Page:Black's Law Dictionary (Second Edition).djvu/762

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MANDAMUS

305. 4-7 N. E. 623: Atlanta v. Wright 119 Ga. 207. 45 S. E. 99-1: State v. Lewis. 76 Mo. 370; Ex parte Crane. 5 Pet. 190, 8 L. Ed. 92; Marhury v. Madison. 1 Crunch. 158. 2 L. Ed. 60: U. S. v. Buttei'\voi'th. 169 U. S. 600. 18 Sup. Cl; 441 42 L. Fd. 873.

The action of mizmlumus is one, ‘brought in a court of competent jurisdiction, to obtain an oiiier of such Luurl. commanding an inferior tribunni, board, corporation, or person to do or not to do an act the performance or omission of which the low enjoins as a do resulting from an office, trust, or station. W ere discretion is left to the inferior ti-ibiinai or peison. the mandamus can only cunipci it to act, but cannot control such discretion. Rev. Code iowo, 1850, I 3375.

Classification. The writ of mandamus is either peremptory or altematiue. according as it requires the dafendant absolutely to obey its behest, or gives him an opportunity to show l.i1llSe to the contrary It is the usual p1'.icLiCe to issue the alternative writ first. This commands the defendant to do the particular act, or else to appear and show cause against it ut a. day named. If he neglects to obey the writ, and either makes default in his appearance or falls to show good cause ngainst the application, the peremptory mandamus issues, which commands him absolute- ly and without qualification to do the act.

MANDANS. Let. 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.

MANDANT. In French and Scotch law. The employing party in the contract of manduiiun, or mandate. Story, Bolim. § 13&

Mandate iicitn tecipiunt st:-ietam interpretationem, sell Lllicita. Intam et extensmn. Lawful commands receive a strict interpretation, but unlawful commands B. brood and extended one. Bac. Max reg. 16.

MAITDATAIRE. Fr. In French law. A person employed by another to do some act for him; B. mandatory.

Mandatarius terminus oibi pooiton trnnsgredi non potent. A mandatory cannot exceed the limits assigned him. Jenii. Cent. 53.

MANDATARY. He to whom a mandate. charge, or commandment is given; also, he that obtains a bencfice by mamlamus. Briggs v. Spaulding. 141 U. S. 132, 11 Sup. Ct. 924. 35 L. Ed GG2.

MANDATE. In practice. A judicial command or precept proceeding from a court or judicial oflu-er. directing the proper officer to enforce a judgment, sentence, or decree. Seaman v. Clarke. 60 App. Div. 416, 69 N.

754

MANDATORY

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 mandats 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 "mondmnus" us the formal title of that Wl‘li'.

In contractl. A haliment of property in regard to which the baiiee engages to do some art without reward Story, Baiim. i 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 mandatory is bound to the exercise of slight diligence, and is responsible for gross neglect. The fact that the mnndator derives no benefit from the nets of the mandatary is not of itself evidence of gross negligence. Richardson v. 1<‘utrel 42 Miss. 525; Williams '\'. Conger, 125 U. S. 97, 8 Sup. Ct. 933. 31 L. Ed. 773. A mandate, prociiration, 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./tor the interest of the person granting it only; for the joint interest o both parties; for the interest of Ii. third person; for the interest of a third person and that of the party granting it: and, finally, for the interest of the miindalary nnri ii third person. Civ. Code Lia. arts. ‘Z955. Z186.

Mandates and deposits closely resemble each other: the distinction being that in mandate: the care and service are the principal, and the custody the accessory while in deposits the custody is the principai thing, and the care and ie4I(')Vi(.'e are merely accessory. Story. Baihn. §

The word may also denote a. request or di- rection. Thns, a. checii 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 functionary, and which were ruies for his conduct. These mandates resembled those of the proconsuls, the mandate jurisdictiu, and were ordinarily binding on the legatea or lieutenants of the emperor in the imperial provinces and there they had the authority of the principal edicts. Sav. Dr. Rom. c. 3, f 2-1 no. 4.

MANDATO. In Spanish low. The contract of mandate. Escriche.

NIAITDATO, PAN!-IS DE. Loaves of bread given to the poor upon Moundy Thurs day.

MAITDATOR. The person employing iJ.il- other to perform a. mandate.

MANDATORY. Containing a command; preceptive; imperative; peremptory. Apro- vision in a statute is mandatory when dis-

obedience to it will maiie the act done under