
    SMITH, ADMINISTRATOR, v. THOMAS ET AL.
    Jackson,
    September Term, 1876.
    3. PLEADING. Action on officer’s bond in the name of state for use of person aggrieved.
    A suit against an officer for the insufficient return of an execution should be brought in the name of the state for the use of the plaintiff in the execution.
    2. SAME. Same. Amendment should be allowed, and supreme court will remand for amendment, when.
    But if such suit is brought in the name of the party aggrieved, the court should permit an amendment so as to make, the suit in the name of the state for the use. of such party, and upon reversing the case for such a formal defect, the. supreme court will remand the case for such amendment and further proceedings.
    Cited and construed: Code (3 858), secs. 2875, 4175; Shannon's Code, secs. 4595, 5987.
   Sxhkd, J.,

delivered tbe opinion of the court.

This was an action on the bond of one Goodloe, as constable of Gibson county, for an insufficient return of an execution placed in Ms hands. The action is against the sureties on the bond, and the warrant issued by a justice of the peace is in the name of the plaintiff in the execution. Upon appeal to the circuit court, the case was tried by the court without a jury, and the record shows that His Honor, on motion, quashed the warrant on the ground that no sufficient cause of action was stated therein. The warrant on its face is a good warrant in debt, but no recovery could be had under it upon the officer’s bond. The bond could not be evidence under the warrant, as it is payable to the state. The suit ought to have been brought in the name of the state for the use of the plaintiff in the execution, and the court should have permitted an amendment to that effect. Code, secs. 2875, 4175 (Shannon’s Code, secs. 45-95, 5987.) The other questions presented do not arise in the case now.

Reverse the judgment, and remand the case for amendment of the warrant and further proceedings.  