¶1 If the facts were as alleged by the plaintiff, oí-as found by the jury, the plaintiff is not entitled to recover. *381 If the defendant, as deputy sheriff, had executions in his hands against the plaintiff, to the amount of $420, he was ■entitled to collect the amount out of the plaintiff, and it was the duty of the plaintiff to pay it, and the moment he did pay it, it was in contemplation of law applied to the satisfaction of the executions.
¶2 When the plaintiffs in the executions attempted, as they have done, to renew the executions against the present plaintiff it was his right to rely upon the payment to the sheriff: and he may do so now, if by his laches he has not lost the opoor-tunity.
¶3 We observe that the facts in the case were not submitted to the jury, either for their general or special verdict, but only certain issues which were not necessarily decisive of the ■case, and upon the finding of the jury upon these issues, his Honor gave judgment for the plaintiff. The practice is new, and irregular: C. C. P. sec. 233.
¶4 There is error.
¶5 Per Curiam. Venire de novo.