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940 9 ANN. CAP. 20, MANDAMUS. by the same petitioner. The petitioner may plead to or traverse all the material averments in the answer (consequently a traverse of an imma- terial allegation would seem to be bad, though quere, as the defendant, for his own protection, must set out his whole case), and the defendant mast then take issue or demur to the plea or traverse within five days, and such further proceeding's shall thereupon be had as if the petitioner had brought an action on the case for a false return. If issue be joined, it must be tried by a jury, unless by the agreement of parties, appearing upon the record, that it may be tried by the Court, Eichelberger v. Sifford, 27 Md. 321,'1 and in case of a verdict for the petitioner or a determination in his favor by the Court, or judgment for him upon demurrer or for want of plea, he shall recover his damages and costs as he might have done in an action on the case for a false return, to be levied by attachment or execution, and thereupon a peremptory mandamus shall issue. If the judgment be the other way, the defendant recovers his costs. If the de- fendant do not file his answer in time, the Court is to hear the application ex parte at a short day, and if it be of opinion that the facts and law of the case authorize the granting of a mandamus, a peremptory manda- mus shall be ordered to issue, with costs. Otherwise the petition is to be dismissed with costs. It is held, in construction of these provisions, that the essential nature of the writ or the remedy is not altered by them. Mandamus is still a prerogative writ, not demandable ex debito justitive, but granted, at all times, in the sound discretion of the Court.5 Hence the provision of the Code that upon verdict, &c., for the petitioner a peremptory mandamus shall issue, &c., is not to be understood as taking away the discretion of the Court still to refuse the writ, if, for sufficient legal cause, it shall appear to the Court that it ought not to issue. On the other hand, it has, when issued, the same force and effect as the peremptory writ at common law. The defendant cannot disobey it for any cause or reason •which might have been urged in resisting the application for it. It can- not be stayed by injunction. And, ordinarily, no return except a certifi- cate of obedience will be accepted. However, it may be quashed or set aside if bad in substance on its face, or if it have prematurely, or im- properly, or unnecessarily issued, or if it be impossible or illegal to obey it, Weber v. Zimmerman, 23 Md. 45; see S. C. 22 Md. 156. The answer of the defendant may rely upon matter of fact and matter of law together, and it is held that the petitioner must take issue or demur to such defences, Eichelberger v. Sifford supra.; but it will be observed that the language of the Code, like that of the Stat. of Anne, does not authorize the petitioner 4 Upshur v. Baltimore, 94 Md. 760; Wailes v. Smith, 76 Md. 484; 157 V. S. 271. As to the defense of limitations in a mandamus proceeding, see Georges Creek Co. v. Alleghany Co., 59 Md. 255. '•Hardcastle v. R. R. Co., 32 Md. 35; Pumphrey v. Baltimore, 47 Md. 145; Gross v. Baltimore, 111 Md. 543. But where the question involved concerns the passage or existence of a municipal ordinance, it should be tried by the court alone. Creager v. Hooper, 83 Md. 504. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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