
    Young and others vs. Hare.
    X. Hare notified Young that at the Circuit Court to be held at Gainsboro on the first Monday in November 3847,'he would move against Mm and his sureties, as clerk of said court for the sum of $105, jail fees due him, and received by Young in the case of the State against Phillips on a charge of muider. This notice is sufficient: but if it were not, its defect was waived by the appearance of the defendant Young.
    2. The service of notice of an intended motion is the commencement of a suit; and if the time required to perfect the bar of the statute of limitations is not complete before service, it arrests its operation.
    3. Motions against clerks, sheriffs, and other officers, given by statute are out of the ordinary co,urse of common law; of which notice must be given to the principal, but not to the sureties; and the admissions of the principal are evidence in these proceedings against the principal and sureties, though made after the expiration of his term of service.
    This is a motion made in the Circuit Court of Jackson county by Hare against Young and sureties. Notice was given to Young. His written acknowledgment of the receipt of fees belonging to Hare as jailor, was read to the court, after objection made. There was a judgment for the plaintiff against Young and sureties.
    They appealed.
    
      M. M. Brien, for the plaintiffs in error.
    
      Fite, for the defendant in error.
   Totten, J.,

delivered the opinion of the court.

This proceeding is a motion by Achilles' Hare, in the circuit court of Jackson, against Merlin Young, as clerk of said court and his sureties for $105 37 cents, jail fees due the plaintiff, in the case of the State vs. Peyton D. Phillips. The fees were regularly taxed, and with the other costs in the case,'were paid by the State treasurer to Merlin Young, as clerk of said court. The court rendered judgment for the balance due from which judgment the clerk and his sureties have appealed in error to this court.

1st. It is objected that the notice is defective, and that it was not pursued in the action of the court. We consider the notice quite sufficient, in stating the nature of the demand and the time and place the motion would be made. It was served on the clerk on the 26th October, 1847, and in pur-surance thereof, the motion was made at the November term, 1847, of the court, but not disposed of till many terms after. In the meantime, Merlin Young, the clerk and only party entitled to notice, appeared and defended the motion. If the notice were defective, this would certainly cure it, but we think it was not defective.

2nd. The judgment is against the administrators of two of the sureties, and it is objected that they are protected by the act of two years limitation. But we regard the service of the notice, in a case like this, as the institution of the suit. The notice is to be regarded as a suit, it being a legal demand of the plaintiff’s rights, and the notice required by the statute is in the nature of a leading process. Now, the two years had not elapsed before the service of the notice, and therefore the limitation does not here apply.

3rd. The clerk admitted by a statement in writing, that as clerk, he had received from the State treasurer, the fees in question. This statement was admitted in evidence on the trial of the motion. The sureties objected upon the ground, that admissions made by the clerk, not in the performance of his office, were not to be taken as competent evidence against the sureties.

In an action against the surety upon his collateral undertaking, the general rule is, that if the declarations of the principal were made during the transaction of the business for which the surety was bound, so as to become part of the res gesta, they are admissible as evidence, otherwise not. “The surety is considered as bound only for the actual conduct of the party and not for whatever he might say he had done, and therefore is entitled to proof of his conduct by original evidence where it can be had, excluding all declarations of the principal, made subsequent to the act to which they relate, and out of the course of his official duty.” 1 Greenleaf Ev., sec. 187; Smith vs. Whittington, 6 C. & P. 78.

But these motions given by statute against clerks, sheriffs and other officers, are out of the ordinary course of the common law. The officer alone, is required to be notified of the motion, that he may appear and defend it, and if on the trial, he appear to be liable, the judgment is against him, and his official bond being produced, it is entered against his sureties likewise, though they were not notified and did not appear and defend. If the judgment were founded upon a false state of facts, however conclusive it might be as to the principal, the sureties are not without remedy, as they would be entitled to their writ of error coram nobis to reverse it. The judgment would he prima facie valid against the sureties, and the onus of proving it to be a false or unjust judgment rests upon them. East vs. Gannon, 1 Hum. R. 471.

We do not however deny, but that to avoid this inconvenience, the sureties might appear voluntarily in the first instance and defend the motion against them.

But in the case before us, the evidence in question was material and competent to show the liability of the clerk, and it could not therefore be rejected. There was also other evidence leading to show the same facts, and we do not consider that any error has been committed for which we should reverse. The judgment will therefore, be affirmed.  