had been made to the original complaint, they were held to be precluded, after the trial, from objecting to the want of an issue.38 A failure to state facts which show that the contract in suit was a valid one, as founded on a sufficient consideration, is a radical defect, and is not cured.39 An allegation that an excavation in a sidewalk was negligently and carelessly suffered by defendant to be left open and unguarded, where the deceased fell in and was killed, implies, after verdict, that the defendant had notice of its dangerous condition.40 A mistake in dates-as, one which shows that the plaintiff's right did not accrue until after suit broughtis cured by verdict." So are misnomer in the petition,42 and de 38 Gale v. Tuolumne Water Co., 14 Cal. 25. 39 Welch v. Bryan, 28 Mo. 30. Richardson, J., says: "The ninth clause of the nineteenth section of the statute of jeofails, viz., for omitting any allegation or averment, without proving which the triers of the issue of fact ought not to have given such a verdict, is only a declaration of the common law, that a verdict will aid a title defectively set out, but not a defective title." Followed in Frazer v. Roberts, 32 Mo. 457. 40 Bowie v. Kansas City, 51 Mo. 454. The general rule, with its limitation, is also recognized in Missouri, in Shaler v. Van Wormer, 33 Mo. 386; Richardson v. Farmer, 36 Mo. 35; Jones v. Louderman, 39 Mo. 287; International Bank v. Franklin Co., 65 Mo. 105. 41 Coryell v. Cain, 16 Cal. 567. In Garner v. Marshall, 9 Cal. 268, the general rule is recognized, but a doubt is expressed whether, in ejectment by one who relies upon title by a sale on foreclosure, an omission to state title, or possession in the mortgagor, was not fatal even on error. In Barron v. Frink, 30 Cal. 486, the plaintiff sued for the price of hay upon a contract for its sale, alleging part payment, and that there was due a certain sum, which the defendant refused to pay. But there was no allegation of delivery, or of an offer to deliver, the hay. This was held to be a radical defect in the complaint, which was not cured by verdict, and the judgment was reversed. But see Happe v. Stout, 2 Cal. 460, where the defendant was sued upon a promise to pay a judgment against another, upon condition that the execution was stayed. The complaint did not allege that the execution was stayed, although it was shown in evidence, but the court held that the defect was cured by verdict. And that an omission to state the performance of conditions precedent is cured by verdict, see, at common law, Collins v. Gibbs, 2 Burrows, 899, where the doctrine was admitted, but the judgment was arrested on default; Bailey v. Clay, 4 Rand. (Va.) 346; Justice v. Vermillion Co., 2 Blackf. 149. It should 42 Kronski v. Missouri Pac. Ry. Co., 77 Mo. 362. 43 partures in the reply. A loose allegation in regard to the neg ligence of a railroad defendant in fencing their road, upon which the plaintiff's cattle had entered, was held in Indiana to be sufficient after verdict. "The Code," says the opinion, "has little toleration for the practice of concealing questions from the lower courts, with a view to make them available upon vexatious appeals; and it is, therefore, necessary to the harmony of our practice as a whole, as well as to the fair administration of justice, that the most liberal form of common-law doctrine of intendment after verdict shall be 45 46 fully maintained." " The objection that the complaint does not show that the note sued on has not been paid comes too late after verdict. The Indiana Code " requires that, when a pleading is founded on a written instrument, or on account, the original or copy be filed with pleading, which shall be taken as part of the record. But, though a failure to file the paper is ground for demurrer, the defect will be healed by verdict." be noted that in California the statute makes one of the grounds of demurrer "that the complaint is ambiguous, unintelligible, or uncertain," and also provides that the objection is waived if not taken by demurrer, or answer. Thus, many defects are cured under this statute which, in other States, would be referred to the common-law rule, or to the statutes of jeofails. See People v. Rains, 23 Cal. 131; Jones v. Block, 30 Cal. 227. 43 Beard v. Hand, 88 Ind. 183. 44 Frazer, J., Indianapolis, P. & C. R. Co. v. Petty, 30 Ind. 261. The general doctrine is well stated in Dickerson v. Hays, 4 Blackf. 44, and in Peck v. Martin, 17 Ind. 115. 45 Howorth v. Scarce, 29 Ind. 278. 46 Code Civ. Proc. Ind. § 78 (Rev. St. 1881, § 362). 47 Westfall v. Stark, 24 Ind. 377; Eigenman v. Backof, 56 Ind. 494. For other instances when the doctrine of the text has been applied to specific facts, see Vassau v. Thompson, 46 Wis. 345 [1 N. W. 4]; Bowie v. Kansas City, 51 Mo. 454; Grove v. Kansas City, 75 Mo. 672; Eshelman v. Snyder, 82 Ind. 498; Indianapolis & V. R. Co. v. McCaffery, 72 Ind. 294. (682) CHAPTER XXII. [Additional Chapter by Prof. E. F. Johnson, Editor of the Third Edition.] EXTRAORDINARY LEGAL REMEDIES. (a) Mandamus. Section 443. Mandamus defined-Its Nature and Object. 451. Quo Warranto defined-Its Nature and Object. 452. What Courts have Jurisdiction. 453. When issues. 454. Pleading and Practice. 455. Parties. (c) Prohibition. 456. Prohibition defined-Its Nature and Purpose. 457. What Courts have Jurisdiction. 458. When issues. 459. Pleading and Practice, 460. Parties. (a) Mandamus. § 443. Mandamus defined-Its Nature and Object. Blackstone defines a writ of mandamus to be "a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office or duty." Dr. James L. High defines it as follows: "The modern writ of mandamus is a 13 Bl. Comm. 110. command issuing from a common-law court of competent jurisdiction, in the name of the state or sovereign, directed to some corporation, officer, or inferior court, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law." 2 Originally it was regarded as a "high prerogative writ," issuing in the king's name from the king's bench, and it still preserves some of its prerogative features in this country. It generally issues in the name of the state or sovereign; but, where a private right, only, is involved, it may issue, in some of the states, in the name of such person. In most of the states of this country it has lost its prerogative character, and has come to be regarded in the nature of an ordinary action at law between the parties.3 Lord Mansfield, in speaking of the object of the writ, says: "A mandamus is a prerogative writ, to the aid of which the subject is entitled, upon a proper case previously shown, to the satisfaction of the court. The original nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced to prevent disorder from a failure of justice and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy, and where, in good government, there ought to be one. Within the last century it has been liberally interposed for the benefit of the subject and advancement of justice. The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right, and no other remedy, this remedy should not be denied." We have little or no information of the very early use of this remedy as a mandate of the king, but its use as a judicial remedy can be traced to the reign of Edward II. 2 High, Extr. Rem. § 1. 8 Kendall v. U. S., 12 Pet. 524; Com. v. Dennison, 24 How. 66, where Taney, C. J., said: "It is well settled that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ." * Rex v. Baker (1762) 3 Burrows, 1267. 5 Withrington's Case, 2 Leon. pt. 3, p. 268; Bagg's Case, 11 Coke, 93; Middleton's Case, 2 Dyer, 332; State v. Williams, 69 Ala. 311. § 444. Mandamus and specific Performance distinguished. The remedy by mandamus resembles that by specific performance, in that it compels the performance of a particular duty or act; but they are widely different in the character of the duty enforced, the former having for its object the enforcement of the performance of a duty arising out of the official position or relation of the respondent, or specifically imposed upon him by law, while the latter is used only to enforce the performance of some act growing out of the private or contractual relations of men. Mandamus is never the remedy to enforce the performance of duties growing out of contractual rights." § 445. Mandamus and Injunction distinguished. There are some points of similarity, as well as points of dissimilarity, between a mandamus and an injunction. Neither is granted when there is another adequate and effectual remedy. Each is dependent upon the discretion of the court. A mandamus enforces action, while an injunction restrains action. The former compels the performance of some public duty, while the latter restrains some private action (except a mandatory injunction, which compels action). The one is to correct past grievances, while the other is to prevent future damages." § 446. When issues. The remedy by mandamus will never be granted where the usual and ordinary modes of proceeding afford adequate redress to the party. It is only granted when there is no other adequate or specific remedy to secure the enforcement of the right and the performance of the duty sought to be enforced. And this fact must • State v. Zanesville, etc., Co., 16 Ohio St. 308; People v. Dulaney, 96 III. 503; State v. County Court, 39 Mo. 375. People v. Inspectors of State Prison, 4 Mich. 187; Sherman v. Clark, 4 Nev. 138; Crawford v. Carson, 35 Ark. 565. 8 Ex parte Virginia Com'rs, 112 U. S. 177, 5 Sup. Ct. 421; State v. Marshall, 82 Mo. 484; Babcock v. Goodrich, 47 Cal. 488. |