Opening And Closing

After the evidence all in, the plaintiff has the privilege of the opening and closing or summing up speeches to the jury; in the closing address he should confine himself to a reply to defendant’s speech. It seems doubtful whether it is within the discretion of the court to interfere with this established mode of procedure; at least it should only be done with great caution; Barden v. Briscoe, 36 Mich. 254; Millerd v. Thorn, 56 N. Y. 402; Royal Ins. Co. v. Schwing, 87 Ivy. 410, 9 8. W. 242. But in some courts it is the practice for the defendant’s counsel to open to the jury, followed by the plaintiffs counsel. Under the federal practice the right rests in the discretion of the court and is not the subject of error; where the defendant pleaded a partial defense in an action for the price of machinery, but did not, in his answer, unequivocally admit its sale and delivery, it was not an abuse of discretion to permit the plaintiff to open and close; Florence Oil & R. Co. v. Farrar, 109 Fed. 254, 48 C. C. A. 345, Caldwell and Sanborn, C. JJ., and Adams, D. J. AVhere the burden of proof was upon one of two defendants, and as to the other it was on the plaintiff, the right to open was in the discretion of the trial judge; Simons v. Pearson, 61 S. AY. 259, 22 Ivy. L. Rep. 1707; so in the distribution of an intestate’s estate where several claimed as next of kin, to the exclusion of all others; Sorensen v. Sorensen, 68 Neb. 483, 94 N. AV. 540, 98 N. \V. 837, 100 N. W. 930, 103 N. AV. 455; where defendant offers no proof, he is entitled to open and close; Moore v. Carey, 116 Ga, 28, 42 S. E. 258; contra, in a personal See Best’s Right to Begin and Reply; 14 Yale L. J. 54; Trial; Steinkuehler v. Wempner,' 169 Ind. 154, 81 N. E. 482, 15 L. R. A. (N. S.) 674 (will cases). In English Practice. The address made immediately after the evidence is closed. Such address usually states — first, the full extent of the plaintiff’s claims, and the circumstances under which they are made, to show that they are just and reasonable; second, at least an outline of the evidence by which those claims are to be established; third, the legal grounds and authorities in favor of the claim or of the proposed evidence; fourth, an anticipation of the expected defence, and statement of the grounds on which it is futile, either in law or justice, and the reasons why it ought to fail. But the court will sometimes restrict counsel from an anticipation of the defence; 3 Chitty, Pr. 881.