TO THE EDITORS:

CORRESPONDENCE

There has come to my attention a peculiar situation in the Illinois law affecting foreclosure of mortgages, and the REVIEW will do a real service to the Illinois bar by calling attention to it.

In Callaghan & Company's Illinois Annotated Statutes, Volume IV, Chapter 95 (being the chapter on mortgages), appears what purports to be an act of the General Assembly of Illinois, entitled "An act making mortgages, trust deeds, and other conveyances in the nature of mortgages negotiable instruments, subject only to the same defenses as other negotiable instruments," and purporting to be approved May 10, 1901. The enactment thus set forth provides in effect that mortgages and trust deeds securing negotiable paper described in the mortgage or trust deed shall be exempt from defenses to the same extent as the negotiable paper described therein, if held by a bona fide purchaser for value before the maturity of the indebtedness secured by the mortgage. This enactment is introduced by the editors of that work with the information that it is said upon good authority that the act was never passed by the House of Representatives, but the editors suggest that the Secretary of State has certified the enactment as an existing law and that would preclude assailing its invalidity except by a direct proceeding for that purpose.

This enactment did not appear in any of the editions of Hurd's Revised Statutes (Utpatel v. Chicago Title & Trust Co. 218 Ill. App. 75, 79). It does not appear in Smith's Revised Statutes, 1921, and it appears in Cahill's Revised Statutes, 1921, only in small type with the information that Utpatel v. Chicago Title & Trust Co. 218 Ill. App. 75 expressly held that it was not a part of the statute law of the state. Nevertheless, in Schott v. Horney 201 Ill. App. 10, 15, the court expressly applied this enactment to the case before it and excluded defenses.

In Utpatel v. Chicago Title & Trust Co. 218 Ill. App. 75 (80), the court said:

"However, this act was again involved in the recent case of Smith v. Niemann 216 Ill. App. 179, where it was pointed out that an examination of the brief and abstract filed in the Superior Court in Bartholf v. Bensley supra [234 Ill. 336] showed that in that case this act was not only brought to the attention of the Supreme Court, but that the journals of the House of Representatives were introduced in evidence before the master, and that such journals showed that the act in question had been defeated in that body and the validity of the statute was argued at length in the briefs.”

The Supreme Court in Bartholf v. Bensley applied the rule of Olds v. Cummings 31 Ill. 188, to the effect that mortgages are subject to all defenses, notwithstanding that enactment above referred to.

In the face of the statement in the opinion of the Appellate Court, above adverted to, that the Supreme Court had before it the enactment in question and the evidence of its failure to pass in the House of Representatives, and on that evidence deliberately disregarded the enactment, the conclusion is unavoidable that the Supreme Court in that case decreed the enactment not a part of the statutes. But why did the Supreme Court in its opinion so studiously avoid any reference to that enactment?

Because real property rights are involved; because statute books long relied upon by Illinois lawyers omitted any reference to the enactment at all; because another statute book has seen fit to give prominence to it and still another refers to it as not in force by virtue of an Appellate Court decision; and because the Appellate Court decision is not binding except in its particular case, it is submitted attention to this situation should be broadcasted, for the situation disclosed by the two Appellate Court cases indicates that confusion has resulted and will continue until the Supreme Court resolves the doubt which has been raised.

Chicago

FRANCIS X. BUSCH,

Master in Chancery, Circuit Court of Cook County.

DIVERSITIES DE LA LEY

LOGIC AND THE CONSTITUTION-WHAT IS THE CONSTITUTION OF MASSACHUSETTS?"End of the wonderful one-hoss shay! Logic is logic-that's all I say." In Loring v. Young 132 N. E. 65, the Supreme Judicial Court of Massachusetts has now put an end to a long-drawn-out contention by holding that the product of the 191718-19 Constitutional Convention is not the Constitution of the

is

Commonwealth of Massachusetts; though those who have stoutly maintained the contrary will be consoled upon noting that two dissenting judges still believe that the Convention's work is not

the Constitution of Massachusetts.

Have you happened to follow the progress of this interesting puzzle? That good old Massachusetts should have tangled itself up into this metaphysico-logical plight is certainly surprising. Had one of the newer states-say, Oklahota or South Motana-with its youthful technicians and its avidity for acute logic-chopping, brought about such a weird result, one might have thought it not inapt. But that staid, experienced, sensible Massachusetts should have evolved such a metaphysical fiasco is incredible. And after waiting 140 years to try for the first time to renew its constitutional corpus, to find itself so bewildered as to whether it is born again or not must be a disappointment greater than its most pessimistic doubters could have hazarded.

Let us see if the puzzle can be stated in short words and a few sentences (the opinions occupy twenty pages):

The Convention, meeting first in 1917, decided to act by proposing specific amendments to the 1780 Constitution (as in Ohio), not by re-drafting an entire new text. The three amendments proposed (numbered 45, 46, 47) were ratified by popular vote in 1917. The Convention, re-assembling in 1918 after only adjourning, proposed nineteen more amendments (numbered 48 to 66); which likewise were ratified by popular vote in 1918. The Convention then adjourned again, first appointing a Committee on Rearrangement, whose duty was to rearrange the text of the original Constitution so as to incorporate at suitable places all the ratified amendments of 1918-19 and all prior ones. The Convention re-assembled in 1919, received and adopted the report of the Committee on Rearrangement and dissolved; and the "Rearrangement" was then submitted and ratified by popular vote in November, 1919. Question: What was thereafter and is today the Constitution of Massachusetts: (1) the 1919 "Rearrangement"? or (2) the 1919 "Rearrangement" and the 1780 Constitution and the individual Amendments? or (3) the old 1780 Constitution and the individual Amendments?

Certainly, Number (1), you will say, on the above simple

statement.

Yes, but here is the little joker: The Rearrangement Committee brought back to the Convention of 1919 a new Article 157, which began as follows: "Upon the ratification and adoption by the people of this Rearrangement of the existing Constitution and the Amendments thereto, the Constitution shall be deemed and taken to be so rearranged and shall appear in such rearranged form in all future publications thereof." You see, the "Rearrangement" was to be, not a new enactment, but only the old Constitution rearranged.

But Art. 157 put its other foot into the trap of logic even more deeply, in the second sentence: "Such Rearrangement shall not be deemed or taken to change the meaning or effect of any part of the Constitution or its amendments as theretofore existing or operative." So the "Rearrangement," though textually ratified by the people, yet itself said that itself as thus adopted should not change anything theretofore adopted! Here was indeed a metaphysical pot of "double, double toil and trouble!" The "Rearrangement" was the new law-but not if it was not the same as the old law! Yet, if it pronounced itself not to be law unless it was the same as the old law, why go through the process of having itself ratified textually by the people? And, if it be not law, but the old 1780 Constitution and individual amendments be the law, what becomes of the legal fact that the "Rearrangement" text was lawfully voted upon and ratified?

The mischief of it all lay in the fact that the "Rearrangement" did change some parts of the pre-existing texts. "Whether these changes appear great or small at this moment," says the majority opinion, "is not of consequence; they are changes of substance." And so after all the "Rearrangement" was something more than a rearrangement. The Committee overshot its authority. Hence, naturally, a vital difference of law for the future whether one or the other text be effective.

Well, the matter, after various stages of argumentation, covering two years, came up for final adjudication on a petition for mandamus directing the Legislative Committee to print the 1919 "Rearrangement" in the volume of General Laws, instead of the old 1780 Constitution and amendments. This petition was denied.

And so, after all (as Phædrus, the fabulist, put it), though the legal mountains labored, in the land of Choate and Webster and Story, to rearrange the Constitution-they only made a Muss of it! Nevertheless, the two dissenting judges were right. "Logic is logic." And the logic is thus:

(1) The last legislative word of the People of Massachusetts is the 1919 "Rearrangement" text; it has been lawfully adopted and never repealed; hence it stands, all and every sentence of it; (2) All other prior Constitutional texts are repealed;

(3) In the interpretation of the 1919 text, Art. 157 may need to be invoked; and if, when invoked, any other part of the 1919 text is inconsistent with any former Constitutional text, the latter

by reference comes into the 1919 document and supersedes it, 'quoad hoc' only. J. H. W.

THE EXGRAVATOR-A CHIEF JUDICIAL SUPERINTENDENT IN MEDIEVAL ITALY.-That the Chief Judicial Superintendent of Professor Wigmore's eloquent plea ("Wanted, A Chief Judicial Superintendent," ILL. LAW REV. XI 45) is not without historical precedent appears from the following passage which we translate from a recently published Italian work, "La Cassazione Civile," by Professor Calamandrei of the University of Modena (Milan, 1920). In this work, we may note parenthetically, Professor Calamandrei, one of the younger generation of Italian legal scholars, has made a contribution of surpassing brilliance to the history and theory of appellate procedure in civil cases. The passage in question is contained in Vol. I, pp. 208-210.

"In the Milanese statutes of 1396 we find minutely regulated the office of a magistrate known as the 'Exgravator'; to it, indeed, is assigned an entire chapter entitled 'Rubrica generalis officii domini gravatoris.' This magistrate, as his name implies, was charged with the duty of remedying every sort of injustice ('gravamen') committed by the inferior judges and of exercising control over the regular administration of justice.

"The 'Exgravator' was to be a 'Doctor Juris,' named by the Lord of Milan ('Dominus Mediolani'). His functions, as described under the twenty-one headings of the 'Rubrica,' before mentioned, were of a varied character. He was vested with certain jurisdiction in first instance, but, in the main, sat as a judge of appeal. To him came appeals from criminal judgments 'ex quibus non ingeratur pena corporalis,' from 'præceptis continentibus aliquid debere dari vel restitui vel fieri,' and from civil judgments involving more than ten lire. In all these cases, where the parties 'qui dixerint se gravatos' had laid before the 'Exgravator,' within ten days 'a die gravaminis et scientiæ,' a complaint of grievance with appropriate security, he took cognizance of the cause, as a rule on the basis of the record below, and determined the justice of the complaint. If he discovered the complaint to be unfounded, he adjudged the complainant to pay a fine and costs; in the opposite event, he was empowered 'facere canzelari de libris et actis communis Mediolani' the unjust judgment and substitute a judgment of his own. In the latter case the judge who had rendered the first judgment was ordered to pay a sum equal to one-fourth of the judgment sum, one-half of which payment went to the commune of Milan and the other half to the party aggrieved.

"Where the grievance was simply that the judgment was unjust, the 'Exgravator' took cognizance of the cause on the merits, but 'si qua sententia, condemnatio vel præceptum per dominum exgravatorem fuerit nulla propter aliquam solemnitaten iuris vel statutorum ordinem non servatum vel exquocumque deffectu iuris vel Statutorum Communis Mediolani,' then the 'Exgravator' limited himself to annulling the judgment and remanding the cause, for