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agreement an article was dictated by the plaintiff and published by the defendant in the Evening News on the 13th day of September, 1882.

In pursuance of the order of the circuit court the defendant filed a bill of particulars of the matters relied upon under his plea of justification. The general verdict was accompanied by special findings of fact in response to questions presented to the jury by counsel on both sides, and submitted to them under special instructions relating to the same. The record contains a bill of exceptions purporting to give the substance of all the testimony in the case. defendant assigns sixty-six errors. In the sixty-second assignment it is claimed no testimony was offered by plaintiff to maintain the statements of his counsel in his opening, of plaintiff's wide-spread and great reputation. There was sufficient testimony offered tending to support this state

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Counsel for plaintiff, in his opening to the jury, in stating the character of the Evening News and its conduct by the defendant, said: "This has been an extraordinary publication from the outset. It has not been a mere chronicler of news, but in its own peculiar way it has pandand "to the public appetite for vile, indecent slanders upon reputable men in this and other communities. It has been the boast of its editors and publishers, from the time the sheet was started, that it could afford to pay the damages awarded in actions of libel, by reason of the increased circulation which the publication of those libels would give it. Soon after the publication of this sheet began, libel suits rained down upon it like hail. Action after action and prosecution after prosecution followed, and then James E. Scripps thought it advisable to shield himself under the cover of a corporate organization," called "The Evening News Association," and under that shield he has continued the publication of the

paper.

The vile letter mentioned in the alleged libelous article was addressed to C. D. Brenton, and to account for letters

being received by Mrs. Wardle, at the post-office, directed to that name, counsel for plaintiff, in his opening to the jury, stated that in the year 1881 Mrs. Wardle formed the acquaintance of a Miss A. G. Brenton, who lived in Hamilton, and afterwards in the city of Detroit, and asked the young lady to correspond with her, which she consented to do; that Mrs. Wardle wrote to Miss Brenton, but instead of addressing her letters to A. G. Brenton, directed them to C. G. Brenton, and in accordance with a request upon the envelope, the letters were returned to her at Tilsonburg post-office, in the province of Ontario; that in this manner she received two letters thus returned, one from Detroit and the other from Saginaw; that Mrs. Wardle, after discovering the mistake, sent to and received from Miss A. G. Brenton, at Detroit, several letters, in which an understanding was had between them that Miss Brenton was to visit Mrs. Wardle; that Mrs. Wardle also talked freely with her daughter Lizzie and Miss Ostrander, who was staying with Mrs. Wardle's family, about these letters, and that her husband also knew of the correspondence with Miss A. G. Brenton. Referring to the statements in the alleged libelous article, counsel for plaintiff further said to the jury:

"I will show you that James E. Scripps knew they were not true; that he inquired into them, and he was told they were not true, and that he endeavored to back out of this and publish a complete retraction for the sum of $300. 'Three hundred dollars have I expended in proving the guilt of Donald Maclean, and now if you, Donald Maclean, will pay over the $300, I will take back this malodorous. mud which this mud-flinging institution on Shelby street, which I have established, has thrown upon you, and not only upon you, but upon all men both fair and foul.""

To account for the origin of the Brenton letter,—the one mentioned in the libelous article,-and to show the probability of its being a forgery, counsel for the plaintiff further stated to the jury:

"In the jealousies which are engendered by the strife for professional success, Dr. Maclean has made enemies;" he is "a man that sticketh closer than a brother, and a man who strikes hard when he does strike; and the result has been

that while he has gathered about him a band of friends who will stand about him till the end, he has also bitter enemies -men who would rejoice in his downfall, men who would conspire to his downfall, men who would leave nothing undone to accomplish his downfall; and it may be, if this letter was received by Wardle-I don't know-it may be that this letter was the work of their hands. There was a man, and he now walks in the city of Detroit, who stated that he would drive Prof. Maclean from the University. He says: Damn him, I will drive him from the University. He has everything to lose, and I have nothing to lose.' He made his boasts openly. He was seen riding with the attaches of the Evening News. He walked about and drove about with the reporters of the Evening News just before this publication appeared. And when Dr. Farrand went with Prof. Maclean to see James E. Scripps, Dr. Farrand says: 'It is the work of this man,' naming him; 'it is the work of this man. He has threatened to drive Maclean out of the University repeatedly, and this is part of the scheme to that end.' James E. Scripps did not deny it, gentlemen of the jury,—James E. Scripps did not deny that this letter was published at the instigation of this man. And we shall

show you, gentlemen of the jury, that when this letter appeared this man was seen walking through the streets of Detroit, with the Evening News in his hand, saying, 'Damn him, I have got Maclean now. I have put up this job on him, and if this will not drive him from the University I have got something that will.' Gentlemen of the jury, this scheme is in complete accord with the the whole course of the News. For the past few years its columns have been filled with attacks upon the professional schools of the University. Article after article appears, attack after attack, aspersions not alone upon the head of the University; and this, gentlemen, may have been,-I don't know as it is, but we shall put before you all the facts just as we have them, and leave you to judge,—I say, gentlemen of the jury, this attack may have been a part of the scheme."

For the avowed purpose of showing malice, counsel for the plaintiff stated to the jury that among other things, the plaintiff would prove that one Michael J. Dee

"purported to represent Mr. Scripps in a negotiation which a friend of Dr. Maclean undertook, unknown to Dr. Maclean. Mr. Tom S. Applegate, editor of the Adrian Times, looked into the matter of this letter. He is an

He

acquaintance of Dr. Maclean of many years' standing. has corresponded with him from time to time, and knows his handwriting thoroughly. He looked into it in order to know about it. He looked at a photograph of the letter and became convinced that it was not in the handwriting of Dr. Maclean. He went to see Mr. Scripps, and found Mr. Dee. Mr. Dee said he represented Mr. Scripps. If Mr. Scripps denies this, and says he does not represent him, what I say goes for nothing. But Mr. Dee said: 'I represent Mr. Scripps, and I am ready to talk with you about it.' Mr. Applegate said to Mr. Dee: 'Now I have examined this letter, and it is not in the handwriting of Dr. Maclean. There is no doubt about it.'

Defendant's Counsel. Why do you state this?"

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Plaintiff's Counsel. Because it shows the malice of James E. Scripps in doing what he subsequently did.' Mr. Dee, after talking with Mr. Scripps, and knowing what Mr. Applegate thought about it, having every reason to believe that this letter did not emanate from Dr. Maclean, said: If you will pay what expense we have been to so far, $300, we will drop the whole matter and take it all back.' I stated that to you in another connection. It has a bearing in this case in many ways, but it has a bearing upon the aspect of the case in which James E. Scripps seeks to escape the consequences of this publication under the plea of privilege. It shows that James E. Scripps knew or had reason to know, that this publication was false; and notwithstanding that, he not only put upon the records of this court a plea of justification charging Dr. Maclean with the authorship of this letter, but in addition to that he published the charge broadcast in the Evening News."

All the foregoing statements made by counsel for plaintiff, in his opening to the jury, are objected to by the defendant, and are made the subject of his assignments of error numbered 63, 64 and 65. When these statements were made, it was with the avowal of plaintiff's counsel (he being interrogated upon the subject) that he proposed "to offer evidence of everything" he stated.

The testimony, as stated by counsel, if given, and believed by the jury, would prove the defendant an habitual libeler, and his paper a dispenser of slime; that in the present case he maliciously inflicted an injury upon plaintiff of the most

atrocious character, without the least justification or excuse, and so known to be by defendant at the time he did it; and that he was a blackmailer of the meanest sort, offering to retract his false and libelous statement for the sum of $300.

Counsel further made statements which, if believed by the jury, would sufficiently explain and make clear every suspicious circumstance connecting the plaintiff with the Brenton letter and Mrs. Wardle's receipt of letters addressed to that name. The testimony proposed must be conceded to have been material; but when the evidence in the case was closed no testimony had been given to establish any of the facts thus laid before the jury in the opening of the case by plaintiff's counsel, whose reputation for ability, candor and integrity was in some measure a guaranty that the facts were as stated, and that proofs would be made of the

same.

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The facts alleged in the paragraphs of plaintiff's opening objected to, if they existed, were competent testimony for the plaintiff in making out his case; and the promise of his counsel that he would prove them should have been redeemed or the statements should not have been made. impressed upon the minds of the jury not only the facts stated, but a theory of the case which could not have been inferred from the evidence independently of those facts. They gave a coloring to very much of the evidence that. made it false, and other portions unreliable and delusive and prejudicial to the defendant to an extent beyond any known means of ascertaining by court or counsel. They could not fail to impress the jury unfavorably towards the defendant, and they were allowed to remain as presented, without comment, throughout the trial. Such a state of things cannot exist and a fair trial be had or justice in the case be properly administered.

The mischief complained of in the opening statements of counsel has, on several different occasions, received the attention of this Court. In the case of Scripps v. Reilly 35 Mich 371, which was for libel, counsel for the plaintiff

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