MANDAMUS. 2121

Although this section does not in terms authorize a demurrer to an answer, such
practice has been sanctioned. Frederick County v. Fout, 110 Md. 169; Barney v.
State, 42 Md. 489; Hardcastle v. Maryland & Delaware R. R. Co., 32 Md. 34.

It is incumbent upon the petitioner either to take issue or demur. Eichelberger 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.

An. Code, sec. 6. 1904, sec. 6. 1888, 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.

An. Code, sec. 7. 1904, sec. 7. 1888, 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 thereupon 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 absence of an agreement of parties, issues of fact must be passed upon by a jury.
Eichelberger v. Sifford, 27 Md. 329; Upshur v. Baltimore, 94 Md. 760. Cf. 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 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 but not construed in Weber v. Zimmerman, 23 Md. 53.

See sec. 11.

An. Code, sec. 8. 1901, sec. 8. 1888, sec. 8. 1858, 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.

An. Code, sec. 9. 1904, sec. 9. 1888, 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