OPENING AND CLOSING. After the evi dence is 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 de fendant's speech. It seems doubtful wheth er it is within the discretion of the court to interfere with this established mode of pro cedure; 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 Ky. 410, 9 S. W. 242. But in some courts it is the practice for the defendant's counsel to open to the jury, fol lowed by the plaintiff's counsel.
Under the federal practice the right rests in the discretion of the court and is not the subject of error ; where the defendant plead ed a partial defense in an action for the price of machinery, but did not, in his an swer, unequivocally admit its sale and deliv ery, it was not an abuse of discretion to per mit the plaintiff to open and close ; Florence Oil & a co. v. Farrar, 109 Fed. 254, 48 C. C. A. 345, Caldwell and Sanborn, C. JJ., and Adams, D. J. Where 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. W. 259, 22 Ky. L. Rep. 1707; so in the distribution of an intes tate's estate where several claimed as next of kin, to the exclusion of all others ; Soren sen v. Sorensen, 68 Neb. 483; 94 N. W. 540,
98 N. W. 837, 100 N. W. 930, 103 N. W. 455 ; where defendant offers no proof, he is en titled to open and close; Moore v. Carey, 116 Ga. 28, 42 S. E. 258; contra, in a personal injury case; De Maria v. Cramer, 70 N. J. L. 682. 58 Atl. 341.
See Best's Right to Begin and Reply ; 14 Yale L. J. 54; TRIAL; Stelnkuehler v. Wemp ner, 169 Ind. 154, 81 N. E. 482, 15 L. R. A. (N. S.) 674 (will cases).
In English Practice. The address made im mediately after the evidence is closed. Such address usually states—first, the full extent of the plaintiff's claims, and the circum stances 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 rea sons why it ought to fail. But the court will sometimes restrict counsel from an an ticipation of the defence; 3 Chitty, Pr. 881.