exception, but the counsel proceeded, and read the remainder of the article. It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve, and it ought not to be narrowed by any close construction, but should be interpreted in the largest sense. The right of counsel to address the jury upon the facts is of public as well as private consequence, for its exercise has always proved one of the most effective agencies in the ascertainment of truth by juries in courts of justice, and this concerns the very highest interest of the state. The jury system would fail much more frequently than it now does, if freedom of advocacy should be unduly hampered, and counsel should be prevented from exercising, within the four corners of the evidence, the widest latitude by way of comment, denunciation, or appeal in advocating his cause. This privilege is not beyond regulation by the court. It is subject to be controlled by the trial judge in the exercise of a sound discretion, to prevent undue prolixity, waste of time, or unseemly criticism. The privilege of counsel, however, does not justify the introduction into his summing up of matters wholly immaterial and irrelevant to the matter to be decided, and which the jury have no right to consider in arriving at their verdict. The jury are sworn to render their verdict upon the evidence. The law sedulously guards against the introduction of irrelevant or incompetent evidence, by which the rights of a party may be prej. udiced. The purpose of these salutary rules might be defeated if jurors were allowed to consider facts not in evidence, and the privilege of counsel can never operate as a license to state to a jury facts not in evidence, or to weigh considerations which have no legitimate bearing upon the case, and which the jury would have no right to consider. Where counsel in summing up proceeds to dilate upon facts not in evidence, or to press upon the jury considerations which the jury would have no right to regard, it is, we conceive, the plain duty of the court, upon objection made, to interpose, and a refusal of the court to interpose, where otherwise the right of the party would be prejudiced, would be legal error. There are many cases sustaining this conclusion. Among them are Mitchum . State, 11 Ga 616; Tucker v. Henniker, 41 N. H. 317; Rolfe v. Rumford, 66 Me. 564. The reading by counsel in summing up to the jury of the newspaper article "Only a Boy Peddler" was wholly irrelevant to the case. It could have been read for no purpose except to inflame the jury against corporations, and to lead them, under the influence of a just anger excited by the incident

opinion.

narrated, to give liberal damages to the plaintiff in the case on trial. The refusal of the court to interfere, under the circumstances of this case, was legal error. The privilege of counsel, and the largest liberality in construing it, did not authorize such a totally irrelevant and prejudicial proceeding. The counsel also during the summing up read a passage from the opinion of this court in the Reading from Lahr Case, 104 N. Y. 291, after objection taken by the defendant's counsel had been overruled by the court. It is not important to consider the exception to this ruling, as the appellant is entitled to a reversal for the reason already stated. It may be observed, however, that it is the function of the judge to instruct the jury upon the law, and, where counsel undertake to read the law to the jury, the judge may properly interpose to prevent it. But if the judge sees fit to permit this to be done, and the law is correctly laid down in the decision or book used by counsel, it would not, we think, constitute legal error or be ground of exception by the other party, although such a practice is not to be encouraged. If, however, the reading from a decision was to bring before the jury the facts of the case decided or the amount of the verdict, or the comments of the judge on the facts, to influence the jury in deciding upon the facts in the case on trial, or in fixing the amount of damages, then, clearly, the reading ought not to be permitted. We think the judgment in this case should be reversed, upon the exception taken to the reading of the newspaper article. Judgment reversed, and new trial ordered. All concur.

Misconduct of Counsel in Addressing the Jury-Attempts to Excite Prejudice Against Railways and Corporations.-In actions against railway companies it is a matter of frequent occurrence for plaintiff's counsel to attempt to gain advantage and secure a large verdict from the jury, by inveighing against railway corporations and attempting to excite prejudice and inflame the minds of the jury. It is needless to say, that with the average jury, no particular ability or skill is required to do this; a little bombast and granger oratory will usually suffice. It is also needless to say that if it can be seen that this superfluous rhetoric has an influence upon the verdict, it will be set aside. The principal case is a good illustration of this. In addition we append in this note, a digest of a number of cases showing what misconduct of this kind warrants a new trial and what does not not.

In Galveston, H. & S. A. R. Co. v. Kutac, 72 Tex. 643, 37 Am. & Eng. R. Cas., 470, the action was to recover damages for the death of plaintiff's mother. Plaintiff's counsel in addressing the jury said: "These powerful railroad corporations will not do justice to anyone unless compelled to do it. If they were to kill your horse to-day, they would not pay you anything for it but they would tell you to sue and go to the court for your money and then they would fight you with all their power. They will take any advantage of you they can, no matter how just your case. Now, I hope you will make them pay the last cent you can in this case for killing their mother." Held, that the use of such language was improper; and that the

fact that the jury returned "for the full amount sued for" showed that it had been influenced by the language employed, notwithstanding the direction of the court to pay no attention to it.

In Atchison, T. & S. F. R. Co. v. Dwelle (Kan.), 44 Am. & Eng. R. Cas. 402, the action was brought to recover damages for the alleged wrongful and forcible ejection of plaintiff from a passenger train. Plaintiff's counsel in addressing the jury said, that the defendant company was a powerful corporation which holds its employes in a vise and requires them to testify at its dictation; that railroad companies are looked upon with suspicion and prejudice, and that such prejudice is well founded; that the government gave railroads a great amount of valuable land; that nothstanding all these things, the railroad companies make a determined effort to bleed the people. Counsel further inveighed against railroad companies, claiming that they control legislation, and stating that the act in relation to the collection of excess fare was for the benefit of railroad companies, and was dictated by them. Counsel further stated that the odor around railroad offices was demoralizing, and tended to make men disregard their solemn oath; that railway employes were educated to throw baggage and destroy it, and to snub passengers, and not to give civil answers; that the employes perform the bidding of the company without regard to right or wrong; and that they testify falsely when the company wishes it; that few men dare to litigate with a railroad company because it has a legal department and is indifferent to expenses. Counsel made a comparison between defendant company and another company which he said treated everybody decently and rightfully. In speaking of witnesses who had given testimony against plaintiff, counsel made an allusion to the fact that there was a man killed about six years before and that there were some of those witnesses who would cut another man's heart out, and would kill another man's cow, and would steal another man's rocks, and that these were the kind of men whom the company brought to assail plaintiff's reputation. These statements were not based upon testimony. The court held that an excessive verdict for the plaintiff should be set aside, and a new trial granted.

In Gulf, C. & S. F. R. Co. v. Norfleet (Texas), 45 Am. & Eng. R. Cas. 207, the action was for personal injuries. Plaintiff's counsel in addressing the jury said: "This plaintiff after he has worked all day, suffers so he cannot sleep, and he has to work because he has a widowed mother to support." Verdict for $2,000. Held, that there was no reason to believe that the language influenced the verdict.

In Galveston, H. & S. A. R. Co. v. Cooper, 70 Tex. 67, which was an action for personal injuries, plaintiff's counsel said to the jury: "You ought to deal severely with these bloated corporations that can run their road right through a man's house or yard." There was a verdict for the amount sued for, $20,000. Held, that it was evident that the jury had been improperly influenced and a new trial was granted.

In Central Texas & N. W. R. Co. v. Hancock (Texas), 27 Am. & Eng. R. Cas. 325, the action was for personal injuries received while plaintiff was a passenger on defendant's train. Plaintiff's counsel in arguing before the jury said, that the case was a contest of wealth against poverty; that one of defendant's witnesses was the employed agent of the company, and had watched plaintiff, and had suborned witnesses with railroad money; that the railroad had skilled attorneys who were endeavoring to play 'cute tricks; and that the defendant was a rich corporation and had employed able counsel to denounce plaintiff for a fraud and a liar, who had endeavored to manufacture testimony wherewith to rob a rich corporation; that the defendant had cast aspersions on the good name and character of plaintiff's wife. Counsel concluded by saying: "I tell you gentlemen, such testimony and such defense as that aggravates this case. Not con

tent with having injured, crippled and ruined him for life, they come into court and ridicule his injuries, denouncing him as a fraud and liar, and cast aspersions upon his family. You should compensate him for this, gentlemen, and teach this rich corporation that they shall not make such attacks upon the fathers of this country." Held, that the remarks of counsel warranted the setting aside of an abnormal verdict, and the granting of a new

trial.

In Missouri Pacific R. Co. v. Metzger, 24 Neb. 90, 35 Am. & Eng. R. Cas. 148, the action was brought to recover the value of two horses killed on defendant's track. Plaintiff's counsel, during his argument called the attorneys for the defendant, "the hirelings of Jay Gould," and one of them "one of the leaders of the Van Wyck boom in this county now defending corporations." The court held, that the language, however objectionable, was not so far prejudicial as to justify a reversal of a judgment for the plaintiff, since the verdict did substantial justice.

In Central R. Co. v. Mitchell, 63 Ga. 173, 1 Am. & Eng. R. Cas. 145, it was held that the natural bias of servants or employes of a railroad company, was a matter for legitimate comment of counsel before a jury.

In Huckshold 7. St. Louis, I. M. & S. R. Co., 90 Mo. 548, 28 Am. & Eng. R. Cas. 659, the suit was instituted to recover damages for the killing of plaintiff's minor son. In addressing the jury, counsel said: "In a case of this kind the law fixed the penalty at $5000. What, in the name of common sense, do railroad companies care for $5000. If they want to make issue, what, in the name of common sense, do they care for that? And yet they have the heart to come here, and say that you ought to find a verdict for the defendant, and let the railroad companies kill all the men and boys they please." To this objection was made, but the court declined to inter fere. Held, that the appellate court would not reverse the judgment, since it only interferes when the discretion of the trial court has been abused.

In East Tennessee, V. & G. R. Co. v. Bayliss, 75 Ala. 466, 22 Am. & Eng. R. Cas. 596, which was an action against a railway company to recover damages for injuries to stock, counsel for the plaintiff, appellee in this court, speaking, in his concluding argument before the jury, of an engineer who was in charge of defendant's train at the time of the injury, and who had been examined as a witness on behalf of the defendant, said: “Engineers on railroads, like this engineer have to emigrate if they do not conform to the wishes of their employers, and testify as their employers' interests require; they testify with a halter around their necks. Held, on exception reserved thereto by defendant, that if this had been stated as an inference or opinion, based on the witness' connection with the railroad, and with the act complained of as negligent, counsel would have kept within legitimate bounds. But having been stated as a fact, not as an inference or opinion, and the bill of exceptions, which purported to set out all the evidence, not showing any fact or circumstance in evidence which justified such a line of argument, it should have been ruled out, and the jury cautioned against allowing it to have any influence with them; and the failure of the court to so rule was a reversible error.

In Gulf, C. & S. F. R. Co. v. Fox (Texas), 35 Am. & Eng. R. Cas. 543, the action was for personal injuries and the plaintiff's counsel in closing his address to the jury said: "I tell you, gentlemen of the jury, that $10,000 is no money for the plaintiff in this case. Here he is without money and without friends; in this his day of adversity you should come to his aid." Held, that the jury appearing uninfluenced by this appeal, the misconduct was immaterial.

In Strouse v. Kansas City, St. J. & C. B. R. Co., 86 Mo. 421, 27 Am. & Eng. R. Cas. 170, the action was for personal injuries, and plaintiff's counsel in addressing the jury said, in commenting upon the absence of a ma

terial witness: "Why won't he come? While he was in their service he swore to suit them, and will not come now to swear to the truth for fear of being prosecuted for perjury by this soulless railroad corporation." The court interfered no further than to tell the jury in substance, that they were only to consider such matters as were shown by the evidence. Held, that the appellate court could not say that the trial court exercised its discretion improperly.

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In East Tennessee, V. & G. R. Co. v. Gurley, 12 Lea (Tenn.), 46, 17 Am. & Eng. R. Cas. 568, the action was for the death of plaintiff's husband. Counsel in addressing the jury said : You can, and you should out of the abundance of this company, take enough to keep this woman and her children from want all the days of their lives." Upon objection taken at the time the court said: "Let it pass. Held, that all questions of punitive damages being excluded by the court, the language used by the counsel was not sufficient ground for a new trial.

In Houston & T. C. R. Co. v. Nichols (Texas), 9 Am. & Eng. R. Cas. 361, which was an action against a railroad company by a passenger upon one of its passenger trains for damages received by the plaintiff in an accident alleged to have been occasioned by the company's wanton disregard of its legal obligations, and by its gross negligence in running its train, and in permitting its bed and track to become grossly defective and unfit for use, wherein the plaintiff recovered $2,000 for actual damages and $8,000 for exemplary damages, the court trying the cause permitted the counsel for the plaintiff, in his closing argument, over the objection of the defendant, to read to the jury, as was read by plaintiff's counsel in the opening argu-' ment, the following quotations from Redfield on Carriers, coupled with the statement that the author was counsel for railway companies where he lived, viz.: "Section 539. The truth is, that common juries, with the highest instincts of justice, have always, in our country, been accustomed to view the matter of railway responsibility for passenger transportation in the light of higher and fuller responsibility than either the courts or the profession, etc. Held, error sufficient to entitle defendant to a new trial.

In Battishill v. Humphreys, 64 Mich. 514, 34 Am. & Eng. R. Cas. 69, the action was for personal injuries, and plaintiff's counsel in his argument to the jury said that the attorneys for the defendant, the Wabash system and the Vanderbilt system, received $15,000 a year, and appealed to the prejudices of the jury with regard to Vanderbilt and Gould. The record, in this case, did not show the remarks made, or the connection in which they were made. The court did not set aside the verdict.

In International & G. R. Co. v. Irvine, 64 Tex. 529, 23 Am. & Eng. R. Cas. 518, which was an action for personal injuries, plaintiff's counsel in his argument to the jury used the following language: "Everybody knows that railroad companies carry their cases through all the courts of the country, and never pay any claims against them until the last measure of litigation is exhausted." Held, that the verdict being satisfactory, there was no reason to believe that the language of the counsel had any effect upon the jury.

In Chicago & A. R. Co. v. Bragonier, 13 Bradw. (Ill.) 467, the action was for personal injuries, and plaintiff's counsel read to the jury from a newspaper the following article: "That reminds me said Captain

of a little scene that occurred in the Board of Public Works some time ago. A gentleman was in the office who had invented a car-coupling, and like all inventors he was loud in its praises, and enlarged on the safety it insured to life and limb. Mr. was in the office at the time, listening attentively to the inventor's laudation of his machine. At last, breaking in, he said: My friend are you aware that the thing you propose to protect is the cheapest item that a railroad has to deal with? If your machine