Page:The American Cyclopædia (1879) Volume XI.djvu/107

MANDATE 99 aries and very feeble attempts at a school. The Mandans live partly by agriculture, having 100 acres in corn and potatoes, and possessing 150 horses, but they have no cattle or proper im- plements. They extend their hunts west to the Kocky mountains, north to the British line, and south to the Black hills. The Mandans are of lighter complexion than many of the tribes, and gray hair, even in young persons, is com- mon. This, and a story based on very vague y that Welsh soldiers at Fort Chartres conversed in their language with the Mandans, has led to many attempts to trace their origin- to Madoc's supposed Welsh colony. Their houses are of wood ; some of them are polygo- nal in shape, with an excavated cellar in the centre. The wooden frame is covered with earth, and the roof is a favorite resort. Quad- rangular log cabins are also used. Besides pipes, arrows, bows, &c., they make matting of wild rushes, baskets of willow bark woven different and intricate colored patterns, large beads, and a very substantial black pottery ; some of the vessels hold three gallons and are capable of standing great heat. Their canoes are made of skins. They place the dead, wrapped in skins, on scaffolds, and when these fall they gather the skulls and place them in circles. They have a strange annual religious ceremony, relating to the great canoe and Nu- mokhmuckanah, the first or only man. They have many peculiar dances and a fearfully cruel initiation rite for young warriors. MANDATE, a law term derived from the Eoman civil law. It may be defined as a bail- ment (delivery) of a chattel or chattels to a per- son who is to do something with or about the things bailed, entirely without compensation. The essential element of the contract lies in the fact that there is not paid or promised, in law or in fact, any compensation whatever for the service to be rendered. The person deliv- ering the chattels is called a mandator; and the person receiving them and undertaking the service is called a mandatary. As it must be a service or an act, the whole benefit of which rests with the mandator, this, by the ordinary principles of bailment, determines the amount of care to which the mandatary is bound, and the degree of negligence for which he is an- swerable. For negligence in a bailee has in law three degrees: slight negligence, which makes the bailee responsible where the bail- ment was wholly for his benefit ; ordinary negligence, for which he is responsible if the bailment be for the benefit of both parties ; id gross negligence, for which only the bailee responsible where the contract is for the ex- lusive benefit of the bailor. And as it is not mandate if the bailee derives any benefit whatever from the service, it follows that a idatary is responsible for loss of or for in- iry to the thing delivered to him, only when is caused by his gross negligence. There is especial form for the contract of mandate ; may be in writing or by word only, and made very solemnly or in the simplest way ; in either case the law is the same. The mandator may recall the thing delivered at any time, and so rescind the contract. But if the nature of the contract be such that a mandatary has ren- dered the service in part, and will himself suf- fer detriment if it be not completed, the man- dator cannot now rescind it without providing adequate indemnity to the mandatary. When the contract is lawfully dissolved, the chattel must be restored to the mandator ; but if in- demnity be due to the mandatary, he would have a lien on the chattel to secure it. So, too, the contract would be dissolved by the death of the mandator or of the mandatary, or by any change in the state of the parties which from its nature should recall it, as by insolvency of either party, or insanity, or the marriage of a woman, or the sale of the property, or the ter- mination of a guardianship on which the man- date rested. But in all these cases there must be the same exception as to a service partially rendered. So, too, it is believed that the man- datary may at his own pleasure terminate the contract ; and as he may do this at any time, he may do it before he has begun to perform the service at all. But this very question has been more frequently and more elaborately discussed than any or all others which have arisen out of the contract of mandate. Banks and bankers are so far mandataries, that they receive notes for collection, and render, or en- gage to render, by agreement or by mercantile usage, these and similar services without any especial or specific compensation. But it is understood that they do this as a part of their business, and for the general and indirect bene- fit they derive from doing it ; and this is un- doubtedly consideration enough to make them liable for any injury to their customer caused by their negligence ; and it is sufficient to make them liable that their negligence was ordinary, or consisted in the want of common care. We have seen that a mandatary is, by law, liable only for gross negligence. But it is a volun- tary contract, and the parties may vary it in any way, and make it more or less stringent, at their pleasure. Where the parties enter into no specific stipulations, there the law sometimes varies their liabilities in accordance with the particular circumstances of the case. Thus, it is an obvious principle that the man- dator has no right to require any more skill or care than he has reason to expect. If an own- er of a valuable chronometer carry it for re- pair to an ordinary watchmaker who does no business of this kind, and the instrument be injured in his hand because no more care and no better skill were applied to it than would suffice for ordinary watches, the owner has no one to blame but himself ; unless he can show that the watchmaker especially undertook to be able to do the work required, and that the bailor had no means of knowing his incompe- tency. On the other hand, if the owner in- trusted his instrument to a person who was