OLD AGE. This needs no definition. Sometimes old age is the cause of
loss of memory and of the powers of the mind, when the party may be found non
compos mentis. See Aged witness; Senility.
OLD NATURA BREVIUM. The title of an old English book, (usually cited
Vet. N. B.) so called to distinguish it from the F. N. B. It contains the writs
most in use in the reign of Edward III, together with a short comment on the
application and properties of each of them,
OLD TENURES. The title of a small tract, which, as its title denotes,
contains an account of the various tenures by which land was holden in the reign
of Edward III. This tract was published in 1719, with notes and additions, with
the eleventh edition of the First Institutes, and reprinted in 8vo. in 1764, by
Serjeant Hawkins, in a Selection of Coke's Law Tracts.
OLERON LAWS. The name of a maritime code. Vide Laws of Oleron.
OLIGARCHY. This name is given to designate the power which a 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.
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.
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
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.
ONEROUS CAUSE, civil law., A valuable consideration.
ONEROUS CONTRACT, civil law. One made for a consideration given or
promised, however small. Civ. Code of Lo. art. 1767.
ONEROUS GIFT, civil law. The gift of a thing subject to certain
charges which the giver has imposed on the donee. Poth. h. t.
ONUS PROBANDI, evidence. The burden of the proof.
2. It is a general rule, that the party who alleges the affirmative of any
proposition shall prove it. It is also a general rule that the onus probandi
lies. upon the party who seeks to support his case by a particular fact of which
he is supposed to be cognizant; for example, when to a plea of infancy, the
plaintiff replies a promise after the defendant had attained his age, it is
sufficient for the plaintiff to prove the promise and it lies on the 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
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
2. The opening of the judgment takes place when some person having an
interest makes affidavit to facts, which if true would render the execution of
such judgment inequitable. The judgment is opened so as to be in effect an award
of a collateral issue to try the facts alleged in the affidavit. 6 Watts &
Serg. 493, 494.
OPERATION OF LAW. This term is applied to those rights which are cast
upon a party by the law, without any act of his own; as, the right to an estate
of one who dies intestate, is cast upon the heir at law, by operation of law;
when a lessee for life enfeoffs him in reversion, or when the lessee and lessor
join in a feoffment, or when a lessee for life or years accepts a new lease or
demise from the lessor, there is a surrender of the first lease by operation of
law. 9 B. & C. 298; 5 B. & C. 269; 2 B. & A. 119; 5 Taunt. 518.
OPERATIVE. A workman; one employed to perform labor for another.
2. This word is used in the bankrupt law of 19th August, 1841, s. 5, which
directs that any person who shall have performed any labor as an operative in
the service of anly bankrupt shall be entitled to receive the full amount of
wages due to him for such labor, not exceeding twenty-fivedo llars; 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
OPINION, practice. A declaration by a counsel to his client of what
the law is, according to his judgment, on a statement of facts submitted to him.
The paper upon which an opinion is written is, by a figure of speech, also
called an opinion.
2. The counsel should as far as practicable give, 1. A direct and positive
opinion, meeting the point and effect of the question and separately, if the-
questions proposed were properly divisible into several. 2. The reasons,
succinctly stated, in support of such opinion. 3. A reference to the statute,
rule or decision on the subject. 4. When the facts are susceptible of a small
difference in the statement, a suggestion of the probability of such variation.
5. When some, important fact is stated as resting principally on the statement
of the party interested, a suggestion ought to be made to inquire how that fact
is to be proved. 6. A suggestion of the proper process or pleadings to be
adopted. 7. A suggestion of what precautionary measures ought to be adopted. As
to the value of an opinion, see 4 Penn, St. R. 28.
OPINION, evidence. An inference made, or conclusion drawn, by a
witness from facts known to him,
2. In general a witness cannot be asked his opinion upon a particular
question, for he is called to speak of facts only. But to this general rule
there are exceptions; where matters of skill and judgment are involved, a person
competent, particularly to understand such matters, may be asked his opinion,
and it will be evidence. 4 Hill , 129; 1 Denio, 281; 2 Scam. 297; 2 N. H. Rep.
480; 2 Story, R. 421; see 8 W. & S. 61; 1 McMullan, 561 For example, an
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.
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.
2. Such an opinion ought to be a perfect syllogism, the major of which should
be the law; the minor, the fact to be decided and the consequence, the judgment
which declares that to be conformable or contrary to law.
3. Opinions are judicial or extra-judicial; a judicial opinion is one which
is given on a matter which is legally brought before the judge for his decision;
an extra-judicial opinion, is one which although given in court, is not
necessary to the judgment. Vaughan, 382; 1 Hale's Hist. 141; and whether given
in or out of court, is no more than the prolatum of him who gives it, and has no
legal efficacy. 4 Penn. St. R. 28. Vide Reason.
OPPOSITION, practice. The act of a creditor who, declares his dissent
to a debtor's being discharged under the insolvent laws.
OPPRESSOR. One who having public authority uses it unlawfully to
tyrannize over another; as, if he keep him in prison until he shall do something
which he is not lawfully bound to do.
2. To charge a magistrate with being an oppressor, is therefore actionable.
Stark. Sland. 185.
OPPROBRIUM, civil law. Ignominy; shame; infamy. (q. v.)
OPTION. Choice; Election; (q. v.) where the subject is considered.
OR. This syllable in the termination of words has an active
signification, and usually denotes the doer of an act; as, the grantor, he who
makes a grant; the vendor, he who makes a sale; the feoffor, he who makes a
feoffment. Litt. s. 57; 1 Bl. Com. 140, n.
ORACULUM, civil law. The name of a kind of decisions given by the
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,
ORDAIN. To ordain is to make an ordinance, to enact a law.
2. In the constitution of the United States, the preamble. declares that the
people "do ordain and establish this constitution for the United States of
America." The 3d article of the same constitution declares, that "the judicial
power shall be vested in one supreme court, and in such inferior courts as the
congress may from time to time ordain and establish. "See 1 Wheat. R. 304, 324;
4 Wheat: R. 316, 402.
ORDEAL. An ancient superstitious mode of tribal. When in a criminal
case the accused was arraigned, be might select the mode of trial either by God
and his country, that is, by jury; or by God only, that is by ordeal.
2. The trial by ordeal was either by fire or by water. Those who were tried
by the former passed barefooted and blindfolded over nine hot glowing
ploughshares; or were to carry burning irons in their hands; and accordingly as
they escaped or not, they were acquitted or condemned. The water ordeal was
performed either in hot or cold water. In cold water, the parties suspected were
adjudged innocent, if their bodies were not borne up by the water contrary to
the course of nature; and if, after putting their bare arms or legs into
scalding water they came out unhurt, they were taken to be innocent of the
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
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
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
ORDER, French law. The act by which the rank of preferences of claims
among creditors who have liens over the price which arises out of the sale of an
immovable subject, is ascertained, is called order. Dalloz, Dict. h. t.
ORDER OF FILIATION. The name of a judgment tendered by two justices,
having jurisdiction in such case, in which a man therein named is adjudged to be
the putative father of a bastard child; and it is farther adjudged that he pay a
certain sum for its support.
2. The order must bear upon its face, 1st. That it was made upon the
complaint of the township, parish, or other place, where the child was born and
is chargeable. 2d. That it was made by justices of the peace having
jurisdiction. Salk. 122, pl. 6; 2 Ld. Raym. 1197. 3d. The birth place of the
child; 4th. The examination of the putative father and of the mother; but, it is
said, the presence of the putative father is not requisite, if he has been
summoned. Cald. It. 308. 5th. The judgment that the defendant is the putative
father of the child. Sid. 363; Stile, 154; Dalt. 52; Dougl. 662. 6th. That he
shall maintain, the child as long as he shall be chargeable to the township,
parish, or other place, which must be named. Salk. 121, pl. 2; Comb. 232. But
the order may be that the father shall pay a certain sum weekly as long as the
child is chargeable to the public. Stile, 134; Vent. 210. 7th. It must be dated,
signed, and, sealed by the justices. Such order cannot be vacated by two other
justices. 15 John. R. 208; see 8 Cowen, R. 623; 4 Cowen, R. 253; 12 John. R.
195; 2 Blackf. R. 42.
ORDER NISI. A conditional order which is to be confirmed unless
something be done, which has been required, by a time specified. Eden. Inj.
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
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,