The natural tendency of the objectionable remarks was to arouse sympathy for the defendant and render the trial unfair. It was an improper attempt to get before the jury a statement of fact favorable to the defendant and prejudicial to the plaintiff, which was not in evidence and, if it had been offered, would have been excluded. The case is not to be distinguished from Caverhill v. Railroad, ante, 330, in which counsel for the plaintiff argued "that the verdict asked was not a very serious matter to the railroad, `taking from them a few coppers, . . . but it means a good deal to her.'" This was held to exceed the limits of legitimate advocacy, and the court said: "The argument was plainly intended to mislead the jury and to lay before them facts which could not be in evidence. Whether it was easy or difficult for the defendants to pay, whether the amount claimed was to them mere loose pocket-change, `a few coppers,' or their entire estate, were matters foreign to the issues before the jury." So in the case at bar, whether the defendant's estate was little or large, or whether it would take all of it to pay the verdict that the plaintiff might obtain, were matters in no way germane to the issues on trial. When exception was taken to the improper statement, it was incumbent upon the defendant to withdraw it, obtain an instruction to the jury not to consider it, and a finding of fact from the presiding justice that the trial was not rendered unfair thereby. Bullard v. Railroad, 64 N.H. 27, 32; Story v. Railroad, *Page 565 70 N.H. 364. No such action having been taken by the defendant, it cannot be said that the trial was not rendered unfair by the improper and prejudicial argument.
Plaintiff's exception sustained: new trial granted.
All concurred.