Dissenting opinion by
Whitman, C. J.This case is before us upon exceptions taken to the instructions of the Court to the jury at the trial. And my brethren have agreed that the exceptions, upon one point, must be sustained. I understand them to have agreed further, in the opinion, that, in an action of slander, it is a good defence to show that the words spoken were but the repetition of what was uttered by some other person, whose name was given at the time, unless it were proved that the repetition was malicious. This position is supposed to be fully sustained by authority. In the case of Lord Northampton, 12 Coke, 134, it is reported to have been so resolved, that, “ in a private action for slander of a common person, if J. S. publish, that he hath heard J. N. say, that J. S. was a traitor or thief, in an action on the case, if the truth be such, he may justify.” And in the first of Comyn, 264, it is said, “ if a man say, A told me B stole, &c. when A did really say so, an action lies against A but not against the relator.” And Lord Kenyon, in Davis v. Lewes, 7 T. R. 117, incidentally held such to be the Law. And lord Ellenborough seems, in Woolnorth v. Meadows, 5 East, 463, to recognize such to be the law.
This must be admitted to be somewhat of a formidable array of authorities in support of the principle. But no one, now, will admit it to be law without qualification. My brethren, I understand, would qualify it, by admitting, if proof be made of express malice on the part of the relator, that the repetition could not be justified. And others, who have felt constrained to admit the rule, have found it necessary to surmise qualifications. Mr. Justice Johnson, in Miller v. Kerr, 2 M’Cord, in delivering the opinion of the Court, comes to the conclusion, that “ this rule is only to protect one, who *245without malice, and for purposes necessary to the very existence of society, inquires into and investigates the characters of men.” Thus limited, no fault perhaps could be found with the rule.
But the unreasonableness of the resolution as found in 12 Coke, and from the authority of that case doubtless repeated by Comyn, and assented to by Lord Kenyon, has been so striking that, in England, it is at this day entirely repudiated. In DeCrespigney v. Wellesly, 5 Bing. 392, C. J. Best remarked, that “ if even we were to admit, what we beg not to be considered as admitting, that in oral slander, when a man at the time of his speaking the words names the person, who told him what he relates, he may plead to an action brought against him, that the person whom he named did tell him what he related, such a justification cannot be pleaded in an action for the republication of a libel.” In Bennett v. Bennett, 6 of C. & P. 552, it was held, that “ it is no justification for him (the defendant,) that he, at the time he repeats the slander, gives up the name of the person from whom he heard it.” It was said, however, in that case, that if such proof were made it might be admitted in mitigation of damages. In McPherson v. Daniels, 10 B. & C. 263, the subject underwent a thorough revision by Judges Bayley, Littledale and Parke, the Chief Justice not being present, and their unanimous opinion was, that the dictum in Lord Northampton’s case was not law. And Tindal, C. J. in Ward v. Weeks, 1 Bing. 211, in delivering the opinion of the Court of Common Pleas, remarked, that “ the resolution in Lord Northampton’s case, which has at all times been looked upon with disappro-. bation, has, in the recent case of McPherson v. Daniels, 10 B. &. C. 263, been in effect overruled by the Court of King’s Bench, and with the judgment of that court, upon that occasion, we entirely concur.”
In some of the United States, particularly Indiana, Kentucky and Mississippi, the rule has been considered, and perhaps admitted under modifications. But it may be doubted whether it has any where, this side of the Atlantic, been applied *246in the broad terms presented in 12 R. It is certain that in Ohio, it has been rejected. Haines v. Willing, 7 Ham. 253. In New York it can scarcely be regarded otherwise than as overruled. The marginal abstract, by the Reporter, in Inman v. Foster, 8 Wend. 602, is, that “ it is no defence, nor can it be given in evidence in mitigation of damages, that the defendant, at the time of the speaking the words gave his author, and was in fact told by another what he uttered against the plaintiff.” The case, however, in those terms, does not directly decide the point; but the reasoning of the Chief Justice, in delivering the opinion, strongly tends to that effect; so much so that the Reporter understood such to be the decision. And the author of the digest of the N. Y. Reports, published in 1841, nine years after the publication of the case, adopted the above abstract as the decision in that case. And the abstract, and adoption of it in the digest have stood, so far as is known, uncontroverted in that State to this time ; and after what has transpired in England, who can doubt that such is to be regarded as the established law on the subject in that State.
Mr. Greenleaf, in his Treatise on Evidence, vol. 2, in a note to <§> 424, holds this language: — “ The fact that the defendant heard the words from another, whose name he mentioned at the time of speaking them, was formerly held a good justification, and therefore pleadable in bar “ but this doctrine has been solemnly denied in the United States.”
There has been no adjudged case, nor any dicta up to this time by any of the Judges of Massachusetts or Maine, recognizing the rule as laid down in Lord Northampton’s case as good law, and it seems to me, that the decision, now for the first time proposed to be made in this case, will be received with surprise.