The ground on which the legality of the respondent’s commission is impugned, is that the office was not vacant when he was appointed to fill it; and consequently that his commission is void. But that material fact is conceded by the relator’s demurrer to the respondent’s first plea, in which the existence of the vacancy is explicitly averred. Had the relator desired to draw into question the legality of his own expulsion from office, on which the question of vacancy depended, he might have done it more directly and less tardily by a mandamus, which would have brought the facts of his case more immediately into view, and have afforded him a remedy which the present proceeding would not. At all events, the legality of the respondent’s commission sufficiently appears in the pleadings before us; and he is entitled to judgment in his favour.

Demurrer overruled.