MANDATE. A direction or request. Thus a check is a mandate by the drawer to his banker to pay the amount to the holder of the check; 1 Q. B. Div. 33.
A power of attorney to receive payment in the extinguishment of an obligation. It may be express or implied. See Howe, Stud. Civ. L. 152.
In Practice. A judicial command or pre cept issued by a court or magistrate, direct ing the proper officer to enforce a judgment, sentence, or decree.
The judgment of an appellate court sent down to the court whose proceedings have been reviewed.
In some jurisdictions the court of last resort is authorized to enter final judgment upon which execution may issue without further proceedings, but neither of the fed eral appellate courts has such power ; 1 U. S. R. S. § '701 ; Fost. Fed. Pr. § 495. Ac cordingly in these courts, and in appellate courts generally, it is the practice to send down a mandate embodying the judgment. Rule 39 of the supreme court of the United States (32 Sup. Ct. xiv) provides that the mandate shall go down at the expiration of 30 days ; but for proper cause shown a spe cial mandate may be ordered, or the man date withheld. A mandate may be recalled from the inferior court and set aside or cor rected at the term at which it is issued; Killian v. Ebbiughaus, 111 U. S. 798, 4 Sup. Ct. 697, 28 L. Ed. 593; but an application to recall and correct the mandate cannot be made after the close of the term; id.; Schell v. Dodge, 107 U. S. 629, 2 Sup. Ct. 830, 27 L. Ed. 601; Waskey v. Hammer, 179 Fed. 273, 102 C. C. A. 629.
Where there is a reversal of a judgment or decree which has been executed pending the appeal, a direction of the court below to compel restitution should be included in the mandate; Morris's Cotton, 8 Wall. (U. S.) 507, 19 L. Ed. 481; even where the re versal is for want of jurisdiction; North western Fuel Co. v. Brock, 139 U. S. 216, 11 Sup. Ct. 523, 35 L. Ed. 151. Restitution may be enforced by contempt proceedings; Ex parte Morris, 9 Wall. (U. S.) 605, 19 L. Ed. 799; and it may be compelled even where a third person has received the funds or prop erty, if he is within the jurisdiction and no superior equities in his favor have inter vened; id.; but duties or charges paid by the party from whom restitution is required may be allowed; id. Restitution from the
United States cannot be compelled; The Santa Maria, 10 Wheat. (U. S.) 431, 6 L. Ed. 359.
Interest should be included in the man date, otherwise it cannot be awarded after the affirmance; Boyce v. Grundy, 9 Pet. (U. S.) 275, 9 L. Ed. 127; but after affirmance the defendant. is entitled to interest at the legal rate from the date of judgment until payment ; 1 U. S. R. S. § 1010 ; Perkins v. I ourniquet, 14 How. (U. S.) 328, 14 L. Ed. 441.
When the mandate is filed in the court below, that court again acquires jurisdiction of the case. It has been held that in some cases a state court may act upon an affirm ance without awaiting the mandate; In re Shibuya Jugiro, 140 U. S. 291, 11 Sup. Ct. 770, 35 L. Ed. 510; but it is clearly the better practice to have the proceedings below await the mandate, which may always be specially applied for if circumstances require it. It is held that the statute of limitations against the right of the purchaser to ,sue for breach of warranty of title would run from the deci sion of the appellate court that his title was invalid, and not from the time of filing,the mandate ; Nickles v. U., S., 42 Fed. 757.
The court below is bound by the decree of the appellate court as set forth in the mandate ; Sibbald v. U. S., 12 Pet. (U. S.) 488, 9 L. Ed. 1167 ; which must be inter , preted according to its subject-matter, with due consideration to the decree below as well as that above; Mitchel v. U. S., 15 Pet. (U. S.) 52, 10 L. Ed. 658; Mackall v. Richards, 116 U. S. 45, 6 Sup. Ct. 234, 29 L. Ed. 558. After the case has been sent back by a man date it has been held too late to question the jurisdiction ; Whyte v. Gibbes, 20 How. (U. S.) 541, 15 L. Ed. 1016 ; to grant a uew trial; Ex parte Dubuque, & P. R. Co., 1 Wall. (U. S.) 69, 17 L. Ed. 514 (except in ejectment; Smale v. Mitchell, 143 U. S. 99, 12 Sup. Ct. 353, 36 L. Ed. 90) ; to permit the filing of a supplemental answer ; Re Story, 12 Pet. (U. S.) 389, 9 L. Ed. 1108 ; to grant leave to file a supplemental bill suggesting new defences; Mack all v. Richards, 116 U. S. 45, 6 Sup. Ct. 234, 29 L. Ed. 558; to review the case below on its merits ; Durant v. Essex County, 101 U. S. 555, 25 L. Ed. 961.