This case is submitted together with that of Alston i\ Falconer, in which an opinion has just been deliv-erecl. The statement of facts is made in that case, to which reference is made.
After Ealconer had been put in possession of the tax books by virtue of the mandamus granted by the Circuit ■Court, and had proceeded to act as collector, Elsey filed his .complaint in this case, relying upon his commission, and the filing of his bond, and setting up all the facts. He claimed that Falconer usurped the office, and prayed for his own reinstatement, and for judgment agaiust Falconer for such amount of fees, emoluments and perquisites as he had received. Falconer demurred and the demurrer was sustained. Elsey rested and appealed.
This was erroneous upon the principle decided in the other case. The demurrer should have been overruled.
Reverse and remand with the usual directions.