The opinion of the Court was pronounced by
Prentiss, J.It is very obvious, that if the plaintiff, in a proper form of action, could not recover the rents arising from the store in Potsdam, he was not entitled to recover in this case ; for exclusive of the rents, there appears to have been no balance due him. This right to recover, therefore, must have depended on his right to demand the rents. If he could not call the rents out of the defendant’s hands by a suit, he could not apply the monies paid and advanced to him by the defendant, in satisfaction of the rents, and in this way extinguish-the defendant’s credit for advances, and create a balance in his fa-vour which he might demand and recover. He could not thus do indirectly, in effect, what he could not be permitted to do directly. The objection does not go to the form of action merely, but to the plaintiff’s right to demand the rents. The store, from the occupation of which the rents accrued, having been conveyed to the defendant, as his security for having become surety for the plaintiff, the plaintiff could no more recover the rents issuing out of the estate so held and possessed by the defendant, than he could recover the estate itself, until he bad discharged the defendant from his liability as surety. The rents grew out of, and were incident to the estate, and constituted a part of the defendant’s security, as much' as the estate itself. The agreement between the parties, that the balance in the defendant’s hands in October, 1821, should be by him applied in payment of the debts for which he had become surety, could not have the effect to discharge his lien upon the balance, as far as it respected the rents, but was rather in affirmance of it. By the agreement, the balance was not to be withdrawn from the defendant by the plaintiff, but was to remain in the defendant’s hands, for his security, and to be by him applied to reduce the debts for which he was holden, and thus relieve himself from so much of his liability. The plaintiff, therefore, could not appropriate the balance, so far as concerned the rents at least, to a different purpose, and thus deprive the defendant of a part of his security, which he might do, if he could call the balance out of the defendant’s hands. The plaintiff might have discharged the defendant from his liability, and then perhaps have recovered the balance which the rents would create in his favour. But it appeared that the debts were still outstanding and unpaid, and until they were discharged, the plaintiff had no right of action. If the monies advanced by the defendant bad been paid on the debts for which he was surety, the payments might have been applied to the rents; but this does not appear. Indeed, the case is quite imperfect in many respects; but from wliat we can collect from it, we think the direction to the jury was *155wrong, .and that the verdict must be set aside, and a new trial granted.
R. B. Bates, D. Chipman, and Geo. Chipman, for the plaintiff. Jos. C. Bradley and S. S. Phelps, for the defendant. •New trial granted.