as well as that of Reiss v. Brady, 2 Cal. 132, to the same effect, were overruled in Allender v. Fritts, 24 Cal. 447. From the latter case it appears that the Practice Act, as then in force, contained no provision for an appeal from an order of the district court dissolving or refusing to dissolve an attachment, and it was sought to secure a review of such an order by the supreme court upon an appeal from the judgment, as well as to appeal from the order itself. Sawyer, J., delivering the opinion of the court, says: "This is not an appealable order within the meaning of those sections (Prac. Act, 347 and 366), and an appeal, therefore, cannot be taken from it directly as an order; and it is not an order 'involving the merits and necessarily affecting the judgment' within the meaning of section 344. The attachment is merely a proceeding ancillary to the action, by which a party is enabled to acquire a lien for the security of his demand by a levy made before instead of after the entry of a judgment. Neither the action nor the judgment, under our law, in any manner depends upon the attachment, although the attachment depends upon the action. The judgment in the case is precisely the same, whether the attachment is dissolved or not"; it "is not in any respect affected by the attachment. We could neither reverse nor modify the final judgment in any particular in consequence of any error in the attachment proceedings." .. "It is a case for which the Practice Act has made no provision." The Allender case is recognized as authority in Myers v. Mott, 29 Cal. 360, 363, and Herman v. Paris, 81 Cal. 625; it being said in the latter case: "The attachment papers in no way affected the validity of the judgment or order denying a new trial, and the questions in relation to them cannot be considered on the appeals taken." There was an appeal from the judgment and from an order refusing a new trial in that case.

In line with this same distinction, Chief Justice Parker observes in Kittredge v. Warren, 14 N. H. 510, p. 530: "It (the attachment) is originated by the suit, and sustained by the suit, but is not part of it. It can only be made available through a judgment, but the judgment neither changes its nature nor determines its validity; nor does it operate to perfect the attachment. The judgment establishes the existence of the demand upon which the attachment is predicated, and the security taken, whereas, it was before only alleged, and presupposed for the purpose of the security." Notwithstanding an appeal be taken from its judgment, the trial court (if a court of record) has been held to still retain jurisdiction of the proceedings designated by our code as provisional remedies with power to take such steps therein as may be necessary to preserve the rights of the parties interested therein. (Baughman v. Superior Ct., 72 Cal. 572; Havemeyer v. Superior Ct., 84 Cal. 382; Broder v. Conklin, 121 Cal. 289.) So it is said in Elliott on Appellate Procedure that while a general appeal brings up the whole case, the appellant is not necessarily entitled to have all the questions which the papers present reviewed. There is a clear and important distinction between bringing up questions and presenting questions for review. A general appeal removes from the jurisdiction of the trial court all questions concluded by its judgment (sec. 544), but nothing else.

While we recognize the force of the reasoning upon which the decisions in Bullard v. McArdle, 98 Cal. 359; Rossi v. Superior Court, 114 Cal. 371, p. 374, and Maxson v. Superior Court, 124 Cal. 468, are based, we are of opinion that the rule as to review of merely ancillary proceedings is the same on the appeal before us as if the appeal were from a judgment of the superior court. This appears to be borne out by the provisions of the code in relation to appeals on questions of fact or law and fact.

When an appeal is taken on questions of both law and fact, no statement is or need be prepared (Code Civ. Proc., sec. 976), but the justice certifies and transmits all the papers in the cause, including a copy of his docket, to the superior court (Code Civ. Proc., sec. 977), and the action is tried anew in that court. Section 980 provides when this is done the trial must be conducted in all respects as other trials in the superior court, and all the provisions as to trials in the superior court are made applicable, and the judgment rendered on appeal has the same effect and is enforced in the same manner as if the action had been commenced in the superior court. Where the appeal is heard on a statement the court is given power to review certain enumerated orders, but where the statute provides for a new trial as a matter of right, no provisions are made for the review of either intermediate or subsequent orders or rulings. The principal action is, by the appeal, restored to the same position it occupied before the trial as to all matters leading to the judgment, and the superior court tries the case as if there had been no trial in the justice's court.

The attachment proceeding is not a part of every civil action; it is a provisional, independent proceeding initiated by the affidavit (Finch v. McVean, 6 Cal. App. 272); the basis for the writ is the affidavit (Baldwin v. Napa Wine Co., 137 Cal. 649), and if the transmission of all the papers in a cause to the superior court on appeal be to vest that court with jurisdiction of an attachment proceeding pending in connection therewith, such jurisdiction is not for the purpose of reviewing the rulings of the justice court in connection with the attachment, but as incidental to the execution of the judgment which may be rendered in the principal action. No provision for a review is made by the statute, and whatever other action the superior court may be authorized to take in connection with the attachment proceedings before it by reason of an appeal on questions of both law and fact, in the absence of some statutory authorization to review the rulings of the justice court, we are of opinion that it has no jurisdiction to do so.

The writ, therefore, is denied.

Civil No. 559. Third Appellate District. July 12, 1909. A. DALTON HARRISON et al., Plaintiffs and Respondents, v. O. J. WOODWARD et al., Defendants and Appellants.

ACTION FOR RECOVERY OF ESCROWED PAPERS-SETTLEMENT OF LITIGATED CORPORATE AFFAIRS ESCROW OF STOCK-LIQUIDATION OF BUSI NESS EXPENSES OF REPAYMENT OF PREVIOUS ADVANCES VIOLATION OF ESCROW AGREEMENT APPLICATION OF PROCEEDS OF SALES OF ASSETS.-Where an agreement settling the litigated affairs of a corporation provides, that certain of the interested parties, who are to liquidate the business thereof, are to be repaid a fixed sum in consideration of the surrender of all of their interests in the corporation, which sum is to be paid by applications of cash proceeds of sales from time to time during liquidation, conditioned, however, that a certain portion of such sum must be so paid within a stated time, and that such liquidators are to be allowed all their reasonable expenses in the liquidation, which are to be first deducted from such proceeds, they are entitled to recover the papers placed by them in escrow under such agreement, where it is shown that at no time during such period was there sufficient money in their hands to pay such portion.

ID.-ID.-ID.ID.-ID.-COMPLETION OF CONTRACT TO PURCHASE EXPENSE OF LIQUIDATION.-The completion of a contract to purchase certain personal property, by advancing the money therefor, is a proper expense of liquidation.

ID.-ID.-ID.—ID.-ID.-RENDITION OF STATEMENT SHOWING PAYMENT ON ACCOUNT OF INDEBTEDNESS SUBSEQUENT REDUCTION BY APPLICATION OF EXPENSES OF LIQUIDATOR-CONSTRUCTION OF AGREEMENT. The rendition of a statement of account by such liquidators showing a payment on account of their indebtedness, does not preclude them from subsequently reducing the same, by applying expenses of liquidation, under the agreement of settlement, which established the rule of appropriation.

ID.—ID.—ID.—ID.-ID.-PLEADING-DEFENSE OF ENFORCEMENT OF FORFEITURE UNAVAILABLE TO DEFAULTING PARTIES.-There being no obligation imposed upon the other parties to such agreement to make such payment, the defense that equity will not lend itself to enforce a forfeiture, is unavailable.

ID.-ID.-ID.-ID.-ID.-ID.-DEFENSE UNAVAILABLE TO ESCROWEE. -Such defense is also unavailable to the escrowee, who has uo interest in the property beyond the right to hold the possession until the happening of a certain contingency.

ID. NATURE OF ACTION.-Technically such an action is neither one in claim and delivery nor for specific performance, but an action for specific delivery of personal property under section 3380 of the Civil Code

ID.-ID.-PLEADING AVERMENT OF VALUE UNNECESSARY.-An ailegation of value of the property is not required in such an action. Appeal from the Superior Court of the City and County of San Francisco J. M. Seawell, Judge.

For Appellants-Franklin P. Nutting and Henry Brickley.
For Respondents-Wright & Wright.

The determination of the controversy really turns upon the construction of a certain agreement between James E. Bell and A. Dalton Harrison, the parties of the first part, and John M. Seropian and George M. Seropian, the parties of the second part, executed on the 23rd day of January, 1904. These parties were the owners of all but two shares of the capital stock of a corporation engaged in the fruit business. It is not disputed that the corporation was

indebted to various persons in a sum exceeding $135,000.00 and it appears that it was insolvent. The affairs of the concern were in, volved in litigation and there was great dissension and bitterness between Bell and Harrison on the one hand and the Seropians on the other. To prevent a sacrifice of the property in a court of bankruptcy and to effect a permanent settlement of their joint affairs, the said agreement was entered into by the terms of which the said Bell and Harrison were to pay all the debts of the corporation, provided the Seropians would contribute to its assets a fifteen thousand dollar mortgage on their Fresno ranch, and the former further covenanted to surrender to the latter all their interest in said corporation upon repayment to them of the sum of $110,000.00. An escrow arrangement was devised to accomplish the desired result. A satisfaction of said mortgage and also all of the capital stock of the corporation owned by the parties, properly endorsed so as to entitle it to be transferred on the books of the corporation, were deposited with O. J. Woodward, subject to the following conditions, to wit: "Said satisfaction of mortgage and all of said stock to be delivered to second parties, they having performed all of the terms and stipulations of this agreement by them to be performed, whenever within two years from the date thereof said first parties shall have been repaid, on account of their advances made and those to be made to said corporation as hereinbefore specified, the sum of one hundred and ten thousand dollars U. S. gold coin. . . . It being a still further condition of such payment that said $40,000.00 and interest thereon be fully paid within six months from date hereof . . . time being expressly made of the essence of this agreement and particularly of the escrow. . . . In the event, however, such payments have not been made to said parties of the first part in the amount and at the times hereinbefore specified, and also in the event that parties of the second part have failed or neglected to perform any of the covenants, terms, conditions or stipulations on their part to be performed by this agreement, then all of said capital stock so deposited in escrow, and said satisfaction of mortgage shall be delivered to parties of the first part, and said escrow shall thereupon be terminated."

The method contemplated for the repayment to the said parties of the first part is shown in the following provision of the agreement: "It is further agreed that the parties of the first part shall have full charge of the liquidation of the affairs of said corporation of Seropian Bros. The parties of the first part shall proceed at once to sell in the name of said corporation, and shall sell as speedily as possible, at prevailing market prices, all fruits of said corporation; . . . it being understood that the cash proceeds of the liquidation of the assets of said corporation, including therein proceeds of sales of any assets of said corporation which shall be made during such liquidation shall be applied on account of said sum of $110,000.00."

It was further provided "that all reasonable and proper expenses connected with the liquidation of the affairs of said corporation, including the packing, seeding and stemming required by agreements with the California Raisin Growers Association are to be taken from cash proceeds of liquidation before the application thereof to the payment of indebtedness of the corporation to the parties of the

first part" and that the parties of the first part "shall advance the sum of three thousand five hundred dollars to enable said corporation to complete its confirmation or purchase of raisins from the California Raisin Growers Association, which said advance shall be considered one of the expenses of the liquidation of the affairs of the corporation, to be paid together with interest thereon from the date thereof, at the rate of six per cent per annum to said parties of the first part, independent of said sum of one hundred and ten thousand dollars."

On the ground that they had not been repaid the sum of forty thousand dollars as prescribed, plaintiffs, after the expiration of the six months and the days of grace allowed brought the action to recover a judgment directing the said O. J. Woodward to deliver to plaintiffs said documents held by him in escrow as aforesaid. Defendants denied "that all money received by plaintiffs from the sale of the assets of said corporation or from any proceeds of said liquidation was credited by plaintiffs on the said sum of $40,000.00 and interest thereon that was to be paid to them in accordance with the terms of said agreement but allege that large sums of money far exceeding the said sum of $40,000.00 and said interest thereon were received by said plaintiffs and not credited on said sum of $40,000.00 or on their accounts with defendants."

Defendants also filed a cross-complaint charging plaintiffs with inefficiency, want of diligence and criminal conspiracy in conjunction with their employees in their method of caring for the fruit and in selling the same and making collections therefor whereby defendants were damaged in a sum exceeding two hundred thousand dollars.

The conclusion of the court was in favor of plaintiffs upon all the material issues. The amount including the interest to be paid within the six months was the sum of $41,200.00 and the court found that to this account no more than $31,000.00 could be credited as payment. This finding is the subject of the principal controversy between the parties.

Appellants insist that error was committed by the trial court in charging against this sum of $41,200.00, as expenses of liquidation, two items of $3500.00 and $9694.27. It seems that plaintiffs, about a week after the execution of said contract of January 23rd, advanced the sum of $3500.00 to "complete the confirmation" of the purchase of certain raisins pursuant to said contract and on the same date they caused the corporation to execute and deliver a promissory note for $9694.27 in favor of the First National Bank of Fresno. This note was also signed by the plaintiffs and was paid by them prior to the expiration of the term for the payment of the said sum of $41,200.00. Prior to the execution of the contract of January 23rd the corporation, by George M. Seropian, acting president, entered into a contract for the purchase of a large quantity of raisins from the California Raisin Growers' Association, agreeing to pay therefor $19,614.00, paying on account ten per cent of the purchase price. Certain lots of these were sold and paid for prior to said January 23rd and at that time $13,194.27 was the balance due on the purchase price. As before stated, it was a part of the contract of liquidation that plaintiffs should advance the said sum of $3500.00 to close the transaction of purchase, it being under