COMMENT ON RECENT CASES

In

EVIDENCE-WORKMEN'S COMPENSATION-LAWYERS.—1. Inland Rubber Co. v. Industrial Commission 309 Ill. 43, 140 N. E. 26, the question was the frequent one, viz., whether an award of the Commission was "without substantial foundation in the evidence"; here, on the question of fact whether due notice of claim had been given by the injured workman. The Supreme Court's judicial review of rulings by the Industrial Commission is necessary and wholesome. In the present case, there is no reason to question the wisdom of the ruling. But it is important to distinguish two separate things, (1) the general exercise of the power to review the sufficiency of the evidence, and (2) the insistence that every part of the evidence shall be tested by the jury-trial rules of Admissibility.

The latter measure is unwise. Some reasons for so believing will be found in a certain treatise on Evidence, 2d edition, which appeared last spring (§§ 4a-4c). Furthermore, apart from policy, it is not required by legal principle or precedent. Now, in the present opinion occurs the following sentence: "In proceedings under the Workmen's Compensation Act, the rules respecting the admissibility of evidence and the burden of proof are the same as prevail in common-law actions for personal injury." But is not this the first time that this statement of law has been made in our Supreme Court records? It was clearly obiter here. Hence, if never announced before, it is not yet law.

This is a large question. We should like to see it thoroughly argued, as matter of law (not merely policy), before the Supreme Court. Will not counsel take an early opportunity to present it in some case involving error in review of the Industrial Commission's ruling?

2. And this brings us to another aspect of these cases. In the above number of the Northeastern Reporter are printed 22 opinions from Illinois; and 8 of these are cases coming from the Industrial Commission. Whether this precise proportion is generally maintained, does not matter. The fact seems to be that in the work of the Industrial Commission, lawyers seem to be as necessary as they ever were in the employer's liability claims at common law when the courts tried them. If this be indeed the fact, then one of the aspirations of that legislation is being defeated. All who took part in the movement for industrial insurance, as a substitute for tortious liability, hoped and expected that the subject would be forever removed from the sphere of technical litigation in the courts. The speed, simplicity, and low cost of the new method were bound up with its removal from the trial court calendar. objects have indeed been obtained in some states, notably in Connecticut and Massachusetts. If one does not credit this, let him read Mr. Frank Ross's article in the Harvard Law Review for

Those

last January, 1923, where reports are summarized from commissions in all states. If that desirable state of affairs has not been attained in this state, it is probably because the Industrial Commision has not so managed its work as to attain the law's purpose. Does the Industrial Commission need scrutiny in this respect? Industrial Commission practice is no place where lawyers ought to be able to get a livelihood, and yet they seem to be doing it. We commend this subject to the attention of the bar associations.

3. One more thing. The Supreme Court, in the above opinion, says that the burden of proof of all necessary facts is on the claimant. Now, in the first place, this ought not to be so, on review of a ruling by the Industrial Commission, if the Commission possesses the court's confidence as a competent, impartial body. When the Commission finds the necessary facts, there ought to be a presumption in favor of the finding. Does the Commission possess the court's confidence? In the second place, the rule about giving notice of claim is an auxiliary rule. Its purpose is to put the employer on knowledge and warning. Why, then, should the court stop with the question whether there was a formal notice? If the employer did have knowledge, is a formal notice any longer necessary? Was not the purpose of formal notice already attained? Suppose in this case the employer really did have knowledge of the claim; would a formal notice still have been necessary in law? If so, the law would be back again in the barren technical condition which the new system was supposed to eliminate.

In short, why should not actual knowledge, not merely formal notice, have been the decisive fact in this class of cases?

J. H. W.

AMENDMENT OF BILL IN CHANCERY-CROSS-BILL-SERVICE BY NOTICE OF PENDENCY AND COPY OF BILL-DECREE ON NOTICE BY PUBLICATION.-Northern Trust Company, Executor, v. Sanford 308 I11. 381, 139 N. E. 603, decides several matters of importance. One of them is novel, namely, that service cannot be had on a cross-bill by delivery of notice of pendency of the suit and a copy of the cross-bill, under the provisions of Section 14 of the Chancery Act. The non-resident defendants had been notified by publication on the original bill under the provisions of Section 12. It was held that the attempted service under the cross-bill by notice of pendency and copy of the cross-bill was a nullity, and did not justify a personal deficiency judgment on the cross-bill against the defendant. In Illinois it is permissible to join new defendants in a cross-bill: Hutson v. Wood 263 Ill. 376, 392; Scott v. Millikin 60 Ill. 108; Hurd v. Case 32 Ill. 45; Jones v. Smith 14 Ill. 229: and it would seem clear that they could be served under Section 14 if out of the state. Sections 8 and 11, relating to service by summons, and Section 12, relating to notice by publication, as well as Section 14, relating to service by copy of the bill, do not any of them mention, or in term provide for, service on a cross-bill. Yet if a new party brought in by cross-bill cannot be served under some one of these

sections, he cannot be served at all. Evidently a cross-bill must be treated, for purposes of service, as an original bill as to new parties brought in by it. Indeed the opinion seems so to intimate (p. 391).

The court also holds that since foreclosure of a prior mortgage affords relief to all subsequent incumbrancers, defendants to the suit (because they can participate in any surplus above the prior mortgage which the foreclosure sale may produce), a cross-bill by a subsequent mortgagee merely to foreclose his mortgage is unnecessary, and hence solicitor's fees should not be allowed on the cross-bill, though the mortgage provides for solicitor's fees in case of foreclosure. Under a stipulation in the mortgage, sufficiently broad for the purpose, it would seem that a solicitor's fee would be allowed for services necessary to be rendered in such cases. Moreover, it would seem that a second mortgagee could, under a cross-bill, obtain remedies not obtainable under a mere answer. Under an answer his remedy appears to be limited to a right to participate (after prior liens) in the proceeds of the foreclosure sale. The decree of foreclosure would not foreclose his mortgage, and if the mortgagor paid the amount of the first mortgage debt as fixed by the decree within the time therein provided, this would satisfy the decree and prevent any sale: Blatchford & Co. v. Blanchard 160 Ill. 115; Wallen v. Moore 187 III. 190.

Clearly he could not, on mere answer, get a deficiency decree. Since the second mortgagee cannot get all his remedies on answer, it would seem he should have a right to file a cross-bill to foreclose, and should be allowed his solicitor's fees. The ruling in the instant case is supported by prior Illinois cases. The instant case is important as emphasizing the provisional character, under Section 19 of the Chancery Act, of a decree against defendant brought in by publication only (under Section 12). It was held that a purchaser under a foreclosure decree in possession, where the owner of the equity of redemption was brought in by a publication only, would, on the decree being opened by such owner, be required to account to him for rents and profits.

L. M. G.

CONSTITUTIONAL LAW-DUE PROCESS OF LAW-CLASSIFICATION-RIGHT OF PETITIONER TO APPEAL FROM AN INTERLOCUTORY ORDER REFUSING TO APPOINT A RECEIVER.-The opinion of Mr. Justice Stone in Bagdonas et al. v. Liberty Land and Investment Company et al. 309 Ill. 103, 140 N. E. 49, appears to assert selfevident truths, though it may be somewhat of a surprise to those who have not traced the origin and growth of equity jurisdiction, who still confuse the terms "classification" and "class legislation," and who still entertain the belief that the right to an appeal is a necessary incident to "due process of law."

The matter involved is the constitutionality of Section 123 of the Illinois Practice Act which makes the interlocutory decree of the trial chancellor final as against the applicant for a receivership

and reviewable only after the final decree has been entered and on an appeal from such final order or decree (see Section 91 of Practice Act), but subject to appeal to the Appellate Court by the person. against whom the order is obtained.

The opinion gives us a clear statement of the jurisdiction of courts of equity and of the constitutional doctrine of classification. It asserts the doctrine which has been so often announced by the supreme courts of the several states and by the Supreme Court of the nation that classification in itself is not class legislation, that—

"The legislature is not required to be scientific, logical or even consistent in its classifications"; that—

"In order to authorize a judicial review of such classification it must clearly appear that there is no fair reason for the law that would not require with equal force its extension to others not included"; and that

"The burden rests upon one attacking the classification in a law to show that it does not rest upon a reasonable basis, but that it is arbitrary."

In support of these propositions it cites abundant authority, including the case of International Harvester Company v. Missouri 234 U. S. 199, 34 Sup. Ct. Rep. 859, 52 L. R. A. (N. s.) 525.

In applying the test it cites the cases of United States v. Heinze 218 U. S. 532, 21 Ann. Cas. 884, and McGinnis v. McGinnis 289 Ill. 608, to the effect that the right to an appeal is not essential to due process of law and that, when there is a valid reason for the discrimination, the right may be accorded to only one of the contesting parties.

It then clearly shows that the valid reason in the statute which is before it exists in the fact that courts of equity are courts of grace and not of primary legal right; that the appointment of a receiver is a drastic, to a large extent a confiscatory, and certainly an extraordinary remedy; that the right to control one's own property has always been considered, and should always be considered, a primary right, and that such right should not be taken away except upon the clearest proof of the necessity therefor and upon the fullest investigation and discussion. It emphasizes the fact that the moving party in all such cases is the plaintiff or complainant and that in equity he is a suppliant or petitioner merely, and that, being such and since the relief which he asks is of an extraordinary nature, it is not unreasonable for the legislature to require that he should make the need for the relief apparent not only to the trial judge but to the appellate court also.

He who runs may read, but some run without reading. To those who have read and who are conversant with the origin and the growth of equity jurisdiction we are satisfied that the decision and the opinion in Bagdonas v. Liberty Land and Investment Company will be acceptable and convincing.

A. A. B.

EASEMENTS-EXTINGUISH MENT OF.-The comment appearing in I. L. R. XV 338 finds additional support, it would seem, in the well considered opinion in the case of Wattles v. Village of McHenry 305 Ill. 189, 137 N. E. 114, just decided, where the court emphasizes the rule that non-user alone does not operate to extinguish an easement. Perry v. Wiley 285 Ill. 30 holds to the same effect. The extent to which this rule is carried is best seen in a New York case (McCullough v. Broad Exchange Co. 92 N. Y. Supp. 533), where the construction of a permanent improvement by the owner of the easement that rendered the easement impossible of use did not amount to an extinguishment of it.

E. M. L.

NEGOTIABLE INSTRUMENTS-HOLDER IN DUE COURSE-PRESUMPTIONS-CONDITIONAL DELIVERY-PAROL EVIDENCE.-In Bell v. McDonald 308 Ill. 329, 139 N. E. 613, it is held that fraud of the payee in negotiating a note in violation of the agreement on which the note was given constituted a defect of title of the person who negotiated it, under Section 55 of the Uniform Negotiable Instrument law, which in express terms declares the title of a person negotiating a negotiable instrument to be defective, not only when he obtained the instrument or any signature thereto by fraud, duress, force, or other unlawful means or for an illegal consideration, but also "when he negotiates it in breach of faith or under such circumstances as amount to a fraud." Since the title of the payee, who negotiated the note, was defective, it was held that under Section 59 the burden of proof was on the plaintiff (the indorsee) to prove that he acquired the title as a holder in due course as defined in Section 52. The correctness of the ruling seems to admit of no doubt. The court went to some pains to show that the agreement above referred to did not constitute a contemporaneous parol agreement qualifying or contradicting the note itself, and therefore invalid under the parol evidence rule. The agreement was, in substance, that the notes were to be given to and retained until maturity by the payee to secure the payment by the maker of any sums he might collect as sales agent for the payee of a certain stock powder the latter proposed to sell to the public. The powder proved to be worthless, and the maker made no collections. The court held that this agreement did not contradict the written note or vary its legal import, but tended to show that the note was never delivered as a present contract. No reference is made to Section 16 of the Uniform Negotiable Instruments law. That section provides expressly that except as against a holder in due course "the delivery may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument," and would clearly seem to make the agreement in question effective as a defense to the note unless the indorsee could prove himself to be a holder in due course.

L. M. G.