I concur in the judgment and in all of the opinion of Mr. Justice Henshaw except the statements to the effect that the "common law of England," referred to *Page 300 in section 4468 of the Political Code as the rule of decision in this state where not repugnant to or inconsistent with our written law, includes that law "as it stood influenced by statute, at the time when the code section was adopted," that is, on April 13, 1850. (Stats. 1850, p. 219.) This proposition, as the opinion shows, is not necessary to the decision, for the right to sue in forma pauperis existed at common law in England before any statutes regulatory thereof were enacted. In 1850 there were in England, I have no doubt, many general acts of parliament in force which no one would claim were adopted as parts of our law by the act of our legislature. The statement of what is included by that section needs more qualification and elaboration than is given to it in the main opinion. I think it inadvisable to attempt to state any rule on the subject, except in cases where it is necessarily involved.
Sloss, J., concurred.