Stewart v. Hamilton , 28 How. Pr. 265 ( 1865 )

Barbour, J.

I think it is not good practice to non-suit upon the plaintiff’s opening address to the jury, and for the reason alone, that he has failed to state to them sufficient facts to constitute a cause of action, although I am aware that such a practice has obtained in some of our courts.

In his opening, the plaintiff’s counsel may properly, and usually does, state such facts only, as he desires to impress upon the minds of the jurors. To hold him, in his address, to the exactness and certainty of a pleading, would, in many cases, be to impose upon him a duty which it would be exceedingly inconvenient, if not impossible for him to perform, orally. Indeed, I see no reason why he may not state to the jury, or refrain from stating, just so much of the case as his judgment dictates.

I do not mean to say that a fatal admission, made by the plaintiff’s counsel in his opening, may not entitle the defendant, thereupon, to a judgment dismissing the complaint, without the formality of taking evidence, which must, necessarily, be useless. This motion, however, is not based upon such an admission, but, merely, on the ground that the counsel has not stated, in his opening, sufficient facts to constitute a cause of action.

It must, therefore, be denied.