
    Ellenwood & al vs. Dickey & al.
    
    .a execution debtor being within the prison limits, under a statute bond, his friends entered into a collateral agreement for payment of the demand ; whereupon the creditors gave him a receipt, not under seal, in full satisfaction of the judgment and execution. In an action afterwards brought upon the bond, this discharge was held a sufficient bar, though the creditor had not been able to derive any benefit from the agreement.
    This action, which came up by exceptions taken to the opinion, f Ruggles J. before whom it was tried in the court below, was an ction of debt brought by Asa iy- Matthew Ellenwood against John )icksy as principal, and Reuben &/■ Robeit Dickey as sureties, on a ond given by the former for the debtor’s liberties, conditioned foils remaining a true prisoner till lawfully discharged, and to surrender imself to the gaol keeper and go into close confinement, as is re-uired by law. Several matters were pleaded in bar, presenting íe principal question whether the debtor was lawfully discharged of re execution of the bond.
    It appeared that John Dickey having duly notified his creditors, nd being about to take the poor debtor’s oath, just before the ex-iration of the nine months from the date of the bond, when he hould have gone into close gaol, the defendants and Asa Ellen-'ood met, and agreed on a settlement of the execution ; in pursu-nce of which, Reuben &¡- Robert Dickey, gave the plaintiffs a written license to enter on a certain lot of land and fake thence suf-cient white pine timber to make “eight thousand feet of boards,” t any time within one year; which Asa accepted in satisfaction of the demand; and thereupon gave to John Dickey, a receipt signed with his own name, in full discharge of the execution. No further regard was paid to the bond, nor any proceedings had under it. The plaintiffs, though previously requested, had never examined the timber on the lot; but acted upon the representations made by the Dickeys, respecting it; which afterwards turned out to be essentially erroneous. The facts to this point were argued to the jury as evidence of fraud, but this was negatived by the verdict. It did not appear that the plaintiffs had ever cut timber on the lot, or derived any benefit from the agreement; but on the contrary, some witnesses were of opinion that the timber was not worth the hauling. The only evidence of Matthew's assent to the arrangement, was his having previously said that Asa might settle the claim as he pleased. The execution issued on a judgment for costs only, and there had been no notice or claim of any lien on the part of the attorney.
    Hereupon the counsel for the plaintiff, contended that here was no legal discharge, either of the execution or the bond ; and that the latter could not be discharged without payment of the former. That the boards mentioned in the agreement or license, were to be taken as “merchantable” boards. That if there was not the stipulated quantity of such timber on the lot at the time of the contract, it was void 5 and lastly that the attorney had such lien for his fees and disbursements as rendered the settlement void without proof of his consent.
    But the judge instructed the jury, that though the agreement and receipt did not operate as a satisfaction or discharge of the original judgment, yet if they found that it was entered into with a view to a discharge of the execution debtor from imprisonment, and prevent the necessity of his surrendering himself to the gaoler, or taking the poor debtor’s oath, and it was intended by the parties to have that effect 5 and if the transaction was attended with no circumstances of fraud or misrepresentation on the part of the defendants, whatever they did having been done in good faith$ then the debtor did not commit a breach of the bond in not surrendering himself to the gaoler, whether the timber on the lot was of the description mentioned in the writing, or not. But that if they found that the defendants, or either of them, knowingly and intentionally misrepre-;ented the quality or quantity of the timber growing on the lot, the [plaintiffs relying on their account of it, and not on their own view, ir on information otherwise obtained, and were thereby induced to accept the agreement, and give the discharge, it was a fraud on the ilaintiffs, and the discharge thus obtained would be no bar. to their ecovering.
    He further instructed them that the contract-was not to be interpreted as a stipulation that there was sufficient timber on the lot to ake eight thousand feet of merchantable boards, technically so -ailed ; but that if the timber when sawed, would make that quantity of any boards of a readily marketable quality, it would satisfy he terms of the contract. And he ruled, that no supposed lien of he attorney could be set up, without previous notice, to prevent the jperation of the discharge.
    To which opinions and directions the plaintiffs excepted; the jury aving found for the defendants.
    
      J. Williamson,
    
    in support of the exceptions, contended, first, that pe discharge was inoperative, being made by one creditor only, [id not by both, it not appearing that they W'ere copartners, 5 Bac. v.br. tit. Release G ; Fitch v. Farnham, 14 Johns. 172. Secondly, |iat there could be no valid discharge of the bond but such as would a good discharge of the judgment also ; but here was no satis-ction; and one contract cannot be extinguished by another from bich the party derived no benefit. Johnson v. Johnson, 11 Mass. 51 ; 5 Johns. 68; 1 Bac. JLbr. 43. Thirdly, that the agreement as void by reason of the total absence of the thing which consulted ils essence, viz. the quantity and kind of timber contracted |r. Chipm. on contr. 32.
    
    
      Johnson, on the other side, was stopped by the court, whose opin-|n was delivered by
   Weston J.

After the discharge .of the execution against John \iclcey, the defendants were excused by the plaintiffs, who had a right so to do, from fulfilling the condition of the gaol bond ; and the discharge was made with the express understanding, that it should have this effect. The new agreement was a sufficient consideration for the discharge. If that had been fraudulently obtained, it would not have protected the defendants; but this the jury have negatived. Whether the plaintiffs can realize the satisfaction they expected ; or whether the agreement has been, or could be, fulfilled on the part of the defendants, are not questions, which properly arise in this action; except as evidence of fraud, upon which the jury have passed. . Exceptions overruled.  