1440 MANDAMUS. [ART. 60

It is incumbent upon the petitioner either to take issue or demur. Eichel-
berger v. Sifford, 27 Md. 328; Barney v. State, 42 Md. 490.
For a traverse held to be defective, see Harwood v. Marshall, 10 Md. 465.
Cited but not construed in Weber v. Zimmerman, 23 Md. 53.

1904, art. 60, sec. 6. 1888, art. 60, sec. 6. 1860, art. 59, sec. 6. 1858, ch. 285, sec. 4.

6. If issue shall be joined on such proceedings, the same shall stand
for trial on the second day of the next succeeding term of such court (in
case such issue shall be joined in the recess of such court); and if such
issue shall be joined during the session, then the same shall stand for
trial during such term, unless sufficient cause shall be shown to the
court by the party defendant for the continuance thereof, in which case
such issue shall be heard on the second day of the next succeeding term
of such court, unless the parties shall agree upon an earlier day.

Ibid. sec. 7. 1888, art. 60, sec. 7. 1860, art. 59, sec. 7. 1858, ch. 285, sec. 4.

7. Such issue shall be tried by a jury if either party desire it; but
they may be heard or determined by the court if both parties agree;
and in case a verdict shall be found for the petitioner, or if the court
upon hearing determine in favor of the petitioner, or judgment be given
for him upon demurrer or for want of a plea, such petitioner shall there-
upon recover his damages and costs as he might have done in an action
on the case for a false return, to be levied by execution or attachment
and a peremptory writ of mandamus shall be granted thereupon without
delay against the defendant.

In the absence of an agreemnt of the parties, issues of fact must be passed
upon by a jury. Eichelberger v. Sifford, 27 Md. 329; Upshur v. Baltimore,
94 Md. 760. Of. Creager v. Hooper, 83 Md. 504.

The passage and existence or non-existence of a statute or ordinance, are
questions of law and though framed as issues of fact, must be passed on
by the court without a jury- Creager v. Hooper, 83 Md. 504.

A claim for costs and damages is inchoate, and cannot be considered as
personal assets until judgment is entered. Booze v. Humbird, 27 Md. 4.
Cited hut not construed in Weber v. Zimmerman. 23 Md. 53.
See sec. 11.

Ibid. sec. 8. 1888. art. 60, sec. 8. 1860, art. 59, sec. 8. 1S58, ch. 285, sec. 4.
8. If judgment shall be given for the defendant, he shall recover
his costs of suit to be levied in manner aforesaid.

Ibid. sec. 9. 1888, art. 60. sec. 9. 1860, art. 59, sec. 9. 1858, ch. 285, sec. 5.
9. If the defendant shall neglect to file his answer to the petition
by the day named in the order of the judge after being served with
notice thereof, the said judge shall thereupon proceed to hear the said
petition ex parte within five days thereafter, and if he shall be of the
opinion that the facts and law of the case authorize the granting of a
mandamus as prayed, he shall thereupon without delay order a per-
emptory mandamus to issue and shall also adjudge to the petitioner his
costs of suit.