The judgment of the court was pronounced by

This action is for damages alleged to have been sustained by ihe plaintiff, in consequence of the sale of plaintiff’s property seized under a fi. fa., which it is averred was Wrongfully issued, pending an appeal, on a judgment obtained by Prendergast against Gi'einer, the present plaintiff. The defendant pleaded the general issue, and prescription.

*377That the fieri facias was illegally taken out results from the decision of ihe Supreme Court in Greiner v. Prendergast, 2 Rob. 235. Nor was the issuing of the execution, under which the sale was made, expressly authorized by an order of the District Cou-vt.

The plea of prescription was properly disregarded by the court below. The defendant Was absent from the State. Although-there was a debt due to Prendergast by Greiner which might have been attached for an ordinary indebtedness, and even if it be conceded that the existence of attachable property within the State would form an exception to the rule Contra non valentem, &c., yet the exception would not apply in the present case. Greiner's claim is for damages ex delicto. An attachment will not lie in such a case. Prewitt v. Carmichael, 2 Ann. R. p. 943.

We think the injury sustained was less than was assessed by the court below; and that, under the evidence, an allowance of $360 would be ample.

Judgment reversed, and judgment for plaintiff for $360, and costs in tho court below; those of this appeal to be paid by the plaintiff.