THE USE OF PRECEDENT AND THE NEED FOR CODIFICATION. The great mass of case law that is accumulating is causing the lawyers of England and America to revise their estimates of the value of many so-called precedents. Continental lawyers are not troubled by a mass of precedents or by conflicting authorities. They have their rules and principles and each case is decided by these rules without reference to the decision in some other case. This practice, which it was the custom of English and American lawyers to condemn as being unjust, is now to some extent being looked upon with favor, both in England and America. Probably the most significant evidence of this change of opinion is a statement by Lord Dunedin in delivering the opinion in the case of McCarton v. Belfast Harbour Commissioners (1911), 2 Irish Rep. 143. a case involving the question of the liability of a master, who lends his servant to another, for the negligence of such servant while in the employ of the hirer. On this point the authorities in England are not only voluminous but very confusing. refusing to follow the lead of diligent counsel in making fine distinctions based on the facts of all the previous cases which appeared to be in point, he said: In "Decisions are valuable for the purpose of ascertaining a rule of law. No doubt they are also useful in enabling us to see how eminent judges regard facts and deal with them, and great numbers of recorded precedents are useful in no other way. But it is an endless and unprofitable. task to compare the details of one case with the details of another in order to establish that the conclusion from the evidence in the one case must be adopted in the other case. Given the rule of law, the facts in each case must be independently considered in order to see whether they bring it within. the rule or not.” There seems to be only one way out of the labyrinthine maze of confusing and conflicting precedents, and that is the codification of important branches of the law and starting all over again with the exact and carefully stated provisions of a code to guide the lawyer in advising clients and to furnish him his all-sufficient ground for offense or defense in the trial of causes, so far as the law is concerned. We already have had experience with commercial codes and this experience has been in the main satisfactory. The Negotiable Instruments law has been the efficient means of wiping out a great mass of conflicting precedents, and if it were not for the ignorant obstinancy of some appellate judges in resurrecting the old cases to change and twist out of shape the clear meaning of the code provisions the situation would be ideal. The same thing is true with the Uniform Sales Act. Here was a mountain of precedent and the facts in all the cases were so closely analyzed in the text books that to one who could grasp the distinctions sought to be drawn from them, the so-called task of dividing a hair between its north and northwest side was child's play. The Uniform Sales Act has put into the discard all this learning of the law of sales, and the lawyer finds in the Act clearly stated principles that govern his case, which the court is able to decide without the necessity of analyzing the mental difficulties of all the judges, good, bad and indifferent, who have wrestled with the same problem. Lawyers have not given as much credit as they should to the self-sacrificing labors of the lawyers who constitute the Conference of Commissioners on Uniform State Laws. This great body, for nearly half a century, has labored slowly, carefully and successfully in codifying those branches of the law in respect of which uniformity and certainty were most desirable. Precedents have important uses and the propagandists of the common law will never consent to give up the principle, or fiction if you wish, that the law is a living science, capable of growth without the aid of statute, and that justice, like truth, is a natural heritage of man, the domain of which is always open to exploration and discovery. But there can be no objection. even from the most devoted admirers of the common law to have these explorations and discoveries charted, classified and indexed for the convenience of future travelers. It ought not to be necessary for the lawyer of today to undertake all the labors of previous explorers in the domain of the law in order to appropriate the definite results of their researches. NOTES OF IMPORTANT DECISIONS. DOES LOSS OF HAND RESULT FROM LOSS OF FINGERS UNDER WORKMEN'S COMPENSATION LAW?-The Workmen's Compensation Law provides damages in different amounts for different degrees of injury. It becomes a question not always easy to answer exactly to what category a particular injury belongs. This question was before the Supreme Court of Oklahoma in the recent case of Bristow Cotton Oil Co. v. State Industrial Commission, 188 Pac. 658. In this case the question was whether the loss of four fingers would under the circumstances of that case be regarded as the loss of a hand and compensation allowed on that basis. In amputating the fingers a part of the palm had been removed, which the Court held amounted to the loss of the hand even though the claimant admitted that he had "some use" of the hand and could "move his thumb a little bit." The decision of the Court is in line with the authorities. In Rockwell v. Lewis, 154 N. Y. Supp. 893, where the servant lost three fingers and the fourth finger was rendered stiff and practically useless, the award for permanent loss of the use of the hand was sustained. In Feinman v. Albert Mfg. Co., 155 N. Y. Supp, 909, where the accident necessitated amputation of the finger at the first phalange, which resulted in stiffness, so that the remainder of the finger became practically useless, it was held that the finger must be deemed to have been lost, although not actually amputated, and an award was sustained for the entire amount that could have been recovered for the loss of such finger. In the case of Massachusetts Employes' Ins. Ass'n, 219 Mass. 136, 106 N. E. 559, it was held that a hand "is incapable of use when the injuries are such that the hand cannot be used in the ordinary manner, and is capable of use only as a hook; it not being necessary that the incapacity be tantamount to an actual severance." FOR SUITS AGAINST EXECUTORS THEIR NEGLIGENCE IN HANDLING DECEDENT'S PROPERTY.-As a usual rule claims founded on the handling of the decedent's estate by the executor are not claims and should not be presented to the executor nor allowed by the Probate Court unless the statutes of the particular state specifically provides. Such claims are against the executor himself for which he will in proper cases be allowed to take credit on final settlement. This rule applies especially to tort claims for which, except under special circumstances, the executor alone is liable and will not necessarily be allowed credit for the damages he has suffered because of his own negligence. At any rate the executor cannot object to a suit and judgment in personam based on his negligence in transacting the business of the estate and the fact that he is described as holding the property with respect to which he is charged with negligence as executor does not make the petition demurrable. This view is emphasized by the decision of the Supreme Court of Washington in the recent case of Fisher v. McNeely, 180 Pac. Rep. 478. In this case plaintiffs recovered a judg ment for damages against defendant for her negligence in operating a logging railroad belonging to the estate of her deceased husband, of which she was the executrix. The defendant alleged as a ground for a new trial the overruling of her demurrer to the petition on the ground that the claim should have been presented in the usual way and allowed against the estate. The Supreme Court denied the contention on the theory that this was not a claim against the estate but against the executrix personally even though defendant was alleged in the petition to be operating the road as executrix, this latter allegation being mere descriptio personae. The case of Belvins' Executors v. French, 84 Va. 81, 3 S. E. Rep. 891, is a case almost "on all fours" with the facts in the principal case. In sustaining a recovery against the administrator the Supreme Court of Appeals of Virginia said: "The first assignment of error is that the Circuit Court erred in overruling the demurrer to the declaration. The ground upon which this contention is based is that the action is in form ex delicto, and is against the defendants as executors, and is therefore not maintainable. The general principle, undoubtedly, is that, unless authorized by statute, a personal representative cannot be sued as such for his own tort. But this principle does not apply to the case in hand; for here the action is not against the defendants in their representative capacity, but is against them personally. It is true they are described as executors, but this is merely descriptio personae, and may be stricken out as surplusage, inasmuch as no cause of action is set forth in the declaration for which, under any circumstances, they can be held responsible as executors. Besides, there is no well-founded objection to the declaration as it is, for by describing the defendants as executors it merely sets forth their relation to and consequent duties respecting the property mentioned therein, and then it further alleges that for their failure to perform those duties, namely, in negligently permitting the area light to be and continue in an unsafe condition, they are answerable personally to the plaintiff in this action; at least such is the substance and effect of the allegations in this declaration." In Bannigan v. Woodbury, 158 Mich. 206, 122 N. W. 531, 133 Am. St. Rep. 371, it was said that "the allegation that one is administrator and that as such he is in possession of the property does not necessarily negative his personal liability." See, also, Shepard v. Craemer, 160 Mass. 496, 36 N. E. 475; Rose v. Cash, 58 Ind. 278; McCue v. Finck, 2 Misc. Rep. 506, 46 N. Y. Supp. 242; Brown v. Floyd, 163 Ala. 163. 50 So. Rep. 995. The underlying principle in this class of cases is that an agent in control of property is responsible for his own tortious acts. Ellis v. McNaughton, 76 Mich. 237, 42 N. W. Rep. 1113, 15 Am. St. Rep. 308. LIABILITY OF DIRECTORS OF CORPORATION FOR VOTING DIVIDENDS IN EXCESS OF PROFITS.-To show how liable one is to err in the law by following first impressions of the justice of a case, Justice Pitney, then Vice Chancellor of New Jersey, declared at one time that it "would be unjust for the stockholders directly to recover from the directors the very moneys which they had already received." Siegman v. Maloney, 63 N. J. Eq. 422. In a later case, when Mr. Justice Pitney became a member of the Court of Errors and Appeals, he reached just the opposite conclusion. Siegman v. Electric Vehicle Co., 72 N. J. Eq. 408, 65 Atl. 912. The same question recently came before the Court of Appeals of California, which, in a very admirable opinion, reached the conclusion that stockholders who receive the benefits of an illegal dividend are not estopped from suing the directors on behalf of the corporation to compel them to pay back to the corporation the amount of the illegal dividend which they had voted. Southern California Home Builders v. Young, 188 Pac. 586. In this case five directors voted three dividends, amounting to $30,000 which the trial Court found were not paid out of surplus profits. The directors offered in evidence the balance sheet prepared by their book. keeper showing profits of more than $30,000, but the Court found that this result was caused by carrying fixed assets at a valuation greatly in excess of their real worth. In reply to the contention that the directors were liable for illegal dividends only to creditors the Court said: "Although one of the purposes of such a statute was to protect creditors, that was not its sole purpose. The statute affords protection in proper cases to the corporation, regardless of whether or not there are creditors. It would be nothing short of absurd, therefore, to hold that no suit could be maintained to enforce the liability, except one on behalf of stockholders. Kohl v. Lilienthal, 81 Cal. 387, 20 Pac. 401, 22 Pac. 689, 6 L. R. A. 520. The cases of Winchester v. Mabury, 122 Cal. 522, 55 Pac 393, and Moss v. Smith, 171 Cal. 777, 155 Pac. 90, when read in connection with the facts upon which they were based, lend no support to the contentions of the appellants." The clearest exposition of the reason for the common law liability of directors for declaring illegal dividends, is found in the opinion of Chief Justice Gummere of the Court of Errors and Appeals of New Jersey in the case of Appleton v. American Malting Co., 65 N. J. Eq. 375, 54 Atl. Rep. 454, where that learned jurist, in answer to the argument that it would be inequitable to permit stockholders to recover from directors money which they themselves had received as dividends, said: "The argument assumes there will be no transfer of the stock of the company during the period of the liability of the directors. The assumption is unwarranted. The very declara tion of the dividend, evidencing, as it does, the apparent prosperity of the company, creates a desire on the part of outsiders to become holdors of the stock. It at the same time decreases the actual, while increasing the apparent, value of the stock. The result is to afford unscrupulous directors, and stockholders who are cognizant of the illegal action of the board, an opportunity to unload their holdings upon innocent purchasers at fraudulently inflated prices. ** Nor is it inequitable that stockholders who have innocently participated in the distribution of the illegal dividends should have their stock restored to its normal value by contribution from the directors who have impaired the capital without being first required to pay back the dividend so paid to them. The ordinary purchaser of corporate stock holds it as an investment. He rightly considers and treats the dividends paid upon it as income. In many instances the income is required to meet the expenses of livng, and is entirely expended for that purpose. To say that a person who has been unwittingly induced to exhaust his principal by the mistaken or fraudulent representation of those to whom he has intrusted it, that what has been paid to him as income suffers no injury, is absurd. To refuse him redress except upon the condition that he return the moneys which he has expended in the belief that his capital was intact, notwithstanding that by such expenditure he is rendered penniless, is to put a premium upon fraud in corporate management." It is very common practice of a legislature to adopt a statute and define the terms used in it. There is no question over the power of a legislature to do this; but the Courts have universally held that af ter a statutory term or expression has been judicially defined or its meaning determined the legislature thereafter has no power to adopt a statute declaring the meaning or defining the terms used in such former statute. This is merely preliminary, in order to draw a distinction between the kind of legislation and legislation attempting to define or extend phrases or terms used in the constitution. Can the legislature do this? At first blush it would seem such a question is preposterous; and yet legislatures (and even Congress recently in the Federal Prohibition Act) have at least occasionally attempted to do this. Somewhat apropos of this question the Supreme Court of Pennsylvania has said: Speaking of the three departments of government, Chief Justice Marshall said: "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law."2 In an Illinois case it is said that "The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the federal and state constitutions."3 In an early Virginia case it was said: "The interpretation of the law is the proper and particular province of the Courts. A constitution is in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."* Speaking of the power of the legislature, Gibson, C. J., of the Supreme Court of Pennsylvania, said: "It is limited to the making of laws; not to the exposition or explanation of them." In Maine it has been said: "It is, however, a fundamental duty of the Court and within its exclusive province. to construe both the statutes and the constitution and to ascertain not only from the words themselves, but from the con (1) In Re Ruan Street. 132 Pa. St. 257; 19 Atl. 219; 7 L. R. A. 183. In matter of Lafayette Co., 2 Pinney 523. (2) Wayman v. Southard, 10 Wheat. 46. See also Greenough v. Greenough, 11 Pa. St. 494, and Westinghausen v. People, 44 Mich. 265; 6 N. W. 641. (3) Newland v. Marsh, 19 Ill. 383. (4) Tucker, J., in Kamper v. Hawkins, 1 Va. Cas. (3 Va.) 20, 82. (5) De Chastellux v. Fairchild, 15 Pa. St. 18; 53 Am. Dec. 570. sense that would make it binding upon the Courts."16 Let us now turn to a few concrete ex text, from the purpose to be sought, and "The construction and force of this constitutional provision presents a legal question to be decided by the Courts." "The course of legislation on this subject by the legislature, while it is entitled to respect, cannot be permitted to control the decisions of the judicial department in its construction of the constitutional provision; for, as was said by Chief Justice Marshall in Cohens v. Virginia," 'the power to make, or unmake the fundamental instrument of government, resides only in the whole body of the people, and not in any subdivision of them.'" "Where a constitution defines the qualification of an office, it is not within the power of the legislature to change or superadd to it, unless the power be expressly, or by necessary implication, given to it."10 Nor can the legislature add to the constitutional qualifications of voters.11 Neither can it diminish them.12 Neither can it add to or diminish the qualifications of an officer as fixed by the constitution,13 nor shorten1 the limit fixed by the constitution.15 "It is not within the province of the legislature to construe the constitution in any (6) Moulton v. Scully, 111 Me. 428; 89 Atl. 944. (7) Citing State v. Rogers, 56 N. J. L., 480; 28 Atl. 726, 29 Atl. 173. (8) 6 Wheat. 264. (9) Wauser v. Hoos, 60 N. J. L. 482; 38 Atl. 449; 64 Am. St. 600. (10) C. J. LeGrand in Thomas v. Owens, 4 Md. 189, 223. (11) Rison v. Farr, 24 Ark. 161; Quinn v. State, 35 Ind. 485; Morris v. Powell, 125 Ind. 280; 25 N. E. 221; 9 L. R. A. 326; State v. Williams, 5 Wis. 308; Monroe v. Collins, 17 Ohio St. 665; State v. Staten, 6 Cold. 233; Randolph v. Good, 3 W. Va. 551; McCafferty v. Guyer, 59 Pa. St. 109. (12) Allison v. Blake, 57 N. J. L. 6; 29 Atl. 417; 25 L. R. A. 480. (13) Feibleman v. State, 98 Ind. 516. (14) Howard v. State, 10 Ind. 99; State v. Askew, 48 Ark. 82; 2 S. W. 349. (15) People v. Bull, 46 N. Y. 57; State v. Brewiter, 44 Ohio St. 589; 6 N. E. 653; Kahn v. Sutro, 114 Cal. 316; 46 Pac. 87; 33 L. R. A. 620. In Georgia, where the constitution used. the phrase "head of a family," the question arose whether the legislature could so extend its provisions as to cover a bachelor not maintaining a household, and it was held that it could not, the Court saying: "The constitution in using the terms 'each head of a family,' left the question of what constituted the head of a family open for interpretation; and the Courts. alone had the right to interpret the question, or to say who was, within the meaning of the constitution, the head of a family. While we have great respect for the lawmaking power, we cannot defer to its con struction of the constitution or laws. That power is lodged in the judiciary. In the dividing line of power between these co-ordinate branches we find here the boundary -construction belongs to Courts, legislation to the legislature. We cannot add a line to the law, nor can the legislature enlarge or diminish a law by construction. There are cases where the legislative intent guides the Court in the construction or exposition of what the law is, the Courts look to the intent of the legislature as an element in their construction. But when the constitution is the subject matter of construction, the Courts are the authority. And we have no hesitation in saying the legislature cannot, by the declaration of an act, make a single person living to him or herself the head of a family." 917 (16) State v. Speers, 53 S. W. 247 (Tenn. Chancery.) (17) Calhoun v. McLenden, 42 Ga. 405. The constitution of Georgia declared that "Each head of a family * shall be entitled to homestead" exempt from levy and sale; and the legislature undertook to extend its provisions by declaring "That any single person male or female, or married person, who, at the time of the adoption of the present State Constitution, or before, lived habitually as housekeeper to himself or herself, on his or her own land, is hereby declared to be the head of a family." The statute was declared void; on the ground that it was an endeavor to extend the meaning of the term "head of a family." The Supreme Court had, before the enactment of this statute, decided what constituted a head of a family (40 Ga. 173). It is true that the statute was void, because it was an effort to give an interpretation to the term "head of a |