I concur- in sustaining the defendant’s exceptions and in ordering a new trial, but solely upon the ground that a question of fact was presented for the consideration of the jury as to whether or not the plaintiff was informed by the defendant or knew that the execution upon which he collected the money was for the same fund which had been attached and for which he then held an execution in favor of the plaintiff in the attachment action.
The execution commanded the sheriff generally to collect the sum of $5,000 out of the personal property of the defendant, and not to collect a particular fund, and I think that he was neither required to examine the judgment nor chargeable with knowledge that it related to a particular indebtedness or fund. The defendant, however, gave evidence tending to show that he informed the deputy sheriff, to whom he paid the money, that the same fund was involved in both actions. This was controverted by the testimony of the deputy sheriff. A *589question of fact was thus presented. The defendant should have refused to satisfy the execution or have had it stayed upon the ground that he held the fund subject to the warrant of attachment and the execution in that action, or, on paying the money to the deputy sheriff, he should have so notified him and should not have accepted a receipt reciting that the payment was made to the deputy sheriff on account of the execution upon which he did not wish to have it applied.
Exceptions sustained, new trial ordered, costs to defendant to abide event. Order to he settled on notice.