OBSOLETE. This term is applied to those laws which have lost their efficacy, without being repealed,
2. A positive statute, unrepealed, can never be repealed by non-user alone. 4 Yeates, Rep. 181; Id. 215; 1 Browne's Rep. Appx. 28; 13 Serg. & Rawle, 447. The disuse of a law is at most only presumptive evidence that society has consented to such a repeal; however this presumption may operate on an unwritten law, it cannot in general act upon one which remains as a legislative act on the statute book, because no presumption can set aside a certainty. A written law may indeed become obsolete when the object to which it was intended to apply, or the occasion for which it was enacted, no longer exists. 1 P. A. Browne's R. App. 28. "It must be a very strong case," says Chief Justice Tilghman, "to justify the court in deciding, that an act standing on the statute book, unrepealed, is obsolete and invalid. I will not say that such case may not exist-where there has been a non-user for a great number of years-where, from a change of times and manners, an ancient sleeping statute would do great mischief, if suddenly brought into action-where a long, practice inconsistent with it has prevailed, and, specially, where from other and latter statutes it might be inferred that in the apprehension of the legislature, the old one was not in force." 13 Serg. & Rawle, 452; Rutherf. Inst. B. 2, c. 6, s. 19; Merl. Repert. mot Desuetude.
OBSTRUCTING PROCESS. crim. law. The act by which one or more persons attempt to prevent, or do prevent, the execution of lawful process.
2. The officer must be prevented by actual violence, or by threatened violence, accompanied by the exercise of force, or by those having capacity to employ it, by which the officer is prevented from executing his writ; the officer is not required, to expose his person by a personal conflict with the offender. 2 Wash. C. C. R. 169. See 3 Wash. C. C. R. 335.
3. This is in offence against public justice of a very high and presumptuous nature; and more particularly so where the obstruction is of an arrest upon criminal process: a person opposing an arrest upon criminal process becomes thereby particeps criminis; that is, an accessary in felony, and a principal in high treason. 4 Bl. Com. 128; 2 Hawk. c. 17, s. 1; l. Russ. on Cr. 360: vide Ing. Dig. 159; 2 Gallis. Rep. 15; 2 Chit. Criminal Law, 145, note a.
OCCUPANCY. The taking possession of those things corporeal which are without an owner, with an intention of appropriating them to one's own use. Pothier defines it to be the title by which one acquires property in a thing which belongs to nobody, by taking possession of it, with design of acquiring. Tr. du Dr. de Propriete n. 20. The Civil Code of Lo. art. 3375, nearly following Pothier, defines occupancy to be "a mode of acquiring property by which a thing, which belongs to nobody, becomes the property of the person who took possession of it, with an intention of acquiring a right of ownership in it."
2. To constitute occupancy there must be a taking of a thing corporeal, belonging to nobody with an intention of becoming the owner of it.
3. - 1. The taking must be such as the nature of the time requires; if, for example, two persons were walking on the sea-shore, and one of them should perceive a precious stone, and say he claimed it as his own, he would, acquire no property in it by occupancy, if the other seized it first.
4. - 2. The thing must be susceptible of being possessed; an incorporeal right, therefore, as an annuity, could not be claimed by occupancy.
5. - 3. The thing taken must belong to nobody; for if it were in the possession of another the taking would be larceny, and if it had been lost and not abandoned, the taker would have only a qualified property in it, and would hold the possession for the owner.
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 a pew, and the like, a person who occupies a part of such house, however small, is entitled to some right, and cannot be deprived of it. 2 B. & A. 164; S. C. Eng. C. L. R. 50; 1 Chit. Pr. 209, 210; 4 Com. Dig. 64; 5 Com. Dig. 199.
OCCUPATION. Use or tenure; as, the house is in the occupation of A B. A trade, business or mystery; as the occupation of a printer. Occupancy. (q. v.)
2. In another sense occupation signifies a putting out of a man's freehold in time of war. Co. Litt. s. 412. See Dependeney; Posession.
OCCUPAVIT. The name of a writ, which lies to recover the possession of lands, when they have been taken from the possession of the owner by occupation. (q. v.) 3 Tho. Co. Litt. 41.
OCCUPIER. One who is in the enjoyment of a thing.
2. He may be the occupier by virtue of a lawful contract, either express or implied, or without any contract. The occupier is, in general, bound to make the necessary repairs to premises he occupies the cleansing and repairing of drains and sewers, therefore, is prima facie the duty of him who occupies the premises. 3 Q. B. R. 449; S. C. 43 Eng. C. L. R. 814.
OCHLOCRACY. A government where the authority is in the hands of the multi- tude; the abuse of a democracy. Vaumene, Dict. du Language Politique.
ODHALL RIGHT. The same as allodial.
OF COURSE. That which may be done, in the course of legal proceedings, without making any application to the court; that which is granted by the court without further inquiry, upon its being asked; as, a rule to plead is a matter of course.
OFFENCE, crimes. The doing that which a penal law forbids to be done, or omitting to do what it commands; in this sense it is nearly synonymous with crime. (q. v.) In a more confined sense, it may be considered as having the same meaning with misdemeanor, (q.v.) but it differs from it in this, that it is not indictable, but punishable summarily by the forfeiture of a penalty. 1 Chit. Prac. 14.
OFFER, contracts. A proposition to do a thing.
2. An offer ought to contain a right, if accepted, of compelling the fulfilment of the contract, and this right when not expressed, is always implied.
3. By virtue of his natural liberty, a man may change his will at any time, if it is not to the injury of another; he may, therefore, revoke or recall his offers, at any time before they have been accepted; and, in order to deprive him of this right, the offer must have been accepted on the terms in which it was made. 10 Ves. 438; 2 C. & P. 553.
4. Any qualification of, or departure from those terms, invalidates the offer, unless the same be agreed to by the party who made it. 4 Wheat. R. 225; 3 John. R. 534; 7 John. 470; 6 Wend. 103.
5. When the offer has been made, the party is presumed to be willing to enter into the contract for the time limited, and, if the time be not fixed by the offer, then until it be expressly revoked, or rendered nugatory by a contrary presumption. 6 Wend. 103. See 8 S. & R. 243; 1 Pick. 278; 10 Pick. 326; 12 John. 190; 9 Porter, 605; 1 Bell's Com. 326, 5th ed.; Poth. Vente, n. 32; 1 Bouv. Inst. n. 577, et seq.; and see Acceptance of contracts; Assent; Bid.
OFFICE. An office is a right to exercise a public function or employment, and to take the fees and emoluments belonging to it,. Shelf. on Mortm. 797; Cruise, Dig. Index, h. t.; 3 Serg. & R. 149.
2. Offices may be classed into civil and military.
3. - 1. Civil offices may be classed into political, judicial, and ministerial.
4. - 1. The political offices are such as are not connected immediately with the administration of justice, or the execution of the mandates of a superior officer; the office of the president of the United States, of the heads of departments, of the members of the legislature, are of this number.
5. - 2. The judicial offices are those which relate to the administration of justice, and which must be exercised by persons of sufficient skill and experience in the duties which appertain to them.
6. - 3. Ministerial offices are those which give the officer no power to judge of the matter to be done, and require him to obey the mandates of a superior. 7 Mass. 280. See 5 Wend. 170; 10 Wend. 514; 8 Verm. 512; Breese, 280. It is a general rule, that a judicial office cannot be exercised by deputy, while a ministerial may.
7. In the United, States, the tenure of office never extends beyond good behaviour. In England, offices are public or private. The former affect the people generally, the latter are such as concern particular districts, belonging to private individuals. In the United States, all offices, according to the above definition, are public; but in another sense, employments of a private nature are also called offices; for example, the office of president of a bank, the office of director of a corporation. For the incompatibility of office, see Incompatibility; 4 S. & R. 277; 4 Inst. 100; Com. Dig. h. t., B. 7; and vide, generally, 3 Kent, Com. 362; Cruise, Dig. tit. 25; Ham. N. P. 283; 16 Vin. Ab. 101; Ayliffe's Parerg. 395; Poth. Traite des Choses, 2; Amer. Dig. h. t.; 17 S. & R. 219.
8. - 2. Military offices consist of such as are granted to soldiers or naval officers.
9. The room in which the business of an officer is transacted is also called an office, as the land office. Vide Officer.
OFFICE BOOK, evidence. A book kept in a public office, not appertaining to a court, authorized by the law of any state.
2. An exemplification, (q. v.) of any such office book, when authenticated under the act of congress of 27th March, 1804, Ingers' Dig. 77, is to have such faith and credit, given to it in every court and office within the United States, as such exemplification has by law or usage in the courts or offices of the state from whence the same has been taken.
OFFICE COPY. A transcript of a record or proceeding filed in an office established by law, certified under the seal of the proper officer.
OFFICE FOUND, Eng. law. When an inquisition is made to the king's use of anything, by virtue of office of him who inquires, and the inquisition is found, it is said to be office found.
OFFICE, INQUEST OF. An examination into a matter by an officer in virtue of his office. Vide Inquisition.
OFFICER. He who is lawfully invested with an office.
2. Officers may be classed into, 1. Executive; as the president of the United States of America, the several governors of the different states. Their duties are pointed out in the national constitution, and the constitutions of the several states, but they are required mainly to cause the laws to be executed and obeyed.
3. - 2. The legislative; such as members of congress; and of the several state legislatures. These officers are confined in their duties by the constitution, generally to make laws, though sometimes in cases of impeachment, one of the houses of the legislature exercises judicial functions, somewhat similar to those of a grand jury by presenting to the other articles of impeachment; and the other house acts as a court in trying such impeachments. The legislatures have, besides the power to inquire into the conduct of their members, judge of their elections, and the like.
4. - 3. Judicial officers; whose duties are to decide controversies between individuals, and accusations made in the name of the public against persons charged with a violation of the law.
5. - 4. Ministerial officers, or those whose duty it is to execute the mandates, lawfully issued, of their superiors.
6. - 5. Military officers, who have commands in the army; and
7. - 6. Naval officers, who are in command in the navy.
8. Officers are required to exercise the functions which belong to their respective offices. The neglect to do so, may, in some cases, subject the offender to an indictment; 1 Yeates, R. 519; and in others, he will be liable to the party injured. 1 Yeates, R. 506.
9. Officers are also divided into public officers and those who are not public. Some officers may bear both characters; for example, a clergyman is a public officer when he acts in the performance of such a public duty as the marriage of two individuals; 4 Conn. 209; and he is merely a private person when he acts in his more ordinary calling of teaching his congregation. See 4 Conn. 134; 1 Apple. 155.
OFFICIAL, civil and canon laws. In the ancient civil law, the person who was the minister of, or attendant upon a magistrate, was called the official.
2. In the canon law, the person to whom the bishop generally commits the charge of his spiritual jurisdiction, bears this name. Wood's Inst. 30, 505; Merl. Repert. h. t.
OFFICINA JUSTITIAE, Eng. law. The chancery is so called, because all writs issue from it, under the great seal returnable into the courts of common law.
OFFICIO, EX. By virtue of one's office. Vide Ex officio; 3 Bl. Com. 447.