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 *334ought 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 satisfac*335tion 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-*336the 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.