The opinion of the court was delivered by
Royce, J.It is not claimed but that the defendant at the time he received the execution as constable in favor of Smith against the plaintiff, was legally qualified to execute it. Neither is it claimed that at the time he made demand on the treasurer for the amount, that he had any interest in the execution. But the plaintiff bases his right of recovery upon the claim made that, subsequent to said demand, before payment of the execution, the defendant became the owner of the execution, and hence was incapacitated from demanding and recovering fees for its collection.
We do not think the facts found warrant any such assumption. No express contract of sale was shown, and no such facts as would ■ justify the finding of an implied contract. When the defendant advanced the money to Smith, Smith became his debtor for the amount. The defendant testified that when the money was paid by the town upon the execution, it-was to be, and was, his, and that whatever there was coming on the execution, would belong to him. By this we should understand that he acquired the right to retain and apply whatever sum he might receive on the execution, in payment of the money so advanced to Smith. His right to re-payment from Smith, was not dependent upon the collection *552of the execution, and if that had failed of collection, Smith would still have been liable ; and, for aught that appears, it was a matter of indifference to the defendant, whether the execution was collected or not. The interest that disqualifies an officer must be a legal interest, and no such interest is shown.
Judgment affirmed.