The questions now before us, in this case, arise upon a general demurrer to two special pleas, filed by the defendant. The declaration alleges the publication of a libel by the defendant of and concerning the plaintiff, in his office of reporter of the decisions of the supreme court, and in his office of chief justice of said court.
The pleas filed are special pleas in justification. The causes of demurrer assigned are, that they do not profess to answer the *Page 344 whole declaration; and that they do not answer that portion of the declaration which they profess to answer.
The first ground alleged for cause of demurrer is answered by the defendant, by saying, that the alleged libel contains distinct things; and that, in such case, the defendant may plead in justification of any of them, and need not justify all. The authorities cited by the defendant seem to sustain him in this position; although their legal soundness is denied by several eminent judges in this country, and the decisions of courts of high authority are based upon a precisely opposite doctrine. InSterling v. Sherwood, 20 Johns. Rep. 206, Chief Justice Spencer, in reference to the position on this subject laid down by Mr. Chitty in his 1st vol. of Pleading, and by Sergeant Williams, (Saunders 1, 28, n. 3), says, that it is not law; and that the cases referred to in support of it, do not bear out the proposition; and there are several cases which are directly opposed to it. He says, that the true rule is laid down by Kent, J. in Riggs v. Dennison, 3 Johns. Cases, 205, thus: "That as the plea did not, either by denying or justifying, meet the whole matter or gravamen contained in the count, it was for that reason bad. In a note to the text of Chitty on Pleading, 7th American edition, vol. 1, p. 555, it is stated, that in England, if a plea begin as an answer only to a part of the declaration, and is in truth only an answer to part, the plaintiff must take judgment of the part unanswered as by nil dicit. Here a general demurrer to such plea is sustained. This is a fatal defect." So it was decided in Sterling v. Sherwood, before referred to, and in several other cases quoted in the note to Chitty.
On the ground of the second alleged cause for demurrer, we think the pleas in this case are certainly bad. That a plea in bar must answer that portion of the declaration which it professes to answer, is a rule not controverted. The rules of pleading, in a case of libel or slander, require that a plea of justification must contain a specific charge, set forth with certainty and particularity; and that the plea must be as extensive as the imputation complained of in the declaration. In order to determine what is the extent of the imputation, we must look at the whole language which the plea professes to justify. *Page 345 If a plea justify everything that is essential, it will be a good answer; but if it justify that part of the alleged libellous matter which is comparatively unessential, leaving out that part which gives a sting to the whole, it must certainly be adjudged bad. Upon examination of the declaration in this case we are of opinion, that the substance of the libellous matter set out in the declaration is unanswered by the pleas. The substance of the libel charged, is, as we think no one could fail to gather from a perusal of it, that the plaintiff who had been counsel of Robert H. Ives in the case of Ives v. Hazard, had in his capacity of reporter, after he had been promoted to the office of chief justice of the court, with the purpose of benefiting his former client, and injuring the defendant in the case, made an irrelevant statement of the case, calculated to deceive; and in making the report had resorted to unprincipled special pleading; making infamous accusations against the defendant Charles T. Hazard, unsupported by allegations in the bill or by legal proof in the cause; that the text of the report was flagitious in its character, and that the plaintiff had prostituted his offices to the baseness of those purposes and acts. This we understand to be the fair import of that part of the libellous matter set out in the declaration which these pleas profess to answer. The first plea sets out the statement of facts as published in the 4th vol. of R.I. Reports, and alleges that some of the statements therein are foreign to the charges in the bill or the legal issues in the cause, and are so interwoven in the text, and apparently sustained by points made by the counsel of the plaintiff, that persons unacquainted with the case are likely to be deceived by their perusal. This answer comes very far short of an answer to the charge made. The charge of unprincipled special pleading, of making a flagitious report, of making infamous accusations, is a very different matter from that of making some irrelevant statements so interwoven in the text as that those unacquainted with the merits of the case would be likely to be deceived by a perusal of them. The one might naturally be the result of inadvertence or carelessness, or might be a true report of a trial; the other imports malice of purpose and baseness of conduct. The second plea differs from *Page 346 the first in reciting, in addition to the statement of facts, some of the points made by counsel in the case, and alleging that each and all of the statements therein are of the nature set out in the first plea, and that all of the charges made in and by said statements against said Charles T. Hazard, were unsupported and unwarranted by any legal allegations or testimony in said suit. No charges against the said Charles T. Hazard are particularized, nor does the plea state that there are any of a character such as the libellous matter imports.
In both pleas the most disgraceful part of the alleged libellous matter is entirely unnoticed. If the matter stated in them can be proved to be true, and if they can be adjudged a sufficient answer, the result would establish, that a man might make a statement of another and so characterize it as to make it import the deepest criminality, and then, by pleading the truth of the statement without its criminal character, shield himself from all liability. In effect such a mode of justification would enable a defendant to a charge of libel, to say to the plaintiff, "true, I published what you charge me with publishing, but a part of it is true, and therefore I am justified of the whole."
For these reasons the demurrer must be sustained and thepleas overruled.