delivered the opinion of the Court.
From the facts reported it appears that the plaintiff, having become the surety of Pottle, at his request, for the safe keeping and return to an officer of certain personal property which he had attached, belonging to Pottle, received of him a dark red mare as a pledge to secure him against eventual loss on account of such suretyship. The mare was placed in the plaintiff's possession, with power to sell or dispose of the same to the best advantage, applying the proceeds towards payment of the debt due to Blake; at whose suit the property receipted for had been attached. Was the pledge given for a lawful purpose, and for a good and valuable consideration ? The purpose appears to have been a commendable one, but it is contended that there was no valid consideration. To establish this position and shew that the plaintiff has none of the rights of a surety, the counsel has cited the 34th section of chapter 60 of the revised statutes, which declares “ that when hay in a barn, sheep, horses, *30“ or neat cattle are attached on mesne process, at the suit of a “ bona fide creditor, and are suffered by the officer, making “ such attachment, to remain in the possession of the debtor, “ on security given for the safe keeping or delivery thereof to “ such officer, the same shall not, by reason of such possession of the debtor, be subject to a second attachment, to the pre- “ judice of the first- attachment.” The argument is, that as the lien created by Blake’s attachment continued upon the property attached and receipted for, the plaintiff needed no indemnity from Pottle, on account of his suretyship, and, of course, could have no valuable interest in the pledge, or lose any rights by the defendant’s attachment. Without pausing to examine the merits of this argument on the facts assumed, the real facts in the case will show at once that it has no legal foundation ; for although some of the property, for which the plaintiff gave his accountable receipt, is of the kind mentioned in the above quoted section, yet three of the articles are not of that description, and the legal provision has no relation to them; as to these, therefore, at least, the plaintiff was a surety of Pottle, possessing the rights of a surety; and the pledge was given upon a good and valuable consideration to protect him from ultimate loss by reason of his suretyship. The mare, for this reason, while she was held as a pledge, in his possession, was not liable to attachment for the debts of Pottle. 1 Pick. 389. By a recent statute, the law on this point has been altered in Massachusetts; and it would seem that if a similar statute were passed in this State, it would be calculated to secure the rights of creditors, and in many instances, prevent fraudulent proceedings on the part of debtors, especially in those cases where the pledgee is not empowered to dispose of the pledge. The mare, being thus pledged to the plaintiff, was disposed of to Johnson, in exchange for the mare now in dispute ; and she became the property of Pottle, as a pledge to the plaintiff, in the same manner as the mare first named ; substituted in her stead and for the original purpose. She, therefore, was not liable to Shaw’s attachment. We are to decide this cause according to the rights of the parties at the time the present action was commenced. If it was then maintainable, .the sale of the mare *31since does not change the principle. It appears that the sale was made for the purpose of raising money wherewith to pay Blake’s debt; and the proceeds of the sale have been so applied. The property of Pottle thus appears to have been honestly appropriated to the payment of one of his debts. Whether the whole transaction was in reality a fraud, is a question of fact for the jury to decide, on such proof as the defendant can produce. Unless there was such fraud, we are satisfied that the action is maintainable ; of course, the nonsuit must be set aside and the cause stand for trial.