisdictio: s where the question has arisen a contrary result has been reached, as shown by the cases cited by the Illinois Court. It is a question scarcely to be argued according to any principle, and the present case follows the over- whelming weight of authority. Constitutional Law — Validity of a Partly Unconstitutional Statute. — Held, that where one entire scheme of taxation is provided for in certain sections of an act, so that to declare part of the tax unconstitutional, would leave in operation a tax which Congress would never have intended to stand alone, all the sections are invalid. Pollock v. Farmeri' Loan 6^ Trust Co., 15 Sup. Ct. Rep. 912, 920. The principle recognized in this "income tax " decision has long been well estab- lished ; but the notoriety of the case due to the importance of the interests at stake, and the exceptional features that attended its course to a final decision in the Supreme Court of the United States, will probably make it a leading authority on the point. See 9 Harvard Law Review, 198. Contracts — Certificate of Architect. — Lleld, that, notwiihstanding the stipu- lation in a building contract that prior to payment the architect's certificate must be obtained, the builders are entitled to the balance due on their account, although no certificate is obtained, the unsatisfied claims of sub-contractors being the only objection to granting certificate, although same had been provided for by builders to be paid out of the amount due. Mahoney et al. v. Rector, etc. of St. PauPs Church, 17 So. Rep. 484 (La.). Such a stipulation as we find in a contract of this kind is an express condition, which the English courts enforce with logical rigor. The present case illustrates the general American rule, which is based on equitable grounds and followed in the dif- ferent States, with varying degrees of leniency. The court here pronounces the objection