By the Court.
Lumpkin, J.delivering the opinion.
[1.] [2.] [3.] We deem' it unnecessary to notice, separately, the various assignments of error upon the charge of the Court. The Court instructed the Jury, in substance, that the undertaking by a person to receive money and deliver it to another, without reward, is a mandate ; and in contracts of this kind, the mandatory is liable for gross negligence only; and the burthen of proof is thrown upon the plaintiff, at least, to make out a prima facie case. That negligence was ordinary, less than ordinary or more than ordinary; and *507that he who omits even slight diligence, fails in the lowest.de-’ .gree of prudence, and is deemed grossly negligent ;"that is, omitting that care which even the most inattentive aiid thoughtless men never fail to take of their .own concerns. That .gross negligence was dolo proximus, amounting almost to a 'fraud. That he who accepts a burden gratuitously, is not to be dealt with as one who receives a benefit; and whether the defendant had been grossly negligent, ivas a fact to be determined by the Jury, under all the circumstances of the case. ’ .
As a whole, we think the charge unexceptionable; and that it covers, substantially, all the requests which were made by the defendant.
[4.] The next assignment pf error is, that .the Court permitted plaintiff’s Counsel to make statements to the Jury, while in conclusion, which were not warranted by • the testimony ; and refused to interpose when called upon to do so.
Upon looking into the record, we are obliged to say, that while there was some evidence as to the points respecting which Counsel was addressing the Jury, yet, the facts were rather over-stated; not sufficiently so, however, to authorize a new trial on that ground.
There is, moreover, an inherent difficulty upon this subject, mnder the Act of 1850, which forbids a Judge, cither during the progress of the trial or in his charge to the Jury, to express or even to intimate his opinion as to what has or has not been proved. Suppose Counsel insists that such and such facts have been proved, how can the Court undertake to correct him without violating this Statute ?
Great latitude, after all, is allowed to Counsel, as well by the Common Law as by the Courts of this country, in forensic discussions. And it will not do to abridge liberty of speech too much; “ no pent up Utica” is the motto, certainly, in republican governments.
As the members of Congress are wisely protected by the Constitution of the United States, from being called to account for any thing said in debate, so Counsel, in their place, *508in the discharge of professional duties, may use language, if pertinent to the cause, which would be considered wholly indefensible elsewhere. There is a limit, however, to this privilege. And respectable Counsel, unless inadvertently, will never indulge in speaking to facts not in evidence ; or in confounding inferences and opinions with facts. Should this practice be deliberately and habitually pursued, while it is, doubtless, the duty of the Court to prevent any such abuse .in a plain and palpable case; still, such offenders should be held amenable to a just, and often more efficacious, punishment : and that is, the discountenance of their professional brethren, whose frown of disapprobation is the surest of all inflictions to a high-minded lawyer. And such only should be permitted to occupy a place at the bar.
[5.] We think the Court was entirely right in suffering the witness, Nelson P. Foster, to testify as to what John Jackson said to him about the ownership of the money, at the time the packet was delivered to the witness to be carried to Apalachicola. It was a part of the res gestee.
[6.] We hold it was error in the Court below, not to allow the defendant to show, upon the cross-examination of James G. Johnson, that John Montgomery'had told him, the same morning that the, money was delivered to the defendant, that he (Montgomery) had a message to him from McNabb : and that was, that he had lost the money, and that he wished ,'him (Johnson) to go and look in the stables, and from thence .down to the river, for the money.
Montgomery swears that McNabb rode hastily back to the river, seeming much disturbed, and communicated to him the loss of the packet, assigning as a reason for not going back the stables himself, that he had left the stage, with the •mail in it, with no one to take care of it. He begged the witness to notify Mr. Johnson of the occurrence, and ask him to make search for the money.
It is contended that to allow-this proof, is to permit the party to manufacture evidence for himself. But this is not .true. It is the evidence of circumstances attending the trans*509action. Direct proof of the loss of this money, is not to be .expected. The circumstances, therefore, that would naturally attend or characterize the conduct of a man • placed in .the situation in which McNabb stood, is, from the necessity of •.the case, proper testimony.
No man would be the bearer of a packet of money without reward, and at the risk of reputation and property, if he were compelled to prove the theft or loss by eye-witnesses. It would be unreasonable to look for such proof.
The conduct of the party, in connection with what he says —in other words, concurrent acts and declarations, should be received in exculpation, for what they are worth. It can only be ascertained, from such circumstances, whether the bailee was, guilty of gross neglect or not. That nothing that a man says or does can be given in evidence to support his own cause, is a good general rule. It has, however, like all other general rules, exceptions; otherwise, better without the general rule.
In Sampley vs. Scott, (24 Miss. Rep. 528,) the Court say : “ It is certainly true, as a general rule, that statements or admissions made by a party interested in the result of a suit, cannot be given in evidence in his favor. Brit the rules of evidence are adopted for practical purposes in the administration of justice, and must be applied in such a way as to promote the ends for which they were designed. And the Courts' have, therefore, admitted many exceptions to the above rule. The instances in which the statements or admissions of a party have been received in his own favor, have been so frequent as to constitute it almost a rule rather than an exception, that they may be received in cases of extreme necessity, where, from the nature of the case, no better evidence can be reasonably expected.” (Citing Buller’s Nisi Prius, 289. 1 Stark. on Ev. 182.)
Judge Story says that the statements made by a mandatory, that the letter delivered to him with money in it, had been lost by accident or stolen from him, with the circumstances attending the transaction, ought to be deemed a part *510of the case, so as to entitle the mandatory to the benefit of the statement at the trial, as a part of the res gestee, leaving it to the Jury to disbelieve the statement and to find the defendant guilty of gross negligence, if the circumstances did not, in their judgment, repel it. (Story on Bailments, §213, n. 1.)
We concur, fully, with the foregoing views, and think the testimony, upon this head, was improperly withheld from the Jury.
[7.] We see no error in the fifth assignment, but affirm the judgment of the Court in over-ruling the motipn for a non-suit. Every action is properly brought in this State, regardless of its form or name, which sets forth, plainly, fully and distinctly, the plaintiff’s cause of action. In this instance, it is wholly immaterial whether the suit be trover, assumpsit or case. It is a general principle of the Common Law, that -every person is presumed to do his duty until the contrary is established. The burthen is, therefore, upon the plaintiff, to negative-this presumption. The non-suit should not have been awarded.
One of the grounds upon which the new trial was asked, and the not granting which is assigned as error is, in not permitting the defendant to show, by James G. Johnson, that it was with great reluctance that he (McNabb) took the mo:-ney; and that it was through the earnest persuasion of wit-mess that he did take it.
The record does not sustain this exception; on the contrary, it shows that the witness, Johnson, testified that the defendant at first declared, that he did not intend to carry any more money. Johnson told him he was sorry for it; .and upon farther conversation, he finally agreed to take it.
[8.] Ought the defendant, himself, to have been sworn as a witness ?
In Dibble vs. Brown & Haynes, (12 Ga. R. 217,) this Court held,, that the’evidence of the plaintiff in an action against a common carrier, for the loss of his trunk, was admissible to *511prove its contents, provided there, iras no other evidence to establish the fact. And this evidence was admitted, not upon the ground that the defendant had committed spoliation upon the property; or in odium spoliatoris, but upon a policy in favorem justitice springing out of the necessity of the case and the nature of the subject. And this doctrine is abundantly sustained by authority. An attempt has been made-to deny its application in cases of necessity alone, and in the-absence of fraud. But the attempt thus to restrict it, has proved unsuccessful.
Would the admission of McNabb be a further and dangerous innovation' upon that Common Law rule, that no person shall be a witness in his own case? The Mississippi Court,, in the case already cited, held that it would not, and allowed the defendant, in a case precisely similar in all respects, to-be sworn. And while I have concurred with my brethren in affirming the judgment of exclusion in the Court below, further reflection and examination have tended rather to weaken than confirm my first impressions. If a party, without benefit or reward, having undertaken to do a favor for a friend, and without any other evidence as to how the casualty arose, cannot be allowed to give evidence in his own favor, a failure of justice is inevitable. No prudent man should ever carry a, letter or packet for another. Suspicion will attach, and the most ujn’ight man will bo more than punished for any neglect of which he may have been guilty, by the mortification which he feels. Justice would seem to demand, that when the voluntary depository admits that, somehow, he did lose the money, that he should have the privilege of stating exactly the quo modo he lost it. His narrative is for the consideration of the Jury. Why exclude from them the only testimony that can shed a ray of light upon the transaction ?
[9.] The books and the daily practice of the Courts, abound in instances, where the oath of the party is received as evidence in his favor, because it is essential to the purposes of justice. He proves that the books of account produced in Court, contain his original entries ; the loss of a deed out of his custo*512dy, so as to let in secondary evidence ; and so of other matters, of which the books of practice abound in examples. To-rebut this proposition, we are met with some conjectural notions about public policy. For myself, I utterly repudiate all such fanciful distinctions. I am satisfied they will not abide the test of investigation.
Here is a bailee, without reward, seeking to defend himself against a presumption of gross negligence, or something-worse; and where the facts, which constitute his defence, could,, in the nature of things, be susceptible of no other proof than» his own statements ! My judgment refuses to acquiesce in. such a doctrine.
[10.] Understanding the bill of exceptions, as we do, that the testimony, that McNabb, immediately after this transaction, was seen in the possession of property, buying and selling, &c. was brought out by the plaintiff, in his cross-examination of John M. Potter, we are clear, that by way of rebuttal,the defendant should have been permitted to show his pecuniary circumstances before the alleged loss, and his reason» for leaving the stage lino, the fact of his doing so being' adduced as a circumstance to inculpate him..
[11.] The main ground upon which we propose to put the-new trial, in this case, is the rejection of the testimony of William Farnsworth, as to .the good character of McNabb for honesty and general trustworthiness. In civil cases, such evidence is always admissible, when the nature of the action involves the general character of the party, or goes directly to affect it. And whenever a particular trait of character is involved in the matter charged against the defendant, there the character of the party, in that particular trait, is put in issue, and may bo given in evidence. We cannot doubt but that the character of the defendant, for want of integrity and trustworthiness, was put directly in issue by the action brought against him; and from the very nature of the case, and the difficulties surrounding it, that character must constitute his-main, if not his only defence. Entire liberty should have-been extended to the defendant upon this point. The time wills *513come, and we are fast verging to it, when the administration of justice, both civil and criminal, will turn very much upon-the character of the litigating parties, their testimony being mainly looked to for the establishment of tho facts upon which the law will pronounce its judgments.
Upon tho whole, we think it best to remand this cause for a re-hearing. It is a mere matter of delay to the plaintiffs; If the defendant lost or embezzled their money. Rut if he be innocent, it is a great cruelty to make him liable for the casualty.