ART. 60] MANDAMUS. 1439

The essential nature of mandamus and Its force and effect were not
changed by the act of 1858, ch. 285; purpose of that act. When the writ
of mandamus issues, it cannot be restrained by injunction. Weber v. Zim-
merman. 23 Md. 53; Cf. Weber v. Zimmerman, 22 Md. 167.

The failure of the petitioner to file exhibits is waived by an answer not
objecting on that score. Petition held sufficient. Brooke v. Widdicombe.
39 Md. 399.

As to summons with claim for mandamus, see art. 75, sec. 125, et scq.

1904, art 60, sec. 2. 1888, art. 60, sec. 2. 1860. art. 59, sec. 2. 1858, ch. 285, sec. 2.

2. Upon the filing of such petition the court or judge to whom the
same is addressed shall lay a rule requiring the defendant therein
named to show cause within such time as the court or judge may deem
proper why a writ of mandamus should not issue as prayed, a copy
of which rule shall be served upon such defendant by a day to be
therein limited.

Cited but not construed in Frederick County v. Font, 110 Md. 169.

Ibid. sec. 3. 1888, art. 60, sec. 3. 1860, art. 59. sec. 3. 1858, ch. 285, sec. 3.

3. The defendant, by the day named in such order, shall file an
answer to such petition, fully setting forth all the defenses upon which
he intends to rely in resisting such application, which shall be verified
by his affidavit.

A demurrer to the answer does not admit the facts set out in the petition
so as to avoid the necessity of proof. Beasley v. Ridout, 94 Md. 649; Sudler
v. Lankford, 82 Md. 148; contra, if the facts are admitted, and only matters
of law are raised. Hooper v. New, 85 Md. 586.

If the answer sets up any good defense, it should not be quashed because
it is in other respects evasive or Irresponsive. Legg v. Annapolis, 42 Md. 222.
An answer held insufficient under this section. Creager v. Hooper, 83
Md. 503.

See notes to sections 5 and 9.

Ibid. sec. 4. 1888, art. 60, sec. 4. 1860, art. 59, sec. 4. 1858, ch. 285, sec. 3.

4. No defendant shall be allowed on a second application for a
mandamus to rely upon any matter by way of defense thereto which he
might have relied on in his answer to a previous application for a
mandamus by the same petitioner.

This section held to have no application, because the defense could not
have been relied upon in the previous case. Frederick County v. Font.
110 Md. 170.

Ibid. sec. 5. 1888. art. 60, sec. 5. 1860, art. 59, sec. 5. 1828. ch. 78.
1858, ch. 285, sec. 4.

5. The petitioner may plead to or traverse all and any of the
material averments set forth in said answer and the defendant shall
take issue or demur to said plea or traverse within five days thereafter;
and such further proceedings shall thereupon be had in the premises
for the determination thereof as if the petitioner had brought an action
on the case for a false return.

Although this section does not in terms authorize a demurrer to an
answer, such practice has been sanctioned. Frederick County v. Fout, 110
Md. 160; Barney v. State, 42 Md. 489; Hardcastle v. Maryland & Delaware
R. R. Co., 32 Md. 34.