York to New Orleans, is not an open account, within the meaning of the statute barring actions on open accounts in three years. Caruthers v. Mardis' Adm'rs, 3 Ala. 599, 601.

An open account is one in which the amount due has not been ascertained or fixed either by the act and agreement of the parties or by operation of law, Nisbit v. Lawson, 1 Ga. (1 Kelly) 275, 287; Anderson v. State, 2 Ga. (2 Kelly) 370, 374; Hargroves V. Cooke, 15 Ga. 321, 332; and is usually raised by one party only, and is an ex parte affair, and is open until agreed to by the other; but when the debtor has acknowledged the justice of the account, and it is no longer the act of one party, but the agreement of both, the account becomes liquidated. Hargroves v. Cooke, 15 Ga. 321, 332.

Whether the account consists of a single item or many items, if the terms of the contract have not been adjusted by agreement of the parties, the demand is an open account. Gayle's Adm'r v. Johnston, 72 Ala. 254, 47 Am. St. Rep. 405.

In strict legal phraseology, an open account is a debt not reduced to writing, which is subject to future adjustment, and may be reduced or modified by proof, such as accounts running between merchants, a mer

chant's account for the sale of goods, and all other of like character. Smith v. Ellington, 14 Ga. 379, 382.

An account is open and current when it is running, not closed, settled, or stated, so that there are reciprocal demands between the parties-something upon which either party could sustain an action. Taylor v. Parker, 17 Minn. 469, 473 (Gil. 447, 451).

An open account is one in respect to which nothing has occurred to bind either party by its statements, or an account which is yet fully open to be disputed. Abb. Law Dict. The word "open" indicates that there is something undetermined by the contract of the parties or by the application of settled rules of law, and an account cannot be said to be open when no term of the contract remains to be settled by agreement of the parties. McCamant v. Batsell, 59 Tex. 363, 368.

When an account is stated and rendered, and no objection is made to it, it is no longer an open account, but becomes liquidated. Anderson v. State, 2 Ga. (2 Kelly) 370, 374.

"The term 'open account' is used in opposition to a stated account wherein the account is closed by an assent to its correctness by a party charged." Whittlesey v. Spofford, 47 Tex. 13, 17.

An account which is signed and rendered by the debtor with the statement, in detail, of the debtor and creditor items, is not

an open account, within the meaning of the statute of limitations. Dixon v. Lyons, 13 La. Ann. 160.

"There is no element of an open or unliquidated account in the indebtedness of one tenant in common to his co-tenant for rents collected. It is more in the nature of an action for money had and received by one person to the use of another, or that of an implied trust, rather than an express trust." Hairston v. Sumner, 17 South. 709, 106 Ala. 381.

Within the meaning of the statute fixing limitations to a right of action on an open account, an account of an agent with his principal is not an open account, and an action thereon is not limited by such statute. Dolhonde v. Laurans' Widow, 21 La. Ann. 406.

"Open," as used in an instruction in an action against a city for injuries from a defective sidewalk, stating that, if the defect was open and notorious, the city was chargeable with notice thereof, means not concealed; not hidden; exposed to view; apparent word is very frequently used-and the jury -a secondary signification in which the would not understand the court to refer to a defect consisting of an open hole in the

sidewalk. Kelleher v. City of Keokuk, 15

N. W. 280, 281, 60 Iowa, 473.

A demand for money collected by plaindefendant's intestate jointly is not an open tiff on a judgment in favor of himself and account. Bradford v. Barclay, 39 Ala. 33.

OPEN AND GROSS LEWDNESS.

The phrase "open and gross lewdness," in a statute making open and gross lewdness criminal, is not equivalent to the phrase "gross lewdness in an open place." The word "open" has no reference to place at all, nor to the number of people. It is used simply to define a quality of the act of lewdness. It is open lewdness as opposed to secret lewdness. It defines the same act, regardless of whether it is committed in the presence of one or of many. State v. Juneau, 59 N. W. 580, 581, 88 Wis. 180, 24 L. R. A. 857, 43 Am. St. Rep. 877; Commonwealth v. Wardell, 128 Mass. 52, 53, 35 Am. Rep. 357.

"Open," as used in Rev. St. c. 99, § 8, providing a punishment for open and gross lewdness, etc., means undisguised, not concealed, and opposite to private, concealed, and unseen. State v. Millard, 18 Vt. 574, 577, 578, 46 Am. Dec. 170.

St. 1784, c. 40, § 6, providing that open and gross lewdness and lascivious behavior shall be punished, etc., does not include the commission of such behavior in secret, notwithstanding the parties are observed by a

third person without their knowledge. Commonwealth v. Catlin, 1 Mass. 7, 8.

OPEN AND NOTORIOUS INSOLVENCY. The doctrine that the maker of a note must be in "open and notorious insolvency," before recourse can be had to the assignor, means not merely the want of sufficient property to pay all of one's debts, but the absence of all property, within reach of the law, applicable to the payment of any debt. Hardesty v. Kinworthy (Ind.) 8 Blackf. 304, 305; Somerby v. Brown, 73 Ind. 253, 256. Property in possession of an assignee in bankruptcy is not only within reach of the law, but in the actual custody of the law. Somerby v. Brown, 73 Ind. 253, 256.

OPEN AND PEACEABLE ENTRY.

A statute providing for the foreclosure of a mortgage by "open and peaceable entry" on the mortgaged premises, and possession thereof peaceably for three years, means an entry not opposed by the mortgagor or persons claiming the premises, and made in the presence of two witnesses, whose certificates are sworn to and recorded within 30 days in the registry of deeds as required by Gen. St. c. 140, § 182. Thompson v. Kenyon, 100 Mass. 108, 111.

OPEN BULK.

"Open bulk," as used in Acts N. C. 1891, c. 331, providing that persons selling seeds in packages unmarked by the date when such seeds were grown, except farmers selling seeds in open bulk to other farmers or gardeners, shall be guilty of a mis demeanor, means in the mass; exposed to view; not tied or sealed up. Used in the connection they are in this act, they do not relate to the quantity that may be sold; nor does the statute restrict it to an ounce or less, or require a bushel or more to be sold. In re Sanders (U. S.) 52 Fed. 802, 804, 18 L. R. A. 549.

OPEN CORPORATION.

An open corporation is where all the citizens or corporators have a vote in the election of the officers of the corporationusually applied to municipal corporations. McKin v. Odom (Md.) 3 Bland, 407, 415.

OPEN COURT.

The term "open court," within the meaning of a chancery rule declaring that the chancery court shall be deemed always open for certain purposes, signifies the time when the court can exercise its functions. Ex parte Branch, 63 Ala. 383, 387.

The phrase "in open court," as used in the statute requiring an application for certiorari to be made to the inferior court of common pleas of the county, in open court, is used to emphasize the distinction be tween the court in public session, and one or more judges of the court exercising the judicial functions in chambers. Where the record avers that "the application was made to the court of common pleas held at F., in and for the county of H., of the term of September, 1891, three judges being present," it sufficiently indicates that it was done in open court. Conover v. Bird, 28 Atl. 428, 429, 56 N. J. Law (27 Vroom) 228.

Code, § 2222, declaring that no divorce shall be granted on the testimony of the plaintiff, but that all such suits shall be heard in open court, means a court which is in session, organized for the transaction of official business. Hobart v. Hobart, 45 Iowa, 501, 503.

OPEN ESTATE.

"Open," as used in reference to the rule that, so long as an estate is open, the accounts of the executor and administrator in the orphans' court are subject to revision and correction as to any matter discovered to be in error, means not finally closed and settled. Martin v. Jones, 39 Atl. 102, 103, 87 Md. 43.

OPEN FOR BUSINESS.

See "Actually Open for Business."

Within the meaning of the term in an insurance policy providing that the books and inventory of a business should be kept in an iron safe when the store was not open for business, the expression "not open for business" meant such ordinary occasions as Sundays and holidays, and after the store had closed at night; and where it appears that the store had been burned during business hours, and it does not appear that the premises were ever actually closed, such store will not be held not to have been open for business, within the meaning of the policy, the requirement of the policy being rather that the books should be placed in a place of safety, than that they should be inserted in the safe in all cases of fire. Phoenix Ins. Co. v. Schwartz, 41 S. E. 240, 241, 115 Ga. 113, 57 L. R. A. 752, 90 Am. St. Rep. 98.

In a statute imposing a penalty upon any one permitting his place to be open for the purpose of traffic on Sunday, it is clearly and manifestly the intention of the statute to close the places and houses therein mentioned against barter, sale, and traffic on Sunday; and it is meant that no selling should occur in these places or houses on Sunday, and that traffic shall be cut off

entirely on that day. Whitcomb v. State, 17 S. W. 258, 259, 30 Tex. App. 272.

OPEN HOUSE.

An open house is defined by Rev. St. 1895, art. 3380, as one in which no screen or other device is used or placed either inside or outside of such house or place of business for the purpose of obstructing the view through the open door or entrance into such house or place of business. Where intoxicating liquors are sold in quantities less than a quart, a partial obstruction of the view in a saloon precludes it from being an open house. Componovo v. State (Tex.) 39 S. W. 14. Under this statute and definition, it is held that the statute is not violated by a partition of the room in which the liquors are sold for the purpose of renting a part of it, not to obstruct the view, and which does not in fact obstruct the view of the bar from the front door. State v. Andrews, 82 Tex. 73, 75, 18 S. W. 554. See, also, State v. Drake, 86 Tex. 329, 335, 24 S. W. 790; State v. Austin Club, 89 Tex. 20, 25, 33 S. W. 113, 30 L. R. A. 500.

OPEN MANNER.

Act Jan. 19, 1852, providing that it shall be unlawful for any one to carry a deadly weapon about his person, not "in an open manner and fully exposed to view," does not mean that, if any part of the barrel of a pistol was stuck down in the pocket, it would constitute a violation of the statute, but must be construed as meaning that the weapon must be carried in such a manner that others who might come in contact with the person might see that he was an armed and dangerous person, who was to be avoided in consequence, and only requires that the weapon should be exposed sufficiently to view to enable any person to see and know that it was a weapon. Stockdale v. State, 32 Ga. 225, 227.

OPEN POLICY.

An open policy of insurance is one in which "the amount of liabilities is left open to be determined according to the actual loss, either by agreement of the parties, or upon proof and compliance with its terms or with the rules of evidence." Riggs v. Home Mut. Fire Protection Ass'n, 39 S. E. 614, 618, 61 S. C. 448.

An open policy is one in which the sum to be paid as indemnity in case of losses is not fixed in the contract, but is left open, to be proved by the claimant, or to be determined by the parties. This determination is called an "adjustment of the loss." Fire Ins. Ass'n v. Miller (Tex.) 2 Willson, Civ. Cas. Ct. App. § 332.

6 WDS. & P.-8

An open or running policy of insurance 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 policy" is sometimes meant in the United States one in which an aggregate amount is expressed in the body of the policy, and the specific amounts and subjects are to be indorsed from time to time. Corporation of London Assurance v. Paterson, 32 S. E. 650, 655, 106 Ga. 538.

A valued policy is where the value of the subject insured is agreed upon by the ticular amount or rate, it is an open policy. parties. If it is not estimated at any parCox v. Charleston, F. & M. Ins. Co. (S. C.) 3 Rich. Law, 331, 332, 45 Am. Dec. 771.

Where a policy for marine insurance was in the form of a valued policy, and, after a statement of the subject insured, there appeared the phrase, "Valued at $

as indorsed," but the blank was not filled in, and there was no indorsement as to value, it was held that the failure to fill the blank or to make any indorsement as to value constituted the policy an open policy, and not a valued policy. Snowden ▼. Gulon, 5 N. E. 322, 326, 101 N. Y. 458.

A

The term "open fire policy" includes any policy, unless it appears to have been the intention of the parties thereto, upon a fair and reasonable construction upon its form, to value the loss, and thereby fix by contract the amount of the recovery. on a dwelling policy for a certain sum house, containing a stipulation that the company will pay the assured the loss or damage, not exceeding the sum assured, is an Farmers' open, and not a valued, policy. Ins. Co. v. Butler, 38 Ohio St. 128, 134.

An open policy is a personal contract, and, when made on the insured's own account, the terms are that the assured causes himself to be insured and takes insurance for a given sum for a specified voyage, for a term of time, upon the ship and goods on board her, against the perils of the sea and other risks. Such a policy is always held to be an open policy, and to entitle the insured, in case of loss, whether partial or total, to an indemnity and recompense to the amount of his actual loss by the perils from which the contract professes to protect him. Laurent v. Chatham Fire Ins. Co., 1 N. Y. Super. Ct. (1 Hall) 41, 48.

A fire policy issued to indemnify a contractor against loss he may sustain by reason of the building which he has contracted to build in case of its destruction, to a sum not exceeding a designated sum, is an open policy. It does not mean that as soon as the house is destroyed by fire the insured shall be entitled to recover the sum designated, but means that he is to recover that

S. C. 459.

V.

An open policy is one in which the value of the thing insured is not agreed upon, but is left to be ascertained in case of loss. Civ. Code Cal. 1903, § 2595; Rev. Code, N. D. 1899,

4496; Civ. Code S. D. 1903, § 1846.

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

In an open policy of insurance, for which an aggregate amount is expressed, there are as many contracts for insurance as there are indorsements on the policy of separate shipments of goods. If the open policy contained all the conditions which govern the shipments of goods specially insured under the policy, and the company reserves the right to reject or accept each special insurance in each shipment, the contract must be regarded as made at the domicile of the company issuing the open policy. State v. Williams, 15 South. 290, 291, 46 La. Ann. 922.

OPEN RISK.

An open and visible risk is such as would in an instant appeal to the senses of an intelligent person. It is one so patent that a person familiar with the business would instantly recognize it. Johnston v. Oregon, S. L. & U. N. Ry. Co., 31 Pac. 283, 286, 23 Or. 94.

OPEN SEASON.

"Open season," as used in the game and fish act, means the season wherein the killing of game is permitted. Rev. St. Okl. 1903, 3076.

OPEN STORE.

The term "open store," as used in Code, § 5542, imposing a penalty on any merchant or shopkeeper who "keeps open store" on Sunday, implies something more than opening the door of a shop or store or keeping the door open. It involves the keeping open of the store as such-the opening up of the business carried on in the house, and the exposition to sale of the wares stored there for sale. The words in and of themselves mean the opening up and keeping open the

"Open store," as used in Code 1876, § 4443, prohibiting any merchant or shopkeeper from keeping open store on Sunday, is construed not to mean the mere act of keeping the door of the store open, but the keeping of a door open, and by means thereof the selling of merchandise or other articles kept there for sale. "If the parties intended a sale, whether payment was presently made or expected to be made afterward, the statute was violated." Snider v. State, 59 Ala. 64, 67.

OPEN TO OCCUPATION AND PURCHASE.

Rev. St. U. S. § 2319, declaring that mineral deposits are free and open to exploration and purchase, and the land in which they are found is open to occupation and purchase to a certain extent or amount

the land to that extent constituting a mining claim under the law when the same is properly located-means that the absolute title may be acquired in the land. This language will not bear the interpretation that the government intended thereby to sell to the purchaser of a mining claim a mining easement therein, or simply the right to occupy and possess the mining claim for the necessary use of the mineral vein. The right to occupy and to purchase means the right to acquire the full title. Silver Bow Min. & Mill. Co. v. Clark, 5 Pac. 570, 574, 5 Mont. 378.

OPEN VENIRE.

Open venire, in Dakota, is where the marshal of the United States for the territory selects and summons jurors as at common law. United States v. Beebe, 11 N. W. 505, 507, 2 Dak. 292.

OPENING.

Rev. St. art. 4427, declaring that all railway corporations which fence their right of way may be required to make openings through their fences and over their roadbeds at prescribed distances, does not require open crossings, although literally an opening in a fence may be said to mean an unobstructed way through it. But in common parlance the word does not always, have such significance, beings sometimes used to indicate a way through that is capable of being used as a mode of ingress and egress to and from the inclosure. As the word is used in the statute, it does not require the construction of an open crossing. Missouri, K. & T. Ry. Co. v. Chenault, 60 S. W. 55, 58, 24 Tex. Civ. App. 481. See,

OPENING THE BIDDINGS.

The phrase of "opening the biddings," which in the English books occurs so frequently in relation to mortgage foreclosure sales, means no more than a further suspension of the sale, and a continuance of the

property in the market. If there should be made to appear either before or after the sale has been ratified any injurious mistake, misrepresentation, or fraud, the biddings may be opened, the reported sale rejected, or the order of ratification rescinded, and the property again sent into the market and resold. Andrews v. Scotton (Md.) 2 Bland, 629, 644.

OPENLY OUTRAGE PUBLIO DE

CENCY.

The phrase "openly outrages public de cency," in Pen. Code, § 675, making any person committing any act which seriously disturbs or injures the public peace, or who openly outrages public decency, guilty of a misdemeanor, includes the teachings of the doctrine of anarchy. To give this construction to the law in no way abridges the liberty of conscience in matters of religion, nor the freedom of speech on all questions of government or of social life, nor does it in any way trespass upon the proper freedom of the press. The point and pith of the offense of anarchists is that they teach the doctrine that the pistol, the dagger, and dynamite may be used to destroy the rulers. The teaching of such horrid methods of reaching an end is the offense. In this class of cases the courts and the public have too long overlooked the fact that crimes and offenses are committed by written or spoken words. We have been punishing offenders in other lines for words spoken or written, without waiting for an overt act of injury 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. Supp. 220, 222, 36 Misc. Rep. 139.

OPENNESS.

Openness and notoriety and exclusiveness of possession, as the terms are used in the law of adverse possession, are shown by such acts in respect to the land in its condition at the time as comport with ownership -such acts as would ordinarily be performed by the true owner in appropriating the land or its avails to its own use, and in preventing others from the use of it as far as reasonably practicable; and nearly akin to these are the acts evidencing the element of hostility toward all the world. Goodson v. Brothers, 20 South. 443, 445, 111 Ala. 589.

An opera is a composition of a dramatic kind, but set to music and sung, accompanied with musical instruments, and enriched with appropriate costumes, scenery, etc. Rowland v. Kleber (Pa.) 1 Pittsb. Rep. 68, 71.

An opera is defined to be a musical drama, consisting of airs, choruses, recitations, etc., enriched with magnificent scenery, machinery, and other decorations, and representing some passionate action. It is therefore a theatrical exhibition, within license 1 L. R. A. 364, 6 Am. St. Rep. 786. laws. Bell v. Mahn, 15 Atl. 523, 121 Pa. 225,

"What is the exact legal meaning of 'an opera' has been and is the subject of dispute, one court holding that an act to tax theaters does not include opera companies-Rowland v. Kleber (Pa.) 1 Pittsb. Rep. 68—and another, in Society for Reformation of Juvenile Delinquents v. Diers (N. Y.) 60 Barb. 152, deciding otherwise." Commonwealth v. Fox (Pa.) 10 Phila. 204.

OPERA COMPANY.

An opera company are persons who sing compositions set to music, such as the operas of Mozart, Handel, Rossini, Verdi, etc. An opera company need not be licensed under an act fixing licenses for theaters. Rowland v. Kleber (Pa.) 1 Pittsb. Rep. 68, 71.

OPERA HOUSE.

As public house, see "Public House."

A house in which operas are represented is termed an opera house. Rowland v. Kleber (Pa.) 1 Pittsb. Rep. 68, 71.

The opera house and the theater alike comprehend the stage, proscenium, boxes, orchestra, parquet, and the galleries. Bell v. Mahn, 121 Pa. 225, 229, 15 Atl. 523, 524, 1 L. R. A. 364, 6 Am. St. Rep. 786.

OPERATE.

See "Cease to be Operated."

The word "operate" means to put into or to continue in operation or activity; to work, as to operate a machine-and is distinct from maintaining or keeping in repair. McChesney v. Village of Hyde Park, 37 N. E. 858, 862, 151 Ill. 634.

The expression "used and operated," as used in a petition in an action against a railroad for personal injuries, stating that the defendant used and operated a turntable in connection with its railroad, etc., is equivalent to a charge that the defendant controlled such turntable. Nagel v. Missouri Pac. Ky. Co., 75 Mo. 653, 660, 42 Am. Rep. 418.