The word "or," as used in a will giving property to a certain person "or" his legal representatives, generally speaking, implies substitution so as to prevent a lapse. Phyfe v. Phyfe (N. Y.) 3 Bradf. Sur. 45, 52; Gittings v. McDermott, 2 Mylme & K. 69, 73; Kerrigan v. Tabb (N. J.) 39 Atl. 701, 702. A gift in a will to certain children "or" their issue will be construed a gift to the issue by way of substitution. Lee v. Welch, 39 N. E. 1112, 1113, 163 Mass. 312. The word "or," as used in a will providing for the distribution of testator's property equally among the children, and if any of such children, "or" any person or persons who might succeed to the interest of them, should interfere with the execution of the will, such child or person should forfeit his share in the estate, implies a substitution in case of the predecease of sons or daughters of their surviving children. By the force of the provision the issue of the deceased child of testator are substituted for the child, and his share in the estate would be distributed among such issue per stirpes. In re Paton, 18 N. E. 625, 627, 111 N Y. 480. By the charter of a beneficiary association, persons whom the insured could designate as beneficiaries were limited to his widow, his orphan children, and other persons dependent upon him, and the by-laws of the association provided that if the insured made no designation the amount should be paid to his widow, or, if he left no widow, to a guardian or trustee of his minor children. The insured, at the time of making his designation, had a wife and two daughters, and in his application for membership, in answer to the question, "To whom will you have your death loss paid?" answered, "To my heirs," and, in a reply to a request to state the relationship of any of the persons to whom payable, answered "Wife or daughters." Held, that the word "or" should not be construed to mean "and," but that it meant that the payment should be to his widow, or, if he left no widow, to his surviving daughters; that hence upon his death the money was to be paid to the widow. Addison v. New England Commercial Travelers' Ass'n, 12 N. E. 407, 409, 144 Mass. 591. ORAL CONTRACT. An oral contract is a contract which is "It occurs Laws 1897. c. 218, providing that a life Insurance policy shall not be forfeited within 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 'or' the assignee of the policy," if noAss'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. 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." to require notice to be given to the person in Nelson (U. S.) 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. Co., 67 N. Y. Supp. 509, 510, 33 Misc. Rep. 333. In construing a will by which testator left certain property to her daughter "or" to her children then living, the court said: ""To her "or" her children' necessarily excludes the one or the other. The disjunctive or has unusual force and significance, and cannot be converted into 'and,' but upon clear evidence that the testator's intention requires it." Sawyer v. Baldwin, 37 Mass. (20 Pick.) 378, 385. "Or," as used in a bequest to persons "or" their heirs, is a word of substitution. Bartine v. Davis, 46 Atl. 577, 578, 60 N. J. Eq. 202 (citing Congreve v. Palmer, 16 Beav. 435); Reiff v. Strite, 54 Md. 298, 304; O'Rourke v. Beard, 23 N. E. 576, 151 Mass. 9; McCormick v. Burke (N. Y.) 2 Dem. Sur. 137, 139; Girdlestone v. Doe, 2 Sim. 225, 226. Snow v. An oral examination is an examination in presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness. Code Civ. Proc. Cal. 1903, § 2005; Ann. St. Ind. T. 1899, § 2028; Gen. St. Kan. 1901, § 4791; Rev. Codes N. D. 1899, § 5668; Rev. St. Okl. 1903, § 4530; Ann. Codes & St. Or. 1901, § 817. ORAL TESTIMONY. Oral testimony is that delivered from the 1904, § 5262; Rev. St. Wyo. 1899, § 3704. Bates' Ann. St. Ohio, lips of the witness. ORANGE LEAD. Orange or red lead is made by roasting dry white lead in a furnace, and exposing it to the air which is admitted into the heated receptacle. By this process the white lead loses a portion of its carbonic acid, and absorbs oxygen from the air. Orange or red lead is used by paper stainers, manufacturers of wall paper, and for highly colored cards. Meyer v. Arthur, 91 U. S. 570, 571, 23 L. Ed. 455. ORCHARD. The term "orchard" signifies an inclosure or assemblage of fruit or nut-bearing trees, and would not be applicable to land planted to mulberry trees. Attorney General v. Judges, 38 Cal. 291, 295. "Orchard," as used in Gen. St. c. 94, art. 1, § 19, providing that no road shall be opened through any “orchard" without the owner's consent, means a collection of fruit trees set out for the use of the farm, or for any other purpose, the number of trees being immaterial. Nischen v. Hawes (Ky.) 21 S. W. 1049. An old field in which, forty years ago, there was an orchard, but nearly all the trees in which are dead, not more than six or eight being living, none of which bear any fruit, is not an "orchard," within the meaning of a statute providing that "no road shall be ordered to be opened through any orchard without the consent of the owner." v. Creekmore (Ky.) 27 S. W. 809. ORCHITIS. Wilson Orchitis is inflammation of the secreting structure of the testicle. It occurs sometimes spontaneously in an acute way. It is apt to result from local injury. The pain in orchitis is intense, and often of a peculiar, sickening character. A chill may precede its outbreak. The natural terminations are in resolution, atrophy, or abscess. The first two occur in the spontaneous variety of orchitis, and in that seen with mumps. Abscess is not often seen except after local violence. See The Wanderer (U. S.) 20 Fed. 140, 142 (citing Wood, Household Practice). ORDAIN-ORDINATION. The terms "make," "ordain," "constitute," "establish," and "pass," as used with relation to a grant of legislative authority to a municipal corporation to enact ordinances, mean the same thing. Kepner v. Commonwealth, 40 Pa. (4 Wright) 124, 129. "Ordain and establish," as used in the Constitution, providing that the judicial power shall be vested in the Supreme Court and such inferior courts as Congress may from time to time "ordain and establish," means instituted; formed; modeled; set in office; settled firmly. United States v. Smith, 4 N. J. Law (1 South.) 33, 38. To “ordain," according to the etymology and general use of the term, signifies to appoint, to institute, to clothe with authority. When the word is applied to a clergyman, it means that he has been invested with ministerial functions or sacerdotal power. Kibbe v. Antram, 4 Conn. 134, 139. As used in a will by which the testator devised all his property to his wife for life, and after her death to the Roman Catholic Church, under the following "ordination," that in each year after the death of himself and wife a high mass should be celebrated for their souls respectively, and a part of the estate should be used in aiding poor students intending to become Catholic priests. and a part to establish a Catholic newspaper, the word "ordination" had no specific legal meaning, and did not create a trust, but the intention must have been that the church should take absolutely, trusting to its gratdo something for the students named, and itude and generosity to say the masses, and something towards establishing the newspaper. Ruppel v. Schlegel, 7 N. Y. Supp. 936, 937, 55 Hun, 183. Of a minister. "Ordination," is the putting a man into his place and office in the church, whereunto he had a right before by election, being like the installation of a magistrate in the commonwealth, which is therefore not to go before, but to follow, election. Baker v. Fales, 16 Mass. 487, 512. When the word "ordain," which, according to its etymology and general use, signifies to appoint, to institute, to clothe with authority, is applied to a clergyman, it means that he has been invested with ministerial functions or sacerdotal power. "Ordination," properly speaking, is restrained to the investiture of authority. In a state where the person ordained is invested with spiritual authority, and at the same time receives the charge of a particular church and congregation, it is not wonderful that all the rights of the clergyman, on the visible exercise of which he contemporaneously enters, should be inaccurately referred to his ordination, but in reality they are derived from different sources. His authority to preach the Gospel and celebrate its ordinances results from the ordination of the clergy, but the right to perform his ministerial functions in a particular church depends on compact, and implies the assent of the persons over whom they are exercised. Hence it follows that the ordination of a clergyman remains after his separation from a church of which he once had the charge, and his spiritual authority continues, although he is not settled ORDAINED MINISTER over a particular congregation. Antram, 4 Conn. 134, 139. ORDAINED MINISTER. 5017 Kibbe v. The term "ordained minister" in Rev. St. 6386, authorizing the licensing, to solemnize marriages, of any ordained minister of any religious sect or society, has no regard to any particular form of administering the rite or any special form of ceremony. The moment an attempt is made to limit or restrict ordination to some special form of ceremony we begin to discriminate between the diverse modes and forms of ordination practiced by the various religious societies. The laws of Ohio make no discrimination in any respect between Catholic or Protestant, Greek, Gentile, Jewish, or any other religious societies or denominations; much less do they attempt to prescribe any mode or form of ministerial ordination, which is defined in the Standard Dictionary as "the act or rite of admitting and setting apart to the Christian ministry or to holy orders, especially in the Roman Catholic, Anglican, and Greek churches; consecration to the ministry by the laying on of hands of a bishop or bishops; in other churches, consecration by a presbytery, synod, or council of ministers." It has been the practice of this court, therefore, to grant the license to authorize the solemnization of marriages to duly commissioned officers in the Salvation Army who were engaged under such authority in ministering in religious affairs to all Protestant ministers, Catholic priests, Jewish rabbis, teachers and ministers of spiritualistic philosophy, and in fact all persons who can prove to the satisfaction of the court that they have been duly appointed or recognized in the manner required by the regulations of their respective denominations, and are devoting themselves generally to the work of officiating and ministering in the religious interest and affairs of such societies or bodles. The term includes an ordained minister In re Reinhart, of the Disciples of Christ. "Ordained," as used in the statute which Code, 1812, authorizing the solemnization of marriage by an ordained minister of any denomination includes a colored preacher who is the elder of the Colored M. E. Church, it appearing from the Book of Discipline that such elders are always ordained. State v. Parker, 11 S. E. 517, 518, 106 N. C. 711. A statute authorizing the solemnization of marriage by "stated and ordained ministers of the gospel" should be construed to include a person ordained as minister of the gospel according to the form observed in Baptist churches, and afterwards engaged by two public societies, in the town where he lives, to preach to them alternately. Commonwealth v. Spooner, 18 Mass. (1 Pick.) 235. ORDER. See "General Order"; "Good Order and Rev. St. pp. 573, 605, which provide that where, in a will, lands are ordered to be sold by the executors in case of the death or removal of one, the power shall be executed by the remaining executor, includes a power of sale in a will which declared that the testator's wish was that the executors should sell the land when they deemed it advisable, since the word "ordered" is not to be restrained to the signification of peremptory command, but comprehends the wider meaning of the word "authorized." Weimar v. Fath, 43 N. J. Law (14 Vroom) 1, 3, 7. "Ordained minister," within the meaning "Ordered," as used in Code Civ. Proc. of the statute exempting ordained ministers 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 or unincorporated, which is entitled to his services and obligated to him for his support in some form or other. The term does not include a minister who is merely authorized to preach. Ruggles v. Kimball, 12 Mass. 337, 9 Ohio S. & C. P. Dec. 441, 445. 338. "Ordained ministers," within the meaning of Act Dec. 19, 1803, exempting ordained ministers from taxation, does not include an ordained minister not settled over a corporate society. Kidder v. French (N. H.) Smith, 155, 156, publication for a less number of times than each issue of the paper, means "required." In re Cunningham's Estate, 15 Pac. 136, 137, 73 Cal. 558. An "order," within the meaning of Act Cong. Feb. 28, 1795, which provides that the A will executed in the usual form is not an order such as is required by a stipulation of a contract of life insurance, which makes the insurance payable to a person therein designated unless a different payee is appointed by an order acknowledged before a justice of the peace. Mellows v. Mellows, 61 N. H. 137. As the public peace. "Order," as used in a New York statute entitled "An act to preserve the public peace and order on Sunday," means proper state or condition, or established or settled mode of proceeding, and is practically synonymous with "public peace," which means that quiet, order, and freedom from agitation or disturbance guarantied by the laws. Neuendorff v. Duryea (N. Y.) 6 Daly, 276, 280. Ordinance distinguished. ORDER (In Commercial Law). See "County Order"; "Money Order"; Pen. Code (7th Div.) § 1, enacting that, if any person falsely makes an order for money or goods or other thing of value with intent to defraud, he shall be punished, means a mere request, and nothing more. We send orders to tradesmen by our children, servants, and neighbors, and through the mails for merchandise, without supposing that we possess the power to compel their compliance. The "order" in the statute does not mean one imparting a right on the part of the person who is supposed to have it made, and a duty on the part of the person on whom it is made. Hoskins v. State, 11 Ga. 92, 102. An order is a brief note, resembling a single bill of exchange, requesting the payment of money or the delivery of personalty to the bearer of the note. Carr v. Summerfield, 34 S. E. 804, 812, 47 W. Va. 155. The word "order" in a bill of exchange has a positive, fixed meaning, and means an order indorsed on or accompanying the bill. Buckner v. Real Estate Bank, 5 Ark. 536, 41 by any notary public shall be evidence of the facts stated in such protest, was meant to include a class of instruments not comprised under the preceding term of "bill of exchange," and would therefore include other than written orders or requests by one person to another for the payment of money at a specified time, absolutely and at all events. Dakin v. Graves, 48 N. H. 45, 47. As commonly understood, an order is something in the nature of a bill payable in money or something else, but in a more extensive sense it includes a direction or request to pay over money or other things upon the credit of the drawer, although to be carried by the payee as the mere servant of the drawer to him, or to be applied to his use. State v. Nevins, 23 Vt. 519, 521. An instrument, otherwise negotiable in form, payable to a person named, but with the words added "or to his order" or "to bearer," or words equivalent thereto, is in the former case payable to the written order of such person, and in the latter case payable to the bearer. Civ. Code Idaho 1901, § 2867. Bills of exchange distinguished. An order for the payment of a certain sum in merchandise is not a bill of exchange. "It does not come within the provisions of the law merchant, and none of its doctrines can apply to it. It is too well settled to need the citation of authority that it is essential to a bill of exchange that it should be drawn for money, and all drafts or orders drawn for other commodities operate only as an authority to receive the contents, and the holders of them are not bound to apply either the speed or the formalities required in conducting a bill of exchange, and, when they sue, must resort to the original cause of action." Coyle's Ex'rs v. Satterwhite's Adm'r, 20 Ky. (4 T. B. Mon.) 124; Auerbach v. Pritchett, 58 Ala. 451, 457. Orders are not put upon the footing of bills of exchange, but differ from bills and notes in that they are not negotiable, and themselves not sufficient to sustain a recovare only prima facie evidence of a debt, of not an extinguishment of a precedent de ery without proving a consideration. It is mand, and, if an action be brought on the 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 such money to the person named. People v. Am. Dec. 105. Smith, 112 Mich. 192, 70 N. W. 466, 67 Am. 10 Wyo. 10. The word "order," as used in Rev. St. c. 14, § 3, enacting that the protest of any bill of exchange, note, or order duly certified of exchange. An order for the payment of An order payable in lumber is not a bill a certain sum in chattels does not legally import an undertaking by the drawer that the payee shall obtain the chattels, nor that the drawer will be answerable to him for the value of them on the drawee's refusal to accept or pay the order. The law and incidents of a bill of exchange do not attach to such an instrument. Sears v. Lawrence, 81 Mass. (15 Gray) 267, 269; Hyland v. Blodgett, 9 Or. 166, 167, 42 Am. Rep. 799. Check. The word "orders," as used in Act Ill. Nov. 5, 1849, § 2, providing that "all actions founded upon # * bills of exchange, orders," etc., shall be cominenced within five years after the cause of action shall have accrued, means informal bills of exchange, and includes a check. Rogers v. Durant, 11 Sup. Ct. 754, 755, 140 U. S. 298, 35 L. Ed. 481. As equitable assignment. As evidence of debt. It has been declared by this court that, by the common law, orders were not such evidences of debt as could be sued upon, and that the drawer, in the event of nonpayment, could only be sued upon his original liability. Lancaster v. Arendell, 49 Tenn. (2 Heisk.) 434, 439. An order is only prima facie evidence of a debt, of itself not sufficient to make a recovery without proving a consideration according to the principles of the common law. The giving of a bil' of exchange, and much less an order, is not of itself an extinguishment of a precedeni debt. It may eventually be so in relation to a bill of exchange by re ceiving payments, or negligence in keeping it too long without presenting it, by which mears the holder makes it his own; and this may be the case with an order where it appears the drawer had funds in the hands of the drawee, and, owing to the negligence of the payee for a long time, the money was lost. Harwell v. McCullock, 2 Tenn. Overt.) 275, 277. As good order. of legacies from an executor, to be held in trust, which such person agreed to retain until the legatees should become of full age, and to pay the same, with interest, to them, by an order from the executor, did not mean a written instrument, but any express direction for such payment. Treat v. Stanton, 14 Conn. 445. As rendering instrument negotiable. "Order" or "bearer," when used in a note or bill, are words of negotiability, without which, or other equivalent words, the instrument will not possess that quality; and the use of either of these expressionsby the drawer of a bill or the maker of a note must be regarded as indicating his intention that the papers should be negotiable. Mechanics' Bank v. Straiton, *42 N. Y. 365, 366; United States v. White (N. Y.) 2 Hill, 59, 62, 37 Am. Dec. 374; Porter v. City of Janesville (U. S.) 3 Fed. 617, 619. The words "order" or "bearer," or some word of similar import, are essential to the negotiability of a bill of exchange, but are not essential to its validity as a bill. Sala381, 58 Am. Rep. 667 (citing Daniel, Neg. mon v. Pioneer Co-operative Co., 21 Fla. 374, Inst. 104). The terms "order" or "bearer" are convenient and expressive to be used in negotiating instruments, to communicate the quality of negotiability, but they are not the only words that can be so used, but there are some equivalent words which will answer the same purpose. Whitney Nat. Bank v. Cannon, 27 South. 948, 950, 52 La. Ann. 1484. So commonly are the terms "or order” and "or bearer" employed in commercial in(2 struments that we are apt to suppose them essential to negotiability. It is otherwise. Words are but the signs; thought is chiefly valuable. "Order" or "bearer" are convenient and expressive, but clearly not the only words that will communicate the quality of negotiability. Raymond v. Middleton, 29 Pa.. (5 Casey), 529, 530. "Order," as used in a contract to canvass for subscriptions or orders for serial publications, and for the payment of a certain sum of money for each and every order obtained, means good orders. Newhall v. Appleton, 9 N. Y. Supp. 306, 57 N. Y. Super. Ct. (25 Jones & S.) 343. As instrument in writing. "Order," as used in Acts 1861-62 (58 Ohio Laws, 7), providing that the compensation of the auditor is "to be paid out of the county treasury on the order of the county commissioners," means a written order, the original or an authenticated copy of which will constitute a warrant and a voucher to the treasurer for the money paid in pursuance of it. Cricket v. State, 18 Ohio St. 9, 23. "Order," as contained in a writing ac knowledging the receipt by a third person 6 WDS. & P.-10 Particular instruments. The following written request: "Mr.. Campbell, please give John Kepper $10.00. Frank Neff"--is an "order for the payment of money," within Gen. St. c. 162, § 1, relating to the crime of forgery, though the person to whom it is addressed is not indebted to the drawer or bound to comply with the request. Commonwealth v. Kepper, 114 Mass. 278, 280. following terms: "Mr. Davis, pleas let the A forged instrument of writing in the boy have 6 dolers for me. B. W. Earl"-is an "order for the payment of money," within the statute relating to forgery. Evans v. State, 8 Ohio St. 196, 199, 70 Am. Dec. 98. |