
    *James Smock v. Laurence T. Dade.
    November, 1826.
    Supersedeas Bond — Penalty—How Fixed. — The penalty of a Supersedeas bond is to be fixed by the Jndge granting it, and is not governed by the law respecting appeals by plaintiffs, or demandants.
    Execution — Relief from — How Obtained.- -The Audita Querela, to relieve a defendant from an execution where the matter of discharge has been subsequent to the judgment, is an obsolete remedy, and has been substituted in modern practice by the motion.
    Same — Same—Motion for — Jury.—If on a motion (to quash an execution, or entera judgment satisfied,) the relief of the party depends on matters of fact, the Court has a discretion to direct a j ury to try the facts.
    Attorneys — Powers of. — An Attorney at Haw has no right to receive a bond from the debtor in discharge of his client's claim, without the assent of the client. If he does, he is the agent, not of the plaintiff, but the defendant, and the plaintiff may stillproceed against the defendant.
    The plaintiff sued out of the clerk’s office of Orange County Court an execution against the goods and chattels of the defendant, lor the sum of $205 44, with interest on the same from 27th October, 1821, till paid. The execution bore date the 27th July, 1822; was returnable on the fourth Monday in September following, and having come into the hands of the sheriff, was returned by him with this endorsement, ‘ ‘Not executed by order of plaintiff’s attorney.”
    Another execution issued in the name of the same plaintiff, on the' same judgment against the goods ox the defendant, bearing date the 10th October, 1823. Immediately thereafter, the defendant moved the County Court of Orange to quash the last execution, on the ground that the amount of the judgment on which the execution issued, was paid to the plaintiff’s attorney after the rendition of the judgment, and before the emanation of the said execution. In support of his motion, the defendant gave in evidence the first mentioned execution, with the return thefeon, and a receipt of Edmund Banks, the attorney for the plaintiff, in the words and figures following: “Received 25th November, 1822, from Col. Laurence T. Bade, one hundred and fifty-four dollars and seventy cents in money; also, the bond of William Quarles, for one hundred and seventy ^dollars and thirty-nine cents, payable in four months, and a draft on Anthony Buck', for three hundred dollars, at ten days sight; which, when paid, will be in full of the executions of James Smock, and Peter Smock against him in Orange County Court. Edmund Banks, Attorney.” The plaintiff admitted, that the amount of the draft on Anthony Buck had been received by the said Banks, the attorney, but there was no evidence of the payment of Wm. Quarles’s bond, either to Banks or Smock, nor had it ever - been returned or accounted for to Dade. The defendant also gave in evidence the execution from the same office against the goods and chattels of the defendant, in the name of Peter Smock, (as mentioned in the receipt,) for $354, with interest from 22d December, 1820, till payment, bearing date the 27th July, 1822, and returned, “Not executed by order of the plaintiff’s attorney;” for the collection of which last execution, also, the said Banks was attorney. The Court being of opinion, that the said receipt and other facts, were sufficient to sustain the motion, gave judgment that the execution of 10th October, 1823, should be quashed. The plaintiff excepted to the opinion of the Court, and spread all the foregoing facts on his bill of exceptions.
    The plaintiff obtained from a Judge, of’ this Court a Supersedeas to the judgment, it being allowed on the petitioner’s entering into bond with security in ttte penalty of fifty dollars.
    The case came on before the Superior Court of Law for Orange, and the Judge thereof adjourned for decision to this Court the following questions:
    1. Ought the Judge in the present case to have directed bond and security to be given in the penalty of $63 33, and does the law respecting an appeal by the plaintiff or de-mandant, apply to a Writ of Error or Supersedeas?
    2. Does the law authorise the County Court to quash an execution upon such evidence as was before it, and did it enter a correct judgment in quashing such execution?
    3. All and every question arising out of the record?
    *The case was argued by Chapman Johnson, for the defendant Dade, and by Stanard,' for the plaintiff.
    Johnson, on the first point, referred to-the 1st Rev. Co. of 1819, ch. 71, sec. 72 and 73, and to ch. 69, sec. 58, 59; and admitted that the Supersedeas bond was right in this case. He contended, that the Writ of Audita Querela, bad become obsolete, and that in modern practice the motion had been substituted for it. Eer the whole doctrine on this subject, he referred to the following authorities: 1 Bao. Abr. 311f Audita Querela, B. ; 1 Comyn’s, 778, And. Quer. D. ; 3 Black. Com. 405-6; Lester v-Mundell, 1 Bos. & Pull. 427; Anonymous, 1 Saik. 93; Wicket v. Creamer, lb. 264, and 1 Ld. Raym. 439; Baker v. The Judges of Ulster, 4 Johns. Rep. 1; Burke v. Hunt, 17 Johns. 484; Bebee v. Bank of N. Y. 1 Johns. 529; Wardell v. Eden, lb. 522.
    He referred to Gordon v. Erazer, 2 Wash. 130, to show that the motion had substituted the Writ of Error Coram^Vobis. Also-to Hendricks y. Dundas, 2 Wash. 50, 54, to shew the general power exercised by Courts over their executions, upon motion; to Burke v. Levy, 1 Rand. 1, to shew that the Court may have a jury, or not, at their election: and to prove the power of the attorney in receiving the money, and discharging the execution, for his client, he referred to 1 Comyn’s, 157, 158, B. 9, B. 10; Hudson v. Johnson, 1 Wash. 10; Branch v. Burnley, 1 Call, 147.
    Stanard, for the plaintiff.
    I. As the claim to relief is founded on the allegation that the judgment was paid, relief ought to have been sought by Audita Querela, or Injunction, and not by motion. Though the motion is substituted in many cases in the place of the Audita Querela, yet it is not, when it *depends on a contested matter of fact. 1 Salk. 264; Barnes, 204; 1 Johns. Rep. 531; 1 Ld. Raym. 439.
    II. When relief depends on matter of law only, it is not granted on motion, unless the case be clear. 1 Johns. Rep. 531, in note. The case of Lester v. Mundell, 1 Bos. & Pull. 427, is not supported by any case previous, or subsequent, and is in direct contravention of the decision of Holt, 1 Salk. 264. The modern practice is not that the motion has superseded the Audita, Querela, in all cases, but in many or most cases. 2 Cromp. 416; 5 Taunt. 561.
    III. If it is objected, that the Audita Querela has gone entirely out of use, the answer is, that it has not been substituted by motion, where relief depends on matters in pais, as payment, &c. If there be no modern example of a resort to the Audita Querela, there is none of a motion as its substitute. It has been substituted by Injunction.
    IV. He contended, that the Court should not have decided the fact of payment, but should have submitted it to a jury. In the only case in which relief, depending on matter of fact or in pais, has been granted on motion, (1 Bos. & Pull. 437,) the fact was ascertained by an issue tried by a jury, and it is not surmised that it is competent to the Court to assume the decision of the fact. The control of the Court over its practice, may give them power to modify the form by which contested questions may be brought to adjudication, but gives no right to transfer to itself the functions of the jury.
    It is incongruous, that the Court should try the fact of payment where the debt is evidenced by record, and have no such power when it is founded on a bond, note, or promise. If the Court can endow itself with jurisdiction to try the fact, in such suit, by a change of the manner of bringing the facts in judgment, why not in every other suit?
    But, it is objected, that in motions on forthcoming bonds, and other summary remedies, questions of fact '"'that arise may, in the discretion of the Court, be decided by it, without the intervention of a jury. The answer is, that in those cases, the Courts are endowed by expressed statute law, with the power of deciding the motion, and giving judgment, and the decision sustaining their right to dispense with a jury, is nothing more than an interpretation of the statute, and a determination of the extent of power which such statute communicates. The power claimed and exercised, is derived from the legislative grant, not assumed under color of a change of the mode of bringing questions to adjudication. Suppose the statute law had not provided a remedy by motion, in the case of forthcoming bonds, could the Court assume the trial of the fact? English Judges have not ventured on such an usurpation. If the statutes giving the Court power to grant judgments on forthcoming bonds were repealed, the argument founded on the practice under those statutes, would lose its foundation. Can the right of the Judge to try and decide the question, whether a judgment has been paid or released, depend on the existence, or non-existence, of the statute giving remedy by motion on forthcoming bonds?
    The Courts in England entertain motions to vacate judgments entered under warrants of attorney given on an usurious consideration, but (hey do not assume the power of deciding the fact of usury, but have an issue to try it. Cook v. Jones, Cowp. 727. Would the Courts here assume the power of trying the fact? He presumed not; and yet if the position assumed, that the power to entertain the motion, carries with it the power to try and decide all matters-connected with the motion, be correct, the Courts would have that power.
    V. The decision on the fact was wrong. The attorney had no right, as such, to make a commutation of the debts, and bind his client by any such arrangement. His sole power was to collect the debt due from Dade to his client, and could bind him by the receipt of the money only. This is the utmost extent which the decision of the Court *of Appeals has given to-the authority of the attorney. Suppose he had neglected the collection of Quarles’s bond, was Smock chargeable with the consequences? Smock had not confided that agency to him; Dade had:1 and in the collection of Quarles’s bond, he was the agent of Dade only.
    VI. Had Smock given the receipt himself, it would not have established the fact of payment. The receipt imports that the bond was taken as a security for the debt, not as a payment. If Smock had sanctioned the act of Banks, he could not have maintained a motion against him on the proofs in the record; he must further have proved that the bond was paid. Could the Court have been warranted in entering a satisfaction of the judgment? If not, the execution ought not to have been quashed. Indeed, the motion ought to have been teenier satisfaction of the judgment; for that would be the result of a successful prosecution of the Audita Querela ; and if the motion be an authorised substitute for that writ, and the fact be made out, that should have been the judgment in this case. If the proofs do authorise such judgment, that which was given cannot be vindicated.
    
      
       Execution — Relief from- Motion. — See principal case cited on this subject in Steele v. Boyd, 6 Heigh 552; Shuford v. Cain, 22 Fed. Cas. 49. For further information, see monographic note on “Executions” appended to Paine v. Tutwiler, 27 Gratt. 440.
    
    
      
       Attorneys — Powers of — Collection of Debts. — It is well settled that an attorney at law has no authority to commute a debt in his hands Tor collection without the assent of his client. Paxton v. Steele, 86 Va. 313, 10 S. E. Rep. 1, citing principal case as authority.
      
        An attorney at law employed to collect a debt may receive payment in money, but has no right to accept anything else in satisfaction, without express authority. Wiley v. Mahood, 10 W. Va. 221, citing the principal case as authority.
      There is no doubt of the authority oi an attorney in good faith to receive payment of a judgment due his client. Chalfants v. Martin, 25 W. Va. 898, citing 
        Smock v. Dade. 5 Rand. 639: Wilkinson v. Holloway, 7 Leigh 277; Smith v. Lamberts, 7 Gratt. 143; Wiley v. Mahood. 1O W. Va. 223, to support the statement.
      And in Harper v. Harvey, 4 W. Va. 541, it is sai a; “The payment of a judgment or decree to the attorney of record, who obtained it. before his authority is revoked, and due notice of such revocation given to the defendant, is valid and binding on the plaintiff, so far as the defendant is concerned. Yoakum v. Tilden, 3 W. Va. 167. But it must be a payment of money, or if not a payment of money, it mustbe accepted by the plaintiff in lieu of money, or the attorney must have special authority to receive it. Smock v. Dade, 5 Rand. 639.”
      To the same effect the principal case is cited in Wilkinson v. Holloway. 7 Leigh 286; Smith v. Lamberts, 7 Gratt. 138, 143, 144, 145, and footnote; Tuley v. Barton, 79 Va 398; Wiley v. Mahood, 10 W. Va. 222.
      See further, monographic note on "Attorney and Client” appended to Johnson, v. Gibbons, 27 Gratt. 632.
    
   SUMMERS, J.

delivered the opinion of the Court.

It is conceded by the counsel for the defendant, and the Court concur with him in the opinion, that the Writ of Supersedeas was properly allowed, and that the law respecting an áppeal by the plaintilf or de-mandant, has no relation to Writs of Error and Supersedeas.

On examining the question, whether the remedy sought in this case should have been by an Audita Querela, or Injunction, and not by motion, we are satisfied, as well from the uniform practice in Virginia, as from the modern decisions in England, that the more summary, and less expensive mode of proceeding by motion was proper, and that relief may be given in 1his way in all cases, where by *the ancient practice the party would be entitled to an Audita Querela.

When the claim of the party to relief depends on matters of fact, the Court may, in its discretion, cause them to be submitted to a jury, and such course is particularly proper where the evidence is contradictory, or -where it may authorise conflicting inferences, and either of the parties are desirous of referring it to that forum. But, the case before us does not, in our opinion, fall within this rule, nor does the record disclose any objection by the parties to the mode of trial adopted.

The authority of the attorney to receive payment of the debt which he is employed to recover, we think well settled; but, that authority, in our opinion, does not extend to its commutation without the assent of the client. In relation to Quarles’s bond, we regard Banks, as the attorney of Bade, not of Smock. On giving an acquittance, -or receipt for the money, he must have represented the former, not the latter. It was a new engagement, in which all his authority was derived from Dade: to him be must have looked for compensation, and to him he was accountable. To extend the authority of the attorney beyond this limit, without a general discretionary power from the party employing him, would carry the responsibility of the first client into transactions far beyond the first 'engagement, and which might be induced solely with a view to the profit of the attorney, or the accommodation of the debtor.

If, however, the receipt set out in the record had been the act of Smock himself, it would not, in our opinion, have 'author-ised the quashing of the execution, without further proof of the receipt of the money; as that paper imports that the bond of ■Quarles was taken as a security, not as a payment of the debt.

As the money actually paid to Banks by Bade, and by Buck on Dade’s order, did not amount to a full satisfaction of the judgments on account of which those payments were *made, the execution ought not to have been quashed, although it' would have been entirely proper, if such motion had been submitted, for the Court to have entered a satisfaction ■of the judgments to the extent of those payments.

The following is to be entered as the judgment of the Court.

1. The law respecting an appeal by the plaintiff, or demandant, does not apply to a Writ of Error, or Supersedeas, and therefore the penalty of the bond was properly directed by the Judge on awarding the Writ of Supersedeas in this case.

2. The law did not authorise the County Court to quash the execution on the evidence before it.

3. The Superior Court of Daw ought to reverse the judgment of the County Court, and proceeding to give such judgment as the County Court ought to have, rendered, to adjudge that the plaintiff below take nothing by his motion, &c.  