Jersey Publishing Co. v. McCutcheon

Pee Cueiam.

The relator has presented, on notice, a petition and affidavits, and asks for a peremptory writ of mandamus. In such case ordinarily a peremptory writ should not be awarded, but an alternative writ at most. State v. Elkinton, 30 N. J. L. 337.

At the argument, in an informal wajr, the respondent caused to be laid before us by affidavit matters which it was contended constitute a sufficient reason for his refusal of the demand made upon him.

Inasmuch as the facts stated in the affidavit thus presented are not admitted by the relator, we think we are not permitted, in considering the application, to examine the matters set forth therein, but that an alternative writ should issue to the end that by formal return or other or further pleadings an issue may be raised and appropriate action thereon taken by the court; upon which determination the right of review may be preserved.

A rule- will be entered for an alternative writ.