"When a case has once been decided by this court on appeal, and remanded to the circuit court, whatever was before this court and disposed of by its decree is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution, according to the man date. That court cannot vary it, or examine it for any other purpose than execution, or give any other or further relief, or review it, et en for apparent error, upon any matter decided on appeal, or intermeddle with it, further than to settle so much as has been remanded. . . . if the circuit court mis takes or misconstrues the decrees of this court, and does not give full effect to the mandate, its action may be controlled, either upon a new appeal (if involving a sufficient amount) or by a writ of mandamus to exe cute the mandate of this court. But the cir cuit court may consider and decide auy mat ters left open by the mandate of this court; and its decisions of such matters can be re viewed by a new appeal only." In re San ford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, 40 L. Ed. 414. So, also, American Soda Fountain Co. v. Sample, 136 Fed. 857, 70 C. C. A. 415.
"The judgments of {the supreme court] are founded upon the records before it, and those judgments will be unhesitatingly enforced, except as their enforcement may be modified or restrained by events occurring subsequent to the period covered by the records. That such events may modify, and often do mod ify the mode and manner of enforcement, is well known to all members of the profession. The death of the parties, partial satisfac tion, changes of interest subsequent to judg ment, and sales upon the judgment pending the appeal, are instances where this result is frequently produced." South Fork Canal Co. v. Gordon, Fed. Cas. No. 13,189.
See LAW OF THE CASE.
In Contracts. A bailment of property in regard to which the bailee engages to do some act without reward. Story, Bailm. § 137. A contract whereby one party agrees to execute gratuitously a commission receiv ed from the other. Sohm, Born. L. 314.
In the early Roman law (before the doc trines of agency were developed), it was a trust or commission by which one person, called the mandator, requested another, the mandataries, to act in his own name and as if for himself in a particular transaction (special mandate), or in all the affairs of the former (general mandate). The manda tarius was the only one recognized as having legal rights and responsibilities as toward third persons in the transactions involved. As between him and the mandator, however, the latter was entitled to all benefit, and bound to indemnify against losses, etc.; but the service was gratuitous. Cent. Did: 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 64. It is, however, restricted to things of a personal nature at common law, and of these there must bs a delivery, actual or constructive. Story, Haulm. § 142; Lloyd v. Barden, 3 Strohh. (S. C.) 343.
Mandates and deposits closely resemble each oth er ; 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 thing and the care and service are merely accessory. Story, Bailin. § 140 ; 2 Kent 569.
For the creation of a mandate it is neces sary,—first, that there should exist some thing, which 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, §
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 give it validity. It may be verbal or in writing ; it may be ex press or implied ; it may be in solemn 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 condi tional, general or special, temporary or per manent. Wood. Civ. Law 242; 1 Domat, b. 1, t. 15, §§ 1, 6, 7, 8; Pothieit, de Mandat, c. 1, § 3.
In Louisiana it is generally gratuitous, but not so when a contrary intention is implied from conduct of parties or nature of busi ness; Succession of Fowler, 7 La. Ann. 207; a right to compensation may be inferred from nature of services without express agreement ; Waterman v. Gibson, 5 La. Ann. 672.
The mandatary, upon undertaking his trust and receiving his article, is bound to perform it as agreed upon; 5 B. & Ald. 117; French v. Reed, 6 Binn. (Pa.) 308; and is responsible only for gross negligence ; 2 Kent 571; 2 Ad. & E. 256; The New World v. King, 16 How. (U. S.) 475, 14 L. Ed. 1019; Burk v. Dempster, 34 Neb. 426, 51 N. W. 976; Hibernia Bldg. Ass'n v. McGrath, 154 Pa. 296, 26 Atl. 377, 35 Am. St. Rep. 828 ; but in considering the question of negligence, regard is to be had to any implied undertak ing to furnish superior skill arising from the known ability of the mandatary ; Story, Bailm. §§ 177, 182. The fact that a gratui tous bailee has given bond for the faithful performance of his duties as such does not increase his liability ; Hibernia Bldg. Ass'n v. McGrath, 154 Pa. 296, 26 Atl. 377, 35 Am. St. Rep. 828. Whether a bank is liable for neglect of its agent in collecting notes, see Montgomery'County Bank v. Bank, 7 N. Y. 459; Mechanics' Bank v. Earp, 4 Rawle (Pa.) 384; Warren Bank v. Bank, 10 Cush. (Mass.) 588; East-Haddam Bank v. Scovil, 12 Conn. 303; Jackson v. Bank, 6 H. & J. (Md.) 146; Bank of Washington v. Triplett, 1 Pet. (U. S.) 25, 7 L. Ed. 37; Kincheloe v. Priest, 89 Mo. 240, 1 S. W. 235, 58 Am. Rep. 117. He must render an account of his proceedings, and show a compliance with the condition of the bailment; Story, Bailin. § 191.
The dissolution of the contract may be by renunciation by the mandatary before com mencing the execution of tne undertaking ; 2 M. & W. 145; 22 E. L. & Eq. 501; Fellowes v. Gordon, 8 B. Monr. (Ky.) 415; Ferguson v. Porter, 3 Fla. 38; Story, Bailm. 192 ; by revocation of authority by the mandator ; Copeland v. Ins. Co., 6 Pick. (Mass.) 198; Morgan v. Stell, 5 Binn. (Pa.) 316 ; 5 Term 213 ; by the death of the mandator ; 2 V. & B. 51; Hunt v. Rousmanier, 8 Wheat. (U. S.) 174, 5 L. Ed. 589; by death of the man datary ; 2 Kent 504; 8 Taunt. 403; and by change of state of the parties ; Story, Ag. § 481; and in some cases by operation of law ; Story, Ag. § 500. See BAILMENT.
In Civil Law. The instructions which the emperor addressed to a public functionary, and which were to serve as rules for his conduct. These mandates resembled those of the proconsuls, the mandata jurisdictlo, and were ordinarily binding on the legatees or lieutenants of the emperor of the imperial provinces, and there they had the authority of the principal edicts. Savigny, Dr. Rom. c. 3, § 42, n. 4.
In Canon Law. A rescript of the pope, by which he commands some ordinary collator, or precentor, to put the person there nomi nated in possession of the first benefice va cant in his collation. As to their abuses. 2 Hall. Mid. Ages 212.