ALEXANDER G. MAUGE v. BERNARD HERINGHI, 26 Cal. 577

By the Court, Sanderson, C. J. This is an appeal from an order granting a new trial. The action was brought to recover a balance due on a loan of one thousand dollars for one month, with interest, at the rate of three per cent per month, secured by a pledge of certain personal property. The contract or obligation was in writing, and in the French language. The complaint admits part payment, and asks judgment for the balance due.

The answer denies specifically all the allegations of the complaint, and then proceeds to aver in substance that the transaction in question was had by the defendant with one Silvy, who was a pawnbroker, as he avers, and who was the real party in interest. That at the time he received the money from Silvy, he left with him in pawn and pledge, goods of the value of fifteen hundred dollars.

That the obligation in question was in the French language, of which defendant was ignorant, and that he was induced to sign the same by the false and fraudulent representations of Silvy, to the effect that it was a receipt to him (Silvy) for the money, whereas in fact it was a receipt in favor of the plaintiff; all of which, as he avers, was done to cheat and defraud him.

It appears that the plaintiff, the money being unpaid at the maturity of the obligation and in less than six months thereafter, (Statutes of 1861, p. 184, Sec. 4,) duly notified the defendant, after demand duly made, that he would at a certain time and place sell the goods which he held in pledge at public auction. This wTas done and the amount realized was duly indorsed on the obligation, and this suit was brought to recover the amount remaining unsatisfied by the sale of the pledge.

The real question in controversy, and the one upon which the whole case turned, wras whether this transaction was had with the plaintiff, who was not a pawnbroker, through Silvy acting as his agent, or with the latter in his alleged capacity of pawnbroker ? The jury in effect found that the latter was the case. The Court below granted a new trial, but upon what particular ground does not appear. But we think the order can be fully sustained upon the ground that the verdict was contrary to the evidence.

Upon the question as to whether the money loaned belonged to Silvy or plaintiff, the testimony, except that of the defendant (which is very unsatisfactory), -is all one way and contrary to the verdict. But admitting this to be so, it is insisted, on the part of the appellant, that this case falls within the two hundred and forty-sixth

section of the Practice Act, and cannot be maintained upon the facts disclosed by the evidence, because it is an action for a personal judgment without first exhausting the mortgage lien in the manner pointed out in

Chapter 1, Title 8, of the Practice Act, and the motion for a nonsuit made by him ought therefore to have been sustained. This case does not fall within nor is it governed by the provisions of that chapter. It is not an action for a debt secured by a lien, but for a balance due after the lien has been exhausted and its proceeds applied in a manner authorized at common law. (Story on Bailments, Sec. 308, and Sec. 314.) This common law right of a pledgee to sell the pledge, upon the default of the pledgor, in the mode adopted in this case, and thereafter bring his action for any balance remaining unsatisfied, is wholly unaffected by

Chapter 1, of Title 8, of the Practice Act. The granting of a new trial rests very much in the discretion of the Court below, and this Court will not reverse such an order except in a case of gross abuse. (Peters v. Foss, 16 Cal. 357.) Order affirmed. .