
    THE PEOPLE on rel. ADAMS a. BAKER.
    
      Supreme Court, Fourth District; Special Term,
    
    
      June, 1861.
    Mandamus.—Settlement of Case.—Pleadings upon Mandamus.—Amendment.
    A mandamus is the proper remedy to compel the settlement of a case or bill of exceptions, and to settle it correctly. But before the writ will be issued to compel a settlement in a particular way, it must appear that the case will then be in accordance with the facts.
    On the return to an alternative mandamus to a referee, requiring him to settle a case as therein prescribed, where the recitals did not set forth that the proposed settlement would be in accordance with the facts,—IBM, that the writ was defective in not containing such an averment in a traversable form.
    On the return to an alternative mandamus, facts material to the issue occurring after the issuing of the writ may be pleaded.
    
      It seems, that a writ of mandamus may be amended after it is returnable.
    Demurrer to portions of return to an alternative mandamus, and to relator’s plea to a portion of the return.
    The relator had been plaintiff in an action against the Fort Plain Bank arising upon contract: the issues had been referred to the present respondent, who reported in favor of the plaintiff for $78.10; judgment was entered upon the report and the relator appealed. A case was prepared by the relator and was submitted, together with the amendments proposed on behalf of the Fort Plain Bank, to the respondent for settlement. After the settlement of the case the relator procured an alternative mandamus directed to the present respondent, requiring him to correct in certain specified points his former settlement of the case, or show cause, &c.
    The writ omitting most of the specifications was as follows:
    The People of the State of Hew York to Hezekiah Baker, greeting:
    Whereas, it has been lately represented to us in our Supreme Court before our justices thereof, on the part and behalf of
    
      
      Í Montgomery ) Henry C. Adams, that in a certain action pend-j 0ounty / ing in our said court wherein the said Henry C. I Seal f -^-dams was plaintiff and the Port Plain Bank was defendant, and which said action was by order of our said court duly referred to you as sole referee to hear and decide the same; and which said action was tried before you, wherein you made your report in writing, bearing date February 14th, 1859, and filed, and judgment duly entered thereupon in favor of said plaintiff and against said defendant for recovery of $78.10, and costs and disbursements of $76.93; and to which said report the plaintiff has duly filed his exceptions, and served the same, specifying his exceptions to said report as to your findings of facts and decisions as matters of law; and from which said judgment the plaintiff has duly appealed to the general term of our said court, and has duly made and served a case and exceptions, and tendered the same to you, upon due notice to the attorney of the defendant, and requested you to settle and sign the same. To which said case and exceptions as proposed by the plaintiff, with the amendments thereto allowed by said plaintiff, you refused to sign, but have allowed divers proposed amendments thereto, and have made divers amendments thereto not proposed, to the great wrong and injury of said plaintiff.
    Whereupon we being willing that justice should be done in the premises, do command you, that you, the said referee, settle and sign the said proposed case and exceptions with the 1st, 6th, 23d, 27th, 34th, and the 5th and 6th paragraphs of the 44th proposed amendment thereto, marked “ allowed” by the plaintiff therein; and with the following matters and things corrected in the former settlement of the same; to wit:
    1st. By disallowing the third proposed amendment, proposing to insert after the word “ defendant” in the 7th line, folio 1, the figure “ 1st,” and allowing the words “ embraced in the judgment-roll” as stated in the case and exceptions.
    [Here followed 13 proposed corrections.]
    And that immediately upon such settlement and signing of the case substantially as required by this writ, you deliver the same to the relator.
    Or in default thereof that you make known to us in our Supreme Court, before our said justices thereof, at the court-house
    
      in the city of Schenectady, on the third Tuesday of August next, at the opening of the court on that day, or so soon thereafter as counsel can he heard, why you have not done the same.
    And have you then there this writ.
    Witness, A. B. James, Esq., presiding justice of said court, at the court-house in Caldwell, the 2d Tuesday of July, 1859.
    D. Y. Beeby,
    H. C. Adams, attorney. Clerk of Montgomery Co.
    The order allowing this writ required the relator to tender a case with the proposed corrections to the referee, and to leave the same with him at the time of the service of the writ which was done. The defendant made a return to the writ, containing 27 counts.
    The relator demurred specially to 26 counts and plead to the 27th count, and to this plea the defendant demurred specially. The parties joined in demurrer, and the whole case came before the court upon special demurrers involving questions which sufficiently appear in the opinion.
    
      H. C. Adams, relator, in person.
    I. The relator is entitled to the relief sought by the writ, in each count or portion of it. 1. A writ of mandamus will issue out of a superior court directed to an inferior court or tribunal, requiring them to do some particular thing therein specified, which appertains to their duty or office, which the superior court supposes to be consonant to right and justice. (3 Blackst. Corms., 110; 4 Hill, 581, Cowen, J.; 3 Stephs. Comts., 681; and see Sikes a. Ransom, 6 Johns., 279; Delavan a. Boardman, 5 Wend., 132; McCullough a. Mayor, &c., 23 Ib., 458; and see Shepard’s Note in 2 Johns. Cas., 217, viz., §§ 24, 30, 35, 37, on pp. 27, 32, 37, 43 of Note.) 2. It is the proper remedy to compel all inferior tribunals to perform the duties required of them by law. (Comm a. Hampden, 2 Pick., 414; 4 Ib., 68; 7 Ib., 340; 10 Ib., 244; 21 Ib., 258.) 3. If the truth of the case be fairly stated, it shall be the duty of the judge or court “to sign and seal the same.” (See 3 Rev. Stat., 5 ed., 720; old ed., 2 Rev. Stat., 422, § 78 [§ 75] ; 1 Cai., 511; 2 Ib., 376; 2 Johns. Cas., 118 [217 and note §] ; 6 Johns., 279.) Or to amend the case according to the truth of the facts. (6 Johns., 279; and see 
      Shep. Note, §§ 24, 27, 30, 46, on pp. 27, 29, 32, 61 of Note; 5 Wend., 132.) 4. In the case in question, the referee struck out various matters not proposed by defendant to be stricken from the case. See especially as to the matter in the second count of the writ, &c. This the referee had no power to do. (Denison a. Seymour, 5 Wend., 103.) The only specific remedy for such wrongs is by mandamus. An action on the case against the referee would not be a specific remedy, and would not obtain the thing, &c. Nor would an indictment obtain the thing asked. The only specific remedy, then, is by the peaceful and effectual suit by mandamus. (Rex a. Severus, 2 B. & A., 646; and see 23 Wend., 258.) 5. Of the mode of proceeding by writ of mandamus, see Shepard’s Note, 61-81, § 46. The Revised Statutes, part 3, ch. 9, t. 11, art. 3 (2 Rev. Stat., 586, m.p.), refer to these proceedings as known at common law. (See Shep. Note, 75, § 63.)
    II. The writ is sufficient in form and substance. It sets forth a good title. 1. There is no defect of substance in the writ. It charges the defendant with refusing to settle and sign the case presented, and with “ allowing divers proposed amendments, and with making divers amendments not proposed, to the great wrong and injury of the relator.” That sets forth a good title in substance within all the cases. 2. It refers to the case as a paper in the cause, accessible to all, and within the knowledge of all parties, point by point and folio by folio, and thus the writ and case are inseparably wedded. It is sufficient in form. (People a. Judges of Westchester C. P., 4 Cow., 73; see form, 1 Ib., 22; and all the forms, Shep. Note, 81, et seq.) If the writ fairly indicates the duty to be performed, no precise form is necessary. (Shep. Note, 66, § 52; Sayre, 37.) 3. If the writ could be called defective for not setting out the case in detail, it could be called only a defect of form; and for such a defect the defendant must move to quash before making his return. (10 Wend., 25; 1 How. Pr., 186.) Technical objections must be urged before return is made. (See Shep. Note, 67, § 55, and cases.) 4. No objection can be urged to the form of the writ or the substance of it, except upon special motion, founded upon notice, to supersede or quash it. (Shep. Note, 68, § 55, near end; 1 Wils., 30; 3 Steph. N. P., 23.) There is no objection now before the court as to the sufficiency of the writ.
    
      HL The return is defective for all the reasons specified in the demurrer as to each count. 1. The return must be certain and full, and must state with certainty those facts which constitute a defence to the mandamus. It ought to contain a full and certain answer, &c., and to disclose a just and legal reason why the mandamus should not be obeyed. (Shep. Note, 70, § 58; 10 Pick., 59.) 2. In point of form, a return requires the same certainty and precision as in declarations and other pleadings, or an indictment or return to a habeas corpus. (Shep. Note, 70, § 58; 1 Harr. & Johns., 551; Dougl., 157,158.) 3. A return of two repugnant causes is like a declaration where two inconsistent counts are contained. (Ib.; 2 Term B., 456, 461.)
    4. Where several causes returned to a mandamus are inconsistent, the whole must be quashed, because the court cannot know which to believe, and it is an objection to the whole return. It is like a declaration in which two inconsistent counts are joined; there the plaintiff cannot have judgment. (Shep. Note, 71, § 58; 2 Term. R., 456; 5 Ib., 66; 6 Ib., 493.) 5. It must, like any other pleading, aver facts, not evidence. (See 10 Wend., 323 ; 2 N. Y., 490.)
    IY. As to the pleadings in mandamus cases. 1. The pleadings shall be, and the proceedings thereon shall be, as in civil actions. (2 Rev. Stat., 586, § 15 [§ 55].) 2. The writ performs the office of a declaration, and the return must answer the averments in the writ. (Shep. Note, 70, § 58; 2 N. Y., 490.) 3. Matters which should come more properly from the other side need not be stated. (1 Chitt. Pl., 222 q., 228 p.) 4. In alleging the fact, it is unnecessary to state such circumstances as merely tend to prove the truth of it. (Chitt. Pl., 225 1.)
    5. A pleading is a statement of facts, and not a statement of argument. It is, therefore, a rule that a plea should be direct and positive, and advance its position of facts in an absolute-form, and not by way of rehearsal. 6. It must be capable of trial, and therefore must consist of matters of fact, &c. (Ib., 541, 8thly.) 7. It must be true and capable of proof. (Ib., 9thly.) 8. It must be consistent; no part repugnant to another part. 9. If a pleading be drawn in a negligent, slovenly, and untechnical manner, disgraceful to the records of the court; or if it be in every respect insufficient, uncertain, defective in form, &c„ it is ground of demurrer. (See Humph. Prec., 1003; 3 Chiit. Pr., 1247; 10 Wend., 32; 2 N. Y., 496.) 10. The return is obnoxious to all the foregoing objections; the demurrer should be upheld.
    Y. The practice at and subsequent to the hearing. 1. On coming in of the return to an alternative mandamus, the papers on which the original motion was made must be presented, and the points stated in writing in support of the application. (2 Wend., 255; see 1 Ib., 318; Savage, J., 320.) But as the question here is on demurrer, the points are sufficiently stated in the demurrer. 2. If judgment be for the relator upon demurrer or default, a peremptory writ will be granted, without delay. (2 Rev. Stat., 587, § 17 [§ 57] ; Shep. Note, 79, § 69, and cases; 3 Steph. N. P., 2330, and cases in note 83.) And the relator is entitled to damages and costs, (Ib.; and see Wend., 301; 18 Ib., 534.) The defendant is also liable to a penalty of $250. (2 Rev. 8tat., § 20 [§ 60].) 3. It is a legal presumption that the referee is indemnified by the party in interest. (18 Wend., 534.)
    
      Hezekiah Baker, defendant, in person, cited 5 Wend., 132; 10 Ib., 25; 2 Comst., 490; 9 Wend., 429; and claimed substantially, on the argument, that he had settled the case under Rule 34 (Supreme Ct. Rules), and that he had exercised his discretion in so doing, and that such discretion could not be reviewed, and cited 14 Barb., 52 ; 1 Hill, 362 ; 12 Johns., 416 ; and that under Rule 34 his settlement was a finality.
    II. The writ claims too much, in asking the referee to sign the case. (Code, § 264.)
    
      Henry C. Adams, in reply.
    I. 5 Wend., 132, is not in point. That case does not decide that the power does not exist in the court to grant a mandamus, at least an alternative writ, in such a case. It merely decides what the practice was “ in the first instance,” before granting a peremptory mandamus. An alternative mandamus is in the nature of an order to show cause. (See 4 Cow., 403 ; 13 Wend., 655, note) Therefore there is no practical difference between it and an order of review. In 10 Wend., 25, it was decided “ that the relator must set forth his title;” and also, if the writ is defective, either in form or substance, the defendant may move “ to quash it.” In 2 N. Y., 
      490, it was decided that “ an alternative mandamus is in the nature of a declaration, and must state a good title in substance.” These eases (10 Wend., 25, and People a. Eansom, 2 N. Y., 490) are analogous, and prove nothing against the relator’s case.
    II. 1. Rule 34 of 1858, provides no new practice. 2. Errors in the settlement, &c., were always corrected by motion for review, before peremptory mandamus; or by an alternative mandamus, &c. 3. To construe the Eule as claimed by the defendant, parties might, either through inadvertence, malice, or corruption of the court or referee, be deprived of their substantial rights. Ubi jus ibi remedium. (Broom's Legal Maxims, 146.) 4. If the court, by Eule 34, intended to place us within the arbitrary grasp of one man, then we respectfully deny the power of the court thus to judicially legislate the rights of person and property into such narrow and dangerous limits. 5. The settlement of the case was wrong, in loading it with useless records, &c., and was in direct violation of Eule 36.
    III. 1. The objection, that the ref dree cannot be compelled to sign the case, is not before the court in proper form, i. e., there is no motion before the court, founded on notice, to supersede or quash the writ for any cause—such is the practice. (Shep. Note, 68, § 55, and cases ; and such was the practice in 4 Cow., 73; 1 How. Pr., 186.) 2. The defendant entered a rule, and gave notice to the relator, requiring him to demur, &c. which was done, and defendant joined in demurrer. A motion to supersede or quash the writ should have been made before the rule and notice requiring the relator to demur, &c. The objection comes too late. 3. The Code, § 264, does not deprive the appellant of the right to the best evidence of the settlement, corrections, &c., if he desires such evidence, by the signature of the referee to the settled and corrected case. 4. The objection is technical, and should have been urged upon a motion, &c., to supersede or quash the writ before the return was made. (Shep. Note, 67, § 55, and cases; 6 Cow., 532; Fuller a. Plain-field, 2 Salk., 433, pt. 12; Ld. Raym., 563.)
   Bockes, J.

This case comes before me on two demurrers: one by the relator to a part of the defendant’s return to the alternative writ of mandamus issued to him; the other by the defendant to the plea of the relator to the remaining part of such return.

A history of the proceedings prior to the issuing of the alternative writ is necessary to an understanding of the legal questions presented "by the demurrers.

The relator commenced an action in assumpsit against the Fort Plain Bank, claiming to recover as assignee of certain demands which were alleged to have been transferred to him. The cause was put at issue, and was referred to the defendant herein as sole referee to hear and determine, by an order granted ¡November 27, 1855.

The cause was brought to trial before the referee, who made and delivered his report, bearing date February 14, 1859, whereby he awarded judgment against the bank, and in favor of the relator, for $78.10, with costs of the action. On this report judgment was entered, April 20, 1859, for $155.03, damages and costs.

The relator took exceptions to the report of the referee, and having appealed from the judgment, tendered a case and exceptions, to which amendments were proposed.

On the settlement of the case the referee allowed certain of the proposed amendments (the relator objecting), and thereupon the relator moved the court for a writ of mandamus, to be directed to the referee (present defendant), to compel him to disallow such proposed amendments, to the allowance of which he had objected. An' alternative writ was awarded him, by an ex-parte order granted July 13, 1859, and thereupon the writ, now before me, issued, tested the second Tuesday of July.

To this writ the defendant made return, whereby, after admitting the pendency of the action in which the relator was plaintiff and the Fort Plain Bank was defendant, and that he was duly appointed sole referee therein, he set forth in detail all the proceedings had before him, making exhibit of all papers used on the trial, with the several objections interposed by the parties during the trial, with his rulings thereon, and also his report and direction for judgment. 2d. That the case was submitted to him for settlement by the parties on the 7th of June, 1859. 3d. That on the 21st of June, 1859, upon due consideration and careful examination he settled it, as he deemed, according to the truth of the facts of the case, as the same took place on the trial before him, and as in his return set forth. Except that he (on such settlement) disallowed the 1st, 2d, and 4th paragraphs of the 44 proposed amendments, whereas the same should have been allowed by him. 4th. That on the 22d of June, 1859, he delivered to the plaintiff the case and proposed amendments, with his certificate of settlement, and also all the papers and records submitted to him, and that the same had never been returned to him. And for that reason he could not make the ease, amendments, and certificates of settlement a part of his return; and further, that if it should be necessary, the relator be required to furnish them. 5th. That he had duly and truly settled the said case according to the truth, and that to settle the said case in the manner required by said writ would be contrary to the truth of the facts of the case. 6th. That he delivered the case, proposed amendments, and certificate of settlement, to the relator to be engrossed, and that the relator agreed to return the same for his signature, and that the relator had not returned the case engrossed as settled, or requested him to sign the same, and he denied that he had refused to settle or sign it, and averred that he had duly settled the same. 7th. That the case was abandoned by reason of relator’s neglect to file the same as settled, according to the rules and practice of the court. And that an order to that effect had been duly entered.

To this return of the defendant the relator interposed a demurrer and plea: a demurrer to those parts which he denominates the first twenty-six counts of the return; and a plea to the last part, whereby the defendant sets up in answer to the writ that the case was abandoned, and which last part he denominates the twenty-seventh count of the return.

I understand the demurrer was intended to cover the entire answer or return of the writ, except that part to which the plea is interposed.

This may not appear very clearly, as the demurrer lacks precision in regard to the portions of the return therein designated as counts.

The plea set up, that the order declaring the case abandoned, was thereafter and on the 24th of October vacated, and to this plea the defendant demurs for insufficiency. So the entire case is now before the court on demurrer.

The writ of mandamus issues when some legal right has been refused, and there & no other appropriate and adequate remedy. It extends to all inferior courts, tribunals, and officers, executive, ministerial, and judicial. As to judicial duties it merely commands the court or officer to proceed, without directing the manner in which the duty shall be executed, but in other cases it directs the mode' and manner as well.

It has been held to be the proper remedy to compel the settlement of a case or bill of exceptions (5 Wend., 132; 1 Cai., 511), also to amend the same (6 Johns., 279), but according to the facts. So a referee may be compelled by mandamus to settle a case and exceptions, and to settle it correctly. But before the writ will be issued to compel the settlement in a particular way, it must be made to appear that it will then be according to the facts.

A proceeding by mandamus is in the nature of an action, the writ standing for and taking the place of the first pleading, and enough must appear on the face of the writ to justify the mandatory part. It should, therefore, contain all those facts which are necessary to show the title of the applicant to the relief demanded. If the writ be sufficient, and the defendant is unwilling to obey its directions, he must make return, in which he must show excuse for his disobedience. The return must be good, tested by the ordinary rules of pleading both in form and substance, and stands as the second pleading in the action or proceeding. To the return the relator may demur, or plead to all or any of the material facts contained in the return, and in case a plea is interposed the person making return may reply or demur thereto, and so on alternately, until the issue or issues between the parties are formed. (2 Rev. Stat., 568, § 55; 3 Ib., 5 ed., 898.) If a demurrer be interposed, the question will be upon the sufficiency of the pleadings, the same as in an ordinary action, and the party must fail who commits the first error in matter of substance. So it was held in People a. Ransom (2 N. Y., 490), that an alternative mandamus was in the nature of a declaration (complaint), and must state a good title in substance ; and that on demurrer to the return, the relator' must fail if his writ be substantially defective. (See, also, 14 Barb., 52; 10 Wend., 25; 32 Barb., 473.)

The writ will be deemed substantially defective too, if it demand too much (1 Hill, 50, 55), although it is suggested in this case that there may be exceptions to this rule.

It becomes necessary, therefore, first to determine the sufficiency of the writ. This, as has been seen, must show facts sufficient to entitle the relator to the relief which he claims, and he must show his right to all he claims. Nor can reference be made to the affidavit on which the order was granted, in aid of the writ in this particular. (10 Wend., 25; 7 Ib., 874.) The defendant is required only to meet the case stated in the writ by traversing the facts there recited or averred, or by admitting them and setting up new matter in avoidance.

The defendant in this case is commanded to settle and sign the case and exception, in the writ mentioned “ with the 1st, 6th, 23d, 27th, 34th, and the 5th and 6th paragraphs of the 44th proposed amendments thereto, marked ‘ allowed’ by the plaintiff therein, and with the following matters and things corrected in the former settlement of the same, to wit, 1st, by disallowing the third proposed amendments, proposing to insert after the words ‘ defendant’ in the 7th line, fol. 1, the figure ‘1st,’ and allowing the words ‘Embracedin the judgment-roll,’ as stated in the said case and exceptions. 2d. By allowing ‘ 1st,’ ” and so on, specifying a great number of particulars in which words or sentences should be allowed or disallowed, and finally, “ that immediately upon such settlement and signing of the case substantially as required by the writ, you deliver the same to the relator.”

The question now is, whether a case is made by the writ showing the relator entitled to have the case and exceptions settled by the defendant, and in the way therein specified, and also signed and delivered to him. The recitals in the writ are to be taken as averments, on which the relator may predicate his right to the relief claimed. It recites the pendency of a suit, in which the relator was plaintiff, and the Fort Plain Bank was defendant; that the action was referred to the defendant as sole referee, to hear and decide it; that it was tried before him ; that he made his report therein; that judgment was entered thereon; that he, the relator, took exceptions to such report, and appealed from the judgment entered thereon; that he made and served a case and exceptions, and tendered the same, with the proposed amendments, to the defendant, and requested him to settle and sign the same as proposed by the relator, with the amendments thereto allowed by him, the relator ; that the defendant refused to sign, but allowed and made divers amendments thereto, not proposed, to relator’s great wrong and injury.

On these recitals the right of the relator is made to depend. It will be readily observed that there is an important omission. The writ does not show that the corrections desired were in accordance with the facts as they occurred before the defendant on the trial. It should have contained appropriate recitals, from which it could be seen that the case and exceptions, when settled according to the requirements of the writ, would give a true history of the trial, especially in the particulars therein specified. The court will not command the case to be falsely settled, but according to the truth. So it will not direct a settlement in a particular way until it be made to appear that it will then accord with the facts. If it had been recited that the defendant refused absolutely to settle the case, this, in connection with the other recitals in the writ, would have authorized a mandamus requiring him to proceed and settle it, not, however, in any particular way. The writ in this case commands the defendant to settle the case and exceptions by disallowing certain words and sentences, and allowing others. Yet there is nothing in the writ, to which our examination must now be confined, showing that the case thus settled would truly detail the events of the trial. It was held in People a. Supervisors of Westchester (15 Barb., 607), that the alternative writ should set forth, in a traversable form, the facts relied upon as entitling the relator to the relief sought, and that the affidavit upon which it’was granted formed no part of the record. The writ is substantially defective in the particular above considered. It is not a mere defect in form. There is an omission of a substantial statement or recital, essential to the relator’s title to the relief claimed. The relator in this case demands more than the mere settlement of the case and exceptions. It appears from the writ, if not directly, certainly inferentially, that the defendant has already settled the case. But he demands that it be settled in a particular way, without showing any right to have the settlement so made. The writ, in my judgment, is substantially defective in this regard. It is also urged . that it demands too much—in this, that it not only requires the case and exceptions to be settled, in a particular way, but also that it be signed and delivered to the relator. It is quite true that, under the present practice, no signing or sealing is necessary (11 N. Y., 480); and it may be very doubtful whether, when settled, the case should not be, in strict practice, filed with the clerk rather than be delivered to the party. But I shall rest my decision, as to the sufficiency of the writ, on the ground above discussed. Under this view of the case it is unnecessary to consider either the return or the plea. It is plain, however, that the return is unjustifiably prolix, being principally made up of irrelevant and redundant matter. It is also quite informal. It would doubtless have been stricken out in whole or in part, on motion. (2 Comst., 495; 11 How. Pr., 89; 8 Ib., 358.) A return should be good in form and substance, tested by the ordinary rules of pleading. It should state facts and not evidence, and should be certain, to a common intent. And while the party is at liberty to interpose several independent defences, if consistent one with another, still the matter of defence should be so presented as to admit of single and distinct issues.

There is at least one part of the return which is good in substance—that whereby the defendant avers that he has duly and truly settled the case, according to the truth; and that to settle it in the manner required by the writ, would be contrary to the truth of the facts of the case. If the writ be regarded as demanding only that the case and exceptions be settled, and that truly, then this is clearly a full and perfect answer; but if the decision of the demurrer turned on the sufficiency and formality of the return, I should hesitate before giving it sanction in the form here interposed. As regards that part of the return that sets up an abandonment of the case by the relator, the record stands thus:—The alternative writ is tested the second Tuesday of July, 1859, returnable the third Tuesday of August then next; the answer avers that the case and exceptions were abandoned by an order entered on the 10th of October following ; the plea sets up that such order was, on the 24th day of the same month, set aside, whereby the order of October 10th became inoperative; and to this plea the defendant demurred. So, regarding the writ as the commencement of the action or proceeding, the matter set up in both- answer and plea, arose pendente lite. Snch matters were always competent to be pleaded, and under the practice before the Code, which is still applicable to proceedings by mandamus (Code, § 471.; 32 Barb., 473), might be pleaded puis darrien after issue. (2 Den., 321.) This practice still prevails. (9 How. Pr., 568.)

The parties, therefore, had a right to interpose these matters by answer and plea. Besides, on this point they stand alike on the record, for the matter set up by the defendant in his answer, as well as that averred by the relator in his plea in reply thereto, arose pendente Hie.

. But it has been found that the alternative writ is fatally defective ; that it does not set forth facts sufficient to entitle the relator to the relief he claims. Judgment must, therefore, be given against the relator on the demurrers, but of course for one bill of costs only on both demurrers. I find no precedent allowing the writ to be amended after return and demurrer thereto.

It may be amended at any time before it is returnable (6 Mod., 133); but, according to the old practice, not afterwards. (4 Toun., 690.) This rule is supposed still to prevail. (5 Abbotts’ Pr., 241.) But I think this decision, in the last case cited, was made without considering the purpose and effect of the statute permitting amendments of pleadings and proceedings, the provisions of which extend to writs of mandamus. (2 Rev. Stat., 424, § 10 ; 3 Ib., 723, 5 ed., § 10.) These provisions are not abrogated by the Code. (22 Barb., 137.) In this case, however, the relator would gain little by amending, as a new writ would doubtless be granted on due application. The first being adjudged informal and insufficient, and an amendment would’ be allowed only on terms.

Judgment for the defendant on the demurrer.  