



                                     O.

OATH. A declaration made according to law, before a competent tribunal or 
officer, to tell the truth; or it is the act of one who, when lawfully 
required to tell the truth, takes God to witness that what he says is true. 
It is a religious act by which the party invokes God not only to witness the 
truth and sincerity of his promise, but also to avenge his imposture or 
violated faith, or in other words to punish his perjury if he shall be 
guilty of it. 10 Toull. n. 343 a 348; Puff. book, 4, c. 2, s. 4; Grot. book 
2, c. 13, s. 1; Ruth Inst. book 1, ch. 14, s. 1; 1 Stark. Ev. 80; Merl. 
Repert. Convention; Dalloz, 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 which the God of truth, who knows all things, is taken to witness. 2. The 
imprecation by which he is asked as a just and all-powerful being, to punish 
perjury. 
     3. The commencement of an oath is made by the party taking hold of the 
book, after being required by the officer to do so, and ends generally with 
the words,"so help you God," and kissing the book, when the form used is 
that of swearing on the Evangelists. 9 Car. & P. 137. 
     4. Oaths are taken in various forms; the most usual is upon the Gospel 
by taking the book in the hand; the words commonly used are, "You do swear 
that," &c. "so help you God," and then kissing the book. The origin of this 
oath may be traced to the Roman law, Nov. 8, tit. 3; Nov. 74, cap. 5; Nov. 
124, cap. 1; and the kissing the book is said to be an imitation of the 
priest's kissing the ritual as a sign of reverence, before he reads it to 
the people. Rees, Cycl. h.v. 
     5. Another form is by the witness or party promising holding up his 
right 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 great day." 
     6. In another form of attestation commonly called an affirmation, 
(q.v.) the  officer repeats, "You do solemnly, sincerely, and truly declare 
and affirm, that," &c. 
      7. The oath, however, may be varied in any other form, in order to 
conform to the religious opinions of the person who takes it. 16 Pick. 154, 
156, 157; 6 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 extra judicial. 
     9. Among promissory oaths may be classed all those taken by public 
 officers on entering into office, to support the constitution of the United 
States, and to perform the duties of the office. 
    10. Custom-house oaths and others required by law, not in judicial 
proceedings, nor from officers entering into office, may be classed among 
the 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, though binding in foro conscientiae, do not render the persons who 
take them liable to the punishment of perjury, when false. 
    13. Oaths are also divided into various kinds with reference to the 
purpose for which they are applied; as oath of allegiance, oath of calumny, 
oath ad 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 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 the time and manner of administering certain oaths as follows: 
    Sec. 1. Be it enacted, &c., That the oath or affirmation required by the 
sixth article of the constitution of the United States, shall be 
administered in the form following, to wit, "I, A B, do solemnly swear or 
affirm, (as the case may be,) that I will support the constitution of the 
United States." The said oath or affirmation shall be administered within 
three days after the passing of this act, by any one member of the senate, 
to the president of the senate, and by him to all the members, and to the 
secretary; and by the speaker of the house of representatives, to all the 
members who have not taken a similar oath, by virtue of a particular 
resolution of the said house, and to the clerk: and in case of the absence 
of any member from the service of either house, at the time prescribed for 
taking the said oath or affirmation, the same shall be administered to such 
member when he shall appear to take his seat. 
    15.-Sec. 2. That at the first session of congress after every general 
election of representatives, the oath or affirmation aforesaid shall be 
administered by any one member of the house of representatives to the 
speaker; and by him to all 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 their seats. The president of the senate for the 
time being, shall also administer the said oath or affirmation to each 
senator who shall hereafter be elected, previous to his taking his seat; and 
in any future case of a president of the senate, who shall not have taken 
the said oath or affirmation, the same shall be administered to him by any 
one of the members of the senate. 
    16.-Sec. 3. That the members of the several state legislatures, at the 
next session of the said legislatures respectively, and all executive and 
judicial officers of the several states, who have been heretofore chosen or 
appointed, or, who shall be chosen or appointed before the first day of 
August next, and who shall then be in office, shall, within one month 
thereafter, take the same oath or affirmation, except where they shall have 
taken it before which may be administered by any person authorized by the 
law of the state, in which such office shall be holden, to administer oaths. 
And the members of the several state legislatures, and all executive and 
judicial officers of the several states, who shall be chosen or appointed 
after the said first day of August, shall, before they proceed to execute 
the duties of their respective offices, take the foregoing oath or 
affirmation, which shall be administered by the person or persons, who, by 
the law of the state, shall be authorized to administer the oath of office; 
and the person or persons so administering the oath hereby required to be 
taken, shall cause a record or certificate thereof to be made, in the same 
manner as, by the law of the state, he or they shall be directed to record 
or certify the oath of office. 
    17.-Sec. 4. That all officers appointed or hereafter to be appointed, 
under the authority of the United States, shall, before they act in their 
respective offices, take the same oath or affirmation, which shall be 
administered by the person or persons who shall be authorized by law to 
administer to such officers 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 taking their respective oaths of 
office. 
    18.-Sec. 5. That the secretary of the senate, and the clerk of the 
house of representatives, for the time being, shall, at the time of taking 
the oath or affirmation aforesaid, each take an oath or affirmation in the 
words following, to wit; "I, A B, secretary of the senate, or clerk of the 
house of 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 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 
which a plaintiff was obliged to take that he was not actuated by a spirit 
of chicanery in commencing his action, but that he had bona fide a good 
cause of action. Poth. Pand. lib. 5, t. 16 and 17, s. 124. This oath is 
somewhat similar 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 practice in the admiralty courts of the United States; Dunl. Adm. Pr. 
290; and by the 102d of the rules of the district court for the southern 
district of New York, the oath of calumny shall not be required of any party 
in any stage of a 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 one of the parties defers or refers back to the other, for the 
decision of the cause. 
    23. It may be deferred in any kind of civil contest whatever, in 
questions of possession or of claim; in personal actions and in real. The 
plaintiff may defer the oath to the defendant, whenever he conceives he has 
not sufficient proof of the fact which is the foundation of his claim; and 
in like manner, the defendant may defer it to the plaintiff when he has not 
sufficient proof of his defence. The person to whom the oath is deferred, 
ought either to take it or refer it back, and if he will not do either, the 
cause should be decided against him. Poth. on Oblig. P. 4, c. 3, s. 4. 
    24. The decisory oath has been practically adopted in the district court 
of the United States, for the district of Massachusetts, and admiralty 
causes have been determined in that court by the oath decisory; but the 
cases in which this oath has been adopted, have been where the tender has 
been accepted; and no case is known to have occurred there in which the oath 
has been refused and tendered back to the adversary. Dunl. Adm. Pr. 290, 
291. 
    25. A judicial oath is a solemn declaration made in some form warranted 
by law, before a court of justice or some officer authorized to administer 
it, by which the person who takes it promises to tell the truth, the whole 
truth, and nothing but the truth, in relation to his knowledge of the matter 
then under examination, and appeals to God for his sincerity. 
    26. In the civil law, a judicial oath is that which is given in judgment 
by one party to another. Dig. 12, 2, 25. 
    27. Oath in litem, in the civil law, is an oath which was deferred to 
the complainant as to the value of the thing in dispute on failure of other 
proof, particularly when there was a fraud on the part of the defendant, and 
be suppressed proof in his possession. See Greenl. Ev. Sec. 348; Tait on Ev. 
280; 1 Vern. 207; 1 Eq. Cas. Ab. 229; 1 Greenl. R. 27; 1 Yeates, R. 34; 12 
Vin. Ab. 24. In general the oath of the party cannot, by the common law, be 
received to establish his claim, but to this there are exceptions. The oath 
in litem is admitted in two classes of cases: 1. Where it has been already 
proved, that the party against whom it is offered has been guilty of some 
fraud or other tortious or unwarrantable act of intermeddling with the 
complainant's goods, and no other evidence can be had of the amount of 
damages. As, for example, where a trunk of goods was delivered to a 
shipmaster at one port to be carried to another, and, on the passage, he 
broke the trunk open and rifled it of its contents; in an action by the 
owners of the goods against the shipmaster, the facts above mentioned having 
been proved aliunde, the plaintiff was held, a competent witness to testify 
as to the contents of the trunk. 1 Greenl. 27; and see 10 Watts, 335; 1 
Greenl. Ev. Sec. 348; 1 Yeates, 34; 2 Watts, 220; 1 Gilb. Ev. by Lofft, 244. 
2. The oath in litem is also admitted on the ground of public policy, where 
it is deemed essential to the purposes of justice. Tait on Ev. 280. But this 
oath is admitted only on the ground of necessity. An example may be 
mentioned of a case where a statute can receive no execution, unless the 
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 party declares that he will fulfill certain duties therein mentioned, as 
the oath which an alien takes on becoming naturalized, that he will support 
the constitution of the United States: the oath which a judge takes that he 
will perform the duties of his office. The breach of this does not involve 
the party 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 
made, which being joined to half proof, supplies the evidence required to 
enable 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 against him, for he is then said to purge himself, when he removes the 
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 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 the subject-matter, are not responsible for their acts. A 
sheriff may therefore justify a trespass under an execution, when the court 
has jurisdiction, although irregularly issued. 3 Chit. Pr. 75; Ham. N. P. 
48. 
     3. A child, an apprentice, a pupil, a mariner, and a soldier, owe 
respectively obedience to the lawful commands of the parent, the master, the 
teacher, the captain of the ship, and the military officer having command; 
and in case of disobedience, submission may be enforced by correction. 
(q.v.) 

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

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

OBLIGATION. In its general and most extensive sense, obligation is 
synonymous with duty. In a more technical meaning, it is a tie which binds 
us to pay or to do something agreeably to the laws and customs of the 
country in which the obligation is made. Just. Inst. 1. 3, t. 14. The term 
obligation also signifies the instrument or writing by which the contract is 
witnessed. And in another sense, an obligation still subsists, although the 
civil obligation is said to be a bond containing a penalty, with a condition 
annexed for the payment of money, performance of covenants or the like; it 
differs from a bill, which is generally without a penalty or condition, 
though it may be obligatory. Co. Litt. 172. It is also defined to be a deed 
whereby a man binds himself under a penalty 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. & R. 502; 6 Vern. 40; 1 
Blackf. 241; Harp. R. 434; 2 Porter, 19; 1 Bald. 129. See 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 
obligations. 
     3. Imperfect obligations are those which are not binding on us as 
between man and man, and for the non-performance of which we are accountable 
to God only; such as charity or gratitude. In this sense an obligation is a 
mere duty. Poth. Ob. art. Prel. n. 1. 
     4. A perfect obligation is one which gives a right to another to 
require us to give him something or not to do something. These obligations 
are either natural or moral, or they are civil. 
     5. A natural or moral obligation is one which cannot be enforced by 
action, but which is binding on the party who makes it, in conscience and 
according to natural justice. As for instance, when the action is barred by 
the act of limitation, a natural obligation is extinguished. 5 Binn. 573. 
Although natural obligations cannot be enforced by action, they have the 
following effect: 1. No suit will lie to recover back what has been paid, or 
given in compliance with a natural obligation. 1 T. R. 285; 1 Dall. 184, 2. 
A natural obligation is a sufficient consideration for a new contract. 5 
Binn. 33; 2 Binn. 591; Yelv. 41, a, n. 1; Cowp. 290; 2 Bl. Com. 445; 3 B. & 
P. 249, n.; 2 East, 506; 3 Taunt. 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 juris, and which gives to the obligee the right of enforcing it in 
a court of justice; in other words, it is an engagement binding on the 
obligor. 12 Wheat. It:. 318, 337; 4 Wheat. R. 197. 
     7. Civil obligations are divided into express and implied, pure. and 
conditional, primitive and secondary, principal and accessory, absolute and 
alternative, determinate and indeterminate, divisible and indivisible, 
single and penal, and joint and several. They are also purely personal, 
purely real, and both real and mixed at the same time. 
     8. Express or conventional obligations are those by which the obligor 
binds himself in express terms to perform his obligation. 
     9. An implied obligation is one which arises by operation of law; as, 
for example, if I send you daily a loaf of bread, without any express 
authority, and you make use of it in your family, the law raises an 
obligation on your part to pay me the value of the bread. 
    10. A pure or simple obligation is one which is not suspended by any 
condition, either because it has been contacted without condition, or, 
having been contracted with one, it has been fulfilled. 
    11. A conditional obligation is one the execution of which is suspended 
by a condition which has not been accomplished, and subject to which it has 
been contracted. 
    12. A primitive obligation, which in one sense may also be called a 
principal obligation, is one which is contracted with a design that it 
should, itself, be the first fulfilled. 
    13. A secondary obligation is one which is contrasted, and is to be 
performed, in case the primitive cannot be. For example, if I sell you my 
house, I bind myself to give a title, but I find I cannot, as the title is 
in another, then my secondary obligation is to pay you damages for my non-
performance of my obligation. 
    14. A principal obligation is one which is the most important object of 
the engagement of the contracting parties. 
    15. An accessory obligation is one which is dependent on the principal 
obligation; for example, if I sell you a house and lot of ground, the 
principal obligation on my part is to make you a title for it; the accessory 
obligation is to deliver you all the title papers which I have relating to 
it; to take care of the estate till it is delivered to you, and the like. 
    16. An absolute obligation is one which gives no alternative to the 
obligor, but he is bound to fulfill it according to his engagement. 
    17. An alternative obligation is, where a person engages to do, or to 
give several things in such a manner that the payment of one will acquit him 
of all; as if A agrees to give B, upon a sufficient consideration, a horse, 
or one hundred dollars. Poth. Obl. Pt. 2, c. 3, art. 6, No.. 245. 
    18. In order to constitute an alternative obligation, it is necessary 
that two or more things should be promised disjunctively; where they are 
promised conjunctively, there are as many obligations as the things which 
are enumerated, but where they are in the alternative, though they are all 
due, there is but one 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, unless it is expressly agreed that all belong to the creditor. 
Dougl. 14; 1 Lord Raym. 279; 4 N. S. 167. If one of the acts is prevented by 
the obligee, or the act of God, the obligor is discharged from both. See 2 
Evans' Poth. Ob. 52 to 54; Vin. Ab. Condition, S b; and articles 
Conjunctive; Disjunctive; Election. 
    20. A determinate obligation, is one which has for its object a certain 
thing; as an obligation to  deliver a certain horse named Bucephalus. In 
this case the obligation can only be discharged by delivering the identical 
horse. 
    21. An indeterminate obligation is one where the obligor binds himself 
to deliver one of a certain species; as, to deliver a horse, the delivery of 
any horse will discharge the obligation. 
    22. A divisible obligation is one which being a unit may nevertheless be 
lawfully divided with or without the consent of the parties. It is clear it 
may be divided by consent, as those who made it, may modify or change it as 
they please. But some obligations may be divided without the consent of the 
obligor; as, where a tenant is bound to pay two hundred dollars a year rent 
to his landlord, the obligation is entire, yet, if his landlord dies and 
leaves two sons, each will be entitled to one hundred dollars; or if the 
landlord sells one undivided half of the estate yielding the rent, the 
purchaser will be entitled to receive one hundred dollars, and the seller 
the other hundred. See Apportionment. 
    23. An indivisible obligation is one which is not susceptible of 
division; as, for example, if I promise to pay you one hundred dollars, you 
cannot assign one half of this to another, so as to give him a right of 
action against me for his share. See Divisible. 
    24. A single obligation is one without any penalty; as, where I simply 
promise to pay you one hundred dollars. This is called a single bill, when 
it is under seal. 
    25. A penal obligation is one to which is attached a penal clause which 
is to be enforced, if the principal obligation be not performed. In general 
equity will relieve against a penalty, on the fulfillment of the principal 
obligation. See Liquidated damages; Penalty. 
    26. A joint obligation is one by which several obligors promise to the 
obligee to perform the obligation. When the obligation is only joint and the 
obligors do not promise separately to fulfill their engagement they must be 
all sued, if living, to compel the performance; or, if any be dead, the 
survivors must all be sued. See Parties to actions. 
    27. A several obligation is one by which one individual, or if there be 
more, several individuals bind themselves separately to perform the 
engagement. In this case each obligor may be sued separately, and if one or 
more be dead, their respective executors may be sued. See Parties to 
actions. 
    28. The obligation is, purely personal when the obligor binds himself to 
do a thing; as if I give my note for one thousand dollars, in that case my 
person only is bound, for my property is liable for the debt only while it 
belongs to 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 himself to do a thing, and he provides his heirs and executors shall 
not be bound; as, for example, when he promises to pay a certain sum yearly 
during his 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 the obligee for the performance. A familiar example will explain 
this: when an estate owes an easement, as a right of way, it is the thing 
and not the owner who owes the easement. Another instance occurs when a 
person buys an estate which has been mortgaged, subject to the mortgage, he 
is not liable for the debt, though his estate is. In these cases the owner 
has an interest only because he is seised of the servient estate, or the 
mortgaged premises, and he may discharge himself by abandoning or parting 
with the property. 
    31. The obligation is both personal and real when the obligor has bound 
himself, and pledged his estate for the fulfillment of his obligation. 

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

OBLIGEE or CREDITOR, contracts. The person in favor of whom some obligation 
is contracted, whether such obligation be to pay money, or to do, or not to 
do something. Louis. Code, art. 3522, No. 11. 
     2. Obligees are either several or joint, an obligee is several when the 
obligation is made to him alone; obligees are joint when the obligation is 
made to two or more, and, in that event, each is not a creditor for his 
separate share, unless the nature of the subject or the particularity of the 
expression in the instrument lead to a different conclusion. 2 Evans' Poth. 
56; Dyer 350 a, pl. 20; Hob. 172; 2 Brownl. 207 Yelv, 177; Cro. Jac. 251. 

OBLIGOR or DEBTOR. The person who has engaged to perform some obligation. 
Louis. Code, art. 3522, No. 12. The word obligor, in its more 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 obligation jointly, and then the survivors only are liable upon it 
at law, but in equity the assets of a deceased joint obligor may be reached. 
1. Bro. C. R. 29; 2 Ves. 101; Id. 371. They are several when one or more 
bind themselves each of them separately to perform the obligation. In order 
to become an obligor, the party must actually, either himself or by his 
attorney, enter into the obligation, and execute it as his own. If a man 
sign and seal a bond as his own, and deliver it, he will be bound by it, 
although his name be not mentioned in the bond. 4 Stew. R. 479; 4 Hayw R. 
239; 4 McCord, R. 203; 7 Cowen; R. 484; 2 Bail. R. 190; Brayt. 38; 2 H. & M. 
398; 5 Mass. R. 538; 2 Dana, R. 463; 4 Munf. R. 380; 4 Dev. 272. When the 
obligor signs between the penal part and the condition, still the latter 
will be a part of the instrument. 2 Wend. Rep. 345; 3 H. & M. 144. 
     3. The execution of a bond by the obligor with a blank, and a verbal 
authority to fill it up, and it is afterwards filled up, does not bind the 
obligor, unless it is redelivered, or acknowledged or adopted. 1 Yerg. R. 69 
149; 1 Hill, Rep. 267; 2 N. & M. 125; 2 Brock. R. 64; 1 Ham. R. 368; 2 Dev. 
R. 369 6 Gill. & John. 250; but see contra, 17 Serg. & R. 438; and see 6 
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 
violation of the law, and the general corruption of morals. 
     2. The exhibition of an obscene picture is an indictable offence at 
common law, although not charged to have been exhibited in public, if it be 
averred that the picture, was exhibited to sundry persons for money. 2 Serg. 
& Rawle, 91. 

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

OBSOLETE. This term is applied to those laws which have lost their efficacy, 
without being repealed, 
     2. A positive statute, unrepealed, can never be repealed by non-user 
alone. 4 Yeates, Rep. 181; Id. 215; 1 Browne's Rep. Appx. 28; 13 Serg. & 
Rawle, 447. The disuse of a law is at most only presumptive evidence that 
society has consented to such a repeal; however this presumption may operate 
on an unwritten law, it cannot in general act upon one which remains as a 
legislative act on the statute book, because no presumption can set aside a 
certainty. A written law may indeed become obsolete when the object to which 
it was intended to apply, or the occasion for which it was enacted, no 
longer exists. 1 P. A. Browne's R. App. 28. "It must be a very strong case," 
says Chief Justice Tilghman, "to 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 exist -- where there has been a non-user for 
a great number of years; where, from a change of times and manners, an 
ancient sleeping statute would do great mischief, if suddenly brought into 
action; where a long, practice inconsistent with it has prevailed, and, 
specially, where from other and latter statutes it might be inferred that in 
the apprehension of the legislature, the old one was not in force." 13 Serg. 
& Rawle, 452; Rutherf. Inst. B. 2, c. 6, s. 19; Merl. Repert. mot Desuetude. 

OBSTRUCTING PROCESS. crim. law. The act by which one or more persons attempt 
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 employ it, by which the officer is prevented from executing his writ; the 
officer is not required, to expose his person by a personal conflict with 
the 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 nature; and more particularly so where the obstruction is of an 
arrest upon criminal process: a person opposing an arrest upon criminal 
process becomes thereby particeps criminis; that is, an accessary in felony, 
and a principal in high treason. 4 Bl. Com. 128; 2 Hawk. c. 17, s. 1; l. 
Russ. on Cr. 360: vide Ing. Dig. 159; 2 Gallis. Rep. 15; 2 Chit. Criminal 
Law, 145, note a. 

OCCUPANCY. The taking possession of those things corporeal which are without 
an owner, with an intention of appropriating them to one's own use. Pothier 
defines it to be the title by which one acquires property in a thing which 
belongs to nobody, by taking possession of it, with design of acquiring. Tr. 
du Dr. de Propriete n. 20. The Civil Code of Lo. art. 3375, nearly following 
Pothier, defines occupancy to be "a mode of acquiring property by which a 
thing, which belongs to nobody, becomes the property of the person who took 
possession 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, 
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 example, two persons were walking on the seashore, and one of them 
should perceive a precious stone, and say he claimed it as his own, he 
would, acquire no property in it by occupancy, if the other seized it first. 
     4.-2. The thing must be susceptible of being possessed; an 
incorporeal 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 
possession of another the taking would be larceny, and if it had been lost 
and not abandoned, the taker would have only a qualified property in it, and 
would hold the possession for the owner. 
     6.-4. The taking must have been with an intention of becoming the 
owner; if therefore a person non compos mentis should take such a thing he 
would not acquire a property in it, because he had no intention to do so. 
Co. Litt. 41, b. 
     7. Among the numerous ways of acquiring property by occupancy, the 
following are considered as the most usual. 
     8.-1. Goods captured in war, from public enemies, were, by the common 
law, adjudged to belong to the captors. Finch's law, 28; 178; 1 Wills. 211; 
1 Chit. Com.  Law, 377 to 512; 2 Woodes. 435 to 457; 2 Bl. Com. 401. But by 
the law of nations such things are now considered as primarily vested in the 
sovereign, and as belonging to individual captors only to the extent and 
under such regulations as positive laws may prescribe. 2 Kent's Com. 290. By 
the policy of law, goods belonging to an enemy are considered as not being 
the property of any one. Lecon's Elem. du Dr. Rom. Sec. 348; 2 Bl. Com. 401. 
     9.-2. When movables are casually lost by the owner and unreclaimed, 
or designedly abandoned by him, they belong to the fortunate finder who 
seizes them, by right of occupancy. 
    10.-3. The benefit of the elements, the light, air, and water, can 
only be appropriated by occupancy. 
    11.-4. When animals ferae naturae are captured, they become the 
property of the occupant while he retains the possession; for if an animal 
so taken should 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 to the emblements. 
    13.-6. Property acquired by accession, is also grounded on the right 
of occupancy. 
    14.-7. Goods acquired by means of confusion may be referred to the 
same 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; 16 Vin. Ab. 69; Bac. Ab. Estate for life and occupancy; 1 Brown's Civ. 
Law, 234;  4 Toull. n. 4; Lecons du Droit Rom. Sec. 342, et seq.; Bouv. 
Inst. Index, h.t. 

OCCUPANT or OCCUPIER. One who has the actual use or possession of a thing. 
     2. He derives his title of occupancy either by taking possession of a 
thing without an owner, or by purchase, or gift of the thing from the owner, 
or it descends to him by due course of law. 
     3. When the occupiers of a house are entitled to a privilege in 
consequence of such occupation, as to pass along a way, to enjoy a pew, and 
the like, a person who occupies a part of such house, however small, is 
entitled to some right, and cannot be deprived of it. 2 B. & A. 164; S. C. 
Eng. C. L. R. 50; 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. A 
trade, business or mystery; as the occupation of a printer. Occupancy. 
(q.v.) 
     2. In another sense occupation signifies a putting out of a man's 
freehold in time of war. Co. Litt. s. 412. See Dependency; Possession. 

OCCUPAVIT. The name of a writ, which lies to recover the possession of 
lands, when they have been taken from the possession of the owner by 
occupation. (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 implied, or without any contract. The occupier is, in general, 
bound to make the necessary repairs to premises he occupies the cleansing 
and repairing of drains and sewers, therefore, is prima facie the duty of 
him who occupies the premises. 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 
multitude; 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, 
without making any application to the court; that which is granted by the 
court without further inquiry, upon its being asked; as, a rule to plead is 
a matter of course. 

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

OFFER, contracts. A proposition to do a thing. 
     2. An offer ought to contain a right, if accepted, of compelling the 
fulfillment 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, if it is not to the injury of another; he may, therefore, revoke or 
recall his offers, at any time before they have been accepted; and, in order 
to deprive him of this right, the offer must have been accepted on the terms 
in which it was made. 10 Ves. 438; 2 C. & P. 553. 
     4. Any qualification of, or departure from those terms, invalidates the 
offer, unless the same be agreed to by the party who made it. 4 Wheat. R. 
225; 3 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 into the contract for the time limited, and, if the time be not fixed 
by the offer, then until it be expressly revoked, or rendered nugatory by a 
contrary presumption. 6 Wend. 103. See 8 S. & R. 243; 1 Pick. 278; 10 Pick. 
326; 12 John. 190; 9 Porter, 605; 1 Bell's Com. 326, 5th ed.; Poth. Vente, 
n. 32; 1 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 employment, 
and to take the fees and emoluments belonging to it,. Shelf. on 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 
ministerial. 
     4.-1. The political offices are such as are not connected immediately 
with the administration of justice, or the execution of the mandates of a 
superior officer; the office of the president of the United States, of the 
heads of departments, of the members of the legislature, are of this number. 
     5.-2. The judicial offices are those which relate to the 
administration of justice, and which must be exercised by persons of 
sufficient skill and experience in the duties which appertain to them. 
     6.-3. Ministerial offices are those which give the officer no power 
to judge of the matter to be done, and require him to obey the mandates of a 
superior. 7 Mass. 280. See 5 Wend. 170; 10 Wend. 514; 8 Vern. 512; Breese, 
280. It is a general rule, that a judicial office cannot be exercised by 
deputy, while a ministerial may. 
     7. In the United, States, the tenure of office never extends beyond 
good behaviour. In England, offices are public or private. The former affect 
the people generally, the latter are such as concern particular districts, 
belonging to private individuals. In the United States, all offices, 
according to the above definition, are public; but in another sense, 
employments of a private nature are also called offices; for example, the 
office of president of a bank, the office of director of a corporation. For 
the incompatibility of office, see Incompatibility; 4 S. & R. 277; 4 Inst. 
100; Com. Dig. h.t., B. 7; and vide, generally, 3 Kent, Com. 362; Cruise, 
Dig. tit. 25; Ham. N. P. 283;  16 Vin. Ab. 101; Ayliffe's Parerg. 395; Poth. 
Traite des Choses, Sec. 2; Amer. Dig. h.t.; 17 S. & R. 219. 
     8.-2. Military offices consist of such as are granted to soldiers or 
naval officers. 
     9. The room in which the business of an officer is transacted is also 
called an office, as the land office. Vide Officer. 

OFFICE BOOK, evidence. A book kept in a public office, not appertaining to a 
court, authorized by the law of any state. 
     2. An exemplification, (q.v.) of any such office book, when 
authenticated under the act of congress of 27th March, 1804, Ingers' Dig. 
77, is to have such faith and credit, given to it in every court and office 
within the United States, as such exemplification has by law or usage in the 
courts or offices of the state from whence the same has been taken. 

OFFICE COPY. A transcript of a record or proceeding filed in an office 
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 of 
anything, by virtue of office of him who inquires, and the inquisition is 
found, it is said to be office found. 

OFFICE, INQUEST OF. An examination into a matter by an officer in 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 States of America, the several governors of the different states. 
Their duties are pointed out in the national constitution, and the 
constitutions of the several states, but they are required mainly to cause 
the laws to be executed and obeyed. 
     3.-2. The legislative; such as members of congress; and of the 
several state legislatures. These officers are confined in their duties by 
the constitution, generally to make laws, though sometimes in cases of 
impeachment, one of the houses of the legislature exercises judicial 
functions, somewhat similar to those of a grand jury by presenting to the 
other articles of impeachment; and the other house acts as a court in trying 
such impeachments. The legislatures have, besides the power to inquire into 
the conduct of their members, judge of their elections, and the like. 
     4.-3. Judicial officers; whose duties are to decide controversies 
between individuals, and accusations made in the name of the public against 
persons charged with a violation of the law. 
     5.-4. Ministerial officers, or those whose duty it is to execute the 
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 respective offices. The neglect to do so, may, in some cases, subject 
the offender to an indictment; 1 Yeates, R. 519; and in others, he will be 
liable to the party injured. 1 Yeates, R. 506. 
     9. Officers are also divided into public officers and those who are not 
public. Some officers may bear both characters; for example, a clergyman is 
a public officer when he acts in the performance of such a public duty as 
the marriage of two individuals; 4 Conn. 209; and he is merely a private 
person when he acts in his more ordinary calling of teaching his 
congregation. See 4 Conn. 134; 1 Apple. 155. 

OFFICIAL, civil and canon laws. In the ancient civil law, the person who was 
the minister of, or attendant upon a magistrate, was called the official. 
     2. In the canon law, the person to whom the bishop generally commits 
the charge of his spiritual jurisdiction, bears this name. Wood's Inst. 30, 
505; Merl. Repert. h.t. 

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

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

OHIO. The name of one of the new states of the United States of America. It 
was admitted into the Union by virtue of the act of congress, entitled "An 
act to enable the people of the eastern division of the territory north-west 
of the river Ohio, to form a constitution and state government, and for the 
admission of such state into the Union, on an equal footing with the 
original states, and for other purposes," approved, May 30, 1802, 2 Story's 
L. U. S. 869; by which it is enacted, 
     Sec. 1. That the inhabitants of the eastern division of the territory 
north-west of the river Ohio, be, and they are hereby authorized to form for 
themselves a constitution and state government, and to assume such name as 
they shall deem proper; and the said state, when formed, shall be admitted 
into the Union, upon the same footing with the original states, in all 
respects whatever. 
     2.-Sec. 2. That the said state shall consist of all the territory 
included within the following boundaries, to wit: Bounded on the east by the 
Pennsylvania line, on the south by the Ohio river, to the month of the Great 
Miami river, on the west by the line drawn due north from the mouth of the 
Great Miami aforesaid, and on the north by an east and west line dawn 
through the southerly extreme of lake Michigan, running east, after 
intersecting the due north line aforesaid, from the mouth of the Great Miami 
until it shall intersect lake Erie, or the territorial line, and thence, 
with the same, through lake Erie, to the Pennsylvania line aforesaid: 
Provided, That congress shall be at liberty, at any time hereafter, either 
to attach all the territory lying east of the line to be drawn due north 
from the mouth of the Miami aforesaid to the territorial line, and north of 
an east and west line drawn through the southerly extreme of lake Michigan, 
running east as aforesaid to lake Eric, to the aforesaid state, or dispose 
of it otherwise, in conformity to the fifth Article of compact between the 
original states and the people and states to be formed are the territory 
north-west of the river Ohio. 
     3. By virtue of the authority given them by the act of congress, the 
people of the eastern division of said territory met in convention at 
Chillicothe; on Monday, the, first day of November, 1802, by which they did 
ordain and establish the constitution and form of government, and did 
mutually agree with each other to form themselves into a free and 
independent state, by the name of The State of Ohio. This constitution has 
been superseded by the present one, which was adopted in 1851. The powers of 
the government are separated into three distinct branches, the legislative, 
the executive, and the judicial. 
     4.-1st. By article 2, the legislative department is constituted as 
follows: 
     5.-Sec. 1. The legislative power of this state shall be vested in a 
general assembly, which shall consist of a senate, and house of 
representatives. 
     6.-Sec. 2. Senators and representatives shall be elected biennially, 
by the electors in the respective counties or districts, on the second 
Tuesday of October; their term of office shall commence on the first, day of 
January next thereafter, and continue two years. 
     7.-Sec. 3. Senators and representatives shall have resided in their 
respective counties, or districts, one year next preceding their election, 
unless they shall have been absent on the public business of the United 
States, or of this state. 
     8.-Sec. 4. No person holding office under the authority of the United 
States, or any lucrative office under the authority of this state, shall be 
eligible to, or have a seat in, the general assembly; but this provision 
shall not extend to township officers, justices of the peace, notaries 
public, or officers of the militia. 
     9.-Sec. 5. No person hereafter convicted of an embezzlement of the 
public funds, shall hold any office in this state; nor shall any person, 
holding public money for disbursement, or otherwise, have a seat in the 
general assembly, until, he shall have accounted for, and paid such money 
into the treasury. 
    10.-Sec. 6. All regular sessions of the general assembly shall 
commence on the first Monday of January, biennially. The first session, 
under this constitution, shall commence on the first Monday of January, one 
thousand eight hundred and fifty-two. 
    11.-Sec. 7. The style of the laws of this state, shall be, "Be it 
enacted by the General Assembly of the State of Ohio." 
    12.-Sec. 8. The apportionment of this state for members of the general 
assembly, shall be made every ten years, after the year one thousand eight 
hundred and fifty-one, in the following manner: The whole population of the 
state, as ascertained by the federal census, or in such other mode as the 
general assembly may direct, shall be divided by the number: one hundred,: 
and the quotient shall be the ratio of representation in the house of 
representatives for ten years next succeeding such apportionment. 
    13.-Sec. 9. Every county, having a population equal to one-half of 
said ratio, shall be entitled to one representative; every county, 
containing said ratio, and three-fourths over, shall be entitled to two 
representatives; every county, containing three times said ratio, shall be 
entitled to three representatives: and so on, requiring after the first two, 
an entire ratio for each additional representative. 
    14.-Sec. 10. When any county shall have a fraction above the ratio, so 
large, that being multiplied by five, the result will be equal to one or 
more ratios, additional representatives shall be apportioned for such 
ratios, among the several sessions of the decennial period, in the following 
manner: If there be only one ratio, a representative shall be allotted to 
the fifth session of the decennial period; if there are two ratios, a 
representative shall be allotted to the fourth and third sessions, 
respectively if three, to the third, second, and first sessions, 
respectively; if four, to the fourth, third, second, and first sessions, 
respectively. 
    15.-Sec. 11. Any county, forming with another county or counties, a 
representative district, during one decennial period, if it have acquired 
sufficient population at the next decennial period; shall be entitled to a 
separate representation, if there shall be left, in the district from which 
it shall have been separated, or population sufficient for a representative; 
but no such change shall be made, except at the regular decennial period for 
the apportionment of representatives. 
    16.-Sec. 12. If, in fixing any subsequent ratio, a county, previously 
entitled to a separate representation, shall have less than the number 
required by the new ratio for a representative, such county shall be 
attached to the county adjoining it; having the least number of inhabitants; 
and the representation of the district, so formed, shall be determined as 
herein provided. 
    17.-Sec. 13. The ratio for a senator shall, forever hereafter, be 
ascertained, by dividing the whole population of the state by the number 
thirty-five. 
    18.-Sec. 14. The same rule shall be applied, in apportioning the 
fractions of senatorial districts, and in annexing districts, which may 
hereafter have less than three-fourths of a senatorial ratio, as are applied 
to representative districts. 
    19.-Sec. 15. Any county forming part of a senatorial district, having 
acquired a population equal to a full senatorial ratio, shall be made a 
separate senatorial district, at any regular decennial apportionment, if a 
full senatorial ratio shall be left in the district from which it shall be 
taken. 
    20.-Sec. 16. For the first ten years, after the year one thousand 
eight hundred and fifty-one, the apportionment of representatives shall be 
as provided, in the schedule, and no change shall ever be made in the 
principles of representation, as herein established, or in the senatorial 
districts, except as above provided. All territory, belonging to a county at 
the time of any apportionment, shall, as to the right of representation and 
suffrage, remain an integral part thereof, during the decennial period. 
    21.-Sec. 17. The governor, auditor, and secretary of state, or any two 
of them, shall, at least six months prior to the October election, in the 
year one thousand eight hundred and sixty-one, and, at each decennial period 
thereafter, ascertain and determine the ratio of representation, according 
to the decennial census, the number of representatives and senators each 
county or district shall be entitled to elect, and for what years, within 
the next ensuing ten years, and the governor shall cause the same to be 
published, in such manner as shall be directed by law. 
    22.- Sec. 18. Every white male citizen of the United States, of the age 
of twenty-one years, who shall have been a resident of the state one year 
next 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 an elector, and be entitled to vote at all elections. 
    23.-Sec. 19. No person shall be elected or appointed to any office in 
this state, unless he possess, the qualifications of an elector. 
    24.-3d. By article 3, the executive department is constituted as 
follows: 
    25.-Sec. 1. The executive department shall consist of a governor, 
lieutenant governor, secretary of state, auditor, treasurer, and an attorney 
general, who shall be chosen by the electors of the state, on the second 
Tuesday of October, and at the places of voting for members of the general 
assembly. 
    26.-Sec. 2. The governor, lieutenant governor, Secretary of State, 
treasurer, and attorney general, shall hold their offices for two years; and 
the auditor for four years. Their terms of office shall commence on the 
second Monday of January next after their election, and continue until their 
successors are elected and qualified. 
    27.-Sec. 3. The returns of every election for the officers, named in 
the foregoing section, shall be sealed up and transmitted to the seat of 
government, by the returning officers, directed to the resident of the 
senate, who, during the first week of the session, shall open and publish 
them, and declare the result, in the presence of a majority of the members 
of each house of the 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 votes, for the same office, one of them shall be 
chosen, by the joint vote of both houses. 
    28.-Sec. 4. Should there be no session of the general assembly in 
January next 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 declared by the governor, in such manner as may be 
provided by law. 
    29.-Sec. 5. The supreme executive power of this state shall be vested 
in the governor. 
    30.-Sec. 6. He may require information, in writing, from the officers 
in the executive department, upon any subject relating to the duties of 
their respective office's; and shall see that the laws are faithfully 
executed. 
    31.-Sec. 7. He shall communicate at every session, by message, to the 
general assembly, the condition of the state, and recommend such measures as 
he shall deem expedient. 
    32.-Sec. 8. He may, on extraordinary occasions, convene the general 
assembly by proclamation, and shall state to both houses, when assembled, 
the purpose for which they have been convened. 
    33.-Sec. 9. In case of disagreement between the two houses, in respect 
to the time of adjournment, he shall have power to adjourn the general 
assembly to such time as he may think proper, but not beyond the regular 
meetings thereof. 
    34.-Sec. 10. He shall be commander-in-chief of the military and naval 
forces of the state, except when they shall be called into the service of 
the United States. 
    35.-Sec. 11. He shall have power, after conviction, to grant 
reprieves, commutations, and pardons, for all crimes and offences, except 
treason and cases of impeachment, upon such conditions as he may think 
proper; subject, however, 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 sentence, and report the case to the general 
assembly, at its next meeting, when the general assembly shall either 
pardon, commute the sentence, direct its execution, or grant a further 
reprieve. He shall communicate to the general assembly, at every regular 
session, each case of reprieve, commutation, or pardon granted, stating the 
name and crime of the convict, the sentence, its date, and the date of the 
commutation, pardon, or reprieve, with his reasons therefor. 
    36.-Sec. 12. There shall be a seal of the state, which shall be kept 
by the governor and used by him officially; and shall be called "The Great 
Seal of the State of Ohio." 
    37.-Sec. 13. All grants and commissions shall be issued in the name, 
and by the authority, of the State of Ohio; sealed with the great seal 
signed, by the governor, and countersigned by the secretary of state. 
    38.-Sec. 14. No member of congress, or other person holding office 
under the authority of this state, or of the United States, shall execute 
the office of governor, except as herein provided. 
    39.-Sec. 15. In case of the death, impeachment, resignation, removal, 
or other disability of the governor, the powers and duties of the office, 
for the residue of the term, or until he shall be acquitted, or the 
disability removed, shall devolve upon the lieutenant governor. 
    40.-Sec. 16. The lieutenant governor shall be president of the senate, 
but shall vote only when the, senate is equally divided; and in case of him 
absence, or impeachment, or when he shall exercise the office of governor, 
the senate shall choose a president pro tempore. 
    41.-Sec. 17. If the lieutenant governor, while executing the office of 
governor, shall be impeached, displaced, resign or die, or otherwise become 
incapable of performing the duties of the office, the president of the 
senate shall act as governor, until the vacancy is filled, or the disability 
removed; and if the president of the senate, for any of the above causes, 
shall be rendered incapable of performing the duties pertaining to the 
office of governor, the same shall devolve upon the speaker of the house of 
representatives. 
    42.-Sec. 18. Should the office of auditor, treasurer, secretary, or 
attorney general, become vacant for any of the causes specified in the 
fifteenth section of this article, the governor shall fill the vacancy until 
the disability is removed, or a successor elected and qualified. Every such 
vacancy shall be filled by election, at the first general election that 
occurs, more than thirty days after it shall have happened; and the person 
chosen shall hold the office for the full term fixed in the second section 
of this article. 
    43.-Sec. 19. The officers mentioned in this article, shall, at stated 
times, receive for their services, a compensation to be established by law, 
which shall neither be increased nor diminished during the period for which 
they shall have been elected. 
    44.-Sec. 20. The officers of the executive department, and of the 
public state institutions, shall, at least five days preceding each regular 
session of the general assembly, severally report to the governor, who shall 
transmit such reports, with his message, to the general assembly. 
    45.-4th. By article 4, the judicial department is constituted as 
follows: 
    46.-Sec. 1. The judicial power of the state shall be vested, in a supreme 
court, in district courts, courts of common pleas, courts of probate, 
justices of the peace, and in such other courts, inferior to the supreme 
court, in one or more counties, as the general assembly, may from time to 
time establish. 
    47.-Sec. 2. The supreme court shall consist of five judges, a majority 
of whom shall be necessary to form a quorum, or to pronounce a decision. It 
shall have original jurisdiction in quo warranto, mandamus, habeas corpus, 
and procedendo and such appellate jurisdiction as may be provided by law. It 
shall hold at least one term in each year, at the seat of government, and 
such other terms, at the seat of government, or elsewhere, as may be 
provided by law. The judges of the supreme court shall be elected by the 
electors of the state at large. 
    48.-Sec. 3. The state shall be divided into nine common pleas 
districts, of which the county of Hamilton shall constitute one, of compact 
territory, and bounded by county lines; and each of said districts, 
consisting of three or more counties, shall be subdivided into three parts, 
of compact territory, bounded by county lines, and as nearly equal, in 
population as practicable; in each of which, one judge of the court of 
common pleas for said district, and residing therein, shall be elected by 
the electors of said subdivision. Courts of common pleas shall be held, by 
one or more of these judges, in every county in the district, as often as 
may be provided by law; and more than one court, or sitting thereof, may be 
held at the same time in each district. 
    49.-Sec. 4. The jurisdiction of the courts of common pleas, and of 
the judges thereof, shall be fixed by law. 
    50.-Sec. 5. District courts shall be composed of the judges of the 
court of common pleas of the respective districts, and one of the judges of 
the supreme court, any three of whom shall be a quorum, and shall be held in 
each county therein, at least once in each year; but, if it shall be found 
inexpedient to hold such court annually, in each county, of any district, 
the general assembly may, for such district, provide that said court shall 
hold at least three annual sessions therein, in not less than three places: 
Provided, that the general assembly may, by law, authorize the judges of 
each district to fix the times of holding the courts therein. 
    51.-Sec. 6. The district court shall have like original jurisdiction 
with the supreme court, and such appellate jurisdiction as may be provided 
by law. 
    52.-Sec. 7. There shall be established in each county, a probate 
court, which shall be a court of record, open at all times, and holden by 
one judge, elected by the voters of the county, who shall hold his office 
for the term of three years, and shall receive such compensation, payable 
out of the county treasury, or by fees, or both; as shall be provided by 
law. 
    53.-Sec. 8. The probate court shall have jurisdiction in probate and 
testamentary matters, the appointment of administrators and guardians, the 
settlement of the accounts of executors, administrators and guardians, and 
such jurisdiction in habeas corpus, the issuing of marriage licenses, and 
for the sale of land by executors, administrators and guardians, and such 
other jurisdiction, in any county, or counties, as may be provided by law. 
    54.-Sec. 9. A competent number of justices of the peace shall be 
elected, by the electors, in each township in the several counties. Their 
term, of office shall be three years, and their powers and duties shall be 
regulated by law. 
    55.-Sec. 10. All judges, other than those provided for in this 
constitution, shall be elected by the electors of the judicial district for 
which they may be created, but not for a longer term of office than five 
years. 
    56.-Sec. 11. The judges of the supreme court shall, immediately after 
the first election under this constitution, be classified by lot, so that 
one shall hold for the term of one year, one for two years, one for three 
years, one for four years, and one for five years; and, at all subsequent 
elections, the term of each of said judges shall be for five years. 
    57.-Sec. 12. The judges of the courts of common pleas shall, while in 
office, reside in the district for which they, are elected; and their term 
of office shall be for five years. 
    58.-Sec. 13. In case the office of any judge shall become vacant 
before the expiration of the regular term for which he was elected, the 
vacancy shall be filled by appointment by the governor, until a successor is 
elected and qualified; and such successor shall be elected for the unexpired 
term, at the first annual election that occurs more than thirty, days after 
the vacancy shall have happened. 
    59.-Sec. 14. The judges of the supreme court, and of the court of 
common pleas shall, at stated times, receive for their services, such 
compensation as may be provided by law, which shall not be diminished or 
increased, during their term of office; but they shall receive no fees or 
perquisites, nor hold any other office of profit or trust, under the 
authority of this state, or the United States. All votes for either of them, 
for any elective office, except a judicial office, under the authority of 
this state, given by the general assembly, or the people, shall be void. 
    60.-Sec. 15. The general assembly may increase or diminish the number 
of the judges of the supreme court, the number of the districts of the court 
of common pleas, the number of judges in any district; change the districts, 
or the subdivisions thereof, or establish other courts, whenever two-thirds 
of the members elected to each house shall concur therein; but no such 
change, addition, or diminution, shall vacate the office of any judge. 
    61.-Sec. 16. There shall be elected in each county by the electors 
thereof, one clerk of the court of common pleas, who shall hold his office 
for the term of three years, and until his successor shall be elected and 
qualified. He shall, by virtue of his office, be clerk of all other courts 
of record held therein; but the general assembly may provide by law, for the 
election of a clerk, with a like term of office, for each or any other of 
the courts of record, and may authorize the judge of the probate court to 
perform the duties of clerk for his court, under such regulations as may be 
directed by law. Clerks of courts shall be removable for such cause, and in 
such manner, as shall be prescribed by law. 
    62.-Sec. 17. Judges may be removed from office, by concurrent 
resolution of both houses of the general assembly, if two-thirds of the 
members elected to each house concur therein; but no such removal shall be 
made, except upon complaint, the substance of which shall be entered on the 
journal, nor until the party charged shall have had notice thereof, and an 
opportunity to be heard. 
    63.-Sec. 18. The several judges of the supreme court, of the common 
pleas, and of such other courts as may be created, shall, respectively, have 
and exercise such power and jurisdiction, at chambers, or otherwise as may 
be directed by law. 
    64.-Sec. 19. The general assembly may establish courts of 
conciliation, and prescribe their powers and duties; but such courts shall 
not render final judgment in any case, except upon submission, by the 
parties of the matter in dispute, and their agreement to abide such 
judgment. 
    65.-Sec. 20. The style of all process shall be, "The State of Ohio;" 
all prosecutions shall be carried on in the name and by the authority of the 
state of Ohio; and all indictments shall conclude, "against the peace and 
dignity of the state of Ohio." 

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

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

OLD TENURES. The title of a small tract, which, as its title denotes, 
contains an account of the various tenures by which land was holden in the 
reign of Edward III. This tract was published in 1719, with notes and 
additions, with the eleventh edition of the First Institutes, and reprinted 
in 8 vols. in 1764, by 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 citizens of 
a state have usurped, which ought by the constitution to reside in the 
people. Among the Romans the government degenerated several times into an 
oligarchy; for example, under the decemvirs, when they became the only 
magistrates in the commonwealth. 

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

OMISSION. An omission is the neglect to perform what the law requires. 
     2. When a public law enjoins on certain officers duties to be performed 
by them for the public, and they omit to perform them, they may be indicted: 
for example, supervisors of the highways are required to repair the public 
roads; 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 if it be a private nuisance without giving notice, when such notice 
can be given. Vide Branches; Commission; Nuisance; Trees. 

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

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

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

ONERIS FERENDI, civil law. The name of a servitude by which the wall or 
pillar of one house is bound to sustain the weight of the buildings of the 
neighbor. 
     2. The owner of the servient building is bound to repair and keep it 
sufficiently strong for the weight it has to bear. Dig. 8, 2, 23; 2 Bouv. 
Inst. n. 1627. 

ONEROUS CAUSE, civil law., A valuable consideration.

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

ONEROUS GIFT, civil law. The gift of a thing subject to certain 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 proposition shall prove it. It is also a general rule that the onus 
probandi lies. upon the party who seeks to support his case by a particular 
fact of which he is supposed to be cognizant; for example, when to a plea of 
infancy, the plaintiff replies a promise after the defendant had attained 
his age, it is sufficient for the plaintiff to prove the promise and it lies 
on the defendant to show that he was not of age at the time. 1 Term. Rep. 
648. But where the negative, involves a criminal omission by the party, and 
consequently where the law, by virtue of the general principle, presumes his 
innocence, the affirmative of the fact is also presumed. Vide 11 Johns. R. 
513; 19 Johns. R. 345; 9 M. R. 48; 3 N. S. 576. 
     3. In general, wherever the law presumes the affirmative, it lies on 
the party who denies the fact, to prove the negative; as, when the law 
raises a presumption as to the continuance of life; the legitimacy of 
children born in wedlock; or the satisfaction of a debt. Vide. generally, 1 
Phil. Ev. 156: 1 Stark. Ev. 376; Roscoe's Civ. Ev. 51 Roscoe's Cr. Ev. 55; 
B. P. 298; 2 Gall. 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, 
notwithstanding the technical form of the proceedings. 1 Stark. Ev. 584; 3 
Bouv. 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 to enable the judge and jury to direct their attention to the real 
merits of the case, and the points in issue. 1 Stark. R. 439;S. C. 2 E. C. 
L. R. 462; 2 Stark. R. 31; S. C 3 Eng. C. L. R. 230. 
     3. The opening address or speech is that made immediately after the 
evidence has been closed; such address usually states, 1st. The full extent 
of the plaintiff's claims, and the circumstances under which they are made, 
to show that they are just and reasonable. 2d. At least an outline of the 
evidence by which those claims are to be established. 3d. The legal grounds 
and authorities in favor of the claim or of the proposed evidence. 4th. An 
anticipation of the expected defence, and statement of the grounds on which 
it is futile, "either in law or justice, and the reasons why it ought to 
fail. 3 Chit. Pr. 881; 3 Bouv. 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 drawn on 
him by a correspondent, who has not furnished him with funds, he is 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 courts 
are required to be kept open; that is, free access is admitted in courts to 
all persons who have a desire to enter there, while it can be done without 
creating disorder. 
     2. In England, formerly, the parties and probably their witnesses were 
admitted freely in the courts, but all other persons were required to pay in 
order to obtain admittance. Stat. 13 Edw. I. C. 42, and 44; Barr. on the 
Stat, 126, 7. See Prin. of Pen. Law. 165 

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

OPENING A JUDGMENT. The act of the court by which a judgment is so far 
annulled that it cannot be executed, but which still retains some qualities 
of a judgment; as, for example, its binding operation or lien upon the real 
estate of 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 such judgment inequitable. The judgment is opened so as to be in effect 
an award of a collateral issue to try the facts alleged in the affidavit. 6 
Watts & Serg. 493, 494. 

OPERATION OF LAW. This term is applied to those rights which are cast upon a 
party by the law, without any act of his own; as, the right to an estate of 
one who dies intestate, is cast upon the heir at law, by operation of law; 
when a lessee for life enfeoffs him in reversion, or when the lessee and 
lessor join in a feoffment, or when a lessee for life or years accepts a new 
lease or demise from the lessor, there is a surrender of the first lease by 
operation of 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 directs that any person who shall have performed any labor as an 
operative in the service of any bankrupt shall be entitled to receive the 
full amount of wages due to him for such labor, not exceeding twenty-five 
dollars; provided that such labor shall have been performed within six 
months next before the bankruptcy of his employer. 
     3. Under this act it has been decided that an apprentice who had done 
work beyond a task allotted to him by his master, commonly called overwork, 
under an agreement on the part of the master to pay for such work, was 
entitled as an 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 the law 
is, according to his judgment, on a statement of facts submitted to him. The 
paper upon which an opinion is written is, by a figure of speech, also 
called an opinion. 
     2. The counsel should as far as practicable give, 1. A direct and 
positive opinion, meeting the point and effect of the question and 
separately, if the questions proposed were properly divisible into several. 
2. The reasons, succinctly stated, in support of such opinion. 3. A 
reference to the statute, rule or decision on the subject. 4. When the facts 
are susceptible of a small difference in the statement, a suggestion of the 
probability of such variation. 5. When some, important fact is stated as 
resting principally on the statement of the party interested, a suggestion 
ought to be made to inquire how that fact is to be proved. 6. A suggestion 
of the proper process or pleadings to be adopted. 7. A suggestion of what 
precautionary measures ought to be adopted. As to the value of an opinion, 
see 4 Penn, St. R. 28. 

OPINION, evidence. An inference made, or conclusion drawn, by a 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 
there are exceptions; where matters of skill and judgment are involved, a 
person competent, particularly to understand such matters, may be asked his 
opinion, and it will be evidence. 4 Hill, 129; 1 Denio, 281; 2 Scam. 297; 2 
N. H. Rep. 480; 2 Story, R. 421; see 8 W. & S. 61; 1 McMullan, 561 For 
example, an engineer may be called to say what, in his opinion, is the cause 
that a harbor has teen blocked up. 3 Dougl. R. 158; S. C. 26 Eng. C. L. Rep. 
63; 1 Phil. Ev. 276; 4 T. R. 498. A ship builder may be asked his opinion on 
a question of sea-worthiness. Peake, N. P. C. 25; 10 Bing. R. 57; 25 Eng. 
Com. Law Rep. 28. 
     3. Medical men are usually examined as to their judgment with regard to 
the cause of a person's death, who has suffered by violence. Vide Death. Of 
the sanity, 1 Addams, 244, or impotency, 3 Phillim. 14, of an individual. 
Professional men are, however, confined to state facts and opinions within 
the scope of their professions, and are not allowed to give opinions on 
things of which the jury can as well judge. 5 Rogers' Rec. 26; 4 Wend. 320; 
3 Fairf. 398; 3 Dana, 882; 1 Pennsyl. 161; 2 Halst. 244; 7 Vern. 161; 6 
Rand. 704; 4 Yeates, 262; 9 Conn. 102; 3 N. H. Rep. 349; 5 H. & J. 488. 
     4. The unwritten or common law of foreign countries may be proved by 
the opinion of witnesses possessing professional skill. Story's Confl. of 
Laws, 530; 1 Cranch, 12, 38; 2 Cranch, 236; 6 Pet Rep. 763; Pet. C. C. R. 
225; 2 Wash. C. C. R. 175; Id. 1; 5 Wend. Rep. 375; 2 Id. 411; 3 Pick. Rep. 
293; 4 Conn. R. 517; 6 Conn: R. 486; 4 Bibb R. 73; 2 Marsh. Rep. 609; 5 
Harr. & John. 86; 1 Johns. Rep. 385; 3 Johns. Rep. 105; 14 Mass., R. 455; 6 
Conn. R. 508; 1 Vern. R. 336; 15 Serg. & Rawle, 87; 1, Louis. R. 153; 3 Id. 
53; Cranch, 274. Vide also 14 Serg. & Rawle, 137; 3 N. Hamp. R. 349; 3 
Yeates, 527; 1 Wheel. C. C. Rep. 205; 6 Rand. R. 704; 2 Russ. on Cr. 623; 4 
Camp. R. 155; Russ. & Ry. 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 giving 
the judgment he is about to pronounce the judgment itself is sometimes 
called an opinion. 
     2. Such an opinion ought to be a perfect syllogism, the major of which 
should be the law; the minor, the fact to be decided and the consequence, 
the judgment which declares that to be conformable or contrary to law. 
     3. Opinions are judicial or extra-judicial; a judicial opinion is one 
which is given on a matter which is legally brought before the judge for his 
decision; an extra-judicial opinion, is one which although given in court, 
is not necessary to the judgment. Vaughan, 382; 1 Hale's Hist. 141; and 
whether given in or out of court, is no more than the prolatum of him who 
gives it, and has no legal efficacy. 4 Penn. St. R. 28. Vide Reason. 

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

OPPRESSOR. One who having public authority uses it unlawfully to tyrannize 
over another; as, if he keep him in prison until he shall do something which 
he is not lawfully bound to do. 
     2. To charge a magistrate with being an oppressor, is therefore 
actionable. 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 signification, 
and usually denotes the doer of an act; as, the grantor, he who makes a 
grant; the vendor, he who makes a sale; the feoffor, he who makes a 
feoffment. Litt. s. 57; 1 Bl. Com. 140, n. 

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

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

ORATOR, practice. A good man, skillful in speaking well, and who employs a 
perfect eloquence to defend causes either public or private. Dupin, 
Profession d'Avocat, tom. 1, p. 19.. 
     2. In chancery, the party who files a bill calls himself in those 
pleadings your orator. Among the Romans, advocates were called orators. 
Code, 1, 8, 33, 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 people "do ordain and establish this constitution for the United 
States of America." The 3d article of the same constitution declares, that 
"the judicial power shall be vested in one supreme court, and in such 
inferior courts as the congress may from time to time ordain and establish. 
"See 1 Wheat. R. 304, 324; 4 Wheat: R. 316, 402. 

ORDEAL. An ancient superstitious mode of tribal. When in a criminal case the 
accused was arraigned, be might select the mode of trial either by God 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 by the former passed barefooted and blindfolded over nine hot glowing 
ploughshares; or were to carry burning irons in their hands; and accordingly 
as they escaped or not, they were acquitted or condemned. The water ordeal 
was performed either in hot or cold water. In cold water, the parties 
suspected were adjudged innocent, if their bodies were not borne up by the 
water contrary to 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 crime. 
     3. It was impiously supposed that God would, by the mere contrivance of 
man, exercise his power in favor of the innocent. 4. Bl. Com. 342; 2 Am. 
Jur. 280. For a detailed account of the trial by ordeal, see Herb. Antiq. of 
the Inns of Court, 146. 

ORDER, government. By this expression is understood the several bodies which 
compose the state. In ancient Rome, for example, there were three distinct 
orders; namely, that of the senators, that of the patricians, and that of 
the plebeians. 
     2. In the United States there are no orders of men, all men are equal 
in the eye of the law, except that in some states slavery has been entailed 
on them while they were colonies, and it still exists, in relation to some 
of the African race but these have no particular rights. Vide Rank. 

ORDER, contracts. An indorsement or short writing put upon the back of a 
negotiable bill or note, for the purpose of passing the title to it, and 
making it payable to another person. 
     2. When a bill or note is payable to order, which is generally 
expressed by this formula, "to A B, or order,"or" to the order of A B," in 
this case the payee, A B may either receive the money secured by such 
instrument, or by his order, which is generally done by a simple 
indorsement, (q.v.) pass the right to receive it to another. But a bill or 
note wanting these words, although not negotiable, does not lose the general 
qualities of such instruments. 6 T. R. 123; 6 Taunt. 328; Russ. & Ry. C. C. 
300; 3 Caines, 137; 9 John. 217. Vide Bill of Exchange; Indorsement. 
     3. An informal bill of exchange or a paper which requires one person to 
pay or deliver to another goods on account of the maker to a third party, is 
called an order. 

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

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

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

ORDERS. Rules made by a court or other competent jurisdiction. The formula 
is generally in those words: It is ordered, &c. 
     2. Orders also signify the instructions given by the owner to the 
captain or commander of a ship which he is to follow in the course of the 
voyage. 

ORDINANCE, legislation. A law, a statute, a decree.
     2. This word is more usually applied to the laws of a corporation, than 
to the acts of the legislature; as the ordinances of the city of 
Philadelphia. The following account of the difference between a statute and 
an ordinance is extracted from Bac. Ab. Statute, A. "Where the proceeding 
consisted only of a petition from parliament, and an answer from the king, 
these were entered on the parliament roll; and if the matter was of a public 
nature, the whole was then styled an ordinance; if, however, the petition 
and answer were not only of a public, but a novel nature, they were then 
formed into an act by the king, with the aid of his council and judges, and 
entered on the statute roll." See Harg. & 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 is, that the latter has not had the assent of the king, lords, and 
commons, but is made merely by two of those powers. 4 Inst. 25. See Barr. on 
Stat. 41, note (x). 

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

ORDINARY, civil and eccl. law. An officer who has original jurisdiction in 
his  own right and not by deputation. 
     2. In England the ordinary is an officer who has immediate jurisdiction 
in ecclesiastical causes. Co. Litt. 344. 
     3. In the United States, the ordinary possesses, in those states where 
such 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. Const. Ct. 26; 2 Rep. Const. Ct. 384. 

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

ORE TENUS. Verbally. orally. Formerly the pleadings of the parties were ore 
tenus, and the practice is said to have been retained till the reign of 
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. Wms. 370; if he has not sustained the demurrer on the record. 1 Swanst. 
R. 288; 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 
territory was established by the act of congress of August 14, 1848; and 
this act is the fundamental law of the territory. 
     2.-Sect. 2. The executive power and authority in and over said 
territory of Oregon shall be vested in a governor who shall hold his office 
for four years, and until his successors shall be appointed and qualified, 
unless sooner removed by the president of the United States. The governor 
shall reside within said territory, shall be commander-in-chief of the 
militia thereof, shall perform the duties and receive the emoluments of 
superintendent of Indian affairs; he may grant pardons and respites for 
offences against the laws of said territory, and reprieves for offences 
against the laws of the United States until the decision of the president 
can be made thereon; he shall commission all officers who shall be appointed 
to office under the laws of the said territory, where, by law, such 
commissions shall be required, and shall take care that the laws be 
faithfully executed. 
     3.-Sect. 3. There shall be a secretary of said territory, who shall 
reside therein, and hold his office for five years, unless sooner removed by 
the president of the United States; he shall record and preserve all the 
laws and proceedings of the legislative assembly hereinafter constituted, 
and all the acts and proceedings of the governor in his executive 
department; he shall transmit one copy of the laws and journals of the 
legislative assembly within 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 January and July, in each year, to the 
president of the United States, and two copies of the laws to the president 
of the senate and to the speaker of the house of representatives for the use 
of congress. And in case of the death, removal, resignation, or absence of 
the governor from the territory, the secretary shall be, and he is hereby, 
authorized and required to execute and perform all the powers and duties of 
the governor during such vacancy or absence, or until another governor shall 
be duly appointed and qualified to fill such vacancy. 
     4.-Sect. 4. The legislative power and authority of said territory 
shall be vested in a legislative assembly. The legislative assembly shall 
consist of a council and house of representatives. The council shall consist 
of nine members, having the qualifications of voters as hereinafter 
prescribed, whose term of service shall continue three years. Immediately 
after they shall be assembled, in consequence of the first election, they 
shall be divided as equally as may be into, three classes. The seats. of the 
members of council of the first. class shall be vacated at the expiration of 
the first year; of the second class at the expiration of the second year; 
and of the third class at the expiration of the third year, so that one-
third may be chosen every year, and if vacancies happen by resignation or 
otherwise, the same shall be filled at the next ensuing election. The house 
of representatives shall, at its first session, consist of eighteen members, 
possessing the same qualifications as prescribed for members of the council, 
and whose term of service shall continue one year. The number of 
representatives may be increased by the legislative assembly from time to 
time, in proportion to the increase of qualified voters: Provided, That the 
whole number shall never exceed thirty. An apportionment shall be made, as 
nearly equal as practicable, among the several counties or districts, for 
the election of the council and representatives, giving to each section of 
the territory representation in the ratio of its qualified voters, as nearly 
as may be. And the members of the council and of the house of 
representatives shall reside in and be inhabitants of the district, or 
county or counties, for which they may be elected respectively. Previous to 
the first election, the governor shall cause a census or enumeration of the 
inhabitants and qualified voters of the several counties and districts of 
the territory to be taken by such persons, and in such mode as the governor 
shall designate and appoint; and the persons so appointed shall receive a 
reasonable compensation therefor; and the first election shall be held at 
such time and places, and be conducted in such manner, both as to the person 
who shall superintend such election, and the returns thereof, as the 
governor shall appoint and direct; and he shall, at the same time, declare 
the number of members of the council and house of representatives to which 
each of the counties or districts shall be entitled under this act; and the 
governor shall, by his proclamation, give at least sixty days previous 
notice of such apportionment, and of the time, places, and manner of holding 
such election. The 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 duly elected to the council; and the persons having the 
highest number of legal votes for the house of representatives shall be 
declared by the governor to be duly elected members of said house; Provided, 
That, in case two or more persons voted for shall have an equal number of 
votes and in case a vacancy shall otherwise occur, in either branch of the 
legislative assembly, the governor shall order a new election, and the 
persons thus elected to the legislative assembly shall meet at such place, 
and on such day, within ninety days after such elections, as the governor 
shall appoint; but, thereafter, the time, place, and manner of holding and 
conducting all elections by the people, and the apportioning the 
representation in the several counties or districts to the council and house 
of representatives, according to the number of qualified voters, shall be 
prescribed by law, as well as the day of the commencement of the regular 
sessions of the legislative assembly: Provided, That no session in any one 
year shall exceed the term of sixty days, except the first session, which 
shall not be prolonged beyond one hundred days. 
     5.-Sect, 5. Every white male inhabitant, above the age of twenty-one 
years, who shall have been a resident of said territory at the time of the 
passage of this act, and shall possess the qualifications hereinafter 
prescribed, shall be entitled to vote at the first election, and shall be 
eligible to any office within the said territory; but the qualifications of 
voters and of holding office, at all subsequent elections, shall be such as 
shall be prescribed by the legislative assembly: Provided, That the right of 
suffrage and of holding office shall be exercised only by citizens United 
States above the age of twenty-one years, and those above that age who shall 
have declared, on oath, their intention to become such, and shall have taken 
an oath to support the constitution of the United States, and the provisions 
of this act: And, further, provided, That no officer, soldier, seaman, or 
marine, or other person in the army or navy of the United States, or 
attached to troop's in the service of the United States, shall be allowed to 
vote in said territory, by reason of being on service therein, unless said 
territory is and has been for the period of six months, his permanent 
domicil: Provided, further, That no person belonging to the army or navy of 
the United States shall ever be elected to, or hold any civil office or 
appointment in, said territory. 
     6.-Sect. 6. The legislative power of the territory shall extend to 
all rightful subjects of legislation not inconsistent with the constitution 
and laws of the United States; but no law shall be passed interfering with 
the primary disposal of the soil; no tar shall be imposed upon the property 
of the United States; nor shall the lands or other property of non-residents 
be taxed higher than the lands or other property of residents. All the laws 
passed by the legislative assembly shall be submitted to the congress of the 
United States, and, if disapproved, shall be null and of no effect: 
Provided, That nothing in this act shall be construed to give power to 
incorporate a bank, or any institution with banking powers, or to borrow 
money in the name of the 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 making, issuing, or putting into circulation any 
notes or bills in the likeness of bank notes, or any bonds scrip, drafts, 
bills of exchange, or obligations, or granting any other banking powers or 
privileges, shall be passed by the legislative assembly; nor shall the 
establishment of any branch or agency of any such corporation, derived from 
other authority, be allowed in said territory; nor shall said legislative 
assembly authorize the issue of any obligation, scrip, or evidence of debt 
by said territory, in any mode or manner whatever, except certificates for 
services to said territory; and all such laws, or any law or laws 
inconsistent with the provisions of this act, shall be utterly null and 
void; and all taxes shall be equal and uniform and no distinction shall be 
made in the assessments between different kinds of property, but the 
assessments shall be according to the value thereof. To avoid improper 
influences which may result from intermixing in one and the same act, such 
things as have no proper relation to each other, every law shall embrace but 
one object and that shall be expressed in the title. 
     7.-Sect. 7. All township, district, and county, officers, not herein 
otherwise provided for, shall be appointed or elected, in such manner as 
shall 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 term for which he was elected, and for one year after the expiration of 
such term; but this restriction shall not be applicable to members of the 
first legislative assembly; and no person holding a commission, or 
appointment under the United States shall be a member of the legislative 
assembly, or shall hold any office under the government of said territory. 
     9. The 16th section of the act authorizes the qualified voters to elect 
a delegate to the house of representatives of the United States, who shall 
have and exercise all the rights and privileges as have been heretofore 
exercised and enjoyed by the delegates from the other territories of the 
United States to the said house of representatives. Vide Courts of the 
United States. 

ORIGINAL, contracts, practice, evidence. An authentic instrument of 
something, and which is to serve as a model or example to be copied or 
imitated. It also means first, or not deriving any authority from any other 
source as, original jurisdiction, original writ, original bill, and the 
like. 
     2. Originals are single or duplicate. Single, when there is but one; 
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 will be primary evidence. Watson's Case, 2 Stark. R. 130; sed vide 14 
Serg.& Rawle, 200; 2 Bouv. Inst. n. 2001. 
     3. When an original document is not evidence at common law, and a copy 
of such original is made evidence by an act of the legislature, the original 
is not, therefore, made admissible evidence by implication. 2 Camp. R. 121, 

ORIGINAL ENTRY. The first entry made by a merchant, tradesman, or other 
person in his account books, charging another with merchandise, materials, 
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 
original entry. 2. The proof of such entry. 3. The effect. 
     3.-Sec. 1. To make a valid original entry it must possess the 
following requisites, namely: 1. It must. be made in a proper book. 2. It 
must be made in proper time. 3. It must be intelligible and according to 
law. 4. It must be made by a person having authority to make it. 
     4.-1. In general the books in which the first entries are made, 
belonging to a merchant, tradesman, or mechanic, in which are charged goods 
sold and delivered, or work and labor done, are received in evidence. There 
are many books which are not evidence, a few of which will he here 
enumerated. A book made up by transcribing entries made on a slate by a 
journeyman, the transcript being made on the same evening, or sometimes not 
until nearly two weeks after the work was done, was considered as not being 
a book of original entries. 1 Rawle, R. 435; 2 Watts, R. 451; 4 Watts, R. 
258; 1 Browne's R. 147; 6 Whart. R. 189; 5 Watts, 432; 4 Rawle, 408; 2 
Miles, 268. A book purporting to be a book of original entries, containing 
an entry of the sale of goods when they were ordered but before they were 
delivered, is not a book of original entries. 4 Rawle, 404. And unconnected 
scraps of paper, containing, as alleged, original entries of sales by an 
agent, on account of his principal, and appearing on 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 McCord, R. 76; 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 
intention of making a charge for goods sold or work done; they ought not to 
be made after the lapse of one day. 8 Watts, 545; 1 Nott, & McCord, 130; 4 
Nott & McCord, 77; 4 S. & R. 5; 2 Dall. 217; 9 S. & R. 285. A book in which 
the charges are made when the goods are ordered is not admissible. 4 Rawle, 
404; 3 Dev. 449. 
     6.-3. The entry must be made in an intelligible manner, and not in 
figures or hieroglyphics which are understood by the seller only. 4 Rawle, 
404. A charge made in the gross as "190 days work," 1 Nott & McCord, 130, or 
"for medicine and attendance," or "thirteen dollars for medicine and 
attendance on one of the general's daughters in curing the whooping cough," 
2 Const. Rep. 476, were rejected. An entry of goods without carrying out any 
prices, proves, at most, only a sale, and the jury cannot, without other 
evidence, fix any price. 1 South. 370. The charges should be specific and 
denote the particular work or service charged, as it arises daily, and the 
quantity, number, weight, or other distinct designation of the materials, or 
articles sold or furnished, and attach the price and value to each item. 2 
Const. Rep. 745; 2 Bail. R. 449; 1 Nott & McCord, 130. 
     7.-4. The entry must of course have been made by a person having 
authority to make it, 4 Rawle, 404, and with a view to charge the party. 8 
Watts, 545. 
     8.-Sec. 2. The proof of the entry must be made by the person who made 
it. If made by the seller, he is competent to prove it from the necessity of 
the case, although he has an interest in the matter in dispute. 5 Conn. 496; 
12 John. R. 461; 1 Dall. 239. When made, by a clerk, it must be proved by 
him. But, in either case, when the person who made the entry is out of the 
reach of the process of the court, as in the case of death, or absence out 
of the state, the handwriting may be proved by a person acquainted with the 
handwriting of the person who made the entry. 2 Watts & Serg. 137. But the 
plaintiff is not competent to prove the handwriting of a deceased clerk who 
made the entries. 1 Browne's R. App. liii. 
     9.- Sec. 3. The books and original entries, when proved by the 
supplementary oath of the party, is prima facie evidence of the sale and 
delivery of goods, or of work and labor done. 1 Yeates, 347; Swift's Ev. 84; 
3 Vern. 463; 1 McCord, 481; 1 Aik. 355; 2 Root, 59; Cooke's R. 38. But they 
are not evidence of money lent, or cash paid. Id.; 1 Day, 104; 1 Aik. 73, 
74; Kirby, 289. Nor of the time a vessel laid at the plaintiff's wharf; 1 
Browne's Rep. 257; nor of the delivery of goods to be sold on commission. 2 
Wharton, 33. 

ORIGINAL JURISDICTION, practice. That which is given to courts to take 
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 United State original jurisdiction in cases which affect ambassadors, 
other public ministers and consuls, and to those in which a state is a 
party. Art. 3, s. 2; 1 Kent, Com. 314. 

ORIGINAL WRIT, practice, English law. A mandatory letter issued in the 
king's name, sealed with his great seal, and directed to the sheriff of the 
county wherein the injury was committed or supposed to have been done, 
requiring him to command the wrongdoer or party accused, either to do 
justice to the complainant, or else to appear in court and answer the 
accusation against him. 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 usual, to fiction, and a proceeding by bill is substituted. In 
this country, our courts derive their jurisdiction from the constitution and 
require no original writ to confer it. Improperly speaking, the first writ 
which is issued in a case, is sometimes called an original writ, but it is 
not so in the English 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 office 
of the treasurer-remembrancer in the exchequer, are called by this name to 
distinguish them from records, which contain the judgment's of the barons. 

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

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

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

ORPHANS' COURT. The name of a court in some of the states, having 
jurisdiction of the estates and persons of orphans. 

ORPHANOTROPHI, civil law. Persons who have the charge of administering the 
affairs of houses destined for the use of orphans. Clef des Lois Rom. mot 
Administrateurs. 

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

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

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

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

OUSTER LE MAIN. In law-French, this signifies, to take out of the hand. In 
the old English law it signified a livery of lands out of the hands of the 
lord, after the tenant came of age. If the lord refused to deliver such 
lands, the tenant was entitled to a writ to recover the same from the lord; 
this 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 
minister plenipotentiary, or charge des affaires, on going from the United 
States to any foreign country. 
     2. The outfit can in no case exceed one year's full salary of such 
minister or charge des affaires. No outfit is allowed to a consul. Act of 
Cong. May 1, 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 meaning of out-house. It has been decided that a school-room, separated 
from the dwelling-house by a narrow passage about a yard wide, the roof of 
which was partly upheld by that of the dwelling-house, the two buildings, 
together with some other, and the court which enclosed them, being rented by 
the same person, was properly described as an out-house: Russ. & R. C. C. 
295; see, for other cases, 3 Inst. 67; Burn's Just., Burning, II; 1 Leach, 
49; 2 East's P. C. 1020, 1021. Vide House. 

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

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

OUTLAWRY, Eng. law. The act of being put out of the protection of the 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 themselves are also called the outlawry. 
     2. Outlawry may take place in criminal or in civil cases. 3 Bl. Com. 
283; Co. Litt. 128; 4 Bouv. Inst. n. 4196. 
     3. In the United States, outlawry in civil cases is unknown, and if 
there are any cases of outlawry in criminal cases they are very rare. Dane's 
Ab. eh. 193, a, 34. Vide Bac. Ab. Abatement, B; Id. h.t.; Gilb. Hist. C. P. 
196, 197; 2 Virg. Cas. 244; 2 Dall. 92. 

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

TO OVERDRAW. To draw bills or cheeks upon an individual, bank or other 
corporation, for a greater amount of funds than the party who draws is 
entitled to. 
     2. When a person has overdrawn his account without any intention to do 
so, and afterwards gives a check on a bank, the holder is required to 
present it, and on refusal of payment to give notice to the maker, in order 
to hold him bound for it; but when the maker had overdrawn the bank 
knowingly, and had no funds there between the time the check was given and 
its presentment, the notice is not requisite. 2 N. & McC. 433. 

OVERDUE. A bill, note, bond or other contract, for the payment of 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 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 Har. (N. J.) Rep. 222. 

OVERPLUS. What is left beyond a certain amount; the residue, the remainder 
of a thing. The same as Surplus. (q.v.) 
     2. The overplus may be certain or uncertain. It is certain, for 
example, when an estate is worth three thousand dollars, and the owner 
asserts it to be so in his will, and devises of the proceeds one thousand 
dollars to A, one thousand dollars to B, and the overplus to C, and in 
consequence of the deterioration of the estate, or from some other cause, it 
sells for less than three thousand dollars, each of the legatees A, B and C 
shall take one third: the overplus is uncertain where, for example, a 
testator does not know the value of his estate, and gives various legacies 
and the overplus to another legatee; the latter will 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 signify 
that a case has been decided directly opposite to a former case; when this 
takes place, the first decided case is said to be overruled as a precedent, 
and cannot any longer be considered as of binding authority. 
     2. Mr. Greenleaf has made a very valuable collection of overruled 
cases, of great service to the practitioner. 
     3. The term overrule also signifies that a majority of the judges have 
decided against the opinion of the minority, in which case the latter are 
said to be overruled. 

OVERSEERS OF THE POOR. Persons appointed or elected to take care of the poor 
with moneys furnished to them by the public authority. 
     2. The duties of these officers are regulated by local statutes. In 
general the overseers are bound to perform those duties, and the neglect of 
them will subject them to an indictment. Vide 1 Bl. Com. 360; 16 Vin. Ab. 
150; 1 Mass. 459; 3 Mass. 436; 1 Penning. R. 6, 136; Com. Dig. Justices of 
the Peace, B. 63, 64, 65. 

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

OVERT. Open. An overt act in treason is proof of the intention of the 
traitor, because it opens his designs; without an overt act treason cannot 
be committed. 2 Chit: Cr. Law, 40. An overt act then, is one which manifests 
the intention of the traitor, to commit treason. Archb. Cr. Pl. 379 4 Bl. 
Com. 79. 
     2. The mere contemplation or intention to commit a crime; although a 
sin in the sight of heaven, is not an act amenable to human laws. The were 
speculative wantonness of a licentious imagination, however dangerous, or 
even sanguinary in its object, can in no case amount to a crime. But the 
moment that any overt act is manifest, the offender becomes amenable to the 
laws. Vide Attempt; Conspiracy, and Cro. Car. 577. 

OWELTY. The difference which is paid or secured by one coparcener to 
another, for the purpose of equalizing a partition. Hugh. Ab. Partition and 
Partner, Sec.  2, n. 8; Litt. s. 251; Co. Litt. 169 a; 1 Watts, R. 265; 1 
Whart. 292; 3 Penna, 11 5; Cruise, Dig. tit. 19, Sec. 32; Co. Litt. 10 a; 1 
Vern. 133; Plow. 134; 16 Vin. Ab. 223, pl. 3; Bro. Partition; Sec. 5. OWING. 
Something unpaid. A debt, for example, is owing while it is unpaid, and 
whether it be due or not. 
     2. In affidavits to hold to bail it is usual to state that the debt on 
which 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 
kingdom. 
     2. The name is said to owe its origin to the fact that this offence was 
carried on in the night, when the owl was abroad. 

OWNER, property. The owner is he who has dominion of a thing real or 
personal, corporeal or incorporeal, which he has a right to enjoy and to do 
with as he pleases, even to spoil or destroy it, as far as the law permits, 
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 use of the thing. The owner of an estate may, therefore change the 
face of it; he may cut the wood, demolish the buildings, build new ones, and 
dig wherever he may deem proper, for minerals, stone, plaster, and similar 
things. He may commit what would be considered waste if done by another. 
     3. The owner continues to have the same right although he perform no 
acts of ownership, or be disabled from performing them, and although another 
perform such acts, without the knowledge or against the will of the owner. 
But the owner may lose his right in a thing, if he permit it to remain in 
the possession of a third person, for sufficient time to enable the latter 
to acquire a title to it by prescription, or lapse of time. See Civil Code 
of Louis. B. 2, t. 2, c. 1; Encyclopedie de M. D'Alembert, Proprietaire. 
     4. When there are several joint owners of a thing, as for example, of a 
ship, the majority of them have the right to make contracts in respect of 
such thing, in the usual course of business or repair, and the like, and the 
minority will be bound by such contracts. Holt, 586; 1 Bell's Com. 519, 5th 
ed. See 5 Whart. R. 366. 

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

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

OYER, pleading. Oyer is a French word signifying to hear; in pleading it is 
a prayer or petition to the court, that the party may hear read to him the 
deed, &c., stated in the pleadings of the opposite party, and which deed is 
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 of defendants, in ancient times, were themselves incapable of 
reading. 3 Bl. Com. 299. 
     3. Oyer is, in some cases demandable of right, and in others it is not. 
It may be demanded of any speciality or other written instrument, as bonds 
of all sorts, deeds poll, indentures, letters testamentary, and of 
administration, and the like, of which a profert in curiam is necessarily 
made by the adverse party. But if the party be not bound to plead the 
specialty or instrument with a profert, and he pleads it with one, it is but 
surplusage, and the court will not compel him to give oyer of it. 1 Salk. 
497. Oyer is not now demandable of the writ, and if it be demanded, the 
plaintiff may proceed as if no such demand were 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 court, the party pleading it 
must give a notice in writing of the term and number roll whereon such 
judgment or matter of record is entered or filed in 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 party making the claim, should move the court to have it entered on 
record, which is in the nature of a plea, and the plaintiff may counterplead 
the right of oyer, or strike out the rest of the pleading, following the 
oyer, and demur; 1 Saund. 9 b, n. 1; Bac. Abr. Pleas, 1; upon which the 
judgment of the court is either that the defendant have oyer, or that he 
answer without it. Id. ibid.; 2 Lev. 142; 6 Mod. 28. On the latter judgment, 
the defendant may bring a writ of 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, in. 2; 2. Saund. 9, n. 12, 13; 46, n. 7; 
366, n. 1; 405, n. 1; 410, n. 2; Tidd's  Pr. 8 ed. 635 to 638, and index, 
tit. Oyer; 1 Chit. Pl. 369 to 375; Lawes on Civ. Pl. 96 to 101; 16 Vin. Ab. 
157; Bac. Abr. Pleas, &c., I 12, n. 2; Arch. Civ. Pl. 185; 1 Sell. Pr. 260; 
Doct. Pl, 344; Com. Dig. Pleader, P Abatement, I 22; 1 Blackf. R. 241, 3 
Bouv. Inst. n. 2890. 

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

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