The facts appear sufficiently in the opinion of the court. Gray & Sexton, and Chas. F. Lott, for Respondents. MYRICK, J.- First. When the defendants' motion for a new trial came on for hearing in the court below, the court permitted the defendants (respondents here) to amend their statement by adding and inserting the words "or predecessors" after the word "grantors," in specification 1. We do not see that any injury resulted to the plaintiffs. Second. It was material, whether the land between the ditch of plaintiffs and the building of the defendant McCallan had ever been located as a portion of a mining claim, and if so located, whether an abandonment had occurred. The court granted the new trial on the sole ground that the evidence did not establish the fact that the premises had, prior to the year 1868, been located and appropriated as a mining claim; or, if so located and appropriated, that plaintiffs had succeeded to the rights of the locaters. We do not find, from an examination of the evidence, that the court committed an error in so holding. As to abandonment in fact, whether properly located or not, the evidence, in the most favorable aspect for plaintiffs, is conflicting. The order is affirmed. SHARPSTEIN, J., and THORNTON, J., concurred. [Department Two.-July 3, 1883.] C. C. BUTLER, APPELLANT, v. F. B. AUSTIN, ACCOUNTING-TRUST-INTEREST-CONTRACT.-Under a contract to account for and pay moneys held in trust, interest was agreed to be paid at the rate of one and one half per cent per month after demand. No demand having been found, it was error to compute interest at that rate. ID. No account should be taken of sums received after the filing of the complaint. ID.-LIMITATION.-The bar of the statute will apply to all items not connected with the trust relations between the parties. APPEAL from a judgment of the District Court of the Twelfth Judicial District, and from an order refusing a new trial. The facts sufficiently appear in the opinion of the court. E. Kirkpatrick, and John P. Hoge, for Respondent. MYRICK, J.- The plaintiff alleged in his complaint that defendant was indebted to him as a balance for moneys paid out and expended, in the sum of $2,434.32, and asked that an accounting be had. This complaint was filed October 7, 1875. On the 19th of October, 1877, the defendant filed his answer, which set up several matters by way of counter-claim, and alleged that plaintiff was indebted to defendant in large sums of money, for principal and interest. This pleading seems to have been regarded by the parties as a cross-complaint, and was demurred to by the plaintiff. The demurrer was overruled. By stipulation the case was referred to a referee, with instructions to take the testimony and report the same, together with the findings of fact. On the 27th of October, 1879, the referee made his report in which he stated the aggregate amount held in trust by plaintiff for defendant to be $22,960.57, and the aggregate amount paid by plaintiff for account of defendant, $252.71. Judgment was thereupon rendered for defendant and against plaintiff for $22,707.76. First. The instrument in writing executed by plaintiff to defendant, by the terms of which he was to account for and pay to defendant the moneys therein specified, provided for the payment of interest at the rate of one and a half per cent per month after demand. No demand was found; therefore, it was error to compute interest at that rate. Second. The cross-complaint was filed October 19, 1877. The report of the referee was filed October 27, 1879. The referee heard evidence of, and charged the plaintiff with amounts received between those dates. This was error, there being no amended or supplemental cross-complaint. The plaintiff was called upon to meet only the transactions occurring prior to October 19, 1877. Third. The referee allowed to the defendant computations of interest on amounts received by plaintiff after the filing of the cross-complaint. This also was error. Fourth. It does not appear from the findings that either of the sums paid to Lloyd Baldwin and in satisfaction of the judgment in Vassault v. Austin, was in any way connected with the relations of trust existing between the parties or the accounts thereof. If not so related they would be barred by the Statute of Limitations. Fifth. The referee charged the plaintiff with $598 (and interest thereon) received by him in 1879 from the San Fran cisco and Point Lobos Road Company. There was no pleading, to justify this. Sixth. The referee allowed the defendant, and charged the plaintiff with rents received after the trial. For these reasons the judgment and order are reversed, and the cause is remanded for a new trial. THORNTON, J., and SHARPSTEIN, J., concurred. [Department Two.-July 20, 1883.] JANE CANAVAN, RESPONDENT, v. HAMILTON W、 GRAY ET AL., APPELLANTS. TRESPASS-FORCIBLE ENTRY.-Where the owner of real property having the right to possession makes a forcible entry, the person in the wrongful possession cannot maintain an action of trespass; the remedy provided by statute for a forcible entry is exclusive. APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The facts are stated in the opinion of the court. William Reade, and B. S. Brooks, for Appellants. At common law the plaintiff had no right of action (Hawkins Pl. C. B. 1 Ch. 28; 1 Chitty Pl. 203; 2 Blackst. Com. 150; Taylor's Landlord & T. § 779 2d ed.; Woods' Landlord & T. § 924; Turner v. Meymott, 1 Bing. 158; Argent v. Durrant, 8 Term Rep. 403; Taunton v. Costar, 7 Term. Rep. 431; Krevet v. Meyer, 24 Mo. 110, 111; Fuhr v. Dean, 26 Mo. 118; Hyatt V. Wood, 4 Johns. 150.) No other right is given to one forcibly ejected than that provided by the Forcible Entry and Unlawful Detainer Act. (Code Civ. Proc. § 1159, et seq.) M. C. Hassett, for Respondent, cited Comstock v. Brosseau, 65 Ill. 40; Civ. Code §§ 3520, 3523; 3 Blackst. Com. 209; Scott v. Bryson, 74 Ill. 420; Argotsinger v. Vines, 82 N. Y. 309; 2 Hilliard on Torts, 3d ed. § 4, p. 586; Valencia v. Couch, 32 Cal. 340; Uttendorffer v. Saegers, 50 Cal. 496; Rockwell v. Jones, 21 Ill. 279, 288; Dustin v. Cowdry, 23 Vt. 631. SHARPSTEIN, J.-On the 19th day of August, 1875, James Canavan, who was then the husband of the plaintiff, was the lessee and in the possession of the fifty-vara lot on the southeast corner of Third and Brannan streets, in San Francisco, and was the owner of all the frame buildings thereon; and on that day he assigned said lease and sold said buildings to the defendant, H. W. Gray. On the same day he signed and delivered to said Gray an instrument in writing, of which the following is a copy: "This is to certify that I have rented four rooms, upper story, southeast corner Third and Brannan Streets, at ($20) twenty dollars per month; and I hereby agree to deliver up possession of the said rooms upon receipt of ten days' notice, said notice to take effect from 13th day of August, 1875." On the 20th of September, 1875, said Gray commenced an action against said James Canavan for the possession of said premises, and on the 27th of the same month Canavan went away leaving his family, including his wife, the plaintiff herein, in said rooms. He has never occupied said rooms since. But the plaintiff has continued to occupy them without paying any rent for the use and occupation thereof. On the 5th day of April, 1879, some persons who had been employed by said Gray for that purpose, unroofed the house containing said rooms, and by so doing, damaged the personal property of the plaintiff herein, and this action was brought to recover the damages which the plaintiff thereby sustained. Upon these and other facts which do not change the legal aspect of the case, a verdict was rendered in favor of the plaintiff for $1,000. A motion for a new trial was made by the defendants, and denied by the court, on condition that the plaintiff should remit $250 of the damages, which she did. The appeal is from that order and the judgment. The vital question is, Can the plaintiff, upon these facts, maintain an action of trespass against the defendant? Upon that question the cases are conflicting, and we shall not attempt to enumerate them on the one side or the other, but will briefly examine the grounds upon which the opinions pro and con are based. All agree that at common law the plaintiff could not, upon the facts disclosed by this record, maintain any action whatever against the defendants. It is also conceded that the only change which has been made in the law relating to this subject is that made by the statute which, in this State, as in many others, provides a summary remedy for forcible entry upon or into any real property. It is only as to the extent of the change wrought by this statute that there is any difference of opinion. The insistence on one side is that, "the statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner upon the actual possession of another. Such entry is, therefore, unlawful. If unlawful it is a trespass, and an action for the trespass must necessarily lie." (Reeder v. Purdy, 41 Ill. 279.) On the other side it is urged that the remedy given by the statute is exclusive. In this State the plaintiff, in an action of forcible entry, may recover the damages occasioned thereby, together with a judgment for the restitution of the premises. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the Code of Civil Procedure, but it establishes the law of this State respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice. (Code Civ. Proc. $ 4.) An action of forcible entry would be a proceeding under |