determine the criminal action commenced in his court, and the judgment prohibiting him from exercising his jurisdiction is erro

neous.

Judgment reversed and cause remanded.

MYRICK, J., SHARPSTEIN, J., MORRISON, C. J., and THORNTON, J., concurred.

No. 7,542.

GLADDING ET AL. v. INSURANCE ASSOCIATION.

Department Two. Filed October 2, 1884.

FIRE INSURANCE-INCREASE OF RISK-CONDITIONS WAIVER. A condition in a policy of fire insurance, that if the risk is increased the policy shall be void, enters into and forms part of the contract of insurance; and if the policy contains an express stipulation that such a condition shall not be waived, except by indorsement on the policy, it cannot be waived in any other way.

THE SAME EVIDENCE-FINDINGS.--The finding that the increase of risk in this case was not occasioned by the plaintiffs, or with their consent, reviewed, and held unsupported by the evidence.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiffs, and from an order denying the the defendant a new trial. The opinion states the facts.

A. W. Thompson, for the appellant.

Fox & Kellogg, for the respondents.

SHARPSTEIN, J. The finding that the hay, which was in a shed near the building destroyed by fire, was not stored there by the plaintiffs or with their consent, but was stored there with the knowledge and consent of the authorized agent of the defendant, and that the increase of risk occasioned thereby was with the knowledge and consent of the defendant, is attacked on several grounds, some of which we think to be well founded.

1. A witness for plaintiffs testified that he stored the hay in the shed, and that before doing so he applied to plaintiffs for permission, and was told by one of them that he would not consent unless witness obtained the consent of Mr. Kinney (defendant's agent). If he consented, witness could put the hay in. He says he saw Kinney, and was told by him "to go on and put it in." Thereupon witness stored the hay in the shed. This evidence is not contradicted, and being introduced by plaintiffs we may assume, as against them, its entire truthfulness. The finding that the hay was not stored in the shed with the consent of the plaintiffs is clearly at variance with the fact of their having consented to its being so stored if Kinney would

consent.

2. There is a stipulation in the policy that it shall be void "if the risk be increased by any means," and another that "the use of general terms, or anything less than a distinct, specific agreement clearly expressed, and indorsed on this policy, shall not be con

strued as a waiver of any printed or written condition or restriction therein."

It is alleged in the answer that the risk was materially increased by storing hay in said shed. The court should have found whether it was or not. There was some evidence which tended to prove that it was.

If an effect is to be given to the clause last above quoted from the policy, the finding that the hay was stored "with the knowledge and consent of the authorized agent of the defendant," is not sufficient to constitute a waiver of the preceding clause, that "if the risk be increased by any means" the "policy shall be void." That finding has no other support than is afforded it by evidence that when the plaintiffs were asked to consent to the storage of hay in the shed, they told the applicant that if Kinney would consent they would; and that Kinney was at that time defendant's local agent at Oakland. The powers of such an agent are nowhere stated. He was not the agent through whom the application for insurance was made, and does not appear to have had any connection with the matter before his consent to the storage of the hay was asked and obtained. The authority to consent to an increase of the risk was probably inferred from the fact that he was the local agent of the company in the city where the loss occurred.

As to who should have indorsed on the policy a consent to an increase of risk, in order to have it constitute a waiver of the condition that if the risk was increased the policy should be void, the instrument is silent. But it explicitly declares that unless so indorsed, it shall not be construed as a waiver of any written or printed condition or restriction contained in the policy. Apparently, the mode is the measure of the power. If so, no officer of the company was authorized to consent to an increase of the risk in any other than the prescribed mode. We do not doubt the competency of the parties to stipulate that no condition or restriction contained in the policy should be waived except by indorsement on it; and that they did so stipulate is too clear to admit of doubt.

The condition that if the risk was increased the policy should be void entered into and formed a part of the contract of insurance, and we know of no case in which it has been held that an express stipulation that such a condition should not be waived except_by indorsement on the policy, could be waived in any other way. The furthest that any court has gone, so far as we are advised, was to hold that this did not apply to stipulations which were to be performed after a loss had occurred, such as giving notice and furnishing preliminary proof of the loss: Franklin F. Ins. Co. v. Chicago Ice Co., 36 Md., 100.

Judgment and order reversed.

MYRICK, J., and THORNTON, J., concurred.

No. 20,012.

PEOPLE v. CARLTON.

Department Two. Filed October 2, 1884.

EVIDENCE HELD SUFFICIENT TO JUSTIFY THE VERDICT, and no error found in the instructions or in the questions asked the defendant.

APPEAL from a judgment of the superior court for Santa Clara county, entered in favor of the plaintiff, and from an order deny ing the defendant a new trial.

Lamar & Layson, for the appellant.

J. H. Campbell, for the respondent.

THE COURT. We think the evidence sufficient to justify the verdict. The charge, as a whole, seems to have been as favorable to the defendant as the circumstances required.

The defendant's case could not have been prejudiced by the questions put to him when on the witness stand, by the district attorney. The answers were all favorable to the defendant, and no attempt was made to contradict him.

Judgment and order affirmed.

No. 8,320,

HOME AND LOAN ASSOCIATES v. WILKINS.

Department Two. Filed October 3, 1884.

FORECLOSURE OF SEPARATE MORTGAGES-DECREE-SALE. The decree in an action for the foreclosure of two mortgages, each being on separate parcels of land, must provide that each parcel should be sold to satisfy the sum for which it was separately mortgaged.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff. The opinion states the facts.

E. A. & G. E. Lawrence, for the appellant.

J. R. Brandon, for the respondent.

THE COURT. This action was brought to foreclose two mortgages, each of which was on a separate and distinct parcel of property. The decree is for the sale of both parcels to satisfy the aggregate sum due on both mortgages. In that regard the decree is erroneous. Each parcel should be sold to satisfy the sum for which it was separately mortgaged.

Cause remanded with directions that the decree be modified as above suggested.

We can conceive of circumstances under which the first of these two systems or principles would be appropriate and advantageous. If a code were absolutely complete, so that the pre-existing jurisprudence might be blotted out without injury to society; if it embodied and enacted every rule of the law necessary for the regulation of human affairs, so that courts would never be obliged to go outside of its provisions, and to take a rule from the previous statute or common law; if its arrangement and classification were made according to strictly scientific principles, so that there was no conflict, omission, or obscurity; if the phraseology adopted by its authors were uniform and consistent throughout all of its provisions, so that no doubt could arise as to the meaning of particular words or clauses; then the courts might, perhaps, follow the first mentioned system in its interpretation, without wrong to suitors, and without injury to the law of the state. This would more especially be the case, if such a code dealt exclusively with the penal or criminal law, rather than with that department of jurisprudence which relates to private civil rights and duties. For example, if the code of criminal law, herein before described, now pending before the British Parliament, should be enacted, the English courts might well apply to it this purely textual principle of interpretation, and might be under no necessity of invoking the aid of common law doctrines, in order to determine the meaning and effect of particular provisions.

All these features and elements, however, which could warrant such a mode of judicial exposition and treatment, are utterly wanting in the civil code of California.

My fundamental proposition, to which all of the foregoing discussion is merely introductory, may therefore be stated as follows: Except in the comparatively few instances where the language is so clear and unequivocal as to leave no doubt of an intention to depart from, alter, or abrogate the common law rule concerning the subject-matter, the courts should avowedly adopt and follow without deviation the uniform prin

ciple of interpreting all the definitions, statements of doctrines, and rules contained in the code in complete conformity with the common law definitions, doctrines, and rules, and as to all the subordinate effects resulting from such interpretation. A general intent of the legislature to re-enact and declare common law doctrines and rules, with all their consequences, should be assumed and strictly enforced by the courts in their work of interpreting all the provisions, except in the few special instances where a contrary intent is unequivocally manifested by the particular language. Although in formulating a particular rule, the authors of the code may have abandoned the customary and familiar phraseology of judges and text-writers, and have adopted terms hitherto unused and unknown; and even although a particular definition, statement of doctrine, or rule may be so expressed that, if the provision stood alone, as a new and independent creation, unconnected with any pre-existing law, its literal import and meaning might be different from the common law, yet the courts should apply the same principle, should recognize and enforce the same general intent, and should regard such provisions as enactments of common law definitions, doctrines, or rules-unless the language left no doubt whatever of a design to depart from the common law. No provision of the code should be interpreted by itself alone; its meaning and effect should be discovered by a comparison with all the other provisions relating to the same subject-matter, and especially by a reference to the pre-existing and still existing common law rules.

The correctness of this proposition seems to be clearly established by the following among other reasons, some of which extend with equal cogency to all codes, while the others apply with special force to our civil code.

First. The common law as a form of jurisprudence possesses certain peculiar excellencies, acknowledged by all able jurists to belong to it in the highest degree, which constitute its essential characteristics, and which render it, in those respects, superior to any other form of municipal law in its adaptability to the needs of a progressive society; and a code should be so composed, and especially should be so interpreted and construed by the courts, as to preserve to the greatest possible extent these peculiar excellencies. The distinguishing element of the common law, and one of its highest excellencies, is its elasticity, its power of natural growth and orderly expansion. Its doctrines, however formulated, are not limited to any fixed, existing condition of facts, but they may, by virtue of their own inherent power, be extended to new facts and circumstances, as these are constantly arising in the inter. course of men and transactions of life. The peculiarity of statutes, on the other hand, is their rigidity. Statutory rules once enacted cannot