delivered the opinion of the Court as follows ;
The question before us is whether the direction of the Court to the jury was inco2*rect, as to the assessment of nominal dam-, ages, in case they should believe that the defendant had used due diligence, and that the judgment debtor was poor and destitute. On this subject we entertain no doubt. The jury were instructed to, do. justice to the plaintiff by giving him damages equal to the injui’y he had sustained. Pie certainly was entitled to no moi-e. It is urged that this case differs from those where nominal damages have been allowed, because here the execution has not been returned ; and that so the plaintiff has lost the benefit of his judgme2rt a2id cannot collect the amount of the debt-' *93or. It does not appear that the execution has not been returned. The objection therefore has no foundation in fact. It was the plaintiff’s duty to shew that it had not been returned, in order to prove his declaration. Apd it is not so much a matter of surprise that the plaintiff recovered only nominal damages, as that he recovered any. But this point is not before us.
if it should appear hereafter that the officer had actually collected the amount of the execution, it may be recovered in an action for money had and received. There is no pretence for disturbing the verdict. The exception is overruled and the judgment below affirmed.