ONUS-ONUS PROBANDI-(See also BURDEN OF PROOF, vol. 2, p. 650, n.)1 OPEN (To Begin).-I. Spoken of a trial or hearing, to open is to make oral explanation, at the commencement, of the questions involved, and general nature and course of the evidence to be offered.2 To set aside, vacate; as, to open a decree, a judgment.3 Spoken of a decree, judgment, or order already passed, to open is to grant the party against whom it bears a new opportunity to be heard, in the exercise of judicial discretion, upon considerations of fairness and justice, and not of strict right.4 Spoken of a court of tribunal, to open it is to announce in form that it is convened, and ready for transaction of business,5 Spoken of a highway, to open means to establish it and make it available to public travel; but the meaning is often restricted or extended by the context.6 Also to clear from obstruc tions.7 In Statute. The word "only," in the constitutional definition of treason, was used to exclude the odious doctrines of constructive treason. Its use, however, while limiting the definition to plain overt acts, brings these acts into conspicuous relief, as being always and in essence treasonable. Shortridge v. Macon, Abb. (U. S.) 58. Where a bill of exchange has once been so delivered in payment on account of a debt as to raise an implication of a promise to pay the balance, the statute of limitations is answered, as from the time of such delivery, whatever afterwards becomes of the bill; the promise implied from such delivery not being, within the meaning of Stat. 9, Geo. IV, ch. 14, § 1, "an acknowledgment or promise by words only." Turney v, Dodwell, 3 E. & B. 134. The Criminal Practice act, which declares what shall be grounds for new trial, and uses the words, "in the following cases only," clearly excludes all other grounds whatsoever. People v. Fair, 43 Cal. 137. 1. The word onus, though Latin, is incorporated into the English language, and its use in a charge to the jury is not error. In re Lawrence Convey, 52 Iowa 197. 2. Abb. L. Dict. See also OPEN AND CLOSE. 3. And. L. Dict. Opening a Judgment-In Practice.An act of the court by which a judgment is so far annulled that it cannot be executed, although it still retains some qualities of a judgment; as, for example, its binding operation or lien upon the real estate of the defendant. Bouv. L. Dict. 5. Abb. L. Dict. 6. Abb. L. Dict.; State v. Hudson Co. Ave. Commrs., 37 N. J. L. 14. A highway laid out and established through wild and unfenced land, and afterwards travelled by the public, is "lawfully opened" within the meaning of § 1330, Wisconsin Rev. St. State v. Wertzel, 62 Wis. 190. A road that is not closed, or enclosed, or shut up or obstructed, must be an "open road." Topeka v. Russam, 30 Kan. 559. A road may be opened without either notice or work. Travel alone upon such a road would be a sufficient opening of the same. And certainly, whenever a road is in fact used as a public highway by the public, it cannot be considered as an "unopened road," within in the meaning of § 1, ch. 150, Laws 1879. Wilson v. Janes, 29 Kan. 233. 7. And. L. Dict.; Gaines v. Hudson, 37 N. J. L. 14. To order a resale: as, to open biddings received on judicial sale for irregularity, fraud, or gross inadequacy of price.1 II. The Adjective.-Subject to alteration and correction, unliquidated, unsettled, as an open account 2 accessible to all, Open and Extend.-The power conferred by an act on the authorities of a city to "open and extend" streets was held to include construction, as well as laying out, in Sugar Refining Co. v. Mayor etc. of Jersey City, 26 N. J. Eq. 247. Open and Keep in Repair.-A power to "open and keep in repair" streets, etc., was held to carry an implied power to alter the grade or level, in Smith v. Corporation of Washington, 20 How. (U. S.) 135. Opened and Worked.-A highway cannot be said to be opened and worked unless it is passable for its entire length. It must be opened as a highway over its entire route. It need not be worked in every part, but it must be worked sufficiently to be passable for public travel. Beckwith v. Whalen, 70 N. Y. 430. "Opened and Dedicated." Paths marked out, graded, paved, repaired and kept clear of snow by a town or city, crossing common ground used by the inhabitants as a place of public resort or recreation, and serving as one means of communication between public streets with which they connect, between posts such as are usual at the entrance of walks designed for foot passengers, are not ways "opened and dedicated to the public use," within the meaning of the Massachusetts Gen. Stat., ch. 43, § 82, for damages arising from defects in which the town or city may be liable to an action under section 83. Oliver v. Worcester, 102 Mass. 489. Where the owners of land in a city open and dedicate it to public use, as a footway, placing a fence across it, which allows foot passengers to pass, but is dangerous to horses and carriages, the city, whether they have accepted the way or not, are not liable for an injury occasioned by the fence to a horse and carriage, though driven with ordinary care and skill. Hemphill v. Boston, 8 Cush. (Mass.) 195. 1. And. L. Dict. Opening Biddings-Ordering a Resale. When estates are sold under decree of equity to the highest bidder, the court will, on notice of an offer of a 17 C. of L.-13 sufficient advance on the price obtained, Open Account.-See ACCOUNT, vol. 2, p. 109. By the term "open accounts" are meant those debts which are subject to future adjustment, and which may be reduced or modified by proof. Nisbet v. Lawson, I Ga. 275. An open account is one in which some item of the contract is not settled by the parties, whether the account consists of one item or many; or when there have been running or current dealings between the parties, and the account is kept open, with the expectation of further dealings. Purvis v. Kroner, 18 Oregon 414. Open account (in an exception in the statute of limitations) is used in opposition to stated account, or one which has been closed by the assent of the person charged to its correct'ness. The fact that a balance is struck between charges on both sides does not make it any less an open account. Whittlesey v. Spofford, 47 Tex. 13. The phrase "open account," in a statute of limitations, does not include the current account of a general agent of his expenditures for his principal. Dolhoude v. Laurans, 21 La. Ann. 406. An account cannot be considered as an open account, where it was signed and returned by the debtor, with a statement in detail of its debtor and creditor items. Dixon v. Lyons, 13 La. Ann. 160. An open account is one in which some item of the contract is not settled by the parties, whether the account consists of one item or many; as, where several loads of corn are sold at the same time and delivered, and there is no stipulation as to the price, and the account is open. Sheppard v. Wilkins, I Ala. 62. 193 1 free to the public, as an open court; apparent, known, made public, unconcealed public, opposed to secret, not shut or closed.2 OPEN AND CLOSE, RIGHT TO-(See also BURDEN OF PROOF; CRIMINAL PROCEDURE; TRIAL). I. Meaning of the Term, 195. 1. In Ordinary Actions, 197. (1) In Actions for Unli- tracts Not Liquidat- (b) To Defendant, 200. ance, 200. (2) In Actions on Contracts Which Liqui date Damages, 202. 1. Abb. L. Dict. Open Court. This expression is to be understood as conveying the idea that the court must be in session, organized for the transaction of judicial business; or may possibly mean public-free to all. The object of a statute that divorce cases shall be tried in open court, is not merely to prevent secret proceedings therein, by providing that no one shall be refused admittance to the court while such cases are on hearing, but rather that the trials shall be before the courts themselves, and not elsewhere or at any other times, than the law prescribes for the sessions of courts. Hobart v. Hobart, 45 Iowa 501. "In open court," § 5 (1a), Debtors' act, 1869, means "what any one would take to be a court, with the usual accompaniments of the jury box, the witness box, the judge's seat, and seats for solicitors, counsel and others" (per COLERIDGE, C. J.), and does not include the private room of a county court judge, though often used by him for hearing causes. Kenyon v. Eastwood, 56 L. J., Q. B. 455. 2. Open corporation (of a city) is where all the citizens or corporators have a vote in the election of the officers of the corporation. McKim v. Odom, 3 Bland Ch. (Md.) 416, n. Open and peaceable entry (as used in Massachusetts Gen. Stat., ch. 140, § 1) means an entry not opposed by the mort gagor or person claming the premises,and made in the presence of two competent witnesses, whose certificate thereof is sworn to and duly recorded within thirty days in the registry for the county where the land lies. Thompson v. Kenyon, 100 Mass. 108. Open Cover.-An "open cover" is a proposal to insure before the goods to be insured are shipped. Bhugwandass v. Netherlands Ins., 14 App. Cas. 83. An "open place," for the sale of goods, means "open" to the public, not to the sky. Per BOWEN, arg. Hooper v. Kenshole, 46 L. J., M. C. 162. Open Possession. See ADVERSE POSSESSION, vol. 1, p. 228, n. Open Policy.-See MARINE INSURANCE, vol. 14, P. 335. Open Lewdness.- See LEWD AND LASCIVIOUS COHABITATION CONDUCT, vol. 13, p. 274. AND "Open and Notorious."In an action for damages caused by a defective sidewalk, an instruction that if the defect in the sidewalk was "open and notorious," the city was chargeable with notice thereof, was not objectionable on the ground that the jury would understand the court to refer to a defect consisting of an open hole in the sidewalk. The word open" would be understood to mean "not hidden or concealed." Kelleher v. Keokuk, 60 Iowa 473. I. MEANING OF THE TERM.-Since, in all cases whether tried by jury or otherwise, the tribunal is influenced in a great measure by the argument of the counsel, and since the extent of that influence in favor of one side or the other is greatly dependent upon which of the parties has the closing speech, it becomes important to know which party is entitled to the right to close the argument. The right of opening the argument is equally important,1 and the right to one involves the other; he who opens the argument is the one to close it.2 II. EFFECT OF DENIAL OF THE RIGHT.-This right is considered so important that a refusal of it to one entitled to it and claiming it at the proper time, is substantial error, and, if rightly presented, ground for reversal,3 Open and Notorious Insolvency.-It implies, not the want of sufficient property to pay all one's debts, but the absence of all property within the reach of the law applicable to the payment of any debt. Hardesty v. Kinworthy, 8 Blackf. (Ind.) 305. "Open Sore.". Where an insured person was asked whether he had any "open sores," held, that the words “open sores," as here used, must be taken to mean sores which result from some functional derangement, and not from wounds or accidental injuries. Life Assoc. v. Gillespie, 110 Pa. St. 84. 1. See generally, Bouv. L. Dict., Open and Close; Greenl. on Ev., §§ 75, 76; Thomp. on Tr., §§ 226, 227. But it is said that the exercise of the right to open and close is not necessarily an assumption of the burden of proof. Shaw v. Abbott, 6 N. H. 564. 2. Robinson v. Hitchcock, 8 Metc. (Mass.) 64; Judge of Probate v. Stone, 44 N. H. 593; Elwell v. Chamberlin, 31 N. Y. 611; Penhryn Slate Co. v. Meyer, 8 Daly (N. Y.) 6i. Where the plaintiff, entitled to the opening and conclusion, waives his right as to the opening argument, although he does not forfeit his right to the closing argument, still he will be compelled to confine his remarks to a comment upon the argument of the defence, and he will not be allowed to discuss the case generally. Brown v. Swineford, 44 Wis. 282; s. c., 28 Am. Rep. 582. If the plaintiff opens the argument and defendant submits his case without argument, the plaintiff may not make a concluding speech. Tyre v. Morris, 5 Harr. (Del.) 3. 3. Thomp. on Tr., § 226; Penhryn Slate Co. v. Meyer, 8 Daly (N. Ỷ.) 61: Tobin v. Jenkins, 29 Ark. 151; Colwell v. Brower, 75 Ill. 516. The court has some discretionary power in controlling the argument of a cause; but, unless special reasons in justification are shown, they cannot disregard the regulations of Indiana Code, 112, § 326, which gives to the party holding the affirmative the right to open and close, and the right to reply to new matter, etc. Ashing v. Miles, 16 Ind. 329. Thus it is said that "for the court to deny the party holding the affirmative of an issue of fact, upon the trial of an action, the right of opening and closing the proof, or of replying in the summing up to the jury, is error. It is not a matter within the discretion of the court, but one of absolute right." Millerd v. Thorn, 56 N. Y. 402. And in Royal Ins. Co. v. Schwing, 87 Ky. 410, that when a party who is entitled to conclude the argument is deprived of that right, the error does not fall within Code Ky., § 134, requiring the court to disregard any error or defect not affecting a substantial right; but requires a reversal, unless the evidence is so palpably against the party as to render it idle to grant a new trial. In Missouri, the right to open and close rests in the sound discretion of the trial court, and an error committed in that respect will not be a ground for reversal, unless it plainly appear that injury has resulted. Elder v. Oliver, 30 Mo. App. 575. In Iowa, it has been held that while the right to review the question as to the right to open and close is not absolutely denied, yet there must be a clear case of prejudice, in order to justify a reversal upon that ground. Preston v. Walker, 26 Iowa 205. And in another case it is said that only upon a plain case of error will the exercise of the discretion of the trial court be reviewed in determining, upon or for a new trial.1 In other cases it is held that it is entirely within the discretion of the court to determine which party is entitled to open and close and its decision is not revisable;2 while still other and high authorities maintain that such refusal is never a proper subject for a bill of exceptions or writ of error, since it is purely a matter of practice as to who shall open and close, determined by the rules of each court, and therefore not subject to revision.3 If there is a statutory regulation on the subject, that is to govern, and it is to be considered mandatory. The denial of the right to open the argument is an error which is not cured by allowing the right to conclude. It must be observed, however, that in order for a party to be entitled to a reversal or a new trial on the ground of the refusal of this right, he must claim it at the proper time, not after the trial has considerably progressed.6 III. TO WHOM IT BELONGS.-Following the well-known maxim, Ei uncumbit probatio qui dicit, non qui negat, the very general rule is adopted that the party who holds the affirmative of an issue, having the burden of proof, shall have the right to open and close. This is founded in principle, since the presumption is a complicated state of pleading, whether a plaintiff who does not hold the affirmative on all the issues ought to open and close. Montgomery v. Swindler, 32 Ohio St. 224; Marshall v. American Express Co., 7 Wis. 1. 1. Huntington v. Conkey, 33 Barb. (N. Y.) 218. But a mistake in that respect would be no ground for a new trial, unless injustice was shown to have resulted from it. Central Bank v. St. John, 17 Wis. 157. 2. Wade v. Scott, 7 Mo. 509; Pogue v. Joyner, 7 Ark. 462; Cothran v. Forsyth, 68 Ga. 560; Huntington v. Conkey, 33 Barb. (N. Y.) 218; Reichard v. Manhattan etc. Ins. Co., 31 Mo. 518; Ayrault v. Chamberlin. 33 Barb. (N. Y.) 229; Fry v. Bennett, 28 N. Y. 324. In the cases of Comstock v. Hadlyme Eccles. Soc., 8 Conn. 254; s. c., 20 Am. Dec. 100; and Scott v. Hull, 8 Conn. 296, it was decided that a refusal of the right was not ground for a new trial, on the ground that it was a matter entirely within the court's discretion. In the case of Carpenter v. First Nat. Bank, 119 Ill. 352, the doctrine is thus clearly stated: "Whether the plaintiff or defendant shall have the opening and close of the case is generally a matter of discretion to be ordered by the judge at the trial, as he may think most conducive to the administration of justice; and a refusal to grant that privilege to defend ants, who set up the defence that the consideration of the note in suit was a conditional sale, and that the payees had failed to comply with the condition, is no ground for a new trial in the Supreme Court of Illinois, where the appellate court has found that the defendants had a fair trial, and were not prejudiced by such ruling." 3. Day v. Woodworth, 13 How (U. S.) 363; Lancaster v. Collins, 115 U. S. 222; Hall v. Weare, 92 U. S. 728. 4. Heffron v. State, 8 Fla. 73. In Georgia, this whole subject is regulated by statute. See Bertody v. Ison, 69 Ga. 317. 5. "Depriving a party of one part of his legal rights is certainly not cured by allowing another part." To open and conclude the argument is a right, not a privilege. Penhryn Slate Co. v. Meyer, S Daly (N. Y.) 61; Porter v. Still, 63 Miss. 357: 6. It should be claimed before any proceedings in the trial are had. Therefore, it is too late after the plaintiff has gone on and a reply has been made, to raise the question as to who has the right to open and conclude. McKibbon v. Folds, 38 Ga. 235. After the jury has been sworn, the defendant cannot, as a matter of right, withdraw the general issue and assume the burden of proof with the open and close. It is within the legal discretion |