The opinion of the court was delivered by Collamer, J. It seems that this suit was prosecuted in the name of the present plaintiff, not for his benefit, but|for whom it may concern. The defendant concedes the collection of the execution, and shows a payment in part to Spooner by order of the plaintiff. In relation to the balance, the defendant is in default, and his tender, made after suit and in term time, is entirely useless.

It is however insisted, that judgment should be against the defendant for the whole execution on the ground that the trustee process served on the attorney, Kellogg, who had the demand belongs ing to Spooner in the name of Hitchcock against Quinton and Church, in collection, and of which notice was given to the defendant’s deputy, Pond, reached this demand, and stopped the money in the sheriff’s hands, and therefore the subsequent payment to Spooner was in the sheriff’s own wrong, andoughtnot to avail him* If that trustee process covered the present claim, then perhaps, the plaintiff might recover; but if it does not, then, clearly, the payment to Spooner, was right as it was one he could have enforced at law.

Spooner was the true owner of this debt, — who was trustee of it to him ? The debtor in execution, until he paid, then the officer who had the money. The person wh.o merely holds the security, the attorney who has the demand in collection,but has not received the money, is not trustee. This question is fully considered and decided in the case Sargent vs. Lealand, 2 Vt. R. 277, and is conclusive of this question. Neither the officer or the execution debtor were made parties to that trustee process, and of course this debt was not reached by that process ;0 therefore, the payment to Spooner was legally made.

Ormsbee for plaintiff. Moyce and Strong for defendant. As we consider this action cannot be sustained against the defendant for.-that part of the execution which he paid to Spooner, let the evidence of the facts insisted on, come from what quarter they may, it becomes unnecessary to decide on the question of the witness’s interest or admissibility. The judgment below, having been rendered against the defendant for the whole execution is erroneous, therefore, Judgment reversed. Judgment rendered for the balance of the execution not paid to Spooner.