No rule . of evidence is better esta-' blished than that the whole of the admissions or declarations of a party made at the same time, must be received, or the whole must be rejected. On resorting to such evidence, we depart from the ordinary rules of testimony, and such statements are to be cautiously received. If the plaintiff will open the door to such evidence, it is surely competent for the defendant to avail himself of any statement which he made at the same time and about the same matter.
But it is contended, that the statement of the defendant as to putting on the handcuffs ought to have been received as part of the res gesta ; but that what he said in his own fa-vour going to qualify the act is extraneous matter, and ought to be rejected. The rule is the same whether the statement is taken as a naked admission, or is made at the time of doing the act, and to be considered as connected with it. As a part of the res gesta the whole of the defendant’s statement should have been received ; for it qualifies the act, and shews the object and intention of the party doing it. I am, therefore, of opinion that there was Error in not permitting the question to be answered.
As to the deposition of Davis, the plaintiff was present and cross-examined; and this, I conceive, cured the previous irregularity, if any.
The deposition was rejected as being irrelevant "to the issues. I am of opinion that all the deposition which relates to the warrant and to the proceedings of the defendant and the witness under it, although not full and conclusive evidence without the production of the warrant, was good evidence under the plea of justification, and should have been left to the Jury.
That part of the deposition which goes to shew that Rogers had reasonable grounds to suspect that Wilson had forged a pass for his runaway slave, or that he harboured the slave, was clearly good evidence in mitigation of damages. *410It was not full and conclusive evidence of these facts, but it raises a strong presumption of guilt, and should have been left to the Jury.
I am not prepared to say, nor is it necessary now to decide, whether the bad character of the plaintiff may be given in evidence in this action in mitigation of damages. But from the analogy to an action for malicious prosecution or for a malicious arrest, I presume that the character of the plaintiff, so far as relates to the offence which induced the imprisonment, might be given in evidence ; and I am satisfied that when the plaintiff himself introduces evidence of his character, to the introduction of which no objection is made by the defendant, that then the defendant may insist on the bad character of the plaintiff in mitigation of damages.
For these reasons I am of opinion that the judgment should be reversed, and the cause remanded. A majority of the Court have arrived at the same conclusion, but by a different process of reasoning.
The Chief Justice and Judge Gale concurred in the result. Judges •Taylor and White dissenting. Judge Sajfold not sitting.