Department One

         80 Cal. 636 at 646.

         Original Opinion of October 1, 1889, Reported at 80 Cal. 636.

         OPINION

THE COURT 646 A petition for a hearing in Bank having been subsequently filed, the following opinion thereon was rendered in Bank on the 30th of October, 1889:

         The Court.

A rehearing in this case is denied, but the judgment is hereby modified so as to read as follows:

         The judgment and order appealed from are, for the reasons stated (in the opinion filed herein), reversed, and the cause remanded, with leave to the plaintiff, if he be so advised, to file a supplemental and amended complaint charging the defendant with profits actually realized from use of the trust fund, upon which the cause may be tried anew. Or if the plaintiff elect not to file an amended or supplemental complaint, the superior court is directed, without a new trial, to state the account between the parties anew in the following manner: Interest to be computed on the balance found due the defendant June 2, 1875, at the legal rate, till the commencement of this action, March 11, 1876, and credited to defendant. Interest to be computed at the legal rate on the sums collected by defendant from time to time between June 2, 1875, till the commencement of this action and charged against defendant. A balance then struck. The amount thus found to be due the plaintiff at the commencement of this action will be taken as a basis upon which interest is to be computed, beginning at that date, compounding annually at the legal rates. On the sums found to have been collected by defendant from time to time, interest at the like rate is to be computed to the next annual rest; the amount of these various sums forming a new principal upon which interest is to be computed for another year. Interest shall be computed at this rate and according to this method down to the date of the former decree, August 15, 1885. After which time only simple interest shall be allowed.