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 *270editor 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 *271suffer 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 *272the 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 *273count 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.