MANDATE. A judicial command or precept issued by a court or magrstrate, directing the proper officer to enforce a judg ment, sentence, or decree. Jones, Bailm. 52.
A bailment of property in regard to wbich the bailee engages to do some act without reward. Story, Bailm. 137.
The contract of mandate in the civil law is not limited to personal property, nor does it require a delivery of personal property when it relates to that. Pothier, de Mand. n. 1 ; La. Civ. Code, 2954— 2964. It is, however, restricted to things of a per sonal nature at common law, and of these there must be a delivery, actual or constructive. Story, Bailm. ,0 142; 3 Strohh. So. C. 343.
Mandates and deposits closely rosemble each other : the distinction being that in mandates the care and gervice are the principal, and the custody the (memory; while in deposits the cuatody is the principal thing, and the care and service are merely, accessory. Story, Bailm. 140.
2. For the creation of a mandate it is necessary, — first, that there should exist something, vvhich should be the matter of the contract; secondly, that it should be done gratuitously ; and, thirdly, that the parties should voluntarily intend to enter into the contract. Pothier, Pand. 1. 17, t. 1, p. 1, ,g 1; Pothier, de Mandat, c. 1, 2.
There is no particular form or manner of entering into the contract of mandate pre scribed either by the common law or by the civil law, in order to Five it validity. It may be verbal or in writing ; it may be express or implied ; it may be in aolemn form or in any other manner. , Story, Bailm. 160. The contract may be varied at the pleasure of the parties. It may be absolute or con ditional, general or special, temporary or per manent. Wood, Civ. Law, 242; 1 Domat, b. 1, t. 15, N 1, 6, 7, 8 ; Pothier, de Mandat, c. 1, ,g 3, nn. 34-36.
3. The mandatary, upon undertaking his trust and receiving his article, is bound to perform it as agreed upon, 2 Ld. Raym. 919; 1 Taunt. 523 ; 5 Barnew. & Ald. 117; 1 Sneed, Tenn. 248 ; 6 Binn. Penn. 308 ; 5 Fla,. 38, and is responaible only for gross negli gence, 2 Kent, Comm. 4th ed. 571-573 ; 1 H. Blackst. l 58 ; 4 Barnew. & C. 345 ; 2 Ad. &
E. 256 ; 16 How. 475 ; 3 Mas. C. C. 132; 14 Serg. & R. Penn. 275 ; 17 Mass. 459 ; 2 Hawks, No. C. 146 ; 8 Mete. Mass. 91 ; but in considering the question..of negligence, regard is to be had to any implied under taking to furnish superior skill arising from the known ability of the mandatary. Story, Bailm. 177, 182 ; Jones, Bailm. 14-16 ; 20 Mart. La. 68. Whether a bank ia liable for neglect of its agents in collecting notes, see 22 Wend. N. Y. 215 ; 3 Hill, N. Y. 560 ; 8 N. Y. 459 3 Hill, So. C. 77; 4 Rawle, Penn. 384 2' Gall. C. C. 565 ; 10 Cush. Mass. 583 • 12 &um 303 ; 6 Harr. & J. Md. 146 ; 4 Whart. 105 ; 1 Pet. 25. He must render an account of his proceedings, and •show a compliance with the conditions of the bail ment. Story, Bailin. N 191 et seq.
4. The dissolution of the contract may be by renunciation by the mandatary before commencing the execution of the under taking, 2 Mees. & W. Exch. 145 ; 1 Mood. 8c R. 38 ; 2 Ld. Raym. 909 ; 22 Eng. L. & Eq. 501 ; 8 B. Monr. Ky. 415 ; 3 Fla. 38; by revo cation of authority by the mandator, 6 Pick. Mass. 198 ; 5 Binn. Penn. 316 ; 5 Term 213; see 4 Taunt. 541 ; 16 East, 382; by the'cleath of the mandator, 6 East, 356 ; 5 Esp. 118 ; 2 Ves. & B. Ch. Ir. 51 ; 2 Man. C. C. 244 ; 8 Wheat. 174 ; by death of the tnandatary, 2 Kent, Comm. 504 ; 8 Taunt. 403 ; and by a change of state of the parties, Story, Ag. 481 ; and in some cases by operation of law. Story, Ag. 500.
The question of gross negliFence is one for the jury, 2 Ad. & E. 256 ; 3 Bingh. N. c. 468; 11 Wend. N. Y. 25, and the plaintiff must show it. 3 East, 192 ; 4 Esp. 165 ; 2 Ad. & E. 80 ; 10 Watts, Penn. 335. See 3 Johns. N. Y. 170 ; 2 Wheat. 100 ; 7 B. Monr. Ky. 661 ; 8 Humphr. Tenn. 430.
In Civil Law. The instructions which the emperor addressed to a public functionary, and which were to serve as rules for his con duct. These mandates resembled those of the proconauls, the mandata jurisdictio, and were ordinarily binding on the legates or lieutenants of the emperor of the imperial provincea, and there they had the authority of the principal edicts. Savigny, Dr. Rom. c. 3, 24, n. 4.