Hahn

The defendant executed his promissory note to W. B. Bourn, November 8, 1890, for the sum of two thousand dollars, payable six months after date, and, at the same time, delivered to him twenty-seven thousand gallons of wine as collateral security for its payment, with authority to the payee, or his assigns, in case of default in the payment of the note, to sell the same and apply the proceeds upon the note. This authority is in the following terms:

The defendant did not pay the note at its maturity, and thereafter the plaintiff, to whom the note had been assigned, sold the wine, and applied the proceeds of said sale, after deducting certain charges and expenses, as a payment upon the note. The present action was brought to recover the amount remaining due on the note, and, at the commencement of the action, a writ of attachment was issued at the instance of the plaintiff. The defendant moved to dissolve the attachment, upon the ground that the note was originally secured by a pledge of personal property, and that the same had not *477 become valueless. It was shown to the court that the wine was sold by the plaintiff for more than its market value at the time of the sale, but it…