A New Law Dictionary and Institute of the Whole Law

ORDEAL-continued.

cium Dei, and sometimes by vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. It was of two kinds: fire ordeal and water ordeal; the former being confined to persons of rank, the latter to the common people. Fire ordeal was performed either by taking up in the hand a piece of red-hot iron of one, two, or three pounds' weight, or else by walking barefoot and blindfold over nine red-hot ploughshares laid lengthwise, at unequal distances, and if the party escaped unhurt he was adjudged innocent, if otherwise, he was condemned as guilty. Water ordeal was performed either by plunging the bare arm up to the elbow in boiling water, or by casting the suspected person into a river or pond of cold water; and if in the former instance his arm was unburnt, or if in the latter instance he floated without any effort to swim, it was deemed evidence of his innocence; if otherwise, of his guilt. The ordeal was abolished in the reign of Henry III., when the more rational process of trying the guilt or innocence of an accused person by means of evidence laid before the jury was substituted for it.

See title JURY, TRIAL BY.

ORDERS OF THE DAY. Any member of the House of Commons who wishes to propose any question, or to "move the House," as it is termed, must, in order to give the House due notice of his intention, state the form or nature of his motion on a previous day, and have it entered in a book termed the order book; and the motions so entered, the House arranges, shall be considered on particular days, and such motions or matters, when the day arrives for their being considered, are then termed the "orders of the day." May on Parl.

ORDINANCE OF PARLIAMENT. Sir Edward Coke says that an ordinance of Parliament is to be distinguished from an Act of Parliament, inasmuch as the latter can be only made by the king and a threefold consent of the State, whereas the former may be ordained by one or two of them. At the time that the right of the Commons to participate in legislation was yet only in growth a distinction was taken, for the first time, in the reign of Edward III. between ordinances and statutes, the former being experimental Acts passed for a time only, and, as it were, on trial, and which might afterwards be, and often were, converted into statutes, i.e., permanent Acts, or else might be continued for a time, or discharged altogether.

ORDINARY.

In the Civil Law signi

fies any judge who has authority to take cognizance of causes in his own right, and not by deputation. But in the Common Law it signifies the bishop of a diocese, though more frequently a commissary or official of the bishop or other ecclesiastical judge who has judicial authority within his jurisdiction.

ORDINARY OF NEWGATE. A divine who is appointed to attend the condemned criminals in that prison to prepare them for death, &c.

ORIGINAL WRIT. An original writ was the process formerly in use for the commencement of personal actions. It was a mandatory letter from the king, issuing out of Chancery, sealed with the great seal, and directed to the sheriff of the county wherein the injury was committed, or was supposed to have been committed, requiring him to command the wrongdoer or accused party either to do justice to the plaintiff, or else to appear in Court and answer the accusation against him. This writ is now disused, the writ of summons being the process prescribed by the Uniformity of Process Act for commencing personal actions; and under the Judicature Act, 1873, all suits, even in the Court of Chancery, are to be commenced by such writs of summons.

ORPHANAGE PART. That portion of an intestate's effects which his children are entitled to by the custom of London. This custom appears to be a remnant of what was once a general law all over England, namely, that a father should not by his will bequeath the entirety of his personal estate away from his family, but should leave them a third part at least, called the children's part, corresponding to the "bairns' part" or legitim of Scotch Law, and also (although not in amount) to the legitima quarta of Roman Law. Just. ii. 18.

OUSTED (from the Fr. ouster, to put out). To be removed or put out; thus, ouster of the freehold signifies being put out of possession of the freehold; ousted of an estate for years, signifies being turned out from the occupation of the land during the continuance of the term.

OUSTER LE MAIN (to remove the hand). When the male heir arrived at the age of twenty-one, or the heir female at the age of sixteen, they might sue out their livery of ouster le main; that is, the delivery of their lands out of their guardians' hands. See also title LIVERY.

OUT OF COURT. He who has no legal

OUT OF COURT-continued. status in Court is said to be "out of Court," ie., he is not before the Court. Thus, when the plaintiff in an action, by some act of omission or commission, shews that he is unable to maintain his action, he is frequently said to put himself "out of Court." Sometimes a person who is out of Court is said to have no locus standi.

OUTER BAR. Barristers at law are divided into two classes, viz. queen's counsel, who are admitted within the bar of the Courts, in seats specially reserved for themselves; and junior counsel, who sit without the bar; and the latter are thence frequently termed barristers of the "outer bar," or "utter bar," in contradistinction to the former class.

See also title UTTER BARRISTERS.
OUTLAWRY.

The process of putting

a man out of the protection of the law, so that he is incapable of bringing any action for redress of injuries; and it is also attended with a forfeiture of the party's goods and chattels, a consequence which is in no way affected by the Forfeiture for Felony and Treason Abolition Act, 1870 (33 & 34 Vict. c. 23). OUTSTANDING

TERM.

TERMS: See title

OUVERTURE DES SUCCESSIONS. French Law denotes the right of succession which arises to one upon the death, whether natural or civil, of another. Such successor must not be either as yet unconceived, or a child non viable, or one civilly dead; and he must also be clear of certain moral delinquencies, for which see Code Civil, 727. Bastards have no rights of succession; but in case their parent leaves legitimate offspring, they have one-third of the goods which, as a legitimate child, they would have received; and if the parent leaves no legitimate offspring, but ascendants or collaterals (being brothers or sisters), then one-half; and if the parent leaves neither legitimate offspring nor ascendants nor collaterals (being brothers or sisters), then three-fourths: and in case of a total failure of inheritable relations, then the whole. The widow surviving takes the succession where the parent leaves no inheritable relations or bastards, and failing her, the state.

OVERT (Fr. open, &c.) Thus an overt act signifies an open or manifest act, such as can be manifestly proved.

In charges of treason it is necessary in order to a conviction to substantiate either one overt act by at least two witnesses, or two overt acts of the same character by one witness apiece.

See title TREASON.

OYER (to hear). This word, says Dr. Cowel, seems formerly to have signified what our word assize does now, sed quære, as to oyer of deeds, and oyer and terminer. See the two following titles.

OYER OF DEEDS AND RECORDS. Hearing of deeds and records. Thus, when either party in an action alleges any deed, he is in general obliged to make profort of such deed; that is, to produce it in Court simultaneously with the pleading in which it is alleged. When oral pleading was in practice, the deed was actually produced in Court; but afterwards profert consisted merely of a formal allegation that the party shewed the deed in Court, it being, in fact, retained in his own custody. When profert was thus made by one of the parties, the other, before he pleaded in answer, was entitled to demand oyer, that is, to hear it read; and this, either for the purpose of enabling him to ascertain the genuineness of the alleged deed, or of founding on some part of its contents (not set forth by the adverse party), some matter of answer. Oyer of records was of the same nature, being a demand to hear any record read which had been alleged in the pleading of the opposite party. By the Common Law Procedure Act, 1852, s. 55, it shall not be necessary to make profert of any deed or other document mentioned or relied on in any pleading: and if profert shall be made, it shall not entitle the opposite party to crave oyer of, or set out upon oyer such deed or other document. But this provision affects the form of pleading only, and not also the rules of evidence, or the modes of proving any deed or other document.

OYER AND TERMINER (from the Fr. ouïr, to hear, and terminer, to determine). A commission of oyer and terminer is a commission under the king's great seal, directed to certain persons, among whom two Common Law judges are usually appointed, empowering them to hear and determine treasons, felonies, robberies, murders, and criminal offences in general. See title JUSTICES OF OYER AND TER

MINER.

O, YES. It is said to be a corruption of the French oyez, i.e., hear ye; and is sometimes used in Courts by the public crier, to command attention when a proclamation is going to be made.

PAINE, FORT ET DURE (Fr., punishment, strong and severe). A special punishment for those who, being arraigned

PAINE, FORT ET DURE—continued. for felony, refused to put themselves upon the ordinary trial of God and the country, and were, therefore, considered as mute in the interpretation of the law. This punishment was vulgarly called pressing to death.

See also title MUTE.

PAIRING OFF. Members of the House of Commons cannot vote upon any question unless they are themselves present when the question is put. When, therefore, a member wishes to absent himself from the House, and at the same time is anxious not to diminish the strength of his party by the loss of his vote during his absence, he seeks out some member of the opposite party who is also anxious to absent himself, and by mutual agreement the two (or pair" of) members arrange to be absent at the same time, the effect of which, of course, is, that on all questions which occur during their absence, a vote is neutralised on each side; and thus the relative numbers on any given division are precisely the same as if both members were present. This system is known by the name of "pairs," and members acting under this arrangement are thence said to "pair off" upon any question in which a division of the House takes place during their absence.

PAIS (Fr. country). A trial per pais signifies a trial by the country, or, as it is more commonly called, by jury. An assurance by matter in pais is an assurance transacted between two or more private persons in pais (in the country), i.e., upon the very spot to be transferred. Matter in pais seems to signify matter of fact, probably so called because matters of fact are triable by the country, i.e., estoppels in pais are estoppels by conduct, as distinguished from estoppels by deed or by record.

See title ESTOPPELS.

PALACES, ROYAL. The privilege of palace is attached to any place which is de facto the sovereign's residence. Hampton Court Palace was formerly a royal residence, but has not been personally occupied by the sovereign since 10 Geo. 2. The state departments have for many years past been used as a picture gallery, open, within certain hours, to the public gratuitously; the other apartments are occupied partly by officers of the palace, partly and chiefly by private persons, by the permission and at the pleasure of the Crown. The palace is under the control of a housekeeper of the Crown, who (the housekeeper) has apartments in the palace. A writ of fi. fu. having been executed in one of the suites of apartments occupied by private

PALACES, ROYAL-continued.

persons, an information of intrusion was filed against the sheriffs and their officers in a case of Att.-Gen. v. Dakin and Others (L. R. 2 Ex. 290). It was held, per Curiam, that actual personal residence of the sovereign at the time is not necessary to confer the privilege, if there is no intention to resume residence.

PANDECTS. The books of the Civil Law compiled by Justinian are so called. The word literally translated means a universal collection or compilation of passages, and denotes the universality of the subjects treated of in the Corpus Juris Civilis; whereas the word Digest, which in England is the more common of the two words, means a methodical arrangement, and denotes the method or order which is so perfectly observed in the arrangement of the same compilation.

PANEL. The slip of parchment on which the sheriff returns the name of the jurors to serve on a jury, is so called. See also title IMPANEL

PANIER.

Is an attendant or domestic, who waits at table and gives bread (panis), wine, and other necessary things to those who are dining. The phrase was in familiar use amongst the Knights Templars, and from them has been handed down to the learned societies of the Inner and Middle Temples, who at the present day occupy the halls and buildings once belonging to that distinguished order, and who have retained a few of their customs and phrases. "From the time of Chaucer to the present day, the lawyers have dined together in the ancient hall, as the military monks did before them, and the rule of their order requiring two and two to eat together, and all the fragments to be given in brotherly charity to the domestics, is observed to this day, and has been so from time immemorial. The attendants at table, moreover, are still called 'paniers,' as in the days of the Knights Templars." Addison's Knights Templars.

PANNAGE, or PAWNAGE. Words used by our law writers to signify the money which the agistors of the forest collect for the feeding of swine within the forest, and sometimes it is used for the food itself. Les Termes de la Ley.

PARAMOUNT (from the French par and monter). The supreme lord of a fee, in contradistinction to the mesne lord, who held of some superior under certain services (F. N. B. 135; Cowel). The sovereign is the universal lord paramount, of whom all lands are held in England.

See title FEUDAL TENURES.

PARAPHERNALIA (from the Greek Tapá, besides, and pepvý, dower, i.e., something to which the wife is entitled over and above her dower). Under the term " paraphernalia" are included such apparel and ornaments of the wife as are suitable to her condition in life. Thus, pearls and jewels, usually or sometimes worn by the wife, although articles of mere ornament, have been held to fall within the term paraphernala, as in the case of Mangey v. Hungerford (2 Eq. C. Ab. 156), where the widow claimed and obtained her gold watch and several gold rings as paraphernalia, which had been given to her at the funerals of relations.

PARAPHERNAUX, BIENS. In French Law all the wife's property which is not subject to the régime dotal (see that title) is called by this name; and of these the wife has the entire administration; but she may allow the husband to enjoy them, and in that case he is not liable to account. Compare English Law, PIN-MONEY; SEPARATE ESTATE; PARAPHERNALIA.

PARAVAIL (from the French par and avayler). Tenant paravail signified the lowest tenant of land, being the tenant of a mesne lord; he was so called because he was supposed to make avail or profit of the land for another. Cowel; 2 Bl. 60.

PARCENARY. The holding of lands jointly by parceners or coparceners. See title COPARCENERS.

PARCENERS: See title COPARCENERS.

PARDON. The Crown, in exercise of its prerogative of mercy, may pardon after conviction either of treason or of felony. But such pardon may not be given in anticipation of a conviction, and so as to be pleaded in defence to a prosecution (see title DANBY, IMPEACHMENT OF). The pardon relates of course only to the particular conviction for which it is given. Reg. v. Harrod, 2 C. & K. 294.

PARENT AND CHILD: See titles INFANTS; SEDUCTION.

PARK (parcus). The word commonly signifies an inclosure; but to constitute a legal park, or rather a park in the eye of the law, it must have been made so by the king's grant, or at least by immemorial prescription. Les Termes de la Ley.

See titles CHASE; WARREN.

PARLIAMENT Its division into two Houses. The year assigned by Carte for this division is 17 Edward 3, and that is the most probable date. But Hallam argues for a much earlier date; and he instauces 11 Edward 1 as a year in

PARLIAMENT―continued.

which the Houses were divided; the Commons and Spiritual Peers having in that year sat at Acton Burnell, while the Temporal Peers sat at Shrewsbury. It appears, however, that the separation in 11 Edward 1, was due to a special cause, that is to say, the temporal peers in their sitting at Shrewsbury were trying David Prince of Wales (otherwise called Llewellyn), on a charge of treason; and upon such a trial the Spiritual Peers, and à fortiori the Commons, were not entitled to be present. The other instances which Hallam puts forward might possibly be explained in like manner upon their special circumstances; and therefore any such occasional separations must not be suffered to impugn the authority of Carte, or the correctness of the date which he assigns. But, in fact, an earlier separation of Lords and Commons was not needed; for the Commons, even when they met under the same roof as the Lords always sat apart from the Lords in the lower end of the hall, and not then assuming to discharge any duties beyond the grant of money or supplies, there was no urgent reason in early times why they should sit in a separate house.

PARLIAMENTARY AGENTS. Persons who act as solicitors in promoting and carrying private bills through Parliament. They are usually attorneys or solicitors, but who do not usually confine their practice to this particular department.

PARLIAMENTARY TAXES. Such taxes as are imposed directly by Act of Parliament, i. e., by the Legislature itself, as distinguished from those which are imposed by private individuals or bodies under the authority of an Act of Parliament. Thus, a sewers rate, not being imposed directly by Act of Parliament, but by certain persons termed commissioners of sewers, is not a parliamentary tax; whereas the income tax, which is directly imposed, and the amount also fixed, by Act of Parliament, is a parliamentary

tax.

See title TAXATION.

PAROL (Fr., signifying word, speech, &c.). This word signifies verbal, in contradiction to that which is written. Thus, a parol agreement signifies an agreement by word of mouth, in contradistinction to a written agreement. The pleadings in an action are also, in our old law French, denominated the parol, because they were formerly actual vivá roce pleadings in Court, and not mere written allegations as at present. A remuant of this latter use of the word occurs in the phrase, "the parol shall not demur" (as to which, see

PAROL-continued.

next title). Parol evidence is also the phrase commonly used to denote extrinsic evidence, i. e., evidence outside of the written document which it is used to explain.

See title EXTRINSIC EVIDENCE.

PAROL DEMURRER. A plea to stop or stay the pleadings in an action. In many real actions brought by or against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the non-age of the infant, and pray that the proceedings may be deferred till his full age or (in our legal phrase) that the infant may have his age, and that "the parol inay demur," that is, that the pleadings may be stayed; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby. This plea of parol demurrer was abolished by the stat. 11 Geo. 4 & 1 Will. 4, c, 47, as to proceedings under that statute, being chiefly decrees for the sale of real estate to pay debts. But since the Trustee Act, 1850, and Trustee Extension Act, 1852, a resort to the last-mentioned statute is seldom necessary.

PARSON (persona), in its legal acceptation, signifies the rector of a parochial church. He is called parson, persona, because, by his person, the church, which is an invisible body, is represented. Co. Litt. 300 a, s 528.

PARSON IMPARSONEE. When a clerk is not only presented, but instituted and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law persona impersonata, or parson impersonée. Co. Litt. 300.

PARTAGE. This is, in French Law, the partition of English Law, and is demandable as of right.

PARTICULAR ESTATE. A limited legal interest or property in lands or tenements, as distinguished from the absolute property or fee simple therein, is usually so termed; and he who holds or enjoys such a limited interest therein is thence sometimes called the particular tenant. Thus, if A. has the absolute property or feesimple in certain lands, and he demises them to B. for a term of seven years, or life, the legal interest which B. would thus acquire therein would be called the particular estate with reference to A.'s estate in fee-simple; i. e., it would be a particle or portion carved or cut out of A.'s feesimple.

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