That is not the proper theory of the case at all. They should be charged and credited just as the transaction occurred."

The foregoing is the reasonable view, and is in accordance with the method contemplated by the parties. The stipulation to which we have already referred in relation to "all reasonable and proper expenses" of the liquidation cannot be construed as claimed by appellants.

The parties themselves by their contract having established a rule of appropriation, effect, of course, must be given to it to the exclusion of any other.

Again, the rule as to application of payments invoked by appellants is in force only between debtors and creditors. The parties here do not sustain that relation to each other. It is clear that no obligation was imposed upon the Seropians to make any payments whatever. They had the option to make sales and also from their own funds to supply any deficiency in the reimbursement of plaintiffs, but they were under no legal nor moral compulsion to do either.

Under some circumstances, after reporting $29,000 as paid on the $40,000 account, plaintiffs would be estopped from reducing it by reason of expenditures subsequently entered, but estoppel is not pleaded nor does it appear that appellants were misled to their prejudice.

It cannot be said that at any time within the six months was there in the hands of the liquidators the sum of $10,000 after deducting the just and reasonable expenses of liquidation, and therefore under the provisions of the escrow agreement plaintiffs were entitled to the documents held by Woodward. Indeed, the evidence shows that on August 16, 1906, five months prior to January 23, 1907, the date of the final payment under the contract, the liquidators had received only the sum of $32,871.03, with the packing-houses as the only remaining asset-which it is stated by respondents and not disputed by appellants was sold in the summer of 1907 for $14,000. Thus it is seen how barren ultimately would be the victory of appellants if they should be upheld in their technical view of the application of payments on the $40,000

account.

Appellants are equally at fault in their contention that this is a proceeding to which the rule applies that equity will not lend itself actively to enforce a penalty or forfeiture or a

loss in the nature of a forfeiture. The principle upon which. appellants rely is stated in 1 Pomeroy's Equity Jurisprudence, section 459, as follows: "When will a court of equity by its decree actively enforce or carry into effect a forfeiture? The general answer to this question is easy and clear. It is a well-settled and familiar doctrine that equity will not interfere on behalf of the party entitled thereto and enforce a forfeiture, but will leave him to his legal remedies, if any, even if the case be one in which no equitable relief would be given to the defaulting party against the forfeiture." But the forfeiture which equity hesitates to enforce is what Blackstone defines as "a punishment annexed by law to some illegal act or negligence in the owner of lands, tenements or hereditaments, whereby he loses all his interest therein, and they become vested in the party injured as a recompense for the wrong which he alone or the public together with himself hath sustained." (2 Blackstone's Commentaries, 269.) It implies a breach of duty on the part of the one losing his interest in the property. In the case here no obligation was imposed upon defendants to make any payment. They had simply an option to do so, which they failed to exercise.

The action itself, while involving equitable principles, as it relates to the termination of a trust, has particular features that carry it beyond the ordinary range of equitable cognizance. Indeed, it is authorized by a special provision of the statute contained in section 3380 of the Civil Code that "Any person having the possession or control of a particular article of personal property of which he is not the owner may be compelled specifically to deliver it to the person entitled to its immediate possession." There is no apparent reason why effect should not be given to this remedial measure, and since the evidence is clear that Woodward had in his possession these articles of personal property of which he was not the owner, and furthermore, that under the terms of the agreement of January 23d, plaintiffs had become entitled to the same, and it further appearing that there was nothing immoral, illegal or inequitable in the original transaction of January 23d, we have a proper case for the relief provided in said section 3380.

In fact, Woodward was the only necessary party defendant, and he obviously could not refuse to deliver the papers

to plaintiffs on the ground that the latter were seeking to enforce a forfeiture, as that is no concern of his. He is indifferent as between the other parties, and he claims no interest in the property beyond the right to hold the possession until the happening of a certain contingency. The Seropians were made defendants that judgment concluding the trust and directing the delivery of the said documents to plaintiffs might bind all and protect Woodward from further litigation of the question of fact as to whether said contingency had occurred.

It must be clear, therefore, that if we concede an element of forfeiture to be involved in the suit, it is not available as a defense to Woodward, it would not excuse him from delivering the papers to plaintiffs as he agreed, nor does it entitle the defendants to any affirmative relief, as that would be in violation of their contract with plaintiffs and opposed to the well-established principle that equity will not aid those who do not regard their covenants. The theory of appellants, therefore, leads to the conclusion that neither are they nor is Woodward entitled to the possession of the papers, but that he should deliver them to plaintiffs.

What has been said is perhaps a sufficient answer to appellants' contention that there should have been an allegation of the value of the property as is required in an action in claim and delivery. Technically, this is neither such an action nor is it a proceeding for specific performance, but it is an action for specific delivery of personal property under a title of the code providing for "Specific and Preventive Relief," and the measure of the relief granted is found in the provisions of chapter 1 of said title. Section 3380, as originally adopted, reads as follows: "Any person having the possession or control of a particular article of personal property of which he is not the owner may be compelled specifically to deliver it to the person entitled to its immediate possession in either of the following cases: (1) When the thing claimed is held subject to an express trust in favor of the claimant; (2) when pecuniary compensation would not afford adequate relief for the loss of the thing claimed; and (3) when it would be extremely difficult to ascertain the actual damage caused by the loss." It was amended by eliminating the specification of the cases in which it was allowed. The pur

pose of the amendment undoubtedly was to enlarge its scope, although as it formerly stood it would have authorized this action, since the documents were held by Woodward "subject to an express trust." The tendency, however, of legislation as well as of its construction by the courts is to enlarge the operation of remedial principles to promote justice and prevent wrongdoing. The boundaries of equity are being constantly extended to meet the demands of our complex civilization. As said by Chief Justice Fuller in the case of Union Pacific Ry. Co. v. Chicago etc. Ry. Co., 163 U. S. 564, [16 Sup. Ct. 1173]: "The jurisdiction of courts of equity to decree the specific performance of agreements is of very ancient date, and rests on the ground of the inadequacy and unfitness of the remedy at law. Its exercise prevents the intolerable travesty of justice involved in permitting parties to refuse performance of a contract at pleasure by electing to pay damages for the breach. It must not be forgotten that in the increasing complexities of modern business relations all equitable remedies have necessarily and steadily been expanded, and no inflexible rule has been permitted to circumscribe them. As has been well said, equity has contrived its remedies 'so that they shall correspond both to the primary right of the injured party and to the wrong by which that right has been violated,' and 'has always preserved the elements of flexibility and expansiveness so that new ones may be invented or old ones modified in order to meet the requirements of every case and to satisfy the needs of a progressive social condition in which new primary rights and duties are constantly arising and new kinds of wrongs are constantly committed.' (Pomeroy's Equity Jurisprudence, sec. 111.)"

There is nothing in the statute, nor can any good reason be advanced, requiring the plaintiff in an action of this kind. to allege the value of the property. It would be a strange defense for Woodward to urge that he was not required to execute his trust because the property was of no pecuniary value to plaintiffs, and the only purpose to be subserved by an allegation of value would be to recover it instead of the property itself if possession of the latter could not be obtained. But plaintiff is not required to allege anything more than to show that he is entitled to recover what the statute specifically authorizes—that is, the possession of the identi

cal thing detained. The position taken here by appellants is as destitute of merit as would be the contention that a plaintiff in an action of ejectment must allege the value of the real property in order to state a cause of action.

The judgment and order denying the motion for a new trial are affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 578. Third Appellate District.-July 12, 1909.] THE AETNA INDEMNITY COMPANY, a Corporation, Respondent, v. ALTADENA MINING AND INVESTMENT COMPANY, a Corporation, et al., Appellants. APPEAL-ACTION IN EQUITY-FORECLOSURE of Mortgage-JurisdicTION -TRANSFER TO SUPREME COURT.-An action for the foreclosure of a mortgage is an action in equity; and this court has no jurisdiction of an appeal taken in such action. The jurisdiction of such an appeal is vested in the supreme court under the constitution, and an appeal taken to that court, in which the transcript and briefs are erroneously filed in this court must be transferred to that court for disposition.

APPEAL from a judgment of the Superior Court of Tuolumne County, foreclosing a mortgage. G. W. Nicol, Judge.

The facts are stated in the opinion of the Court.

E. W. Holland, for Appellants.

H. F. Peert, and J. B. Carten, for Respondent.

THE COURT.-This is an action for the foreclosure of a mortgage and is, therefore, a suit in equity. The appeal was properly taken to the supreme court, but was erroneously filed in this court, such error doubtless occurring through the fact that the entitlement of the court on the back of the transcript and briefs is printed as follows: "In the District Court of Appeal of California, Third Appellate District."