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hypothesis of the defendant, as contained in the questions presented to them, he was so far insane as not to know the nature and character of the act or that it was wrong. It is true that in cross-examination as to the point of insane impulse, etc., as presented by counsel for the prosecution, some of them said they thought a person thus actuated knew the character of the act and that it was wrong.

And they somewhat tended to the opinion that of the different kinds of insanity spoken of by some authors, the evidence rather pointed to homicidal impulse on the part of the defendant. But they all said it was exceedingly difficult to determine the exact character of the disease in many cases, and that the fullest kind of knowledge of all the surrounding facts of any particular case was sometimes necessary before they could form an intelligent opinion of the exact nature of the insanity af. flicting the person and the amount of his knowledge of right and wrong. It is to be also observed that the general conclusion of the medical witnesses for the defendant, summed up after various cross-examinations, was that the defendant, upon the facts assumed by his counsel in his question, was so far insane as not to be conscious of the difference between right and wrong or that the act he committed was wrong. In this condition of the evidence it is clear that there is not such certainty of the character of the insanity of defendant, assuming the existence of any, that the court is en. abled to say as matter of law it was of that kind which furnishes no defense.

That must be a question submitted to the jury under proper instructions as to what constitutes insanity within the meaning of the law. In this case, I do not think we should strive to see if we cannot guess that the error of the court affected no substantial right of the defendant. However strong the evidence tending to show his guilt may have been, he was entitled to a fair trial, and in view of the facts appearing on the face of this record, we greatly fear that he has not bad it.

The learned judge, in his zeal for the due administration of justice and for the punishment of crime, stepped wholly outside of his province in stigmatizing, in the language used by him, the character of the witness by whom the counsel for the defendant offered to prove the facts above alluded to. Under the circumstances, it was very much in the nature of a charge to the jury, and it was duly excepted to. It was unfair to the witness, because, from the offer made by defendant's counsel, it appeared that she was not a consenting party, but that she had been overpowered, and in that condition a revolting crime had been perpetrated upon her. The statement that she ought not to be believed if she gave such evidence, and the assumption by the court that she instigated defendant in the commission of crime, were most damaging to the witness in regard to the testimony which she did give in the case, for the offer presupposed the will ingness of the witness to testify to the very facts which the court said ought not to be credited, even if sworn to by her. There was no legal ground for the rejection of her testimony, and its credibility was altogether a question for the jury. Some of her evidence was of quite important a nature, especially that which described the effect this communication had upon the defendant She testified that he was from that time sleepless, restless, walking the floor nights, refusing his usual amount of food, and that his habits changed in regard to the care and attention which he had theretofore paid to his stock and his work, neglecting both and brooding over his troubles.

All this was quite material evidence, and as it was substantially contradicted by the sons of the deceased who boarded with the defendant during this time, the question became a most material one as to the credibility of the wife. It was therefore most unfair and improper to thus characterize the witness and her proposed testimony, and it plainly prejudiced the defendant in his defense. The court committed an error in rejecting the evidence in the first place, and in subsequently making the remarks which he did in ruling upon the offers of counsel. The record shows nothing in the conduct of the latter calling for the least unfavorable comment by the court. It must be borne in mind that this court does not assume to say the evidence on the part of the defendant should all be believed or that if believed it did as matter of fact show the defendant so far insane as to be irresponsible for the act he committed. That is the very question for the jury to decide. The evidence on the part of the People must be taken into con. sideration on this question, and that evidence as qualifying and explaining the evidence of defendant we are bound to say was of great force, gathered from many different sources and altogether making a most formidable answer to the case on the part of the defense. We only say there was some evidence on his part which rendered it proper to admit this other evidence in question, and the whole should have been submitted to the jury under such proper instructions as would save the rights both of the defendant and the prosecution The denial of that right was error, and the manner and terms of its denial were anything but proper or appropriate.

We think other errors were committed upon the trial.

One was in regard to the right of the defendant to object to the wife giving any evidence of confidential communications from the defendant, her husband, to her. The court held that it was not the right of the defendant to take the objection, but that it was the personal privilege of the wife, and she was put to her election whether she would answer or not, and she thereupon declined to answer. To this ruling the defendant objected and duly excepted. I think the decision, while as a result keeping out the alleged confidential communications, yet did so by improperly extracting a quasi admission from the wife that the communication was of a nature to hurt the defense.

If the defendant had the right to object, and to thus relieve the witness from any such partial admission, I think the exception was good, and not merely of a technical nature. Perhaps the judgment would not be reversed for that error, because it would seem that the communications had already substantially been proved. But I believe the ruling was in its nature erroneous. The common law rule that husband and wife cannot be witnesses for or against each other has been modified by the Penal Code, $ 715. That section makes a husband or wife of a person indicted or accused of crime in all cases a competent witness, but "neither a husband nor wife can be compelled to disclose a confidential communication made by one to the other during their marriage. We are of the opinion that this section does not leave the matter entirely to the discretion of the witness, but that the other party interested may object to any such communication, and that upon such objection being made, the witness not only cannot be compelled, but that he or she has no right to make the disclosure.

We think evidence as to the conduct or appearance of the wife of the defendant subsequent to the killing was also inadmissible. The wife was not on trial and was accused of no crime, yet several witnesses were permitted to give evidence as to her appearance at various times after the killing, seemingly for the purpose of showing that she did not exhibit the proper feeling of sorrow upon such an occasion. Whether she did or not was no subject for investigation on this trial, and was an improper means of attempting to impeach her evidence. It is also plain that if Dr. Martine was able, from a physical examination of the defendant subsequent to the killing, to determine satisfactorily in his own mind the condition of the brain of the defendant, and could also state from such examination that there was a disease, and of such long standing affecting it that it must have existed when the killing was perpetrated, the defendant is entitled to the evidence. I have some doubt whether the doctor came up to that point in his evidence, although counsel for defendant assumes he did in his argument. We are far from clear that he did, and we should not reverse on the ruling excluding the offer to show it by the doctor.

Upon the whole case, we are without doubt as to the propriety and necessity of reversing this judgment. If the defendant be guilty, it can be shown on another trial conducted more in accordance with the rules of law than was the one under consideration.

For the reasons already given the judgment must be reversed and a new trial granted.

All concur, except FINCH and GRAY, JJ., absent.

WILLIAM D. SHIPMAN et al., Resp'ts, v. THE BANK OF THE STATE

OF NEW YORK, App'lt. (Supreme Court, General Term, First Department, Filed January 13, 1891.) BANKS - PAYMENT OF CHECKS WITH FORGED ENDORSEMENTS ACCOUNT

STATED.

A clerk of the plaintiffs, who was in charge of their loan department, by fraudulent representations induced them to give him checks drawn on the defendant bank, payable to names given by him, and which proved to be mostly tictitious, and then forged endorsements on such checks and procured payment thereof from defendant, either directly over its counter or through another bank. These transactions covered four years, during which plaintiffs' bank-book was written up thirteen times, some of these forged checks being returned each time, and was examined by their cashier. Held, that plaintiffs were under no duty to defendant to examine the endorsements of the checks returned to discover forgeries, and were not

chargeable with negligence in failing to do so or in reposing confidence in the clerk, that defendant was liable for the payments so made by it, and was not relieved by the fact that some of the payees of the checks were afterwards made good by said clerk. APPEAL from judgment in favor of plaintiffs, entered on the report of a referee.

The following is the report of the referee:

HAMILTON ODELL, Referee-On April 7, 1884, the defendant, a banking corporation, was indebted to the plaintiffs in the sum of $14,499.08, upon a balance in their favor of moneys deposited by them with the defendant. Thereafter, and between that date and the 3d day of October, 1888, the plaintiffs deposited other moneys with the defendant, amounting in the aggregate to the sum of $6,213,586.71. They allege that of these sumš the defendant has paid to them, or on their orders, only the sum of $6,030,040.29, and that the balance, to wit, $198,045.50, the defendant has refused to pay, although payment has been demanded. To recover this latter sum this action is brought. The defendant denies the alleged indebtedness, and avers payment of the entire sum in dispute on the written checks or orders of the plaintiffs. That such checks were drawn by the plaintiffs, and that they were paid by the defendant and charged against the plaintiffs' account, are facts in the case; but the plaintiffs contend that such payments were wrongfully made, because not made to the parties in whose favor such checks were drawn, or to their transferees, but to persons having no title to the checks, and no right to demand or receive payment thereof, but who claimed title and demanded payment through or under forged endorsements of the several payees. The relation of banker and customer in respect of deposits is defined and settled by abundant authority, and is not a matter of contention in this case. " When deposits are received, they belong to a bank as part of its general funds, and the bank becomes a debtor to the depositor, and agrees to discharge the indebtedness by pay. ing the checks of the depositor, his creditor. The contract relation between the parties is purely legal, and has no element of trust in it.” Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y., 86. “All deposits made with bankers may be divided into two classes, nainely, those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter, and that other kind of deposit of money, peculiar to banking business, in which the depositor, for his own convenience, parts with the title to his money and loans it to the bank, and the latter, in consideration of the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any part thereof,

demand.” Marine Bank v. Fulton Bank, 2 Wall., 256; Phoenix Bank 'v. Risley, 111 U. S., 125. The proposition insisted upon by the learned counsel for the plaintiffs is therefore true. A bank, in honoring the check of a depositor, does not pay it out of moneys belonging to the depositor, but out of its own moneys. It does not thereby restore to the depositor a portion of funds which it holds for him, or as his trustee, but it

on

pays pro tanto its indebtedness to him arising out of his “loan of his " deposits" to the bank. When the Corn Exchange Bank paid Kunhardt & Co.'s check to a party claiming through a forged endorsement, it did not use Kunbardt & Co.'s money for that purpose. " Their money (the court said) was still on deposit with the plaintiff, and the plaintiff owed them for it." Corn Exchange Bank v. Nassau Bank, 91 N. Y., 80: Bank of British North America v. Merchants' Bank, 91 id., 111. It is also true that a bank's indebtedness to its depositor can be discharged only by payment either to him or to the person or persons to whom he directs it to be paid. Care and diligence on the part of the bank in determining whether the party who demands the payment is entitled to receive it are of no importance as respects the depositor. Its liability to him is absolute. It makes every payment at its own risk, and it can charge him with only such payments as it makes to him, or in accordance with his directions. În " debiting his account, it is not entitled to charge any payments except those made at the time when, to the person whom, and for the amount, authorized by him. It receives the depositor's funds upon

the implied condition of disbursing them according to his order, and upon an accounting is liable for all such sums deposited as it has paid away without receiving valid direction therefor." Crawford v. West Side Bk., 100 N. Y., 53. The signature of its customer the bank is bound to know, and it must bear the loss if it pays a check with a forged signature, no matter how well it may be simulated. Weisser v. Denison, 10 N. Y., 68; Frank v. Chem. Nat. Bank, 84 id., 214. And when a genuine check is made payable to a person named therein, or to his order, the duty of the bank is equally imperative. While not chargeable with knowledge of the payee's signature, it must see to it, at its peril

, that it pays according to the terms of the order, and to the party named therein, or to one holding it under the genuine endorsement of such payee." Dodge v. Nat'l Exch. Bank, 30 Ohio St, 1; Welsh v. German Am. Bank, 73 N. Y., 426; Corn Exchange Bank v. Nassau Bank, 91 id., 80. These well settled propositions are not denied by the learned counsel for the defendant, but it is contended that the payment by the defendant of the checks in dispute has been adopted and ratified by the plaintiffs; that various accounts were stated and settled between the parties while the frauds in question were being perpetrated by Bedell; that in those accounts these checks were charged against the plaintiffs, and that the checks themselves were returned to the plaintiffs as vouchers for such charges; that the balance shown by each settlement to be due from defendant to the plaintiffs was accepted by the latter as correct, and the said vouchers were retained by them, either without examination, or with such partial and negligent examination that said frauds were not discovered, as they might easily have been had the plaintiffs exercised reasonable and proper care; and, therefore, it is insisted, with great vigor, that the plaintiffs are estopped to question or dispute the validity of such pay. ments by the bank. The same claim was urged in Weisser v. Denison, 10 N. Y., 68, which was an action brought by a de

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