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York to New Orleans, is not an open account, an open account, within the meaning of the
within the meaning of the statute barring statute of limitations. Dixon v. Lyons, 13
actions on open accounts in three years. La. Ann. 160.
Caruthers v. Mardis' Adm'rs, 8 Ala. 599, 601.

“There is no element of an open or unAn open account is one in which the liquidated account in the indebtedness of one amount due has not been ascertained or fixed tenant in common to his co-tenant for rents either by the act and agreement of the par- collected. It is more in the nature of an acties or by operation of law, Nisbit v. Law- tion for money had and received by one person, 1 Ga. (1 Kelly) 275, 287; Anderson v. son to the use of another, or that of an imState, 2 Ga. (2 Kelly) 370, 374; Hargroves plied trust, rather than an express trust.” 5. Cooke, 15 Ga. 321, 332; and is usually rais- Hairston v. Sumner, 17 South. 709, 106 Ala. ed by one party only, and is an ex parte

381. affair, and is open until agreed to by the

Within the meaning of the statute ixing other; but when the debtor has acknowl- limitations to a right of action on an open edged the justice of the account, and it is

account, an account of an agent with his no longer the act of one party, but the agree principal is not an open account, and an acment of both, the account becomes liquidat- tion thereon is not limited by such statute. ed. Hargroves v. Cooke, 15 Ga, 321, 332.

Dolhonde v. Laurans' Widow, 21 La. Ann.

406.
Whether the account consists of a single
item or many items, if the terms of the con-

“Open," as used in an instruction in an tract have not been adjusted by agreement action against a city for injuries from a de of the parties, the demand is an open ac- fective sidewalk, stating that, if the defect count. Gayle's Adm'r v. Johnston, 72 Ala. was open and notorious, the city was charge254, 47 Am. St. Rep. 405.

able with notice thereof, means not conceal

ed; not hidden; exposed to view; apparent In strict legal phraseology, an open account is a debt not reduced to writing, which word is very frequently used—and the Jury

secondary signification in which the is subject to future adjustment, and may be would not understand the court to refer to reduced or modified by proof, such as ac

a defect consisting of an open hole in the
counts running between merchants, a mer-
chant's account for the sale of goods, and sidewalk. Kelleher v. City of Keokuk, 15

N. W. 280, 281, 60 Iowa, 473.
all other of like character. Smith v. Elling-
ton, 14 Ga. 379, 382.

A demand for money collected by plain

tiff on a judgment in favor of himself and An account is open and current when defendant's intestate jointly is not an open It is running, not closed, settled, or stated, account. Bradford v. Barclay, 39 Ala. 33. so that there are reciprocal demands between the parties—something upon which either party could sustain an action. Taylor V. OPEN AND GROSS LEWDNESS. Parker, 17 Minn. 469, 473 (GI. 447, 451).

The phrase "open and gross lewdness," An open account is one in respect to in a statute making open and gross lewdness which nothing has occurred to bind either criminal, is not equivalent to the phrase party by its statements, or an account which "gross lewdness in an open place.” The is yet fully open to be disputed. Abb. Law word "open" has no reference to place at Dict. The word "open" indicates that there all, nor to the number of people. It is used is something undetermined by the contract simply to define a quality of the act of lewdof the parties or by the application of set- ness. It is open lewdness as opposed to se tled rules of law, and an account cannot be cret lewdness. It defines the same act, resaid to be open when no term of the con- gardless of whether it is committed in the tract remains to be settled by agreement of presence of one or of many. State v. Juneau, the parties. McCamant v. Batsell, 59 Tex. 59 N. W. 580, 581, 88 Wis. 180, 24 L. R. A. 363, 368.

857, 43 Am. St. Rep. 877; Commonwealth

V. Wardell, 128 Mass. 52, 53, 35 Am. Rep. When an account is stated and rendered, 357. and no objection is made to it, it is no longer an open account, but becomes liquidated. "Open," as used in Rev. St. c. 99, $ 8, Anderson v. State, 2 Ga. (2 Kelly) 370, 374. providing a punishment for open and gross

lewdness, etc., means undisguised, not con"The term 'open account is used in op- cealed, and opposite to private, concealed, position to a stated account wherein the ac-and unseen. State v. Millard, 18 Vt. 574, count is closed by an assent to its correct. 577, 578, 46 Am. Dec. 170. ness by a party charged.". Whittlesey v. Spotford, 47 Tex. 13, 17.

St. 1784, c. 40, § 6, providing that open

and gross lewdness and lascivious behavior An account which is signed and render shall be punished, etc., does not include the ed by the debtor with the statement, in de commission of such behavior in secret, nottail, of the debtor and creditor items, is not withstanding the parties are observed by a

1

third person without their knowledge Com- The phrase "in open court,” as used in monwealth v. Catlin, 1 Mass. 7, &

the statute requiring an application for cer

tiorari to be made to the inferior court of OPEN AND NOTORIOUS INSOLVENOY. is used to emphasize the distinction be

common pleas of the county, in open court, The doctrine that the maker of a note tween the court in public session, and one must be in “open and notorious insolvency,” or more judges of the court exercising the before recourse can be had to the assignor, judicial functions in chambers. Where the means not merely the want of sufficient prop- record avers that “the application was made erty to pay all of one's debts, but the ab to the court of common pleas held at F., in sence of all property, within reach of the and for the county of H., of the term of law, applicable to the payment of any debt. September, 1891, three judges being presHardesty v. Kinworthy (Ind.) 8 Blackf. 304, ent” it sufficiently indicates that it was 305; Somerby v. Brown, 73 Ind. 253, 256. done in open court. Conover V. Bird, 28 Property in possession of an assignee in Atl. 428, 429, 56 N. J. Law (27 Vroom) 228. bankruptcy is not only within reach of the

Code, $ 2222, declaring that no divorce law, but in the actual custody of the law. shall be granted on the testimony of the Somerby v. Brown, 73 Ind. 253, 256.

plaintiff, but that all such suits shall be

heard in open court, means a court which OPEN AND PEACEABLE ENTRY.

is in session, organized for the transaction

of official business. Hobart v. Hobart, 45 A statute providing for the foreclosure Iowa, 501, 503. of a mortgage by “open and peaceable entry" on the mortgaged premises, and possession OPEN ESTATE. thereof peaceably for three years, means an entry not opposed by the mortgagor or per

"Open," as used in reference to the sons claiming the premises, and made in the rule that, so long as an estate is open, the presence of two witnesses, whose certificates accounts of the executor and administrator are sworn to and recorded within 30 days in in the orphans' court are subject to revision the registry of deeds as required by Gen. and correction as to any matter discovered to St. c. 140, 8 182. Thompson v. Kenyon, 100 be in error, means not finally closed and Mass. 108, 111.

settled. Martin v. Jones, 39 Atl. 102, 103,
87 Md. 43.

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OPEN BULK.

OPEN FOR BUSINESS. "Open bulk," as used in Acts N. C.

See “Actually Open for Business."
1891, c. 331, providing that persons selling
seeds in packages unmarked by the date Within the meaning of the term in an
when such seeds were grown, except farm- | insurance policy providing that the books
ers selling seeds in open bulk to other farm- and inventory of a business should be kept
ers or gardeners, shall be guilty of a mis in an iron safe when the store was not open
demeanor, means in the mass; exposed to for business, the expression “not open for
view; not tied or sealed up. Used in the business" meant such ordinary occasions as
connection they are in this act, they do not Sundays and holidays, and after the store
relate to the quantity that may be sold; had closed at night; and where it appears
por does the statute restrict it to an ounce that the store had been burned during busi.
or less, or require a bushel or more to be ness hours, and it does not appear that the
sold, In re Sanders (U. S.) 52 Fed. 802, premises were ever actually closed, such
804, 18 L. R. A. 549.

store will not be held not to have been
open for business, within the meaning of

the policy, the requirement of the policy OPEN CORPORATION.

being rather that the books should be placed An open corporation is where all the in a place of safety, than that they should citizens or corporators have a vote in the be inserted in the safe in all cases of fire. election of the officers of the corporation - Phænix Ins. Co. v. Schwartz, 41 S. E. 240, usually applied to municipal corporations. 241, 115 Ga. 113, 57 L R. A. 752, 90 Am. St. McKin v. Odom (Md.) 3 Bland, 407, 415.

Rep. 98.

In a statute imposing a penalty upon OPEN COURT.

any one permitting his place to be open

for the purpose of traffic on Sunday, it is The term "open court," within the mean- clearly and manifestly the intention of the ing of a chancery rule declaring that the statute to close the places and houses therechancery court shall be deemed always open in mentioned against barter, sale, and traffor certain purposes, signifies the time when fic on Sunday; and it is meant that no sellthe court can exercise its functions. Ex ing should occur in these places or houses parte Branch, 63 Ala. 383, 387.

i on Sunday, and that traffic shall be cut off

entirely on that day. Whitcomb v. State, An open or running policy of insurance 17 S. W. 258, 259, 30 Tex. App. 272.

is defined by 2 Bouv. Law Dict. p. 430, as a policy on which the value is to be

proved by the assured. However, by an OPEN HOUSE.

“open policy" is sometimes meant in the An open house is defined by Rev. St. United States one in which an aggregate 1895, art. 3380, as one in which no screen amount is expressed in the body of the or other device is used or placed either in- policy, and the specific amounts and subside or outside of such house or place of jects are to be indorsed from time to time. business for the purpose of obstructing the Corporation of London Assurance v. Paterview through the open door or entrance into son, 32 S. E. 650, 655, 106 Ga. 538. such house or place of business. Where intoxicating liquors are sold in quantities

A valued policy is where the value of less than a quart, a partial obstruction of the subject insured is agreed upon by the the view in a saloon precludes it from be

If it is not estimated at any par

parties. ing an open house. Componovo v. State ticular amount or rate, it is an open policy. (Tex.) 39 S. W. 14. Under this statute and Cox v. Charleston, F. & M. Ins. Co. (S. c.) definition, it is held that the statute is not 3 Rich. Law, 331, 332, 45 Am. Dec. 771. violated by a partition of the room in

Where a policy for marine insurance which the liquors are sold for the purpose was in the form of a valued policy, and, of renting a part of it, not to obstruct the after a statement of the subject insured, view, and which does not in fact obstruct there appeared the phrase, “Valued at the view of the bar from the front door.

as indorsed," but the blank was State v. Andrews, 82 Tex. 73, 75, 18 S. W. | not filled in, and there was no indorsement 554. See, also, State v. Drake, 86 Tex. 329,

as to value, it was held that the failure to 335, 24 S. W. 790; State v. Austin Club, 89 all the blank or to make any indorsement Tex. 20, 25, 33 S. W. 113, 30 L. R. A. 500. as to value constituted the policy an open

policy, and not a valued policy. Snowden OPEN MANNER.

v. Guion, 5 N. EL. 322, 326, 101 N. Y. 458. Act Jan. 19, 1852, providing that it shall

The term "open ire policy" includes be unlawful for any one to carry a deadly any policy, unless it appears to have been weapon about his person, not "in an open the intention of the parties thereto, upon manner and fully exposed to view," does a fair and reasonable construction upon its not mean that, if any part of the barrel of form, to value the loss, and thereby fix by

А & pistol was stuck down in the pocket, it contract the amount of the recovery. would constitute a violation of the statute, policy for a certain

a dwelling but must be construed as meaning that the house, containing a stipulation that the comweapon must be carried in such a manner pany will pay the assured the loss or damthat others who might come in contact with age, not exceeding the sum assured, is an

Farmers' the person might see that he was an armed open, and not a valued, policy. and dangerous person, who was to be avoided Ins. Co. v. Butler, 38 Ohio St. 128, 134. In consequence, and only requires that the

An open policy is a personal contract, weapon should be exposed sufficiently to and, when made on the insured's own acview to enable any person to see and know count, the terms are that the assured causes that it was a weapon.

Stockdale v. State, himself to be insured and takes insurance 32 Ga. 225, 227.

for a given sum for a specified voyage, for

a term of time, upon the ship and goods on OPEN POLIOY.

board her, against the perils of the sea and

other risks. Such a policy is always held An open policy of insurance is one in to be an open policy, and to entitle the inwhich “the amount of liabilities is left open sured, in case of loss, whether partial or to be determined according to the actual total, to an indemnity and recompense to loss, either by agreement of the parties, or the amount of his actual loss by the perils upon proof and compliance with its terms from which the contract professes to proor with the rules of evidence." Riggs v. tect bim. Laurent v. Chatham Fire Ins. Home Mut. Fire Protection Ass'n, 39 S. E. Co., 1 N. Y. Super. Ct. (1 Hall) 41, 48. 614, 618, 61 S. C. 448.

A fire policy issued to indemnify a conAn open policy is one in wbich the sum tractor against loss he may sustain by reato be paid as indemnity in case of losses son of the building which he has contracted is not fixed in the contract, but is left open, to build in case of its destruction, to a sum to be proved by the claimant, or to be de not exceeding a designated sum, is an open termined by the parties. This determina- policy. It does not mean that as soon tion is called an “adjustment of the loss." the house is destroyed by fire the insured Fire Ins. Ass'n v. Miller (Tex.) 2 Willson, shall be entitled to recover the sur desigCiv. Cas. Ct. App. $ 332.

nated, but means that he is to recover that 6 WDS. & P.-8

sum

on

as

v.

amount if that is the damage done to him | storehouse of goods, wares, and mercbanby the fire. The insurance company guar- dise for the purposes of traffic. Jebeles v. anties him against any loss, to the extent of State, 31 South. 377, 131 Ala. 41. the sum designated, which he may sustain by reason of the property being destroyed

"Open store," as used in Code 1876, by fire; and therefore, upon a total loss of 4443, prohibiting any merchant or shopthe building insured, the insurer is only lia- keeper from keeping open store on Sunday, ble for the actual loss sustained, not ex

is construed not to mean the mere act of ceeding the sum designated. Ulmer

keeping the door of the store open, but the Phænix Fire Ins. Co., 39 S. E. 712, 713, 61 keeping of a door open, and by means there S. O. 459.

of the selling of merchandise or other arti.

cles kept there for sale. "If the parties An open policy is one in which the value intended a sale, whether payment was presof the thing insured is not agreed upon, but ently made or expected to be made afteris left to be ascertained in case of loss. ward, the statute was violated." Snider v. Civ. Code Cal. 1903, & 2595; Rev. Code, N. D. State, 59 Ala. 64, 67. 1899, § 4496; Civ. Code S. D. 1903, & 1846.

An open policy is where the amount of OPEN TO OCCUPATION AND PURthe interest of the assured is not fixed by CHASE. the policy, but is left to be adjusted in case of loss. Civ Code Ga. 1895, § 2129.

Rev. St. U. 8. $ 2319, declaring that

mineral deposits are free and open to ex. In an

open policy of insurance, for ploration and purchase, and the land in which an aggregate amount is expressed, which they are found is open to occupation there are as many contracts for insurance and purchase to a certain extent or amount as there are indorsements on the policy of -the land to that extent constituting a separate shipments of goods. If the open mining claim under the law when the same policy contained all the conditions which is properly located-means that the absogovern the shipments of goods specially in- lute title may be acquired in the land. This sured under the policy, and the company language will not bear the interpretation reserves the right to reject or accept each that the government intended thereby to special insurance in each shipment, the con- sell to the purchaser of a mining claim a tract must be regarded as made at the dom- mining easement therein, or simply the icile of the company issuing the open policy. right to occupy and possess the mining State v. Williams, 15 South. 290, 291, 46 claim for the necessary use of the mineral La. Ann. 922.

vein. The right to occupy and to pur. chase means the right to acquire the full

title. Silver Bow Min, & Mill. Co. v. Clark, OPEN RISK.

5 Pac. 570, 574, 5 Mont. 378 An open and visible risk in such as would in an instant appeal to the senses

OPEN VENIRE. of an intelligent person. It is one so patent that a person familiar with the busi Open venire, in Dakota, is where the ness would instantly recognize it. Johnston marshal of the United States for the territory v. Oregon, S. L. & U. N. Ry. Co., 31 Pac. selects and summons jurors as at common 283, 286, 23 Or. 94.

law. United States v. Beebe, 11 N. W. 505,

507, 2 Dak. 292. OPEN SEASON.

OPENING. “Open season, as used in the game and fish act, means the season wherein the killing Rev. st. art. 4427, declaring that all of game is permitted. Rev. St. Okl. 1903, 8 railway corporations which fence their right 3076.

of way may be required to make openings

through their fences and over their roadOPEN STORE.

beds at prescribed distances, does not re

quire open crossings, although literally an The term "open store," as used in Code, opening in a fence may be said to mean an $ 5542, imposing a penalty on any merchant unobstructed way through it. But in comor shopkeeper who "keeps open store" on mon parlance the word does not always, Sunday, implies something more than open- have such significance, beings sometimes ing the door of a shop or store or keeping used to indicate a way through that is cathe door open. It involves the keeping open pable of being used as a mode of ingress of the store as such-the opening up of the and egress to and from the inclosure. As business carried on in the house, and the the word is used in the statute, it does not exposition to sale of the wares stored there require the construction of an open crossfor sale. The words in and of themselves ing. Missouri, K. & T. Ry. Co. v. Chenault, mean the opening up and keeping open the 60 S. W. 55, 58, 24 Tex. Civ. App. 481. See.

also, Burgess v. Missouri, E. & T. B. Co.OPERA. (Tex) 41 & W. 703, 704.

An opera is a composition of a dramatic OPENING THE BIDDINGS.

kind, but set to music and sung, accompanied

with musical instruments, and enriched with The phrase of "opening the biddings," appropriate costumes, scenery, etc. Rowland which in the English books occurs so fre- v. Kleber (Pa.) 1 Pittsb. Rep. 68, 71. quently in relation to mortgage foreclosure sales, means no more than a further sus- drama, consisting of airs, choruses, recita

An opera is defined to be a musical pension of the sale, and a continuance of the tions, etc., enriched with magnificent scenery, property in the market

. If there should be machinery, and other decorations, and repremade to appear either before or after the sale has been ratified any injurious mis- senting some passionate action. It is there

fore a theatrical exhibition, within license take, misrepresentation, or fraud, the biddings may be opened, the reported sale re IL R. A. 364, 6 Am. St. Rep. 786.

laws. Bell v. Mahn, 15 Atl. 523, 121 Pa. 225, jected, or the order of ratification rescinded, and the property again sent into the market "What is the exact legal meaning of 'an and resold. Andrews V. Scotton (Md.) 2 opera' has been and is the subject of dispute, Bland, 629, 644.

one court holding that an act to tax theaters does not include opera companies—Rowland

v. Kleber (Pa.) 1 Pittsb. Rep. 68and anothOPENLY OUTRAGE PUBLIO DEOENOY.

er, in Society for Reformation of Juvenile

Delinquents v. Diers (N. Y.) 60 Barb. 152, deThe phrase "openly outrages public de ciding otherwise." Commonwealth V. Fox cency,” in Pen. Code, $ 675, making any (Pa.) 10 Phila. 204. person committing any act which seriously disturbs or injures the public peace, or who

OPERA COMPANY. openly outrages public decency, guilty of a misdemeanor, includes the teachings of An opera company are persons who sing the doctrine of anarchy. To give this con- compositions set to music, such as the operas struction to the law in no way abridges the of Mozart, Handel, Rossini, Verdi, etc. An liberty of conscience in matters of religion, opera company need not be licensed under an nor the freedom of speech on all questions act fixing licenses for theaters. Rowland v. of government or of social life, nor does it Kleber (Pa.) 1 Pittsb. Rep. 68, 71. in any way trespass upon the proper freedom of the press.

The point and pith of the OPERA HOUSE. offense of anarchists is that they teach the doctrine that the pistol, the dagger, and As public house, see “Public House." dynamite may be used to destroy the rulers. The teaching of such horrid methods of A house in which operas are represented reaching an end is the offense. In this class is termed an opera house. Rowland v. Kle of cases the courts and the public have too ber (Pa.) 1 Pittsb. Rep. 68, 71. long overlooked the fact that crimes and

The opera house and the theater alike offenses are committed by written or spoken comprehend the stage, proscenium, boxes, words. We have been punishing offenders orchestra, parquet, and the galleries. Bell in other lines for words spoken or written, 7. Mahn, 121 Pa. 225, 229, 15 Atl. 523, 524, 1 without waiting for an overt act of injury L. R. A. 364, 6 Am. St. Rep. 786. to the persons or property. The press is restrained by the law of libel from the too free use of words. People v. Most, 73 N. Y. OPERATE. Supp. 220, 222, 36 Misc. Rep. 139.

See "Cease to be Operated." OPENNESS.

The word "operate” means to put into or Openness and notoriety and exclusive to continue in operation or activity; to work, v ness of possession, as the terms are used in as to operate a machine-and is distinct from the law of adverse possession, are shown by maintaining or keeping in repair. McChessuch acts in respect to the land in its condi- ney v. Village of Hyde Park, 37 N. E. 858, tion at the time as comport with ownership 862, 151 III. 634 --such acts as would ordinarily be perform The expression “used and operated,” as ed by the true owner in appropriating the used in a petition in an action against a railland or its avails to its own use, and in pre- road for personal injuries, stating that the venting others from the use of it as far as defendant used and operated a turntable in reasonably practicable; and nearly akin to connection with its railroad, etc., is equivathese are the acts evidencing the element of lent to a charge that the defendant controlhostility toward all the world. Goodson v. led such turntable. Nagel v. Missouri Pac. Brothers, 20 South. 443, 445, 111 Ala. 589. Ry. Co., 75 Mo. 653, 860, 42 Am. Rep. 418

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