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

   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

   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.

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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.

   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

   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

  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;

  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

   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

   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

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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;

   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.

  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.

  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

   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

   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,

  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.

         Bouvier's Law Dictionary : O1 : Page 18 of 43

   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

   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

  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

   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

  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

   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

   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

   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

   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;

   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

   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

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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

   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

         Bouvier's Law Dictionary : O1 : Page 27 of 43

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.

         Bouvier's Law Dictionary : O1 : Page 28 of 43

   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

   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

   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

   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,

   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

  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

  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

  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

  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

   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;

   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

   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.

   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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