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rected to relatives and friends. In cases of supposed moral insanity, diligent inquiry should be made into the motives which might have led to the commission of the act of which the party is accused.

"8. The medical man should insist on full opportunity being given him of forming his opinion. He should rarely be content with a single visit, and in difficult cases should require that the party be placed for some time under his observation.

"9. When undergoing examination in a court of law, the medical witness is recommended to avoid all definitions of insanity, on the plea that mental, like bodily diseases, do not admit of definition, but, in common with many familiar objects, can be recognized but not described:" See also Quain's Dic. of Med. (Am. ed.), sub. Civil Incapacity, p. 259.

CHAPTER IV.

PRIVILEGED COMMUNICATIONS.

§ 66. At common law, between attorney and client. At common law confidential communications between attorney and client, relating to matters of professional employment, on grounds of public policy, cannot be divulged by either on the witness stand, without the consent of the other. And courts will interpose to protect parties entitled to the privilege: See Cohen v. Ins. Co., 41 N. Y. Superior Ct. R. 296; 1 Field's Lawyers' Briefs, § 473-479; 3 id. 300; 1 Whart. C. L. (7th ed.), § 775; 1 Greenl. on Ev. (13th ed.), §§ 239-246. But if a party to a suit offers himself as a witness, he cannot, upon cross-examination, refuse to answer questions as to any conversation with his counsel, testified to in his direct examination: Inhabitants, etc., v. Henshaw, 101 Mass. 193; 3 Am. Rep. 333.

The same public policy would seem to require he protection of confidential communications between clergymen or priests and laymen, as

where the guilty conscience disburdens itself by penitential confessions, and by spiritual advice, instruction and discipline, seeks pardon and relief. But the common law does not protect such communications 1 Greenl. on Ev. (13th ed.), § 247; 1 Whart. C. L. (7th ed.), § 775.

Nor does the common law of England, or of this country, protect similar communications made between physicians or surgeons; and in the absence of statutory provisions to the contrary, they may be required as witnesses, to disclose information acquired in professional confidence, and even where it was necessary for proper advice or treatment of the patient: 1 Greenl. on Ev. (13th ed.) 248; Whart. on C. L. (7th ed.) 774; Duchess of Kingston's Case, 11 Harg. St. Tr. (Eng.) 243; 20 How. St. Tr. (Eng.) 613; Rex v. Gibbons, 1 C. & P. (Eng.) 97; 1 Phil. on Ev. (7th ed.) 147; Broad v. Pitt, 3 C. & P. (Eng.) 518; Dixon v. Parmelee, 2 Vt. 185; Sherman v. Sherman, 1 Root (Ct.), 486.

§ 67. Protection of confidential communications by statutes.

The statutes of various states make not only confidential communications to a physician or

surgeon by his patient, but by a layman to a clergyman or priest, privileged, and they cannot be revealed when they are called as witnesses.

The statute of New York provides as follows: "A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, which was necessary to enable him to act in that capacity:" N. Y. Code of Civ. Proc., § 834; see also 2 R. S. N. Y. 406, § 73.

In New York it has been held that, under the statute, it is not essential that the relation of physician and patient should actually exist, but it is sufficient if the physician visits a person under such circumstances as to lead the latter to believe that the visit was a professional one, and to induce the patient to make disclosures on the strength of such belief: People v. Stout, 3 Park. C. R. (N. Y.) 610; Edington v. Ins. Co., 67 N.

Y. 185.

It may be observed that if, as between attor ney and client, a communication is privileged, it cannot be disclosed by the party to whom it is communicated, when called as a witness, either

in a civil or criminal proceeding. And the privilege is not limited to oral discourse, but covers all disclosures by writings, documents, books, papers, pictures or other visible or material objects: Crosby v. Berger, 11 Paige (N. Y.), 377; 1 Field's Lawyers' Briefs, §§ 474, 476; Durkee v. Leland, 4 Vt. 612; Lynde v. Judd, 3 Day (Conn.), 499; Kelogg v. Kelogg, 6 Barb. (N. Y.) 116; People v. Benjamin, 9 How. (N. Y.) 419.

The same doctrine would be applicable to the relation of physician and patient: Eddington v. Life Ins. Co., 67 N. Y. 185; ante, § 66.

Statutes of a similar character may be found in Michigan, Indiana, Iowa, Wisconsin, Missouri and other states.

§ 68. Protection of confidential communications made to clergymen or priests.

In many of the states will be found statutory provisions, similar to the one in New York, protecting confidential communications made to clergymen or priests, in certain cases, and making them privileged. The New York statute is as follows: "No minister of the gospel or priest of any denomination whatsoever shall be allowed to disclose any confession made to him in his

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