By the Court,
Nelson, J.
The plaintiff, on the trial, abandoned in open court all the counts in his declaration except the third, and restricted his claim to damages to a distinct portion of the libellous matter alleged in that count. It contained the essence of the whole charge, and severely arraigned the conduct and character of the plaintiff. That the plaintiff had the right thus to limit the subject matter in litigation to a specific point, is beyond question, and indeed was not contested on the argument. 7 Johns. R. 120.
The charge relied on to sustain the action was, in substance, that while the plaintiff was acting or pretending to act upon a committee appointed by the people of Monroe county to investigate the masonic outrage, he furnished money to enable one of the offenders to escape from justice ; and that he had solemnly and deliberately sworn that he disapproved of the whole outrage, and had had no agency in it before or after its commission.
The counsel for the defendant offered to read in evidence a portion of a stipulation in writing between the parties as to admissions to be made on the trial, from which the above publication was read, which was objected to as irrelevant, embracing other publications between the parties on other and different occasions. All the matters admitted by the stipulation were in terms subject to legal exceptions as to their ad[22]*22missibility in evidence. Upon this offer, a question arose on the trial which it may be proper to notice. The counsel insisted upon reading from the stipulation the parts objected to, to enable the judge to understand the question, while the latter requested that the paper should be handed to him, and he would examine it for himself; which was refused. Questions involving the admissibility of evidence belong exclusively to, and are to be considered and decided by the court; and we are unable to discover any well founded reason why the judge should be compelled to hear the counsel read the document objected to, upon this preliminary inquiry, if he chooses to ex-| amine it for himself. The only legitimate object of reading it is to put the court in possession of the contents, which is most effectually attained by submitting it to his perusal. Even the adverse counsel is entitled to the inspection of a paper thus offered in evidence, before it can be read, to enable him to object to its admission, if he thinks proper to do so; and it would be strange if the same privilege did not belong to the court when an objection is made to it. There are obvious reasons why the power thus claimed should be possessed, as the practice of offering inadmissible testimony is liable to abuse and is sometimes abused when it rests in parol, with a view improperly to influence the jury. The character of the counsel forbids any such inference in this case. We are satisfied, however, that he erred in refusing to submit the stipulation to the inspection of the judge, and that the judge would have been justified in rejecting it solely upon that ground. But waiving this point, and conceding the stipulation to be before the court, as the counsel proposed to read the whole of the matter embraced in it, if any part was inadmissible, it was properly rejected on the general offer: and as specific parts were proposed to be read subsequently, and which must be' met upon the merits, it will be material to examine only the questions thus distinctly raised, as the decision of them will meet both the general and specific offers of the evidence made and rejected.
It is settled in this court, in the case of Beardsley v. Maynard, 4 Wendell, 336, and in the court for the correction of errors, 7 id. 560, S. C., that the previous publications of a [23]*23plaintiff are not admissible in evidence by way of shewing a provocation in palliation of the libel of the defendant, unless they be so recent as to afford a fair presumption that the libel complained of was published under the impulse of passion produced by them, and which the law will regard in consideration of the frailty of our nature. When and under what circumstances the law will or will not permit the administration of justice to be influenced by these considerations in this action, was discussed and settled in that case, so far as any general rule on the subject can be established. It is at least clear that the defendant does not come within, and cannot receive the benefit of it in this case. The doctrine, also, that previous publications were admissible to prove the plaintiff a common libeller, or that the libel complained of was but the retort of crimination, with a view to mitigate the damages, was, in the case of Beardsley v. Maynard, examined and repudiated. Under evidence of the general bad character of the plaintiff, and which it is competent for the defendant to' give, he has the benefit of any particular defects or blemishes in the character of the plaintiff; and the retort of crimination, we have seen, is regarded with indulgence only when founded upon a reasonable provocation. On neither of these grounds was the evidence offered in this case admissible.
There is but one other ground upon which its admissibility can be claimed, that 1 can conceive of, or that has the sanction of any authority of which I am aware, and that is when the previous publication is material to afford explanation, and a right understanding of the purport, meaning and object of the article charged as libellous. Whether such will be its operation and effect, must from necessity always be a question for the court, to be determined upon an examination of the several articles. When admitted, their weight and influence, explanatory of the alleged libel, belong to the jury, under a proper direction, and ffe effect will be as various as the na-’ ture and character of the different publications. In some cases, articles on their face clearly calumnious may, by reference to the previous publications and which are explanatory of them, become harmless or justifiable ; in others, the tone of crimination and vindictiveness will be softened and subdued, [24]*24and though not justifiable or excusable, the tendency wiH be to mitigate the damages claimed. There are many cases in the books, the decision of which are founded upon, or are illustrative of the above view. Hotchkiss v. Lathrop, 1 Johns. R. 286; Southwick v. Stevens, 10 id. 443; Beardsley v. Maynard, 4 Wendell, 336, in this court; and Sir J. Carr v. Hood and another, and Tobert v. Tipper, 1 Campb. 351, and note. May v. Brown, 3 Barn. & Cress. 113. Wakeman v. Johnston, 1 Ry. & Moody’s N. P. R. 422. In all these cases in which previous publications were admitted, their tendency was to elucidate and explain the libellous article in question1; and, without them, its-scope and design would not have been fully comprehended by the court or jury. The principle and reason of their admission are intelligible and sound, and the practical operation and effect just to all. Every means are thereby afforded to the defendant and all concerned to ascertain the true intent and purpose of the libel, and the innocent or defamatory character, as the case may be, which belongs to it. Beyond the above view, I know of no good or substantial reasons for admitting previous publications in evidence ; and without such the inconvenience and embarrassment in the trial of the cause require their rejection.
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By the Court,
Nelson, J.
The plaintiff, on the trial, abandoned in open court all the counts in his declaration except the third, and restricted his claim to damages to a distinct portion of the libellous matter alleged in that count. It contained the essence of the whole charge, and severely arraigned the conduct and character of the plaintiff. That the plaintiff had the right thus to limit the subject matter in litigation to a specific point, is beyond question, and indeed was not contested on the argument. 7 Johns. R. 120.
The charge relied on to sustain the action was, in substance, that while the plaintiff was acting or pretending to act upon a committee appointed by the people of Monroe county to investigate the masonic outrage, he furnished money to enable one of the offenders to escape from justice ; and that he had solemnly and deliberately sworn that he disapproved of the whole outrage, and had had no agency in it before or after its commission.
The counsel for the defendant offered to read in evidence a portion of a stipulation in writing between the parties as to admissions to be made on the trial, from which the above publication was read, which was objected to as irrelevant, embracing other publications between the parties on other and different occasions. All the matters admitted by the stipulation were in terms subject to legal exceptions as to their ad[22]*22missibility in evidence. Upon this offer, a question arose on the trial which it may be proper to notice. The counsel insisted upon reading from the stipulation the parts objected to, to enable the judge to understand the question, while the latter requested that the paper should be handed to him, and he would examine it for himself; which was refused. Questions involving the admissibility of evidence belong exclusively to, and are to be considered and decided by the court; and we are unable to discover any well founded reason why the judge should be compelled to hear the counsel read the document objected to, upon this preliminary inquiry, if he chooses to ex-| amine it for himself. The only legitimate object of reading it is to put the court in possession of the contents, which is most effectually attained by submitting it to his perusal. Even the adverse counsel is entitled to the inspection of a paper thus offered in evidence, before it can be read, to enable him to object to its admission, if he thinks proper to do so; and it would be strange if the same privilege did not belong to the court when an objection is made to it. There are obvious reasons why the power thus claimed should be possessed, as the practice of offering inadmissible testimony is liable to abuse and is sometimes abused when it rests in parol, with a view improperly to influence the jury. The character of the counsel forbids any such inference in this case. We are satisfied, however, that he erred in refusing to submit the stipulation to the inspection of the judge, and that the judge would have been justified in rejecting it solely upon that ground. But waiving this point, and conceding the stipulation to be before the court, as the counsel proposed to read the whole of the matter embraced in it, if any part was inadmissible, it was properly rejected on the general offer: and as specific parts were proposed to be read subsequently, and which must be' met upon the merits, it will be material to examine only the questions thus distinctly raised, as the decision of them will meet both the general and specific offers of the evidence made and rejected.
It is settled in this court, in the case of Beardsley v. Maynard, 4 Wendell, 336, and in the court for the correction of errors, 7 id. 560, S. C., that the previous publications of a [23]*23plaintiff are not admissible in evidence by way of shewing a provocation in palliation of the libel of the defendant, unless they be so recent as to afford a fair presumption that the libel complained of was published under the impulse of passion produced by them, and which the law will regard in consideration of the frailty of our nature. When and under what circumstances the law will or will not permit the administration of justice to be influenced by these considerations in this action, was discussed and settled in that case, so far as any general rule on the subject can be established. It is at least clear that the defendant does not come within, and cannot receive the benefit of it in this case. The doctrine, also, that previous publications were admissible to prove the plaintiff a common libeller, or that the libel complained of was but the retort of crimination, with a view to mitigate the damages, was, in the case of Beardsley v. Maynard, examined and repudiated. Under evidence of the general bad character of the plaintiff, and which it is competent for the defendant to' give, he has the benefit of any particular defects or blemishes in the character of the plaintiff; and the retort of crimination, we have seen, is regarded with indulgence only when founded upon a reasonable provocation. On neither of these grounds was the evidence offered in this case admissible.
There is but one other ground upon which its admissibility can be claimed, that 1 can conceive of, or that has the sanction of any authority of which I am aware, and that is when the previous publication is material to afford explanation, and a right understanding of the purport, meaning and object of the article charged as libellous. Whether such will be its operation and effect, must from necessity always be a question for the court, to be determined upon an examination of the several articles. When admitted, their weight and influence, explanatory of the alleged libel, belong to the jury, under a proper direction, and ffe effect will be as various as the na-’ ture and character of the different publications. In some cases, articles on their face clearly calumnious may, by reference to the previous publications and which are explanatory of them, become harmless or justifiable ; in others, the tone of crimination and vindictiveness will be softened and subdued, [24]*24and though not justifiable or excusable, the tendency wiH be to mitigate the damages claimed. There are many cases in the books, the decision of which are founded upon, or are illustrative of the above view. Hotchkiss v. Lathrop, 1 Johns. R. 286; Southwick v. Stevens, 10 id. 443; Beardsley v. Maynard, 4 Wendell, 336, in this court; and Sir J. Carr v. Hood and another, and Tobert v. Tipper, 1 Campb. 351, and note. May v. Brown, 3 Barn. & Cress. 113. Wakeman v. Johnston, 1 Ry. & Moody’s N. P. R. 422. In all these cases in which previous publications were admitted, their tendency was to elucidate and explain the libellous article in question1; and, without them, its-scope and design would not have been fully comprehended by the court or jury. The principle and reason of their admission are intelligible and sound, and the practical operation and effect just to all. Every means are thereby afforded to the defendant and all concerned to ascertain the true intent and purpose of the libel, and the innocent or defamatory character, as the case may be, which belongs to it. Beyond the above view, I know of no good or substantial reasons for admitting previous publications in evidence ; and without such the inconvenience and embarrassment in the trial of the cause require their rejection. There can be no great danger of injustice being done to any one; for if the previous article is a libel upon the defendant, he has the same remedy which the plaintiff is seeking, to vindicate his character, and that too whether it is admitted in evidence or not; if it is a libel upon another, that of itself is no reason for the defendant’s libel, as such third person has his remedy; and if it is to show that the defendant’s libel is but the retort of severe crimination, or that the plaintiff is a common libeller, we have seen in the one case that it is only competent under the principle of law which regards the frailty of our nature, and in the other inadmissible, and available only by evidence of general bad character. The inconvenience growing out of the admission of previous publications have been felt and stated by most of the learned judges who have considered the question, and is too obvious to require illustration. Each pri- or publication is in effect, as regards the trial, a new libel suit; for the party against whom it is offered must be allowed to [25]*25prove the truth of it, and thereby destroy its influence. The court, then, may have in one suit as many issues to try as there are publications; and in a series of them,' the confusion and embarrassment must be obvious, as well as the great injustice to those who are obliged to meet and contest the several articles without previous notice by the pleadings; and after all, as before observed, each may still constitute the subject of a new suit, if in fact libellous.
The libellous charge complained of in this case imputes to the plaintiff, under very aggravating circumstances, unqualifi-edly the crime of being an accessary after the fact to the offence of kidnapping a citizen, and the guilt of perjury in endeavoring to exculpate himself. Now, in what way the previous publications of the plaintiff would tend to explain or mitigate the harshness and severity of this charge, was not attempted to be shown on the argument; and, after an attentive examination of them, lam unable to discover how they can have such effect. The article secondly offered in evidence by the defendant is but the explanation of certain rumors put forth by the defendant, and impeaches nobody. The article first offered retorts crimination upon the character of the defendant, which has no relation to the charge in question, and reiterates the truth of the plaintiff’s former explanations, with a denial of charges made or repeated intermediate by the defendant in his paper. There is nothing in either of these articles, so connected with the libel, that its production could afford elucidation, or explanation tending to soften its asperity or mitigate its purpose, unless the repeated and earnest denial of calumnious charges can have that effect. The most that can be said in favour of receiving them in evidence is, that the defendant may be enabled to contend the article charged as a libel was but the return of crimination in mitigation of damages, which we, have seen, upon well settled principles is not admissible.
The above view also disposes of the objection that the court refused to admit in evidence the whole of the article in question, with one of the publications of the defendant annexed to it. The fact that it was fixed at the head of the article in the [26]*26-defendant’s paper can make no difference in the application 0f the rule of law. It is not the juxta-position of the two pieces in the paper, but the relative bearing of the subject matter and the scope of the publications upon each other, which constitute the material consideration, and upon which the question must be determined.
We will not stop to inquire whether the record of the conviction of certain persons for a conspiracy to abduct Morgan was properly rejected or not, as the fact of the existence of such 1 conspiracy was fully admitted by the stipulation which had béen read in evidence. This was all that could be material for the defendant, to enable him to prove that the plaintiff was a participator in that outrage before or after the fact.
The judge was right in rejecting the evidence offered to justify portions of the article other than those relied on, and to which the claim for damages was expressly restricted. If the plaintiff could thus abandon a part of the claim, and narrow the ground of litigation to a definite charge, (and the right to do so has not been denied,) it follows that the case is ‘not tp be involved, at the option of the defendant, with a consideration of the matters thus waived. They are no part of the issue. The whole article may be read by either party, for the purpose of ascertaining the force and effect of the portion for which damages are claimed ; and if the plaintiff has waiv-1 ed the more grave and serious charges against his character, and relied for damages upon charges less injurious, this may constitute a legitimate topic of remark, by the counsel for the defendant, to the jury, and in which will usually be found, by the result of the verdict, a full equivalent for any advantage the plaintiff may be supposed to have gained. 21 Com. Law R. 393.
The testimony that the $100 advanced by the plaintiff and received by the witness, in Albany, was paid to one of the kidnappers of Morgan to enable him to escape from justice, was also properly rejected. There is no principle or reason which will hold the plaintiff responsible for the appropriation of money to an unlawful purpose, by a third pérson over whom he had -no control, and without his knowledge or assent. [27]*27There was not only no evidence tending to prove such knowledge, but the evidence of both the witnesses in relation to this sum of $100 goes to repel any such inference.
New trial denied.