The opinion
Leonard, J.
In this case issues have been joined, and the court at the trial nonsuited the relator, who took an exception to the decision. There is no evidence before the court, and no fact found upon which it can be ascertained, whether the judge who made the decision was right or wrong. There is a memorandum in the case that the court nonsuited the relator on the ground that his acceptance of an appointment of inspector in the custom house, and taking the oath of office, was a resignation, by implication, of the office of policeman.
The issues were brought before the circuit for the purpose of finding what the facts were, but this duty has' been wholly omitted. In my opinion the case must be sent back to the circuit for trial.
If it be true that the relator accepted another office, and entered on the performance of new duties, under the general government, which would prevent him from performing his duties as a policeman, and that he did so before the board of police refused to permit him to exercise the powers and duties of a policeman under their authority, then, in my opinion, his application will be denied whenever such facts are proved.
He was not bound to refuse other employment, and remain idle, in case the board of police unlawfully refused to permit him to perform his duties as a policeman under them.
If he is otherwise entitled to be restored to office, he may *552 still, when the impediment is removed, resign his office under the general government, and resume his duties as a member of the new police.