individual relation or information, yet the proceeding is declared by the courts to be a civil remedy, having all the qualities and attributes of a civil action, and is applied solely for the protection of civil rights. Nor is it necessary in order to maintain mandamus to enforce a public right, that the relator should show that he has any legal or special interest in the result, beyond his interest as a citizen, in having the laws executed and the right enforced; 2 though, according to the decisions in some of the States, he must show that he has some private or special interest to be subserved, or some particular right to be pursued or protected, independent of that which he holds in common with the public at large.3 And he must affirmatively show performance of whatever is required of him as a condition precedent to the right demanded, before he is entitled to the writ. The alternative writ of mandamus, and the return thereto, are usually regarded as constituting the pleadings in proceedings by mandamus, the writ standing in the place of the complaint, and the return taking the place of the plea or answer in an ordinary action at law.5 The alternative writ, when issued, becomes and constitutes the plaintiff's complaint or cause of action, and upon it, issues of law or fact may be joined as upon the complaint in other cases. And the relator should so set forth the facts upon which he relies for the relief sought that the defendant may be able to take issue on them. He is bound to state a case prima facie good, and the same sufficiency of statement is required as in a complaint in an ordinary action. The alternative writ, as a pleading, should be entitled, showing who are the parties to the action, making the relator the plaintiff, and the respondent the defendant.10 It must show on its face a clear right to the relief demanded by the relator," and should con

tain no allegations except such as arc pertinent to that right.12 A motion to quash, for a want of statement of facts sufficient to entitle the relator to the relief sought, is equivalent to a demurrer to a complaint or petition in an ordinary action. 13 A plea which takes issue upon immaterial facts, but which does not traverse and deny nor confess and avoid the material allegations, is bad upon demurrer.1 Generally speaking, the pleadings are to be construed and to have the same effect as pleadings in a civil action.15. The relation is to be regarded the same as a complaint, and the return as an answer, to which a demurrer or reply may be interposed.16 And the pleadings may be amended as in civil actions.17

1 See Judd v. Driver, 1 Kan. 455; McBane . People, 50 Ill. 503; Byers v. Bailey. 7 Iowa, 531; Arberry v. Beavers, 6 Tex. 457; 55 Am. Dec. 791; State v. Gracey, 11 Nev. 223; Weber v. Zimmerman, 23 Md. 45.

2 Hamilton v State, 3 Ind. 452; State v. Gracey, 11 Nev. 223; State v. Doyle, 40 Wis. 175; People v. Halsey, 37 N. Y. 344; State v. Board of Education, 35 Ohio St. 363; Moses v. Kearney, 31 Ark. 261; Hall v. People, 57 Ill. 307; State v. Shropshire, 4 Neb. 411; Pumphrey v. Mayor etc. 47 Md. 145; McConihe v. State, 17 Fla. 238.

3 Linden v. Alameda Co. 45 Cal. 6; Adkins v. Doolen, 23 Kan. 659; Robbett v. State, 10 Kan. 9; Heffner v. Commonw. 23 Pa. St. 108; Sanger v. County Commissioners, 25 Me. 291.

4 People v. Glann, 70 Ill. 232; People v. Hayt, 66 N. Y. 606.

5 State v. Gracey, 11 Nev. 223; Smith v. Johnson, 69 Ind. 55; People v. Ovenshire, 41 How. Pr. 164. And see People v. Mayor etc. 51 I. 28; State v. Sheridan, 43 N. J. L. 82; Cal. Code Civ. Proc. 1089.

6 Jessup v. Carey, 61 Ind. 584; Johnson v. Smith, 64 Ind. 275; Smith v. Johnson, 65 Ind. 55. And see Fornoff v. Nash, 23 Ohio St. 335; Jones v. Gibbs, 51 Miss. 401; Beard v. Supervisors, 51 Miss. 5-12; People v. Salomon, 46 Ill. 336.

7 People v. Supervisors, 15 Barb. 607; State v. Everett, 52 Mo. 83; Lavalle v. Soucy, 96 Ill. 467.

8 State v. Helmer, 10 Neb. 25; People v. Hatch, 33 Ill. 130; State v. Governor, 39 Mo. 383.

9 People v. Ransom, 2 N. Y. 430. And see Arberry v. Beavers, 6 Tex. 457; 55 Am. Dec. 791.

10 State v. Commissioners etc, 11 Kan. C6, 71.

11 People v. Glann, 70 Ill. 232; Board of Trustees v. People, 12 Ill. 248; 52 Am. Dec. 488; People v. Davis, 93 Ill. 133; People v. Ovenshire, 41 How. Pr. 164; Fairbank v. Sheridan, 43 N. J. L. 82.

12 People v. Ovenshire, 41 How. Pr. 164. See People v. Supervisors, 12 Barb. 446; People v. Supervisors, 15 Barb. 607.

13 State v. Stockwell, 7 Kan. 98; Crans v. Francis, 24 Kan. 750. See Potts v. State, 75 Ind. 336; Fornoff v. Nash, 23 Ohio St. 335; People v. Railroad Co. 28 Hun, 543; 3 Civ. Proc. R. 11.

14 State v. Eaton, 11 Wis. 29.

15 Crans v. Francis, 24 Kan. 750; State v. Jennings, 56 Wis. 113.

16 State v. Jennings, 56 Wis. 113. See People v. Supervisors, 32 Barb. 473; People v. Schuyler, 51 How. Pr. 461; People v. Supervis ors, 70 N. Y. 228; People v. Baker, 35 Barb. 104; 14 Abb. Pr. 19; People v. Board of Assessors, 7 Hun, 228; People v. Supervisors, 14 Barb. 52; Fornoff v. Nash, 23 Ohio St. 335.

17 Fornoff v. Nash, 23 Ohio St. 335; Bloxham v. Gibbs, 13 Fla. 55: United States v. Union Pac. Railw. Co. 4 Dill. 479; People v. Baker, 35 Barb. 105; 14 Abb. Pr. 19.

169. Master and servant.-An allegation in the complaint that the plaintiff was in the employ of the defendant, sufficiently alleges that the relation of master and servant existed between the parties; but no special contract between them is to be inferred from such an allegation.2 To entitle a servant to recover of the master, for an injury to the former happening to him in the course of his service, through the use of defective machinery or tools, he must prove notice to the master of the defects, and in order to be able to prove notice he must allege it in his complaint.3 The complaint should allege that the defect was unknown to the plaintiff, and that it was known to the defendant, or that, but for the want of proper care and diligence, it would have been known. Though, according to some of the decisions, if the existence of the defect were really unknown, but should have been known, the fact that the servant had equal means of knowledge is a matter of defense, and need not be negatived by the complaint. The master cannot be held liable to a servant for an injury caused by the negligence of a fellow-servant; 6 and in the absence of an averment that the master was negligent in employing or retaining such servant, the complaint does not sufficiently state a cause of action against the master. And an allegation that the master knew of the incompetency of

the delinquent servant is not supported by proof simply of an employment without reasonable inquiry as to fitness; employment without reasonable inquiry is a different issue from continuance in service after knowledge of incompetency, though they may be equal in their results so far as fixing the liability of the master or employer.9 In an action for a breach of contract of hiring, the issue being whether the plaintiff discharged his duties properly, testimony as to his competency, and as to his general fitness for the position for which he was employed, is inadmissible.10

1 McMillan v. Saratoga etc. R. R. Co. 20 Barb. 443.

2 McMillan v. Saratoga etc. R. R. Co. 20 Barb. 440.

3 McMillan v. Saratoga etc. R. R. Co. 20 Barb. 449; Byron v. N. Y. State Printing etc. Co. 26 Barb. 39; Columbus etc. R. R. Co. v. Arnold, 31 Ind. 174.

4 Buzzell v. Laconia Manuf. Co. 48 Me. 113. And see Mad River etc. R. R. Co. v. Barber, 5 Ohio St. 541; Georgia R. R. etc. Co. v. Kenney, 58 Ga. 485. Where the action was for a personal injury sus tained by the plaintiff in blasting, a complaint alleging an undertak ing on the part of the employer to furnish suitable powder, and a breach of that undertaking by furnishing mixed powder, a more hazardous article, the increased hazard being unknown to the plaintiff, whereby the explosion took place and the injury was sustained, was held to be sufficient in substance, without specifying what particular elements in the mixture rendered it less safe than suitable powder would have been: Eagle etc. Manuf. Co. v. Welch, 61 Ga 444. And see Spelman v. Fisher Iron Co. 56 Barb. 151.

5 Cummings v. Collins, 61 Mo. 520; Ind. etc. R. R. Co. v. Klein, 11 Ind. 38.

6 Slattery v. Railroad Co. 23 Ind. 81; Brazil etc. Coal Co. v. Cain. 98 Ind. 282; Hubgh v. Railroad Co. 6 La. An. 495; 54 Am. Dec. 565; Sullivan v. Railroad Co. 58 Ind. 26; Murray v. Railroad Co. 1 McMull 385 36 Am. Dec. 268; Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; Willis v. Oreg. Ry. & Nav. Co. Sup. Ct. Oreg. 4 Pacif. L. Rep. 121.

7 Slattery v. Railroad Co. 23 Ind. 81; Collier v. Steinhart, 51 Cal. 116; Dow v. Kan. Pacif. Railw. 8 Kan. 642. See Flike v. Railroad Co. 53 N. Y. 549; 13 Am. Rep. 545; Brothers v. Cartter, 52 Mo. 372; 14 Am. Rep. 424.

8 Union Pacif. Railw. v. Young, 8 Kan. 658. 9 Union Pacif. Railw. v. Young, 8 Kan. 658. 10 Stone v. Vimont, 7 Mo. App. 277.

2170. Mistake.-A mere mistake in stating the date of the facts constituting the plaintiff's cause of action, which is palpably a clerical error, will not render the

complaint bad on demurrer, if it be otherwise good.1 A complaint in an action to recover special damages for loss caused by the incorrect transmission of a telegram, which avers facts showing that the loss could not have been caused by the error, is bad after verdict.2 Where a complaint alleges mistake, and asks relief on that ground alone, it should point out the mistake and show in terms what the tenor of the instrument ought to be; 3 and it is not sufficient to say that it was the intention of the parties to make an instrument that would accomplish a certain object, and then ask the court to make a writing that will accomplish that object. Though if the complaint sets forth facts showing that the parties were mistaken, it is sufficient, although there is no direct allegation of mistake.5 In an action to have a written contract reformed, on the ground of mistake, the complaint must show that the alleged mistake was that of the parties to the contract, and that it was mutual; otherwise the court will not, as a rule, correct such mistake by the reformation of such instrument. And proof of the mistake and that it was mutual must be very clear. Where the complaint alleges mistake, and asks relief on that ground alone, the court will not reform the instrument on the ground that one of the parties to it was guilty of a fraud in its execution.9 Nor can mere mistake be proved under an averment of fraud.10 Knowledge of fraud or error in an account by the party to whom it has been presented, although the account has become a stated account by the mere failure of the party receiving it to object within a reasonable time, does not prevent or estop such party from afterwards setting up the fraud or error as a defense to an action on the account; but the burden of proof is upon the party disputing the account to show its incorrectness, 12