The opinion
By the court,
Redfield, Ch. J.
This is an action against the 'defendant, as sheriff of Windsor county, for not keeping property, attached on mesne process, so that execution could be levied upon It. Two questions were made in the court below.
I. In regard to proving the attachment, by oral evidence upon the stand. There is a case in Aiken’s reports, State v. Daggett, 2 Aik. 148 , where an attachment of property, the writ never having been returned, or not showing the attachment, was allowed to be shown, by the testimony of witnesses, in a criminal prosecution for resisting the officer in making the attachment. In the present case, the writ was lost. We see no objection to admitting such proof, in ■case of the loss of the writ, after being returned, more than in a case where no return is made or is defective. We do not perceive ¡any defect in the proof .given of the loss of the writ, or that search was not made in every place where it was reasonable to require such search.
H. The discharge of the execution is relied upon as a full defense of the action. The county court held the plaintiff still entitled to recover nominal damages and costs. The discharge is not shown, and we do not know the date or form of it. As no presumption is to be made against the judgment below, we must suppose the discharge of the execution was during the pendency of this suit. And such a discharge of the execution is nothing more *584 than a payment of the sum due upon note or bond, or the restoration of the property in trespass or trover, which only goes in mitigation of damages. We see no reason why the judgment below should not be affirmed.
Judgment affirmed.