670

MANDAMUS. [ART. 67.
why a writ of mandamus should not issue as prayed, a copy of

Service.

which rule shall be served upon such defendant by a day to be therein
limited.

Id s 3
1858, c 285, s 3
Answer of de-
fendant
42 Md 203

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

Id s 4
1858, c 285, s 3
On second ap-
plication, what
not allowed by
way of defence

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

Id s 5
1828, c 78,
1858, c 286, s 4
Petitioner to
plead to or
traverse, and
defendant to
take issue or
demur
Further pro-
ceedings.

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 there-
after, 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.

Id s 6.
1858, c. 285, s 4
Trial of issue

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.

ld s 7
1858, c. 285, s 4
Damages for
petitioner.
27 Md 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

Id s 8
1858, c 285, s 4
Where judg-
ment for de-
fendant

thereupon without delay against the defendant.
8. If judgment shall be given for the defendant, he shall recover
his costs of suit, to be levied in manner aforesaid

Id s 9
1858, c 285, s 5.
Proceedings, if
defendant fail
to answer
42 Md 203

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 motion ex parte, within five da3's thereafter, and if he shall be
of the opinion that the facts and law of the case authorize the grant-
ing of a mandamus as prayed, he shall thereupon, without delay,
order a peremptory mandamus to issue, and shall also adjudge to the
petitioner his costs of suit.

Id s 10
1858, c 285, s. 5.
Dismissal of
petition
42 Md 203.

10. If the judge shall, upon such ex parte hearing, be of opin-
ion that the facts and law of the case do not authorize the granting
of a mandamus, he shall dismiss such petition with costs.