(dissenting). I think the verdict and judgment in this case should be set aside, on account of the intemperate and unjustifiable language used by counsel for the plaintiff in his argument to the jury, which is stated in the opinion of my Brother Morse. It is conceded to have been improper, and that its natural tendency was to greatly prejudice the jury. The remarks were duly objected and excepted to by the defendant’s counsel.
Assuming that defendant’s counsel in his argument to the jury used the language attributed to him in the remarks of plaintiff’s counsel, I do not think that furnishes any excuse for the use of the language complained of. It does not appear that plaintiff’s counsel made any objections to the improper remarks attributed by him to counsel for defendant. Counsel for one side should not be permitted to sit by and listen without objection to improper remarks from the other side, and then be permitted, under objection, to get even by going outside the record himself, and using language like that in the present case. The only orderly and proper way in such a case is for the opposing counsel to object, and ask the court to stop the use of such language. It might as well be contended that, when one counsel permits incompetent evidence to be introduced by the other side without objection, he should be permitted, under objection, to introduce other incompetent evidence; that in such case no complaint can be made. When incompetent evidence has been introduced without objection, the opposite side has, of course, the right to contradict it by other evidence; but the rule extends no further.
*574Plaintiff's counsel would undoubtedly have ■ been justified in meeting the statement of defendant's counsel by a denial, and by an argument upon the statement.. But it needs no argument to show that the language used was not confined within this limit. The law should not, and in my judgment does not, sanction the practice allowed by the court in this case. It is the clear duty of trial courts to see that counsel in their arguments are confined- to the record, and that no improper efforts are used to prejudice a jury.
Judgment should be reversed, and a new trial ordered.