delivered the opinion of the Court.

This was an action of debt on a bond brought by Reua Nels.on, against Dexter T. Wales, John Smith and William H. White, the former as principal and the latter securities. The condition of the bond was that: “Whereas the firm of Wales, Nelson & Co., of which Dexter T. Wales and Reua Nelson were members, lhad been dissolvéd, and that said Nelson had transferred to said Wales,' all his interest in the effects of said concern, for certain considerations, to-wit: Six thousand dollars in notes due said concern, then transferred to him, and his own private account due said coneern, then declared satisfied, and cancelled, and also a bond of indemnity against the debts due by said concern, that therefore, if the said Dexter T. Wales should well and tr.uly indemnify and save harmless *21the said Nelson against all debts, demands and liabilities of said firm of Wales, Nelson & Co., owing, or to be due by said late firm, or for which said late firm was or should be bound, and should discharge or satisfy the same within six months from the date of said bond, so that Nelson should never be molested by or on account of them, or any of them, then said bond should be void, otherwise, it should be and remain in force. ”

Among other breaches, the declaration sets forth a suit commenced more than six months after the date of said bond, by the South Bridge Bank, against Orrin Wales, Reua Nelson and Dexter T. Wales, composing said firm of Wales, Nelson & Co., which the declaration avers was prosecuted to a judgment, and the execution paid by said plaintiff with costs, &c.

The defendants pleaded: 1st. Mon est factum. 2d. That said Wales had indemnified and saved harmless the said Nelson. 3d. That said Nelson had not been molested, &c. 4th. Mid tiel record as to the suit set out in the breach above referred to. Issues were taken and tried, and the verdict and judgment were for the plaintiff.

On the trial the plaintiff gave in evidence the bond sued on, and the record of the suit of the South Bridge Bank against Wales, Nelson & Wales. This record showed a judgment at the February term, 1843, of the St. Louis Court of Common Pleas, and on execution issued in Dec., 1843, which was returned satisfied by Reua Nelson. The defendants then offered in evidence the records of the proceedings in said case, subsequently to the entry of the judgment, from which it appeared that at the same term (February, 1843,) defendants (Wales) — (Nelson not joining) moved for a new trial; which motion was overruled on the 16th March, 1844; but subsequently on the 16th April, the order was set aside, and the motion sustained, the judgment set aside, and a new trial ordered, and a non suit entered by the plaintiff on the 30th Sep., 1844.

The defendants then offered Orrin Wales, to prove that the debt sued on by the South Bridge Bank, was the individual debt of Nelson (the plaintiff;) but the plaintiff objecting, the witness was excluded on the ground of interest; subsequently the defendants produced a certificate of discharge of said witness as a Bankrupt, and again offered him, but the witness was exclude#.

The defendants asked the Court to instruct the jury that the judgment offered in evidence by the plaintiff in this case, was reversed or annulled by the judgment of the Court subsequently rendered, and that plaintiff cannot recover under the second breach, &c. The Court refused this instruction, but instructed the jury, that, if they believed that the plain*22tiff Nelson, paid any money on the execution issued upon the judgment in favor of the South Bridge Bank, against Wales, Nelson & Co., they would find for the plaintiff the amount of 3uch payment, unless the evidence was satisfactory that the debt on which such recovery was had, was not the debt of Wales, Nelson & Co.

A bill of exceptions was taken to the opinions of the Court, and the ease brought here by appeal.

The propriety of-the judgment in this case seems to-depend mainly upon the value of the record offered and given in evidence by the defendants. That record comprehended the proceedings of the Court of Common Pleas, in the' case of the South Bridge Bank, against Wales, Nelson & Co., subsequently to the rendition of the judgment. If the judgment in that case be unaffected by the subsequent proceedings, the rejection of the witness, Orrin Wales, could not have have been prejudicial to the defendants. That witness was offered to prove that the debt upon which the judgment against Wales, Nelson & Co. was obtained, was an individual debt of Nelson; but that judgment, so long as it stood, being against Orrin Wales (the witness) Dexter T. Wales & Rue a Nelson, composing the firm of Wales, Nelson & Co., estopped the witness from saying that the recovery was had against him upon the debt of another. That judgment was entered at the February term, 1843; at the same term and on the day succeeding the one on which the judgment was rendered, a motion for a new trial was made by the Wales’ (two of defendants) which was ultimately sustained by the Court; the judgment vacated a non suit entered. Can there be any doubt of the right of the Court to vacate the judgment? In Crosswell vs. Bryne 9 Johns R. 289,) it was held that a vacatur of a judgment entered on the minutes could not be received to contradict an enrolled judgment, upon the principle adoped by the Courts of that State from the British practice, that Courts will not regard any proceeding as a matter of record until it is enroled, I Salk. 329. The decision admits the right of vacating judgments for irregularities or other cases shown, but decides that the evidence in that case was not of the right character. The practice of enrolling judgments does not prevail here. The record introduced by the defendants, then, showed a vacatur of the judgment, Jld this record was clearly admissible under the issue of nul Uel record. Was the plaintiff then molested within the meaning of the condition of the bond given by the defendants? Did the defendants design to protect Nelson against illegal molestations? Or was it not rather the obvious intention of the bond given to protect the plaintiff against lawful molestations? There can*23not be any doubt, but that Nelson may recover back any money paid by bim upon a judgment subsequently reversed, and it was surely not in the contemplation of the parties to secure the plaintiff against unauthorized exactions, for which he has his remedy.

Judge Scott concuring, the judgment of the Circuit Courtis reversed and the cause remanded.