(.after stating the facts). The only question in this case for the decision of the jury was whether the bank accepted the check and beepne liable to the payment of the amount for which it issued its deposit slip to the drawee thereof. The intention of the parties to the transaction could properly have been shown for the determination of this question, and the bank having issued its regular deposit slip or ticket for the amount of the check to the drawee thereof, the burden rested upon it to show that it was not in payment of the check. The fact that the drawer of the check offered on the following day, after hearing that payment had been refused by the bank to pay the $25 to Bishop, which he refused to receive, would not relieve the hank from liability on its deposit slip, if it accepted and paid the check therewith, .and the court did not err in refusing .appellant’s requested instruction numbered 4.
Neither do we find any error in the court’s ruling, refusing to allow the cashier to state what he thought when issuing the deposit slip, as the record does not disclose what his testimony would have been on this point.
The attorney objected to his stating what he thought, and the court said, “Just tell what you did.” After several questions, ¡he was asked, “For what purpose did you give ¡him that slip,” and upon objection, the court said, “That is a question for the jury, better state the facts that occurred there,” and it is ¡evident from the record that the court only intended to exclude the testimony of what the cashier had in mind, unless it was made known to the appellant at the time, and no error is shown to have been committed in his so doing.
In Rogers Commission Co. v. Farmers Bank of Leslie, 100 Ark. 537, the court said:
“It was not necessary to the bank’s liability that it should have on deposit to the drawer’s credit more than the amount of this check at the time of its presentation, for it woiuld have become liable to its payment by an acceptance of it, and could have permitted an overdraft as it had usually done, or withheld its own check, which it claimed to have in its drawer against the ¡account of the maker of the ¡check, etc.”
The fact that the check was ¡not charged by the bank to the drawer’s account, iand that the drawer did not have sufficient funds on deposit to pay ithe same, could properly be considered in determining whether the bank accepted the check and paid same in the issuance of its deposit slip, but the jury under proper instructions found the issues in favor of appellee, and the judgment is affirmed.