
    Thompson vs. Stevens.
    Whore property attached was permitted to remain in the hands of the debtor, on his procuring one to become receiptor for the same, and such debtor placed in the hands of the receiptor certain other property, as a pledge to secure him for the liability thus incurred, with power, to sell and apply the proceeds to the payment of the principal debt, it was held, that the pledge was for a good and valuable consideration, and while the liability continued, the property pledged could not be attached by a creditor of the pledgor.
    Replevin for a brown mare. The defendant pleaded non cepit, and filed a brief statement, alleging that at the time of the supposed taking, he was a deputy sheriff, and had in bis hands for service, a writ against Daniel Pottle in favour of Alpheus Shaw, by virtue of which he attached said mare, the same being the property of said Pottle.
    
    
      The plaintiff proved that in October, 1830, one Harrison Blake sued out a writ of attachment against said Pottle, and by virtue thereof caused a light red horse, cow, gig, sleigh and harness to be attached ; that at the time of the attachment, the said Pottle procured the plaintiff in this action to become receiptor, and the property was left in Pottle’s possession. Some time in the latter part of the year 1830, Pottle put into the hands of the plaintiff a dark red mare, to secure him as receiptor, and authorised him to sell or dispose of the mare, and to apply the proceeds towards the payment of the Harrison Blake debt. On the second Monday of September, 1831, the plaintiff exchanged said mare with one Johnson, and received the brown mare replevied in this action, and $5 in addition. The writ of replevin was served Sept. 27, 1831, and in October following the mare was sold at auction, by Thompson’s direction, and the proceeds were paid over to satisfy the Blake debt.
    The defendant contended, that the plaintiff had not such an interest in the brown mare as would enable him to maintain this suit and defeat the attachment made on Shaw’s writ. And so the presiding Judge ruled, for the purpose of having that question settled by the full Court, before the defendant should offer evidence, as he proposed to do, to show the transaction between Pottle and the plaintiff fraudulent. The plaintiff became nonsuit, with leave to move to have the nonsuit set aside, if, in the opinion of the Court, his evidence unrebutted was suffipient to enable him to maintain the action.
    
      Mitchell, for the plaintiff.
    The nonsuit ought not to stand. The case of Woodman v. Trafton, 7 Greenl. 178, is plainly distinguishable from this. That, was a case between the original attaching officer, and one who had purchased of the debtor. This, is an action by a receiptor, for property put into his hands, to secure him for the liability incurred as receiptor. The plaintiff thus acquired a special property, and had the absolute possession, with which no stranger had a right to interfere.
    The consideration for the pledge of the mare to the plaintiff, was a valuable one. Even in ordinary cases, the property attached and receipted for, would be liable to many accidents, which would render the receiptor liable. Much more so would it be the case, where the property attached goes back into the hands of the debtor.
    
      Adams, for the defendant.
    To maintain replevin, the plaintiff must have a general, or special property. A receiptor for property attached, has no such property. Ludden v. Leavitt, 9 Mass. 104 ; Warren v. Leland, 9 Mass. 265 ; Perley v. Foster, 9 Mass. 112.
    No sufficient consideration passed from the plaintiff- to Pottle, when the dark red mare was placed in his hands. For, though the property attached was permitted to go back again into the hands of the debtor, yet the attachment and lien were not thereby defeated. Woodman v. Trafton, 7 Greenl. 178 ; Maine *Stat. ch. 60, sec. 34.
    The plaintiff then, wanted no security; ■— the law had already sufficiently secured him. The brown mare therefore, at the time of the exchange, became the property of Pottle, as the red one had been, and as his, was liable to Shaio’s attachment.
   Mullen C. J.

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, “ 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 since 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.  