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,.
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
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
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.
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
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
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.
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,
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,
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,
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.
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.
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,
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.