Hardcastle v. Maryland & Delaware Railroad

Brent, J., delivered the opinion of the Court. This case comes before us upon an appeal from an order of the Circuit Court for Talbot county, directing a mandamus to issue against the appellant, commanding him to deliver to the President of the Maryland and DelaAvare Railroad Company, or to some other duly authorized agent of that company, certain subscription books or lists, and original copies of letters relating to the business of the company. ³⁴ These papers, it is charged in the petition for a mandamus, came into the possession of the appellant while he was President of the company, were held by him in his official capacity, are important and necessary to the proper management of the business of the company, and should have been surrendered, as was other property, upon the termination of his office of President,, and the election and qualification of his successor. The answer of the appellant sets out at considerable length the several facts relied upon in reply to these allegations; and also pleads that a bill in equity for an injunction, discovery, and general relief-for the identical causes of complaint contained in the petition was at the time being prosecuted against him, by the appellee, in the Circuit Court for Talbot County. The petitioner demurred to the answer, and in this state of the pleading, the case was heard and decided by the Court below.

It is objected by the appellant, that in a proceeding 'for mandamus a demurrer to the answer is irregular and erroneous ; and this presents' the question of the propriety of the demurrer in this case. It is true that the Act of Assembly of 1858, ch. 285, relating to mandamus, which is incorporated in the Code, Art. 59, is closely alike in its provisions to the Statute of 9 Anne, ch. 20. The authorities cited by the appellant’s counsel are very conclusive, that the Courts of England in construing that statute, have held that a petitioner for a writ of mandamus could not demur to the return made thereto by the defendant. This seems to have been the settled rule until changed by the statute, 6 and 7 Vic., ch. 67, which confers in express terms the right of demurrer upon a petitioner.

This technical rule, however, has not been adopted in our practice. "We have avoided the great inconvenience which grew out of this construction by the English Courts, of the Statute of Anne, and which gave rise to their practice of a “ concilium,” supplying to some extent the purposes of a demurrer. This latter practice has never existed in this State, so far as we are informed, while demurrers have been adopted and used as the proper ³⁵ and regular mode of presenting to the Courts the insufficiency of the return filed to a petition for a mandamus. Although this question has not before been distinctly presented to this Court, the right to demur was recognised in the case of Eichelberger vs. Sifford & Lorcntz, 27 Md., 320 , and we are not disposed to question the propriety of its recognition.

In that case, in the opinion of the Court, p. 328, it is said, “ the appellant’s answer presents both matter of law and matter of fact in defence, verified by his affidavit. It was incumbent upon the petitioners to take issue or demur to these several defences.” This case was decided in 1867, and we regard it as authoritative upon the right of a petitioner to demur under the terms of the Act of 1858. In this view of the construction of that Act, we must overrule the objection of the appellant, and hold that the demurrer filed in this case is proper and regular. We shall therefore consider the ease as before us upon the petition and answer, with the statements set out in the answer confessed by the demurrer to be true.

The character of the writ of mandamus is too well settled to admit of any question. It is in the nature of a prerogative writ and cannot be demanded ex debito justitice. Weber, et al. vs. Zimmerman, 23