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Alexander's British statutes in force in Maryland. 2d ed., 1912
Volume 194, Page 941   View pdf image (33K)
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9 ANN. CAP. 20, MANDAMUS. 941
to demur e to the answer; and* in construction of the Stat. of Anne 697
it was determined that the prosecutor could not demur to the return. It
seems from the same case, that an answer relying upon matter of law will
be treated as in the nature of a demurrer to the petition;7 and the Court
there actually assumed a matter of fact, as not being denied, and gave
judgment accordingly.
6 But the established practice in Maryland is that a demurrer may be
filed to the answer, or any subsequent pleading, or any part of them. Hard-
castle v. R. R. Co., 32 Md. 32; Barney v. State, 42 Md. 489; Frederick
Co. v. Fout, 110 Md. 169; Anne Arundel Co. v. Sugar Co., 99 Md. 481;
Hooper v. New, 85 Md. 566; Creager v. Hooper, 83 Md. 490; Field v.
Malster, 88 Md. 694; Devin v. Belt, 70 Md. 352; Jackson v. Hopkins, 113
Md. 557; Hummelshime v. Hirsch, 114 Md. 39; Cull v. Wheltle, 114 Md.
77; Semmes v. Rowland, 114 Md. 266, 267.
7 Curlander v. King, 112 Md. 523; Upshur v. Baltimore, 94 Md. 760;
Prince George's Co. v. Bladensburg, 51 Md. 467.
And a demurrer may be filed directly to the petition. Gross v. Balti-
more, 111 Md. 543; Wight v. Heublein, 111 Md. 652; Agricultural College
v. Atkinson, 102 Md. 557; Beasley v. Ridout, 94 Md. 641; Duvall v. Swann,
94 Md. 620; Pumphrey v. Baltimore, 47 Md. 147.
Before ordering a •mandamus, however, the court must be satisfied of
the truth of the allegations of the petition, whether the hearing is on
general demurrer to the petition, or on petition and answer, or merely ex
parte. The facts may be established by an answer admitting them, but
they cannot be established by an answer which neither admits nor denies
them, or by a demurrer to the petition, since a demurrer has no such
effect in a mandamus proceeding. Worcester Co. v. School Comrs., 113
Md. 314; Upshur v. Baltimore, 94 Md. 760; Beasley v. Ridout, 94 Md. 641;
Hooper v. New, 85 Md. 586; Creager v. Hooper, 83 Md. 504; Sudler v.
Lankford, 82 Md. 142; Legg v- Annapolis, 42 Md. 222.
The writ of mandamus abates when performance by the defendant of
the personal duty ordered becomes impossible by his death, or retirement
from office. U. S. v. Boutwell, 17 Wall. 604.

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Alexander's British statutes in force in Maryland. 2d ed., 1912
Volume 194, Page 941   View pdf image (33K)
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