
    Lewis, Administratrix, versus Gamage et al.
    
    An attorney in a suit has no authority to discharge a debtor from an execution upon payment of less than the sum due on it.
    A debtor procured a discharge from an execution on which he stood imprisoned, upon payment of part of the sum due, but purposely concealed that his father, a man of property, had died, and himself had committed an escape, just before the discharge: Held, that the discharge was void, and that the bond given for the liberty of the jail-yard was forfeited.
    This was an action of debt on a bond in the penalty of 260 dollars and 22 cents, given by Gamage, with the other defendant as his surety, for the liberty of the jail-yard.
    The declaration contained two counts ; the first was in common form, stating only the penal part of the bond ; the second set forth the judgment and execution against Gamage, his commitment, and the bond with the condition, and alleged an escape on the 1st of January, 1821.
    The defendants pleaded, that on the 2d of the same January they paid to the plaintiff’s intestate, and the intestate accepted and received, 100 dollars in full satisfaction and discharge of the execution, and of the bond : and issue was joined on that fact.
    On the trial, at the last November term, before Jackson J., it appeared that the execution was for 70 dollars damages, and 55' dollars, 9 cents, costs of suit; to which were added, in the margin of the execution, costs on the commitment, &c., amounting to 5 dollars, 2 cents.
    It was testified by A. Moore, who was the attorney of the intestate in that suit, that the attorney of Gamage in the same suit came to him before 9 o’clock on the morning of the 2d of January, and asked him for what sum he would discharge Gamage. Moore agreed to accept 100 dollars. Gamage’s attorney then wished Moore to sign a memorandum of this agreement. Moore asked what was the occasion of such hurry ; to which the attorney replied, that Gamage wished to go home to his wife, and that he himself was obliged to go on board the U. S. ship Independence by 10 o’clock that morning. Moore then signed the memorandum proposed, and in a short time after went into the Court of Common Pleas. The attorney soon came there with the 100 dollars, and desired Moore to go with him immediately to the jailer’s office and write a discharge for Gamage, giving the same reason for his haste. Moore went with him, and wrote on the back of the copy of the execution as follows ; “ Jan. 2d, 1821. Received one hundred dollars in full discharge of this execution.” He then added, at the attorney’s request and dictation, “ and said Gamage is fully discharged from imprisonment on the same,” and signed it.
    The counsel for the plaintiff objected to the admission of this receipt in evidence ; but the judge overruled the objection, intending to reserve the question for the whole Court.
    It appeared that Gamage’s father had died suddenly at Cambridge on the night of the 1st of January, in consequence of an accident which occurred on that evening. Gamage went to Cambridge the same evening, (which is the escape stated and admitted in the pleadings,) and returned before light the next morning to his lodgings within the limits. Moore testified, that he knew that Gamage’s father was a man of property, and that Gamage would probably be able to pay this debt after his father’s death, but he had not at that time any knowledge or suspicion that the father was dead, or that Gamage had committed an escape.
    The intestate never received the 100 dollars of Moore, but desired him to let it remain as it was, observing that there was enough to pay his (Moore’s) fees, and that he (the intestate) should take advice, and ascertain whether he was obliged to lose the balance of his debt.
    Gamage’s attorney (w-ho was not of counsel in the present action) being produced as a witness on the part of the defendants, admitted that he did, by the direction of Gamage, sup pi ess the facts that Gamage had committed an escape and that his father was dead, and did hurry the business in order to have it settled before Moore should get information of those facts. He also stated, that Gamage returned within the limits of the jail early in the morning, in order that his escape might not be discovered ; and that he himself was in fact in haste to go or: board the Independence, as he told Moore at the time, to attend a court martial.
    The jury were instructed, that if the supposed discharge was obtained by a wilful concealment of the facts above stated, which were not known to the intestate or his attorney ; and if the defendants intended to take advantage of that ignorance, and with that view hurried on the settlement, which they believed would not be made if the facts were known to the other party, the discharge was void.
    The jury returned a verdict for the defendants. The plaintiff moved for a new trial, on the ground that the verdict was against law and the evidence in the case ; and likewise moved that judgment should be entered for the plaintiff notwithstanding the verdict.
    
      Cooke, in support of these motions.
    The receipt should not have been admitted in evidence, because the acceptance of a less sum is no satisfaction in law of a greater sum due ; Fitch v. Sutton, 5 East, 230'; and because it was irrelevant to the issue, since it purports to have been given in discharge of the execution only. If the whole amount due on the execution had been paid, the plaintiff would still have a right of action on the bond.
    The plea states a payment to the intestate, but the evidence shows a payment to Moore. Moore’s authority as attorney of record, in the suit of the intestate against Gamage, determined by the judgment. The English authorities are clear to this point. The law is the same in New York ; Kellogg v. Gilbert, 10 Johns. Rep. 220 ; and in this Commonwealth. But if such an attorney may receive money on the execution, he has no authority to discharge the defendant upon the receipt of part of the sum due.
    In rfegard to the fraud, the verdict was against law and the evidence. Fraud is a question of law, where there is no dis pute about the fact. Sturtevant v. Ballard, 9 Johns. Rep. 33?. Here there was no conflicting oí" testimony. The facts proved show both a suppressio veri and a suggestio falsi ; Meade v. Webb, 1 Bro. P. C. 308 ; Evans v. Llewellyn, 2 Bro. C. C. 150 ; and a departure from the good faith which is due from one attorney to another.
    The issue was immaterial; which is not cured by verdict; and the first fault was in the defendants’ plea. The Court might, therefore, grant a repleader. 2 Tidd’s Pr. (2d Am. ed.) 829. But the plaintiff is entitled to judgment, non obstante veredicto ; for it is apparent to the Court- that the defendants can have no case upon the merits, and awarding a repleader would be of no use. Ibid. 828 — 831.
    
      J. T. Jlustin, for the defendants,
    contended that the receipt was competent evidence to prove an accord and satisfaction. The payment of a smaller sum than is due does not extinguish the debt; but, nevertheless, if a man, for his own advantage, receives part of his debt, and acknowledges it to be in satisfaction of the whole, this must be a good discharge of the debt. But in fact a less sum was not received ; for the case finds a .certain debt and costs. The whole of the debt was paid to the attorney in the suit, and he had power to make any agreement in respect to the costs. The clause in the receipt, “ and he is fully discharged from imprisonment on the same,” was intended as a discharge of the bond; but without it, the bond would be discharged by a payment of the execution.
    The payment to Moore was a payment to the intestate; for whatever may be the law in England and in New York, it is the general practice here for the attorney of record to make a settlement with the debtor, and discharge him from the execution. This authority of the attorney seems to be recognized in Hart v. Waterhouse, 1 Mass. Rep. 435. He may likewise receive possession of land extended upon.
    
    The defendants have not been guilty of a fraudulent representation or concealment of any facts that were material, and exclusively within their knowledge, and which they were under an obligation to disclose. 1 Com. on Contr. 38 ; Sugd. Law of Vend. 2.
    
      
       See Herring v. Polley, 8 Mass. Rep. 119; Pratt v. Putman, 13 Mass. Rep. 363
    
   Per Curiam.

One objection to the admission of the receip' in evidence was, that the attorney had no authority to discharge the debtor upon the payment of a less sum than the amount of the judgment. No doubt an attorney has a right to prosecute a suit to final judgment and execution, and to receive the money for which judgment is recovered ; but we are of opinion that he has not a right to discharge the debtor upon receiving a less sum. The creditor may perhaps maintain an ac ice against the attorney for making such a compromise, but this does not affect the debtor ; he is not injured by being compelled to pay the whole debt.

The objection to the evidence is therefore a valid one ; but there is another, namely, that the settlement was unfairly obtained. The debtor had committed an escape, and at that time the probability was, that property had descended to him sufficient to pay the debt. His attorney goes to the creditor’s attorney and urges a settlement, and it is agreed that 100 dollars shall be paid in satisfaction of the demand. The creditor’s attorney asks the cause of such haste, and receives for answer, that the debtor’s attorney is engaged in business to which he must attend, and that the debtor wants to see his family. These reasons were true, but the efficient reasons were not mentioned. The creditor did not know that he had a right to the whole penalty of the bond. The debtor’s attorney says nothing about the death of the father, nor about the escape. The Court think there was a designed concealment of the truth, in order to induce the creditor to take a less sum. Where, by a false representation or concealment, and in a hurried way, as this was, there is an interception of evidence of material facts, it vacates the settlement. The plaintiff is entitled to a new trial, because the verdict was against the evidence. 
      
       See Kilgour v. Ratcliff, 14 Martin’s Louisiana R. 298; Jackson v. Bartlett 8 Johns. R. 281; Holker v. Parker, 7 Cranch, 436. As to the general discre tian and power of an attorney, in a suit, see Gorham v. Gale, 7 Cowen, 744 Jhaon. 1 Wendell, 108; Smock v. Dade, 5 Randolph, 639; Union Bank of Georgetown v. Geary, 5 Peters’s S. C. R. 99; Haynes v. Wright, 4 Hayw. 65, Millaudon v. M’Micken, 19 Martin’s Louisiana R. 35; Dangerfield v. Thruston, 20 ibid. 232; Walden v. Grant, 20 ibid. 565.
     
      
       See Simms v. Slocum, 3 Cranch, 306.
     