delivered the opinion of thé court. We do iiot agree with the judges of Charles county court in the Opinions they pronounced in the third and eighth bills of exceptions in this record.
In our apprehension the court ought riot to have permitted the plaintiff to lay before the jury the following passage in the depositiori of tíeneral Armistead T. Mason:—“But the charges above mentioned, frorii their character could not have failed to have produced its rejection, even if there existed no other reason for it; and they doubtless, I presume, had á very considerable effect in producing it.” This is not a deposition to facts orily, resting in the immediate knowledge and recollection of the witness, but is a plain expression of his opinion upon subjects intimately *459connected -with the. discussion, and we think was wholly inadmissible.
' It appears to us that the court below erred also in refus-ing to give to the jury the opinion prayed for by the defen dant in the eighth bill of exceptions.. This exception, by-an agreement between the parties, embodies all the testimony in the record, and with this before them,.it is our-idea the court ought to have declared to,the jury that the-action was not sustained; falsehood and malice are the gist of the action for- defamation, and where they are. not implied in, the words themselves, they must be expressly, proved. They appear no where in this cause to have been, thus proved by the plaintiff, and they are not implied from-, the occasion of' speaking the offensive words stated in thedecJaratzon, as they were not officiously volunteered, but were spoken confidentially to a senator of the United States, requesting information in relation to the plaintiff’s, fitness and qualifications for. an. office to which he had; been nominated by the president...
We concur with the opinions delivered by the court below in all the other bills of exceptions,.as we do in those. . pronounced'by them on the demurrers.-.
Reasons for this opinion of the court;would have been • given much more at large, and perhaps., they, would have-embraced other topics drawn into discussion , in .the argument, if, continually since it closed, one of the. members of the bench had not been unfortunately absent fronuus..
We reverse the judgment, and direct a procedendo..
JUDGMENT REVERSED, &C»,