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. l0 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.
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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:
§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. - §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. - §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
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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 ad-
minister 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. - §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. - §5. That the secretary of the senate, and the clerk of
the house of repreentatives, 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.
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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. §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. §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
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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 fulfil 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 Ca- tholic 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 synony- mous 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
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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 Verm. 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 enforeed 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.
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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-perform- ance 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 fulfil 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
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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 enforeed, if the principal obligation be
not performed. In general equity will relieve against a penalty,
on the fulfilment 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 fulfil
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
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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 fulfilment of
his obligation.
OBLIGATION OF CONTRACTS. By this expression, which is used in
the consti- tution 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 obliga- tion 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
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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
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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 at- tempt to prevent, or do prevent, the execution of
lawful process.
2. The officer must be prevented by actual violence, or by
threatened violence, accompanied by the exercise of force, or by
those having capacity to 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
sea-shore, 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.
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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
Wooddes. 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. §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. §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
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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 Dependeney;
Posession.
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 multi- tude; the abuse of a democracy. Vaumene, Dict. du
Language Politique.
ODHALL RIGHT. The same as allodial.
OF COURSE. That which may be done, in the course of legal
proceedings, 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 fulfilment of the contract, and this right when
not expressed, is always implied.
3. By virtue of his natural liberty, a man may change his will
at any time, 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.
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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 Verm. 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, §2; Amer. Dig. h. t.; 17 S. & R. 219.
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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
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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,
§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. - §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
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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. - §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. - §2. Senators and representatives shall be elected
biennally, 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. - §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. - §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. - §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 dishursement, or otherwise,
have a seat in the general assembly, until, he shall have
accounted for, and paid such money into the treasury.
10. - §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.
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11. - §7. The style of the laws of this state, shall be, "Be it
enacted by the General Assembly of the State of Ohio."
12. - §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. - §9. Every county, having a popuIation 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 representantives; 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. - §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. - §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. - §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. - §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. - §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.
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19. - §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. - §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
appor- tionment, shall, as to the right of representation and
suffrage, remain an integral part thereof, during the decennial
period.
21. - §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.- §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. - §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. - §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. - §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 suceessors are elected
and qualified.
27. - §3. The returns of every election for the officers, named
in the foregoing section, shall be sealed up and transmitted to
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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. - §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. - §5. The supreme executive power of this state shall be
vested in the governor.
30. - §6. He may require information, in writing, from the
officers in the executive department, upon any subject relating
to the duties of their respeceive office's; and shall see that
the laws are faithfully executed.
31. - §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. - §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. - §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. - §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. - §11. He shall have power, after conviction, to grant
reprieves, commutatious, 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 gene- ral
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. - §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."
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37. - §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. - §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. - §15. In case of the death, impeachment, resignation,
removal, or other disability of the governor, the powers and
duties of the office, for the resi-due of the term, or until he
shall be acquitted, or the disability removed, shall devolve upon
the lieutenant governor.
40. - §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. - §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 govemor, 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. - §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. - §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
dimininshed during the period for which they shall have been
elected.
44. - §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
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as follows: 46.-SS 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. - §2. The supreme court shall consist of five judges, a
majority of whom shall be necessary to form a quorum, or to
pronouuce 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. - §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. - §4 . The jurisdiction of the courts of common pleas, and
of the judges thereof, shall be fixed by law.
50. - §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. - §6. The district court shall have like original
jurisdiction with the supreme court, and such appellate
jurisdiction as may be provided by law.
52. - §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, elec-ted 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. - §8. The probate court shall have jurisdiction in probate
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and testa-mentary 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, aclministrators and guardians, and such other
jurisdiction, in any county, or counties, as may be provided by
law.
54. - §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. - §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. - §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 sf each
of said judges shall be for five years.
57. - §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. - §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 quali-fied; 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. - §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. - §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. - §16. There shall be elected in each county by the
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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. - §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. - §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. - §19. The general assembly may establish courts of
conciliation, and pre- scribe 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. - §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 8vo. 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
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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 dif- ferent 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
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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 defen-dant 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
authori-ties 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.
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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 anly 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
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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 engi-neer 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 Bingh. 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 Philm. 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 Verm. 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 Verm. 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.
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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
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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.
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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 vovage.
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).
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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 eccles. 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 eccles. 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 terri- tory 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
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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 ab-
sence, 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 memers of the council, and whose
term of serice 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 andrepresentatives, 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
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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:
Prodided, 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 reident 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
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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 anyother 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
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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. lnst. 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. - §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 ori-ginal 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
M'Cord, 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, & M'Cord, 130; 4 Nott & M'Cord, 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
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days work," 1 Nott & M'Cord, 130, or "for medicine and
attendance," or "thirteen dollars for medicine and attendance on
one of the general's daughters in curing the hooping 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 & M'Cord,
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. - §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.- §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 Verm. 463; 1 M'Cord, 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.
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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 embellisment. 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 correspon-dence
between the Hon. Joseph Hopkinson and ex-president J. Q. Adams as
to the meaning of the word Orphan, and Rob. 247.
ORPHANAGE, Engl. 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 jurisdic- tion 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 Ad- ministrateurs.
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.
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OUSTER, torts. An ouster is the actual turning out, or keeping
excluded, the party entitlod to possession of any real property
corporeal.
2. An ouster can properly be only from real property corporeal,
and cannot be 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 Guster. 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 minis-ter plenipotentiary, or charge des affaires, on
going from the United States to any foreign country.
2. The outfit can in no case exceedlone 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, Engl. 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, Engl. 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, Engl. 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
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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
Dal. 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
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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 san-guinary 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, § 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, §32; Co. Litt. 10 a; 1 Vern. 133; Plow.
134; 16 Vin. Ab. 223, pl. 3; Bro. Partition; §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.
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OWLER, Eng. law. One guilty of the offence of owling.
OWLING, Eng. law. The offence of transporting wool or sheep out
of the king-dom.
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 person-al, 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
committ what would be considered waste if done by another.
3. The owner continues to have the same right although he
perform no acts of 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, aud 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.
Bouvier's Law Dictionary : O1 : Page 42 of 43
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.
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