2522 ARTICLE 60

be restrained by injunction. Weber v. Zimmerman, 23 Md. 53; Cf. Weber v. Zim-
merman, 22 Md. 167.

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

Cited but not construed in Baltimore v. Libowitz, 159 Md. 34.

See art. 5, secs. 3 and 48.

As to summons with claim .for mandamus, see art. 75, sec. 134; et seq.

An. Code, 1024, sec. 2. 1912, sec. 2. 1904, sec. 2. 1888, 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. Fout, 110 Md. 169.

See notes to sec. 5.

An. Code, 1924, sec. 3. 1912, sec. 3. 1904, sec. 3. 1888, 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.

Inasmuch as City Charter provides that City Council shall judge qualifications of
its members, subject to appeal to city court, mandamus to test qualification of mem-
ber does not lie. Effect of demurrer and overruling same. West v. Musgrave, 154
Md. 43.

Mandamus must issue as prayed or not at all; not issued if nugatory. Answer must
state positive and definite facts; if answer indefinite and uncertain, relief will be granted.
Sinking Fund. Pennington v. Gilbert, 148 Md. 653.

A demurrer to answer does not admit facts set out in petition so as to avoid 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 secs. 5 and 9.

An. Code, 1924, sec. 4. 1912, sec. 4. 1904, sec. 4. 1888, sec. 4. 1858, ch. 285, sec. 3.

4. No defendant shall be allowed on a second application for a man-
damus 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.

Cited but not construed in Baltimore v. Libowitz, 159 Md. 34.

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

An. Code, 1924, sec. 5. 1912, sec. 5. 1904, sec. 5. 1888, 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.

The filing of a demurrer to answer to petition for mandamus and entry of final
judgment on such demurrer in favor of defendant, without giving petitioner an op-
portunity to plead over, upheld. Property seized for use as evidence in a. criminal case
may not be replevied by owners. Good v. Police Commrs., 137 Md. 198.
¹ 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.