:

be the form of affirmation :—“ I, A. B., do solemnly, sincerely, and truly declare and affirm "-next the words of the oath prescribed by law, omitting any words of imprecation or calling to witness. By sec. 3 the validity of an oath, once duly administered and taken, is not affected by the fact that the taker had no religious belief.-Note that this statute does not provide for the case of a person who, having a religious belief, states that it does not affect the obligation of an oath on his conscience: it would seem that such a person could not legally affirm.

Witnesses before Parliamentary Committees, or at the bar of the House, may be sworn (or affirm) in the ordinary way (34 & 35 Vict. c. 83).

[Authorities.-Anson, work cited above; May's Parliamentary Practice, 10th ed.]

Obiter dictum.-Obiter dictum is an expression of opinion (formed) by a judge on a question immaterial to the ratio decidendi, and unnecessary for the decision of the particular case. It is in no way binding on any Court, but may receive attention as being an opinion of high authority. Mr. Justice Willes declared that he should give no obiter opinion about personal property or stock-in-trade being liable to be rated" (R. v. Canterbury, 1769, 4 Burr. 2294).

Oblations.-See OFFERINGS.

Obligation.-See JURISPRUDENCE.

Obscene Words and Libels.-The Court of Star Chamber originally claimed jurisdiction to punish persons who offended against good order and morality by any obscene and vicious acts. committed in public. After the abolition of the Star Chamber, the Court of King's Bench assumed a similar power to act as custos morum (see Sir Charles Sedley's Case, 1663, 1 Keb. 620; 1 Sid. 168). At first this jurisdiction was very doubtful. When a man called Read was indicted for publishing an obscene libel, Holt, C.J., expressed a strong opinion that such a publication was a purely ecclesiastical offence not punishable in the temporal Courts (Read's Case, 1708, Fortes. 98; 11 Mod. 142). But afterwards, in R. v. Curl, 1727, 1 Barnard. 29; 2 Stra. 788, the Court of King's Bench decided that such a book was "punishable at common law, as an offence against the peace, intending to weaken the bonds of civil society, virtue, or morality." And now the law is clear. To publish any obscene or immoral books or pictures is a misdemeanour, punishable at common law on indictment or information with fine and imprisonment with or without hard labour (R. v. Wilkes, 1770, 4 Burr. 2527; R. v. Hicklin, 1868, L. R. 3 Q. B. 360, 371). To obtain and procure obscene books or pictures for the purpose of uttering and selling them is also a misdemeanour, indictable at common law (Dugdale v. R., 1853, 1 El. & Bl. 425; 22 L. J. M. C. 50; but see R. v. Rosenstein, 1826, 2 Car. & P. 414). Both these offences are triable at Quarter Sessions.

It was formerly necessary to set out in the indictment the obscene words in full (Bradlaugh and Besant v. R., 1878, 3 Q. B. D. 607). But now, by sec. 7 of the Law of Libel Amendment Act, 1888, it is sufficient to deposit in Court the book or other documents, and to refer to it VOL. X. 8

in the indictment with sufficient particularity to identify the passages deemed obscene. It is a sufficient compliance with this section if the book alleged to be obscene is forwarded to the clerk of assize with the depositions, and is in his custody during the assizes (R. v. Barraclough, [1906] 1 K. B. 201). In that case the indictment alleged that the defendant "unlawfully and maliciously" published a libel in the form of a typewritten document, "which said document . . . contains divers... obscene... matters and things" concerning E. W., and this was held sufficient to support the conviction; although the Court laid down the general rule that "the indictment should contain an averment that the libel was published with the intention of corrupting the public morals." Where such an intention is alleged, evidence that other books of an indecent and obscene character were found on the defendant's premises is admissible (R. v. Thomson, 1900, 64 J. P. 456, approved by Darling, J., in R. v. Barraclough, supra).

The test of obscenity laid down by Cockburn, C.J., in R. v. Hicklin, supra, was this: "Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." If the work be obscene within this rule, its publication is an indictable misdemeanour, however innocent may be the motive of the publisher (ibid.). That the publication is an accurate report of a judicial proceeding is no defence to an indictment, if it contain matter of an obscene and demoralising character (Steele v. Brannan, 1872, L. R. 7 C. P. 261).

A summary method of suppressing obscene publications is provided by the Statute 20 & 21 Vict. c. 83. If anyone reasonably believes that any obscene books or pictures are kept in any place for the purpose of being sold or exhibited for gain, he may make a complaint on oath before the police magistrate, stipendiary magistrate, or any two justices, having jurisdiction over such place. The Court must be satisfied that such belief is well founded, and for that purpose the complainant must also state on oath that at least one such book or picture has in fact been sold or exhibited for gain in such place. The Court must also be satisfied that such book or picture is so obscene that its publication would be a misdemeanour, proper to be prosecuted as such. Thereupon the Court will issue a special warrant authorising its officer to search for and seize all such books and pictures, and bring them into Court. Then a summons is issued calling upon the occupier of the place to appear and show cause why such books and pictures should not be destroyed. Either the owner, or any other person claiming to be the owner, of such books and pictures may appear; but if no one appears, or if, in spite of appearance, the Court is still satisfied that the books and pictures, or any of them, are of such a character that their publication would be a misdemeanour proper to be prosecuted, it must order them to be destroyed; if not so satisfied, it must order them to be restored to the occupier of the place in which they were seized. The order for the destruction of such books must state, not only that the Court is satisfied that the books are obscene, but also that it is satisfied that the publication of them would be a misdemeanour, proper to be prosecuted as such; else such order will be bad on the face of it, as not showing jurisdiction, and a certiorari will be granted (in spite of the 2 & 3 Vict. c. 71, s. 49), to bring it up and quash it (Ex parte Bradlaugh, 1878, 3 Q. B. D. 509).

Any person aggrieved by the determination of the justices may appeal to Quarter Sessions by giving notice in writing of such appeal, and of the grounds thereof, and entering into a recognisance, within seven days after such determination. The books and pictures ordered to be destroyed will be impounded during such seven days; on the eighth day, if no notice of appeal be given, they will be destroyed. If the appeal be dismissed, or not prosecuted, the Court of Quarter Sessions may order the books and pictures to be destroyed. The death of the complainant after the issuing of the summons will not cause the proceedings to lapse (R. v. Truelove, 1880, 5 Q. B. D. 336). If any point of law arises in any proceeding under this Act, the Court may state a case for the opinion of a superior Court, under the 20 & 21 Vict. c. 43, or the 43 & 44 Vict. c. 49, irrespective of the power of appeal given by sec. 4.

Anyone who openly exposes or exhibits any indecent exhibition or obscene prints or pictures in any street, road, public place or highway, or in any window or other part of any house situate in any street, road, public place or highway, shall be deemed a rogue and vagabond, and punished on summary conviction (5 Geo. IV. c. 83, s. 4, as explained by the 1 & 2 Vict. c. 38, s. 2).

By the Post Office (Protection) Act, 1884, 47 & 48 Vict. c. 76, s. 4, any person who sends, or attempts to send, any postal packet which encloses any indecent or obscene print, painting, photograph, lithograph, engraving, book, or card, or any indecent or obscene article, or has on such packet, or on the cover of it, any words, marks, or designs of an indecent, obscene, or grossly offensive character, shall be guilty of a misdemeanour, and shall be liable on summary conviction to a fine not exceeding £10, and on conviction on indictment to imprisonment with or without hard labour for a period not exceeding twelve months. The Postmaster-General may prevent the delivery by post of any obscene or indecent prints, photographs, or books (33 & 34 Vict. c. 79, s. 20). But such detention in the Post Office will not exempt the sender from any proceedings which might have been taken if the same had been delivered in due course of post (47 & 48 Vict. c. 76, s. 4 (3)).

As to indecent advertisements, see the Statute 52 & 53 Vict. c. 18, and ADVERTISEMENTS, INDECENT, Vol. I. p. 216. In R. v. De Marny, [1907] 1 K. B. 388, the defendant inserted, in a newspaper of which he was the editor, advertisements which, though not obscene in themselves, related, as he knew, to the sale of obscene books and photographs. A police officer wrote to the addresses given in the advertisements, and received in return from the advertisers, who were foreigners resident abroad, obscene books and photographs. The defendant was tried on an indictment charging him with causing and procuring obscene books and photographs to be sold and published, and to be sent by post contrary to sec. 4 of 47 & 48 Vict. c. 76; and it was held that he was rightly convicted.

Observance.-"Observe" and "observance" are used with reference to negative covenants in the same way as "perform" and "performance" are used with reference to affirmative covenants. So the proviso for re-entry in a lease is almost invariably expressed to be in the event of the non-performance or non-observance of any of the covenants; and the covenants are referred to as covenants to be performed and observed. "A man is bound to perform all the covenants

in an indenture; if all the covenants be in the affirmative, he may generally plead performance of all; but if any be in the negative, to so many he must plead specially (for a negative cannot be performed), and to the rest generally" (Co. Litt. 3036). On this it has been stated at times that the word "performance" does not apply to negative covenants; and in Hyde v. Warden, 1877, 3 Ex. D. 73, the head-note says (semble) that a power of re-entry upon the lessee wilfully failing or neglecting to perform any covenant does not apply to a breach of a negative covenant. And see West v. Dobb, 1870, L. R. 5 Q. B. 460.

But there has been no express decision on the subject, and as a matter of common sense, apart from any legal refinement, anyone would say that if a man covenants not to do a certain thing and does it, the doing is a non-performance of his covenant (see Evans v. Davis, 1878, 10 Ch. D. 747, 757). The cases are examined in Stroud's Judiciol Dictionary, sub tit. "Observance or Performance."

In Barrow v. Isaacs, [1891] 1 Q. B., at p. 424, Kay, LJ., discussing Hyde v. Warden, supra, said: "I should think that an extremely narrow construction of the word 'perform' only had been used. 'Perform has not necessarily an active meaning. . . . But where the words are 'observe and perform' there is no reasonable ground for confining these words to the breach of an affirmative covenant." See LANDLORD AND TENANT.

Obstruction. This term is used in law mainly in two senses: (1) Interference with public or private rights or easements, particularly of light, way, navigation, or watercourse; (2) interference with officers of justice in the execution of their duty.

(1) The obstruction of private rights of way or water gives a right of action for the injury done, which is in substance for a nuisance, though usually coupled with application for equitable relief by injunction to prevent its recurrence. When the obstruction is attended by deliberate damage, a criminal remedy is given under the Malicious Damage Act, 1861; but the summary jurisdiction of justices is ousted if the act is done under bona fide and reasonable claim of right, and no more damage was done than was necessary to assert the claim (see R. v. Clemens, [1898] 1 Q. B. 556). See EASEMENT; MALICIOUS DAMAGE.

The usual remedy for obstruction of a public right of way is by indictment or information for public nuisance. See HIGHWAYS, Vol. VI. p. 558.

(2) Interference with officers of justice is dealt with under ASSAULT; ARREST; POLICE; RESCUE; and SHERIFF.

Obtaining Credit (by undischarged bankrupt).—See Vol. II. p. 64; Vol. VI. p. 278.

Obtaining Final Judgment under sec. 4 (9) Bankruptcy Act, 1883.-See Vol. II. p. 9.

Obtaining Goods by False Pretences.-See Vol. VI. p. 25.

Obventions.-See OFFERINGS.

Obvious Imitation.-See DESIGNS, Vol. IV. p. 537.

Occupation.-The term "occupation" denotes (1) the actual possession of land; and (2) the act of taking possession of a thing, whether moveable or immoveable, the possession of which was previously vacant; more shortly, the act of taking original possession. Where no other person is entitled to possession, occupation confers a title to the ownership of a thing. See PRESUMPTIVE TITLE.

(1) Occupation, in the sense of the actual possession of land, requires that the occupier should have exclusive control (see POSSESSION), and it is the test whether an instrument conferring an interest in land operates as a lease or as a licence. There is no tenancy created unless the owner parts with exclusive possession of the land (Taylor v. Caldwell, 1863, 3 B. & S. 832; Hancock v. Austin, 1863, 14 C. B. N. S. 634). In practice the question of occupation usually arises in connection with the liability to poor-rates. If the owner retains control of the premises, he is regarded as continuing in occupation, and the rates fall upon him (Allan v. Liverpool, 1874, L. R. 9 Q. B. 180; London and North-Western Rly. Co. v. Buckmaster, 1874, L. R. 10 Q. B. 70); but exclusive occupation imposes the liability upon the tenant (Taylor v. Pendleton, 1887, 19 Q. B. D. 288). ["It is not easy to give an accurate and exhaustive definition of the word 'occupier. Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of a vacant house is in possession, and may maintain trespass against anyone who invades it, but as long as he leaves it vacant he is not rateable for it as an occupier. If, however, he furnishes it and keeps it ready for habitation whenever he pleases to go to it he is an occupier, though he may not reside in it one day in a year" (Lush., J., in R. v. St. Pancras, 1877, 2 Q. B. D. p. 588).] See POOR, POOR-LAW, Rating.

(2) Occupation in the sense of acquiring original possession is chiefly of importance in public international law (see the discussion of the subject in Westlake's Principles of International Law, p. 155, and article OCCUPATION, INTERNATIONAL). Occupation confers a title to newlydiscovered territory; but for this purpose mere discovery is not sufficient, nor is it enough that it is followed by a formal act of annexation. It is further necessary that there should be an actual settlement in the country, and the establishment of a civilised administration (Lawrence, International Law, p. 148). The question of title by occupation, which was formerly of practical importance in connection with the settlement of America (Wheaton's International Law, pt. ii. chap. iv.), has been revived in recent times by the colonisation of Africa; but an attempt has been made to avoid international conflict by delimiting, by treaty, tracts of land as "spheres of influence," each nation being free to acquire by occupation any territory within the sphere of influence assigned to it (Westlake, op. cit., p. 187).

In English private law it was formerly possible to gain a title to land by special or general occupancy in the case where the owner of an estate per autre vie died in the lifetime of the cestui que vie (Co. Litt. 416); but now the vacancy in the possession is prevented by secs. 3 and 6 of the Wills Act, 1837 (replacing sec. 12 of the Statute of Frauds), which provide for the disposition of the estate pur autre vie on the death of the owner. And it may still be possible, under exceptional circumstances, for the freehold to be in abeyance (Challis, Real Property, 2nd ed., p. 91), so that, if there is in such a case no occupier, a person entering without title would acquire possession by original occupation