In this suit on a joint note, made by the two defendants, as principal and surety, the principal has been defaulted, and the surety defends. His defence is placed on *191the ground, that the plaintiff voluntarily relinquished a security which was given him by the principal, and from which the whole or a part of the amount of this nbte might have been realized; that, by a rule of equity, adopted as a rule of law, the defendant is discharged, in full or pro tanto. This security was supposed to arise from a promise in a lease of a farm, made by the plaintiff to Darling, the principal debtor on this note, by which it was stipulated that the produce and profits of the farm should be holden for the payment of two notes, one bearing even date with the lease, and the other, the note now in suit. There was a stipulation in the lease, that the lessor reserved certain apartments, in the house and stable, to his own use, with a right to board with the lessee, at a fixed rate per week. In all other respects, the possession of the demised premises passed by the lease, which was in the usual form, to the lessee. The plaintiff never took any of the produce into his own custody, nor received any of the profits, under this clause.
The court are of opinion, that the facts do not bring the case within the principle stated, even supposing — of which we give no opinion — that this would be a good defence, in a joint action, upon a joint note, against principal and surety. The plaintiff received nothing under this provision. It was a mere executory agreement, authorizing the plaintiff to take uossession of the produce when it should come into existence ; and if he had exercised that power, and taken such possession, before the right of any creditor or purchaser had intervened, it might have given him a lien. Bartlett v. Williams, 1 Pick. 288. But until possession taken, he had no lien, and could not hold the produce against a bona fide purchaser or attaching creditor. Jones v. Richardson, 10 Met. 481. And we think he was not bound to active diligence in availing himself of the power to obtain a lien, any more than the holder of a note, with a surety, is bound to active diligence in securing his note by attachment of the property of the principal, when he has an opportunity to do so. 1 Story on Eq. § 325. It was a collateral security, not given *192at the time the note was made, but afterwards, and not taken with the knowledge or for the use and benefit of the surety. It was a means of obtaining .a pledge, at the option of the plaintiff, of which he might have availed himself or not, but it did not constitute an actual security. The plaintiff's forbearing to act upon this executory agreement, and taking no measures to enforce it, was not such a voluntary relinquishment of any pledge or security as to bring the case within the principle relied on by the defendant.
Exceptions overruled.