(dissenting.) —I cannot concur in the foregoing opinion. A bill in equity is not a proper remedy to try the right to a public office. Besides, the probate judge had power to declare the office of sheriff vacant, under the *530facts stated in the pleadings. That power he exercised, and it is presumed rightfully, — conclusively so presumed, until his action shall be reversed by a superior tribunal.
Apart from this consideration, the case presents the anomaly of continuing in office a sheriff, without an official bond, for the protection of the public and of the citizen, having large pecuniary interests dependent on his fidelity and promptness. Eor the court is compelled to the ’concession, that the proceedings before the probate judge had the effect to release or discharge the sureties of the complainant as sheriff. It cannot be that, in legal contemplation, an individual right to a public office is superior to the right of the public to security against his mal-feasance or non-feasance.