1. Our opinion is, that the notice is amply sufficient to enable the plaintiff to sustain the motion. It identifies the execution with certainty; the time when it 'was issued and placed in the sheriff’s hands for collection; the receipt of the money upon it, previous to its return day, or its actual return; that the money was demanded by competent authority, and its payment refused, as well as the time when the demand was made. This, in addition to the information, that the motion would be made on a certain day, or term of the court, against the sheriff and his sureties, for the sum so refused, or neglected to be paid, with the damages allowed by the statute, is all that is necessary.
2. In the case of McClure v. Colclough, at this term, we held that when the proceeding is against the sheriff as well as his sureties, he alone is competent to litigate the questions involving his liability, and that all those between the plaintiff and the sureties, are thereby concluded, except the factum of the bond and its legal effect. It follows from this, that upon an issue, to which the sheriff alone is a party, that the bond is no wise essential, unless it may be necessary as evidence, to show the time when the sheriff was duly qualified to act as such; and it is very obvious that the cases must be rare in which it will be necessary to resort to such evidence, as any action by the sheriff, in his official capacity, could be more easily proved by other modes. Still we can not say, in the present case, that one of the questions before the jury might not have been whether Brazeal actually was the sheriff when he received this money, and to show that he was, his official bond would be competent evidence. We shall therefore enquire, whether the paper offered in evidence, was suffi*210ciently established, by what appeared upon it, to do away the necessity for further proof of its execution and validity.
The statute requires such bonds as these, to be recorded in the office of the clerk of the county court, of the proper county, and directs that the record of any such bond so recorded, may be proceeded on hi the same manner as the original, under the certificate of the clerk, of its being a true copy, unless the court before whom any proceeding may be had, shall deem it necessary, for the purposes of justice to require the original. [Digest 101, § 16.] It is evident from this, that the bond of a sheriff is a public paper, which may be exemplified under the certificate of the proper officer, and the copy proceeded on in the same manner as the original. The direction that the record of the bond may be proceeded upon must be considered as indicating the intention that the exemplified copy shall have the same effect in every way as the original, unless the court shall require that to.be produced. We can perceive no reason why it is not equally good as evidence as the original, even when a collateral fact is to be proved. As the statute thus makes a copy of the record evidence, it is clear that the same effect must be given to the bond itself] which is in reality the record. Of course, in no other county than that where the bond is filed could a question like this arise, for the clerk is not authorised to permit the original bond to be taken from his office, except by some order of court, but here the suit was in the same county, and probably the record was in the same building where the court was sitting. We think this exception unavailable.
3. With respect to the demand as having been made by a different attorney from the one of record, it is insisted, that under the statute, the appointment of the agent should either have been indorsed on the execution or made in writing. The statute referred to, [Digest, 174 § 75] is an enactment for the benefit and relief of sheriffs where the plain tiff is a non resident of the county. The proof here is silent as to the evidence, therefore the question is not raised upon the record; but if it was, the facts would seem to authorise the inference that the sheriff himself was satisfied with the evidence of agency. Such being the case, he ought not to be permitted to defend a motion on the ground that the appointment of the agent making the demand, was not in writing, when he had dealt with him as authorised, either by paying a *211part, or in any other manner recognizing the agency. [Braley v. Stout, Ingoldby & Co. MSS. June T. 1842.]
4. The sheriff is not the proper authority to judge whether one execution can be set-off against another, or whether a sum collected in one suit shall be appropriated to the satisfaction of another. How far such an appropriation, before notice of any conflicting interest in another would create, or relieve the officer from liability, need not now be examined, as there is nothing to show that such an appropriation was made.
5. The fact that the entire interest in the execution had been assigned by the plaintiff to another, is no defence to this motion. As we have no statute prescribing a mode by which the assignee of a judgment may become a party to the record, it would seem to follow that every proceeding subsequent to the judgment, must be carried on in the name of the party, although the beneficial interest in the recovery is transferred to another.
Our conclusion on the whole case is, that the judgment must be affirmed.