delivered the opinion of the court.

On the 6th day of June, 1873, the plaintiff, Connevey, and the defendant, Kingsbury, were partners in business, and as such owned and conducted a printing office, and published thereat, in *261Howard County, Missouri, a newspaper known as the Eayette Democratic Banner.

On the said 6th day of June an execution duly issued by a justice of the peace in said county against said Connevey and Kings-bury, as partners as aforesaid, was placed in the hands of the constable of the township.

On the 27th day of June, 1873, Kingsbury sold and transferred to said Connevey all his interest as partner in said print-' ing office and newspaper, and the property appertaining thereto.

■ On the 14th day of August, 1873, the constable, by virtue of said execution, levied upon a portion of the personal property aforesaid, belonging to the firm of Connevey and Kingsbury, whereupon Connevey claimed the same as his individual property, and the constable, supposing his authority under the statute extended to sueh a case, summoned a jury to try the right of property. The jury found the property levied upon to be the individual property of Connevey, and not the partnership property of Connevey and Kingsbury. The constable then demanded and the defendant, Kingsbury, gave a bond of indemnity with his co-defendant Winn as security, conditioned to indemnify the said constable against any damages he might sustain by reason of the seizure and sale of said property under the execution aforesaid, and also to pay to said Connevey all damages he might sustain by reason of such seizure and sale.

The property levied on was sold by the constable, and Connevey thereupon instituted the present action in the name of the constable, to his use, on the bond aforesaid.

There was a verdict and judgment for the plaintiff for $300, from which defendants have appealed.

The trial of the right of property had by the direction and under the supervision of the constable was wholly unauthorized, and the bond exacted by the constable was equally without authority of law.

The statute provides that when property levied upon by a constable is claimed by notice in writing, as therein provided, by any person other than the defendant in the execution, the constable shall summon a jury to try the right of property and in the *262event the property taken in execution shall he found to belong to such claimant, if the plaintiff will tender a sufficient bond payable to the officer, conditioned to indemnify him against all costs and damages he may sustain in selling the property claimed, and further to pay and satisfy any person or persons, claiming title to such property, all damages they may sustain by reason of such sale, then the constable shall proceed to sell such property under execution.

In the case at bar the claimant was one of the defendants in the execution, and the person giving the bond was his co-defendant.

The property claimed was lawfully subject to execution as the property of both defendants, inasmuch as the execution in the hands of the constable was, by virtue of the statute, a lien upon the property sold at the time Connevey purchased the interest of Kingsbury therein. Being thus subject to execution as the property of both defendants, for all the purposes of the present inquiry, the case stands just as if Kingsbury had never sold to Connevey.

The constable cannot possibly sustain any damage by reason of the disputed ownership, as the property sold by him was clearly subject to the execution in his hands, and Connevey has not sustained any damage in contemplation of law by reason of the execution sale, but only by reason of having purchased and perhaps paid full value for property which was subject to a lien. .And such damage is plainly not within the scope of the bond sued on, even if it could be held valid as a common law bond.. The recitals of the bond show that it was intended to cover any damage which should result to the officer or Connevey, by reason of the property sold not being subject to levy and sale under the execution against Connevey and Kingsbury. For damages resulting from any partial failure of consideration suffered by Connevey in his contract of purchase, his remedy, if he have any, is in a different proceeding.

The point made as to the right of Connevey to claim the property sold as exempt from execution has no pertinency whatever, even if it should be conceded that an execution debtor can select *263partnership property as exempt from levy and sale for the debts of the firm — a proposition which is_denied in some of the States. (Pond vs. Kimball, 101 Mass. 105; Guptil vs. McFee, 9 Kas. 30; Grymes vs. Byrne, 2 Minn. 89.) If the constable failed to do his duty in not notifying Connevey of his right to claim an exemption under the statute, and he was damaged thereby, he has his remedy against the officer by shit on his official bond. Besides, no such breach of the bond sued on was alleged in the petition ; and it does not even appear that Connevey was the head of a family. Indeed it. is quite doubtful whether any sufficient breach was alleged.

The petition, after reciting the facts stated in this opinion, simply alleged that by reason of the levy and sale by the officer, Connevey was damaged. How he was damaged the pleading leaves wholly to conjecture.

The judgment of the circuit court will be reversed;