toria, a demurrer may be filed to a return. The American courts, which expressly or impliedly adopted the statute of 9 Anne, departed from the English precedents, and allowed the relator to file a demurrer to the return. Some of the American courts did not regard that statute, which was enacted a hundred years later than the period to which the common law of England, so far as applicable, is generally adopted as authoritative in this country, and they adopted the strict rules of the early English decisions; but it is believed that at present all of the American courts, either by virtue of statute or rule of court, allow a demurrer to be filed to the return. A motion for a peremptory writ on the return has been allowed, but such motion is merely a substitute for a general demurrer,' admitting the truth of the allegations contained in the return, but denying their sufficiency in law. Objections, which are required to be taken by special demurrer, or by motion to strike out, will be disregarded on such a motion. On the argument of such a motion, the relator is entitled to the benefit of all the admissions in the return, but he cannot insist upon facts alleged by him in his pleadings which are not admitted." If any material averment of the petition or alternative writ

1 Barney v. State, 42 Md. 480; Silverthorne v. Warren R. R., 33 N. J. L. 173; New Haven, etc. R. R. v. State, 44 Conn. 376; State v. Ryan, 2 Mo. Ap. 303; State v. Supervisors (Board), 64 Wis. 218.

2 The common law of England is generally accepted as authoritative here, as it existed prior to the fourth year of the reign of James I. (March 23, 1606). The statute of 9 Anne, chapter 20, was enacted in 1710.

3 People v. Baker, 35 Barb. 105; Morgan v. Fleming, 24 W. Va. 186; Phoenix Iron Co. v. Com., 113 Pa. St. 563; Com. v. Allegheny (Com'rs), 32 Pa. St. 218; United States v.

Clark County, 95 U. S. 769; Barney v. State, 42 Md. 480; Vail v. People, 1 Wend. 38; Commercial Bank v. Canal Commissioners, 10 Wend. 25. 4 State v. Newman, 91 Mo. 445; State v. Jacksonville (Mayor), 22 Fla. 21; State v. Marks, 74 Tenn. 12; Ward v. Flood, 48 Cal. 36; People v. Fairman, 91 N. Y. 385; State v. Smith, 104 Mo. 661.

5 People v. Westchester Co. (Supervisors), 73 N. Y. 173; Attala Co. (Board Police) v. Grant, 9 Sm. & Mar. 77; State v. Newman, 91 Mo. 445. 6 People v. San Francisco (Sup'rs), 27 Cal. 655.

7 People v. Pritchard, 19 Mich. 470.

is denied, a peremptory writ will not issue on the pleadings. The overruling of a motion for a peremptory writ of mandamus on the return is ordinarily not a final judg ment, but merely a refusal of the writ till a trial on the merits.? Where a mandamus proceeding is allowed to stand on the petition and answer, or on the petition and answer to show cause, which is equivalent to a motion for a peremptory writ on the return, the allegations of the answer, not being controverted, must be taken as true.

§ 286. Subject continued. The same rules are applicable to a demurrer filed in a mandamus proceeding as when filed in any other legal proceeding. The demurrer to a return confesses the allegations of the return and every material allegation of the writ not denied or confessed and avoided by the return. It also runs back to the first defective pleading, and though the return be defective, yet judgment will be rendered against the party who made the first error in substance in his pleading. When on demurrer a part of the return is found to be bad and a part to be good, the judgment thereon must be for the respondent," but the relator may afterwards have leave to traverse the good part of the return if necessary. A motion for a peremptory writ on the return, being merely a substitute for a general demurrer, is subject to the same rules.

6

§ 287. Amendment of return.— If the motion to quash, or the demurrer to the return, is sustained, the respondent, if he so desires, will under the present practice be allowed to amend his return."

1 People v. Alameda Co. (Sup'rs), 47 Wis. 670; Commercial Bank v. 45 Cal. 395.

2 Booth v. Strippleman, 61 Tex. 378. 3 Aplin v. Midland Co. (Sup'rs), 84 Mich. 121.

4 Farnsworth v. Kalkaska Co., 56 Mich. 640; Murphy v. Reeder T. Treas., 56 Mich. 505.

5 State v. Lean, 9 Wis. 279. "People v. Baker, 35 Barb. 105; People v. Fulton (Sup'rs), 14 Barb. 52; State v. Milwaukee Ch. Com.,

Canal Com'rs, 10 Wend. 25; Morgan v. Fleming, 24 W. Va. 186; Doolittle v. Co. Court, 28 W. Va. 158; People v. McCormick, 106 Ill. 184; People v. Hatch, 33 Ill. 9.

7Q. v. New Windsor (Mayor), 7 A. & E. (N. S.) 908.

8Q. v. North Midland R. R., 11 A. & E. 955; Q. v. Dover (Mayor), 11 A. & E. (N. S.) 260.

9 See § 294.

§ 288. Reply to the return.- In case the demurrer to the return is overruled, the decisions of the American courts are not uniform on the question whether the relator is entitled to put in a reply traversing the allegations of the return. Most of the courts, though the matter is often regulated by statute, allow the relator to put in a reply.1 It has also been held to be discretionary with the court, and that such action should be allowed when justice seems to demand it, but not otherwise. The reply should traverse or confess and avoid the facts set up in the return. Such traverse is only necessary when the return makes an independent averment of facts on which the relator wishes to take issue; if the return is merely a denial of the allegations contained in the petition or writ, no reply is necessary. The traverse to the return must be single, direct and positive. The object of the reply is to enable the relator to traverse or confess and avoid the return, when it, in the first instance, sufficiently answers the writ, and not to repeat material allegations previously made which have been left entirely unanswered. When by statute the pleadings are confined to the writ and the return, all allegations of new matter contained in the return are considered to be traversed. Where the reply is evasive, it may be treated as though it admitted the facts charged.'

§ 289. Reply and subsequent proceedings. The statute of 9 Anne, chapter 20, provided that the return might be traversed and the proceedings should be continued in the same manner as though it were an action for a false return. This statute has generally been adopted as a part of the law or has been re-enacted in America. The pleadings are regulated by the laws of the states relative to suits in the

1 State v. Jones, 10 Iowa, 65.

5 Harwood v. Marshall, 10 Md.

2 People v. McCormick, 106 Ill. 451. 184.

3 State v. Supervisors (Board), 64 Wis. 218; Phoenix Iron Co. v. Com., 113 Pa. St. 563.

4 State v. Pierce Co. (Sup'rs), 71 Wis. 321.

6 State v. Lean, 9 Wis. 279.

7 State v. Newman, 91 Mo. 445.

8 Fisher v. Charleston, 17 W. Va. 595.

courts,1 and the rules of pleading applicable to civil suits apply to mandamus proceedings.? Where a reply is allowed to the return,3 if it does not traverse, nor confess and avoid the material facts stated in the return, but takes issue on immaterial questions, it is bad on demurrer.1

6

§ 290. Trial by jury. The statute of 9 Anne, chapter 20, provided that the issues of fact in a mandamus proceeding should be tried by a jury. In adopting that statute, the American courts have not considered themselves bound by all of its provisions, and some of the courts, on the theory that a mandamus is intended to be a speedy proceeding, have denied the right of a trial by jury, but generally a trial by jury is allowed in accordance with the provisions of this statute,' or because the local statute specially so provides. It has been held that it is discretionary with the court whether a jury shall be allowed to pass on the issues of fact. Also by statute the right to a jury trial as to the issues of fact has been confined to certain cases.10 Appellate courts generally in such cases send the issues of fact to some court of general jurisdiction to be there tried by a jury, with orders to certify the verdict to

4 State v. Eaton, 11 Wis. 29.

5Q. v. St. Pancras (Directors of Poor), 7 A. & E. 750; Shrewsbury v. Kynaston, 7 Bro. P. C. 396; Reg. v. Fall, 1 Q. B. 636.

6 Castle v. Lawlor, 47 Conn. 340; State v. Suwannee Co. (Com'rs), 21 Fla. 1.

People v. Bd. Educ., 127 Ill. 613; State v. Burnsville T. Co., 97 Ind. 416; Burnsville T. Co. v. State, 119

Ind. 382; People v. Bd. Police, 107 N. Y. 235; Frey v. Michie, 68 Mich. 323; Thompson v. U. S., 103 U. S. 480; Com. v. McCandless, 129 Pa. St. 492; Savannah (Mayor) v. State, 4 Ga. 26; Noble Co. (Com'rs) v. Hunt, 33 Ohio St. 169.

8 Weber v. Zimmerman, 23 Md. 45; Maddox v. Graham, 2 Metc. (Ky.) 56; State v. Pierce Co. (Sup❜rs), 71 Wis. 321; State v. Chicago, etc. R. R.. 38 Minn. 281.

9 State v. Marks, 74 Tenn. 12; State v. Goodfellow, 1 Mo. Ap. 495. So provided by statute. Chumasero v. Potts, 1 Mont. 242.

10 Roscommon v. Midland Sup'rs, 49 Mich. 454.

such courts. By consent of the parties a jury may be dispensed with. In some cases the questions of fact have been referred to a referee for decision. When, however, there are no issues of fact to be decided, a jury is properly refused.4

§ 291. Relator must prove his right to all he asks for. It is a well-established rule in mandamus proceedings that the relator must prove himself entitled to every claim and to all the redress which he seeks in his writ. If he fails to establish any part of his claim, or if his demand is broader than the provisions of the law, his application will be denied in toto. So if a mandamus is asked against two persons, and can only be sustained against one, it will be refused as to both. Some courts, however, have concluded to depart from the old rule, which was due to the fact that no amendments as to material matters were allowed in such proceedings, and no longer require the relator to prove all of his claims. They assert, and very properly, that there should be no difference in this regard between a mandamus and any other proceeding, and that this remedy should be applied rationally. A mandamus to levy a tax to pay highway orders was granted, though as to some of the orders the relator failed to prove his right to have a tax levied for their payment. A mandamus, granted by a lower court to a city controller to draw his warrant on the city

1 Calaveras Co. v. Brockway, 30 Cal. 325; People v. Alameda Co. (Sup'rs), 45 Cal. 395.

2 Milliken v. Weatherford (City), 54 Tex. 388; People v. Finger, 24 Barb. 341; Calaveras (County) v. Brockway, 30 Cal. 325.

3 State v. Columbia, 22 S. C. 582: Newman v. Scott Co. (Just.), 1 Heisk. 787; Rice, etc. Co. v. Worcester (City), 130 Mass. 575.

4 Lyman v. Martin, 2 Utah, 136. 5 Reg. v. Tithe Com'rs, 19 L. J. Q. B. 177; King v. St. Pancras (Ch.

Trustees), 3 A. & E. 535; King v. St. Pancras (Ch. Trustees), 6 A. & E. 314; Q. v. East, etc. Docks, 2 El. & Bl. 466; State v. Kansas City, etc. R. R., 77 Mo. 143; State v. Einstein, 46 N. J. L. 479; People v. Baker, 35 Barb. 105; Chance v. Temple, 1 Iowa, 179; Fisher v. Charleston (Mayor), 17 W. Va. 628; Kemerer v. State, 7 Neb. 130.

6 People v. Yates, 40 Ill. 126. See § 234a.

7 Hosier v. Higgins Town Board, 45 Mich. 340.