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MALICE, crim. law. A wicked intention to do an injury. 4 Mason, R. 115, 505: 1 Gall. R. 524. It is not confined to the intention of doing an injury to any particular person, but extends to an evil design, a corrupt and wicked notion against some one at the time of committing the crime; as, if A intended to poison B, conceals a quantity of poison in an apple and puts it in the way of B, and C, against whom he had no ill will, and who, on the contrary, was his friend, happened to eat it, and die, A will be guilty of murdering C with malice aforethought. Bac. Max. Reg. 15; 2 Chit. Cr. Law, 727; 3 Chit. Cr. Law,. 1104.

2. Malice is express or implied. It is express, when the party evinces an intention to commit the crime, as to kill a man; for example, modern duelling. 3 Bulstr. 171. It is implied, when an officer of justice is killed in the discharge of his duty, or when death occurs in the prosecution of some unlawful design.

3. It is a general rule that when a man commits an act, unaccompanied by any circumstance justifying its commission, the law presumes he has acted advisedly and with an intent to produce the consequences which have ensued. 3 M. & S. 15; Foster, 255; 1 Hale, P. C. 455; 1 East, P. C. 223 to 232, and 340; Russ. & Ry. 207; 1 Moody, C. C. 263; 4 Bl. Com. 198; 15 Vin. Ab. 506; Yelv. 105 a; Bac. Ab. Murder and Homicide, C 2. Malice aforethought is deliberate premedi-tation. Vide Aforethought.

MALICE, torts. The doing any act injurious to another without a just cause.

2. This term, as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions an injury to another. 11 S. & R. 39, 40.

3. Indeed in some cases it seems not to require any intention in order to make an act malicious. When a slander has been published, therefore, the pro-per question for the jury is, not whether the intention of the publication was to injure the plaintiff, but whether the tendency of the matter published, was so injurious. 10 B. & C. 472: S. C. 21 E. C. L. R. 117.

4. Again, take the common case of an offensive trade, the melting of tallow for instance; such trade is not itself unlawful, but if carried on to the annoyance of the neighboring dwellings, it becomes unlawful with respect to them, and their inhabitants may maintain an action, and may charge the act of the defendant to be malicious. 3 B. & C. 584; S. C. 10 E. C. L. R. 179.

MALICE AFORETHOUGHT, pleadings. In an indictment for murder, these words, which have a technical force, must be used in charging the offence; for without them, and the artificial phrase murder, the indictment will be taken to charge manslaughter only. Fost. 424; Yelv. 205; 1 Chit. Cr. Law, *242, and the authorities and cases there cited.

2. Whenever malice aforethought is necessary to constitute the offence, these words must be used in charging the crime in the indictment. 2 Chit. Cr. Law, *787; 1 East, Pl. Or. 402. 2 Mason, R. 91.

MALICIOUS. With bad, and unlawful motives; wicked.

MALICIOUS ABANDONMENT. The forsaking without a just cause a husband by the wife, or a wife by her husband. Vide Abandonment, Malicious.

MALICIOUS MISCHIEF, This expression is applied to the wanton or reckless de- struction of property, and the wilful perpetration of injury to the person. Alis. Prin. 448; 3 Dev. & Batt. 130; 8 Leigh, 719; 5 Ired. R. 364; 8 Port. 447; 2 Metc. 21; 3 Greenl. 177.

MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies. These terms import a wanton prosecution or arrest, made by a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular process and proceeding, which the facts did not warrant, as appears by the result.

2. This definition will be analysed by considering, 1. The nature of the prosecution or arrest. 2. Who is liable under it. 3. What are malice and probable cause. 4. The proceedings. 5. The result of the prosecution and afterwards, 6. The remedy.

3. - 1. Where the defendant commenced a criminal prosecution wantonly and in other respects against law, he will be responsible. Addis. R. 270; 12 Conn. 219. The prosecution of a civil suit, when malicious, is a good cause of action, even when there has been no arrest. 1 P. C. C. 210; 11 Conn. 582; 1 Wend. 345. But no action lies for commencing a civil action, though without sufficient cause. 1 Penns. R. 235.

4. - 2. The action lies against the prosecutor and even against a mere informer, when the proceedings are malicious. 5 Stew. & Port. 367. But grand jurors are not liable to an action for a malicious prosecution, for information given by them to their fellow jurors, on which a prosecution is founded. Hardin, 556. Such action lies against a plaintiff in a civil action who ma- liciously sues out the writ and prosecutes it; 16 Pick. 453; but an action does not lie against an attorney at law for bringing the action, when regularly employed. 16 Pick. 478. See 6 Pick. 193.

5. - 3. There must be malice and want of probable cause. 1 Wend. 140, 345; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii; Cooke, 90; Litt. Sel. Cas. 106; 4 Litt. 334; 3 Gil. & John. 377; 1 N. & M. 36; 12 Conn. 219; 3 Call. 446; 2 Hall, 315; 3 Mason, 112, 2 N. & M. 54,143. See Malice; Probable cause.

6. - 4. The Proceedings under which the original prosecution or action was held, must have been regular, in the ordinary course of justice, and before a tribunal having power to ascertain the truth or falsity of the charge, and to punish the supposed offender, the now plaintiff. 3 Pick. 379, 383. When the proceedings are irregular, the prosecutor is a trespasser. 3 Blackf. 210 . See Regular and irregular process.

7. - 5. The malicious prosecution or action must be ended, and the plain-tiff must show it was groundless, either by his acquittal or by obtaining a final judgment in his favor in a civil action. 1 Root, R. 553; 1 N. & M. 36; 2 N. & M. 54, 143; 7 Cowen, 715; 2 Dev. & Bat. 492.

8. - 6. The remedy for a malicious prosecution is an action on the case to recover damages for the injury sustained. 5 Stew. & Porter, 367; 2 Conn. 700; 11 Mass 500; 6 Greenl. 421; 3 Gill. & John. 377. See Case; Regular and irregular process.

See, generally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1 T. R. 493 to 551; Bac. Ab. Actions on the case, H; Bouv. Inst. Index, h. t.

MALUM IN SE. Evil in itself.

2. An offence malum in se is one which is naturally evil, as murder, theft, and the like; offences at common law are generally mala in sese.

3. An offence malum prohibitum, on the contrary, is not naturally an evil, but becomes so in consequence of its being forbidden; as playing at games, which being innocent before, have become unlawful in consequence of being forbidden. Vide Bac. Ab. Assumpsit, A, note; 2 Rolle's Ab. 355.

MALVEILLES. Ill-will. In some ancient records this word signifies malicious practices, or crimes and misdemeaners.

MALVERSATION, French law. This word is applied to all punishable faults committed in the exercise of an office, such as corruptions, exactions, extortions and larceny. Merl. Repert. b. t.

MAN. A human being. This definition includes not only the adult male sex of the human species, but women and children; examples: "of offences against man, some are more immediately against the king, other's more immediately against the subject." Hawk. P. C. book 1, c. 2, s. 1. Offences against the life of man come under the general name of homicide, which in our law signifies the killing of a man by a man." Id. book 1, c. 8, s. 2.

2. In a more confined sense, man means a person of the male sex; and sometimes it signifies a male of the human species above the age of puberty. Vide Rape. It was considered in the civil or Roman law, that although man and person are synonymous in grammar, they had a different acceptation in law; all persons were men, but all men, for example, slaves, were not persons, but things. Vide Barr. on the Stat. 216, note.

MANAGER. A person, appointed or elected to manage the affairs of another, but the term is more usually applied to those officers of a corporation who are authorized to manage its affairs. 1 Bouv. Inst. n. 190.

2. In banking corporations these officers are commonly called directors, and the power to conduct the affairs of the company, is vested in a board of directors. In other private corporations, such as railroad companies, canal, coal companies, and the like, these officers are called managers. Being agents, when their authority is limited, they have no power to bind their principal beyond such authority. 17 Mass. R. 29; 1 Greenl. R. 81.

3. The persons appointed on the part of the house of representatives to prosecute impeachments before the senate, are called managers.

MANBOTE. In a barbarous age, when impunity could be purchased with money, the compensation which was paid for homicide was called manbote.

MANCIPATIO, civil law. The act of transferring things called res mancipi. (q. v.) This is effected in the presence of not less than five witnesses, who must be Roman citizens and of the age of puberty, and also in the presence of another person of the same condition, who holds a pair of brazen scales, and hence is called Libripens. The purchaser (qui mancipio accipit) taking hold of the thing, says I affirm that this slave (homo) is mine, ex jure quiritium, and he is purchased by me with this piece of money (sas) and brazen scales. He then strikes the scales with the piece of money and gives it to the seller as a symbol of the price (quasi pretii loco.) The purchaser or person to whom the mancipatio was made did not acquire the possession of the mancipatio; for the acquisition of possession was a separate act. Gaius. 1, 119; Id. iv. 181.

Both mancipatio and in jure cessio existed before the twelve tables. Frag. Vat. 50. Mancipation no longer existed in the code of Justinian, who took away all distinction between res mancipi and nec mancipi. Smith's Dict. Gr. & Rom. Antiq. Verb. Mancipium; Coop. Jus. 442.

MANDAMUS, practice. The name of a writ, the principal word of which when the proceedings were in Latin, was mandamus, we command.

2. It is a command issuing in the name of the sovereign authority from a superior court having jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice. 20 Pick. 484; 21 Pick. 258; Dudley, 37; 4 Humph. 437.

3. Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ. 2 T. R. 385; 1 Cowen's R. 501; 11 Shepl. 151; 1 Pike, 11.

4. This writ was introduced io prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. 3 Burr. R. 1267; 1 T. R. 148, 9.; 2 Pick. 414; 4 Pick. 68; 10 Pick. 235, 244; 7 Mass; 340; 3 Binn. 273; 5 Halst. 57; Cooke, 160; 1 Wend. 318; 5 Pet. 190; 1 Caines, R. 511; John. Cas. 181; 12 Wend. 183; 8 Pet. 291; 12 Pet. 524; 2 Penning. 1024; Hardin, 172; 7 Wheat. 534; 5 Watts. 152; 2 H. & M. 132; 3 H. & M. 1; 1 S. & R. 473; 5 Binn. 87; 3 Conn. 243; 2 Virg. Cas. 499; 5 Call. 548. Mandamus will not lie where the law has given another specific remedy. 1 Wend. 318; 10 John. 484; 1 Cow. 417; Coleman, 117; 1 Pet. 567; 2 Cowen, 444; 2 M'Cord, 170; Minor, 46; 2 Leigh, 165; Const. Rep. 165, 175, 703.

5. The 13th section of the act of congress of September, 24, 1789, gives the supreme court power to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office, under the authority of the United States. The issuing of a mandamus to courts, is the exercise of an appellate jurisdiction, and, therefore constitutionally vested in the supreme court; but a mandamus directed to a public officer, belongs to original jurisdiction, and by the constitution, the exercise of original jurisdiction by the supreme court is restricted to certain specified cases, which do not comprehend a mandamus. The latter clause of the above section, authorizing this writ to be issued by the supreme court, to persons holding office under the authority of the United States, is, therefore, not warranted by the constitution, and void. 1 Cranch, R. 175.

6. The circuit courts of the United States may also issue writs of mandamus, but their power in this particular, is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. 7 Cranch, R. 504; 8 Wheat. R. 598; 1 Paine's R. 453. Vide, generally, 3 Bl. Com. 110; Com. Dig. h. t; Bac. Ab. h. t.; Vin. Ab. h. t.; Selw. N. P. h. t.; Chit. Pr. h. t.; Serg. Const. Index, h. t.; Ang. on Corp. Index, h. t.; 3 Chit. Bl. Com. 265 n. 7; 1 Kent. Com. 322; Dane's Ab. Index, h. t.; 6 Watts & Serg. 386, 397; Bouv. Inst. Index, h. t.; and the article "Courts of the United States."

MANDANT. The principal in the contract of mandate is so called. Story, Ag. 337.

MANDATARIUS. One who is entrusted with and undertakes to perform a mandate. This word is used by the civilians in the same sense that we use mandatary. Poth. du Mandat, n. 1.

MANDATARY, contracts. One who undertakes to perform a mandate. Jones' Bailm. 53; Story on Bailm. 38. Dr. Halifax calls him mandatee. Halif. Anal. Civ. Law, 70, 16, 17.

2. It is the duty of a mere mandatory, it is said, to take ordinary care of the property entrusted to him. Vide Negligence. But it has been held that he is liable only for gross negligence. 14 S. & R. 275; 2 Hawks, R. 145; 2 Murph. R. 373; 3 Dana, R. 205; 3 Mason, R. 132; 11 Wend, R. 25; Wright, R. 598; 1 Bouv. 1st. n. 1073.

MANDATE, practice. A judicial command or precept issued by a court or magi- trate, directing the proper officer to enforce a judgment, sentence or decree. Jones'. Bailm. 52; Story on Bailm. 137.

MANDATE. Mandatum or commission, contracts. Sir William Jones defines a mandate to be a bailment of goods without reward, to be carried from place to place, or to have some act performed about them. Jones' Bailm. 52; 2 Ld. Raym. 909, 913. This seems more properly an enumeration of the various sorts of mandates than a definition of the contract. According to Mr. Justice Story, it is a bailment of personal property, in regard to which the bailee engages to do some act without reward. Bailm. 137. And Mr. Chancellor Kent defines it to be when one undertakes, without recompense, to do some act for the other in respect to the thing bailed. Comm. 443. See, for other definitions, Story on Bailm. 137; Pothier, Pand. lib. 17, tit. 1; Wood's Civ. Law, B. 3, c. 5, p. 242; Halifaz's Anal. of the Civ. Law, 70,; Code of Louis. art. 2954; Code Civ. art. 1984; 1 Bouv. Inst. n. 1068.

2. From the very term of the definition, three things are necessary to create a mandate. First, that there should exist something 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. Poth. Pand. Lib. 17, tit. 1, p. 1, 1; Poth. Contr. de Mandat, c. 1, 2.

3. There is no particular form or manner of entering into the contract of mandate, prescribed 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 express or implied it may be in solemn form or in any other manner. Story on Bailm. 160. The contract may be varied at the pleasure of the parties. It may be absolute or conditional, general or special, temporary or permanent. Wood's Civ. Law, 242; 1 Domat, B. 1. tit. 15, 1, 6, 7, 8; Poth. Contr. de Mandat, c. 1, 3, n. 34, 35, 36.

4. As to the degree of diligence which the mandatory is bound to exercise, see Mandatory; Negligence; Pothier, Mandat, h. t; Louis. Code, tit. 15 Code Civ. t. 13, c. 2 Story on Bailm. 163 to 195; 1 Bouv. Inst. n. 1073.

5. As to the duties and obligations of the mandator, see Story on Bailm. 196 to 201; Code Civ. tit. 13, c. 3; Louis. Code, tit. 15, c. 4; 1 Bouv. Inst. n. 1074.

6. The contract of mandate may be dissolved in various ways: 1. It may be dissolved by the mandatary at any time before he has entered upon its execution; but in this case, as indeed in all others, where the contract is dissolved before the act is done which the parties intended, the property bailed is to be restored to the mandator.

7. - 2. It may be dissolved by the death of the mandatory; for, being founded in personal confidence, it is not presumed to pass to his representatives, unless there is some special stipulation to that effect. But this principally applies to cases where the mandate remains wholly unexecuted; for if it be in part executed, there may in some cases, arise a personal obligation on the part of the representatives to complete it. Story on Bailm. 202.; 2 Kent's Com. 504, 4; Pothier, Mandat, c. 4, 1, n. 101.

8. Whenever the trust is of a nature which requires united, advice, confidence and skill of all, and is deemed a joint personal trust to all, the death of one joint mandatary dissolves the contract as to all. See Story on Bailm. 202; Co. Litt. 112, b; Id. 181, b; Com. Dig. Attorney, C 8; Bac. Abr. Authority, C; 2 Kent's Com. 504 7 Taunt. 403.

9. The death of the mandator, in like manner, puts an end to the contract. See 2 Mason's R. 342; 8 Wheat. R. 174; 2 Kent's Com. 507; 1 Domat, B. 1, tit. 15, 4, n. 6, 7, 8; Pothier, Contract de Mandat, c. 4, 2, n. 103. But although an unexecuted mandate ceases with the death of the mandator, yet, if it be executed in part at that time, it is binding to that extent, and his representatives must indemnify the mandatory. Story on Bailm. 204, 205.

10. - 3. The contract of mandate may be dissolved by a change in the state of the parties; as if either party becomes insane, or, being a woman, marries before the execution of the mandate. Story on Bailm. 206; 2 Roper, Husb. and Wife, 69, 73; Salk. 117; Bac. Abr. Baron and Feme, E; 2 Kent's Com. 506,

11. - 4. It may be dissolved by a revocation of the authority, either by operation of law, or by the act of the mandator.

12. It ceases by operation of law when the power of the mandator ceases over the subject-matter; as, if he be a guardian, it ceases, as to his ward's property, by the termination of the guardianship. Pothier, Contract de Mandat, c. 4, 4, n. 112.

13. So, if the mandator sells the property, it ceases upon the sale, if it be made known to the mandatory. 7 Ves. jr. 276; Story on Bailm. 207.

14. By the civil law the contract of mandate ceases by the revocation of the authority. Story on Bailm. 208; Code Civ. art. 2003 to 2008; Louis, Code, art. 2997.

15. At common law, the party giving an authority is generally entitled to revoke it. See 5 T. R. 215; Wallace's R. 126; 5 Binn. 316. But, if it be given as a part of a security, as if a letter of attorney be given to collect a debt, as a security for money advanced, it is irrevocable by the party, although revoked by death. 2 Mason's R. 342; 8 Wheat. 174; 2 Esp. R. 365; 7 Ves. 28; 2 Ves. & Bea. 51; 1 Stark. R. 121; 4 Campb. 272.

MANDATE, civil law. Mandates were the instructions which the emperor addressed to public functionaries, which were to serve as rules for their conduct. 2. These mandates resembled those of the pro-consuls, the mandata jurisdictio, and were ordinarily binding on the legates or lieutenants of the emperor of the imperial provinces, and, there they had the authority of the principal edicts. Sav. Dr. Rom. ch. 3, 24, n. 4

MANDATOR, contracts. The person employing another to perform a mandate. Story on Bailm. 138; 1 Brown, Civ. Law, 382; Halif. Anal. Civ. Law, 70.

MANDAVI BALLIVO, English law. The return made by a sheriff, when he has committed the execution of a writ to a bailiff of a liberty, who has the right to execute the writ.

MANHOOD. The ceremony of doing homage by the vassal to his lord was de- nominated homagium or manhood, by the feudists. The formula used was devenio vester homo, I become you Com. 54. See Homage.

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