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On return to any mandamus, where the party claiming any office can be admitted without removal of any other person, and such party shall traverse the return, he may apply to the court by petition to be admitted forthwith; and the court may, on the hearing of the petition, make an order accordingly.
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[1.] Whenever any writ of mandamus shall issue for the admission or restoration of any person to any office, place, situation, or benefit to which he may be admitted, without the removal or displacing of any other person, and a return shall be made to such writ of mandamus, and the person suing or prosecuting such writ of mandamus shall plead to or shall traverse all or any of the facts of such return, as directed by the said recited Act, then and in every such case it shall and may be lawful to and for every or any such person to apply to the court by petition, praying that he may be forthwith admitted to such office, place, situation, or benefit, notwithstanding such return, and pending the proceedings which may be had thereon under the said recited Act; and thereupon it shall and may be lawful for the court to appoint a time for the hearing of such petition, and to direct that such notice of such petition, and of the time appointed for hearing the same, shall be given, as such court shall think proper, to the person or persons, or body or bodies politic or corporate, making such return, and to such other persons as such court shall deem proper and fitting; and upon affidavit of the due service of such notice, it shall be lawful for the said court to proceed, at the time appointed, to hear the matter of such petition, and of any answer or answers thereto, in a summary way, upon such affidavits or other documents as shall be laid before the said court, and thereupon to ascertain and declare whether the person or persons so suing or prosecuting such mandamus has or have reasonable and probable grounds to entitle such person or persons to the relief sought by such mandamus, and to make any such rule or order or rules or orders thereon, for granting or refusing the prayer of such petition, and for admitting or for the delaying the admission of such person or persons to the office, place, situation, or benefit, which shall be the subject of such application, and also for costs, in such manner as such court shall think proper, and to enforce obedience to any and every such rule or order, as to other rules or orders of the court.
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Such order subject to alteration, but shall be valid until altered by judgment.
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3. Provided always, that every rule or order of such court so made shall be subject to be varied, altered, or annulled, by or under or in execution of any judgment which shall or may be given in, upon, or under such writ of mandamus, or such plea or traverse thereto; but every such rule or order shall be and remain good, valid, and effectual according to the terms thereof, so long and so far as the same shall stand and remain not varied, altered, or annulled as aforesaid.
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