« SebelumnyaLanjutkan »
who received materials from the shop of the The term "operator,” as used in the insolvent, and took them to his own shop, chapter relating to mines and mining, means and there manufactured such materials into any firm, corporation, or individual operating boots at certain agreed prices, and delivered any coal mine or part thereof. P. & L. Dig. the manufactured articles to the debtor. 'Laws Pa. 1894, vol. 2, col. 3150, $ 349; P. & Thayer v. Mann, 56 Mass. (2 Cush.) 371, 373. L. Dig. Laws Pa. 1897, vol. 4, col. 1249, $
33. A blacksmith who follows an independent calling, shoeing horses, sharpening plows, The term "owners and operators," as etc., for others, is not an operative. In re used in the act relating to mines and mining. Assignment of Lowry, 7 Ohio Dec. 282, 284. means any person or body corporate who is
the immediate proprietor or lessee or occuOPERATIVE WORDS.
pier of any coal mine or colliery, or any part
thereof. The term "owner" does not include The operative words of a release, accord- a person or body corporate who merely reing to Littleton (section 455), are “remise, ceives a royalty, rent, or fine from a coal release, and quitclaim,” to which Lord Coke mine or colliery, or part thereof, or is mere bas added “renounce and acquit," intimating ly the proprietor of the mine, subject to any at the same time that some others may have lease, grant, or license for the working or the same effect, as where the lessor grants operating thereof, or is merely the owner of to the lessee for life, that he shall be dis- the soil, and not interested in the minerals charged of the rent. Agnew v. Door (Pa.) of the mine, or any part thereof.
But any 5 Whart. 131, 136, 34 Am. Dec. 539 (citing contractor for the working of a mine or col1 Co. Inst. 754).
liery, or any part or district thereof, shall
be subject to this act, as an operator or ownOPERATOR.
er, in like manner as if he were the owner.
P. & L. Dig. Laws Pa. 1894, vol. 2, col. 3110, The term "owner, lessee, or operators $ 193. of passenger terminals, and the person or company operating the same," in Laws 1899,
OPINION. c. 4700, $ 6, relating to the power of railroad commissioners to compel admission into cer
See "Disqualifying Opinion"; "Fixed tain passenger terminals of railroad compa
Opinion.” nies desired or required by the commission
Unqualified opinion, see “Unqualified.” ers to enter, and to fixing reasonable rates, etc., for the use and privileges conferred, “Opinion," as used in Rev. Laws, 88 2975, cannot be limited to corporations only, but 2976, providing that if commissioners apalso includes associations and individuals. pointed for the apportionment of expenses State v. Jacksonville Terminal Co., 27 South. in repairing a highway and bridge among the 221, 237, 41 Fla. 363.
towns to be benefited, before an examinaThe term “laborer,” in Act April 11, town would be excessively burdened by de
tion is made, shall be of the opinion that a 1849, $ 10, incorporating a steamship, and fraying all the expenses, they should give providing that the stock holders shall be in- notices, etc., is not a conclusive opinion or dividually liable for all debts due and owing judgment, but is simply a preliminary opinto their laborers and operators, does not in- ion to which they have arrived on an ex clude the consulting engineer. “If we should parte examination, and upon which they are attempt to define the plaintiff in reference to to notify the towns they deem especially benthe services he rendered, we should scarcely efited of a time and place for the hearing in describe him as a laborer or an operator. the premises. Town of Weybridge v. Town The services of plaintiff were very like those of Addison, 57 Vt. 569, 574. rendered by the lawyer. Each may involve some manual labor, but that is the incident The opinion which a witness is not alrather than the principle of the services. lowed to give instead of a statement of fact The plaintiff, in my opinion, correctly de is defined to be an inference of fact from scribed his services as professional, as dis- observed facts. Lipscomb v. State, 23 South. tinguished from those of a laborer or oper. 210, 220, 75 Miss. 559. ator. Ericsson v. Brown (N. Y.) 38 Barb. 390_392,
As disqualifying a juror. The terms “owner," "owners,” “lessee,” and must be based, on testimony (citing
Opinion is a conviction which is based, "agent," or "operator," as used in the act relating to mines and mining, shall include and such is its use in regard to the compe
State v. Krug, 12 Wash. 288, 41 Pac. 126), the immediate proprietor, lessee, or occupier
tency of jurors. State v. Royse, 64 Pac. 742, of any coal mine, or any person having on
744, 24 Wash. 440. behalf of any owner or owners or leasee as aforesaid the care and management of any An opinion which will disqualify a juror coal mine, or any part thereof. Gen. St. Kan. in a criminal case implies a settled judgment 1901, 8 4141.
or conviction of the mind. Stout v. People
(N. Y.) 4 Parker, Cr. R. 71, 110; Greenfield is that a juror who has formed an opinion v. People (N. Y.) 6 Abb. N. C. 1, 7.
cannot be impartial. Every opinion which An opinion which will disqualify a Juror that effect. In these days of newspaper en
he may entertain need not necessarily have must be an abiding bias of mind, based upon terprise and universal education every case the substantial facts in the case, in the ex- of public interest is, as a matter of necessiistence of which he believes. State v. Mes ty, brought to the attention of the intelligent er, 3 Atl. 195, 198, 58 Vt. 457.
people in the vicinity, and scarcely any one “Opinion,” within the rule that an opin- can be found among those best fitted for ion formed and expressed by a venireman jurors who has not read or heard of it, and as to the prisoner's guilt is a ground of chal who has not some impression or opinion in lenge, means an unqualified expression of respect thereto. On the trial of the issue opinion on the point of guilt, and not a gen- of fact raised by a challenge for such cause eral expression merely. State v. Windsor the court will practically be called on to (Del.) 5 Har. 512-514.
determine whether the nature and strength
of the opinion formed are such as in law An opinion, such as to disqualify a juror, does not exist where there is a mere sug
necessary to raise the presumption of parpicion in the mind of the juror that the de- tiality. Therefore, where a petit juror in a fendant is guilty; it is only an unqualified he believed that he had formed an opinion,
criminal case testified on his voir dire that opinion that disqualifies. State V. Millain, 3 Nev. 409, 439.
though not upon evidence produced in court
as to the guilt or innocence of the prisoner, This court has often had occasion to de but that he had not expressed it and did not fine the character of the opinion that dis- think that it would influence his verdict, qualifies the juror. Whatever the answers the court properly overruled the prisoner's of the juror on bis voir dire to the questions challenge for cause. Reynolds v. United of the accused, if it appear on the juror's States, 98 U. S. 145, 155, 25 L. ED. 244. whole examination, especially by his answers to the presiding judge, that he has no Belief synonymous. fixed opinion, and can render a verdict ac
See "Belief." cording to the law and the testimony produced, he is a good juror. State v. LeDuff, 15 Impression. South. 397, 46 La. Ann. 546.
The word “opinion" means a mere imThe fixedness or strength of the exist-pression, as used in Code, $ 468, providing ing opinion is the essential test of a juror's that it shall be good cause for challenge to competency, and the court should look spe any person called as a juror in the trial of an cially to such state of mind in passing on indictment that he has formed or expressed the question of competency. “If such im- an opinion as to the guilt or innocence of pressions become fixed and ripen into decided the accused. Palmer v. People, 4 Neb. 68, opinions, they will influence a man's con- 75; Carroll v. State, 5 Neb. 31, 33. duct, and will create necessarily a prejudice for or against the party towards whom they therefore a mere impression as to the guilt
An impression is not an “opinion,” and are directed, and should disqualify him as a juror. But if, in obedience to the laws of under a statute making a formed opinion a
of defendant is not a ground of challenge his organization, his mind receives impres- ground of challenge. State v. Medlicott, 9 sions from the reports he hears, which have Kan. 257, 259. The court in the latter case not become opinions, fixed and decided, he would not be disqualified.” Olive v. State, remarking that a mental condition so indefi15 South. 925, 926, 34 Fla. 203 (citing O'Con- nite and unsettled as is usually indicated by nor v. State, 9 Fla. 215).
the term impression scarcely deserves the
name of an opinion. State v. Allen, 46 Conn. It is a good ground for a challenge for 531, 547. principal cause that a juror has formed an opinion as to the issue to be tried. The is different from a mere impression. The
An opinion as to the guilt of a defendant courts are not agreed as to the knowledge on which the opinion must rest in order to former disqualifies for jury service, while
the latter does not. Traviss V. Commonrender the juror incompetent, or whether the opinion must be accompanied by malice or
wealth, 106 Pa. 597, 605. ill will. But all unite in holding that it must On the examination of a juror in answer be founded on some evidence, and be more to the question, “Now, on the presumption than a mere impression. Some say it must that the facts were true as you read them be positive; others, that it must be decided in the paper, you formed an opinion did you and substantial; others, fixed; and still oth-not,” he answered, "Well, I think not; I ers, deliberate and settled. All concede, formed an impression." Commenting on this, however, that, if hypothetical only, the par- the court said: “The word “impression,' if tiality is not so manifest as to necessarily it can properly be applied to a mental operaset the juror aside. The theory of the law tion, does not reach the strength of an opin
lon. An opinion is a conviction which is "opinion” is used in the statute in question. based, and must be based, upon testimony. Craig v. Bennett, 62 N. E 273, 274, 158 An impression is a mere fancy or lodgment Ind. 9. in the mind, which is not based upon testimony, and the existence of which cannot Decision and judgment distinguishod. be traced to proof, and in this case the ju
There is a manifest difference between ror himself distinguished between an opinion a mere opinion and a decision; the former and an impression by insisting that he had is a statement given by the court for its connot formed an opinion, and did not entertain clusions, while the latter is the judgment or any at the time, but that it was a mere im- conclusion of the court. Coffey v. Gamble, pression." State v. Krug, 41 Pac. 126, 130, 91 N. W. 813, 814, 117 Iowa, 545. 131, 12 Wash. 288; State v. Royse, 64 Pac. 742, 744, 24 Wash. 440.
The terms "opinion” and “decision" are
sometimes used interchangeably in statutes. As the average Juror is not usually vers. The provision in section 1846 is that the prosed in the niceties of language, and frequently ecuting attorney may except to any opinion uses the word "opinion” to mean an “im- of the court and reserve a point of law for pression,” the mere statement of a juror that the decision of the Supreme Court; and in be bas formed an opinion is not sufficient section 1845 it is provided that a defendant as a ground of challenge, where it appears may take an exception to any decision of from the examination that it is a mere im- the court, so that an exception to the opinpression formed from reading newspapers. ion of the court overruling a motion for a State v. Taylor, 35 S. W. 92, 99, 134 Mo. 109. new trial is sufficient as an exception to the
decision as required by statute. Pierce v. OPINION (Of Court).
State, 10 N. E. 302, 303, 109 Ind. 535. See “Judicial Opinion"; "Written Opin An opinion of a judge, in which he states ion,"
that a bill in equity cannot be sustained, and
must be dismissed, with costs, is not a final The "opinion" of a court is the reasons decree or decretal order from which an apgiven for its judgment. Adams v. Yazoo & peal can be taken. It is merely an incomM. V. R. CO., 24 South. 317, 318, 77 Miss. 194, plete act, announcing the intention of the 60 L R. A. 33.
Judge, which he may or may not subsequentAn opinion is the view of judges in rela- ly change. Phillips v. Pearson, 27 md. 242,
253. tion to a given subject. In re Winslow's Estate, 34 N. Y. Supp. 637, 638, 12 Misc. Rep. The terms "opinions" and "decisions" 254.
are often confounded, yet there is a wide
difference between them, and, in ignorance The term “opinion,” as used in a stat of this, what has been a mere correction of ute providing that the losing party in the Ap
an opinion has been sometimes regarded as pellate Court might apply to the Supreme Court for the transfer of a cause from the a mutilation of the record. A decision of the former court to the latter, on the ground that court is its judgment; an opinion is the reathe opinion of said division of the Appellate sons given for that judgment. The former Court contravenes a ruling precedent of the is entered of record immediately on its renSupreme Court, or that a new question of dition, and only subject to change through law is directly involved and was decided er regular application through the court on a roneously, should be construed in a technical petition for a rebearing or a modification. or legal sense, and is not employed therein The latter is the property of the judges, subin the sense of or in place of the terms “de ject to their revision, correction, and modifcision" or "Judgment.” The term "opinion,” until, with the approbation of the writer, it
cation in any particular deemed advisable, in a legal sense, so far as it applies to judges is transcribed in the records. Houston v. and courts, has a well-defined meaning. In Williams, 13 Cal. 24, 27, 73 Am. Dec. 565; law, Webster's International Dictionary defines the word to mean the expression of Craig v. Bennett, 62 N. E. 273, 274, 158
Ind. 9. views of the judges, etc. Bouvier's Law Dictionary defines the word “opinion" in “The opinion of the Judge,” says the practice to be a statement of reasons deliv- court in State v. Ramsburg, 43 Md. 325, 333, ered by a judge or court for giving the judg- "is the expression of the reasons by which he ment which is pronounced upon a case. reaches his conclusions. These may be susBlack's Law Dictionary defines the term to tained or contradictory, clear or confused. mean the statement by a judge or court of The judgment or decree is the fiat or senthe decison reached in regard to a cause tried tence of the law determining the matter in or argued before them, expounding the law controversy in concise technical terms, which as applied to the case, and detailing the rea- must be interpreted in their own proper song upon which the judgment is based. In sense. It would, we think, be of dangerous the sense and meaning as above defined and tendency to make the force and effect of well understood in legal parlance, the term the most solemn official acts depend upon
the various interpretations which ingenuity to prevent and suppress opium smoking and might suggest to the most carefully consid- houses or places kept therefor. Ex parte an ered language introducing them.” In the Lit (U. S.) 26 Fed. 512, 513. case of Durant v. Essex Co., 74 U. S. (7 Wall.) 107, 19 L Ed. 154, it was said the the purpose of being smoked on or about the
Any building where opium is sold for reason for the signing of a decree “is no part
premises w the same is smoked shall be of the judgment itself.” The decree, and not the opinion, is the instrument through considered an “opium den.” Ann. Codes &
St. Or. 1901, $ 1993. which the court acts. Where an opinion, after stating that the judge has examined the case on the merits, and that he would OPPORTUNITY TO BE HEARD. dismiss the bill without regard to technicalities, continues: “But it seems to me to be "Opportunity" means a fit or convenient clear that this proceeding could not be sus time; a time or place favorable for executing tained at any rate, as, at best, it would be a purpose; a suitable occasion. In re Hause, simply a conversion of plaintiff's property, 19 N. W. 973, 974, 32 Minn. 155; In re for which she had an ample remedy at law" Brown, 39 Pac. 469, 471, 2 Okl. 590. -such language cannot qualify the decree
"Opportunity," as used in St. 1893, $ dismissing the bill, without showing the 323, providing that no attorney shall be suscause of the dismissal, so as to make it a pended until a copy of the charges bave been dismissal for want of jurisdiction. Martin delivered to bim and an opportunity shall v. Evans, 36 Atl. 258, 260, 85 Md8, 36 L bave been given to him to be heard in his R. A. 218, 60 Am. St. Rep. 292,
defense, is opposed to the idea that a fixed
and arbitrary time must be given in each OPHTHALMOSCOPE.
case which might arise, but means a time
sufficient to prepare his defense, so that an An ophthalmoscope is a practical instru- attorney need not necessarily have 20 days ment used by oculists for examining the in- in which to answer an action under all cir. terior of the eye and other parts of the body. cumstances, and 3 days will be sufficient The principle on which it works is as fol- under the circumstances. In re Brown, 39 lows: The light is reflected from a burner Pac. 469, 471, 2 Okl. 590. in front of the examiner, wbo holds this ob
"Opportunity to be heard,” as used in ject to his eye, into the eye of the patient, Gen. St. 1878, c. 49, ģ 14, providing that without penetrating the observer's eye, as where a party has not appeared in probate there is only a very small hole through wbich court he can only appeal when he bad not it can enter, and in that way protects the due notice or “opportunity to be heard," observer's eye from the direct rays of the means such opportunity as the party is enlight. It is peculiarly adapted for physi- titled to by law. The fact that the party bad cian's and oculist's work. It is an instru- no actual notice of the hearing, the published ment intended for practical use in the pro- notice not having come to his personal fession of an oculist. It is an instrument; knowledge until after the order was granted, a tool, not used for the discovery or con- does not amount to a want of opportunity to templation of natural objects for the pur- be heard. If a fit and proper time and place pose of attaining or communicating general bas been fixed, and notice thereof given, instruction, but as an instrument for carry which the law declares sufficient-in short, ing on a profession or an art. It is a phil- if all the opportunity is given which the law osophical apparatus, within the meaning of provides for it cannot be said in any legal the tariff la ws. Robertson v. Oelschlaeger, sense that a party had no opportunity to be 11 Sup. Ct 148, 149, 137 U. S. 436, 34 L. Ed. heard. It seems to us that the want of op744.
portunity to be heard, like the want of due
notice, refers only to some act or omission OPIUM.
in the proceedings which has deprived the
party of his full legal rights in the premises. Opium, as used in a life policy provid. In re Hause, 19 N. W. 973, 974, 32 Minn. 155; ing that the same should be void in case the In re Brown's Will, 21 N. W. 474, 32 Minn. insured should come to his “death by opi. 443. um,” meant, not the accidental or involuntary, but the rational and voluntary, use of OPPOSE. oplum. St. Louis Mut. Life Ins.
Co. v. Grave, 69 Ky. (6 Bush) 268, 271.
“Oppose," as used in Code, s 4476, pro
viding for the punishment of any person who OPIUM DEN OR JOINT.
shall knowingly and willfully obstruct, re
sist, or oppose any officer or person duly An "opium joint” is a house or place authorized in serving or attempting to serve kept for phe purpose of smoking opium there- or execute any lawful process, means "force." in, and this is what is meant by an ordinance The words "obstruct,” “resist,” or “oppose"
mean the same thing, and the word "oppose" who may require the plaintiff to testify. Es would cover the meaning of the words “re lava v. Mazange's Adm'r (U. S.) 8 Fed. Cas. sist or obstruct.” It does not mean to oppose | 780, 781. Under a like statute (Rice's Code. or impede the process with which the officer $ 3813d) it was held that it is not necessary ts armed, or to defeat its execution, but that that a witness shall be the “opposite party" the officer bimself shall be obstructed. Da-l on the record in a case in order to be incomvis v. State, 76 Ga. 721, 722.
petent as a witness against a personal rep
resentative, but he will be incompetent if "Opposing," as used in a statute making his interests are antagonistic to those of the a person knowingly obstructing and oppos- personal representative against whom he is ing a sheriff in selling personal property on
called. Hill v. McLean, 78 Tenn. (10 Lea) execution liable to fine and imprisonment, 107, 114; Trabue v. Turner, 57 Tenn. (10 Heisk.) includes the ordering away of bidders, giv- 1 447, 454. And under a like provision (Code, s ing notice to bidders that the title is not 2765) it was held that “opposite party” means good and that the sheriff has no right to sell, the party to the transaction whose rights and various things of that sort, or resisting would be affected by the testimony offered. an officer in the execution of the writ. State The fact that parties as to the general isv. Morrison, 27 Pac. 133, 137, 46 Kan. 679.
sues of insolvency are adversary parties does
not necessarily constitute them “opposite OPPOSING INTEREST.
parties,” in the meaning of the statute, as
to special issues which may be made and Rev. St. $ 5034, provides that at the tried. Dolap v. Dolan, 7 South. 425, 426, 89 meeting of creditors of a bankrupt for elec
Ala. 256. tion of an assignee, if no choice be made, the judge, or, if there be no “opposing interest," Pub. Acts, pp. 156, 157, provide that the register, shall appoint one or more as- "when a suit or proceeding is prosecuted or signees. By "opposing interest" is meant defended by the heirs, assigns, devisees, legnot merely an interest contending by a vote atees, or personal representatives of a defor the election of particular persons, but an ceased person, the opposite party, if exam. interest opposed to the exercise of the power ined as a witness on his own behall, shall of appointment by the register. In re Jack- not be permitted to testify at all. to matters SOD (U. S.) 13 Fed. Cas. 191, 193.
which, if true, must have been equally within the knowledge of such deceased person,
provided, that whenever the words opposite OPPOSITE.
party' occur in this section, it shall be deem
ed to include the assignors or assignees of "Opposite,” as osed in a deed describing the claim, or any part thereof in controone of the lines as ending at a point on one side of the street opposite a point on the versy.” In construing this statute, the court other side, means that a straight line be said: “It is evident that this statute is intween the two points must cross the street and not a mere nominal party who is not
tended to reach the real party in interest, at a right angle. Bradley v. Wilson, 58 Me. interested in the result of the allowance or 357, 360.
disallowance of the claim against the estate "Opposite the town," as used in Act of a deceased person except as it becomes 1870, incorporating a ferryboat company, and his duty as executor or administrator to probibiting all others from rowing or towing prosecute or defend a suit in which the esany boat, etc., for hire or reward over a cer- tate is interested. The Legislature intended tain river to or from any point “opposite the not only that the party owning the claims town" named, means that portion of the should not be permitted to testify to the river and its banks which the town would matters equally within the knowledge of the come in contact with if it were moved deceased person, but also to prevent any straight across the river. Sunbury Steam & evasion of the statute by an assignment so Tow Boat Co. v. Grant (Pa.) 15 Atl, 706, 707. as to permit the assignor to testify.” Penny
v. Croul, 49 N. W. 311, 312, 87 Mich. 15, 13
L, R. A, 83. OPPOSITE PARTY.
The words “opposite party,” in a statute In the provision of the statute that, in providing that an assignor of a chose in acactions against executors, administrators, or tion shall not be examined in favor of his guardians, neither party shall be allowed to assignee unless the opposite party be living, testify against the other as to any transac- must be intended to embrace the debtor, tion with or statement by the testator, in- otherwise they would to a great extent detestate, or ward, unless called to testify feat its evident object. White v. Heavner, thereto by the opposite party, the “opposite 7 W. Va. 324, 327. party" meant is that party against whom the evidence is sought to be used, and an inter- In a suit by an administrator of one rener whose interests are the same as that estate against the administrator of another, of the plaintiff is not an "opposite party" the administrator of either estate is not an