#### David Hunt et al. *v.*E. F. Gaylor et al.

1. After the reversal of a judgment, the court to which the cause has been remanded for further proceedings may, by way of amendment, allow breaches to be assigned on the bond sued on, which were not assigned in the original petition. '

2. In an action against the surviving obligors of an official bond, the personal representatives of the principal are not necessary parties.

Motion for leave to file a petition in error to reverse the judgment of the District Court of Cuyahoga county.

This case has already been before this court and is found ¡reported in 23 Ohio St. 255.

As the case then came before the court, the present plaintiffs in error were the defendants in error. On the application of the then plaintiffs in error, the present defendants in error, the judgments of the courtsJbelow were reversed, .and the cause remanded to the Court of Common Pleas for further proceedings.

On the cause coming back to the Courfof Common Pleas, ■on application of the original plaintiffs, they were allowed, on payment of all the costs made in that court, to file an .amended petition, assigning as a breach of the official bonds -of the justice, his neglect to issue execution as required by law, and setting forth the facts whereby, in consequence of such neglect, the plaintiffs sustained damages to the amount -of their judgment.

The defendants resisted the filing of the amended petition, -on the ground that it introduced into the case a new and •distinct cause of action. -

The suit on the bond was against the sureties alone; but it is admitted by the records that the principal had died insolvent, and that no letters of administration had been '.taken out on his estate.

The trial resulted in a judgment in favor of the plaintiffs

On error, the judgment was reversed by the District *621Court. The present application is made to obtain the reversal of the judgment of the District Court.

*W. J. Boardman,*for the motion:

The Court of Common Pleas properly allowed the amendment. Code, sec. 137; 6 Ohio St. 81; 8 Serg. & R. 444; Ib. 268; *Yost*v. *Ely,*23 Penn. St. 327; *Cox*v. Tilghman, 1 Whar. 287; *Stewart*v. *Kelly,*16 Penn. St. 160; 17 Penn. St. 514; *Smith*v. *Palmer,*6 Cush. 513; *Nash*v. *Adams,*24 Conn. 33; *Spencer*v. *House,*26 Conn. 600; *North v. Nichols,*39 Conn. 355; *Bulkley*v. *Andrews,*39 Conn. 523; *Grafton Bank*v. *White,*17 N. H. 389; *Gaff*v. *Hutchinson,*38 Ind. 341; *Coddington*v. *Mott,*14 N. J. Eq. 430; 19 N. J. 9; 24 Mo. 134; 20 Ohio St. 128; 18 Ohio St. 49; 14 Ohio St. 213; 49 N. J. 163; 4 Duer, 611; 9 Bosw. 163; 67 N. C. 84; 11. How. 168.

By the Court.

We find nothing in the record to justify the reversal of the judgment of the Court of Common Pleas..

1. After the reversal of the original judgment, the Court of Common Pleas, to which the cause had been remanded for further proceedings, was authorized to allow the filing" of the amended petition, assigning a breach in the bond-which had not been assigned, or had been insufficiently assigned, in the original petition.

2. In an action against the surviving obligors of the bond, the personal representatives of the principal are not neces- • sary parties.

Leave granted; judgment of the District Court reversed,, and that of the Court of Common Pleas affirmed.