ent with American ideas of justice and human rights to refuse the injured one access to the Courts. If a citizen owes the State money, or injures the State in any way, no one has ever thought of contending that the Courts of the State are not open for the State to sue for its rights.

But, on the other hand, if the State borrows money from a citizen and fails to repay it, or seizes the citizen's lands and refuses to vacate, or takes the citizen's chattels and refuses to restore them, or employs the citizen and refuses to pay him for his labor, or induces him to act on a contract and then repudiates it, or unlawfully injures his person or property, we find that, under the false analogy of the royal prerogative, the citizen is refused access to the Courts, and is driven to the lobby.

That this undemocratic and unrepublican idea of holding the State above the reach of human justice, ever obtained a footing in American jurisprudence, is very surprising. The poverty of our language, perhaps, must bear some of the responsibility for the error. The word " sovereign" was incautiously applied to the American States to represent strongly the idea of their independence. And the word "sovereign" being already in general use in the English law-books to represent the King, the maxim that the sovereign (meaning the King) cannot be sued, was heedlessly adopted, as applicable to the "sovereign" State. "The law," says Blackstone," ascribes to the King the attribute of sovereignty. Hence it is that no suit or action can be brought against the King." But says Mr. Justice Wilson, in Chisholm v. Georgia, "To the Constitution of the United States, the term Sovereign is totally unknown." (2 Dallas, 454.)

The early Judges, accustomed to the idea while under the King, overlooked its inappropriateness here. Or, perhaps, as the States were heavily in debt just after the revolution, the Courts were eager to adopt any maxim that would, under the guise of law, give temporary or entire immunity from liability to their passing creditors. "It is a part of our history," says Judge Story," that at the adoption of the Constitution all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the Federal Courts formed a very serious objection to that instrument. Those who were inhibited from commencing a suit against a State were persons who might probably become its creditors." (Cohens v. Virginia, 6 Wheaton.)

Under the American idea, the object of establishing the Government being to prevent people from suffering irremedial wrongs and to afford them justice, the adoption of the theory of the non-suability of the States, tends to defeat the chief purpose for which a government is desired. It is, therefore, conceived that it would have been far better and more logical if this monarchical maxim had never been imported, but had been left out of our jurisprudence, under the wise rule laid down by Chancellor Kent, that the "English Common Law and its maxims are to be treated as in force only so far as they are applicable to our government, institutions and circumstances."

Once adopted, however, from whatever cause, the rule has been retained, like many of those other "harsh and repulsive maxims of the Common Law," which Judge Cooley remarks may still be traced in our jurisprudence, "long after their reason has passed away.”

And, as it frequently happens, when a wrong rule has been fixed, the latter Courts have endeavored to produce ingenious reasons as an apology for continuing to enforce it.

(To be continued.)

Supreme Court of California.

DEPARTMENT No. 2.

[Filed August 9, 1883.]

No. 8395.

DEAN, APPELLANT,

v.

WALKENHORST ET AL., RESPONDENTS.

FRAUDULENT TRANSFERS-CONSTABLE. One Swift, being the owner of certain cattle, sold the same to Mary Crowder, but no delivery was made. A few days thereafter Swift and Mary Crowder intermarried; Swift continued in possession of the cattle, with the knowledge and consent of his wife, and branded them with his recorded brand. Afterward, Swift, with the knowledge and consent of his wife, executed a bill of sale in his own name of the cattle to Dean, the plaintiff. Held: in an action by plaintiff against an officer for seizing the property for the payment of a debt against Swift, created during the time he held possession, that the transfers were all fraudulent.

Appeal from Superior Court, Modoc County.
E. M. Barnes for appellant.

E. Turner and F. W. Ewing for respondents.

MYRICK, J., delivered the opinion of the Court:

Action against a constable and his sureties for an alleged unlawful seizure of twenty-nine head of cattle and a bay filly. Judgment went for defendants, and plaintiff appealed.

On the 28th of August, 1876, one Swift was the owner of the property in question. On that day he sold the property to Mary Crowder, but no delivery or effort of delivery of possession was then or at any subsequent time had. A few days after the sale, Swift and Mary Crowder intermarried, and have been ever since, and are, husband and wife. Swift had possession and control of the property, with the knowledge and consent of his wife, until the seizure by the constable, March 26, 1881. While so in his possession the cattle were branded with the recorded brand of said Swift, with the knowledge and consent of his wife. On the first of March, 1880, Swift, with the knowledge and consent of his wife, in his own name, executed to plaintiff a bill of sale of the cattle; Mrs. Swift did not sign the bill of sale, but directed the transaction, and her husband acted fully and solely under her directions. Plaintiff paid $540 for the cattle; he did not take possession, but they remained, as before, in the possession of Swift. The debt on which the constable seized the property was created in 1880 and 1881.

Under such circumstances, neither the plaintiff nor Mrs. Swift could be heard to say the property was not the property of Swift, and liable to seizure for his debt. Mary Crowder, while single, and, subsequently when Mrs. Swift, permitted the property to remain in the possession and control of Swift, permitted him to place his brand upon it, and to execute a bill of sale of it in his own name; the plaintiff took the bill of sale from Swift as of his property.

66

Section 3440 Civil Code reads: Every transfer of personal property, * * is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession," etc. Swift had the possession and control of the property at the time of the alleged transfer to Mary Crowder, and such possession and control continued until after the creation of the debt for which it was seized, and until the

seizure; therefore, the transfer from Swift to her was void as to his creditors, and plaintiff took no title from her. (Watson v. Rodgers, 53 Cal. 401.)

In either view, whether the plaintiff claims under Swift or under Mrs. Swift, he cannot recover.

Judgment and order affirmed.

We concur: Sharpstein, J., Thornton, J.

DEPARTMENT No. 2.

[Filed August 9, 1883. |

No. 8821.

IN THE MATTER OF THE ESTATE OF ROBERT CHALMERS,

DECEASED.

ADMINISTRATION JURISDICTION HOMESTEAD MORTGAGE. The Superior Court, sitting as a Probate Court, has no power to set apart homestead premises (the declaration having been made during the life-time of deceased) subject to the liens and payment of existing mortgages.

Appeal from Superior Court, El Dorado County.
C. F. Irwin and G. J. Carpenter for appellants.
Geo. G. Blanchard and W. L. Dudley for respondent.
MYRICK, J., delivered the opinion of the Court:

The widow of deceased petitioned that certain real estate be set apart to her as a homestead. Opposition thereto was made by persons holding mortgages of the real estate executed by the deceased in his life-time. The Court found, as facts, the execution of the mortgages, adjudged that the mortgagees are entitled to have the mortgages foreclosed, and that the mortgages are subsisting liens and incumbrances upon the property, and made a decree setting apart to the widow as a homestead the premises described in the petition, "subject, however, to the liens and payment of each of the said mortgages, in the findings herein set forth." From the clause of the decree above quoted the widow appealed.

Doubtless the Court below, sitting as a Probate Court, would have power to consider the existence or non-existence of a mortgage upon a specific parcel of real estate of the deceased, for the purpose of determining what parcel should be set aside, in case of a selection to be made by the Court; but where, as in this case, the declaration of homestead was made during the life-time of the deceased (the mortgages

being executed prior to the declaration), we find nothing in the statute which requires the adjudication of the Court as to mortgages, or which authorizes the Court to set apart the property subject to the liens. Whatever remedy might exist under Section 1241 Civil Code would be for application in proceedings for foreclosure not in the probate proceedings for setting apart. It is barely necessary to remark that the provisions of Section 1475 C. C. P. are not for consideration on this appeal.

The cause is remanded, with instructions to strike from the decree the clause above quoted; in other respects, the decree is not appealed from.

We concur: Sharpstein, J., Thornton, J.

DEPARTMENT No. 2.

[Filed August 16, 1883.]
No. 8874.

HAMLIN, RESPONDENT, v. HIS CREDITORS, APPELLANTS.

INSOLVENCY-AMENDMENT-ORDER-DISCHARGE-APPEAL

JUDGMENT. After

the Court had refused respondent a final discharge in insolvency a motion was made that he be allowed to amend his pleading and papers, and also that the Court vacate the order refusing the discharge, which motion was granted, and subsequently respondent was discharged. An appeal was taken from the judgment of discharge. Held: (1.) Conceding that the refusal of the Court to grant a final discharge constituted a final judgment, and that it does not appear there were sufficient grounds for vacating it, the order vacating it was simply erroneous and reviewable only on a direct appeal.

(2.) While the judgment subsequently entered is appealed from, that appeal does not bring the order made after the former judgment up for review.

(3.) The rule that the appellate Court will not disturb an order granting or denying leave to amend pleadings and other proceedings in civil cases, except where there has been an abuse of discretion, applies to cases of insolvency.

Appeal from Superior Court, Sutter County.

Bliss & Singer for respondent.

Barney & Sanborn for appellants.

SHARPSTEIN, J., delivered the opinion of the Court:

Conceding that the refusal of the Court to grant respondent a final discharge from his debts constituted a final judgment, and that it does not appear that there were sufficient grounds for vacating it, the order vacating it was simply erroneous, and reviewable only on appeal. But it was not appealed from, and has not been vacated. And until vacated