
    COURT OF APPEALS, JUNE TERM, 1822.
    Law vs. Scott.
    in an action of spoken, by ífflee'rfi.'rffitwM seSe<vnhíu«ííSaati’ f“fll résSf™aami“ r.í>ófce»0out or tie i», famm r. "
    coi.ks of Hie 1<M*L‘Ogat(H*lUS which, accompany n commUio» on a^snfikiSu'tine bt&iv like ¿suüíg of the uofum svion inVel-roRatones, is Mifliei eiu notice of the issuing oi the coni' mission, and of the time and place ®
    ©F a .senator oi the ítatmn ¿ad been rtjcctecl by the svii'e iol^tVc vS ¿noval of the i» ¿uiic-tiiyi of seeresmth and íiú'.ecf in me
    word's of a “but the ehniges ¿iom tjjeir thitraci(r,t‘ould nut have eyen if dure e$<su>d no; other they doub-less, I prespme, had á «»(? it,” hemg die íhr^vitnessf ave ju>t competent vidente. It is >er, f,»i- the wit.xiess to say, that ?d.C Idin81*?©8*vo£ against the nomis
    of the xniwunduct of die plaintiff,in parti* Cl]1¡lr ¡;,,t¡m(ipi TOs“om'n¿tS,his
    
      Appeal from Charles county court. This was an action slander, brought’ bv the now appellee against the anPe^an^* declaration, after the usual introductory W01'^s bi actions of slaiifler of the plaintiff’s being a go.od, honest and faithful citizen, &c. stated, “and where» the plaintiff bad been nominated. by the president of United Slates, to, tl\e seu.ate thereof, fin* the office of commissioner of claims, &ci ■ Yet the defendant well the premises, but contriying, and wickedly and maliciously intending to injure the plaintiff in his afore.good name, fame and credit, and wholly-to destroy tbe samé, to prevent the confirmation of his said appointment and nomination by the said senate, and to bring him into public hatred, scandal; ignominy and disgrace, and to subject him to the' pains and penalties by the laws and 'statutes of this state, and the United States of America-, made and provided against those who commit the offences and misconduct hereinafter mentioned to have been charg<ed upon and imputed to the' plaintiff, and to vex, harrass* oppress, impoverish, and wholly ruin him, the plaintiff; heretofore, to witj on, &c. at the city of Washington,-in the district of Columbia, to wit; at the county aforesaid; • . ,. . • • ■ . in a certain discourse which the defendant toen and there had with a certain William T. Barry, a senator of the , ° United States’ congress, and divers other senators of the ® 3 t . said congress, of and concerning the plaintiff’s nomination by the President of the U. S. to the senate thereof, for the office of commissioner of claims, &c. and his the plaintiff’s having sold out of the district of Columbia, and this state, certain of his the plaintiff’s negro slaves, into some foreign parts to the southward, he the defendant then and there falsely and maliciously said, rehearsed, proclaimed, and loudly published these false, scandalous, malicious, and defamatory words following, of the plaintiff, in the presence and hearing of the aforesaid persons; that is to say, he (meaning the plaintiff,) had forcibly and fraudulently transported from the district of Columbia, and the state of Maryland, and sold to the south, negroes “ . ° entitled to their freedom, he (meaning the plaintiff,) v ° r f knowing that the negroes were entitled to ‘their freedom, 53 . 7 and had suits depending in the court of Washington aforesaid, for establishing their freedom; (meaning that he the plaintiff having in possession ceitain negroes who he well knew were entitled to their freedom, and were endeavouring by suits at law to recover their freedom, had forcibly and fraudulently carried them out of the jurisdiction of the district of Columbia and the state of Maryland, and sold them to foreign purchasers of negroes from the southern states;) and that he, (meaning the plaintiff,) was in such habits of intemperance, (meaning drunkenness,) as to be unfit to discharge the duties of any office. And afterwards, to wit, on the day and year aforesaid, at the county aforesaid, by means of the speaking and publishing of which said several^^e, scandalous, malicious, and defamatory words, before the said persons, the plaintiff is greatly linrt, injured and prejudiced, in- his aforesaid good name, fame arid réputatióti, and is fallen into great hatred and contempt among the said senators, and other good arid ■Worthy persons, who; not knowing the falsehood of the said words, but believing them to be true,'have withdrawn all their confidence from him; and refused to have any intercourse with him; and also by reason thereof the aforesaid senators oil the United, Slates’ congress, who before and at the lime of the Committing of the said grievances, were about to concur, and would-otherwise have concurred with the president of the U. S. in appointing the plaintiff To the honourable and important office of commissioner of claims, to which a highly valuable salary was attached, to wit, the sum of two thousand dollars, to be paid annually; afterwards, to wit, on the day and year aforesaid, at the city of Washington aforesaid, wholly and entirely refused to' concur with the president aforesaid, in appointing the plaintiff to the office aforesaid, and the plaintiff hath from thence hitherto remained, and continued by means thereof; Wholly unemployed in the said office, or any other depending on the will of the said senate; and the plaintiff hath been, and is, by mearis of the premises,- otherwise greatly injured, to wit, at the county aforesaid, to the damage of-the plaintiff of twenty thousand dollars current money; and therefore he brings his suit,” &c. The defendant in the court below pleaded, 1. Not Guilty, 2. “And for it further plea in this behalf, as to the saying and publishing of the said several words of the plaintiff, as in the plaintiff’s declaration mentioned, the defendant, by leave of the’ Court, ¿c. saitb, that he is not guilty of saying aiid publishing the following words; that is to' say, the'word “fraudulently,” the words “entitled” and “were entitled,” the words “and state of Maryland,” the word “suits,” and the words “that he was in such habits of intemperance as to be unfit to discharge the duties of any office,” (which words are alleged in the said declaration to have been spoken and published by this defendant of the plaintiff) in itíánner and form as the plaintiff hath thereof complained against hint, and of this he puts himself' upon the country,” &c. 3. “And, as to the residue of'the said several words, alleged in the plaintiff’s declaration to have .been said and published by the defendant of the plaintiff, tba defendant saith, that the plaintiff his action aforesaid thereof against him to have or maintain ought not, because lie saith, that before the speaking and publishing of the said residue of the said several words, to wit, on the, &c. two negroes named W. T. and D. T..(who are the same négroes in the plaintiff’s declaration mentioned, of whom the discourse in the said declaration stated was held, and no other,) by the defendant, their attorney, filed in the circuit court of the district of Columbia, in and for the county of Washington, a certain petition, in the words following; that is to say, [Here follows the petition óf W. T. and D. T. stating, that they were detained illegally in slavery by A. Scott, though they were entitled to their freedom, and prayed process against Scott, &c.] And the defendant avers, that the said A. Scott, in the said petition' named, is the same person as the said A. Scott in the said declaration named, the plaintiff in this cause. That the said petition being read -and heard, the said circuit court ordered that a subpmia issue forth out of the said circuit court against the plaintiff, returnable to the next term of the said court; which subpcna is as follows: [Here follows the said subpena in the Usual form.] That the said subpcna did issue forth as ordered by the said circuit court, and that before the return thereof to the said court, and before the service thereof on the plaintiff, to wit, on, &c. at, &c. the plaintiff forcibly seized and transported the said negroes W. T. andD.T.from thesaid district of Columbia, and sold to the south the said negroes, who had petitioned for their freedom as aforesaid, he well knowing that the said negroes had petitioned for their freedom, and had a suit depending in the court aforesaid for establishing their freedom; wherefore the defendant, in a discourse of and concerning the premises, which is the same discourse in the plaintiff’s declaration mentioned, and no other, did ' say, that he, meaning the plaintiff, had transported from the district of Columbia, and sold to the south, negroes who had petitioned against him, meaning the plaintiff, for their freedom, he, meaning the plaintiff, well knowing that the said negroes had petitioned for their freedom, and had a suit depending in the circuit court of the district of Columbia, for the county of Washington, for establishing their freedom, as it was lawful for the defendant so to do for the cause aforesaid; and this, &c. whereof, &c. 4. And for further plea', &c. that as to the speaking and publishing of the said several words of the plaintiff as in the plaintifí’s declaration, the said several words were not spoken and published of the plaintiff, by the defendant, in the said county, or in any part or place of the state of Maryland, but the said words, spoken and published by the defendant of the plaintiff, as by him alleged, were spoken and published out of the limits and jurisdiction of tire said state of Maryland, in foreign parts, to wit, in the city of Washington, and District of Columbia; and this, "&c. wherefore, &C. The plaintiff joined in issue to the first plea, ’and demurred specially to the second, third, and fourth pleas, because they were immaterial and destitute of form, and double, and.utterly insufficient in law to compel the plaintiff to answer thereunto; and he assigned as causes of demurrer, 1st. That the second plea by the defendant is a plea which amounts to the general issue, and therefore the general issue should have been pleaded-, and not a special ’denial. 2d. That in the second plea the defendant, instead of .putting in issue all the words alleged in the declaration, tenders issue on part of the words which are immaterial. -3d. Because in the second plea the defendant lias put in issue the words “fraudulently,” “entitled,” and “were entitled,” and “state of Maryland,” “suits,” and ’lHhat he was in such habits of intemperance to be unfit to discharge the duties of any office,” all of which are immaterial by themselves, and therefore not proper subjects for an issue to be tried by a jury. 4th. Because in the third plea there is a justification pleaded without any confession of the injury complained of and intended to be justified, by the said plea. 5tln That in the third plea the defendant hath pleaded a special justification, which is in point of law no justification at all, because he says, that the negroes mentioned in the said plea had petitioned for their freedom, and the plaintiff knew thereof, whereas lie should have said that the process of the said court had been served on the plaintiff. 6th. Becatise the words justified by the defendant in the third plea are not the same words which are alleged in the declaration, /ill. Because in the fourth plea the defendant has denied the uttering and publishing the words alleged in the declaration, in the- said county, or any where in the state of Maryland, although Charles county, in the state of Maryland, is laid in the declaration only by way of venue. 8tli. That in the. fourth plea the defendant has therein taken for defence, that the words alleged in the declaration were not spoken in any part of the state of Maryland. The- defendant joined in the demurrer, and the county court, [Johnson, Ch J. and Plater, A. J.3 ruled the demurrers good:
    
      sraMm^Tffih ftr. formation turia”die office nommua-a, »poiie tlie words charged ijitiu-d.'ciaraiion, and vcTorred to die records of a Court for thnr confirmation, ti.e action cannot be
    ioy4S0a "fy”‘ ”'4 '¿"j ""£¿¡¡4 be proved.7
    t<,TKlk«rofrt,” Syfi^aTti™?; t"r)st«íl,'to ^tiie «£» ñateado notin'.
    when' one «r >n úiéy<oiiri¡e'V vmi,ct« «1 by consent remajnmj»* pi even J»«>rs,«imadva**tñffe be taken p,on an ai»Peal-
    pieaTra* «eSn Mdi¿uthe utré” dSnitfonj tw“
    
      1. At the trial below, the plaintiff offered.in evidence. the deposition of ■Armistead T. Mason, taken under a commission issued in this cause, to William Chilton, and others, of the state of Virginia, The commissioners in their return, stated, that, having first taken the oath prescribed by the commission annexed, and administered the oath to IV. C. appointed by them as clerk to. attend the. execution of the said commission, did at, &c. on, &c. proceed to take the deposition of General Armistead T. Ma-. son, on interrogatories, ■ &c. he having been., previously sworn by Jr M. one of the said commissioners, &c. The, defendant objected to the deposition being read in evidence, because no notice was given to him .of the time when ancl, where the deposition was taken, as specified in the follow-, ing exceptions, made in writing before, the jury was. sworn, viz. “The defendant excepts to the. whole of the, deposition of Armistead T. Mason returned in this cause, and taken under a commission issued to W. C. &c. 1. Because .the said deposition was taken without any pi-evious notice to. the defendant of the time and place of executing said.commission, without his knowledge thereof, and without any opportunity being afforded to him to cross examine, the .said witness.” The county court gave the following opinion: The trial in this case was brought on by.consent, and no. application.was made by either party-, for a continuance of the, cause,; .and the court- being satisfied, that before the commission, issued, copies of the original and additional Interrogatories were served on one of the defendant’s counsel, ov.er rule the exceptions; and are of opinion, that the, objection to. the .execution, of the commission cannot be sustained, and permit-the .deposition to be read; and- the same was read in evidence to the jury. The defendant excepied.
    : 2. The plaintiff then produced in evidence the. deposition of William T. Barry, taken under a commission issued in this cause to John Bradford. and others, of the state of Kentucky,. By the return of the commissioners they stated, that having been first duly sworn according to the annexed oath, and appointed L. C. clerk, who was also duly sworn, (certificates of which oaths were annexed,). they proceeded to examine William 7. Barry on path,, and caused his answers to the-interrogatories of the plaintiff to be committed to writing, viz. “Answer to the first interrogatory. That he, was a member of the senate of the U. 8. during the first session of the fourteenth congress. Answer to the 2d. That h^ was present in the said senate when the plaintiff was nominated by the president of the U. 8. to that body for their consent or confirmation for a certain office o>- appointment. Answer to the. 3d, That the plflij/tifF was nominated to the office of commissioner under the act of congress approved the 9th of April 183 6, entitled, &c. Answer to the 4th. That he had conversation with the defendant relative to the character and qualification of the plaintiff, after the nomina-r tion was made, but before it was acted on by the senate,, Answer to the 5th. Pie cannot 'recollect the words the de - fendant made use of, but it was in substance, ‘‘that Mr. Scott was addicted to habits of inebriety, and that he had run off and sold negroes that had sued Tor and were entitled to their freedom.”. Answer to the C(h. He believes that he stated in the senate the purport of this conversation. He is very certain that he stated to the senate the impressions he had received from the conversation with the. defendant, and a record that was placed in his hands by Mr. Wallock, as to tffe improper conduct of the plaintiff, in taking away negroes who had sued for their freedom, pending the suit, sending them off to an adjoining state, and selling- them. Answer to the 7th. The deponent states, that the nomination of said illexander Scott was rejected by the senate. Answer to the 8th. He cannot undertake to say what influenced the minds of other members of the senate, but believes his statement did have an influence prejudicial to Mr. Scott. Answer to the 9,th. That the charges as above stated had injured Mr, Scott, (a stranger to this deponent,) deeply in his estimation, and that He acted undei- the influence they had upon his mind in voting against the nomination; for this cause hé opposed his nomination, and made known the circumstances that induced him to do so, which he has reason to believe had influence with other members' of. the senate. 
      Answer to flie 1 Oth. The annua! salary of the office was S2000, but a reference to the act of congress will best show this.” The plaintiff, to lay a foundation for receiving other evidence than the journals of the senate of the U. S. to establish the nomination and rejection of the plaintiff to the office mentioned in the above deposition, produced and read in evidence the deposition of Robert Hi Goldsborough, one of the senators of the U. S. viz. To the first interrogatory, Whether he was a member of the senate of the U. S. when the plaintiff, vyas nominated, &c. He answered that he was. To the second, Whether he was a member of the military committee, and was present, &c. He answered that he'was a member of that committee, and present in the senate. To the third, Whether he had, prior to that time, ever heard any thing favourable or unfavourable to the character of the plaintiff? He answered that he had previously to that time, and some time before, heard a favourable character of the plaintiff from a respectable gentleman in Maryland', To the fourth, What was the nature of the statements of William 1\ Barry, esquire, a member of the senate, to that body, respecting the plaintiff? lie answered, that it was wholly incompatible with the duties of- the public station he held to state the proceedings of the senate when acting in its capacity of the executive council. To the fifth, whether - the plaintiff, through his agency, did pot endeavour to obtain a removal oí the injunction of secrecy of the senate, so far. as respected his nomination, and the proceedings thereon, and what was the issue of the attempt? He answered that lie did, nor could he obtain either the one or the other. To the sixth, he answered that he never heard tire plaintiff was no,t a man of business. The defendant; objected to the following words, contained in William T. Barry’s answer to the seventh interrogatory, to wit: “The deponent states, that the nomination of said Alexander Scott was rejected by the senate.” The court were of opinion that the objection could not bo' sustained, and therefore permitted those words to be read. The defendant excepted.
    S. The plaintiff then produced and read in evidence the deposition of Armisiead T. Mason, taken under a commission issued in this cause, to William Chilton and others, of the state of Virgima. In answer to, the fnt, secqnd¿ 
      
      third, and fourth interrogatories, he answered-, that he was a member of the senate of the U S. when the plaintiff' was nominated- by the president to the office of commissioner, &c. .and that it was rejected by the senate. To the. fifth, By what member of the senate were certain, charges-tending to criminate the plaintiff brought forward, and what was the nature of the said charges? He answered, that to the best of his recollection Mr. Barry did state to. the senate, in substance, that he had. understood from Mr. Wedlock, or the defendant, or perhaps from both those, gentlemen, that the plaintiff was addicted to habits of inebriety, and that he had been guilty of selling negroes who were entitled to their freedom; and that they, Mr. Wallock and the defendant, or one of them, had put into his hands, to corroborate tlie last charge, a copy of a record, which he exhibited, and from which, the deponent thinks, he rend-an extract to the senate. To the sixth, Whether the rejection of the plaintiff by the senate was occasioned -entirely, by the charges above mentioned', or what effect had they, on the senate in making the appointment? He answered “It is obviously impossible for me to tell what influenced-different, gentlemen in their votes on the nomination, bufe the charges above mentioned, from 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 a very considerable effect in producing it; they certainly prevented me from voting for the nomination, which I had intended to do, having a short time before, been most favourably impressed towards Mr. Scott, by Col. Monroe, the present chief magistrate of the United-States, who spoke of him to me in the most flattering, terms.’’ To the second additional interrogatory, “Were your impressions as to the character of Akxur.der Scott, prior to his nomination, favourable or unfavourable, and were they derived from a respectable source?” Ke answered, “They were very favourable, and were, derived from a most respectable source, fiom the present chief magistrate of' the United Stales, and a letter from the late honourable Richard Brent, of Virginia.” The defendant objected to the deposition going-in evidence to the jury, because, as he alleged, he had no notice of the time and place when and where the evidence was to be taken; the defendant having, before the jury was sworn in this cause,, entered Die following exceptions, in writing, against the said evidence, which exceptions are stated in the first bill of ex-'ceptbns. The defendant also objected to the following words in the deposition of Gen. A. T. Mason in his answer to the sixth interrogatory, to wit: “But the charges above mentioned, from 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 a very considerable effect in producing it—they certainly ■prevented me from voting for the nomination, which I had intended to do, having a short time before been most favourably impressed towards Mr. Scott by Col. Monroe, the present chief magistrate of the United Stales, who spoke of him to me in the most flattering terms.” And also to the words following, in the answer to the second additional interrogatory, “and were derived from a most respectable source—from the present chief magistrate of the United States, and a letter from the late honourable ■Richard Brent, of Virginia,” and- prayed that the same might not be read in evidence to the jury. But the court was of opinion that the passages of the said deposition objected to, -were' competent and legal evidence. It was ■proved to the satisfaction of the court, that before the said commission was taken out, a copy of the interrogatories filed by the plaintiíf, a copy whereof went with the commission, was served on C. Dorsey, one of the counsel in the cause of the defendant, a sufficient time before 'the commission was sent out, to have fded cross interrogatories, if'he thought proper so to do. No other evidence appeared to the court preparatory to the execution of the commission'. The court was of opinion, that the service of the interrogatories, as stated, was sufficient, and therefore overruled the objections, and permitted the deposition to be read; and the same was read. The defendant excepted.
    4. This bill of exceptions was sent up by mistake, it being similar to the preceding.
    5. The defendant, to disprove the -averments in the plaintiff’s declaration, and to^ show the unfitness • of the plaintiff for the office to which he was nominated by the president of the U. S. as mentioned in the declaration, and to show that the plaintiff is not entitled to the damages which he claims in his declaration, offered to read in evi•dence the deposition of John- F. Gibney, taken under an agreement entered into by the parties} viz. To the secon-I interrogatory,Jie answered} that the plaintiff, while at the island of Porto Pico in 1813, gave an order to denonent on the house of T. F. Gamble & Co. of the island of St. ^Thomas, to receive a quantity of plate, slated by him to be his property; in case of deponent’s receiving said piale} a part was to Be appropriated for the payment .of merchandize, áíriong which was a case of diapers that had. been previously agreed upon with á merchant in St. Thomas by Mr. Scott, which goods Mr. Scott informed deponent, were to be brought into the United States, stating that he had no apprehension of any package of his being examined. T. F.‘ Gamble refusing to give up the plate to deponent, he could not procure the goods. This deponent understood at the same time from said Scott, that he had a quantity of other gdods to bring into the U. S. Deponent asked said Scott, at the same time; if he did not apprehend that the said goods would be seized if brodght into tile U. S. and said Scott answered, that he had ho fears on that score, as from his situation any of his packages would not be examined. To the fourth interrogatory-*“From your knowledge of the said Scott do you consider him to he a man of business”? He answered—“He knows very little Of him, having had only a few interviews with him.” To th & fifth, “Do you know, or did you ever hear, that Mr. Scott was intemperate?” He answered—“He does not know of his own knowledge; but that he lias heard in general conversation that the opinion was that he was intemperate.” The plaintiff objected to the answers given by the witness to the second and fourth interrogatories—And the court thereupon decided, that the said answers were not evidence in this cause, and refused to let the same be read, because the imputed misconduct on the part of the plaintiff in a particular instance, was inadmissible. The defendant excepted.
    6. The plaintiff then produced and offered to read in evidence, the commission issued in this cause to William Nutting, and others, of the state of Vermont, on the 20th of November 1817, and the deposition of Dudley Chase taken thereunder, on the 21st of January 1819. The de- ■ fendant objected to the testimony, taken under that commission, being read in evidence, because ■ the defendant had no notice of the time or place of executing the said Commission, and the same appeared to have been executed and returned by three of the commissioners named in the commission on the very day that they qualified under it, ■and without any opportunity being afforded to the defendant of taking any testimony under the said commission. It was proved, on the part of tlie plaintiff, that a copy of 'the interrogatories put to the witness under the commission, was served on C. Dorsey, esquire, one of the attorneys of the coürt, who did not appear on 'record as attorney for the defendant until the 50th of March 1818, when the pleadings on the part of the defendant were filed in this cause, but who appeared at the appearance term as counsel for the defendant, and argued on his part against the motion to hold the defendant to bail; and who at the same time stated he was not counsel of record, and requested the witness to serve them on the defendant, and did not receive them; that the same were served on him (Dorsey,) some time in the month of November 1817, and a short time before the commission was sent by the clerk to the plaintiff. And it was also proved to the court, that the defendant himself wrote, to the clerk for a copy of the said interrogatories, and that they were sent to him by the mail, and the commission retained in the office until sufficient time had elapsed to receive the cross interrogatories. There was no proof that the defendant ever had any notice of the said commission ever having been sent on by the plaintiff to Vermont, nor did the defendant ever apply for such information, or ever intended to proceed under the said commission. And when the same was sent ■on, to whom-, except that it was returned in due form by the commissioners, sealed and directed, did not appear to the court; nor was any information given in relation thereto, or any intention expressed to the defendant to proceed under the said commission, until the said commission and return were handed this day to the court, although the jury was yesterday empannelled to try the'cause; but in consequence of the indisposition of one of the jurors, a juror was withdrawn by consent, and another sworn after the said commission was received by the court, and communicated by the court to the parties. The court was of ■opinion, that the testimony taken under the said commission was admissible in evidence, and the same was accordingly read. The defendant excepted.
    
      
      7. The defendant then offered in evidence the commis - sion issued in this cause to William Sampson, and others, of the state of New York, and the testimony taken thereunder, being the depositions, of Marón II. Palmer, Isaac Kipp, Abraham S. Hallett, John Kearney and James Sea-ton, relative to the baggage belonging to the plaintiff, brought by him as a passenger, &c. to the port- of New York, and to show that certain articles* liable to duty, but upon which no duty was paid, was sold for the plaintiff to the amount of gl035 65, &c. But the court refused to admit the said testimony; The defendant excepted.
    8. The defendant then submitted the following prayer to the court, viz. That if the jury shall find from the evidence in this cause* that the defendant spoke the words as laid in the declaration, and that at the time when the same Were spoken, he had been requested by a senator of the United States to give him -information of the fitness of the plaintiff for the said office, and at the same conversation referred the said senator to the records of the circuit coui't of Washington, in the District of Columbia, for the confirmation of the said statement* that then they must find a verdict for the defendant. Which opinion the court, ['Johnson, Ch. J.J refused to give. The defendant excepted.
    9. The plaintiff then produced a witness, Edmund Key, who gave evidence* that the plaintiff was a man, from his talents, education and character, qualified to discharge' the duties of the office in the declaration stated. The defendant, to prove that the plaintiff was unworthy and unfit • to hold the office in the declaration mentioned, produced as a witness Samuel R. Hughes, a competent and legal witness, and offered to prove by him, that the plaintiff, holding a commission under the government of the United States, to see to the tendering of certain provisions in the name of the said government to that of Venezula, which provisions were purchased under the act of congress of the 8th of May 1812, declared to the said witness, in April 1813, that he intended to purchase a quantity of drygoods, and to import such goods into the U. S. without paying duty thereon, and at the same time the plaintiff asked the witness, whether he thought it would be improper for him, the plaintiff, to import the said goods as aforesaid. That the plaintiff did, in pursuance of such intention, purchase in the West Indies, to wit, in the island of St. 7liornas,, a quantity of dry goods of the value of about glOOO, and brought the said goods with him to the island of Porto Eico. That the said dry goods were principally of British fabric, and that the island of St. Thomas was, at the time óf tire said purchase, under the dominion of the government of Great Britain. That the plaintiff did afterwards,, in May 1815, import the said goods into the United States, to wit, into the-port of New York, and that he offered a part of the said goods to the witness in payment of a certain sum of money due from the plaintiff to the witness, in. the city of New J ork. That the plaintiff, in conversation with the witness, confessed the truth of the above-facts in March 1819. But the court decided that the said' testimony was inadmissible. The defendant excepted.
    
      Agreement entered into by the counsel of the parties, viz. “Inasmuch as Leonard Mudd, one of the jurors sworn in this cause, is now sick, and unable to attend,, therefore we agree that the remaining eleven jurors, now sworn, in.the case, shall render a verdict as if all the twelve wereempannelled. We wave all objections that could not be-made if the verdict were given by the twelve, the eleven., concurring. It is agreed further, that the said- verdict shall have with it, and incidental to it, all powers on both sides to take exceptions, remove by appeal, sue out writ of error, and in short do all matters and things as if the verdict were rendered by the twelve.”' Verdict by the remaining eleven jurors was rendered for the plaintiff, and damages assessed to gffQOQ. current money. There was a motion by the. defendant for¡ a, npw trial, and-, the reasons assigned were,. 1st',. That the jury, misconceived the directions of the court, to the jury., '2d., That the verdict was against evidence., 3d. That there- was, no evidence to prove the words laid in the declaration; and, 4th.. That the damages are excessive. The court overruled- the motion, and rendered judgiqeqt on the verdict. The defendant appealed to this court.
    The cause was argued.before. Buchanan,, Earle, and Dorsey, J.
    
      Harper and Magruder, for the appellant,
    contended, 1. That the action, by the appellee's own showing in his declaration, could not be maintained.
    
      2. That the declaration was defective- in this, that it does not state that William T. Barry, or any other senator with whom the appellant discoursed, communicated; such discourse to the senate of the United States, and that it did not appear or follow, that the refusal, of the senators, (with whom the appellant discoursed,) to concur in, the nomination stated, caused- the rejection of the sqid nomination.
    3. That the alleged words, not having been stated to. have been spoken to the senate of the United States, the-, constitutional tribunal to decide on nominations to office under the United States government, the rejection of theappellee’s nomination by the senate could not. be chargedqn the appellant.
    4, That the special damage was not explicitly or parti-, culaxiy stated, and was impossible to be connected with the cause assigned for it, and was not the natural or legal consequence of the alleged slander.
    5,, That the words in, the declaration- laid were not actionable of themselves.
    6. That there never was such an office established or recognized by the laws of the Z7., States as commissioner of claims, &c.
    
      T. That the demurrer to the second plea, stating the discourse that actually took place, and justifying such discourse, (with a plea of not guilty to the residue of the discourse alleged in the declaration,) ought, to have been overruled by th,e cqurt below.
    8. That the demurrer to the third plea, which alleged that the. words charged in the declaration were spoken in a foreign jurisdiction, to wit, in the district of Columbia, qught not to have been supported.
    9, That the depositions of Jlrmistead T. Mason, Wil-. liam T. Barry, and. Dudley Chase, taken under commissions, as stated in the first, second, third, and sixth bills of exceptions, ought not to have been admitted in evidence; 1st. Because no notice was given to the appellant of thq time and place of executing said commissions. 2d. Because sex-vice of a copy of the appellee’s interrogatories •on Clement Dorsey, whose name did not appear at that time on the docket as the appellant’s, counsel, was not due service. 3d, Because no issue was joined between the, parties in the action tyhen the- commissions issued, -átbj Because the deponent, Jlrmistead T. Mason, \yas not Sworn by the commissioners, or a majority of them, named in the commission directed to W illiam Chilton and others. 5th. Because it did not appear what oath was administered to the clerk of the said commission. 6th. Because it appeared that the clerk of the commission directed to. John Bradford,• and others, was not duly sworn. 7th. Because the commission directed to William, Nutting, and ■ others, and the deposition of Dudley Chase taken under-it, were returned to the court after the jury were sworn.
    10. That no testimony ought to have been admitted to prove the nomination of the appellee to the senate to filL the office alleged, or to prove the rejection of the said nomination, except transcripts of the record of the senate, pr other written evidence.
    11. That no evidence was admissible-to prove for what pause the said nomination was rejected,, except a resolution-'of the senate to that effect.
    12. That the senate of the U. States haying refused to remove the injunction of secrecy so far as respected the appellee’s alleged nomination and the proceedings thereon, no testimony ought to have been admitted of what occur-ed in the senate vvhile acting in its capacity of thy executive council,
    13. That the passages in £, T. Mason’s deposition, contained in the third bills of exceptions, ought not to have been admitted in evidence for the reasons aforesaid; and further, 1st. Because it was hearsay. 2d. Because his vote \vas not affected by the appellant, but some other person. 3d. Because ft contained matters pf opinion and belief as to, the mo.tivea of others.
    14. Tlyat the same objections, apply to Wm. T. Barry’s, answers to the appellee’s 8th and 9th interrogatories in, the second bill, of exceptions,1
    15. That the deposition of John F. Gibney, and the depositions taken under the commission directed to William Sampson, &c. and the testimony of Samuel B. Hughes, ought to have been admitted in evidence under the circumstances stated in the fifth, seventh, and ninth bills of exceptions; and because the act of congress of the United States, commonly called the act for the collection of duties, incapacitates the person guilty of the offences therein charged from holding any office under the United States: for the space of five years.
    
      16. That the instruction prayed by- the appellant in the eighth bill of exceptions* ought to have been given to the jury; because, if the appellant spoke the words in the declaration alleged, with a reference 'to the records of the circuit court, mentioned by way of confirmation or-otherwise, it materially varies the words from those laid in the declaration; and if the appellant spoke the said words, in reply to an enquiry of a senator of the U. States wishing information, &c. they were not actionable. They insisted-that the action could not be maintained; that the court would not sanction, actions against public policy; and that the archives of the executive could not be examined- into for private information. Marbury vs. Madison, l Crunch, i S7. That to support this action there must be express malice proved. Rogers vs. Clifton, 3 Bos. fy Putt. 594., Wealherston vs. Hawkins, 1 T. R. 1-11. Jlstley vs. Jfounger, 2 Burr. 807. Thorn vs. Blanchard, 5 Johns. Rep. 508. Lake vs. King, 1 Sound. 131, (and notes.) 4 Betc. Jib. tit. Libel, (A.) 452. Bulk N. P. 8. Brooher vs. Coffin, 5 Johns. Rep. 188, ‘193. That where a special injury resulted from the words spoken, the declaration must accurately describe the special damage; and the allegata and probata must agree. 2 Phill. JSvid. 107,. 114. Sshlcyvs. Harrison, I Esp. Rep. 48. 'Vicars vs. Wilcocks, 8 East, 1, Bull. N. P, 7. That the words in themselves were not actionable, the act of 1796, ch. 67, s. 15, not making the transporting of negroes ap indictable offence, so as to subject the party to infamous punishment; that act punished the party with working on the roads if he did pot pay the fine. They referred tathe act of 1809, ch., 138, s. 10, and cited Buys vs. Gillespie,. 2 Johns. Rep. 1,1,5. Brooker m Coffin, 5 Johns. Rep. 188. That there were, in fact, but three pleas, although the demurrers stated that there were four. That the first was the plea of not. guilty, the second, was not guilty of part, and justification, setting forth the words spoken* &c. Cromwell’s case* 4 Coke, 12. And the third was, that the words, if spoken, were spoken out of the jurisdiction of the state. Mostyn vs. Fabrigas, 1 Cowp. 361. That the verdict, being by eleven jurors, was erroneous, which irregularity could pot be cured by consent. 1st. That a release of errors made before verdict was a void release; and 2d. That no consent could gu e jurisdiction. That the evidence admitted in the se • 
      nonti bill of exceptions was not legally admissible to esiablish the fact of tlie nomination by the president, and the grounds upon which it was rejected; that it should have been record evidence. That no foundation was laid for the admission of parol evidence. 1 Phill. Evid. 322.
    On the fifth, seventh, and ninth bills of exceptions, they referred to tlie act of coiigress of March 1799, eh. 128, s. 50. 2 Phill. Evid. 109, 115.
    On the sixth bill of exceptions, they insisted, that as the commission and testimony were not returned until after the jury were sworn, a continuance of the action should havé been ordered; that on the substitution of a new juror in the place of the one that was sick, if considered a new jury, only one was sworn.
    On the eighth bill of exceptions, they cited Le Caux vs. Eden, Bougl. 601, 602. Thom vs. Blanchard, 5 Johns. Rep. 508.
    
    
      Taney, Winder, and Jl. C. Bullitt, for the appellee,
    contended, that the words in thémselves were actionable under the act of 1796, eh. 67, s. 15, which is in force in Columbia., and that our courts notice such acts as are in force ' in that District. Davidson’s Lessee vs. Beatty, 3 Harr. Sj- MiHen. 620. That where there was a plea of not guilty as to part, - and justification as to certain of the words, a.nd not guilty as to the residue, and the words justified are taken out, then the remaining words would be nonsense, and mean nothing. That a plea producing such an effect could not be considered as an answer to the declaration. That as to tlie third or fourth plea, if any action was transitory in its nature, it was slander, and Mosiyn vs. Fabrigas, if it proved any thing, it was that this was a transitory action; so that it was of no consequence where the words Were spoken. Holt’s L. L. 299, (note). Glen vs. Hodgesi 9 Johns. Rep. 67. That if the court had no jurisdiction, then the plea should have been pleaded in abatement. That' the irregularity of the verdict was cured by the consent of the parties. 2 Bac. Jib. tit. Error, (K.) 496, 497, (and notes). Wright vs. Nutt, 1 T. R. 388. 3 Bac. Jib. tit. Juries, (K.) 777. That the spirit and meaning of the agreement was, that it should appear by the record that the verdict was given by the twelve jurors. That if it was net considered technically as a verdict given by twelve jurors', it might be taken; under the agreemént, as a reference to, and an award by eleven men. That to consider it a verdict was to save the rights of the defendant; so that he might have the benefit of his bills of exceptions; That When a party had diverted another from his legal course of proceeding, he never should take, advantage of those errors he had induced his adversary tó commit. Camden, vs. Edie, 1 H. Blh. Rep. 21.
    On the first, second, and sixth bills of exceptions, as to the manner of executing commissions tó take testimony} they referred tó Hindis Pr. 362.
    On the second and third bills of exceptions; as to the answers o'f Barry and Mason to certain interrogatories, they insisted, that the defendant, after due notice of the interrogatories, made no objections, and thereby waved his right of objection; and consented to the questions being answered. That thé objection to the answer of Barry to the seventh interrogatory, ought not to be sustained, because there is no known ride of law to exclude the evidence of Senators, nor any rule of the senate which had been violated. That the constitution provided that the senate should' keep a journal of their proceedings; and there was no evidence that they képt a secret journal, or what it contained, if they did keep one, whether of nominations to office!}, and rejections thereof. That, the extent of the obligation of secrecy was not in proof; but that it was in proof, that it might be, and that it had been disclosed. That the cóurif were not to say there was any obligation of secrecy, so as tó reject the evidence as not admissible—But that before it was rejected, the court should be satisfied that it was a vioblation of some moral obligation, as theré was no reason why the senate should keep secret any thing more than their journal, not that which might be utteréd m their hearing as a slander against an individual. Tliat unless there was proof that there was a record kept of nominations to office, and rejections of such nominations, the evidence was admissible; and if there was a secret journal which could not- be come at, then it Could be supplied by secón-, dary evidence. But they contended, that the secret journals of the senate Were not records, and could not be assimilated to the records of a court. That the whole being secret, they could he come at, only by secondary evidence; so that the foundation for such evidence, if it could not be ’proved by parol, coiild never be laid. That a capricious '^power exercised by a body, coiild not exclude a party from proving any fact upon which that bo.dy might have acted, 4©r any proceeding which might have taken place therein-. That here the evidéhcé was not objected 'to before the comihissiqners, as is the practice in chancery; and that not being objected to, it mislead the plaintiff, who Supposed that “the evidence would not be objected to. T?üt they contend;ed, that the testimony iñ itself was not exceptionable.That as to what was opinion, and what was fact, had not been very clearly defined. That general reputation of a man’s character is said to bé á fact. That the character of a man’s mind was a fact. That if a man was asked if another had a weak mind, &c. by his añswer hé would express aft opinion. That whether a man suffered pain, must be judged from appearances, and given as opinions, and yet it had been received as testimony. That a man speakiftg doubtfully of á fact, was received as evidence as fár ás it went. That one object to be derived from Gen. Masótfü testimony was the effect the information coming from the. defendant produced iñ the senate. That the cast of mind, of the senators, and their character, are all matters of fact. That this slander depended on the character of the senators, and the cast of their mind-. That to know whether a particular piece of news created aft excitement amoftg the 'crowd, must be judged of by áppearaftces. That where the testimony was received through the senses, áftd it was expressed doubtingly, it was tó be admitted, as all evidence was where a man did not swear positively to the faét. That in many other instances, which they enumerated, opinions might be given ift evidence, and that this was one in which it plight be dofte. That the journals of the senate, if produced, woftld not show the reasons which governed the senators in their rejection of the nomination; that could be known only from the individual senators. That the reason why all the senators had not been examined, was occasioned by the defendant’s not objecting to the question propounded to the witnesses who were examined.-
    On ihofifth, seventh, and ninth bills of exceptions, they insisted, that the evidence was properly rejected. That if that evidence had been admitted, it would be compelling the plaintiff' ta defend eyery act of his life. That he could not be deprived of his office, although he might have been guilty of smuggling; for until he was convicted of th’é charge, it would not have affected him.
    Ou the sixth bill of exceptions, relative to the substitution of a new juror, &c. and proceeding to the trial of the 'cause after testimony had been returned, they cited 3 Bac. ■Ah. tit. Juries, (K.) 777, and Contended, that the retura of the testimony taken under á commission; after the jury were sworn, could make no more difference than if a new witness had been produced after thé trial had commenced.
    On the eighth bill of exceptions, they insisted that dangerous consequences would be the résult, if a person, upon feeing required by a senator to give information as t» the fitness; &c. of another for office, should be permitted to slander that other. That his reference to the records of a court, to justify his assertions, should not screen him from jpunishmént, as it was not conclusive that there was no malice by such reference. That under the defendant’s prayer in this exception, it mattered not with what motivé the information was given, and although the jury might find the words wfere false, and that the defendant knew they Wére false, and that he spoke them with malice, yet the jury must have found a verdict for the defendant if the prayer had been granted. That if the words spoken were conformable to the record, still if they were spoken with malice, and with an intention to injure the plaintiff, they Were actionable. That the case of Thorn vs. Blanchard ■went upon the ground of the .absence of malice, and Was a étrong authority in favour of the plaintiff.
   Earle, 3.

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 connected -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»,  