OBSCENITY, crim. law. Such indecency as is calculated to promote the
violation of the law, and the general corruption of morals.
2. The exhibition of an obscene picture is an indictable offence at common
law, although not charged to have been exhibited in public, if it be averred
that the picture, was exhibited to sundry persons for money. 2 Serg. &
TO OBSERVE, civil law. To perform that which has been prescribed by
some law or usage. Dig., 1, 3, 32.
OBSOLETE. This term is applied to those laws which have lost their
efficacy, without being repealed,
2. A positive statute, unrepealed, can never be repealed by non-user alone. 4
Yeates, Rep. 181; Id. 215; 1 Browne's Rep. Appx. 28; 13 Serg. & Rawle, 447.
The disuse of a law is at most only presumptive evidence that society has
consented to such a repeal; however this presumption may operate on an unwritten
law, it cannot in general act upon one which remains as a legislative act on the
statute book, because no presumption can set aside a certainty. A written law
may indeed become obsolete when the object to which it was intended to apply, or
the occasion for which it was enacted, no longer exists. 1 P. A. Browne's R.
App. 28. "It must be a very strong case," says Chief Justice Tilghman, "to
justify the court in deciding, that an act standing on the statute book,
unrepealed, is obsolete and invalid. I will not say that such case may not
exist-where there has been a non-user for a great number of years-where, from a
change of times and manners, an ancient sleeping statute would do great
mischief, if suddenly brought into action-where a long, practice inconsistent
with it has prevailed, and, specially, where from other and latter statutes it
might be inferred that in the apprehension of the legislature, the old one was
not in force." 13 Serg. & Rawle, 452; Rutherf. Inst. B. 2, c. 6, s. 19;
Merl. Repert. mot Desuetude.
OBSTRUCTING PROCESS. crim. law. The act by which one or more persons
at- tempt to prevent, or do prevent, the execution of lawful process.
2. The officer must be prevented by actual violence, or by threatened
violence, accompanied by the exercise of force, or by those having capacity to
employ it, by which the officer is prevented from executing his writ; the
officer is not required, to expose his person by a personal conflict with the
offender. 2 Wash. C. C. R. 169. See 3 Wash. C. C. R. 335.
3. This is in offence against public justice of a very high and presumptuous
nature; and more particularly so where the obstruction is of an arrest upon
criminal process: a person opposing an arrest upon criminal process becomes
thereby particeps criminis; that is, an accessary in felony, and a principal in
high treason. 4 Bl. Com. 128; 2 Hawk. c. 17, s. 1; l. Russ. on Cr. 360: vide
Ing. Dig. 159; 2 Gallis. Rep. 15; 2 Chit. Criminal Law, 145, note a.
OCCUPANCY. The taking possession of those things corporeal which are
without an owner, with an intention of appropriating them to one's own use.
Pothier defines it to be the title by which one acquires property in a thing
which belongs to nobody, by taking possession of it, with design of acquiring.
Tr. du Dr. de Propriete n. 20. The Civil Code of Lo. art. 3375, nearly following
Pothier, defines occupancy to be "a mode of acquiring property by which a thing,
which belongs to nobody, becomes the property of the person who took possession
of it, with an intention of acquiring a right of ownership in it."
2. To constitute occupancy there must be a taking of a thing corporeal,
belonging to nobody with an intention of becoming the owner of it.
3. - 1. The taking must be such as the nature of the time requires; if, for
example, two persons were walking on the sea-shore, and one of them should
perceive a precious stone, and say he claimed it as his own, he would, acquire
no property in it by occupancy, if the other seized it first.
4. - 2. The thing must be susceptible of being possessed; an incorporeal
right, therefore, as an annuity, could not be claimed by occupancy.
5. - 3. The thing taken must belong to nobody; for if it were in the
possession of another the taking would be larceny, and if it had been lost and
not abandoned, the taker would have only a qualified property in it, and would
hold the possession for the owner.
6. - 4. The taking must have been with an intention of becoming the owner; if
therefore a person non compos mentis should take such a thing he would not
acquire a property in it, because he had no intention to do so. Co. Litt. 41,
7. Among the numerous ways of acquiring property by occupancy, the following
are considered as the most usual.
8. - 1. Goods captured in war, from public enemies, were, by the common law,
adjudged to belong to the captors. Finch's law, 28; 178; 1 Wills. 211; 1 Chit.
Com. Law, 377 to 512; 2 Wooddes. 435 to 457; 2 Bl. Com. 401. But by the law of
nations such things are now considered as primarily vested in the sovereign, and
as belonging to individual captors only to the extent and under such regulations
as positive laws may prescribe. 2 Kent's Com. 290. By the policy of law, goods
belonging to an enemy are considered as not being the property of any one.
Lecon's Elem. du Dr. Rom. §348; 2 Bl. Com. 401.
9. - 2. When movables are casually lost by the owner and unreclaimed, or
designedly abandoned by him, they belong to the fortunate finder who seizes
them, by right of occupancy.
10. - 3. The benefit of the elements, the light, air, and water, can only be
appropriated by occupancy.
11. - 4. When animals ferae naturae are captured, they become the property of
the occupant while he retains the possession; for if an animal so taken should
escape, the captor loses all the property he had in it. 2 Bl. Com. 403.
12. - 5. It is by virtue of his occupancy that the owner of lands is entitled
to the emblements.
13. - 6. Property acquired by accession, is also grounded on the right of
14. - 7. Goods acquired by means of confusion may be referred to the same
15. - 8. The right of inventors of machines or of authors of literary
productions is also founded on occupancy. Vide, generally, Kent, Com. Lect. 36;
16 Vin. Ab. 69; Bac. Ab. Estate for life and occupancy; 1 Brown's Civ. Law, 234;
4 Toull. n. 4; Lecons du Droit Rom. §342, et seq.; Bouv. Inst. Index, h. t.
OCCUPANT or OCCUPIER. One who has the actual use or possession of a
2. He derives his title of occupancy either by taking possession of a thing
without an owner, or by purchase, or gift of the thing from the owner, or it
descends to him by due course of law.
3. When the occupiers of a house are entitled to a privilege in consequence
of such occupation, as to pass along a way, to enjoy a pew, and the like, a
person who occupies a part of such house, however small, is entitled to some
right, and cannot be deprived of it. 2 B. & A. 164; S. C. Eng. C. L. R. 50;
1 Chit. Pr. 209, 210; 4 Com. Dig. 64; 5 Com. Dig. 199.
OCCUPATION. Use or tenure; as, the house is in the occupation of A B.
A trade, business or mystery; as the occupation of a printer. Occupancy. (q.
2. In another sense occupation signifies a putting out of a man's freehold in
time of war. Co. Litt. s. 412. See Dependeney; Posession.
OCCUPAVIT. The name of a writ, which lies to recover the possession of
lands, when they have been taken from the possession of the owner by occupation.
(q. v.) 3 Tho. Co. Litt. 41.
OCCUPIER. One who is in the enjoyment of a thing.
2. He may be the occupier by virtue of a lawful contract, either express or
implied, or without any contract. The occupier is, in general, bound to make the
necessary repairs to premises he occupies the cleansing and repairing of drains
and sewers, therefore, is prima facie the duty of him who occupies the premises.
3 Q. B. R. 449; S. C. 43 Eng. C. L. R. 814.
OCHLOCRACY. A government where the authority is in the hands of the
multi- tude; the abuse of a democracy. Vaumene, Dict. du Language Politique.
ODHALL RIGHT. The same as allodial.
OF COURSE. That which may be done, in the course of legal proceedings,
without making any application to the court; that which is granted by the court
without further inquiry, upon its being asked; as, a rule to plead is a matter
OFFENCE, crimes. The doing that which a penal law forbids to be done,
or omitting to do what it commands; in this sense it is nearly synonymous with
crime. (q. v.) In a more confined sense, it may be considered as having the same
meaning with misdemeanor, (q.v.) but it differs from it in this, that it is not
indictable, but punishable summarily by the forfeiture of a penalty. 1 Chit.