Lawrence a. Jones.

The plaintiffs showed, in opposition, the lapse of time, which sufficiently appears by the foregoing dates, and the additional fact, that between the date of the service of the summons and the issue of the execution, defendant had confessed three judgments, amounting to $4,457.95. Mr. Justice Ingraham denied the motion to vacate the attachment, and the defendant appealed.

Henry M. Hyde, for the appellant.-I. It is claimed that the defendant was not a non-resident, within the following decisions: Lee a. Stanley (9 How. Pr., 272); Hurlbert a. Seeley (11 Ib., 507).

II. The motion may be made after judgment. 1. The statute contains no restriction as to the time within which the motion may be made. (Code, § 241.) The judgment does not determine the right to satisfaction out of the specific property levied upon by the attachment, but only the right to satisfaction generally. It does not determine the right to issue or maintain an attachment. The force of the attachment is affected by the judgment, only so far as seizures are concerned. The attached property is held by the writ after judgment, and is sold (not seized) by the execution. (McKay a. Harrower, 27 Barb., 463, 469.) The execution is a special one, directing the sale of the attached property in the first instance. (S. C., 470.) If the attachment be set aside, the execution would fall with it, and the plaintiff remitted to the usual facilities of procuring satisfaction. Under an attachment before judgment, the whole property, choses in action, and interests of a defendant may be seized. And the attachment may be issued at any time-a single day before judgment. This proceeding is unwarranted as against an honest, resident debtor. Yet, if instituted five days before judgment, he is without remedy, even though it work his utter ruin, unless he may make the motion after judgment.

Henry Brewster, for the respondents.-I. The defendant was a non-resident. (Houghton a. Ault, 16 How. Pr., 77; Douglas a. Mayor, &c., of N. Y., 2 Duer, 110; Heidenback a. Schland, 10 How. Pr., 477; Crawford a. Wilson, 4 Barb., 504, 518; Matter of Thompson, 1 Wend., 43; Pooler a. Maples, Ib., 65;

Lawrence a. Jones.

Frost a. Brisbin, 19 lb., 11; Haggart a. Morgan, 5 N. Y., 422.) In Hurlbert a. Seeley (11 How. Pr., 507), the court were divided in opinion; and it is to be noticed that there defendant's absence was with the consent and approval of his creditors. (See, also, 8 Wend., 140; 5 Sandf., 47.)

II. This motion came too late. There was inexcusable laches. No excuse for delay is offered. We suppose the motion must be made before judgment. By Code (§ 227), the property may be attached, as a security for the satisfaction of such judgment as the plaintiff may recover. Section 232 directs the sheriff to keep the property or proceeds, to answer any judgment, &c. Section 237, when an execution shall have been issued on such judgment, the sheriff shall sell so much of the attached property as may be necessary, &c. Section 241 provides for an application to discharge the attachment by bond, and also says, the defendant may move to discharge attachment, as in the case of other provisional remedies. On injunction, the motion must be before trial (§ 225). Motion to discharge arrest must be before judgment (§ 204). In claim and delivery, the different proceedings justifying bail, rebonding, &c., must all be before delivery of the property. The attachment was spent or superseded by the execution. (Spencer a. Rogers' Locomotive Works, 13 Abbotts' Pr., 180; Scheib a. Baldwin, Ib., 469; S. C., 22 How. Pr., 278.) "The judgment confirms the lien of the attachment." (Syracuse City Bank a. Coville, 19 How. Pr., 385.) Goods seized are in place of bail for the debt. (Пb., 391.) We also refer to Taylor a. Caryl (20 How. U. S., 584; 24 Ib., 450). See, also, Barker a. Wheeler (14 Abbotts' Pr., 70).

BY THE COURT.*-PECKHAM, J.-The defendant in this case has been guilty of laches in making his motion, and the delay is in no manner explained.

The attachment was issued July 2. The execution issued on the 5th of September. This motion was not noticed until the 25th of September, for the first Monday of October. The defendant seems to have employed the intermediate time in confessing judgments; and when he had sufficiently and satisfactorily disposed of his property, he makes this motion.

* Present, INGRAHAM, P. J., LEONARD and PECKHAM, JJ.

Daguerre a. Orser.

The motion is founded upon an alleged irregularity, viz.: that the plaintiff obtained an attachment on the ground, as stated by him, that the defendant was a non-resident in the State; when, in fact, the defendant was not a non-resident, but had been temporarily absent on business; that he was, and had been for years, a resident of Steuben county, where his family had, in fact, resided during his absence on business of about ten months. The rule in cases of mere irregularity requires the party to move at the first opportunity, or show an excuse for not doing so.

Where the merits are involved, the rule is not applied with so much rigor.

Here the plaintiff may be injured by the issuing of other executions. Where the party proceeds by attachment, he must first sell the attached property. His execution is peculiar. (Code, § 237; 27 Barb., 463.)

Whether the defendant was a non-resident within the meaning of the statute on this subject, it is not necessary to determine. His delay in moving defeats the motion. The order ap pealed from, denying the motion to set aside the attachment, is, therefore, affirmed, with $10 costs of the appeal.

INGRAHAM, P. J., and LEONARD, J., concurred.

DAGUERRE a. ORSER.

New York Common Pleas; General Term, June, 1862.

ESCAPE.-MEASURE OF DAMAGES.

The Code has not abolished the remedy by action against the sheriff for an escape.

Where the action is against the sheriff for an escape, and not against him as bail, the measure of damages is the actual loss or injury sustained by the plaintiff.

Appeal from a judgment.

VOL. XV.-8

Daguerre a. Orser.

This was an action brought by Elizabeth Daguerre, executrix, &c., against John Orser, late a sheriff of the city and county of New York, to recover from him damages for the escape of Benjamin Blagge, against whom the plaintiff had obtained an order of arrest, and who escaped from the custody of the sheriff under that order. It was shown at the trial that Blagge was insolvent, and so continued till the time of his death. The court gave judgment for nominal damages (see our report of the case, 10 Abbotts' Pr., 12, note), and the plaintiff appealed to the general term.

Judah & Dickinson, for plaintiff.

Brown, Hall & Vanderpoel, for defendant.

BY THE COURT.-DALY, F. J.-The Code has not abolished the action against the sheriff for an escape. It is still an existing remedy, if the plaintiff thinks proper to resort to it. An examination of the complaint shows that the action here is brought for an escape, and not against the sheriff as bail; and, in such an action, the measure of damages is the actual loss or injury sustained by the plaintiff. It was shown that, when final process was issued, the defendant Blagge had no property. It was issued on the 4th of November, 1854. His son was with him from March, 1853, until the 27th of November, 1855, when he died. And the son proved that, during that time, he was living at New Orleans, acting as the agent of others, having no property of his own, and that he died insolvent. Upon the proof, all that could be recovered was nominal damages. (Patterson a. Westervelt, 17 Wend., 543.)

The judgment must be affirmed.

People on rel. Baldwin and Jaycox a. Haws.

PEOPLE on rel. BALDWIN AND JAYCOX a. HAWS.

Supreme Court, First District; General Term, June, 1862. MANDAMUS.-NEW YORK CITY CHARTER.-CONSTITUTIONAL LAW. -DUE PROCESS OF LAW.

A claim against the city of New York, arising out of an alleged contract for work upon the Croton aqueduct, is a claim not against the county or the supervisors, but against the Corporation of the city, who are regarded as the owners of the aqueduct.

Although the Legislature have authority to impose a tax general or local for the purpose of paying any claim, they cannot direct a municipal corporation to pay a claim for damages for breach of a contract out of the funds or property of such corporation, without allowing a submission of such claims to a judicial tribunal.

The provisions of the Constitution of this State-declaring that no member of the State shall be deprived of any of the rights secured to a citizen, unless by the law of the land; and that no person shall be deprived of life, liberty, or property, without due process of law (Const., §§ 1, 6)-secure municipal corporations, as well as persons, from being deprived of any of their rights, unless the matter is adjudged against them upon a trial in due course of law; and an act of the Legislature referring it to arbitrators to determine the amount of damages sustained in a case in which at common law the defendants would be entitled to a trial by jury, is unconstitutional.

After an award, by such arbitrators, in favor of the claimant, a mandamus should not be allowed to compel the comptroller to pay its amount.

A statute having been enacted, directing a demand against the Corporation of the city, to be ascertained by arbitration, and directing the comptroller to pay it when so ascertained,-Held, that a mandamus would not lie to compel him to pay it when thus ascertained, until money had been raised therefor, or an appropriation made out of moneys applicable thereto.

Distinction between the cases of a mandamus against a board of supervisors and against a municipal corporation.

Appeal from an order denying an application for a manda

mus.

The relators were the lowest bidders for constructing the gate-houses of the new Croton reservoir. The Croton Aqueduct Board awarded the contract therefor to them, subject to confirmation by the Common Council. The Common Council refused to confirm the award, but gave the contract to other bidders.