
    Thomas against Croswell.
    
      NEW YORK,
    
    
      Nov. 1810
    
    To publish of a member of congress, “ he is a fawning sycophant, a miarepresentatire in congress,' and a grovelling office-seeker, he has abandoned his post in congress, in pursuit of an office,” is libellous.
    And whether the person so libelled, did leave his post, thr the purpose hoputed to hho, Or had v~oIated liis duty as a yepresentatke in rougress, arc questidus for the jui'y to decide. Whether pub~ications by the defendant agMnst the plain.
    ~1ff; subsequent to the Bbcl charged in lie dcelai'a±ion, ~nd which are in, themselves UCCIIOOC, - uaii be admitted in evidence to show the malice of the defendant ic publishing the original libel? Qvicre. - -
    Though a person may piiblith a eovrect account of the p~'oeeedings in a court 01 JUStIOC, ~0L 1~ lie (1i~eolours or garbles the proceedings, or adds comments and insinuations of his own Iii order to asperse the character of the pasties concerned, it is libelous.
    THIS was an action for a libel, published in a gakette, called “ The Republican CrisisThe cause was tried at the Washington circuit, in June», 1810, before Mr. Justice ■Van Ness.
    
    
      The libel set forth in the declaration was as follows 5 “ On Friday last the legislature appointed a new treasurer,.' in the room of Mr. L. who has filled the office for several years, and performed the duties with perfect fidelity and ability. This measure had been determined on from the moment Mr. L. took the liberty of exercising the right of a freeman, in supporting such a candidate for governor as he deemed most suitable to fill the office. From that mo~ meat too, a fawning sycophant, by the name of David 7'/w~ ~nas~ (a misrepresentative in coDgress, and a major-general b~r commission,) had fixed his eye upon the office. Ac.~ cordingly, wheti the legislature of the session w~s about
    
      commencing, this Mr. Thomas abandoned his post in congress, and made, his appearance in Albany. The object of his visit was not left to conjecture, for he openly avowed it. Under the circumstances, it was hoped Mr. Thomas would not succeed. It was hoped that the legislature would frown this creeping sycophant, this grovelling office-seeker, back to his duty at Washington; that they would spurn at his impudent attempt at reaching after blessings. But the hope of his disappointment did not rest on this ground alone. Doubts existed both as to his ability and his integrity. We are told that letters were circulated among the members of the legislature previous to taking the question on the appointment, in which it was stated, that this David Thomas, a few years since, was indicted by a grand jury of Washing•» ton county, for receiving a quantity of counterfeit money, with intent to pass it. That on his trial, before the petit jury, one witness expressly swore to the fact; but this witness being an accomplice, his testimony was not deemed sufficient to convict the accused, and on this ground alone he was acquitted.”
    The publication of the libel, on the 2d February, 1808, by the defendant, was proved; and it was admitted, that the paper in which it was published had extensive circulation, and that the libel referred to the plaintiff.
    The defendant read in evidence a record of the indictment, trial, and acquittal of the plaintiff, by which it appeared that the plaintiff was indicted at a court of oyer and terminer, held in Washington county, in the year 1797, for knowingly receiving certain counterfeit bank bills from one Samuel A. Gibbs, with intent to pass them; on which indictment he was tried and acquitted by the jury.
    The defendant then called several witnesses to show what took place at that trial. It appeared that Gibbs and some others, his associates, had been apprehended for passing counterfeit bills, and were confined in gaol in Washington county; and Gibbs sent for the plaintiff, (who ,was the only acting magistrate in Salem, where Gibbs was confined,) for the purpose of making some disclosures. The gaoler was called out of the room and left the plaintiff with Gibbs, ¿ut retui'necl in less than two minutes, and, in the opinion Gf the gaoler, who was a witness, it was not possible for Gibbs to have delivered the bills, as he pretended, to the plaintiff, during the absence of the witness. A witness proved, that Gibbs had said “ he would send the plaintiff to the state prison, if he should roast in hell for doing it and several other witnesses also testified to similar declarations of Gibbs, to show his malice against the plaintiff, and it was proved that he was a person of bad reputation, and destitute of veracity. Gibbs was the only witness on the trial of the plaintiff on the indictment.
    Two newspapers entitled “ The Republican Crisis," one dated the 16th February, and the other the 22d July, 1808, and also two papers called “ The Balance,” dated the 2d and 13th June, 1809, published by the defendant, were offered in evidence to show the malice of the defendant against the plaintiff. The defendant’s counsel objected to reading any papers in evidence, which had been published since the commencement of this suit, but the objection was overruled by the judge. The first two-papers were then proved to have been printed at the press of the defendant; and no objection being made for want of -proving that the other two papers were also printed by the defendant, the whole were read in evidence.
    It was proved that the plaintiff was a member of congress in the winter of 1808, when congress was in session, and that he came from Albany to Washington a short time before he was appointed treasurer of this state, and was in Albany at the time of his appointment, and immediately after entered on the execution of the duties of his office, and did not return again to Washington; and that a paper containing the charge against the plaintiff as to the indictment, &c. was circulated and delivered to several members of the assembly, on the morning of the day of his appointment, and previous to the passage of the bill for that purpose,
    
      The judge charged the jury, that the charges of sycophaacy, grovelling office-seeking, and misrepresentative m congress, were clearly libellous; but if the jury believed that the plaintiff had abandoned his post in congress in pursuit of the office of treasurer, and that such abandonment of his place, was a violation of his duty as a member of the house of representatives, the charges were substantially supported, and that it was not necessary for the defendant to prove them literally true. As to the other part of the libel, he observed, that it was undoubtedly true that the defendant had a right to publish a correct statement of the indictment against the plaintiff, and of his trial and acquittal ; yet, when he undertook to make such publication, it was his duty to give a true statement. That the defendant, in this case, put the plaintiff’s acquittal solely on the ground, that Gibbs, the only witness who testified against him, stood in the light of an accomplice, when, according to the evidence, it appeared that his credit was otherwise materially impeached. His honour was, therefore, of opinion, that the plaintiff was entitled to recover, though he did not think the innuendoes in the plaintiff’s declaration were warranted by a true construction of the libel; but that the jury had a right to judge, taking into consideration the whole libel and' the evidence, whether it was the intention of the defendant to charge the plaintiff with being guilty of the crime for which he had been indicted. That if they .found a verdict for the plaintiff, they ought to give him such damages as, under all circumstances, they should think him entitled to receive. The jury found a verdict for 400 dollars damages.
    A motion was made to set aside the verdict and for a new trial.
    
      Z. R. Shepherd and Van Vechten, for the defendant.
    1. The admission in evidence of newspapers published after the alleged libel, and subsequent to this action^ was improper. It may be said that they were admitted merely to show the intention or malice of the defendant. But malice or evil intention is the very essence of a.libel, and evidence of malice furnishes ground to the jury to enhance the damages. If the subsequent publications prove the malice of the defendant, and aggravated damages are given on account of the supposed malignity of the author, the plain-! tiff will recover damages also for the subsequent publica- ■ tions, though not libellous.
    But, publications since the commencement of the action cannot show the intention of the defendant in publishing the original libel; for the last publication may have been provoked or justified by the subsequent conduct of the plaintiff. Such evidence is irrelevant, and ought not to be admitted to prejudice the defendant. The subsequent publications, if examined, will not .justify any inference of malice; and it was improper to permit them to have any influence with the jury, so as to enhance the damages.
    Again, the plaintiff must state his complaint specifically, so that the defendant may come prepared to meet it; but how can he be supposed to be prepared to meet subsequent publications not stated in the declaration. In Mead v. Daubigny,
      
       Lord Ellenborowgh refused to admit evidence of other words spoken by the defendant, as were in themselves actionable, being clearly of opinion that such evidence was not admissible.
    2. The judge misdirected the jury. He, should not have left it to them to decide whether the plaintiff, by leaving congress, had violated his duty. Again, the defendant is not liable to an action for publishing a correct statement of what took place at the trial of the plaintiff ; and if the substantial fact is justified, the innuendoes in the declaration were immaterial. The innuendoes are not warranted by.the context; the jury ought, therefore, to have been directed to find for the defendant.
    The publication was substantially true; its object was to animadvert on the legislature; there was no evidence of malice towards the plaintiff.
    
      J. Russell and Skinner, contra.
    1. There are numerous decisions which show that other papers, libellous as well as not libellous, published after as well as before the action, may be given in evidence to show the intention of the defendant, or quo animo he spoke the words or published the libel; though the jury must give damages only for the libel charged in the plaintiff’s declaration. This doctrine was laid down by Lord Kenyon, in Mead v. Daubigny, and Lee v. Huson,
      
       and by Lord Ellenborough, in Plunkett v. Cobbett,
      
       and Rustell v. Maquister.
      
       . The evidence is not admitted to increase the damages, but merely to prove the fact of publication, or the intention of the defendant.
    111T1 « 2. To decide whether the judge was correct in stating to the jury that the plaintiff was entitled to recover, the court must determine on what is the true construction of the libel. In the case of Stiles v. Nokes,
      
       it was held libellous to publish a highly coloured account of judicial proceedings, interwoven with the party’s own comments, conclusions and insinuations.
    If the innuendoes are not pertinent or material, they may be rejected as surplusage. The truth or falsehood of innuendoes, is matter of fact for the consideration of the jury.
    
    
      
      
        Peake's N. P. 125. But see Peake's N. P. 166.22.
    
    
      
       2 Burr. 307. S Term Rep. 293. 1 Bos. ξ Pull. 525.
    
    
      
      
        Peake's N. P. Cases, 125.
      
    
    
      
      
        Ibid. 166. See also Peake, 22, 75.
      
    
    
      
       Selwyn's N. P. 931.
    
    
      
       1 Campb. N. P. 49. note.
      
    
    
      
       7 East, 493.
    
    
      
      
         9 East, 93.
    
    
      
       3 Term Rep. 428.
    
   Spencer, J.

delivered the opinion of the court. The grounds taken in support of the motion for a new trial, are, 1. That newspapers pubüshéd after the libel, were admitted in evidence, and without being proved to have been published by the defendant; 2. For the misdirection of the judge; 3. Because the verdict was against evidence.

The papers supposed to have been improperly admitted in evidence were two newspapers, entitled "The Republican Crisis,” of the 16th of February and 22d July, 1808. The libel was published in a paper of that title of the 2d of February, 1808, and that paper, it was admitted, was published by the defendant, and it was also admitted that he was the editor and publisher of that paper from the 20th of January to the 1st or December, 1808. It was proved by Rey-nolds, a printer, that on comparing the papers of the 16th of February and 22d of July, wiih the one containing libel, they were printed at the same press. This evidence proved the defendant to have been the printer of the two papers objected to, in as full a manner as was necessary. The papers, “ Albany Balance, and New-York State Journal,” of the 2d and 13th June, 1809, were not objected to, as the case states, for want of proving that they were printed by the defendant.

The question, then, is, was it proper to give in evidence publications made after the libel. It has not been objected that they were libellous; and the plaintiff’s counsel put their right to reading them on the ground that they afforded evidence of the defendant’s malice in the original publication. . The nisi prius decisions on this point are somewhat contradictory. All of them agree that in actions .for written or verbal slander, other and posterior publications or words, not actionable, may be given in evidence to show malice. In Rustell v. Maquister, (1 Campb. N. P. 48. in the notes,) Lord Ellenborough said, that although there had been formerly such a distinction, it was not founded on any principle; that any words, as well as any act of the defendant, may be given in evidence to show quo animo he spoke the words; but that the judge should tell the jury to give damages only for the words which were the subject of the action.

■ In Mead and Daubigny, (Peake's N. P. 126.) and Cook v. Field, (3 Esp. N. P. Cas. 33.) Lord Kenyon refused to permit words actionable, spoken afterwards, to be given in evidence. But in Lee v. Huson, {Peake, 166.) in an action for a libel, the same judge suffered other libellous papers to be given in evidence.

Perhaps this is not the occasion to lay down any rule on the subject, it not being necessary to this case, nor do the court mean to do it. But I should think it incorrect to suffer distinct libellous matter to be given in evidence ; for though the judge might instruct the jury not to give damages for such libels, yet it would imperceptibly influence their judgments as to the damages, and thus the defendant might be tv/ice punished for the same offence.

On the point of misdirection, the judges charge is objected to in three respects ; 1. In leaving a question of law to the jury, whether the plaintiff had violated his duty in leaving Washington and soliciting the office of treasurer;

2. That the innuendoes give a sense not warranted by the context in this, that the libel did not amount to the charge that the plaintiff was guilty of the crime of receiving a quantity of counterfeit money, with intent to pass the same knowing it to be counterfeit, and that on this ground the judge ought to have charged the jury to find for the defendant;

3. That the defendant’s publication of the plaintiff’s trial was substantially true; that its object was to animadvert on the legislature, and therefore it ought to have been submitted to the jury whether there was malice in the defendant towards the plaintiff, as evidenced by the libel.

It must be a matter of fact whether the plaintiff’s leaving Washington and coming to Albany, for the office of treasurer, (if he did so,) was or was not a violation of duty; and this would depend upon the circumstance whether he had leave of congress to absent himself or not. Unexplained, it is to be presumed that he had such permission. It can-pot be pretended that a member of congress is so far bound to yield his personal attendance, that absence, with leave of the body to which he belongs, is a violation of duty. Congress have a right to enforce the attendance of members,, and they have a right to dispense with such attendance. Congress are the judges, and no man is obnoxious to the charge of abandoning his duty there, who leaves it by permission; but this question is at rest by the verdict of the jury.

An innuendo, as has been often decided, cannot add or enlarge, extend or change the sense of the previous words pnd the matter to which it alludes must always appear from the antecedent parts of the declaration; but when the new matter stated in an innuendo is not necessary to support the action^ it may be rejected as surplusage. ■ (1 Chitty, 383, 9 East, 93. Roberts v. Camden.)

The judge admitted the defendaiit’s right to publish a correct account of the plaintiff’s trial, but limited this right to the publication of a true history of it; and he stated, that the defendant had put the plaintiff’s acquittal solely on the ground, that Gibbs, the only witness, stood in the light of an accomplice, when it appeared that his credit was otherwise materially impeached, and that on this ground the plaintiff was entitled to recover.

There is not a dictum to be met with in the books, that a man, under the pretence of publishing the proceedings of a court of justice, may discolour and garble the proceedings by his own comments and constructions, so as to effect the purpose of aspersing the characters of those concerned. In the case of Stiles v. Nokes, (7 East, 493.) the court laid down the true distinction; and whilst they admitted that a fair account of judicial proceedings might be published with impunity, they held that the writer could not introduce his own comments, insinuating the commission of perjury. It is impossible to read the libel in this case, without understanding that the defendant meant to insinuate that the plaintiff had received the counterfeit money with intent to pass it. But it is said that the animadversion was not on the plaintiff, but on the legislature, for appointing the plaintiff treasurer without investigation. How was the legislature blamable for making the appointment, unless the indictment and trial of the plaintiff, as published by the defendant, held up the plaintiff as probably guilty, notwithstanding his trial and acquittal ? If the only witness stated himself to be an accomplice, and was otherwise totally discredited, from the infamy of his character, and his malice tow-.rds the plaintiff, (and on these grounds the plaintiff was acquitted,) what investigation was to be made? I am perfectly satisfied that the libel contains a highly coloured ao count of the proceedings, that it suppresses, for bad purposes, material facts, and that it conveys insinuations of the plaintiff’s guilt, unauthorized by the trial and the facts which transpired at the time of the trial; and if so, the inference of maiffe was inevitable.

T' ese remarks have anticipated the last point raised, that the v ■•flier was against evidence. I will only add, that the vis'd" »J was, in my opinion, perfectly correct.

Motion denied.  