All the facts deemed necessary to the understanding and decision of this case arc, that the appellant having a judgment, before a justice of the peace, placed an.execution in the hands of the appellee (who was constable)! on the 39th of August, 1843. The execution was returnable ivithin sixty days, and was returned “not served for want of health” on the 1st of November following.
The appellant had judgment before tho justice, under the notice and motion which was authorized by the Sth section of tho statute then and yet in existence respecting Constables. Upon appeal to the Circuit Court, it was proven that the defendant was in bad health whilst the execution was in his hands, being confined to bed a portion of the time; and that about the time of tho return of the execution, it was deemed hazardous for him to he out. It was further proven that during the time covered by tho issuing and return of the execution, the defendant (in the execution) had no property in possession upon which it could have been levied. The Circuit Court gave judgment for the defendant, and the plaintiff has brought the case here by appeal.
We thinls the judgment should have been the other way. When a party is driven to the law, he is entitled to all the right it confers upon him. One of those rights in this instance, was that the plaintiff should have his execution returned within sixty dajrs. This was not done, and the ambiguous indorsement, and no less ambiguous testimony, that it was not done “for want of health,” cannot be received as an excuse, especially by an officer for whom the law provides so facile a method of appointing deputies. Whether by reason of the debt having been assigned to the plaintiff in the execution or otherwise, he was an actual "loser in consequence of the neglect of the constable, is not for us to inquire in the face of a legislative exposition of the rights and duties of the parties. The judgment of the Circuit Court must, therefore,- he reversed and the cause remanded.(a)
(a) See Bennett v. Vinyard, 34 Mo. R. 216. But constable may, if sued for failing-to return, an execution before a justice, amend his return, although suit lias commenced — Corby v. Barnes, 36 Mo. R. 194.