ORPHAN 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 S. & S. 93; Aso & M. Inst. b. 1, t. 2. c. 1; 40 Wisc. 276. See 14 Hazzard, Penn. Reg. 188, 189, for a correspondence between the Hon. Joseph Hopkinson and ex-president J. Q. Adams as to the meaning of the word orphan. See, also, Hob. 247. ORPHANAGE. In English Law. The share reserved to an orphan by the custom of London. 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. Lovelace, Wills, 102, 104; Bacon, Abr. Custom of London (C). ORPHANS' COURT. In American Law. Courts of more or less extended probate jurisdiction, in Delaware, Maryland, New Jersey, and Pennsylvania. See the accounts of the respective states. ORPHANOTROPHI. In Civil Law. Persons who have the charge of administering the affairs of houses destined for the use of orphans. Clef des Lois Rom. Administra teurs. OSTENSIBLE PARTNER. One whose name appears in a firm as a partner, and who is really such. OSWALD'S LAW. The law by which was effected the ejection of married priests, and the introduction of monks into churches, by Oswald, bishop of Worcester, about A. D. 964; Whart. Lex. MIA. even by one tenant in common of his co- OUSTER LE MAIN (L. Fr. to take out of the hand). In Old English Law. A delivery 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. Abolished by 12 Car. II. c. 24. Also, a livery of land out of the king's hands by judgment given in favor of the petitioner in a monstrans de droit; 3 Steph. Com. 657. OUT OF COURT. A plaintiff in an action at common law sues to have declared within one year after the service of the summons, otherwise he was out of court, unless the court had, by special order, enlarged the time for declaring; see now Jud. Act, 1875, Ord. xxi. r. 1. Whart. Lex. Also a colloquial phrase applied to a litigant party, when his case breaks down, equivalent to saying, "he has not a leg to stand on ;" Moz. & W. OUT OF THE STATE. Beyond sea, which title see. OUT OF TIME. In Marine Insurance. Missing. Generally speaking, a ship may be said to be missing or out of time when she has not been heard of after the longest ordinary time in which the voyage is safely per1 Arnoult, Ins. 540; 2 Duer, Ins. OTHER WRONGS. See ALIA ENOR-formed. 469, n. OUTER BAR. See UTTER BARRISTER. OUTER HOUSE. A department of the court of session in Scotland, consisting of five lords ordinary, sitting each separately, to decide causes in the first instance. Paterson; Moz. & W. OTHESWORTHE (Sax. eoth, oath). Worthy to make oath. Bracton, 185, 192. OUNCE. The name of a weight. See WEIGHTS. OUSTER (L. Fr. outre, oultre; Lat. ultra, beyond). Out; beyond; besides; farther; also; over and more. Le ouster, the uppermost. Over: respondeat ouster, let him anOuster le mer, swer over. Britton, c. 29. over the sea. Jacob. Law Dict. Ouster eit, he went away. 6 Co. 41 b; 9 id. 120. To put out; to oust. Il oust, he put out or ousted. Oustes, ousted. 6 Co. 41 b. OUTFIT. An allowance made by the government of the United States to a minister plenipotentiary, or chargé d'affaires, on going from the United States to any foreign country. The outfit can in no case exceed one year's In Torts. The actual turning out or keep-faires. No outfit is allowed to a consul. full salary of such minister or chargé d'afing excluded the party entitled to possession of Congr. May 1, 1810, s. 1. of any real property corporeal. An ouster can properly be only from real property corporeal, and cannot be committed of any thing movable; 1 C. & P. 123; 2 Bouvier, Inst. n. 2348; 1 Chitty, Pr. 148, n. r; nor is a mere temporary trespass considered as an ouster. Any continuing act of exclusion from the enjoyment constitutes an ouster, TER. Act See MINIS As to the meaning of "outfit" in the whaling business, see 9 Metc. 354. OUTHOUSES. Buildings adjoining or belonging to dwelling-houses. Buildings subservient to, yet distinct from, the principal mansion-house, located either within or without the curtilage; 4 Conn. 46; 4 Gill & J. 402; 2 Cr. & D. 479. It is not easy to say what comes within and what is excluded from the meaning of outhouse. 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 inclosed them, being rented by the same person, was properly described as an outhouse; Russ. & R. Cr. Cas. 295. See, for other cases, Co. 3d Inst. 67; Burn, Just. Burning, II.; 1 Leach, 49; 2 East, Pl. Cr. 1020, 1021; 5 C. & P. 555; 6 id. 402; 8 B. & C. 461; 1 Mood. Cr. Cas. 323, 336; 4 Conn. 446; 11 Ala. N. s. 594; 20 id. 30. OUTLAW. In English Law. One who is put out of the protection or aid of the law. 22 Viner, Abr. 316; 1 Phill. Ev. Index; Bacon, Abr. Outlawry; 2 Sell. Pr. 277; Doctr. Plac. 331; 3 Bla. Com. 283, 284. As used in the Ala. act of December 28, 1868, § 1, declaring counties liable for persons killed by an "outlaw," outlaw is not used in the strict common law sense of the term, but merely refers in a loose sense to the disorderly persons then roving through the state, committing acts of violence; 46 Ala. 118, 137. See 37 Me. 389. OUTLAWRY. In English Law. The act of being put out of the protection of the law, by process regularly sued out against a person who is in contempt in refusing to become amenable to the court having jurisdiction. The proceedings themselves are also called the outlawry; Outlawry may take place in criminal or in civil cases; 3 Bla. Com. 283; Co. Litt. 128; 4 Bouvier, Inst. n. 4196. 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, Abr. ch. 193 a, 34. See Bacon, Abr. Abatement (B), Outlawry; Gilbert, Hist. 196, 197; 2 Va. Cas. 244; 2 Dall. 92. OUTRAGE. A grave injury; a serious wrong. This is a generic word which is applied to every thing which is injurious in a great degree to the honor or rights of another. 44 Iowa, 314. OUTRIDERS. In English Practice. Bailiff's employed by the sheriffs and their deputies to ride to the farthest places of their counties or hundreds, to summon such as they thought good to attend their county or hundred court. OUVERTURE DES SUCCESSIONS. In French law, the right of succession which arises to one upon the death, whether natural or civil, of another; Brown. OVERDRAFT. See OVERDRAW. OVERDRAW. To draw bills or checks upon an individual, bank, or other corporation, for a greater amount of funds than the party who draws is entitled to. 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 has overdrawn the bank knowingly, having no funds there between the time the check is given and its presentment, the notice is not requisite; 2 N. & M'C. 433; 16 Me. 36. An overdraft on a bank is in the nature of a loan. It is considered a fraud on the part of the depositor; 52 Penn. 206; see 10 Wall. 647. Indebitatus assumpsit will lie against the depositor to recover the overdraft; 9 Penn. 475, A cashier who knowingly permits an overdraft is guilty of a breach of trust, and liable to an action to make good the amount even though the directors had been wont to countenance him in a custom of allowing good depositors to overdraw; Morse, Bank, 196. OVERDUE. A bill, note, bond, or other contract for the payment of money at a particular day, when not paid upon the day, is overdue. 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 Ala. N. s. 153. A note, when passed or assigned, when the original contracting parties; 6 Conn. 5; overdue is subject to all the equities between 10 id. 30, 55; 3 Harr. N. J. 222. OVER-INSURANCE. See DOUBLE INSURANCE. OVERPLUS. What is left beyond a certain amount; the residue; the remainder of a thing. The same as surplus. The overplus may be certain or uncertain. It is certain, for example, when an estate is worth three thousand dollars, and the owner asserts it to be so in his will, and devises of the proceeds one thousand dollars to A, one thousand dollars to B, and the overplus to C, and in consequence of the deterioration of the estate, or from some other cause, it sells for less than three thousand dollars, each of the legatees, A, B, and C, shall take one-third. The overplus is uncertain where, for example, a testator does not know the value of his estate, and gives various legacies, and the overplus to another legatee: the latter will be entitled only to what may be left; 18 Ves. 466. See RESIDUE; SURPLUS. OVERRULE. To annul; to make void. This word is frequently used to signify that a case has been decided directly opposite to a former case; when this takes place, the first-decided case is said to be overruled as a precedent, and cannot any longer be considered as of binding authority. Mr. Greenleaf has made a very valuable collection of overruled cases, of great service to the practitioner. It also signifies that a majority of the judges having decided against the opinion of the minority, in which case the latter are said to be overruled. OVERSEERS OF HIGHWAYS. So called in some of the states. See COMMISSIONERS OF HIGHWAYS. OVERSEERS OF THE POOR OVERSEERS OF THE POOR. Persons appointed or elected to take care of the poor with moneys furnished to them by the public authority. 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. See 1 Bla. Com. 360; 16 Viner, Abr. 150; 1 Mass. 459; 3 id. 436; 1 Penn. N. J. 6, 136; 77 N. C. 494; Comyns, Dig. Justice of the Peace (B 63-65). founded is due, owing and unpaid; 1 Penn. L. J. 210. OWLER. In English Law. One guilty of the offence of owling. OWLING. The offence of transporting wool or sheep out of fact that this offence was carried on in the OWNER. He who has dominion of a thing, real or personal, corporeal or incorAporeal, which he has a right to enjoy and 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. OVERSMAN. In Scotch Law. person commonly named in a subinission, 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; Erskine, Inst. 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 Chitty, Cr. Law, 40. An overt act, then, is one which manifests the intention of the traitor to commit treason; Archb. Cr. Pl. 379; 4 Bla. Com. 79; Co. 3d Inst. 12; 1 Dall. 33; 2 id. 346; 4 Cra. 75; 3 Wash. C. C. 234. In order to sustain a conviction for treason under the United States constitution, there must be the testimony of two witnesses to the same overt act or a confession in open court. A conspirator can be tried in any place where his co-conspirators perform an overt act; Rev. Stat. § 440. The phrase is used in relation to the fugitive slave act in 5 How. 215. In conspiracy, no overt act is needed to complete the offence; 11 Cl. & F. 155; 48 Md. 381; 49 Ind. 186. See 7 Biss. 175. 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 mere speculative wantonness of a licentious imagination, however dangerous or even sanguinary in its object, can in no case amount to a crime. But the moment that any overt act is manifest, the offender becomes amenable to the laws. See ATTEMPT; CONSPIRACY; Cro. Car. 577. OWELTY. The difference which is paid or secured by one coparcener to another for the purpose of equalizing a partition. Littleton, § 251; Co. Litt. 169 a; 1 Watts, 265; 1 Whart. 292; Cruise, Dig. tit. 19, § 32; 1 Vern. 133; Plowd. 134; 16 Viner, Abr. 223, pl. 3; Brooke, Abr. Partition, § 5. OWING. Something unpaid. A debt, for example, is owing while it is unpaid, and whether it be due or not. In affidavits to hold to bail it is usual to state that the debt on which the action is Although there can be but one absolute owner of a thing, there may be a qualified ownership of the same thing by many. Thus, a bailor has the general ownership of the thing bailed, the bailee the special ownerSee 2 Cra. C. C. 83. ship. The right of the absolute owner is more extended than that of him who has only a qualified ownership: as, for example, the use of the thing. Thus, the absolute owner of an estate, that is, an owner in fee, may cut the wood, demolish the buildings, build new ones, and dig wherever he may deem proper for minerals, stone, plaster, and similar things, which would be considered waste and would not be allowed in a qualified owner of the estate, as a lessee or a tenant for life. The word owner, but it has been held in Ohio that the word when used alone, imports an absolute owner; owner, in the Mechanic Lien Law of that state, included the owner of the leasehold as well as of the reversion, on the ground any other construction would be subversive of the policy and intent of the stat2 Ohio, 123. that ute. 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 a sufficient time to enable the latter to acquire a title to it by prescrip tion or under the Statute of Limitations. See La. Civ. Code, b. 2, tit. 2, c. 1; Encyclopedie de M. d'Alembert, Proprietaire. 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, Com. 5th ed. 519; 5 Whart. 366. See, further, 22 Wall. 263; 76 Ill. 490; 64 Mo. 112; 57 N. H. 110; 36 N. J. L. 181; 13 N. Y. 553; 25 N. J. Eq. 284; 26 Penn. 238. OWNERSHIP. The right by which a thing belongs to some one in particular, to the exclusion of all others. La. Civ. Code, art. 480. pleading with a profert unnecessarily does not give a right to demand oyer; 1 Salk. OXGANG (fr. Sax. gang, going, and ox; 497; and it may not be had except when Denial of Law Lat. bovata). In Old English Law. profert is made; Hempst. 265. So much land as an ox could till. According oyer when it should be granted is ground for to some, fifteen acres. Co. Litt. 69 a; error; 1 Blackf. 126. In such cases the party Crompton, Jurisd. 220. According to Bal- making the claim should move the court to four, the Scotch oxengang, or orgate, con- have it entered on record, which is in the tained twelve acres; but this does not corre-nature of a plea, and the plaintiff may counspond with ancient charters. See Bell, Dict. Ploughgate. Skene says thirteen acres. Cowel. OYER (Lat. audire; through L. Fr. oyer, to hear). In Pleading. A prayer or petition to the court that the party may hear read to him the deed, etc., stated in the pleadings of the opposite party, and which deed is by intendment of law in court when it is pleaded with a profert. The same end is now generally attained by giving a copy of the deed of which oyer is asked, or, in other instances, by setting forth the instrument in full in the plaintiff's statement of his case. Oyer as it existed at common law seems to be abolished in England; 1 B. & P. 646, n. b; 3 id. 398; 25 E. L. & E. 304. Oyer may be demanded of any specialty or other written instrument, as, bonds of all sorts, deeds-poll, indentures, letters testamentary and of administration, and the like, which the adverse party is obliged to plead with a profert in curia. But terplead the right of over, 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.; 2 Lev. 142; 6 Mod. 28. See PROFERT IN CURIA. After craving oyer, the defendant may set forth the deed or a part thereof, or not, at his election; 1 Chitty, Pl. 372; and may afterwards plead non est factum, or any other plea, without stating the oyer; 2 Stra. 1241; 1 Wils. 97; and may demur if a material variance appear between the oyer and declaration; 2 Saund. 366, n. See, generally, Comyns, Dig. Pleader (P), Abatement (I 22); 3 Bouvier, Inst. n. 2890. OYER AND TERMINER. See AsSIZE; Court of OYER AND TERMINER. OYEZ (Fr. hear ye). The introduction to any proclamation or advertisement by public crier. It is wrongly and usually pronounced oh yes. 4 Bla. Com. 340, n. P. PACE. A measure of length, containing two feet and a half. The geometrical pace is five feet long. The common pace is the length of a step; the geometrical is the length of two steps, or the whole space passed over by the same foot from one step to another. PACIFICATION (Lat. paz, peace, facere, to make). The act of making peace between two countries which have been at war; the restoration of public tranquillity. PACK. To deceive by false appearances; to counterfeit; to delude: as, packing a jury. See JURY; Bacon, Abr. Juries (M); 12 Conn. 262. PACKAGE. A bundle put up for transportation or commercial handling. A parcel is a small package; 1 Hugh. 529; 44 Ala. 468. Certain duties charged in the port of London on the goods imported and exported by aliens. Now abolished. Whart. Lex. PACT. In Civil Law. An agreement made by two or more persons on the same subject, in order to form some engagement, or to dissolve or modify one already made : Conventio est duorum in idem placitum consensus de re solvenda, id est faciendâ vel præstandâ. Dig. 2. 14; Clef des Lois Rom.; Ayliffe, Pand. 558; Merlin, Rép. Pacte. PACTIONS. In International Law. Contracts between nations which are to be performed by a single act, and of which execution is at an end at once. 1 Bouvier, Inst. n. 100. PECU PACTUM CONSTITUTÆ NIE (Lat.). In Civil Law. An agreement by which a person appointed to his creditor a certain day, or a certain time, at which he promised to pay; or it may be defined simply an agreement by which a person promises a creditor to pay him. When a person by this pact promises his own creditor to pay him, there arises a new obligation, which does not destroy the former by which he was already bound, but which is accessory to it; and by this multiplicity of obligations the right of the creditor is strengthened. Pothier, Obl. pt. 2, c. 6, s. 9. There is a striking conformity between the pactum constitutæ pecuniæ, as above defined, and our indebitatus assumpsit. The pactum constitute pecunia was a promise to pay a subsisting debt, whether natural or civil, made in such a manner as not to extinguish the preceding debt, and introduced by the prætor to obviate some formal difficulties. The action of indebitatus assumpsit was brought upon a promise for the payment of a debt is not subject to the wager of law and other technical difficulties of the regular action of debt; but by such promise the right to the action of debt was not extinguished nor varied; 4 Co. 91, 95. See 1 H. Blackst. 550-555, 850 Dougl. 6, 7; 3 Wood, Inst. 168, 169, n. c; i Viner, Abr. 270; Brooke, Abr. Action sur le Case (pl. 7, 69, 72); Fitzh. N. B. 94 A, n. a, 145 G ; 4 B. & P. 295; 1 Chitty, Pl. 89; Toullier, Dr. Civ. Fr. liv. 3, t. 3, c. 4, nn. 388, 396. PACTUM DE NON PETENDO (Lat.). In Civil Law. An agreement made between a creditor and his debtor that the former will not demand from the latter the debt due. By this agreement the debtor is freed from his obligation. This is not unlike the covenant not to sue, of the common law. Wolff, Dr. de la Nat. § 755; Leake, Contr. 504. PACTUM DE QUOTA LITIS (Lat.). In Civil Law. An agreement by which a creditor of a sum difficult to recover promises a portion-for example, one third-to the person who will undertake to recover it. In general, attorneys will abstain from making such a contract: yet it is not unlawful at common law. PAGODA. In Commercial Law. PANDECTS It court, or his deputy. It had its sessions once PALFRIDUS (L. Lat.) A palfrey; a horse to travel on. Fitzherbert, Nat. Brev. 93. PALLIO COOPERIRE. (To cover with a cloak.) An ancient custom, where the parents of children born out of wedlock, afterwards intermarried, of the parents and children standing together under a cloth extended, while the marriage was solemnized, the act being in the nature of adoption; Toml. PANDECTS. In Civil Law. The name of an abridgment or compilation of the civil law, made by Tribonian and others, by order of the emperor Justinian, and to which he gave the force of law A.D. 533. because in his compilation the writings of the It is also known by the name of the Digest, jurists were reduced to order and condensed quasi digestice. The emperor, in 530, published an ordinance entitled De Conceptione Digestorum, which was addressed to Tribonian, and by which he was required to select some of the most distinguished lawyers to assist him in composing a collection of the best decisions of the ancient lawyers, and compile them in fifty books, without confusion or contradiction. The instructions of the emperor were to select what was useful, to omit what was antiquated or superfluous, to avoid contradictions, and by the necessary changes, to produce a complete body of law. This work was a companion to the Code of Justinian, and was to be governed in its arrangement of topics by the method of the Code. JusA tinian allowed the commissioners, who were sixteen in number, ten years to compile it; but the work was completed in three years, and promulgated in 533. A list of the writers from whose works the collection was made, and an account of the method pursued by the commissioners, will be found in Smith's Dict. of Gr. & R. Antiq. About a third of the collection is taken from UI denomination of money in Bengal. In the computation of ad valorem duties it is valued at one dollar and ninety-four cents. Act of March 2, 1799, s. 61, 1 Story, U. S. Laws, 626. See FOREIGN COINS. PAINE FORTE ET DURE. See PEINE pian; Julius Paulus, a contemporary of Ulpian, FORTE ET DURE. PAINS AND PENALTIES. See BILL OF PAINS AND PENALTIES. PAIRING-OFF. A kind of system of negative proxies, in vogue both in parliament and in legislative bodies in this country, whereby a member agrees with a member on the opposite side, that they shall both be absent from voting during a given time, or upon a particular question. Said to have originated in the house of commons in Cromwell's time. See May's Parl. Prac. PAIS, PAYS. A French word, signify. ing country. In law, matter in pais is matter of fact, in opposition to matter of record: a trial per pais is a trial by the country,-that is, by a jury. PALACE COURT. In English Law. A court which had jurisdiction of all personal actions arising between any parties within twelve miles of Whitehall, not including the city of London. It was erected in the time of Charles I., and was held by the steward of the household, the knight-marshal and steward of the stands next: these two contributed one half of the Digest. Papinian comes next. The Digest, although compiled in Constantinople, was originally written in Latin, and afterwards translated into Greek. first into fifty books, each book in several titles, The Digest is divided in two different ways: the and each title into several extracts or leges, and at the head of each series of extracts is the name of the lawyer from whose work they were taken. The first book contains twenty-two titles. The subject of the first is De Justicia et Jure, of etc. The second, divided into fifteen titles, treats the division of person and things, of magistrates, of the power of magistrates and their jurisdiction, the manner of commencing suits, of agreements and compromises. The third, composed of six titles, treats of those who can and those who cannot sue, of advocates and attorneys and syndics, and of calumny. The fourth, divided into nine titles, treats of causes of restitution, of submissions and arbitrations, of minors, carriers by water, inn-keepers, and those who have the care of the property of others. In the fifth there are six titles, which treat of jurisdiction and inofficious testaments. The subject of the sixth, in which there are three titles, is actions. The seventh, in nine titles, embraces whatever concerns usufructs, personal servitudes, habitations, the uses of real estate and its appurte nances, and of the suretics required of the usu |