KFLCC Kingdom Law 2nd Ed.

754

MANDAMUS

MANDATORY

305, 47 N. E. 623; Atlanta v. Wright, 119 Ga. 207, 45 S. E. 994; State v. Lewis, 76 Mo. 370; Ex parte Crane, 5 Pet 190, 8 L. Ed. 92; Marbury v. Madison, 1 Cranch, 158, 2 L. Ed. 60; U. S. v. Butterworth, 169 U. S. 600, 18 Sup. Ct. 441, 42 L. Ed. 873. The action of mandamus is one, brought in a court of competent jurisdiction, to obtain an order of such court commanding an inferior tribunal, board, corporation, or person to do or not to do an act the performance or omission of which the law enjoins as a duty resulting from an office, trust, or station. Where discre tion is left to the inferior tribunal or person, the mandamus can only compel it to act, but cannot control such discretion. Rev. Code Iowa, 1880, § 3373. Classification. The writ of mandamus is either peremptory or alternative, according as it requires the defendant absolutely to obey its behest, or gives him an opportunity to show cause to the contrary. It is the usual practice to issue the alternative writ first. This commands'the defendant to do the par ticular act, or else to appear and show cause against it at a day named. If he neglects to obey the writ, and either makes default in his appearance or fails to show good cause against the application, the peremptory man damus issues, which commands him absolute ly and without qualification to do the act. Lat In the civil law. The employing party in a contract of mandate. One who gives a thing in charge to another; one who requires, requests, or employs an other to do some act for him. Inst. 3, 27, 1, et seq, In French and Scotch law. The employing party in the contract of man datum, or mandate. Story, Bailm. § 138. Mandata licita recipiunt strictam in terpretationem, sed. illicita latam et ex tensam. Lawful commands receive a strict interpretation, but unlawful commands a broad and extended one. Bac. Max. reg. 16. Fr. In French law. A person employed by another to do some act for him; a mandatary. MANDANS. MANDANT. MANDATAIRE. transgredi noa potest. A mandatary can not exceed the limits assigned him. Jenk. Cent. 53. He to whom a mandate, charge, or commandment is given; also, he that obtains a benefice by mandamus. Briggs v. Spaulding, 141 U. S. 132, 11 Sup. Ct 924, 35 L. Ed. 662. A judicial command or precept proceeding from a court or judicial officer, directing the proper officer to enforce a judgment, sentence, or decree. Seaman v. Clarke, 60 App. Div. 416, 69 N. MANDATARY. MANDATE. In practice. Mandatarius terminos sibi positos

Y. Supp. 1002; Horton v. State, 63 Neb. 34, 88 N. W. 146. In the practice of the supreme court of the United States, the mandate is a precept or order issued upon the decision of an appeal or writ of error, directing the action to be taken, or disposition to be made of the case, by the inferior court In some of the state jurisdictions, the name "mandate" has been substituted for "mandamus" as the formal title of that writ In contracts. A bailment of property in regard to which the bailee engages to do some act without reward. Story, Bailm. { 137. A mandate is a contract by which a lawful business is committed to the management of another, and by him undertaken to be perform ed gratuitously. The mandatary is bound to the exercise of slight diligence, and is responsible for gross neglect. The fact that the mandator derives no benefit from the acts of the manda tary is not of itself evidence of gross negligence. Richardson v. Futrell. 42 Miss. 525; Williams v. Conger, 125 U. S. 397, 8 Sup. Ct 933, 31 L. Ed. 778. A mandate, procuration, or letter of attorney is an act by which one person gives power to another to transact for him and in his name one or several affairs. The mandate may take place in five different manners,—for the interest of the person granting it only; for the joint interest of both parties; for the interest of a third person; for the interest of a third person and that of the party granting it; and, finally, for the interest of the mandatary and a third person. Civ. Code La. arts. 2985, 2986. Mandates and deposits closely resemble each other; the distinction being that in mandates the care and service are the principal, and the custody the accessory, while in deposits the custody is the principal thing, and the care and service are merely accessory. Story, Bailm. § 140. The word may also denote a request or di rection. Thus, a check is a mandate by the drawer to his banker to pay the amount to the transferee or holder of the check. 1 Q. B. Div. 33. In the civil law. The instructions which the emperor addressed to a public function ary, and which were rules for his conduct These mandates resembled those of the pro consuls, the mandata jurisdictio, and were ordinarily binding on the legates or lieuten ants of the emperor in the imperial provinces and there they had the authority of th« principal edicts. Sav. Dr. Rom. c. 3, § 24 no. 4.

MANDATO.

In Spanish law. The con

tract of mandate. Escriche.

MANDATO, PANES DE. Loaves of bread given to the poor upon Maundy Thurs day.

MANDATOR.

The person employing an

other to perform a mandate.

MANDATORY. Containing a command; preceptive; imperative; peremptory. A pro vision in a statute is mandatory when dis obedience to it will make the act done under