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It is error for the presiding justice to permit counsel, in addressing the jury, against

seasonable interposition, to proceed with his argument upon asserted facts not in evidence and having no legitimate pertinency to the issue.

On exceptions and motion.

Case, for injury to plaintiff's wife through defective town way, January 15, 1874.

The case was on trial nearly a week and resulted in a verdict for the plaintiffs of $275, which they moved to set aside for inadequacy, as against law and evidence. They also filed the following bill of exceptions :

“E. G. Harlow, one of the counsel of the defendants, in his closing argument to the jury at the trial of said case, was permitted by the court, against the seasonable objection and protest of the counsel for the plaintiffs, to state to the jury the amount of damages recovered in other cases than the one on trial, concerning which no testimony had been offered, and which was not in any law report, and to declare as matter of fact that said cases were identical or similar to the one then on trial; and to argue that the damages in the case on trial should in no event be greater than the damages found by the jury in the cases so commented upon ; and further, that the cause of action in the case on trial had probably passed out of the control of the plaintiffs in the case, and of the administrator of Elizabeth S. Rolfe, and to state to the jury certain alleged facts as to the death by consumption of other persons than the said Elizabeth S. Rolfe, alleged by said Harlow to be within his knowledge, but concerning which no testimony was offered ; and to argue to the jury that the counsel for plaintiffs came from another county, and had appeared in other cases against other towns in Oxford County, and had recovered damages therein against said towns, although no evidence was offered touching the same, which statements and arguments the plaintiffs' counsel seasonably requested the court to exclude, but which the court declined to exclude. The presiding judge failed to give any instructions touching said acts, arguments, and statements of alleged facts done and made by said counsel for the town, except that the facts were to be settled from the testimony in the case given under oath.”

A. A. Strout f S. C. Andrews, for the plaintiffs.
E. G. Harlow, for the defendants.

, VIRGIN, J. We think the learned judge before whom this case was tried erred in permitting the counsel for the defendants, against the seasonable interposition of the plaintiffs' counsel, to proceed with his argument upon asserted facts not in evidence and having no legitimate pertinency to the issue.

It is indispensable to the orderly course of judicial procedure and an

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impartial administration of the laws, that those officially engaged in the trial of causes shall faithfully observe the established rules of practice. The Constitution guarantees to the parties of a cause the right of a trial by a jury duly constituted, and to have the trial conducted according to the course and usage of the common law and the long established rules of judicial proceedings ; and whenever these rules are substantially violated, the right of the parties litigant is to that extend denied.

The law, with great care, prescribes numerous rules for determining the admissibility of the facts to be submitted to the jury, vigilantly and scrupulously excluding from their consideration all such as do not come within the rules. These rules require among other things that the facts shall be material and pertinent to the isue; and that, when not contained in documents, they shall be delivered under the sanctions of an oath, and their truthfulness tested by cross-examination. Even a juror's own personal knowledge of pertinent facts cannot be considered by himself and his fellows in making up their verdict, unless it take on the form of testimony by being delivered from the stand by the juror under oath as a witness. Otherwise, testimony which might influence a verdict would escape the ordeal of cross-examination and discussion. As a sequence of these rules, one of the essential elements in the trial by jury is, that they are sworn to render their verdict in accordance with such facts only as are adduced at the trial; and whenever it is rendered without evidence, against evidence, or upon incompetent evidence which may have come to the knowledge of the jurors by direct ruling in the court-room, or by accident or mistake outside of the court-room, it is liable to be set aside and a new trial granted.

So the courts have usually been very firm, whenever occasion has required, in confining counsel within proper and reasonable bounds to whatever is pertinent to the matter on trial. Statements of alleged facts not adduced in evidence, and comments thereon, are irrelevant, not pertinent, and are therefore clearly not within the privilege of counsel; and any such practice on the part of counsel should be promptly checked, especially when objected to by the other side. Berry v. State, 10 Ga. 511; Mitchum v. State, 11 Ga. 615; Bullock v. Smith, 15 Ga. 395; Dickerson v. Burke, 25 Ga. 225; Wightman v. Providence, 1 Clifford, 524; Tucker v. Henniker, 41 N. H. 317.

In this connection we adopt the views of the courts of Georgia and New Hampshire, expressed in the following forcible and felicitous language :

“ It is irregular and illegal for counsel to comment upon facts not introduced in evidence before the jury, and not legally competent as evidence. The counsel represents and is a substitute for his client; whatever, therefore, the client may do in the management of his cause may be done by his counsel. The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the cause, both as to the law and the facts, is unabridged. The range of discussion is wide. He may be heard in argument upon every question of law. In his addresses to the jury, it is his privilege to descant upon

the facts proved, or admitted in the pleadings; to arraign the conduct of the parties ; impugn, excuse, justify, or condemn motives, so far as they are

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developed in evidence, assail the credibility of witnesses, when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance on the stand, or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wings to his imagination.

"To his freedom of speech, however, there are some limitations. His manner must be decorous. All courts have power to protect themselves from contempt; and indecency in words or sentiments is contempt. This is a matter of course in the courts of civilized communities, but not of form merely ; for no court can command from an enlightened public that respect necessary to an efficient administration of the law, without maintaining, in its business proceedings, that courtesy, dignity, and purity which characterize the intercourse of gentlemen in private life..

“When counsel are permitted to state facts in argument, and to comment upon them, the usage of courts regulating trials is departed from, the laws of evidence are violated, and the full benefit of trial by jury is denied. It may be said, in answer to these views, that the statements of counsel are not evidence; that the court is bound so to instruct the jury, and that they are sworn to render their verdict only according to the evidence. All this is true; yet the necessary effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances; and if they in the slightest degree influence the finding, the law is violated, and the purity and impartiality of the trial tarnished and weakened. If not evidence, then manifestly the jury have nothing to do with them, and the advocate has no right to make them. It is unreasonable to believe the jury will entirely disregard them. They may struggle to do so, and think they have done so, and still be led involuntarily to shape their verdict under their influence. That influence will be greater or less, according to the character of the counsel, his skill and adroitness in argument, and the force and naturalness with which he is able to connect the facts he states with the evidence and circumstances of the case. To an extent not definable, yet to a dangerous extent, they unavoidably operate as evidence which must more or less influence the minds of the jury, not given under oath, without cross-examination, and irrespective of all those precautionary rules by which competency and pertinency are tested.” Nesbit, J., in Mitchum v. State, supra; Fowler, J., in Tucker v. Henniker, supra. See also Baldwin's Appeal (Conn.), 3 L. & Eq. Rep. 409.

Whether or not the verdict is so inadequate as to warrant us in setting it aside upon the motion, we have not considered it necessary to express an opinion. In actions of this nature, the principles upon which damages are assessed are very indefinite at best, and therefore very much is necessarily left to the good judgment and sound discretion of the jury, Hence, when, as in the case at bar, the testimony is conflicting on several points, courts are very reluctant to interfere with the verdict on the alleged ground of excessive or inadequate damages, except when it is so large or so small as to show that it is the result of perverse judgment or gross error, or that the jury had acted under undue motives or miscon

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ception. Therefore we do not pass upon the motion. But inasmuch as that part of the closing argument to which exceptions are alleged was clearly illegal and violative of the rights of the plaintiffs, and, urged by an experienced counsel of high character and acknowledged ability, must have necessarily had more or less influence upon the minds of the jury, notwithstanding the instruction of the presiding justice that the case must be settled from the sworn testimony, we think the exceptions must be sustained.

Exceptions sustained.


(To appear in 67 N. H.)



PERLEY v. B., C. & M. R. R. CO.

Damages assessed by the proper board for land taken by a railroad corporation are in

full, and it is not open to the land-owner to prove that certain other causes of damage were not considered. The land-owner is not to be prevented from the reasonable and prudent use of his land

by reason of the improper construction of the railroad; and if, using his land in a reasonable and prudent manner, he suffers damage from such improper construction, he may recover his damages, notwithstanding such use of his land was subsequent to the construction of the railroad.

CASE, for injuries to the plaintiff's land and wharf on the Winnipiseogee River, below and adjoining the defendants' railroad. Trial before Stanley, J., and a jury.

The declaration contained four counts, the substance of which was that the plaintiff was the owner of a certain tract of land adjoining the railroad, on which he had erected a wharf, and that the defendants had improperly constructed their bridge over said river, so that the water thereof was diverted from its natural course, and turned upon the plaintiff's wharf, whereby it was washed out, undermined, and injured. Plea, the general issue, with a brief statement of the statute of limitations.

The facts sufficiently appear in the opinion. Verdict for the defendants. The questions arising upon certain instructions to the jury were transferred to this court.

Pike f Blodgett, and Stone, for the plaintiff.
Mugridge, Whipple, and Jewell f Smith, contra.

CUSHING, C. J. The charge of the court seems to me to have been, in most respects, an admirable statement of the relative rights and duties of the plaintiff and the defendants. There is, however, one part of the charge which is open to objection. The court told the jury, "that if no injury would have been occasioned to the plaintiff by the construction of the bridge by the defendants, in the manner in which it was constructed, if the plaintiff had not placed his wharf where he did place it, the de


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fendants were not liable ; that the plaintiff had no right to take advantage of the acts of the defendants to their prejudice; that if the acts of the defendants were wrongful, and yet if the plaintiff would not have been injured if he had allowed his property to remain as it was before the wrongful acts of the defendants, the defendants are not liable; that if the construction of the wharf was the immediate cause of the damage complained of by the plaintiff, he cannot now recover damages therefor.” The words “take advantage of” seem to imply an intention on the part of the plaintiff to build his wharf in such manner as to expose it to injury from the defendants' bridge, and if the charge went no further than this I should hold it to be correct; but I think the charge really does go further, to the extent of holding that the plaintiff, if he used his land for wharves, was to do so at his own peril; and that if using all reasonable care and skill in their erection, they should still be injured by the wrongful acts of the defendants in building their bridge, he would be without remedy. This was, I think, going too far.

If a town negligently suffers its highway to be insufficient, the traveller cannot, therefore, take advantage of that neglect by unreasonably exposing himself to danger; and if he do so, he will be without remedy. But if in the exercise of ordinary care and prudence, such as the circumstances of the case require, he suffer injury from the negligence of the town, he may recover.

So in this case, although the plaintiff could not take advantage of the wrongful acts of the defendants, still, if using reasonable care and skill in the erection of his wharf he should suffer injury by such wrongful act, I cannot see that it makes any difference that the plaintiff's erection was after and not before that wrongful act in point of time.

The court were requested by the plaintiff to give the following instructions :

I. That it is immaterial whether or not the bridge was built before the wharf ; that priority in use by either the plaintiff or the defendants would confer no right upon either to obstruct or divert the natural and accustomed channel of the river to the injury of the other.

II. That the plaintiff had the right to make a reasonable use of the river bank along his shores for any beneficial purpose he pleased, and a like right to the use of the water of the river, provided his use was not to the injury of the defendants.

These instructions were correct in themselves, and were calculated to qualify that part of the charge which has been found objectionable. If, however, that part of the charge had remained, I do not think that its effect would have been certainly removed by adding these instructions to the charge.

The next two requests were as follows:

III. The defendants have not the right under their charter to divert or obstruct the natural current of the river to the injury of the plaintiff, unless such diversion was the natural and necessary consequence of the erection of a proper bridge across said river.

IV. That if in the erection of said bridge more piers were put in than was necessary, or if they were placed so as to divert or obstruct the natural current more than was necessary, or if the natural channel of the VOL. IV.


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