Open

V. 1.

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. Opening is used as participle and adjective, and participial noun, in this general sense of the word. Thus a counsel, making the customary address cause; and the address is called the opening (adj.) speech, or, briefly, the opening. In trials of issues of fact before a court and jury, it is the practice for the plaintiff's counsel to state briefly the substance and effect of the pleadings in the cause, in order that the jury may know what are the issues about to be tried; and this is termed opening the cause, or opening the pleadings. The opening by plainiiffi's counsel follows the impanelling of the jury; it is a bi'ief statement of the pleadings and of the general facts of the plaintiff's case, as counsel believes they will be proved. In turn, the defendant's counsel, when the plaintiff rests, makes an opening for the defence, explaining the grounds on which he relies to defeat the case which has been presented.

2.

Spoken of a decree, judgment, oi order already passe(f, to open is to grant the party against whom it bears a new opportunity to be heard, done in the exercise of judicial discretion, upon considerations of fairness and justice, and not of strict right. Opening is used, in this sense, as a participle and participial noun; not, that we have observed, as an adjective. When a party against whom a decree, judgment, or order has been made, is able to show error or irregularity in it, or that it is, for any reason, void, so that he is relieved from it as matter of right, the court is said to set it aside, to vacate it. Open is not appropriate in this class of cases; but imports that although the part/ is legally bound, yet he has shown such reasons, by way of excuse for his default, new evidence in his favor, surprise, injustice, or the like, that the court is induced in its discretion to give him a new opportunity to be heard. This may be done, subj'ect to such terms as the court sees fit to impose to prevent hardship to the adverse party. But the whole subject is regulated by statutes, varying in different jurisdictions.

Open court

This expression is to lie understood as conveying the idea that the court must be in session, organized for the transaction of judicial business; or, may 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.

Opening an account. Declaring, iudicially, that a party, as an agent, executor, &c., who has rendered an account of his dealings, shall not be absolutely bound by it, but may show that it contains errors to his prejudice.

Opening biddings

Under the longestablished practice of the English court of chancery, when landed property was sold under decree, the court was accustomed to order the property to be put up again for sale, whenever a reliable offer to bid a higher price than that obtained by the first sale was reasonably made. Under this practice of opening biddings, wherever it prevails according to English precedents, a person desirous of opening a bidding must, at his own expense, apply to the court, by motion for that purpose, stating the advance offered. Notice of the motion must be given to the person certified as the purchaser of the lot, and to the parties in the cause. If the court approve of the Bum offered, the application will be granted, and, on the order being drawn up, entered, and served, a new sale must be had before the chief clerk. The order is made at the expense of the person opening the biddings; and he must bear the expense of paying in his deposit, and pay the costs of the first pui'chaser, and interest, at the rate of four per cent, on such part of the purchasemoney as the chief clerk shall find to have lain dead. Biddings may be opened more than once, even on the application of the same person, if a sufficient advance is offered, but, in general, cannot be opened after the confirmation of the certificate of the highest bidder. Where the biddings are opened, the advance is to be deposited immediately. In England, this practice of opening biddings was found at length to produce inconvenience, by discouraging the outlow, was never sure of his bargain. Hence it was restricted by Stat. 30 & 31 Vict. ch. 48, § 7, passed in 1867; and the opening of biddings is now allowed only in cases of fraud or misconduct in the sale. In the various states, the practice on this subject varies somewhat, with a very general leaning, as we understand, to the doctrine that a court under whose decree a sale is made has power to open the biddings, but will not in general do so merely to obtain a higher price: fraud or irregularity, or gross inadequacy of price, such as raises suspicion of fraud, must be shown.

Opening a commission

An entering upon the duties under a commission, or commencing to act under a commission, is so termed. Thus the judges of assise and nisi prius derive their authority to act under or by virtue of commissions directed to them for that purpose; and, when they commence acting under the powers so committed to them, they are said to open the commissions; and the day on which they so commence their proceedings is thence termed the commission day of the assises. Brown. Opening a rule. The act of restoring or recalling a rule, which has been made absolute, to its conditional state, as a rule nisi, so as to readmit of cause being shown against the rule. Thus, when a rule to show cause has been made absolute, under a mistaken impression that no counsel had been instructed to show cause against it, it is usual for the party at whose instance the rule was obtained to consent to hare the rule opened, by which all the proceedings subsequent to the day when cause ought to have been shown against it are in effect nullified, and the rule is then argued in the ordinary way. Brown. Opening a rule is where the court allows the propriety of a rule to be again open for argument after it has been made absolute. Where a rule has issued improvidently through a mistake of the officer of the court, or in a case in which the court had no jurisdiction to grant it, the court will allow it to be opened for the purpose of correcting the mistake or discharging the rule; but this will not in general be done on any other ground.

Lush Pr. (Steph.) B62. 3.

Spoken of some documentary matters, to open is used in a sense partly literal, pai-tly figurative, meaning that the seals are broken, and the document brought into view and use. Thus, one speaks of opening a deposition; attending at the opening of 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. A power to " open and keep in repair " streets, &c., was held to carry an implied power to alter the grade or level, in Smith V. Corporation of Washington, 20 How. 136. 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, &c. of Jersey City, 26 N. J. Eq. 247.