clusively presume him absolutely liable and not allow him to set up and prove the real facts and intention of the parties at the time the contract was executed. We think it would be in opposition to the established principles of our modern commercial law.

Judgment reversed and cause remanded.

Exceptions sustained.

FEBES et al., appellants, v. TIERNAN et al., respondents.

TRESPASS PRESUMED TO BE MADE WITH FORCE. The law implies that an un-
authorized entry, upon the premises of another, is made with force, and
no evidence of such force is required.
PLEADING-trespass - allegation of force. Actual force is not necessary to
constitute a trespass upon land, and it is not necessary to allege, in actions
in the nature of trespass, that the injury was forcible.

GENERAL VERDICT -special findings. A general verdict should not be set
aside, unless the special finding is undoubtedly inconsistent with it.

Appeal from the First District, Madison County.

FEBES, and others, commenced this action in July, 1870, in the district court, to enjoin Tiernan and another from injuring their water ditch, and recover $2,500 damages for injuring said ditch, and diverting the water therefrom. The jury returned a general verdict for $200 for plaintiffs, and certain special findings. The defendants filed a motion in arrest of judgment on the verdict, because the jury did not find the defendants guilty of trespass, or the use of any force in committing any acts against the property of plaintiffs, and the special findings were in conflict with the general verdict. On August 2, 1870, the court, Warren, J., sustained the motion, and entered judgment for defendants. Plaintiffs appealed.

WORD & SPRATT, for appellants.

There was no conflict between the general and special findings of the jury. Every material fact was found for

the appellants. The finding that there was no force should have been disregarded by the court. This issue was not submitted to the jury, and was more a conclusion of law than of fact. 1 Chit. Pl. 205; 1 Bouv. L. D. 535; McDermott v. Higby, 23 Cal. 489.

The law presumes that every material issue, not submitted to the jury in the special findings, was found in the general verdict. McDermott v. Higby, 23 Cal. 489.

The court erred in assuming to determine the issues without the intervention of a jury, and thereby abused its discretion, and deprived parties of their right to a trial by jury. The judgment of the court is not consistent with the verdict and findings of the jury.

H. N. BLAKE, for respondents.

This is, substantially, an action of trespass. An injunction is asked for in aid of the action. Brennan v. Gaston, 17 Cal. 373. Special findings control the general verdict when they are inconsistent. Civ. Prac. Act, § 175.

The appellants must prove that the respondents committed the injuries complained of with force. 2 Greenl. Ev., §§ 613, 621, 623. The jury finds that no force was used by respondents. Appellants, having failed to prove the gist of their action, cannot recover for injuries resulting therefrom. Pico v. Colimas, 32 Cal. 580.

The respondents have not committed any acts that will entitle appellants to a perpetual injunction. Civ. Prac. Act, § 112; Sherman v. Clark, 4 Nev. 142, 148; Verdict and Findings.

If the court below did not abuse its discretion in refusing to grant the injunction, this court will not reverse the judgment. Slade v. Sullivan, 17 Cal. 106; Hicks v. Michael, 15 id. 117.

KNOWLES, J. This is an action for damages sustained by appellants, on account of the wrongful entry of respondents upon their water ditch, and the tearing down of its banks, and the destroying of a dam attached thereto, and

the diverting of its waters. It is in the nature of a common-law action of trespass.

The jury rendered a general verdict for appellants. There were special issues presented to the jury, the second one of which is as follows:

"Did the defendants, or either of them, forcibly injure the ditch or dam in controversy, and divert the waters therefrom, as alleged in the complaint, and if either one of them, which one of them?"

To this the jury returned this answer: "We do not find evidence of forcible injury by either of the defendants."

The counsel for the respondents moved to set the general verdict aside as inconsistent with this special finding of the jury, and for judgment for respondents. The court sustained this motion, and judgment was entered accordingly. This ruling of the court is assigned as error.

Actual force is not necessary to constitute a trespass upon land. 2 Hilliard on Torts, 76. In every trespass quare clausum fregit force is implied. 1 Chit. Pl. 126. The unauthorized entry upon the premises of another is a trespass. When such a state of facts is established, the law implies that the entry was done with force, and it is not necessary to offer any further evidence upon that point. The jury found no evidence of forcible injury, yet, if they found the respondent had done the acts complained of, the law implied that they were done with force. It was always necessary, at common-law actions, to be particular in determining whether the injury was the immediate and direct result of the wrongful act complained of, or whether it resulted because or by reason of this act, for this distinction determined whether the action should be trespass or action on the case. One class of injuries was said to be forcible, and the other consequential. At common law the issue whether the injury was forcible or not was not a matter of substance, but only entertained to determine whether the action should be trespass or case. The allegation that an injury was done vi et armis has been, for a long time,

treated only as a formal allegation, and the absence of it only a ground for special demurrer. 1 Chit. Pl. 663, 664. A pleading, in which it was omitted, was aided by verdict. Chit. Pl. 126, note t. Under our code system of practice, it is not necessary to allege that the injury was forcible. Van Santv. Pl. 290. Hence, it is not necessary to prove it.

A general verdict should not be set aside unless the special finding clearly controverts it, and is undoubtedly inconsistent with it. In this case the answer of the jury is what might be termed a negative pregnant. It does not say that the defendants, or either of them, did not do the acts complained of, but only that they do not find any evidence that they did them with force. Admitting that it was necessary that they should be done with force, no evidence was required to prove it. The law would imply it.

It may be proper to remark that there are reasons for supposing that the jury were misled by this issue presented them. If it had been told them that if the defendants cut the dam and tore down the banks of appellants' ditch without authority, the law implied that the acts were done forcibly, I apprehend there would have been no difficulty. It can hardly be supposed that a jury were so stupid as to find that the respondents did not commit the acts complained of, and yet find a general verdict against them. The only solution of this difficulty, I think, is, that the jury did find that respondents did commit the acts complained of, which the law would have implied were done forcibly, but that they did not find them accompanied manu forti, that is, with such force as in forcible entry and unlawful detainer.

For these reasons I think the judgment of the court below should be reversed, and a judgment entered for appellants, in accordance with the general verdict.

Exceptions sustained.

WILSON, respondent, v. DAVIS et al., appellants.

PRACTICE-findings of referee —not reviewed without testimony. This court will not review the findings of a referee, if the testimony on which they are based is not made a part of the transcript.

PARTNERSHIP — partner has lien on joint property. A partner, who contributes
on account of the partnership business any sum in excess of his proportion
over his copartner, has a lien upon the joint property for the sum so con-
tributed.

INTEREST-compound interest—not allowed in equity. Courts of equity will
not allow.compound interest, if the contract therefor and the original con-
tract were made at the same time and before any interest was due, and a
written agreement to pay such interest shall not be enforced.
INTEREST-Compound interest at common law. The old common-law rule, which
did not allow compound interest, has not been overruled in the United
States.

INTEREST - territorial statute regulates simple interest. The statute of this Terri-
tory, which establishes the rates of interest, relates to simple interest, and
does not authorize contracts for compound interest.

INTEREST- a contract for payment of compound interest not enforced. A party
who agrees to sell real and personal property upon the payment of a note,
which stipulates that the interest shall be compounded monthly, if it is not
paid, is required to convey the property on the payment of the principal of
the note, and simple interest upon the same.
PARTNERSHIP-rights of partners after dissolution-sale of property. The
member of a partnership, who dissolves it by refusing to continue its busi-
ness, cannot compel his partner to carry out one article of the copartner-
ship, which stipulates that the excess of funds which either contributes,
shall be paid out of the net earnings of the partnership property; and a
court of equity can order the property to be sold to pay such excess.
PLEADING-attorney's fees not recoverable under general prayer. A reasonable
attorney's fee will not be awarded to a party under a general prayer for a
certain sum as damages and expenses in protecting "rights, remedies and
equities." It should be specifically demanded.
PRACTICE-jurisdiction — this court examines nothing except decree of court
below. This court can only determine whether or not the decree of the
court below should be affirmed, and cannot now consider the effect of the
undertaking on appeal upon the order of the court below, for the sale of
property.

Appeal from the Third District, Lewis and Clarke
County.

THIS case was before this court at the December term, 1868, and is reported, ante, p. 98.

On November 4, 1868, Wilson filed an amended and supplemental complaint against Davis, W. L. Perkins and W.