Fletcher and Rice vs. Joseph Crooker et al., 8 Vt. 314

Royce, J. The plea alleges an interest in] the’’- judgment and execution to their full amount; which is equivalent to an allegation that Josselyn owned the judgment. Perhaps the defendants were not bound to prove an interest in him commensurate] with this averment, but they were certainly required by the plea to show, that to a greater or less extent he had a legal interest in the demand. His liability to the creditors, for neglect on a previous execution, was altogether collateral to the debt, conferring no interest in it, nor any right to control or discharge it.

He doubtless felt an interest that the judgment should be paid, or in some way satisfied or extinguished, by the debtor ; as in that event his own liability for neglect would cease. But if such a collateral interest could affect the legal capacity of the officer to act in the future collection of the debt, (which for one I am not prepared to admit,) still, it is not the interest which the plea alleges. That alleges an interest in the judgment itself, and not a mere liability incidental or collateral to it.

The. defendants offered further to show, that Josselyn, for his own indemnity, procured a second judgment to be recovered in the creditors’ names, and the execution to be issued^ under which he made the commitment. And it is urged, as a necessary intendment from this, that the second judgment was procured at his expense, and that he was consequently interested in it, at least to the amount of the last bill of costs. It is to be remembered, however, that these exceptions stand in the place of a writ of error.

We have to judge of the evidence as it was offered,^without the privilege of adding to, or detracting from it. There'wasjio offer to prove any assignment of the demand to Josselyn,J or ¡any contract with the creditors, by which he bound himself to prosecute and collect it. And although it is to be understood that he was instrumental in instituting a fresh suit against the debtor, and obtaining a second judgment, yet we are not required to suppose that he gained any lien upon the judgment by making disbursements, for'no such fact was stated. The man.ner of his interference is. left to conjecture.

He might, indeed, have conducted the second suit at his .own expence by licence of the creditors, but he might also have influenced the creditors by ynere .entreaty and persuasion, to pursue the debtor, instead of prosecuting him for neglect. As the evidence offered bad no .certain tendency to establish any interest of Josselyn in the judgment or execution, it was properly rejected, Judgment of county court affirmed.