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The word "or," as used in a will giving By the charter of a beneficiary associaproperty to a certain person "or" his legal tion, persons whom the insured could desig. representatives, generally speaking, implies nate as beneficiaries were limited to his substitution so as to prevent a lapse. Phyfe widow, his orphan children, and other perv. Phyfe (N. Y.) 3 Bradf. Sur. 45, 52; Git sons dependent upon him, and the by-laws tings v. McDermott, 2 Mylme & K. 69, 73; of the association provided that if the inKerrigan v. Tabb (N. J.) 39 Atl. 701, 702. sured made no designation the amount

should be paid to his widow, or, if he left no A gift in a will to certain children "or" widow, to a guardian or trustee of bis minor their issue will be construed a gift to the children. The insured, at the time of making issue by way of substitution. Lee v. Welch, his designation, had a wife and two daugh39 X. E, 1112, 1113, 163 Mass. 312.

ters, and in his application for membership, The word "or," as used in a will provid- in answer to the question, “To whom will ing for the distribution of testator's property you have your death loss paid ?" answered, equally among the children, and if any of “To my heirs,” and, in a reply to a request such children, “or” any person or persons to state the relationship of any of the perwho might succeed to the interest of them, sons to whom payable, answered “Wife or should interfere with the execution of the daughters." Held, that the word “or” should will, such child or person should forfeit bis not be construed to mean "and," but that it share in the estate, implies a substitution in meant that the payment should be to bis case of the predecease of sons or daughters widow, or, if he left no widow, to his surof their surviving children. By the force of viving daughters; that hence upon his death the provision the issue of the deceased child the money was to be paid to the widow. of testator are substituted for the child, and Addison v. New England Commercial Travhis share in the estate would be distributed elers' Ass'n, 12 N. E. 407, 409, 144 Mass. 591. among such issue per stirpes. In re Paton, 18 N. E. 625, 627, 111 N Y. 480.

ORAL CONTRACT. Laws 1897. c. 21€, providing that a life insurance policy shall not be forfeited within

An oral contract is a contract which is a year after nonpayment of a premium, when partly in writing and partly oral, or none of due, unless a prescribed notice shall have which is in writing. Railway Passenger & been given to the person whose life is in- Freight Conductors' Mutual Aid & Benefit sured for the assignee of the policy," if no Ass'n v. Loomis, 32 N. E. 424, 426, 142 Ill. tice of the assignment has been given to the 560 (citing Bish. Cont. $ 163); Snow v. Nelcorporation, is to be construed, not as giv. son (U. S.) 113 Fed. 353, 357. “It occurs ing the company option to give the notice to where an incomplete writing, or one expresseither the insured or the assignee, or requiring only a part of what is meant, is by oral ing notice to both; the statute must, accord- words rounded into the full contract; or Ing to an established rule of construction, be where there is first a written contract, and construed with a view to its object; that is, afterward it is changed orally.” Snow v. to require notice to be given to the person in Nelson (U. 8.) 113 Fed. 353, 357. interest for his protection, i. e., to the insured, unless he has assigned the policy, in ORAL EXAMINATION. which case the assignee is the person in interest. Strauss v. Union Cent. Life Ins. An oral examination is an examination Co., 67 N. Y. Supp. 509, 510, 33 Misc. Rep. in presence of the jury or tribunal which is

to decide the fact or act upon it, the testiIn construing a will by which testator mony being heard by the jury or tribunal left certain property to her daughter "or" to from the lips of the witness. Code Civ. Proc. her children then living, the court said: “ "To Cal. 1903, & 2005; Ann. $t. Ind. T. 1899, § ber “or” her children' necessarily excludes 2028; Gen. St. Kan. 1901, § 4791; Rev. Codes the one or the other. The disjunctive or N. D. 1899, $ 5668; Rev. St. Okl. 1903, & bas unusual force and significance, and can

4530; Ann. Codes & St. Or. 1901, § 817. not be converted into 'and, but upon clear eridence that the testator's intention re- ORAL TESTIMONY. quires it." Sawyer v. Baldwin, 37 Mass. (20 Pick.) 378, 385.

Oral testimony is that delivered from the "Or," as used in a bequest to persons

lips of the witness. Bates' Ann. St. Ohio, "or” their heirs, is a word of substitution. 1904, $ 5262; Rev. St. Wyo. 1899, $ 3704. Bartine v. Davis, 46 Atl. 577, 578, 60 N. J. Eq. 202 (citing Congreve v. Palmer, 16 Beav. ORANGE LEAD. 435); Reifrv. Strite, 54 Md. 298, 304; O'Rourke v. Beard, 23 N. E. 576, 151 Mass. Orange or red lead is made by roasting 9; McCormick v. Burke (N. Y.) 2 Dem. Sur. dry white lead in a furnace, and exposing it 137, 139; Girdlestone v. Doe, 2 Sim. 225, 226. to the air which is admitted into the heated


receptacle. By this process the white lead settled firmly. United States v. Smith, 4 N. loses a portion of its carbonic acid, and ab- J. Law (1 South.) 33, 38. sorbs oxygen from the air. Orange or red lead is used by paper stainers, manufactur

To “ordain,” according to the etymology ers of wall paper, and for highly colored and general use of the term, signifies to apcards. Meyer v. Arthur, 91 U. S. 570, 571, 23 point, to institute, to clothe with authority. L. Ed. 455.

When the word is applied to a clergyman, it means that he has been invested with min

isterial functions or sacerdotal power. Kibbe ORCHARD.

V. Antram, 4 Conn. 134, 139. The term "orchard” signifies an inclos

As used in a will by which the testa tor ure or assemblage of fruit or nut-bearing devised all his property to bis wife for life, trees, and would not be applicable to land and after her death to the Roman Catholic planted to mulberry trees. Attorney Gen- Church, under the following “ordination," eral v. Judges, 38 Cal. 291, 295.

that in each year after the death of himself

and wife a high mass should be celebrated “Orchard," as used in Gen. St. c. 94, art. for their souls respectively, and a part of 1, $ 19, providing that no road shall be open the estate should be used in aiding poor stued through any "orchard” without the own. dents intending to become Catholic priests. er's consent, means a collection of fruit trees and a part to establish a Catholic newspaper, set out for the use of the farm, or for any the word “ordination" had no specific legal other purpose, the number of trees being meaning, and did not create a trust, but the immaterial. Nischen v. Hawes (Ky.) 21 S. intention must have been that the church W. 1049.

should take absolutely, trusting to its gratAn old field in which, forty years ago, do something for the students named, and

itude and generosity to say the masses, and there was an orchard, but nearly all the trees in which are dead, not more than six something towards esta blishing the newsor eight being living, none of which bear any paper. Ruppel v. Schlegel, 7 N. Y. Supp. 936. fruit, is not an "orchard,” within the mean

937, 55 Hun, 183. ing of a statute providing that "no road shall be ordered to be opened through any orchard

of a minister. without the consent of the owner." Wilson "Ordination," is the putting a man into v. Creekmore (Ky.) 27 S. W. 809.

bis place and office in the church, whereunto he had a right before by election, being like

the installation of a magistrate in the comORCHITIS.

monwealth, which is therefore not to go be

fore, but to follow, election. Baker v. Fales, Orchitis is inflammation of the secret- 16 Mass. 487, 512. ing structure of the testicle. It occurs sometimes spontaneously in an acute way. It is When the word "ordain," which, accordapt to result from local injury. The pain in ing to its etymology and general use, signiorchitis is intense, and often of a peculiar, fies to appoint, to institute, to clothe with sickening character. A chill may precede authority, is applied to a clergyman, it means its outbreak. The natural terminations are that he has been invested with ministerial in resolution, atrophy, or abscess. The first functions or sacerdotal power. "Ordination," two occur in the spontaneous variety of or properly speaking, is restrained to the inveschitis, and in that seen with mumps. Ab- titure of authority. In a state where the scess is not often seen except after local person ordained is invested with spiritual violence. See The Wanderer (U. S.) 20 Fed. authority, and at the same time receives the 140, 142 (citing Wood, Household Practice).

charge of a particular church and congregation, it is not wonderful that all the rights

of the clergyman, on the visible exercise of ORDAIN-ORDINATION.

which he contemporaneously enters, should The terms “make," "ordain," "consti- be inaccurately referred to his ordination, tute,” “establish,” and “pass," as used with but in reality they are derived from different relation to a grant of legislative authority sources. His authority to preach the Gospel to a municipal corporation to enact ordi- and celebrate its ordinances results from the nances, mean the same thing. Kepner v.

ordination of the clergy, but the right to Commonwealth, 40 Pa. (4 Wright) 124, 129.

perform his ministerial functions in a par

ticular church depends on compact, and im“Ordain and establish," as used in the plies the assent of the persons over whom Constitution, providing that the Judicial pow. they are exercised. Hence it follows that er shall be vested in the Supreme Court and the ordination of a clergyman remains after such inferior courts as Congress may from his separation from a church of which be time to time "ordain and establish," means once had the charge, and his spiritual auinstituted; formed; modeled; set in office; thority continues, although he is not settled

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over a particular congregation. Kibbe v. "Ordained," as used in the statute which Antram, 4 Conn. 134, 139.

provides that “every ordained minister of the

gospel in the county where he is settled or ORDAINED MINISTER.

hath his permanent residence, and in no other

place, shall be and is hereby authorized and The term "ordained minister in Rev. empowered to solemnize marriages,” means St $ 6386, authorizing the licensing, to sol. ordained in conformity to the customs of any emnize marriages, of any ordained minister denomination of Christians who demean of any religious sect or society, has no re themselves quietly as good subjects of the gard to any particular form of administering state. Town of Londonderry v. Town of the rite or any special form of ceremony. Chester, 2 N. H. 268, 271, 9 Am. Dec. 61. The moment an attempt is made to limit or restrict ordination to some special form of tion of marriage by an ordained minister of

Code, f 1812, authorizing the solemnizaceremony we begin to discriminate between

any denomination includes a colored preachthe diverse modes and forms of ordination er who is the elder of the Colored M. E. practiced by the various religious societies. Church, it appearing from the Book of DisThe laws of Ohio make no discrimination in cipline that such elders are always ordained. any respect between Catholic or Protestant, State v. Parker, 11 S. E. 517, 518, 106 N. C. Greek, Gentile, Jewish, or any other religious

711. societies or denominations; much less do they attempt to prescribe any mode or form A statute authorizing the solemnization of ministerial ordination, which is defined in of marriage by "stated and ordained ministhe Standard Dictionary as “the act or rite ters of the gospel" should be construed to of admitting and setting apart to the Christ- include a person ordained as minister of the ian ministry or to holy orders, especially in gospel according to the form observed in Bapthe Roman Catholic, Anglican, and Greek tist churches, and afterwards engaged by churches; consecration to the ministry by two public societies, in the town where he the laying on of hands of a bishop or bish- lives, to preach to them alternately. Comops; in other churches, consecration by a monwealth v. Spooner, 18 Mass. (1 Pick.) 235. presbytery, synod, or council of ministers." It has been the practice of this court, there

ORDER. fore, to grant the license to authorize the solemnization of marriages to duly commis

See "General Order"; "Good Order and sioned officers in the Salvation Army who

Condition"; "In Order to"; "Perfect were engaged under such authority in min- Order"; "Shipping Order"; "Sound istering in religious affairs to all Protestant

Order." ministers, Catholic priests, Jewish rabbis, teachers and ministers of spiritualistic phi. Rev. St. pp. 573, 605, which provide that losophy, and in fact all persons who can prove where, in a will, lands are ordered to be to the satisfaction of the court that they sold by the executors in case of the death have been duly appointed or recognized in or removal of one, the power shall be exe the manner required by the regulations of cuted by the remaining executor, includes a their respective denominations, and are de power of sale in a will which declared that voting themselves generally to the work of the testator's wish was that the executors officiating and ministering in the religious should sell the land when they deemed it interest and affairs of such societies or bod- advisable, since the word "ordered” is not ies. The term includes an ordained minister to be restrained to the signification of perof the Disciples of Christ. In re Reinhart, emptory command, but comprehends the wid9 Ohio S. & C. P. Dec. 441, 445.

er meaning of the word "authorized.” Wei-
"Ordained minister," within the meaning

mar v. Fath, 43 N. J. Law (14 Vroom) 1, 3, 7.
of the statute exempting ordained ministers "Ordered," as used in Code Civ. Proc.
from certain taxes, is to be construed as $ 1705, providing that, when any publication
meaning a minister who is ordained over is ordered, the judge or court may order a
some particular society, either incorporated publication for a less number of times than
or unincorporated, which is entitled to his each issue of the paper, means "required."
services and obligated to him for his support In re Cunningham's Estate, 15 Pac. 136, 137,
in some form or other. The term does not 73 Cal. 558.
include a minister who is merely authorized
to preach. Ruggles v. Kimball, 12 Mass. 337, Cong. Feb. 28, 1795, which provides that the

AD "order," within the meaning of Act

President may issue an order for the pur"Ordained ministers," within the mean- pose of calling out the militia, is a mandaing of Act Dec. 19, 1803, exempting ordained tory act of the president, who is commander ministers from taxation, does not include an in chief of the militia of the United States, ordained minister not settled over a corpo- to officers of the militia, for the purpose of rate society. Kidder v. French (N. H.) Smith, calling forth the militia. Mills v. Martin 155, 156,

(N. Y.) 19 Johns. 7, 26,

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A will executed in the usual form is not by any notary public shall be evidence of the an order such as is required by a stipulation facts stated in such protest, was meant to inof a contract of life insurance, which makes clude a class of instruments not comprised the insurance payable to a person therein under the preceding term of "bill of exdesignated unless a different payee is ap change," and would therefore include other pointed by an order acknowledged before a than written orders or requests by one person justice of the peace. Mellows v. Mellows, 61 to another for the payment of money at a N. H. 137.

specified time, absolutely and at all events.

Dakin v. Graves, 48 N. H. 45, 47. As the pablio peaco.

As commonly understood, an order is “Order,” as used in a New York statute something in the nature of a bill payable in entitled “An act to preserve the public peace money or something else, but in a more exand order on Sunday,” means proper state tensive sense it includes a direction or re or condition, or established or settled mode quest to pay over money or other things upon of proceeding, and is practically synonymous the credit of the drawer, although to be carwith “public peace,” which means that quiet, ried by the payee as the mere servant of the order, and freedom from agitation or disturb- drawer to him, or to be applied to his use. ance guarantied by the laws. Neuendorf v. State v. Nevins, 23 Vt. 519, 521. Duryea (N. Y.) 6 Daly, 276, 280.

An instrument, otherwise negotiable in Ordinance distinguished.

form, payable to a person named, but with See “Ordinance."

the words added "or to his order" or “to bearer," or words equivalent thereto, is in

the former case payable to the written order ORDER (In Commercial Law).

of such person, and in the latter case payable See "County Order”; “Money Order”;

to the bearer. Civ. Code Idaho 1901, § 2867. “To the Order of"; "Town Order." All orders, see “All."

Bills of exchange distinguished.

An order for the payment of a certain Pen. Code (7th Div.) $ 1, enacting that, sum in merchandise is not a bill of exIf any person falsely makes an order for mon- change. “It does not come within the proey or goods or other thing of value with in- visions of the law merchant, and none of its tent to defraud, he shall be punished, means doctrines can apply to it. It is too well set. a mere request, and nothing more. We send tled to need the citation of authority that it orders to tradesmen by our children, serv- is essential to a bill of exchange that it ants, and neighbors, and through the mails should be drawn for money, and all drafts for merchandise, without supposing that we or orders drawn for other commodities operpossess the power to compel their compli- ate only as an authority to receive the conance. The "order" in the statute does not tents, and the holders of them are not bound mean one imparting a right on the part of to apply either the speed or the formalities the person who is supposed to have it made, required in conducting a bill of exchange, and a duty on the part of the person on whom and, when they sue, must resort to the orig. it is made. Hoskins v. State, 11 Ga. 92, 102. inal cause of action.” Coyle's Ex’rs v. Sat

terwhite's Adm'r, 20 Ky. (4 T. B. Mon.) 124; An order is a brief note, resembling a

Auerbach v. Pritchett, 58 Ala. 451, 457. single bill of exchange, requesting the payment of money or the delivery of personalty Orders are not put upon the footing of to the bearer of the note. Carr v. Summer- bills of exchange, but differ from bills and field, 34 S. E. 804, 812, 47 W. Va. 155.

notes in that they are not negotiable, and The word "order" in bill of exchange

are only prima facie evidence of a debt, of

themselves not sufficient to sustain a recovhas a positive, fixed meaning, and means an order indorsed on or accompanying the bill. ery without proving a consideration. It is

not an extinguishment of a precedent de Buckner v. Real Estate Bank, 5 ark. 536, 41 mand, and, if an action be brought on the Am. Dec. 105.

original liability, evidence of the demand, An "order for money" has a well-under- / protest, and notice is not necessary. Johnson stood meaning, and usually contains a re V. Warden, 1 Tenn, Cas. 670, 671. quest or direction to a third party, who is indebted to the maker of the order, to pay of exchange. An order for the payment of

An order payable in lumber is not a bill such money to the person named. People v.

a certain sum in chattels does not legally Smith, 112 Mich. 192, 70 N. W. 466, 67 Am. St. Rep. 392; Leslie v. State, 69 Pac, 2, 3, the payee shall obtain the chattels, nor that

import an undertaking by the drawer that 10 Wyo. 10.

the drawer will be answerable to him for the The word "order,” as used in Rev. St. value of them on the drawee's refusal to acc. 14, § 3, enacting that the protest of any cept or pay the order. The law and incibill of exchange, note, or order duly certified dents of a bill of exchange do not attach to

such an instrument Sears v. Lawrence, 81, of legacies from an executor, to be held in Nass. (15 Gray) 267, 269; Hyland v. Blod- trust, which such person agreed to retain ungett, 9 Or. 166, 167, 42 Am. Rep. 799. til the legatees should become of full age,

and to pay the same, with interest, to them, Check,

by an order from the executor, did not mean The word "orders," as used in Act IIL a written instrument, but any express direcNov. 5, 1849, § 2, providing that “all actions tion for such payment Treat v. Stanton, 14 founded upon

* bills of exchange, Conn. 445. orders," etc., shall be cominenced within five years after the cause of action shall have ac

As rendering instrument negotiable. crued, means informal bills of exchange, and "Order" or "bearer," when used in a includes a check. Rogers v. Durant, 11 Sup. note or bill, are words of negotiability, withCt 754, 755, 140 U. S. 298, 35 L. Ed. 481. out which, or other equivalent words, the

instrument will not possess that quality; As equitable assignment.

and the use of either of these expressionsSee “Equitable Assignment."

by the drawer of a bill or the maker of a

note must be regarded as indicating his As evidence of debt.

tention that the papers should be negotiable. It has been declared by this court that, Mechanics' Bank v. Straiton, *42 N. Y. 365, by the common law, orders were not such 366; United States v. White (N. Y.) 2 Hill, 59, evidences of debt as could be sued upon, and 62, 37 Am. Dec. 374; Porter v. City of Janesthat the drawer, in the event of nonpayment, ville (U. S.) 3 Fed. 617, 619. could only be sued upon his original liability. The words "order" or "bearer,” or some Lancaster V. Arendell, 49 Tenn. (2 Heisk.) word of similar import, are essential to the 434, 439.

negotiability of a bill of exchange, but are An order is only prima facie evidence not essential to its validity as a bill. Salaof a debt, of itself not sufficient to make a

mon v. Pioneer Co-operative Co., 21 Fla. 374, recovery without proving a consideration ac

381, 58 Am. Rep. 667 (citing Daniel, Neg.

Inst. 104). cording to the principles of the common law. The giving of a bill of exchange, and mucb The terms "order" or "bearer" are conless an order, is not of itself an extinguish. venient and expressive to be used in negoment of a precedeni debt. It may eventually tiating instruments, to communicate the be so in relation to & bill of exchange by re quality of negotiability, but they are not the ceiving payments, or negligence in keeping only words that can be so used, but there it too long without presenting it, by which are some equivalent words which will anmeans the holder makes it his own; and swer the same purpose. Whitney Nat. Bank this way be the case with an order where it | v. Cannon, 27 South. 948, 950, 52 La. Ann. appears the drawer had funds in the bands 1484. of the drawee, and, owing to the negligence of the payee for a long time, the money was

So commonly are the terms “or order

and “or bearer" employed in commercial inlost. Harwell V. McCullock, 2 Tenn. (2 Overt.) 275, 277.

struments that we are apt to suppose them

essential to negotiability. It is otherwise. As good order.

Words are but the signs; thought is chiefly

valuable. "Order" or "bearer" are conven"Order," as used in a contract to canvass ient and expressive, but clearly not the only for subscriptions or orders for serial public words that will communicate the quality of cations, and for the payment of a certain negotiability. Raymond v. Middleton, 29 Pa.. sum of money for each and every order ob- (ö Casey), 529, 530. tained, means good orders. Newhall v. Appleton, 9 N. Y. Supp. 306, 57 N. Y. Super. Particular instruments. Ct (25 Jones & S.) 343.

The following written request: "Mr.

Campbell, please give John Kepper $10.00. As instrument in writing.

Frank Neff" --is an "order for the payment "Order," as used in Acts 1861–62 (58 of money," within Gen. St. c. 162, § 1, relatOhio Laws, 7), providing that the compensa- ing to the crime of forgery, though the pertion of the auditor is “to be paid out of the son to whom it is addressed is not indebted county treasury on the order of the county to the drawer or bound to comply with the commissioners," means a written order, the request. Commonwealth v. Kepper, 114 original or an authenticated copy of which Mass. 278, 280. will constitute a warrant and a voucher to the treasurer for the money paid in pursu' following terms: “Mr. Davis, pleas let the

A forged instrument of writing in the ance of it. Cricket v. State, 18 Ohio St. 9, 23.

B. W. Earl"-isboy have 6 dolers for me.

an "order for the payment of money," with"Order,” as contained in a writing ac in the statute relating to forgery. Evans v. knowledging the receipt by a third person State, 8 Ohio St. 196, 199, 70 Am. Dec. 98.

6 WDS. & P.-10

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