
    Henry Rose, Respondent, vs. S. H. Cobb, et al., Appellants.
    1. Justice of the peace — Constable, suit against for fees — Form, of action.— Under section 24 (Wagn. Scat.. 845), a justice of the peace may proceed in his own name ngaiflst a constable and his sureties, for fees collected by such constable, and not paid over as required by law; and under \ 26 it is clearly open to such a claimant to proceed in that, way, or institute a suit in amove formal manner upon the constable’s bond; and if the latter course is taken the action must be in the name of the Stale. #
    2. Appeal without merit — Damages.—Where an appeal is without merit, judgment; will be affirmed with ten per cent, damages.
    
      Jlppeal from Jackson County Circuit Court.
    
    
      J. E. Me Cay, for Respondent.
    
      Win. E. Sheffield, for Appellants.
   Sherwood, C. J.,

delivered the opinion of the court.

There is no doubt but that a justice of the peace may, in his own name, under the provisions of section 24 (Wagn. Stat. 845 ), proceed against a constable and his sureties for fees collected by said constable and not paid as required by law.

This is clearly shown by that section, and a subsequent section (26) shows that it is open to a claimant, under the preceding section, to proceed in the manner above indicated, or to institute suit in a moré formal manner on the official bond, and if on the bond the suit must be in the name of the State.

But here the suit is not on the bond, although that is referred to in the complaint as a means of designating the sureties and Claiming a recovery against them as such.'

There is no merit in this appeal, and the judgment is accordingly affirmed, with ten per cent, damages.

All the judges concur.  