From: Subject: Bouvier's Law Dictionary, 1856 Edition - Letter O Date: Tue, 1 May 2007 22:10:02 -0600 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0050_01C78C3D.77482920" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3028 This is a multi-part message in MIME format. ------=_NextPart_000_0050_01C78C3D.77482920 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Bouvier's Law Dictionary, 1856 Edition - Letter = O

Bouvier's Law Dictionary
1856 Edition

O

OATH. A declaration made according to law, before a competent = tribunal=20 or officer, to tell the truth; or it is the act of one who, when = lawfully=20 required to tell the truth, takes God to witness that what he says is = true. It=20 is a religious act by which the party invokes God not only to witness = the truth=20 and sincerity of his promise, but also to avenge his imposture or = violated=20 faith, or in other words to punish his perjury if he shall be guilty of = it. l0=20 Toull. n. 343 a 348; Puff. book, 4, c. 2, s. 4; Grot. book 2, c. 13, s. = 1; Ruth=20 Inst. book 1, ch. 14, s. 1; 1 Stark. Ev. 80; Merl. Repert. Convention; = Dalloz,=20 Dict. Serment: Dur. n. 592, 593; 3 Bouv. Inst. n. 3180.

2. It is proper to distinguish two things in oaths; 1. The invocation = by=20 which the God of truth, who knows all things, is taken to witness. 2. = The=20 imprecation by which he is asked as a just and all-powerful being, to = punish=20 perjury.

3. The commencement of an oath is made by the party taking hold of = the book,=20 after being required by the officer to do so, and ends generally with = the=20 words,"so help you God," and kissing the book, when the form used is = that of=20 swearing on the Evangelists. 9 Car. & P. 137.

4. Oaths are taken in various forms; the most usual is upon the = Gospel by=20 taking the book in the hand; the words commonly used are, "You do swear = that, "=20 &c. "so help you God," and then kissing the book. The origin of this = oath=20 may be traced to the Roman law, Nov. 8, tit. 3; Nov. 74, cap. 5; Nov. = 124, cap.=20 1; and the kissing the book is said to be an imitation of the priest's = kissing=20 the ritual as a sign of reverence, before he reads it to the people. = Rees, Cycl.=20 h. v.

5. Another form is by the witness or party promising holding up his = right=20 hand while the officer repeats to him,"You do swear by Almighty God, the = searcher of hearts, that," &c., "And this as you shall answer to God = at the=20 great day."

6. In another form of attestation commonly called an affirmation, (q. = v.) the=20 officer repeats, "You do solemnly, sincerely, and truly declare and = affirm,=20 that," &c.

7. The oath, however, may be varied in any other form, in order to = conform to=20 the religious opinions of the person who takes it. 16 Pick. 154, 156, = 157; 6=20 Mass. 262; 2 Gallis. 346; Ry. & Mo. N. P. Cas. 77; 2 Hawks, 458.

8. Oaths may conveniently be divided into promissory, assertory, = judicial and=20 extra judicial.

9. Among promissory oaths may be classed all those taken by public = officers=20 on entering into office, to support the constitution of the United = States, and=20 to perform the duties of the office.

10. Custom-house oaths and others required by law, not in judicial=20 proceedings, nor from officers entering into office, may be classed = among the=20 assertory oaths, when the party merely asserts the fact to be true.

11. Judicial oaths, or those administered in judicial = proceedings.

12. Extra-judicial oaths are those taken without authority of law, = which,=20 though binding in foro conscientiae, do not render the persons who take = them=20 liable to the punishment of perjury, when false.

13. Oaths are also divided into various kinds with reference to the = purpose=20 for which they are applied; as oath of allegiance, oath of calumny, oath = ad=20 litem, decisory oath, oath of supremacy, and the like. As to the persons = authorized to administer oaths, see Gilp. R. 439; 1 Tyler, 347; 1 South. = 297; 4=20 Wash. C. C. R. 555; 2 Blackf. 35.

14. The act of congress of June 1, 1789, 1 Story's L. U. S. p. 1, = regulates=20 the time and manner of administering certain oaths as follows:

=A71. Be it enacted, &c., That the oath or affirmation required = by the=20 sixth article of the constitution of the United States, shall be = administered in=20 the form following, to wit, "I, A B, do solemnly swear or affirm, (as = the case=20 may be,) that I will support the constitution of the United States." The = said=20 oath or affirmation shall be administered within three days after the = passing of=20 this act, by any one member of the senate, to the president of the = senate, and=20 by him to all the members, and to the secretary; and by the speaker of = the house=20 of representatives, to all the members who have not taken a similar = oath, by=20 virtue of a particular resolution of the said house, and to the clerk: = and in=20 case of the absence of any member from the service of either house, at = the time=20 prescribed for taking the said oath or affirmation, the same shall be=20 administered to such member when he shall appear to take his seat.

15. - =A72. That at the first session of congress after every general = election=20 of representatives, the oath or affirmation aforesaid shall be = administered by=20 any one member of the house of representatives to the speaker; and by = him to all=20 the members present, and to the clerk, previous to entering on any other = business; and to the members who shall afterwards appear, previous to = taking=20 their seats. The president of the senate for the time being, shall also=20 administer the said oath or affirmation to each senator who shall = hereafter be=20 elected, previous to his taking his seat; and in any future case of a = president=20 of the senate, who shall not have taken the said oath or affirmation, = the same=20 shall be administered to him by any one of the members of the = senate.

16. - =A73. That the members of the several state legislatures, at = the next=20 session of the said legislatures respectively, and all executive and = judicial=20 officers of the several states, who have been heretofore chosen or = appointed,=20 or, who shall be chosen or appointed before the first day of August = next, and=20 who shall then be in office, shall, within one month thereafter, take = the same=20 oath or affirmation, except where they shall have taken it before which = may be=20 administered by any person authorized by the law of the state, in which = such=20 office shall be holden, to administer oaths. And the members of the = several=20 state legislatures, and all executive and judicial officers of the = several=20 states, who shall be chosen or appointed after the said first day of = August,=20 shall, before they proceed to execute the duties of their respective = offices,=20 take the foregoing oath or affirmation, which shall be administered by = the=20 person or persons, who, by the law of the state, shall be authorized to = ad-=20 minister the oath of office; and the person or persons so administering = the oath=20 hereby required to be taken, shall cause a record or certificate thereof = to be=20 made, in the same manner as, by the law of the state, he or they shall = be=20 directed to record or certify the oath of office.

17. - =A74. That all officers appointed or hereafter to be appointed, = under the=20 authority of the United States, shall, before they act in their = respective=20 offices, take the same oath or affirmation, which shall be administered = by the=20 person or persons who shall be authorized by law to administer to such = officers=20 their respective oaths of office; and such officers shall incur the same = penalties in case of failure, as shall be imposed by law in case of = failure in=20 taking their respective oaths of office.

18. - =A75. That the secretary of the senate, and the clerk of the = house of=20 repreentatives, for the time being, shall, at the time of taking the = oath or=20 affirmation aforesaid, each take an oath or affirmation in the words = following,=20 to wit; "I, A B, secretary of the senate, or clerk of the house of=20 representatives (as the case may be) of the United States of America, do = solemnly swear or affirm, that I will truly and faithfully discharge the = duties=20 of my said office to the best of my knowledge and abilities."

19. There are several kinds of oaths, some of which are enumerated by = law.

>20. Oath of calumny. This term is used in the civil law. It is an = oath=20 which a plaintiff was obliged to take that he was not actuated by a = spirit of=20 chicanery in commencing his action, but that he had bona fide a good = cause of=20 action. Poth. Pand. lib. 5, t. 16 and 17, s. 124. This oath is somewhat = similar=20 to our affidavit of a cause of action. Vide Dunlap's Adm. Pr. 289, = 290.

21. No instance is known in which the oath of calumny has been = adopted in=20 practice in the admiralty courts of the United States; Dunl. Adm. Pr. = 290; and=20 by the 102d of the rules of the district court for the southern district = of New=20 York, the oath of calumny shall not be required of any party in any = stage of a=20 cause. Vide Inst. 4, 16, 1; Code, 2, 59, 2; Dig. 10, 2, 44; 1 Ware's R. = 427.

22. Decisory oath. By this term in the civil law is understood an = oath which=20 one of the parties defers or refers back to the other, for the decision = of the=20 cause.

23. It may be deferred in any kind of civil contest whatever, in = questions of=20 possession or of claim; in personal actions and in real. The plaintiff = may defer=20 the oath to the defendant, whenever he conceives he has not sufficient = proof of=20 the fact which is the foundation of his claim; and in like manner, the = defendant=20 may defer it to the plaintiff when he has not sufficient proof of his = defence.=20 The person to whom the oath is deferred, ought either to take it or = refer it=20 back, and if he will not do either, the cause should be decided against = him.=20 Poth. on Oblig. P. 4, c. 3, s. 4.

24. The decisory oath has been practically adopted in the district = court of=20 the United States, for the district of Massachusetts, and admiralty = causes have=20 been determined in that court by the oath decisory; but the cases in = which this=20 oath has been adopted, have been where the tender has been accepted; and = no case=20 is known to have occurred there in which the oath has been refused and = tendered=20 back to the adversary. Dunl. Adm. Pr. 290, 291.

25. A judicial oath is a solemn declaration made in some form = warranted by=20 law, before a court of justice or some officer authorized to administer = it, by=20 which the person who takes it promises to tell the truth, the whole = truth, and=20 nothing but the truth, in relation to his knowledge of the matter then = under=20 examination, and appeals to God for his sincerity.

26. In the civil law, a judicial oath is that which is given in = judgment by=20 one party to another. Dig. 12, 2, 25.

27. Oath in litem, in the civil law, is an oath which was deferred to = the=20 complainant as to the value of the thing in dispute on failure of other = proof,=20 particularly when there was a fraud on the part of the defendant, and be = suppressed proof in his possession. See Greenl. Ev. =A7348; Tait on Ev. = 280; 1=20 Vern. 207; 1 Eq. Cas. Ab. 229; 1 Greenl. R. 27; 1 Yeates, R. 34; 12 Vin. = Ab. 24.=20 In general the oath of the party cannot, by the common law, be received = to=20 establish his claim, but to this there are exceptions. The oath in litem = is=20 admitted in two classes of cases: 1. Where it has been already proved, = that the=20 party against whom it is offered has been guilty of some fraud or other = tortious=20 or unwarrantable act of intermeddling with the complainant's goods, and = no other=20 evidence can be had of the amount of damages. As, for example, where a = trunk of=20 goods was delivered to a shipmaster at one port to be carried to = another, and,=20 on the passage, he broke the trunk open and rifled it of its contents; = in an=20 action by the owners of the goods against the shipmaster, the facts = above=20 mentioned having been proved aliunde, the plaintiff was held, a = competent=20 witness to testify as to the contents of the trunk. 1 Greenl. 27; and = see 10=20 Watts, 335; 1 Greenl. Ev. =A7348; 1 Yeates, 34; 2 Watts, 220; 1 Gilb. = Ev. by=20 Lofft, 244. 2. The oath in litem is also admitted on the ground of = public=20 policy, where it is deemed essential to the purposes of justice. Tait on = Ev.=20 280. But this oath is admitted only on the ground of necessity. An = example may=20 be mentioned of a case where a statute can receive no execution, unless = the=20 party interested be admitted as a witness. 16 Pet. 203.

28. A promissory oath is an oath taken, by authority of law, by which = the=20 party declares that he will fulfil certain duties therein mentioned, as = the oath=20 which an alien takes on becoming naturalized, that he will support the=20 constitution of the United States: the oath which a judge takes that he = will=20 perform the duties of his office. The breach of this does not involve = the party=20 in the legal crime or punishment of perjury.

29. A suppletory oath in the civil and ecclesiastical law, is an oath = required by the judge from either party in a cause, upon half proof = already=20 made, which being joined to half proof, supplies the evidence required = to enable=20 the judge to pass upon the subject. Vide Str. 80; 3 Bl. Com. 270.

30. A purgatory oath is one by which one destroys the presumptions = which were=20 against him, for he is then said to purge himself, when he removes the=20 suspicions which were against him; as, when a man is in contempt for not = attending court as a witness, he may purge himself of the contempt, by = swearing=20 to a fact which is an ample excuse. See Purgation.

OBEDIENCE. The performance of a command.

2. Officers who obey the command of their superiors, having = jurisdiction of=20 the subject-matter, are not responsible for their acts. A sheriff may = therefore=20 justify a trespass under an execution, when the court has jurisdiction, = although=20 irregularly issued. 3 Chit. Pr. 75; Ham. N. P. 48.

3. A child, an apprentice, a pupil, a mariner, and a soldier, owe=20 respectively obedience to the lawful commands of the parent, the master, = the=20 teacher, the captain of the ship, and the military officer having = command; and=20 in case of disobedience, submission may be enforced by correction. (q. = v.)

OBIT. That particular solemnity or office for the dead, which = the=20 Roman Ca- tholic church appoints to be read or performed over the body = of a=20 deceased member of that communion before interment; also the office = which, upon=20 the anniversary of his death, was frequently used as a commemoration or=20 observance of the day. 2 Cro. 51; Dyer, 313.

OBLATION, eccl. law. In a general sense the property which = accrues to=20 the church by any right or title whatever; but, in a more limited sense, = it is=20 that which the priest receives at the altar, at the celebration of the=20 eucharist. Ayl. Par. 392.

OBLIGATION. In its general and most extensive sense, = obligation is=20 synony- mous with duty. In a more technical meaning, it is a tie which = binds us=20 to pay or to do something agreeably to the laws and customs of the = country in=20 which the obligation is made. Just. Inst. 1. 3, t. 14. The term = obligation also=20 signifies the instrument or writing by which the contract is witnessed. = And in=20 another sense, an obligation still subsists, although the civil = obligation is=20 said to be a bond containing a penalty, with a condition annexed for the = payment=20 of money, performance of covenants or the like; it differs from a bill, = which is=20 generally without a penalty or condition, though it may be obligatory. = Co. Litt.=20 172. It is also defined to be a deed whereby a man binds himself under a = penalty=20 to do a thing. Com. Dig. Obligation, A. The word obligation, in its most = technical signification, ex vi termini, imports a sealed instrument. 2 = S. &=20 R. 502; 6 Verm. 40; 1 Blackf. 241; Harp. R. 434; 2 Porter, 19; 1 Bald. = 129. See=20 1 Bell's Com. b. 3, p. 1, c. 1, page 293; Bouv. Inst. Index, h. t.

2. Obligations are divided into imperfect obligations, and perfect=20 obligations.

3. Imperfect obligations are those which are not binding on us as = between man=20 and man, and for the non-performance of which we are accountable to God = only;=20 such as charity or gratitude. In this sense an obligation is a mere = duty. Poth.=20 Ob. art. Prel. n. 1.

4. A perfect obligation is one which gives a right to another to = require us=20 to give him something or not to do something. These obligations are = either=20 natural or moral, or they are civil.

5. A natural or moral obligation is one which cannot be enforced by = action,=20 but which is binding on the party who makes it, in conscience and = according to=20 natural justice. As for instance, when the action is barred by the act = of=20 limitation, a natural obligation is extinguished. 5 Binn. 573. Although = natural=20 obligations cannot be enforeed by action, they have the following = effect: 1. No=20 suit will lie to recover back what has been paid, or given in compliance = with a=20 natural obligation. 1 T. R. 285; 1 Dall. 184, 2. A natural obligation is = a=20 sufficient consideration for a new contract. 5 Binn. 33; 2 Binn. 591; = Yelv. 41,=20 a, n. 1; Cowp. 290; 2 Bl. Com. 445; 3 B. & P. 249, n.; 2 East, 506; = 3 Taunt.=20 311; 5 Taunt. 36; Yelv. 41, b. note; 3 Pick. 207 Chit. Contr. 10.

6. A civil obligation is one which has a binding operation in law, = vinculum=20 juris, and which gives to the obligee the right of enforcing it in a = court of=20 justice; in other words, it is an engagement binding on the obligor. 12 = Wheat.=20 It:. 318, 337; 4 Wheat. R. 197.

7. Civil obligations are divided into express and implied, pure. and=20 conditional, primitive and secondary, principal and accessory, absolute = and=20 alternative, determinate and indeterminate, divisible and indivisible, = single=20 and penal, and joint and several. They are also purely personal, purely = real,=20 and both real and mixed at the same time.

8. Express or conventional obligations are those by which the obligor = binds=20 himself in express terms to perform his obligation.

9. An implied obligation is one which arises by operation of law; as, = for=20 example, if I send you daily a loaf of bread, without any express = authority, and=20 you make use of it in your family, the law raises an obligation on your = part to=20 pay me the value of the bread.

10. A pure or simple obligation is one which is not suspended by any=20 condition, either because it has been contacted without condition, or, = having=20 been contracted with one, it has been fulfilled.

11. A conditional obligation is one the execution of which is = suspended by a=20 condition which has not been accomplished, and subject to which it has = been=20 contracted.

12. A primitive obligation, which in one sense may also be called a = principal=20 obligation, is one which is contracted with a design that it should, = itself, be=20 the first fulfilled.

13. A secondary obligation is one which is contrasted, and is to be=20 performed, in case the primitive cannot be. For example, if I sell you = my house,=20 I bind myself to give a title, but I find I cannot, as the title is in = another,=20 then my secondary obligation is to pay you damages for my non-perform- = ance of=20 my obligation.

14. A principal obligation is one which is the most important object = of the=20 engagement of the contracting parties.

15. An accessory obligation is one which is dependent on the = principal=20 obligation; for example, if I sell you a house and lot of ground, the = principal=20 obligation on my part is to make you a title for it; the accessory = obligation is=20 to deliver you all the title papers which I have relating to it; to take = care of=20 the estate till it is delivered to you, and the like.

16. An absolute obligation is one which gives no alternative to the = obligor,=20 but he is bound to fulfil it according to his engagement.

17. An alternative obligation is, where a person engages to do, or to = give=20 several things in such a manner that the payment of one will acquit him = of all;=20 as if A agrees to give B, upon a sufficient consideration, a horse, or = one=20 hundred dollars. Poth. Obl. Pt. 2, c. 3, art. 6, No.. 245.

18. In order to constitute an alternative obligation, it is necessary = that=20 two or more things should be promised disjunctively; where they are = promised=20 conjunctively, there are as many obligations as the things which are = enumerated,=20 but where they are in the alternative, though they are all due, there is = but one=20 obligation, which may be discharged by the payment of any of them.

19. The choice of performing one of the obligations belongs to the = obligor,=20 unless it is expressly agreed that all belong to the creditor. Dougl. = 14; 1 Lord=20 Raym. 279; 4 N. S. 167. If one of the acts is prevented by the obligee, = or the=20 act of God, the obligor is discharged from both. See 2 Evans' Poth. Ob. = 52 to=20 54; Vin. Ab. Condition, S b; and articles Conjunctive; Disjunctive;=20 Election.

20. A determinate obligation, is one which has for its object a = certain=20 thing; as an obligation to deliver a certain horse named Bucephalus. In = this=20 case the obligation can only be discharged by delivering the identical=20 horse.

21. An indeterminate obligation is one where the obligor binds = himself to=20 deliver one of a certain species; as, to deliver a horse, the delivery = of any=20 horse will discharge the obligation.

22. A divisible obligation is one which being a unit may nevertheless = be=20 lawfully divided with or without the consent of the parties. It is clear = it may=20 be divided by consent, as those who made it, may modify or change it as = they=20 please. But some obligations may be divided without the consent of the = obligor;=20 as, where a tenant is bound to pay two hundred dollars a year rent to = his=20 landlord, the obligation is entire, yet, if his landlord dies and leaves = two=20 sons, each will be entitled to one hundred dollars; or if the landlord = sells one=20 undivided half of the estate yielding the rent, the purchaser will be = entitled=20 to receive one hundred dollars, and the seller the other hundred. See=20 Apportionment.

23. An indivisible obligation is one which is not susceptible of = division;=20 as, for example, if I promise to pay you one hundred dollars, you cannot = assign=20 one half of this to another, so as to give him a right of action against = me for=20 his share. See Divisible.

24. A single obligation is one without any penalty; as, where I = simply=20 promise to pay you one hundred dollars. This is called a single bill, = when it is=20 under seal.

25. A penal obligation is one to which is attached a penal clause = which is to=20 be enforeed, if the principal obligation be not performed. In general = equity=20 will relieve against a penalty, on the fulfilment of the principal = obligation.=20 See Liquidated damages; Penalty.

26. A joint obligation is one by which several obligors promise to = the=20 obligee to perform the obligation. When the obligation is only joint and = the=20 obligors do not promise separately to fulfil their engagement they must = be all=20 sued, if living, to compel the performance; or, if any be dead, the = survivors=20 must all be sued. See Parties to actions.

27. A several obligation is one by which one individual, or if there = be more,=20 several individuals bind themselves separately to perform the = engagement. In=20 this case each obligor may be sued separately, and if one or more be = dead, their=20 respective executors may be sued. See Parties to actions.

28. The obligation is, purely personal when the obligor binds himself = to do a=20 thing; as if I give my note for one thousand dollars, in that case my = person=20 only is bound, for my property is liable for the debt only while it = belongs to=20 me, and, if I lawfully transfer it to a third person, it is = discharged.

29. The obligation is personal in another sense, as when the obligor = binds=20 himself to do a thing, and he provides his heirs and executors shall not = be=20 bound; as, for example, when he promises to pay a certain sum yearly = during his=20 life, and the payment is to cease at his death.

30. The obligation is real when real estate, and not the person, is = liable to=20 the obligee for the performance. A familiar example will explain this: = when an=20 estate owes an easement, as a right of way, it is the thing and not the = owner=20 who owes the easement. Another instance occurs when a person buys an = estate=20 which has been mortgaged, subject to the mortgage, he is not liable for = the=20 debt, though his estate is. In these cases the owner has an interest = only=20 because he is seised of the servient estate, or the mortgaged premises, = and he=20 may discharge himself by abandoning or parting with the property.

31. The obligation is both personal and real when the obligor has = bound=20 himself, and pledged his estate for the fulfilment of his = obligation.

OBLIGATION OF CONTRACTS. By this expression, which is used in = the=20 consti- tution of the United States, is meant a legal and not merely a = moral=20 duty. 4 Wheat. 107. The obligation of contracts consists in the = necessity under=20 which a man finds himself to, do, or to refrain from doing something. = This=20 obligation consists generally both in foro legis and in foro = conscientice,=20 though it does at times exist in one of these only. It is certainly of = the=20 first, that in foro legis, which the framers of the constitution spoke, = when=20 they prohibited the passage of any law impairing the obligation of = contract. 1=20 Harr. Lond. Rep. Lo. 161. See Impairing the obligation of contracts.

OBLIGEE or CREDITOR, contracts. The person in favor of whom = some=20 obliga- tion is contracted, whether such obligation be to pay money, or = to do,=20 or not to do something. Louis. Code, art. 3522, No. 11.

2. Obligees are either several or joint, an obligee is several when = the=20 obligation is made to him alone; obligees are joint when the obligation = is made=20 to two or more, and, in that event, each is not a creditor for his = separate=20 share, unless the nature of the subject or the particularity of the = expression=20 in the instrument lead to a different conclusion. 2 Evans' Poth. 56; = Dyer 350 a,=20 pl. 20; Hob. 172; 2 Brownl. 207 Yelv, 177; Cro. Jac. 251.

OBLIGOR or DEBTOR. The person who has engaged to perform some=20 obligation. Louis. Code, art. 3522, No. 12. The word obligor, in its = more=20 technical signification, is applied to designate one who makes a = bond.

2. Obligors are joint and several. They are joint when they agree to = pay the=20 obligation jointly, and then the survivors only are liable upon it at = law, but=20 in equity the assets of a deceased joint obligor may be reached. 1. Bro. = C. R.=20 29; 2 Ves. 101; Id. 371. They are several when one or more bind = themselves each=20 of them separately to perform the obligation. In order to become an = obligor, the=20 party must actually, either himself or by his attorney, enter into the=20 obligation, and execute it as his own. If a man sign and seal a bond as = his own,=20 and deliver it, he will be bound by it, although his name be not = mentioned in=20 the bond. 4 Stew. R. 479; 4 Hayw R. 239; 4 McCord, R. 203; 7 Cowen; R. = 484; 2=20 Bail. R. 190; Brayt. 38; 2 H. & M. 398; 5 Mass. R. 538; 2 Dana, R. = 463; 4=20 Munf. R. 380; 4 Dev. 272. When the obligor signs between the penal part = and the=20 condition, still the latter will be a part of the instrument. 2 Wend. = Rep. 345;=20 3 H. & M. 144.

3. The execution of a bond by the obligor with a blank, and a verbal=20 authority to fill it up, and it is afterwards filled up, does not bind = the=20 obligor, unless it is redelivered, or acknowledged or adopted. 1 Yerg. = R. 69=20 149; 1 Hill, Rep. 267; 2 N. & M. 125; 2 Brock. R. 64; 1 Ham. R. 368; = 2 Dev.=20 R. 369 6 Gill. & John. 250; but see contra, 17 Serg. & R. 438; = and see 6=20 Serg. & Rawle, 308; Wright, R. 742.

OBREPTION, civil law. Surprise. Dig. 3,5,8,1. Vide = Surprise.

OBSCENITY, crim. law. Such indecency as is calculated to = promote the=20 violation of the law, and the general corruption of morals.

2. The exhibition of an obscene picture is an indictable offence at = common=20 law, although not charged to have been exhibited in public, if it be = averred=20 that the picture, was exhibited to sundry persons for money. 2 Serg. = &=20 Rawle, 91.

TO OBSERVE, civil law. To perform that which has been = prescribed by=20 some law or usage. Dig., 1, 3, 32.

OBSOLETE. This term is applied to those laws which have lost = their=20 efficacy, without being repealed,

2. A positive statute, unrepealed, can never be repealed by non-user = alone. 4=20 Yeates, Rep. 181; Id. 215; 1 Browne's Rep. Appx. 28; 13 Serg. & = Rawle, 447.=20 The disuse of a law is at most only presumptive evidence that society = has=20 consented to such a repeal; however this presumption may operate on an = unwritten=20 law, it cannot in general act upon one which remains as a legislative = act on the=20 statute book, because no presumption can set aside a certainty. A = written law=20 may indeed become obsolete when the object to which it was intended to = apply, or=20 the occasion for which it was enacted, no longer exists. 1 P. A. = Browne's R.=20 App. 28. "It must be a very strong case," says Chief Justice Tilghman, = "to=20 justify the court in deciding, that an act standing on the statute book, = unrepealed, is obsolete and invalid. I will not say that such case may = not=20 exist-where there has been a non-user for a great number of years-where, = from a=20 change of times and manners, an ancient sleeping statute would do great=20 mischief, if suddenly brought into action-where a long, practice = inconsistent=20 with it has prevailed, and, specially, where from other and latter = statutes it=20 might be inferred that in the apprehension of the legislature, the old = one was=20 not in force." 13 Serg. & Rawle, 452; Rutherf. Inst. B. 2, c. 6, s. = 19;=20 Merl. Repert. mot Desuetude.

OBSTRUCTING PROCESS. crim. law. The act by which one or more = persons=20 at- tempt to prevent, or do prevent, the execution of lawful = process.

2. The officer must be prevented by actual violence, or by threatened = violence, accompanied by the exercise of force, or by those having = capacity to=20 employ it, by which the officer is prevented from executing his writ; = the=20 officer is not required, to expose his person by a personal conflict = with the=20 offender. 2 Wash. C. C. R. 169. See 3 Wash. C. C. R. 335.

3. This is in offence against public justice of a very high and = presumptuous=20 nature; and more particularly so where the obstruction is of an arrest = upon=20 criminal process: a person opposing an arrest upon criminal process = becomes=20 thereby particeps criminis; that is, an accessary in felony, and a = principal in=20 high treason. 4 Bl. Com. 128; 2 Hawk. c. 17, s. 1; l. Russ. on Cr. 360: = vide=20 Ing. Dig. 159; 2 Gallis. Rep. 15; 2 Chit. Criminal Law, 145, note a.

OCCUPANCY. The taking possession of those things corporeal = which are=20 without an owner, with an intention of appropriating them to one's own = use.=20 Pothier defines it to be the title by which one acquires property in a = thing=20 which belongs to nobody, by taking possession of it, with design of = acquiring.=20 Tr. du Dr. de Propriete n. 20. The Civil Code of Lo. art. 3375, nearly = following=20 Pothier, defines occupancy to be "a mode of acquiring property by which = a thing,=20 which belongs to nobody, becomes the property of the person who took = possession=20 of it, with an intention of acquiring a right of ownership in it."

2. To constitute occupancy there must be a taking of a thing = corporeal,=20 belonging to nobody with an intention of becoming the owner of it.

3. - 1. The taking must be such as the nature of the time requires; = if, for=20 example, two persons were walking on the sea-shore, and one of them = should=20 perceive a precious stone, and say he claimed it as his own, he would, = acquire=20 no property in it by occupancy, if the other seized it first.

4. - 2. The thing must be susceptible of being possessed; an = incorporeal=20 right, therefore, as an annuity, could not be claimed by occupancy.

5. - 3. The thing taken must belong to nobody; for if it were in the=20 possession of another the taking would be larceny, and if it had been = lost and=20 not abandoned, the taker would have only a qualified property in it, and = would=20 hold the possession for the owner.

6. - 4. The taking must have been with an intention of becoming the = owner; if=20 therefore a person non compos mentis should take such a thing he would = not=20 acquire a property in it, because he had no intention to do so. Co. = Litt. 41,=20 b.

7. Among the numerous ways of acquiring property by occupancy, the = following=20 are considered as the most usual.

8. - 1. Goods captured in war, from public enemies, were, by the = common law,=20 adjudged to belong to the captors. Finch's law, 28; 178; 1 Wills. 211; 1 = Chit.=20 Com. Law, 377 to 512; 2 Wooddes. 435 to 457; 2 Bl. Com. 401. But by the = law of=20 nations such things are now considered as primarily vested in the = sovereign, and=20 as belonging to individual captors only to the extent and under such = regulations=20 as positive laws may prescribe. 2 Kent's Com. 290. By the policy of law, = goods=20 belonging to an enemy are considered as not being the property of any = one.=20 Lecon's Elem. du Dr. Rom. =A7348; 2 Bl. Com. 401.

9. - 2. When movables are casually lost by the owner and unreclaimed, = or=20 designedly abandoned by him, they belong to the fortunate finder who = seizes=20 them, by right of occupancy.

10. - 3. The benefit of the elements, the light, air, and water, can = only be=20 appropriated by occupancy.

11. - 4. When animals ferae naturae are captured, they become the = property of=20 the occupant while he retains the possession; for if an animal so taken = should=20 escape, the captor loses all the property he had in it. 2 Bl. Com. = 403.

12. - 5. It is by virtue of his occupancy that the owner of lands is = entitled=20 to the emblements.

13. - 6. Property acquired by accession, is also grounded on the = right of=20 occupancy.

14. - 7. Goods acquired by means of confusion may be referred to the = same=20 right.

15. - 8. The right of inventors of machines or of authors of literary = productions is also founded on occupancy. Vide, generally, Kent, Com. = Lect. 36;=20 16 Vin. Ab. 69; Bac. Ab. Estate for life and occupancy; 1 Brown's Civ. = Law, 234;=20 4 Toull. n. 4; Lecons du Droit Rom. =A7342, et seq.; Bouv. Inst. Index, = h. t.

OCCUPANT or OCCUPIER. One who has the actual use or possession = of a=20 thing.

2. He derives his title of occupancy either by taking possession of a = thing=20 without an owner, or by purchase, or gift of the thing from the owner, = or it=20 descends to him by due course of law.

3. When the occupiers of a house are entitled to a privilege in = consequence=20 of such occupation, as to pass along a way, to enjoy a pew, and the = like, a=20 person who occupies a part of such house, however small, is entitled to = some=20 right, and cannot be deprived of it. 2 B. & A. 164; S. C. Eng. C. L. = R. 50;=20 1 Chit. Pr. 209, 210; 4 Com. Dig. 64; 5 Com. Dig. 199.

OCCUPATION. Use or tenure; as, the house is in the occupation = of A B.=20 A trade, business or mystery; as the occupation of a printer. Occupancy. = (q.=20 v.)

2. In another sense occupation signifies a putting out of a man's = freehold in=20 time of war. Co. Litt. s. 412. See Dependeney; Posession.

OCCUPAVIT. The name of a writ, which lies to recover the = possession of=20 lands, when they have been taken from the possession of the owner by = occupation.=20 (q. v.) 3 Tho. Co. Litt. 41.

OCCUPIER. One who is in the enjoyment of a thing.

2. He may be the occupier by virtue of a lawful contract, either = express or=20 implied, or without any contract. The occupier is, in general, bound to = make the=20 necessary repairs to premises he occupies the cleansing and repairing of = drains=20 and sewers, therefore, is prima facie the duty of him who occupies the = premises.=20 3 Q. B. R. 449; S. C. 43 Eng. C. L. R. 814.

OCHLOCRACY. A government where the authority is in the hands = of the=20 multi- tude; the abuse of a democracy. Vaumene, Dict. du Language = Politique.

ODHALL RIGHT. The same as allodial.

OF COURSE. That which may be done, in the course of legal = proceedings,=20 without making any application to the court; that which is granted by = the court=20 without further inquiry, upon its being asked; as, a rule to plead is a = matter=20 of course.

OFFENCE, crimes. The doing that which a penal law forbids to = be done,=20 or omitting to do what it commands; in this sense it is nearly = synonymous with=20 crime. (q. v.) In a more confined sense, it may be considered as having = the same=20 meaning with misdemeanor, (q.v.) but it differs from it in this, that it = is not=20 indictable, but punishable summarily by the forfeiture of a penalty. 1 = Chit.=20 Prac. 14.

OFFER, contracts. A proposition to do a thing.

2. An offer ought to contain a right, if accepted, of compelling the=20 fulfilment of the contract, and this right when not expressed, is always = implied.

3. By virtue of his natural liberty, a man may change his will at any = time,=20 if it is not to the injury of another; he may, therefore, revoke or = recall his=20 offers, at any time before they have been accepted; and, in order to = deprive him=20 of this right, the offer must have been accepted on the terms in which = it was=20 made. 10 Ves. 438; 2 C. & P. 553.

4. Any qualification of, or departure from those terms, invalidates = the=20 offer, unless the same be agreed to by the party who made it. 4 Wheat. = R. 225; 3=20 John. R. 534; 7 John. 470; 6 Wend. 103.

5. When the offer has been made, the party is presumed to be willing = to enter=20 into the contract for the time limited, and, if the time be not fixed by = the=20 offer, then until it be expressly revoked, or rendered nugatory by a = contrary=20 presumption. 6 Wend. 103. See 8 S. & R. 243; 1 Pick. 278; 10 Pick. = 326; 12=20 John. 190; 9 Porter, 605; 1 Bell's Com. 326, 5th ed.; Poth. Vente, n. = 32; 1=20 Bouv. Inst. n. 577, et seq.; and see Acceptance of contracts; Assent; = Bid.

OFFICE. An office is a right to exercise a public function or=20 employment, and to take the fees and emoluments belonging to it,. Shelf. = on=20 Mortm. 797; Cruise, Dig. Index, h. t.; 3 Serg. & R. 149.

2. Offices may be classed into civil and military.

3. - 1. Civil offices may be classed into political, judicial, and=20 ministerial.

4. - 1. The political offices are such as are not connected = immediately with=20 the administration of justice, or the execution of the mandates of a = superior=20 officer; the office of the president of the United States, of the heads = of=20 departments, of the members of the legislature, are of this number.

5. - 2. The judicial offices are those which relate to the = administration of=20 justice, and which must be exercised by persons of sufficient skill and=20 experience in the duties which appertain to them.

6. - 3. Ministerial offices are those which give the officer no power = to=20 judge of the matter to be done, and require him to obey the mandates of = a=20 superior. 7 Mass. 280. See 5 Wend. 170; 10 Wend. 514; 8 Verm. 512; = Breese, 280.=20 It is a general rule, that a judicial office cannot be exercised by = deputy,=20 while a ministerial may.

7. In the United, States, the tenure of office never extends beyond = good=20 behaviour. In England, offices are public or private. The former affect = the=20 people generally, the latter are such as concern particular districts, = belonging=20 to private individuals. In the United States, all offices, according to = the=20 above definition, are public; but in another sense, employments of a = private=20 nature are also called offices; for example, the office of president of = a bank,=20 the office of director of a corporation. For the incompatibility of = office, see=20 Incompatibility; 4 S. & R. 277; 4 Inst. 100; Com. Dig. h. t., B. 7; = and=20 vide, generally, 3 Kent, Com. 362; Cruise, Dig. tit. 25; Ham. N. P. 283; = 16 Vin.=20 Ab. 101; Ayliffe's Parerg. 395; Poth. Traite des Choses, =A72; Amer. = Dig. h. t.;=20 17 S. & R. 219.

8. - 2. Military offices consist of such as are granted to soldiers = or naval=20 officers.

9. The room in which the business of an officer is transacted is also = called=20 an office, as the land office. Vide Officer.

OFFICE BOOK, evidence. A book kept in a public office, not=20 appertaining to a court, authorized by the law of any state.

2. An exemplification, (q. v.) of any such office book, when = authenticated=20 under the act of congress of 27th March, 1804, Ingers' Dig. 77, is to = have such=20 faith and credit, given to it in every court and office within the = United=20 States, as such exemplification has by law or usage in the courts or = offices of=20 the state from whence the same has been taken.

OFFICE COPY. A transcript of a record or proceeding filed in = an office=20 established by law, certified under the seal of the proper officer.

OFFICE FOUND, Eng. law. When an inquisition is made to the = king's use=20 of anything, by virtue of office of him who inquires, and the = inquisition is=20 found, it is said to be office found.

OFFICE, INQUEST OF. An examination into a matter by an officer = in=20 virtue of his office. Vide Inquisition.

OFFICER. He who is lawfully invested with an office.

2. Officers may be classed into, 1. Executive; as the president of = the United=20 States of America, the several governors of the different states. Their = duties=20 are pointed out in the national constitution, and the constitutions of = the=20 several states, but they are required mainly to cause the laws to be = executed=20 and obeyed.

3. - 2. The legislative; such as members of congress; and of the = several=20 state legislatures. These officers are confined in their duties by the=20 constitution, generally to make laws, though sometimes in cases of = impeachment,=20 one of the houses of the legislature exercises judicial functions, = somewhat=20 similar to those of a grand jury by presenting to the other articles of=20 impeachment; and the other house acts as a court in trying such = impeachments.=20 The legislatures have, besides the power to inquire into the conduct of = their=20 members, judge of their elections, and the like.

4. - 3. Judicial officers; whose duties are to decide controversies = between=20 individuals, and accusations made in the name of the public against = persons=20 charged with a violation of the law.

5. - 4. Ministerial officers, or those whose duty it is to execute = the=20 mandates, lawfully issued, of their superiors.

6. - 5. Military officers, who have commands in the army; and

7. - 6. Naval officers, who are in command in the navy.

8. Officers are required to exercise the functions which belong to = their=20 respective offices. The neglect to do so, may, in some cases, subject = the=20 offender to an indictment; 1 Yeates, R. 519; and in others, he will be = liable to=20 the party injured. 1 Yeates, R. 506.

9. Officers are also divided into public officers and those who are = not=20 public. Some officers may bear both characters; for example, a clergyman = is a=20 public officer when he acts in the performance of such a public duty as = the=20 marriage of two individuals; 4 Conn. 209; and he is merely a private = person when=20 he acts in his more ordinary calling of teaching his congregation. See 4 = Conn.=20 134; 1 Apple. 155.

OFFICIAL, civil and canon laws. In the ancient civil law, the = person=20 who was the minister of, or attendant upon a magistrate, was called the=20 official.

2. In the canon law, the person to whom the bishop generally commits = the=20 charge of his spiritual jurisdiction, bears this name. Wood's Inst. 30, = 505;=20 Merl. Repert. h. t.

OFFICINA JUSTITIAE, Eng. law. The chancery is so called, = because all=20 writs issue from it, under the great seal returnable into the courts of = common=20 law.

OFFICIO, EX. By virtue of one's office. Vide Ex officio; 3 Bl. = Com.=20 447.

OHIO. The name of one of the new states of the United States = of=20 America. It was admitted into the Union by virtue of the act of = congress,=20 entitled "An act to enable the people of the eastern division of the = territory=20 north-west of the river Ohio, to form a constitution and state = government, and=20 for the admission of such state into the Union, on an equal footing with = the=20 original states, and for other purposes," approved, May 30, 1802, 2 = Story's L.=20 U. S. 869; by which it is enacted,

=A71. That the inhabitants of the eastern division of the territory = north-west=20 of the river Ohio, be, and they are hereby authorized to form for = themselves a=20 constitution and state government, and to assume such name as they shall = deem=20 proper; and the said state, when formed, shall be admitted into the = Union, upon=20 the same footing with the original states, in all respects whatever. =

2. - =A72. That the said state shall consist of all the territory = included=20 within the following boundaries, to wit: Bounded on the east by the = Pennsylvania=20 line, on the south by the Ohio river, to the month of the Great Miami = river, on=20 the west by the line drawn due north from the mouth of the Great Miami=20 aforesaid, and on the north by an east and west line dawn through the = southerly=20 extreme of lake Michigan, running east, after intersecting the due north = line=20 aforesaid, from the mouth of the Great Miami until it shall intersect = lake Erie,=20 or the territorial line, and thence, with the same, through lake Erie, = to the=20 Pennsylvania line aforesaid: Provided, That congress shall be at = liberty, at any=20 time hereafter, either to attach all the territory lying east of the = line to be=20 drawn due north from the mouth of the Miami aforesaid to the territorial = line,=20 and north of an east and west line drawn through the southerly extreme = of lake=20 Michigan, running east as aforesaid to lake Eric, to the aforesaid = state, or=20 dispose of it otherwise, in conformity to the fifth Article of compact = between=20 the original states and the people and states to be formed are the = territory=20 north-west of the river Ohio.

3. By virtue of the authority given them by the act of congress, the = people=20 of the eastern division of said territory met in convention at = Chillicothe; on=20 Monday, the, first day of November, 1802, by which they did ordain and = establish=20 the constitution and form of government, and did mutually agree with = each other=20 to form themselves into a free and independent state, by the name of The = State=20 of Ohio. This constitution has been superseded by the present one, which = was=20 adopted in 1851. The powers of the government are separated into three = distinct=20 branches, the legislative, the executive, and the judicial.

4. - 1st. By article 2, the legislative department is constituted as=20 follows:

5. - =A71. The legislative power of this state shall be vested in a = general=20 assembly, which shall consist of a senate, and house of representatives. =

6. - =A72. Senators and representatives shall be elected biennally, = by the=20 electors in the respective counties or districts, on the second Tuesday = of=20 October; their term of office shall commence on the first, day of = January next=20 thereafter, and continue two years.

7. - =A73. Senators and representatives shall have resided in their = respective=20 counties, or districts, one year next preceding their election, unless = they=20 shall have been absent on the public business of the United States, or = of this=20 state.

8. - =A74. No person holding office under the authority of the United = States,=20 or any lucrative office under the authority of this state, shall be = eligible to,=20 or have a seat in, the general assembly; but this provision shall not = extend to=20 township officers, justices of the peace, notaries public, or officers = of the=20 militia.

9. - =A75. No person hereafter convicted of an embezzlement of the = public=20 funds, shall hold any office in this state; nor shall any person, = holding public=20 money for dishursement, or otherwise, have a seat in the general = assembly,=20 until, he shall have accounted for, and paid such money into the = treasury.

10. - =A76. All regular sessions of the general assembly shall = commence on the=20 first Monday of January, biennially. The first session, under this = constitution,=20 shall commence on the first Monday of January, one thousand eight = hundred and=20 fifty-two.

11. - =A77. The style of the laws of this state, shall be, "Be it = enacted by=20 the General Assembly of the State of Ohio."

12. - =A78. The apportionment of this state for members of the = general=20 assembly, shall be made every ten years, after the year one thousand = eight=20 hundred and fifty-one, in the following manner: The whole population of = the=20 state, as ascertained by the federal census, or in such other mode as = the=20 general assembly may direct, shall be divided by the number: one = hundred,: and=20 the quotient shall be the ratio of representation in the house of=20 representatives for ten years next succeeding such apportionment.

13. - =A79. Every county, having a popuIation equal to one-half of = said ratio,=20 shall be entitled to one representative; every county, containing said = ratio,=20 and three-fourths over, shall be entitled to two representantives; every = county,=20 containing three times said ratio, shall be entitled to three = representatives:=20 and so on, requiring after the first two, an entire ratio for each = additional=20 representative.

14. - =A710. When any county shall have a fraction above the ratio, = so large,=20 that being multiplied by five, the result will be equal to one or more = ratios,=20 additional representatives shall be apportioned for such ratios, among = the=20 several sessions of the decennial period, in the following manner: If = there be=20 only one ratio, a representative shall be allotted to the fifth session = of the=20 decennial period; if there are two ratios, a representative shall be = allotted to=20 the fourth and third sessions, respectively if three, to the third, = second, and=20 first sessions, respectively; if four, to the fourth, third, second, and = first=20 sessions, respectively.

15. - =A711. Any county, forming with another county or counties, a=20 representative district, during one decennial period, if it have = acquired=20 sufficient population at the next decennial period; shall be entitled to = a=20 separate representation, if there shall be left, in the district from = which it=20 shall have been separated, or population sufficient for a = representative; but no=20 such change shall be made, except at the regular decennial period for = the=20 apportionment of representatives.

16. - =A712. If, in fixing any subsequent ratio, a county, previously = entitled=20 to a separate representation, shall have less than the number required = by the=20 new ratio for a representative, such county shall be attached to the = county=20 adjoining it; having the least number of inhabitants; and the = representation of=20 the district, so formed, shall be determined as herein provided.

17. - =A713. The ratio for a senator shall, forever hereafter, be = ascertained,=20 by dividing the whole population of the state by the number thirty-five. =

18. - =A714. The same rule shall be applied, in apportioning the = fractions of=20 senatorial districts, and in annexing districts, which may hereafter = have less=20 than three-fourths of a senatorial ratio, as are applied to = representative=20 districts.

19. - =A715. Any county forming part of a senatorial district, having = acquired=20 a population equal to a full senatorial ratio, shall be made a separate=20 senatorial district, at any regular decennial apportionment, if a full=20 senatorial ratio shall be left in the district from which it shall be = taken.=20

20. - =A716. For the first ten years, after the year one thousand = eight hundred=20 and fifty-one, the apportionment of representatives shall be as = provided, in the=20 schedule, and no change shall ever be made in the principles of = representation,=20 as herein established, or in the senatorial districts, except as above = provided.=20 All territory, belonging to a county at the time of any appor- tionment, = shall,=20 as to the right of representation and suffrage, remain an integral part = thereof,=20 during the decennial period.

21. - =A717. The governor, auditor, and secretary of state, or any = two of them,=20 shall, at least six months prior to the October election, in the year = one=20 thousand eight hundred and sixty-one, and, at each decennial period = thereafter,=20 ascertain and determine the ratio of representation, according to the = decennial=20 census, the number of representatives and senators each county or = district shall=20 be entitled to elect, and for what years, within the next ensuing ten = years, and=20 the governor shall cause the same to be published, in such manner as = shall be=20 directed by law.

22.- =A718. Every white male citizen of the United States, of the age = of=20 twenty-one years, who shall have been a resident of the state one year = next=20 preceding the election and of the county, township, or ward, in which he = resides, such time as may be provided by law, shall have the = qualifications of=20 an elector, and be entitled to vote at all elections.

23. - =A719. No person shall be elected or appointed to any office in = this=20 state, unless he possess, the qualifications of an elector.

24. - 3d. By article 3, the executive department is constituted as=20 follows:

25. - =A71. The executive department shall consist of a governor, = lieutenant=20 governor, secretary of state, auditor, treasurer, and an attorney = general, who=20 shall be chosen by the electors of the state, on the second Tuesday of = October,=20 and at the places of voting for members of the general assembly.

26. - =A72. The governor, lieutenant governor, Secretary of State, = treasurer,=20 and attorney general, shall hold their offices for two years; and the = auditor=20 for four years. Their terms of office shall commence on the second = Monday of=20 January next after their election, and continue until their suceessors = are=20 elected and qualified.

27. - =A73. The returns of every election for the officers, named in = the=20 foregoing section, shall be sealed up and transmitted to the seat of = government,=20 by the returning officers, directed to the resident of the senate, who, = during=20 the first week of the session, shall open and publish them, and declare = the=20 result, in the presence of a majority of the members of each house of = the=20 general assembly. The person having the highest number of votes shall be = declared duly elected; but if any two or more shall be highest, and = equal in=20 votes, for the same office, one of them shall be chosen, by the joint = vote of=20 both houses.

28. - =A74. Should there be no session of the general assembly in = January next=20 after an election for any of the officers aforesaid, the returns of such = election shall be made to the secretary of state, and opened, and the = result=20 declared by the governor, in such manner as may be provided by law.

29. - =A75. The supreme executive power of this state shall be vested = in the=20 governor. >=20

Transfer interrupted!

uire information, in writing, from the = officers in=20 the executive department, upon any subject relating to the duties of = their=20 respeceive office's; and shall see that the laws are faithfully = executed.=20

31. - =A77. He shall communicate at every session, by message, to the = general=20 assembly, the condition of the state, and recommend such measures as he = shall=20 deem expedient.

32. - =A78. He may, on extraordinary occasions, convene the general = assembly by=20 proclamation, and shall state to both houses, when assembled, the = purpose for=20 which they have been convened.

33. - =A79. In case of disagreement between the two houses, in = respect to the=20 time of adjournment, he shall have power to adjourn the general assembly = to such=20 time as he may think proper, but not beyond the regular meetings = thereof.

34. - =A710. He shall be commander-in-chief of the military and naval = forces of=20 the state, except when they shall be called into the service of the = United=20 States.

35. - =A711. He shall have power, after conviction, to grant = reprieves,=20 commutatious, and pardons, for all crimes and offences, except treason = and cases=20 of impeachment, upon such conditions as he may think proper; subject, = however,=20 to such regulations, as to the manner of applying for pardons, as may be = prescribed by Upon conviction for treason, he may suspend the execution = of the=20 sentence, and report the case to the general assembly, at its next = meeting, when=20 the general assembly shall either pardon, commute the sentence, direct = its=20 execution, or grant a further reprieve. He shall communicate to the = gene- ral=20 assembly, at every regular session, each case of reprieve, commutation, = or=20 pardon granted, stating the name and crime of the convict, the sentence, = its=20 date, and the date of the commutation, pardon, or reprieve, with his = reasons=20 therefor.

36. - =A712. There shall be a seal of the state, which shall be kept = by the=20 governor and used by him officially; and shall be called "The Great Seal = of the=20 State of Ohio."

37. - =A713. All grants and commissions shall be issued in the name, = and by the=20 authority, of the State of Ohio; sealed with the great seal signed, by = the=20 governor, and countersigned by the secretary of state.

>38. - =A714. No member of congress, or other person holding = office under=20 the authority of this state, or of the United States, shall execute the = office=20 of governor, except as herein provided.

39. - =A715. In case of the death, impeachment, resignation, removal, = or other=20 disability of the governor, the powers and duties of the office, for the = resi-due of the term, or until he shall be acquitted, or the disability = removed,=20 shall devolve upon the lieutenant governor.

40. - =A716. The lieutenant governor shall be president of the = senate, but=20 shall vote only when the, senate is equally divided; and in case of him = absence,=20 or impeachment, or when he shall exercise the office of governor, the = senate=20 shall choose a president pro tempore.

41. - =A717. If the lieutenant governor, while executing the office = of=20 governor, shall be impeached, displaced, resign or die, or otherwise = become=20 incapable of performing the duties of the office, the president of the = senate=20 shall act as govemor, until the vacancy is filled, or the disability = removed;=20 and if the president of the senate, for any of the above causes, shall = be=20 rendered incapable of performing the duties pertaining to the office of=20 governor, the same shall devolve upon the speaker of the house of=20 representatives.

42. - =A718. Should the office of auditor, treasurer, secretary, or = attorney=20 general, become vacant for any of the causes specified in the fifteenth = section=20 of this article, the governor shall fill the vacancy until the = disability is=20 removed, or a successor elected and qualified. Every such vacancy shall = be=20 filled by election, at the first general election that occurs, more than = thirty=20 days after it shall have happened; and the person chosen shall hold the = office=20 for the full term fixed in the second section of this article.

43. - =A719. The officers mentioned in this article, shall, at stated = times,=20 receive for their services, a compensation to be established by law, = which shall=20 neither be increased nor dimininshed during the period for which they = shall have=20 been elected.

44. - =A720. The officers of the executive department, and of the = public state=20 institutions, shall, at least five days preceding each regular session = of the=20 general assembly, severally report to the governor, who shall transmit = such=20 reports, with his message, to the general assembly.

45. - 4th. By article 4, the judicial department is constituted as = follows:=20 46.-SS 1. The judicial power of the state shall be vested, in a supreme = court,=20 in district courts, courts of common pleas, courts of probate, justices = of the=20 peace, and in such other courts, inferior to the supreme court, in one = or more=20 counties, as the general assembly, may from time to time establish.

47. - =A72. The supreme court shall consist of five judges, a = majority of whom=20 shall be necessary to form a quorum, or to pronouuce a decision. It = shall have=20 original jurisdiction in quo warranto, mandamus, habeas corpus, and = procedendo=20 and such appellate jurisdiction as may be provided by law. It shall hold = at=20 least one term in each year, at the seat of government, and such other = terms, at=20 the seat of government, or elsewhere, as may be provided by law. The = judges of=20 the supreme court shall be elected by the electors of the state at = large.

48. - =A73. The state shall be divided into nine common pleas = districts, of=20 which the county of Hamilton shall constitute one, of compact territory, = and=20 bounded by county lines; and each of said districts, consisting of three = or more=20 counties, shall be subdivided into three parts, of compact territory, = bounded by=20 county lines, and as nearly equal, in population as practicable; in each = of=20 which, one judge of the court of common pleas for said district, and = residing=20 therein, shall be elected by the electors of said subdivision. Courts of = common=20 pleas shall be held, by one or more of these judges, in every county in = the=20 district, as often as may be provided by law; and more than one court, = or=20 sitting thereof, may be held at the same time in each district.

49. - =A74 . The jurisdiction of the courts of common pleas, and of = the judges=20 thereof, shall be fixed by law.

50. - =A75. District courts shall be composed of the judges of the = court of=20 common pleas of the respective districts, and one of the judges of the = supreme=20 court, any three of whom shall be a quorum, and shall be held in each = county=20 therein, at least once in each year; but, if it shall be found = inexpedient to=20 hold such court annually, in each county, of any district, the general = assembly=20 may, for such district, provide that said court shall hold at least = three annual=20 sessions therein, in not less than three places: Provided, that the = general=20 assembly may, by law, authorize the judges of each district to fix the = times of=20 holding the courts therein.

51. - =A76. The district court shall have like original jurisdiction = with the=20 supreme court, and such appellate jurisdiction as may be provided by = law.

52. - =A77. There shall be established in each county, a probate = court, which=20 shall be a court of record, open at all times, and holden by one judge, = elec-ted=20 by the voters of the county, who shall hold his office for the term of = three=20 years, and shall receive such compensation, payable out of the county = treasury,=20 or by fees, or both; as shall be provided by law.

53. - =A78. The probate court shall have jurisdiction in probate and=20 testa-mentary matters, the appointment of administrators and guardians, = the=20 settlement of the accounts of executors, administrators and guardians, = and such=20 jurisdiction in habeas corpus, the issuing of marriage licenses, and for = the=20 sale of land by executors, aclministrators and guardians, and such other = jurisdiction, in any county, or counties, as may be provided by law.

54. - =A79. A competent number of justices of the peace shall be = elected, by=20 the electors, in each township in the several counties. Their term, of = office=20 shall be three years, and their powers and duties shall be regulated by = law.=20

55. - =A710. All judges, other than those provided for in this = constitution,=20 shall be elected by the electors of the judicial district for which they = may be=20 created, but not for a longer term of office than five years.

56. - =A711. The judges of the supreme court shall, immediately after = the first=20 election under this constitution, be classified by lot, so that one = shall hold=20 for the term of one year, one for two years, one for three years, one = for four=20 years, and one for five years; and, at all subsequent elections, the = term sf=20 each of said judges shall be for five years.

57. - =A712. The judges of the courts of common pleas shall, while in = office,=20 reside in the district for which they, are elected; and their term of = office=20 shall be for five years.

58. - =A713. In case the office of any judge shall become vacant = before the=20 expiration of the regular term for which he was elected, the vacancy = shall be=20 filled by appointment by the governor, until a successor is elected and=20 quali-fied; and such successor shall be elected for the unexpired term, = at the=20 first annual election that occurs more than thirty, days after the = vacancy shall=20 have happened.

59. - =A714. The judges of the supreme court, and of the court of = common pleas=20 shall, at stated times, receive for their services, such compensation as = may be=20 provided by law, which shall not be diminished or increased, during = their term=20 of office; but they shall receive no fees or perquisites, nor hold any = other=20 office of profit or trust, under the authority of this state, or the = United=20 States. All votes for either of them, for any elective office, except a = judicial=20 office, under the authority of this state, given by the general = assembly, or the=20 people, shall be void.

60. - =A715. The general assembly may increase or diminish the number = of the=20 judges of the supreme court, the number of the districts of the court of = common=20 pleas, the number of judges in any district; change the districts, or = the=20 subdivisions thereof, or establish other courts, whenever two-thirds of = the=20 members elected to each house shall concur therein; but no such change,=20 addition, or diminution, shall vacate the office of any judge.

61. - =A716. There shall be elected in each county by the electors = thereof, one=20 clerk of the court of common pleas, who shall hold his office for the = term of=20 three years, and until his successor shall be elected and qualified. He = shall,=20 by virtue of his office, be clerk of all other courts of record held = therein;=20 but the general assembly may provide by law, for the election of a = clerk, with a=20 like term of office, for each or any other of the courts of record, and = may=20 authorize the judge of the probate court to perform the duties of clerk = for his=20 court, under such regulations as may be directed by law. Clerks of = courts shall=20 be removable for such cause, and in such manner, as shall be prescribed = by=20 law.

62. - =A717. Judges may be removed from office, by concurrent = resolution of=20 both houses of the general assembly, if two-thirds of the members = elected to=20 each house concur therein; but no such removal shall be made, except = upon=20 complaint, the substance of which shall be entered on the journal, nor = until the=20 party charged shall have had notice thereof, and an opportunity to be = heard.=20

63. - =A718. The several judges of the supreme court, of the common = pleas, and=20 of such other courts as may be created, shall, respectively, have and = exercise=20 such power and jurisdiction, at chambers, or otherwise as may be = directed by=20 law.

64. - =A719. The general assembly may establish courts of = conciliation, and=20 pre- scribe their powers and duties; but such courts shall not render = final=20 judgment in any case, except upon submission, by the parties of the = matter in=20 dispute, and their agreement to abide such judgment.

65. - =A720. The style of all process shall be, "The State of Ohio;" = all=20 prosecutions shall be carried on in the name and by the authority of the = state=20 ofOhio; and all indictments shall conclude, "against the peace and = dignity of=20 the state of Ohio."

OLD AGE. This needs no definition. Sometimes old age is the = cause of=20 loss of memory and of the powers of the mind, when the party may be = found non=20 compos mentis. See Aged witness; Senility.

OLD NATURA BREVIUM. The title of an old English book, (usually = cited=20 Vet. N. B.) so called to distinguish it from the F. N. B. It contains = the writs=20 most in use in the reign of Edward III, together with a short comment on = the=20 application and properties of each of them,

OLD TENURES. The title of a small tract, which, as its title = denotes,=20 contains an account of the various tenures by which land was holden in = the reign=20 of Edward III. This tract was published in 1719, with notes and = additions, with=20 the eleventh edition of the First Institutes, and reprinted in 8vo. in = 1764, by=20 Serjeant Hawkins, in a Selection of Coke's Law Tracts.

OLERON LAWS. The name of a maritime code. Vide Laws of = Oleron.

OLIGARCHY. This name is given to designate the power which a = few=20 citizens of a state have usurped, which ought by the constitution to = reside in=20 the people. Among the Romans the government degenerated several times = into an=20 oligarchy; for example, under the decemvirs, when they became the only=20 magistrates in the commonwealth.

OLOGRAPH. When applied to wills or testaments, this term = signifies=20 that they are wholly written by the testator himself. Vide Civil, Code = of=20 Louisiana, art. 1581: Code Civil, 970; 6 Toull. n. 357; 1 Stuart's (L. = C.) R.=20 327; 2 Bouv. Inst. n. 2139; and see Testament, Olographic; Will, = Olographic.

OMISSION. An omission is the neglect to perform what the law=20 requires.

2. When a public law enjoins on certain officers duties to be = performed by=20 them for the public, and they omit to perform them, they may be = indicted: for=20 example, supervisors of the highways are required to repair the public = roads;=20 the neglect to do so will render them liable to be indicted.

3. When a nuisance arises in consequence of an omission, it cannot be = abated=20 if it be a private nuisance without giving notice, when such notice can = be=20 given. Vide Branches; Commission; Nuisance; Trees.

OMNIA PERFORMAVIT. A good plea in bar, where all the covenants = are in=20 the affirmative. 1 Greenl. R. 189.

OMNIUM, mercant. law. A term used to express the aggregate = value of=20 the dif- ferent stocks in which a loan is usually funded. 2 Esp. Rep. = 361; 7 T.=20 R. 630.

ONERARI NON. The name of a plea by which the defendant says = that he=20 ought not to be charged. lt is used in an action of debt. 1 Saund. 290, = n.=20 a.

ONERIS FERENDI, civil law. The name of a servitude by which = the wall=20 or pillar of one house is bound to sustain the weight of the buildings = of the=20 neighbor.

2. The owner of the servient building is bound to repair and keep it=20 sufficiently strong for the weight it has to bear. Dig. 8, 2, 23; 2 = Bouv. Inst.=20 n. 1627.

ONEROUS CAUSE, civil law., A valuable consideration.

ONEROUS CONTRACT, civil law. One made for a consideration = given or=20 promised, however small. Civ. Code of Lo. art. 1767.

ONEROUS GIFT, civil law. The gift of a thing subject to = certain=20 charges which the giver has imposed on the donee. Poth. h. t.

ONUS PROBANDI, evidence. The burden of the proof.

2. It is a general rule, that the party who alleges the affirmative = of any=20 proposition shall prove it. It is also a general rule that the onus = probandi=20 lies. upon the party who seeks to support his case by a particular fact = of which=20 he is supposed to be cognizant; for example, when to a plea of infancy, = the=20 plaintiff replies a promise after the defendant had attained his age, it = is=20 sufficient for the plaintiff to prove the promise and it lies on the = defen-dant=20 to show that he was not of age at the time. 1 Term. Rep. 648. But where = the=20 negative, involves a criminal omission by the party, and consequently = where the=20 law, by virtue of the general principle, presumes his innocence, the = affirmative=20 of the fact is also presumed. Vide 11 Johns. R. 513; 19 Johns. R. 345; 9 = M. R.=20 48; 3 N. S. 576.

3. In general, wherever the law presumes the affirmative, it lies on = the=20 party who denies the fact, to prove the negative; as, when the law = raises a=20 presumption as to the continuance of life; the legitimacy of children = born in=20 wedlock; or the satisfaction of a debt. Vide. generally, 1 Phil. Ev. = 156: 1=20 Stark. Ev. 376; Roscoe's Civ. Ev. 51 Roscoe's Cr. Ev. 55; B. P. 298; 2 = Gall.=20 485; 1 McCord, 573; 12 Vin. Ab. 201; 4 Bouv. Inst. n. 4411.

4. The party on whom the onus probandi lies is entitled to begin,=20 notwithstanding the technical form of the proceedings. 1 Stark. Ev. 584; = 3 Bouv.=20 last. n. 3043.

TO OPEN, OPENING. To open a case is to make a statement of the = pleadings in a case, which is called the opening.

2. The opening should be concise, very distinct and perspicuous. Its = use is=20 to enable the judge and jury to direct their attention to the real = merits of the=20 case, and the points in issue. 1 Stark. R. 439;S. C. 2 E. C. L. R. 462; = 2 Stark.=20 R. 31; S. C 3 Eng. C. L. R. 230.

3. The opening address or speech is that made immediately after the = evidence=20 has been closed; such address usually states, 1st. The full extent of = the=20 plaintiff's claims, and the circumstances under which they are made, to = show=20 that they are just and reasonable. 2d. At least an outline of the = evidence by=20 which those claims are to be established. 3d. The legal grounds and = authori-ties=20 in favor of the claim or of the proposed evidence. 4th. An anticipation = of the=20 expected defence, and statement of the grounds on which it is futile, = "either in=20 law or justice, and the reasons why it ought to fail. 3 Chit. Pr. 881; 3 = Bouv.=20 Inst. n. 3044, et seq. To open a judgment, is to set it aside.

TO OPEN A CREDIT. When a banker accepts or pays a bill of = exchange=20 drawn on him by a correspondent, who has not furnished him with funds, = he is=20 said to open a credit with the drawer. Pardess. n. 29.

OPEN COURT. The term sufficiently explains its meaning. By the = constitution of some states, and by the laws and practice of all the = others, the=20 courts are required to be kept open; that is, free access is admitted in = courts=20 to all persons who have a desire to enter there, while it can be done = without=20 creating disorder.

2. In England, formerly, the parties and probably their witnesses = were=20 admitted freely in the courts, but all other persons were required to = pay in=20 order to obtain admittance. Stat. 13 Edw. I. C. 42, and 44; Barr. on the = Stat,=20 126, 7. See Prin. of Pen. Law. 165

OPEN POLICY. An open policy is one in which the amount of the = interest=20 of the insured is not fixed by the policy, and is to be ascertained in = case of=20 loss. Vide Policy.

OPENING A JUDGMENT. The act of the court by which a judgment = is so far=20 annulled that it cannot be executed, but which still retains some = qualities of a=20 judgment; as, for example, its binding operation or lien upon the real = estate of=20 the defendant.

2. The opening of the judgment takes place when some person having an = interest makes affidavit to facts, which if true would render the = execution of=20 such judgment inequitable. The judgment is opened so as to be in effect = an award=20 of a collateral issue to try the facts alleged in the affidavit. 6 Watts = &=20 Serg. 493, 494.

OPERATION OF LAW. This term is applied to those rights which = are cast=20 upon a party by the law, without any act of his own; as, the right to an = estate=20 of one who dies intestate, is cast upon the heir at law, by operation of = law;=20 when a lessee for life enfeoffs him in reversion, or when the lessee and = lessor=20 join in a feoffment, or when a lessee for life or years accepts a new = lease or=20 demise from the lessor, there is a surrender of the first lease by = operation of=20 law. 9 B. & C. 298; 5 B. & C. 269; 2 B. & A. 119; 5 Taunt. = 518.

OPERATIVE. A workman; one employed to perform labor for = another.

2. This word is used in the bankrupt law of 19th August, 1841, s. 5, = which=20 directs that any person who shall have performed any labor as an = operative in=20 the service of anly bankrupt shall be entitled to receive the full = amount of=20 wages due to him for such labor, not exceeding twenty-fivedo llars; = provided=20 that such labor shall have been performed within six months next before = the=20 bankruptcy of his employer.

3. Under this act it has been decided that an apprentice who had done = work=20 beyond a task allotted to him by his master, commonly called overwork, = under an=20 agreement on the part of the master to pay for such work, was entitled = as an=20 operative. 1 Penn. Law Journ. 368. See 3 Rob. Adm. R. 237; 2 Cranch, 240 = 270.

OPINION, practice. A declaration by a counsel to his client of = what=20 the law is, according to his judgment, on a statement of facts submitted = to him.=20 The paper upon which an opinion is written is, by a figure of speech, = also=20 called an opinion.

2. The counsel should as far as practicable give, 1. A direct and = positive=20 opinion, meeting the point and effect of the question and separately, if = the-=20 questions proposed were properly divisible into several. 2. The reasons, = succinctly stated, in support of such opinion. 3. A reference to the = statute,=20 rule or decision on the subject. 4. When the facts are susceptible of a = small=20 difference in the statement, a suggestion of the probability of such = variation.=20 5. When some, important fact is stated as resting principally on the = statement=20 of the party interested, a suggestion ought to be made to inquire how = that fact=20 is to be proved. 6. A suggestion of the proper process or pleadings to = be=20 adopted. 7. A suggestion of what precautionary measures ought to be = adopted. As=20 to the value of an opinion, see 4 Penn, St. R. 28.

OPINION, evidence. An inference made, or conclusion drawn, by = a=20 witness from facts known to him,

2. In general a witness cannot be asked his opinion upon a particular = question, for he is called to speak of facts only. But to this general = rule=20 there are exceptions; where matters of skill and judgment are involved, = a person=20 competent, particularly to understand such matters, may be asked his = opinion,=20 and it will be evidence. 4 Hill , 129; 1 Denio, 281; 2 Scam. 297; 2 N. = H. Rep.=20 480; 2 Story, R. 421; see 8 W. & S. 61; 1 McMullan, 561 For example, = an=20 engi-neer may be called to say what, in his opinion, is the cause that a = harbor=20 has teen blocked up. 3 Dougl. R. 158; S. C. 26 Eng. C. L. Rep. 63; 1 = Phil. Ev.=20 276; 4 T. R. 498. A ship builder may be asked his opinion on a question = of=20 sea-worthiness. Peake, N. P. C. 25; 10 Bingh. R. 57; 25 Eng. Com. Law = Rep.=20 28.

3. Medical men are usually examined as to their judgment with regard = to the=20 cause of a person's death, who has suffered by violence. Vide Death. Of = the=20 sanity, 1 Addams, 244, or impotency, 3 Philm. 14, of an individual. = Professional=20 men are, however, confined to state facts and opinions within the scope = of their=20 professions, and are not allowed to give opinions on things of which the = jury=20 can as well judge. 5 Rogers' Rec. 26; 4 Wend. 320; 3 Fairf. 398; 3 Dana, = 882; 1=20 Pennsyl. 161; 2 Halst. 244; 7 Verm. 161; 6 Rand. 704; 4 Yeates, 262; 9 = Conn.=20 102; 3 N. H. Rep. 349; 5 H. & J. 488.

4. The unwritten or common law of foreign countries may be proved by = the=20 opinion of witnesses possessing professional skill. Story's Confl. of = Laws, 530;=20 1 Cranch, 12, 38; 2 Cranch, 236; 6 Pet Rep. 763; Pet. C. C. R. 225; 2 = Wash. C.=20 C. R. 175; Id. 1; 5 Wend. Rep. 375; 2 Id. 411; 3 Pick. Rep. 293; 4 Conn. = R. 517;=20 6 Conn: R. 486; 4 Bibb R. 73; 2 Marsh. Rep. 609; 5 Harr. & John. 86; = 1=20 Johns. Rep. 385; 3 Johns. Rep. 105; 14 Mass., R. 455; 6 Conn. R. 508; 1 = Verm. R.=20 336; 15 Serg. & Rawle, 87; 1, Louis. R. 153; 3 Id. 53; Cranch, 274. = Vide=20 also 14 Serg. & Rawle, 137; 3 N. Hamp. R. 349; 3 Yeates, 527; 1 = Wheel. C. C.=20 Rep. 205; 6 Rand. R. 704; 2 Russ. on Cr. 623; 4 Camp. R. 155; Russ. = & Ry.=20 456; 2 Esp. C. 58; Foreign Laws; 3 Phillim. R. 449; 1 Eccl. R. 291.

OPINION, judgment. A collection of reasons delivered by a = judge for=20 giving the judgment he is about to pronounce the judgment itself is = sometimes=20 called an opinion.

2. Such an opinion ought to be a perfect syllogism, the major of = which should=20 be the law; the minor, the fact to be decided and the consequence, the = judgment=20 which declares that to be conformable or contrary to law.

3. Opinions are judicial or extra-judicial; a judicial opinion is one = which=20 is given on a matter which is legally brought before the judge for his = decision;=20 an extra-judicial opinion, is one which although given in court, is not=20 necessary to the judgment. Vaughan, 382; 1 Hale's Hist. 141; and whether = given=20 in or out of court, is no more than the prolatum of him who gives it, = and has no=20 legal efficacy. 4 Penn. St. R. 28. Vide Reason.

OPPOSITION, practice. The act of a creditor who, declares his = dissent=20 to a debtor's being discharged under the insolvent laws.

OPPRESSOR. One who having public authority uses it unlawfully = to=20 tyrannize over another; as, if he keep him in prison until he shall do = something=20 which he is not lawfully bound to do.

2. To charge a magistrate with being an oppressor, is therefore = actionable.=20 Stark. Sland. 185.

OPPROBRIUM, civil law. Ignominy; shame; infamy. (q. v.)

OPTION. Choice; Election; (q. v.) where the subject is = considered.

OR. This syllable in the termination of words has an active=20 signification, and usually denotes the doer of an act; as, the grantor, = he who=20 makes a grant; the vendor, he who makes a sale; the feoffor, he who = makes a=20 feoffment. Litt. s. 57; 1 Bl. Com. 140, n.

ORACULUM, civil law. The name of a kind of decisions given by = the=20 Roman emperors.

ORAL. Something spoken in contradistinction to something = written; as=20 oral evidence, which is evidence delivered verbally by a witness,

ORATOR, practice. A good man, skillful in speaking well, and = who=20 employs a perfect eloquence to defend causes either public or private. = Dupin,=20 Profession d'Avocat, tom. 1, p. 19..

2. In chancery, the party who files a bill calls himself in those = pleadings=20 your orator. Among the Romans, advocates were called orators. Code, 1, = 8, 33,=20 1.

ORDAIN. To ordain is to make an ordinance, to enact a law.

2. In the constitution of the United States, the preamble. declares = that the=20 people "do ordain and establish this constitution for the United States = of=20 America." The 3d article of the same constitution declares, that "the = judicial=20 power shall be vested in one supreme court, and in such inferior courts = as the=20 congress may from time to time ordain and establish. "See 1 Wheat. R. = 304, 324;=20 4 Wheat: R. 316, 402.

ORDEAL. An ancient superstitious mode of tribal. When in a = criminal=20 case the accused was arraigned, be might select the mode of trial either = by God=20 and his country, that is, by jury; or by God only, that is by = ordeal.

2. The trial by ordeal was either by fire or by water. Those who were = tried=20 by the former passed barefooted and blindfolded over nine hot glowing=20 ploughshares; or were to carry burning irons in their hands; and = accordingly as=20 they escaped or not, they were acquitted or condemned. The water ordeal = was=20 performed either in hot or cold water. In cold water, the parties = suspected were=20 adjudged innocent, if their bodies were not borne up by the water = contrary to=20 the course of nature; and if, after putting their bare arms or legs into = scalding water they came out unhurt, they were taken to be innocent of = the=20 crime.

3. It was impiously supposed that God would, by the mere contrivance = of man,=20 exercise his power in favor of the innocent. 4. Bl. Com. 342; 2 Am. Jur. = 280.=20 For a detailed account of the trial by ordeal, see Herb. Antiq. of the = Inns of=20 Court, 146.

ORDER, government. By this expression is understood the = several bodies=20 which compose the state. In ancient Rome, for example, there were three = distinct=20 orders; namely, that of the senators, that of the patricians, and that = of the=20 plebeians.

2. In the United States there are no orders of men, all men are equal = in the=20 eye of the law, except that in some states slavery has been entailed on = them=20 while they were colonies, and it still exists, in relation to some of = the=20 African race but these have no particular rights. Vide Rank.

ORDER, contracts. An indorsement or short writing put upon the = back of=20 a negotiable bill or note, for the purpose of passing the title to it, = and=20 making it payable to another person.

2. When a bill or note is payable to order, which is generally = expressed by=20 this formula, "to A B, or order,"or" to the order of A B," in this case = the=20 payee, A B may either receive the money secured by such instrument, or = by his=20 order, which is generally done by a simple indorsement, (q. v.) pass the = right=20 to receive it to another. But a bill or note wanting these words, = although not=20 negotiable, does not lose the general qualities of such instruments. 6 = T. R.=20 123; 6 Taunt. 328; Russ. & Ry. C. C. 300; 3 Caines, 137; 9 John. = 217. Vide=20 Bill of Exchange; Indorsement.

3. An informal bill of exchange or a paper which requires one person = to pay=20 or deliver to another goods on account of the maker to a third party, is = called=20 an order.

ORDER, French law. The act by which the rank of preferences of = claims=20 among creditors who have liens over the price which arises out of the = sale of an=20 immovable subject, is ascertained, is called order. Dalloz, Dict. h. = t.

ORDER OF FILIATION. The name of a judgment tendered by two = justices,=20 having jurisdiction in such case, in which a man therein named is = adjudged to be=20 the putative father of a bastard child; and it is farther adjudged that = he pay a=20 certain sum for its support.

2. The order must bear upon its face, 1st. That it was made upon the=20 complaint of the township, parish, or other place, where the child was = born and=20 is chargeable. 2d. That it was made by justices of the peace having=20 jurisdiction. Salk. 122, pl. 6; 2 Ld. Raym. 1197. 3d. The birth place of = the=20 child; 4th. The examination of the putative father and of the mother; = but, it is=20 said, the presence of the putative father is not requisite, if he has = been=20 summoned. Cald. It. 308. 5th. The judgment that the defendant is the = putative=20 father of the child. Sid. 363; Stile, 154; Dalt. 52; Dougl. 662. 6th. = That he=20 shall maintain, the child as long as he shall be chargeable to the = township,=20 parish, or other place, which must be named. Salk. 121, pl. 2; Comb. = 232. But=20 the order may be that the father shall pay a certain sum weekly as long = as the=20 child is chargeable to the public. Stile, 134; Vent. 210. 7th. It must = be dated,=20 signed, and, sealed by the justices. Such order cannot be vacated by two = other=20 justices. 15 John. R. 208; see 8 Cowen, R. 623; 4 Cowen, R. 253; 12 = John. R.=20 195; 2 Blackf. R. 42.

ORDER NISI. A conditional order which is to be confirmed = unless=20 something be done, which has been required, by a time specified. Eden. = Inj.=20 122.

ORDERS. Rules made by a court or other competent jurisdiction. = The=20 formula is generally in those words: It is ordered, &c.

2. Orders also signify the instructions given by the owner to the = captain or=20 commander of a ship which he is to follow in the course of the = vovage.

ORDINANCE, legislation. A law, a statute, a decree.

2. This word is more usually applied to the laws of a corporation, = than to=20 the acts of the legislature; as the ordinances of the city of = Philadelphia. The=20 following account of the difference between a statute and an ordinance = is=20 extracted from Bac. Ab. Statute, A. "Where the proceeding consisted only = of a=20 petition from parliament, and an answer from the king, these were = entered on the=20 parliament roll; and if the matter was of a public nature, the whole was = then=20 styled an ordinance; if, however, the petition and answer were not only = of a=20 public, but a novel nature, they were then formed into an act by the = king, with=20 the aid of his council and judges, and entered on the statute roll." See = Harg.=20 & But. Co. Litt. l59 b, notis; 3 Reeves, Hist. Eng. Law, 146.

3. According to Lord Coke, the difference between a statute and an = ordinance=20 is, that the latter has not had the assent of the king, lords, and = commons, but=20 is made merely by two of those powers. 4 Inst. 25. See Barr. on Stat. = 41, note=20 (x).

ORDINANCE OF 1787. An act of congress which regulates the = territories=20 of the United States. It is printed in 3 Story, L. U. S. 2073. Some = parts of=20 this ordinance were designed for the temporary government of the = territory=20 north-west of the river Ohio while other parts were intended to be = permanent,=20 and are now in force. 1 McLean, R. 337; 2 Missouri R. 20; 2 Missouri R. = 144; 2=20 Missouri R. 214; 5 How. U. S. R. 215.

ORDINARY, civil and eccles. law. An officer who has original=20 jurisdiction in his own right and not by deputation.

2. In England the ordinary is an officer who has immediate = jurisdiction in=20 ecclesiastical causes. Co. Litt. 344.

3. In the United States, the ordinary possesses, in those states = where such=20 officer exists, powers vested in him by the constitution and acts of the = legislature, In South Carolina, the ordinary is a judicial officer. 1 = Rep.=20 Const. Ct. 26; 2 Rep. Const. Ct. 384.

ORDINATION, civil and eccles. law. The act of conferring the = orders of=20 the church upon an individual. Nov. 137.

ORE TENUS. Verbally. orally. Formerly the pleadings of the = parties=20 were ore tenus, and the practice is said to have been retained till the = reign of=20 Edward the Third, 3 Reeves, 95; Steph. Pl. 29; and vide Bract. 372, = b.

2. In chancery practice, a defendant may demur at the bar ore tentus; = 3 P.=20 Wms. 370; if he has not sustained the demurrer on the record. 1 Swanst. = R. 288;=20 Mitf. Pl. 176; 6 Ves. 779; 8 Ves. 405; 17 Ves. 215, 216,

OREGON. The name of a territory of the United States of = America. This=20 terri- tory was established by the act of congress of August 14, 1848; = and this=20 act is the fundamental law of the territory.

2. - Sect. 2. The executive power and authority in and over said = territory of=20 Oregon shall be vested in a governor who shall hold his office for four = years,=20 and until his successors shall be appointed and qualified, unless sooner = removed=20 by the president of the United States. The governor shall reside within = said=20 territory, shall be commander-in-chief of the militia thereof, shall = perform the=20 duties and receive the emoluments of superintendent of Indian affairs; = he may=20 grant pardons and respites for offences against the laws of said = territory, and=20 reprieves for offences against the laws of the United States until the = decision=20 of the president can be made thereon; he shall commission all officers = who shall=20 be appointed to office under the laws of the said territory, where, by = law, such=20 commissions shall be required, and shall take care that the laws be = faithfully=20 executed.

3. - Sect. 3. There shall be a secretary of said territory, who shall = reside=20 therein, and hold his office for five years, unless sooner removed by = the=20 president of the United States; he shall record and preserve all the = laws and=20 proceedings of the legislative assembly hereinafter constituted, and all = the=20 acts and proceedings of the governor in his executive department; he = shall=20 transmit one copy of the laws and journals of the legislative assembly = within=20 thirty days after the end of each session, and one copy of the executive = proceedings and official correspondence, semi-annually, on the first = days of=20 January and July, in each year, to the president of the United States, = and two=20 copies of the laws to the president of the senate and to the speaker of = the=20 house of representatives for the use of congress. And in case of the = death,=20 removal, resignation, or absence of the governor from the territory, the = secretary shall be, and he is hereby, authorized and required to execute = and=20 perform all the powers and duties of the governor during such vacancy or = ab-=20 sence, or until another governor shall be duly appointed and qualified = to fill=20 such vacancy.

4. - Sect. 4. The legislative power and authority of said territory = shall be=20 vested in a legislative assembly. The legislative assembly shall consist = of a=20 council and house of representatives. The council shall consist of nine = members,=20 having the qualifications of voters as hereinafter prescribed, whose = term of=20 service shall continue three years. Immediately after they shall be = assembled,=20 in consequence of the first election, they shall be divided as equally = as may be=20 into, three classes. The seats. of the members of council of the first. = class=20 shall be vacated at the expiration of the first year; of the second = class at the=20 expiration of the second year; and of the third class at the expiration = of the=20 third year, so that one-third may be chosen every year, and if vacancies = happen=20 by resignation or otherwise, the same shall be filled at the next = ensuing=20 election. The house of representatives shall, at its first session, = consist of=20 eighteen members, possessing the same qualifications as prescribed for = memers of=20 the council, and whose term of serice shall continue one year. The = number of=20 representatives may be increased by the legislative assembly from time = to time,=20 in proportion to the increase of qualified voters: Provided, That the = whole=20 number shall never exceed thirty. An apportionment shall be made, as = nearly=20 equal as practicable, among the several counties or districts, for the = election=20 of the council andrepresentatives, giving to each section of the = territory=20 representation in the ratio of its qualified voters, as nearly as may = be. And=20 the members of the council and of the house of representatives shall = reside in=20 and be inhabitants of the district, or county or counties, for which = they may be=20 elected respectively. Previous to the first election, the governor shall = cause a=20 census or enumeration of the inhabitants and qualified voters of the = several=20 counties and districts of the territory to be taken by such persons, and = in such=20 mode as the governor shall designate and appoint; and the persons so = appointed=20 shall receive a reasonable compensation therefor; and the first election = shall=20 be held at such time and places, and be conducted in such manner, both = as to the=20 person who shall superintend such election, and the returns thereof, as = the=20 governor shall appoint and direct; and he shall, at the same time, = declare the=20 number of members of the council and house of representatives to which = each of=20 the counties or districts shall be entitled under this act; and the = governor=20 shall, by his proclamation, give at least sixty days previous notice of = such=20 apportionment, and of the time, places, and manner of holding such = election. The=20 persons having the highest number of legal votes in each of said council = districts for members of the council shall be declared by the governor = to be=20 duly elected to the council; and the persons having the highest number = of legal=20 votes for the house of representatives shall be declared by the governor = to be=20 duly elected members of said house; Provided, That, in case two or more = persons=20 voted for shall have an equal number of votes and in case a vacancy = shall=20 otherwise occur, in either branch of the legislative assembly, the = governor=20 shall order a new election, and the persons thus elected to the = legislative=20 assembly shall meet at such place, and on such day, within ninety days = after=20 such elections, as the governor shall appoint; but, thereafter, the = time, place,=20 and manner of holding and conducting all elections by the people, and = the=20 apportioning the representation in the several counties or districts to = the=20 council and house of representatives, according to the number of = qualified=20 voters, shall be prescribed by law, as well as the day of the = commencement of=20 the regular sessions of the legislative assembly: Prodided, That no = session in=20 any one year shall exceed the term of sixty days, except the first = session,=20 which shall not be prolonged beyond one hundred days.

5. - Sect, 5. Every white male inhabitant, above the age of = twenty-one years,=20 who shall have been a reident of said territory at the time of the = passage of=20 this act, and shall possess the qualifications hereinafter prescribed, = shall be=20 entitled to vote at the first election, and shall be eligible to any = office=20 within the said territory; but the qualifications of voters and of = holding=20 office, at all subsequent elections, shall be such as shall be = prescribed by the=20 legislative assembly: Provided, That the right of suffrage and of = holding office=20 shall be exercised only by citizens United States above the age of = twenty-one=20 years, and those above that age who shall have declared, on oath, their=20 intention to become such, and shall have taken an oath to support the=20 constitution of the UnitedStates, and the provisions of this act: And, = further,=20 provided, That no officer, soldier, seaman, or marine, or other person = in the=20 army or navy of the United States, or attached to troop's in the service = of the=20 United States, shall be allowed to vote in said territory, by reason of = being on=20 service therein, unless said territory is and has been for the period of = six=20 months, his permanent domicil: Provided, further, That no person = belonging to=20 the army or navy of the United States shall ever be elected to, or hold = any=20 civil office or appointment in, said territory.

6. - Sect. 6. The legislative power of the territory shall extend to = all=20 rightful subjects of legislation not inconsistent with the constitution = and laws=20 of the United States; but no law shall be passed interfering with the = primary=20 disposal of the soil; no tar shall be imposed upon the property of the = United=20 States; nor shall the lands or other property of non-residents be taxed = higher=20 than the lands or other property of residents. All the laws passed by = the=20 legislative assembly shall be submitted to the congress of the United = States,=20 and, if disapproved, shall be null and of no effect: Provided, That = nothing in=20 this act shall be construed to give power to incorporate a bank, or any=20 institution with banking powers, or to borrow money in the name of the=20 territory, or to pledge the faith of the people of the same for any loan = whatever, either directly or indirectly. No charter granting any = privilege of=20 making, issuing, or putting into circulation any notes or bills in the = likeness=20 of bank notes, or any bonds scrip, drafts, bills of exchange, or = obligations, or=20 granting anyother banking powers or privileges, shall be passed by the=20 legislative assembly; nor shall the establishment of any branch or = agency of any=20 such corporation, derived from other authority, be allowed in said = territory;=20 nor shall said legislative assembly authorize the issue of any = obligation,=20 scrip, or evidence of debt by said territory, in any mode or manner = whatever,=20 except certificates for services to said territory; and all such laws, = or any=20 law or laws inconsistent with the provisions of this act, shall be = utterly null=20 and void; and all taxes shall be equal and uniform and no distinction = shall be=20 made in the assessments between different kinds of property, but the = assessments=20 shall be according to the value thereof. To avoid improper influences = which may=20 result from intermixing in one and the same act, such things as have no = proper=20 relation to each other, every law shall embrace but one object and that = shall be=20 expressed in the title.

7. - Sect. 7. All township, district, and county, officers, not = herein=20 otherwise provided for, shall be appointed or elected, in such manner as = shall=20 be provided by the legislative assembly of the territory of Oregon.

8. - Sect. 8. No member of the legislative assembly shall hold, or be = appointed to, any office which shall have been created, or the salary or = emoluments of which shall have been increased, while he was a member, = during the=20 term for which he was elected, and for one year after the expiration of = such=20 term; but this restriction shall not be applicable to members of the = first=20 legislative assembly; and no person holding a commission, or appointment = under=20 the United States shall be a member of the legislative assembly, or = shall hold=20 any office under the government of said territory.

9. The 16th section of the act authorizes the qualified voters to = elect a=20 delegate to the house of representatives of the United States, who shall = have=20 and exercise all the rights and privileges as have been heretofore = exercised and=20 enjoyed by the delegates from the other territories of the United States = to the=20 said house of representatives. Vide Courts of the United States.

ORIGINAL, contracts, practice, evidence. An authentic = instrument of=20 something, and which is to serve as a model or example to be copied or = imitated.=20 It also means first, or not deriving any authority from any other source = as,=20 original jurisdiction, original writ, original bill, and the like .

2. Originals are single or duplicate. Single, when there is but one;=20 duplicate, when there are two. In the case of printed documents, all the = impressions are originals, or in the nature of duplicate originals, and = any copy=20 will be primary evidence. Watson's Case, 2 Stark. R. 130; sed vide 14 = Serg.&=20 Rawle, 200; 2 Bouv. lnst. n. 2001.

3. When an original document is not evidence at common law, and a = copy of=20 such original is made evidence by an act of the legislature, the = original is=20 not, therefore, made admissible evidence by implication. 2 Camp. R. = 121,

ORIGINAL ENTRY. The first entry made by a merchant, tradesman, = or=20 other person in his account books, charging another with merchandise, = materials,=20 work, or labor, or cash, on a contract made between them.

2. This subject will be divided into three sections. 1. The form of = the=20 original entry. 2. The proof of such entry. 3. The effect.

3. - =A71. To make a valid original entry it must possess the = following=20 requisites, namely: 1. It must. be made in a proper book. 2. It must be = made in=20 proper time. 3. It must be intelligible and according to law. 4. It must = be made=20 by a person having authority to make it.

4. - 1. In general the books in which the first entries are made, = belonging=20 to a merchant, tradesman, or mechanic, in which are charged goods sold = and=20 delivered, or work and labor done, are received in evidence. There are = many=20 books which are not evidence, a few of which will he here enumerated. A = book=20 made up by transcribing entries made on a slate by a journeyman, the = transcript=20 being made on the same evening, or sometimes not until nearly two weeks = after=20 the work was done, was considered as not being a book of original = entries. 1=20 Rawle, R. 435; 2 Watts, R. 451; 4 Watts, R. 258; 1 Browne's R. 147; 6 = Whart. R.=20 189; 5 Watts, 432; 4 Rawle, 408; 2 Miles, 268. A book purporting to be a = book of=20 original entries, containing an entry of the sale of goods when they = were=20 ordered but before they were delivered, is not a book of ori-ginal = entries. 4=20 Rawle, 404. And unconnected scraps of paper, containing, as alleged, = original=20 entries of sales by an agent, on account of his principal, and appearing = on=20 their face to be irregularly kept, are not to be considered as a book of = original entries. 13 S. & R. 126. See 2 Whart. R. 33; 4 M'Cord, R. = 76; 20=20 Wend. 72; 2 Miles, R. 268; 1 Yeates, R. 198; 4 Yeates, R. 341.

5. - 2. The entry must be made in the course of business, and with = the=20 intention of making a charge for goods sold or work done; they ought not = to be=20 made after the lapse of one day. 8 Watts, 545; 1 Nott, & M'Cord, = 130; 4 Nott=20 & M'Cord, 77; 4 S. & R. 5; 2 Dall. 217; 9 S. & R. 285. A = book in=20 which the charges are made when the goods are ordered is not admissible. = 4=20 Rawle, 404; 3 Dev. 449.

6. - 3. The entry must be made in an intelligible manner, and not in = figures=20 or hieroglyphics which are understood by the seller only. 4 Rawle, 404. = A charge=20 made in the gross as "190 days work," 1 Nott & M'Cord, 130, or "for = medicine=20 and attendance," or "thirteen dollars for medicine and attendance on one = of the=20 general's daughters in curing the hooping cough," 2 Const. Rep. 476, = were=20 rejected. An entry of goods without carrying out any prices, proves, at = most,=20 only a sale, and the jury cannot, without other evidence, fix any price. = 1=20 South. 370. The charges should be specific and denote the particular = work or=20 service charged, as it arises daily, and the quantity, number, weight, = or other=20 distinct designation of the materials, or articles sold or furnished, = and attach=20 the price and value to each item. 2 Const. Rep. 745; 2 Bail. R. 449; 1 = Nott=20 & M'Cord, 130.

7. - 4. The entry must of course have been made by a person having = authority=20 to make it, 4 Rawle, 404, and with a view to charge the party. 8 Watts, = 545.

8. - =A72. The proof of the entry must be made by the person who made = it. If=20 made by the seller, he is competent to prove it from the necessity of = the case,=20 although he has an interest in the matter in dispute. 5 Conn. 496; 12 = John. R.=20 461; 1 Dall. 239. When made, by a clerk, it must be proved by him. But, = in=20 either case, when the person who made the entry is out of the reach of = the=20 process of the court, as in the case of death, or absence out of the = state, the=20 handwriting may be proved by a person acquainted with the handwriting of = the=20 person who made the entry. 2 Watts & Serg. 137. But the plaintiff is = not=20 competent to prove the handwriting of a deceased clerk who made the = entries. 1=20 Browne's R. App. liii.

9.- =A73. The books and original entries, when proved by the = supplementary oath=20 of the party, is prima facie evidence of the sale and delivery of goods, = or of=20 work and labor done. 1 Yeates, 347; Swift's Ev. 84; 3 Verm. 463; 1 = M'Cord, 481;=20 1 Aik. 355; 2 Root, 59; Cooke's R. 38. But they are not evidence of = money lent,=20 or cash paid. Id.; 1 Day, 104; 1 Aik. 73, 74; Kirby, 289. Nor of the = time a=20 vessel laid at the plaintiff's wharf; 1 Browne's Rep. 257; nor of the = delivery=20 of goods to be sold on commission. 2 Wharton, 33.

ORIGINAL JURISDICTION, practice. That which is given to courts = to take=20 cognizance of cases which may be instituted in those courts in the first = instance. The constitution of the United States gives the supreme court = of the=20 United State original jurisdiction in cases which affect ambassadors, = other=20 public ministers and consuls, and to those in which a state is a party. = Art. 3,=20 s. 2; 1 Kent, Com. 314.

ORIGINAL WRIT, practice, English law. A mandatory letter = issued in the=20 king's name, sealed with his great seal, and directed to the sheriff of = the=20 county wherein the injury was committed or supposed to have been done, = requiring=20 him to command the wrongdoer or party accused, either to do justice to = the=20 complainant, or else to appear in court and answer the accusation = against him.=20 This writ is deemed necessary to give the courts of law = jurisdiction.

2. In modern practice, however, it is often dispensed with, by = recourse, as=20 usual, to fiction, and a proceeding by bill is substituted. In this = country, our=20 courts derive their jurisdiction from the constitution and require no = original=20 writ to confer it. Improperly speaking, the first writ which is issued = in a=20 case, is sometimes called an original writ, but it is not so in the = English=20 sense of the word. Vide 3 Bl. Com. 273 Walk. Intr. to Amer. Law, = 514.

ORIGINALIA, Eng. law. The transcripts and other documents sent = to the=20 office of the treasurer-remembrancer in the exchequer, are called by = this name=20 to distinguish them from records, which contain the judgment's of the=20 barons.

ORNAMENT. An embellisment. In questions arising as to which of = two=20 things is to be considered as principal or accessory, it is the rule, = that an=20 ornament shall be considered as an accessory. Vide Accessory; = Principal.

ORPHAN. A minor or infant who has lost both of his or her = parents.=20 Sometimes the term is applied to such a person who has lost only one of = his or=20 her parents. 3 Mer. 48; 2 Sim. & Stu. 93; Lo & Man. Inst. B. 1, = t. 2, c.=20 1. See Hazzard's Register of Pennsylvania, vol. 14, pages 188, 1 89, for = a=20 correspon-dence between the Hon. Joseph Hopkinson and ex-president J. Q. = Adams=20 as to the meaning of the word Orphan, and Rob. 247.

ORPHANAGE, Engl. law. By the custom of London, when a freeman = of that=20 city dies, his estate is divided into three parts, as follows: one third = part to=20 the widow; another, to the children advanced by him in his lifetime, = which is=20 called the orphanage; and the other third part may be by him disposed of = by=20 will. Now, however, a freeman may dispose of his estate as he pleases; = but in=20 cases of intestacy, the statute of distribution expressly excepts and = reserves=20 the custom of London. Lov. on Wills, 102, 104; Bac. Ab. Custom of = London, C.=20 Vide Legitime.

ORPHANS' COURT. The name of a court in some of the states, = having=20 jurisdic- tion of the estates and persons of orphans.

ORPHANOTROPHI, civil law. Persons who have the charge of = administering=20 the affairs of houses destined for the use of orphans. Clef des Lois = Rom. mot=20 Ad- ministrateurs.

OSTENSIBLE PARTNER. One whose name appears in a firm, as a = partner,=20 and who is really such.

OTHER WRONGS, pleading, evidence. In actions of trespass, the=20 declaration concludes by charging generally, that the defendant did = other wrongs=20 to the plaintiff to his great damage. When the injury is a continuation = or=20 consequence of the trespass declared on, the plaintiff may give evidence = of such=20 injury under this averment of other wrongs, Rep., Temp. Holt 699; 2 = Salk. 642; 6=20 Mod. 127; Bull. N. P. 89; 2 Stark. N. P. C. 818.

OUNCE. The name of a weight. An ounce avoirdupois weight is = the=20 sixteenth part of a pound; an ounce troy weight is the twelfth part of a = pound.=20 Vide Weights.

OUSTER, torts. An ouster is the actual turning out, or keeping = excluded, the party entitlod to possession of any real property = corporeal.

2. An ouster can properly be only from real property corporeal, and = cannot be=20 committed of anything movable; 1 Car. & P. 123; S. C. 11 Eng. Com. = Law R.=20 339; 2 Bouv. 1 Inst. n. 2348; 1 Chit. Pr. 148, note r; nor is a mere = temporary=20 trespass considered as an Guster. Any continuing act of exclusion from = the=20 enjoyment, constitutes an ouster, even by one tenant in common of his = co-tenant.=20 Co. Litt. 199 b, 200 a. Vide 3 Bl; Com. 167; Arch. Civ. Pl. 6, 14; 1 = Chit. Pr.=20 374, where the remedies for an ouster are pointed out. Vide Judgment of=20 Respondent Ouster.

OUSTER LE MAIN. In law-French, this signifies, to take out of = the=20 hand. In the old English law it signified a livery of lands out of the = hands of=20 the lord, after the tenant came of age. If the lord refused to deliver = such=20 lands, the tenant was entitled to a writ to recover the same from the = lord; this=20 recovery out of the hands of the lord was called ouster le main.

OUTFIT. An allowance made by the government of the United = States to a=20 minis-ter plenipotentiary, or charge des affaires, on going from the = United=20 States to any foreign country.

2. The outfit can in no case exceedlone year's full salary of such = minister=20 or charge des affaires. No outfit is allowed to a consul. Act of Cong. = May 1,=20 1810. s. 1. Vide Minister.

OUTHOUSES. Buildings adjoining to or belonging to = dwelling-houses.

2. It is not easy to say what comes within and what is excluded from = the=20 meaning of out-house. It has been decided that a school-room, separated = from the=20 dwelling-house by a narrow passage about a yard wide, the roof of which = was=20 partly upheld by that of the dwelling-house, the two buildings, together = with=20 some other, and the court which enclosed them, being rented by the same = person,=20 was properly described as an out-house: Russ. & R. C. C. 295; see, = for other=20 cases, 3 Inst. 67; Burn's Just., Burning, II; 1 Leach, 49; 2 East's P. = C. 1020,=20 1021. Vide House.

OUTRIDERS, Engl. law. Bailiffs errant, employed by the = sheriffs and=20 their deputies, to ride to the furthest places of their counties or = hundreds to=20 summon such as they thought good, to attend their county or hundred = court.

OUTLAW, Engl. law. One who is put out of the protection or aid = of the=20 law. 22 Vin. Ab. 316; 1 Phil. Ev. Index, h. t.; Bac. Ab. Outlawry; 2 = Sell. Pr.=20 277; Doct. Pl. 331; 3 Bl. Com. 283, 4.

OUTLAWRY, Engl. law. The act of being put out of the = protection of the=20 law by process regularly sued out against a person who is in contempt in = refusing to become amenable to the court having jurisdiction. The = proceedings=20 themselves are also called the outlawry.

2. Outlawry may take place in criminal or in civil cases. 3 Bl. Com. = 283; Co.=20 Litt. 128; 4 Bouv. Inst. n. 4196.

3. In the United States, outlawry in civil cases is unknown, and if = there are=20 any cases of outlawry in criminal cases they are very rare. Dane's Ab. = eh. 193,=20 a, 34. Vide Bac. Ab. Abatement, B; Id. h. t.; Gilb. Hist. C. P. 196, = 197; 2=20 Virg. Cas. 244; 2 Dal. 92.

OUTRAGE. A grave injury; a serious wrong. This is a generic = word which=20 is applied to everything, which is injurious, in great degree, to the = honor or=20 rights of another.

TO OVERDRAW. To draw bills or cheeks upon an individual, bank = or other=20 corporation, for a greater amount of funds than the party who draws is = entitled=20 to.

2. When a person has overdrawn his account without any intention to = do so,=20 and afterwards gives a check on a bank, the holder is required to = present it,=20 and on refusal of payment to give notice to the maker, in order to hold = him=20 bound for it; but when the maker had overdrawn the bank knowingly, and = had no=20 funds there between the time the check was given and its presentment, = the notice=20 is not requisite. 2 N. & McC. 433.

OVERDUE. A bill, note, bond or other contract, for the payment = of=20 money at a particular day, when not paid upon the day, is overdue.

2. The indorsement of a note or bill overdue, is equivalent to = drawing a new=20 bill payable at sight. 2 Conn. 419; 18 Pick. 260; 9 Alab. R. 153.

3. A note when passed or assigned when overdue, is subject to all the = equities between the original contracting parties. 6 Conn. 5; 10 Conn. = 30, 55; 3=20 Har. (N. J.) Rep. 222.

OVERPLUS. What is left beyond a certain amount; the residue, = the=20 remainder of a thing. The same as Surplus. (q. v.)

2. The overplus may be certain or uncertain. It is certain, for = example, when=20 an estate is worth three thousand dollars, and the owner asserts it to = be so in=20 his will, and devises of the proceeds one thousand dollars to A, one = thousand=20 dollars to B, and the overplus to C, and in consequence of the = deterioration of=20 the estate, or from some other cause, it sells for less than three = thousand=20 dollars, each of the legatees A, B and C shall take one third: the = overplus is=20 uncertain where, for example, a testator does not know the value of his = estate,=20 and gives various legacies and the overplus to another legatee; the = latter will=20 be entitled only to what may be left. 18 Ves. 466. See Residue; = Surplus.

TO OVERRULE. To annul, to make void. This word is frequently = used to=20 signify that a case has been decided directly opposite to a former case; = when=20 this takes place, the first decided case is said to be overruled as a = precedent,=20 and cannot any longer be considered as of binding authority.

2. Mr. Greenleaf has made a very valuable collection of overruled = cases, of=20 great service to the practitioner.

3. The term overrule also signifies that a majority of the judges = have=20 decided against the opinion of the minority, in which case the latter = are said=20 to be overruled.

OVERSEERS OF THE POOR. Persons appointed or elected to take = care of=20 the poor with moneys furnished to them by the public authority.

2. The duties of these officers are regulated by local statutes. In = general=20 the overseers are bound to perform those duties, and the neglect of them = will=20 subject them to an indictment. Vide 1 Bl. Com. 360; 16 Vin. Ab. 150; 1 = Mass.=20 459; 3 Mass. 436; 1 Penning. R. 6, 136; Com. Dig. Justices of the Peace, = B. 63,=20 64, 65.

OVERSMAN, Scotch law. A person commonly named in a submission, = to whom=20 power is given to determine in case the arbiters cannot agree in the = sentence;=20 sometimes the nomination of the oversman is left to the arbiters. In = either case=20 the oversman has no power to decide, unless the arbiters differ in = opinion.=20 Ersk. Pr. L. Scot. 4, 3, 16. The office of an oversman very much = resembles that=20 of an umpire.

OVERT. Open. An overt act in treason is proof of the intention = of the=20 traitor, because it opens his designs; without an overt act treason = cannot be=20 committed. 2 Chit: Cr. Law, 40. An overt act then, is one which = manifests the=20 intention of the traitor, to commit treason. Archb. Cr. Pl. 379 4 Bl. = Com.=20 79.

2. The mere contemplation or intention to commit a crime; although a = sin in=20 the sight of heaven, is not an act amenable to human laws. The were = speculative=20 wantonness of a licentious imagination, however dangerous, or even = san-guinary=20 in its object, can in no case amount to a crime. But the moment that any = overt=20 act is manifest, the offender becomes amenable to the laws. Vide = Attempt;=20 Conspiracy, and Cro. Car. 577.

OWELTY. The difference which is paid or secured by one = coparcener to=20 another, for the purpose of equalizing a partition. Hugh. Ab. Partition = and=20 Partner, =A7 2, n. 8; Litt. s. 251; Co. Litt. 169 a; 1 Watts, R. 265; 1 = Whart.=20 292; 3 Penna, 11 5; Cruise, Dig. tit. 19, =A732; Co. Litt. 10 a; 1 Vern. = 133;=20 Plow. 134; 16 Vin. Ab. 223, pl. 3; Bro. Partition; =A75. OWING. = Something unpaid.=20 A debt, for example, is owing while it is unpaid, and whether it be due = or not.=20

2. In affidavits to hold to bail it is usual to state that the debt = on which=20 the action is founded is due, owing and unpaid. 1 Penn. Law Jo. 210.

OWLER, Eng. law. One guilty of the offence of owling.

OWLING, Eng. law. The offence of transporting wool or sheep = out of the=20 king-dom.

2. The name is said to owe its origin to the fact that this offence = was=20 carried on in the night, when the owl was abroad.

OWNER, property. The owner is he who has dominion of a thing = real or=20 person-al, corporeal or incorporeal, which he has a right to enjoy and = to do=20 with as he pleases, even to spoil or destroy it, as far as the law = permits,=20 unless he be prevented by some agreement or covenant which restrains his = right.

2. The right of the owner is more extended than that of him who has = only the=20 use of the thing. The owner of an estate may, therefore change the face = of it;=20 he may cut the wood, demolish the buildings, build new ones, and dig = wherever he=20 may deem proper, for minerals, stone, plaster, and similar things. He = may=20 committ what would be considered waste if done by another.

3. The owner continues to have the same right although he perform no = acts of=20 ownership, or be disabled from performing them, and although another = perform=20 such acts, without the knowledge or against the will of the owner. But = the owner=20 may lose his right in a thing, if he permit it to remain in the = possession of a=20 third person, for sufficient time to enable the latter to acquire a = title to it=20 by prescription, or lapse of time. See Civil Code of Louis. B. 2, t. 2, = c. 1;=20 Encyclopedie de M. D'Alembert, Proprietaire.

4. When there are several joint owners of a thing, as for example, of = a ship,=20 the majority of them have the right to make contracts in respect of such = thing,=20 in the usual course of business or repair, and the like, and the = minority will=20 be bound by such contracts. Holt, 586; 1 Bell's Com. 519, 5th ed. See 5 = Whart.=20 R. 366.

OWNERSHIP, title to property. The right by which a thing = belongs to=20 some one in particular, to the exclusion of all other persons. Louis. = Code, art.=20 480.

OXGANG OF LAND, old Eng. law. An uncertain quantity of land, = but,=20 according to some opinions, it contains fifteen acres. Co. Litt. 69 = a.

OYER, pleading. Oyer is a French word signifying to hear; in = pleading=20 it is a prayer or petition to the court, that the party may hear read to = him the=20 deed, &c., stated in the pleadings of the opposite party, aud which = deed is=20 by intendment of law in court, when it is pleaded with a profert.

2. The origin of this form of pleading, we are told, is that the = generality=20 of defendants, in ancient times, were themselves incapable of reading. 3 = Bl.=20 Com. 299.

3. Oyer is, in some cases demandable of right, and in others it is = not. It=20 may be demanded of any speciality or other written instrument, as bonds = of all=20 sorts, deeds poll, indentures, letters testamentary, and of = administration, and=20 the like, of which a profert in curiam is necessarily made by the = adverse party.=20 But if the party be not bound to plead the specialty or instrument with = a=20 profert, and he pleads it with one, it is but surplusage, and the court = will not=20 compel him to give oyer of it. 1 Salk. 497. Oyer is not now demandable = of the=20 writ, and if it be demanded, the plaintiff may proceed as if no such = demand were=20 made. Dougl. 227; 3 B. & P. 398; 1 B.& P. 646, n. b. Nor is oyer = demandable of a record, yet if a judgment or other record be pleaded in = its own=20 court, the party pleading it must give a notice in writing of the term = and=20 number roll whereon such judgment or matter of record is entered or = filed in=20 default of which the plea is not to be received. Tidd's Pr. 529.

4. To deny over when it ought to be granted is error; and in such = case the=20 party making the claim, should move. the court to have it entered on = record,=20 which is in the nature of a plea, and the plaintiff may counterplead the = right=20 of oyer, or strike out the rest of the pleading, following the oyer, and = demur;=20 1 Saund. 9 b, n. 1; Bac. Abr. Pleas, 1; upon which the judgment of the = court is=20 either that the defendant have oyer, or that he answer without it. Id. = ibid.; 2=20 Lev. 142; 6 Mod. 28. On the latter judgment, the defendant may bring a = writ of=20 error, for to deny oyer when it ought to be granted, is error, but not e = converso. Id. ibid.; 1 Blackf. R. 126. See, in general, 1 Saund. 9, n. = 1; 289,=20 in. 2; 2. Saund. 9, n. 12, 13; 46, n. 7; 366, n. 1; 405, n. 1; 410, n. = 2; Tidd's=20 Pr. 8 ed. 635 to 638, and index, tit. Oyer; 1 Chit. Pl. 369 to 375; = Lawes on=20 Civ. Pl. 96 to 101; 16 Vin. Ab. 157; Bac. Abr. Pleas, &c., I 12, n. = 2; Arch.=20 Civ. Pl. 185; 1 Sell. Pr. 260; Doct. Pl, 344; Com. Dig. Pleader, P = Abatement, I=20 22; 1 Blackf. R. 241, 3 Bouv. Inst. n. 2890.

OYER AND TERMINER. The name of a court authorized to hear and=20 determine all treasons, felonies and misdemeanors; and, generally, = invested with=20 other power in relation to the punishment of offenders.

OYEZ, practice. Hear; do you hear. In order to attract = attention=20 immediately before he makes proclamation, the cryer of the court cries = Oyez,=20 Oyez, which is generally corruptly pronounced O yes.

Index

= --0CF48367-WebSite-Rules-Byte-Range-Data-0CF48367-- ------=_NextPart_000_0050_01C78C3D.77482920 Content-Type: application/octet-stream Content-Transfer-Encoding: base64 Content-Location: http://thesonsofliberty.50megs.com/cgi-bin/sitestats.gif?p=http%3A%2F%2Fthesonsofliberty.50megs.com%2Fbouvier_o.htm;r=http%3A%2F%2Fthesonsofliberty.50megs.com%2Fmemberspaperwork.htm; R0lGODlhAQABAIABAAAAAP///yH5BAEAAAEALAAAAAABAAEAAAICTAEAOw== ------=_NextPart_000_0050_01C78C3D.77482920--