J.—The objections raised on the argument for writ of peremptory mandamus have been duly considered and have led me to the following conclusions:
First. The variance between the declaratory and mandatory part of the alternative writ is not fatal. Section 471 of the Code is a sufficient authority for an amendment of the ' proceeding.
• Second. The plea of “ no appropriation ” is not properly interposed by the county auditor upon a proceeding to compel him to audit, approve and allow a claim, but should be reserved for ah application to compel its payment.
Third. Sections 119 and 120 of the act to provide for the enrollment of the militia,, passed April 23, 1862, confer sufficient authority upon the board of supervisors, not only to hire, but to erect a suitable and convenient armory, drill-room and place for the safe-keeping of arms, &c., and the expense thereof is made a county charge. The power given to provide for a permanent location of -an armory, by erecting the same, may be fairly construed to authorize the hiring of a building for that purpose for a term of years.
Fou/rth. The question of fraud may be raised and investigated whenever it is made to appear, and the audit of the *375board of supervisors is not conclusive upon this point. The People ex rel. Brown agt. Oreen (46 How. Pr. R., 302); Same ex rel. Kwikel agt. Earle (as modified at last general terra); People ex rel. Outaoater agt. Earle, are not adverse to this theory.
But the charge of fraud is general, and points out no specific-act (save alleged excess of rent reserved) which the relator is called upon to controvert. In this particular the return is also insufficient.
But the respondent may have leave to file an amended return within ten days, when, if specific acts of fraud are alleged, the proof of which would avoid the lease, the issues thus raised may be ordered to be tried.