
    Joseph Tyler v. The Board of Supervisors of Oceana County.
    
      Mandamus — Failure to frame issue — Compensation of sheriff.
    
    Where the answer of the board of supervisors to the petition, of the sheriff for a mandamus to compel the auditing of his account for serving a requisition sets up as a defense the payment of the account by a third party, and the relator proceeds to a hearing upon the petition and answer, the answer must be taken as true, and the application will be denied.
    
      Mandamus.
    
    Argued October 4, 1892.
    Denied November 18, 1892.
    Belator applied for mandamus to compel tbe allowance of bis bill for services rendered in serving a requisition. Tbe facts are stated in tbe opinion.
    
      Fred J. Russell and John D. S. Hanson, for relator.
    
      H. W. Harpster, Prosecuting Attorney, for respondent.
   Per Ouriah.

Tbe relator is sheriff of Oceana county, and presented a bill to respondent for services rendered and expenses incurred in serving a requisition issued by the Governor of the State, and directed to tbe governor of the state of Montana, for tbe apprehension of one Charles E. McClure. Tbe petition sets out that these services were rendered at tbe request of tbe prosecuting attorney of tbe county, and that tbe board of supervisors refused to audit tbe bill. Tbe answer of tbe board sets up that one John Y. Oahill, who was surety on the appearance bond for McClure, undertook to pay relator for bis expenses and services, and that be bad made such payment, and that tbe board so found when tbe bill was presented.

Tbe relator proceeded to hearing without asking that any issue be framed, and, under these circumstances, the answer of respondent must be taken as true. Merrill v. County Treasurer, 61 Mich. 95; Murphy v. Town Treasurer, 56 Id. 505; Hickey v. Supervisors, 62 Id. 100; Post v. Township Board, 63 Id. 324.

Tbe application must be denied, with costs.  