¶1delivered tbe opinion of the court.
¶2This was an action on the bond of one Goodloe, as con*656stable 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.
¶3Reverse the judgment, and remand the case for amendment of the warrant and further proceedings.