
    Scott vs. Lanham.
    The act of 1809, ch. 60, seo. 1, embraces sureties in bail bonds as well as any other; and upon judgment being obtained against them, they are entitled to a judgment, on motion, against their principal before they paid the money. ,
    The act of limitations does not bar the surety in proceeding against the principal by motion, so long as the judgment against the surety remains unsatisfied.
    Scott was sued by Randolph, in Franklin county court, in 1821, and Lanham became bis bail. Randolph having obtained judgment against Scott, and failing to make his money, sued out a scire facias against Lanham as bail, and on the 2d of March, 1825, obtained judgment against him; at the February county court, 1830, Lanham obtained judgment against Scott, by motion, for the amount of the judgment against him. gjcott applied for, and obtained a cer-tiorari, by which the case was brought into the circuit court, when a jury was empannelled to enquire: 1st. Whether Scott had paid Lanham the amount of his liability as bail. And 2d. Whether Lanham had paid any part of the money, as Scott’s bail, within three years next before the motion was made. ■ As to both these interrogatories, the jury responded in the negative. It appears from the record, that the judgment against the hail was siill in existence unsatisfied: whereupon the court, on motion by the plaintiff, entered up. judgment against the defendant, for the amount of Randolph’s judgment against them, and interest which had accrued thereon. From this judgment P , ii-i J ° r- or the court, the defendant appealed m the nature of a writ of error to this court. ■
    JR.. Taul, for the plaintiff in error.
    The decision of this case depends upon the sound construction of the acts of 1801 and 1809. Vide Play. &
    Cobb, 303 and 20, (sec. 4 of 1801). The plaintiff in error contends, that Lanham was not entitled to judgment against him until he paid Randolph; and that the court erred in giving judgment against him. He also contends that his right of action was barred by the statute of limitations, according to the principle laid down by this court in 4 Yer. 198, Banks vs. Brown.
    “A motion for judgment is an action, and is embraced within the provisions of ~a statute, where the term action is used.” 1
    The court ought to have decided upon the defence of the statute of limitations in favor of the plaintiff in error, which it failed to do.
    
      J. Campbell & W. B. Campbell, for def’t., in error.
   Gheen J.

delivered the opinion of the court.

This judgment, the plaintiff in error insists is erroneous upon' two grounds, viz:

, 1. Because, by the act of 1809, ch. 60, sec. 1, the security to a bail bond is not authorized, to have judgment against the principal upon the rendition of judgment against him. „

2. That the plaintiff’s remedy was barred by. the statute of limitations.

As to the first objection, nothing is clearer than-that the security in a bail bond is included in the terms of the act of 1S09. - It says, “in all cases where judgment may be rendered against any person or persons, or the heirs or representatives oi any person or persons, who was security in any note, bill, bond, or obligation, it shall and may he lawful for such security or securities, his, her, or their representatives, to obtain judgment by motion, against his, her, or their principal obligor or obligors, or their representatives, for the full amount of such judgment and costs, before any jurisdiction having cognizance thereof, and execution shall issue accordingly.” To bring the present case within this enactment, the only inquiries are, whether the hail piece is a “bond or obligation,” and the bail “securities.” By the act of 1794, ch. 1, sec. 11, the sheriff was required, where he executed a writ, to “take bond wiih two sufficient securities;” so that it is seen, the present case is within the very words of the act of 1809.

But it is insisted, that as the act of 1801, ch. 15, sec. 1, made a similar provision, where the money had been paid by a security, to that which is made by the act of 1809, when a judgment has been obtained against him; and that as the 4th section of that act makes a distinct provison for securities in a bail bond, the act of 1809, although including in its words, securities in a hail bond, ought to be construed as not intending to embrace them. This construction is not supported by authority or by reason. If the legislature in 1801, from over-caution or ignorance of the import of language, repeated in the 4th section a provision already contained in the first, it is surely no reason why the legislature in 1809 shall not be understood as meaning what their words import. The same over-caution was exhibited in the case of Ferrel vs. Finch, dependant upon the construction of these same statutes. By the act of 1801, it is expressly required, that when a judgment is moved for by a security, in a court other than that in which the judgment against him was rendered, a copy of the record of such judgment, duly authenticated, should be produced in evidence. , . , , . , 1 , . , , , INow this copy ol the record is the only evidence which could be legally received, if the act of' 1801 had said nothing about it; and the legislature being sensible of this, do not repeat this provision, but leave the court to act upon the known rules of evidence.

2. The second objection, that the statute of-limitations is a bar to this recovery, cannot be sustained. Without saying any thing about the form of action, and whether the statute of limitations, in a court of law, applies to any case unless it be embraced in some one of the forms of action enumerated in the act of 1715; it is enough in this case to remark, that the act of 1809, by virtue of which, this motion was made, predicates the right of a security to move for, and to obtain a judgment against his principal, upon the fact, that there is a judgment against him as security. So long, therefore, as there shall remain an unsatisfied judgment against the security, so long the right to his judgment, by motion, against the principal continues; and these facts existing, no length of time from the rendition of the judgment against the security, will bar his remedy given by the act of 1809. Let the judgment be affirmed.

Judgment affirmed. 
      
       Reported page 432.
     