The application for a mandamus may be by motion in court, and the production of ex parte affidavits, in support of the facts al leged ; in which case an alternative writ issues, as matter of course, generally, and the ca.se is heard upon the excuse alleged in the return to the alternative writ. See 2 Mete. Ky. 56. Or the party may apply for the writ by formal petition, setting forth the grounds in detail, in which case the merits of the question are determined upon the traverse of the petition, instead of the traverse of the return to the alternative writ. 9 Ohio St. 599. And in either form, if the application prevails, a peremptory mandamus issues; the only proper or admissible return to which is a certificate of compliance with its requisitions, without further excuse or delay. IIodges on Railw. A40-644 ; 1 Q. B. 616 ; 1 Iowa, 179.
10. The English practice is, that if the first writ is denied, even on the ground of defects in the affidavits, not to permit a second application to be made. 8 Ald. & E. 413. So, also, if it fail for other defects of form. But a more liberal practice obtains in the Ameri can courts. Redfield, Railw. 190, notes.
Costs rest in the discretion of the court. In the English courts they are allowed when the application fails, but not always when it prevails. Redfield, Railw. 190, n. 8. The more just rule in such cases is to allow costs to the prevailingiparty, unless there is some special reason for denying them ; and this rule now generally prevails. 8 Ad. & E. 901,
905 ; 5 id. 804 ; 1 Q. B. 636, 751 ; 6 Eng. L. & Eq. 267.
11. By the recent Common-Law Procedure Act, 17 & 18 Vict. c. 125, any party re quiring any order in the nature of specific performance may commence his action in any of the superior courts of common law, in Westminster Hall, except in replevin and ejectment, and may indorse upon the writ and copy to be served that he will claim a writ of mandamus, and may renew the claim in his declaration, and if the writ is awarded in the final judgment in the case, it will issue peremptorily in the first instance. The form of this statutory mandamus is very brief, and its execution is enforced by attachment. The prerogative writ of mandamus is still retained in the English practice; but it is ob vious that the foregoing statute must have very essentially abridged its use, as well as that of decrees in chancery, for specific per formance. See 8 Ell. & B. 512 ; Redfield, Railw. 190, pl. 8.
Controverted questions of fact, arising in the trial of applications for mandamus in the English practice, are referred to the deter mination of a jury. 1 Railw. Cas. 377 ; 2 id. 711 ; 8 Ell. & B. 512; 1 East, 114. By the American practice, questions of fact, in ap plications for mandamus, are more commonly tried by the court. 2 Mete. Ky. 56.