
    Stillman, Wells & Co. vs. Truman Barney.
    
    Chittenden,
    
      January, 1832.
    Ill an action on jail bond, the defendant pleaded mil tiel record of the judgement on which the bond was predicated, and the plaintiffs replied that defendant ought to be estopped from pleading said plea, because that, after the recovery of said judgement, the court awarded a new trial to the defendant on condition that he enter into a rule, of record, that said bond should remain as security foi any final judgement the plaintiffs might recover in the original action ; that the defendant consented to said rule,and a new trial was had, in which the plaintiff's recovered judgement for a less sum than at the former trial. The defendant rejoined that he had paid and satisfied tlie judgement last recovered, and prayed judgement if ho ought to be estopped from pleading mil liel record of the judgement first recovered. — It was held on special demurrer to tliis rejoinder, that there was no impropriety in concluding by praying judgement whether defendant ought not tobe estopped; and that the replication, pleading the rule of court as an estoppel to the defendant's plea of mil iiel record, was sufficient.
    Where a new trial was granted in an action under a rule, that a certain jail bond which had been given in the case should remain as security for any final judgement the plaintiffs might recover in the original action, and a new trial was accordingly had, in which the plaintiffs recovered a judgement for alesssumthanin the former trial, which the defendant afterwards paid, — it was held that such payment would not. bar a recovery in an action on the bond.
    
      This was an action of debt on a jail bond/Hn common form, counting upon a judgement in favor of the plaintiffs against the defendant, rendered by Chittenden county court, at their March term, 1826, for ‡ 136 damages, and $26,24 costs; and setting forth the issuing of execution on the same on the 12th of April, 1826, the commitment of the defendant to jail, the execution of the bond on the 9th of June, 1826, and a subsequent escape. The writ wap dated February 28, 1827, and served the 14th of March, following. The defendant pleaded in bar,’] “ that there was not any record of the supposed recovery in the said declaration mentioned.” &c.
    To (his plea, the plaintiffs replied as follows i
    
    
      “ And the plaintiffs, as to the plea by the defendant first above pleaded, by special leave of the court for that purpose first had and obtained, say, that, the said defendant ought not to be admitted to say and allege that there is no such record as in said declaration mentioned, because they say, that at the term of the county court holden at Burlington, within and for the county of Chittenden, at the time in that behalf in plaintiff’s declaration set forth, the plaintiffs did, by the consideration and judgement of the said court, recover such judgement as is in that behalf in plaintiffs’ declaration above alleged ; and afterwards, to wit, at the term of the county court, holden at Burlington, within and for the county of Chittenden, on the last Tuesday of March, 1828, upon motion of defendant, by him, at a previous term of the same court, filed in due form of law, a new trial in the plaintiffs said original action was, by the consideration and judgement of the said court, granted to the defendant; and the said court then and there,at the time of granting the said new trial, as aforesaid, did, by rule of court, duly entered of record, order that the said new trial should he granted to the said defendant,on his the defendant’s entering into a rule of record, that the said bond in plaintiffs’ declaration mentioned, and the suit thereon,should remain as security to the plaintiffs for any final judgement the said plaintiffs might recover in their said original action ; and the said defendant voluntarily submitted, and entered into the said rule. And the said new trial having been granted to the defendant as aforesaid, such proceedings were thereupon had in the said original action, that the plaintiffs afterwards, to wit, at the term of the county court holden at Burlington, in the county of Chittenden, by adjournment, on the fourth Monday, being the 22d day of June, 1829, by the consideration and judgement of said court, recovered judgement against the defendant in their said original action, for the sum of seventy-seven dollars and twenty-one cents, which was then and there by the said court adjudged to the plaintiffs for their damages, which they had sustained as well by reason of the nonperformance by the defendant of certain promises and undertakings by the defendant,then lately made to the plaintiffs, and set forth in plaintiffs’ said original action, as for their cost and charges by them in and about their said original suit in that behalf expended, whereof the said defendant was convicted; all which by the record and proceedings, thereof remaining in the said county court, fully appears, and the plaintiffs are ready to verify the same by the said record, when, where, and in such manner, as the court here shall direct and award : and they pray that the said record may be inspected and seen by the said court here, and judgement whether the said defendant ought not to be estopped from pleading the said plea by him above pleaded.”
    The defendant rejoined, as follows:
    “ And the said Truman Barney rejoins and says, that for any thing in said replication contained, he ought not to be estopped from pleading his said plea and denying the said record, as in his said plea he has done, because he says, that though true it is, that the plaintiffs, by the consideration of the said county court, on the said fourth Monday of June, 1829, did recover a judgement in their favor against the said Truman, as they have set forth, yet that the plaintiffs have received satisfaction for said judgement; and that this defendant, on the first day of August, 1829, paid to them the full amount of the said judgement: and this he is ready to verify. Wherefore, he prays judgement if he ought to be estopped from denying the said record, and that he have his cost.”
    The plaintiffs demurred,specially assigning as causes of demurrer the following :
    1. “ Because in pretending to plead payment of the judgement in plaintiffs’declaration mentioned,defendant begins and concludes his rejoinder by insisting that he ought not to be estopped from pleading nultielrecord. 2. Because, defendant attempts to support a plea of nul tiel record, by alleging a fact which admits the existence and validity of the record or judgement.”
    The cause was argued by Bailey and Marsh, for plaintiffs, and by Adams, for defendant.
   Phelps, J.

Two causes of demurrer are specially assigned in this case ; one relating to the form of the plea, and the other consisting in a supposed departure of the rejoinder from the plea. As to the former, it is to be observed, that the plaintiffs’ replication impliedly admits the truth of the defendant’s plea, but attempts to avoid it, by urging the rule of court set forth in the replication, as matter of estoppel. There seems to be no impropriety, therefore, in concluding by praying judgement, whether the defendant ought not to be estopped, &c., inasmuch as the term estopped is to he understood as synonymous with the expression, barred, dt* precluded, in a plea ; and, if the conclusion is proper in the pleading on one side, it is undoubtedly' so on the other. With respect to the supposed departure in the defendant’s pleading, it is sufficient to remark, that the rejoinder refers, not to the judgement set forth in the declaration, but to that specified in the replication ; and there is evidently no departure or inconsistency in pleading nul tiel record to the one, and payment or satisfaction to the other.

The important question in the case, however, is as to the sufficiency of the replication and rejoinder, in point of substance; and this depends upon the construction and effect, which may be given to the rule of court upon which the plaintiffs rely'.

The obvious purpose of that rule was, to give the plaintiffs a valid and available security for whatever might be ultimately recovered. Without such a rule, the vacating the original judgement would have necessarily annulled the bond. The plea of nul tiel record would have been a good defence to the action. To exclude this defence, the only thing to be guarded against, was the rule entered. It is obvious that this rule could not, and did not, vary the nature or terms of the bond ; and that it could operate effectually, in no other way, than by estopping the defendant from pleading this defence. If it has not this operation, it is utterly nugatory. It is however contended, that the proper mode of enforcing the rule was to refuse to receive the plea, and that it was not proper to plead the rule as an estoppel. It is undoubtedly true, that the court might have treated the plea as a nullity', and rendered judgement as for want of a plea. But it by no means follows, that the ryle might not be pleaded as an estoppel. Any matter of record, which concludes the party, may be so pleaded. This is not only proper, but, had the rule been entered in any other court than that in which this action was tried, it would have been the only mode in which it could be enforced. It certainly is not competent for the defendant to object, that his plea ought not to have been received ; and there is moreover an absurdity in contending that a plea, which, for any reasons ought to be treated as a nullity, should, when those reasons appear of record, be adjudged good upon demurrer.

If then the replication is sufficient, the next inquiry is as to the rejoinder.

This sets forth, simply', a satisfaction of judgement ultimately recovered in the original suit; and it is insisted, that such satisfaction vacates the rule. But it is to be borne in mind, that the was entered into on the occasion, and as a condition, of granting the new trial; and so long as the defendant has the benefit of the order vacatingthefirstjudgement,solong ate the plaintiffs entitled to the benefit of the rule. In truth,they are neither of them vacated ; nor can they be, except by a court having competent jurisdiction. They may be satisfied, but must forever remain in force, in the same manner, that a judgement satisfied is in force for the mutual security of the parties. The consequence is, that, as the plaintiffs -could never prosecute their original judgement, which was vacated, so, on the other hand, they are forever protected by the rule in question. At all events, if that rule was intended to shut out this defence, it is idle and nugatory, unless it so operate until a final decision in the suit.

Another view may be taken of this subject. Laying out of consideration the chancery powers of the court, the plaintiffs were certainly entitled, in strictness of law, at the commencement of this action, to a judgement for the penalty of this bond. They were so entitled until the new trial was granted ; and if the intent and effect of the rule be, as we suppose, to save that right of action, it was saved as a right to recover the penalty. The Court might (and such we believe would have been the proper course) have rendered judgement on the bond, and directed the judgement to stand as a security. If that had been done, it is obvious that no other rule of damages than the penal sum could then have been adopted. As this was not done, but the right of action saved, with a view to secure a claim which was the object of future adjudication, it is clear that the right could have been nothing ■less than a right to the penalty. If this be so, then payment of the less sum finally recovered in the original suit, is no satisfaction of the bond, but the defendant is driven for relief to the equitable powers of the court.

Considering the rule in question, without reference to its technical operation, but with a view to the obvious and admitted intention and understanding of the parties, we must regard' the bond in suit as having been made a collateral security for the original demand : and we take the law to be, in such cases, that the party may prosecute both suits to judgement, and, although he is entitled to but one satisfaction for his debt or damages, he is, unless restricted by statute, entitled to the costs of each.

The result to which we have been led is most obviously just. It certainly never was the intention of the court, nor could it have-the understanding of the parties, that the plaintiffs should be furnished with a security, which should thus recoil upon thern-selves> The instant that final judgement was rendered in the original action, it was in the power of the defendant to satisfy that judgement, without the concurrence of the plaintifls : and if the course taken by him be sanctioned, the plaintiffs are entrapped by a proceeding intended for their security. This certainly was not the original design, and is most manifestly unjust.

The rejoinder is adjudged insufficient, and

Judgement is rendered for the plaintiffs.  