to act as its agents and had made a full settlement of the debt with Davis. If the bank was seeking to hold Davis liable for the balance due on the note, it is doubtful if it could retain the money secured by the attorneys from him by executing this receipt in full, and at the same time reject the settlement. But Davis was not a party to this note, and the bank has never asserted that he was liable for it. This is not an action against Davis, but against the parties to this note, with whom no settlement was made, and who have paid nothing on the note. If, after discovering that a receipt in full had been executed by these attorneys to Davis for this debt, the bank had refused to retain the money, and returned it to him, this might have resulted in injury to the sureties, and in the end the bank might have been compelled to shoulder the loss, if any had resulted from the return of the money. Davis was not asking for a return of the money, and a return of it to him might have resulted in injury to the sureties or the bank. The only safe course for the bank to pursue was for the bank to hold the money. Under these circumstances the failure of the bank to return the money is not inconsistent with a denial on its part of the right of these attorneys to collect the money for the bank, or their right to give a receipt in full against the note. As the bank could not return the money without risk of injury to itself or the sureties, its retention thereof was not in law a ratification of the act of the attorneys. Martin v. Hickman, 64 Ark. 217, 41 S. W. 852; Brown v. Wright, 58 Ark. 20, 22 S. W. 1022, 21 L. R. A. 467; Bryant v. Moore, 26 Me.. 84, 45 Am. Dec. 96; Thacher v. Pray, 113 Mass. 291, 18 Am. Rep. 480; 1 Clark & Skyles, Agency, p. 327.

It follows from what we have said that instruction No. 1, and other instructions given at the request of the defendants, in which the court told the jury, in substance, that if the bank retained the money paid to it by Yancey, Reeder & Casey after notice that these attorneys have assumed to act for the bank in the settlement made with Davis it would be a ratification of the acts of the attorneys in making the settlement, was, in our opinion, erroneous and misleading. For these instructions, abstractly considered, may be correct in stating that a principal cannot ratify a part of the transaction and reject another part, yet, under the facts here, it was misleading. As the act of the bank in receiving this money from the attorneys who had collected it from Davis did not mislead or injure the defendants in any way, but, on the contrary, was a direct advantage to them to the extent of such payment, we see no grounds of estoppel.

On the whole case we are of the opinion that the facts in evidence make out a clear case in favor of the bank, except as to $34.80, the amount paid by the bank to the attorneys after $384 collected through the bank

ruptcy proceedings. The evidence shows that these attorneys were requested to look after this matter in the bankrupt court by the cashier of the bank. He did it at the suggestion of Maxey to protect the sureties on Maxey's note. The collection of the $348 in this way resulted in a benefit to the sureties to that extent; but, as they did not authorize this step to be taken for them, they cannot be charged with the expense of the collection. The bank authorized it, and a payment of that amount to the attorneys was a payment to the bank. But, as we have said, the collection from Davis was not authorized by the bank, and it is responsible only for the part of that collection that came to its hands.

For the reasons stated, the case is reversed, and the cause remanded for a new trial.

WHITE RIVER MINING & NAVIGATION CO. et al. v. LANGSTON.

(Supreme Court of Arkansas. July 29, 1905.) 1. WITNESSES-IMPEACHMENT CONTRADICTION OF TESTIMONY.

In ejectment for a mining claim, where the issue was whether plaintiffs had done the $100 worth of assessment work required by the mining laws during a certain year, and plaintiffs' agent testified that he had done actual development work on the lands amounting to over $200, and stated on cross-examination that only a small part of the work in question had been done on another claim, certified copies of affidavits filed by the witness in the United States General Land Office, showing that the work in question had been done entirely on the other claim, were competent to contradict the witness.

VARIANCE

2. EJECTMENT PLEADING SOURCE OF TITLE. Where a complaint in ejectment for a mining claim based plaintiffs' title solely on a location of the claim, and the sole issue raised by the answer was one of forfeiture of the location for failure to perform the assessment work required by law, plaintiffs could not, after the case was before the jury, rely on adverse possession as a source of title.

Appeal from Circuit Court, Marion County; Elbridge G. Mitchell, Judge.

Ejectment by the White River Mining & Navigation Company and another against A. L. Langston. From a judgment for defendant, plaintiffs appeal. Affirmed.

Woods Bros., for appellants. South, for appellee.

Horton &

MCCULLOCH, J. This is an ejectment suit, brought by the White River Mining & Navigation Company and H. D. Armstrong against A. L. Langston to recover possession of the land embraced within the boundaries of a mining claim, and involves a contest between appellants and appellee as rival claimants under mining claims held by them respectively. The claim of appellants was located on January 1, 1899, and that under which appellee holds on January 1, 1901. Appellee alleged in his answer that appel

lants failed to do as much as $100 worth of assessment work during the year 1900, as requiring by the mining laws, thereby forfeiting the claim. A trial was had before a jury upon this issue, and the same resulted in a verdict and judgment for the defendant.

The mining claim under which appellants assert title was located by E. C. Cook and others, who subsequently conveyed to appellants, and the assessment work on the claim is alleged to have been done for them by Cook, as their agent. On the trial they introduced Cook as a witness to prove the amount of assessment work done, and he testified that during the year 1900 he caused to be done for appellants "actual development work on said lands to the amount of $60 and over $200 in making a road from said land to Buffalo City on White river." The witness was asked by counsel for appellee, on cross-examination, if he had not, as agent for the owner of another mining claim, known as the "Small Hope Placer," caused the road work in question to be done as assessment work on that claim, and if he had not procured and filed in the United States General Land Office as final proof to obtain a patent of the Small Hope placer claim the affidavits of two persons, Honeycutt and Gardner, showing that said road work had been done as work on that claim. He answered that only a small part of this work had been applied on the Small Hope placer claim, and thereupon appellee was permitted to read in evidence certified copies of said affidavits of Honeycutt and Gardner filed by the witness in the United States General Land Office, showing the cost of the road work during the year 1900, and that it had been done on the Small Hope placer claim. This ruling of the court is assigned as error. The evidence was competent for the purpose of contradicting the witness. He testified that only a small part of the road work was applied on the Small Hope placer claim, and it was competent to contradict him by showing that he had procured and filed the affidavit as proof that this work was done entirely on the other claim. His act in procuring and presenting the affidavits was in direct contradiction of his testimony in this case to the effect that only a part of it was applied on the Small Hope placer claim and the remainder upon the claim in controversy. The testimony of the other witnesses was conflicting as to which claim should have received credit for the road work. Omitting this credit from the claim in controversy, the amount of assessment work done during the year 1900 fell short of the amount essential to prevent a forfeiture. There was sufficient testimony to warrant the jury in finding that the whole of the road work was done upon the Small Hope placer claim and none upon the claim in controversy. No complaint is made, and no error is assigned, as to instructions of the court, and, the jury having settled the issue

of fact against appellants upon legally sufficient evidence, there is no reason for disturbing the verdict.

Counsel for appellants urge further that the testimony shows that appellants have held adverse possession of the land for more than the statutory period of limitation, and were thereby fully invested with title. No issue of that kind was tendered by the pleading. The complaint filed by appellants set forth their claim of title under a location of the mining claim on January 1, 1899, and by the answer of the defendant the sole issue joined was as to a forfeiture for failure to perform the requisite amount of assessment work during the year 1900. A different cause of action and source of title could not be introduced into the case after the issue was joined and the case was before the jury. Judgment affirmed.

BATTLE, J., absent.

TILLAR v. CLAYTON et al. (Supreme Court of Arkansas. July 29, 1905.) 1. VENDOR AND PURCHASER-VERBAL CONTRACT OF PURCHASE-POSSESSION BY PURCHASER.

Neither a purchaser taking possession of land under a verbal contract of purchase nor his heirs can dispute the title while the purchase money remains unpaid, when sued to foreclose the vendor's lien.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 381, 382.] 2. SAME FORECLOSURE OF VENDOR'S LIENBURDEN OF PROOF.

A purchaser taking possession of land under a verbal contract of purchase has the burden of proving payment of the price in an action to foreclose the vendor's lien.

[Ed. Note.--For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, § 792.] 3. ADVERSE POSSESSION-VENDOR AND Pur

CHASER.

Limitations do not run against a vendor in favor of a purchaser holding under a contract of purchase until there is an open disclaimer of the holding under the contract brought to the notice of the vendor.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse Possession, § 357.]

4. APPEAL-OBJECTIONS NOT RAISED BELOW. Where, in a suit to foreclose a vendor's lien, defendant failed to plead the omission of the vendor to tender a deed with his complaint, and based his defense on other grounds inconsistent therewith, defendant cannot, on appeal, raise the objection that no deed was tendered. 5. VENDOR AND PURCHASER-DEATH OF PURCHASER WITHOUT PAYING PRICE-SALE TO HIS HEIR.

A vendor verbally sold land. The purchaser took possession, but did not pay any part of the price. On the purchaser's death the vendor sold the same to an heir of the purchaser, who represented that he had purchased the interests of the other heirs. He executed a note to the vendor for the price in an amount less than the price agreed to be paid by the original purchaser, with interest to the date of the purchase by the heir. Held, that the amount of the reduction inured to the benefit of the other heirs of the original purchaser.

6. SAME FORECLOSURE OF VENDOR'S LIENTENDER Of Deed.

The vendor in a suit to foreclose the vendor's lien for the amount of the note executed by the heir, together with interest, is entitled to a decree of foreclosure on his tendering in court a deed conveying the land to the widow and heirs of the purchaser according to their respective rights.

Appeal from Desha Chancery Court; Marcus L. Hawkins, Chancellor.

Suit by J. T. W. Tillar against L. A. Clayton and others. From a decree dismissing the bill, plaintiff appeals. Reversed.

Appellant, J. T. W. Tillar, brought this suit claiming a lien, as vendor, on 80 acres of land in Desha county, and praying for foreclosure of the same. He alleged that he first sold the land by verbal contract to one C. C. Clayton, who died intestate before paying any part of the purchase price, leaving appellees, his widow and heirs, who were all defendants to the suit; that thereafter, on July 8, 1898, appellee L. A. Clayton, one of the children of C. C. Clayton, purchased the land from appellant on credit, giving five notes aggregating the sum of $945.60, which includes interest to maturity, due and payable on the 1st days of July, 1899, 1900, 1901, 1902, and 1903, respectively, and appellant executed to him a title bond or covenant to convey said land on payment of said notes; that at the time of said purchase said L. A. Clayton represented to appellant that he had obtained all the interest of said widow and heirs in and to said land. He also alleged that nothing had been paid on said notes. L. A. Clayton answered, denying that Tillar was ever the owner or in possession of the land, and averring that Tillar had been unable to make title or to put him in possession of the land, and hence that Tillar had failed to perform the conditions of the title bond. The widow and other heirs answered, denying that plaintiff ever owned the land, and denying that C. C. Clayton had ever made any agreement with plaintiff about the land, or that C. C. Clayton had ever gone into possession under any agreement with him, or that either of them had sold their interest to L. A. Clayton; and they averred that as widow and heirs of C. C. Clayton they claimed the land by seven years' adverse possession. A. C. Stanley testified that he and appellant were formerly in the mercantile business as partners under the firm name of Tillar & Stanley, and that about the year 1881 Tillar bought the land in question from one Pitser Miller; that the land was considered assets of the partnership, and that he (witness) verbally sold the same to C. C. Clayton at the price of $10 per acre, with the understanding that he (Clayton) should go ahead and clear the land, and that a deed should be made to him when he paid the purchase price; that no deed or other papers were ever executed, no payment made, and that the land remained on the taxbooks in the name of Tillar & Stanley, and the taxes

were paid by them; and that Clayton never claimed title to the property, though, pursu ant to his purchase, he had taken possession of the land, and cleared a portion of it. He further testified upon the dissolution of the partnership he quitclaimed his interest in the land to Tillar. Appellant testified to the same facts, substantially, and that Clayton never paid anything on the price, but made promises up to the time of his death to pay same. He also testified that he never heard of C. C. Clayton nor of appellees claiming the land prior to the commencement of this suit, that the friendly relations between himself and C. C. Clayton were very intimate, and that no written contract was executed covering the sale and purchase of the land. All the testimony introduced by appellees was that of appellee J. R. Clayton, a son of C. C. Clayton, who said that his father died in possession of the land, claiming to be the owner thereof by purchase from A. C. Stanley. He said he did not know whether or not his father ever paid for the land. The chancellor found in favor of the defendants, and dismissed the complaint for want of equity.

W. S. McCain, for appellant. X. O. Pindall, for appellees.

McCULLOCH, J. (after stating the facts). The conclusion of the chancellor was erroneous, and finds no support in the record. The evidence is undisputed that C. C. Clayton took possession of the land under his verbal purchase from Tillar & Stanley, and neither he nor his heirs can dispute the title while the purchase money remains unpaid. Johnson v. Douglass, 60 Ark. 39, 28 S. W. 515. The burden is upon the appellees to prove payment of the purchase price, and they introduced no proof at all tending to establish payment. On the contrary, the undisputed testimony of both Stanley and Tillar shows that nothing was ever paid on the purchase price.

The statute of limitations does not run against a vendor in favor of a vendee holding under a contract for sale and purchase; nor does it run where the original possession of the holder seeking to plead the statute was in privity with the rightful owner, until there be "an open and explicit disavowal and disclaimer of holding under that title and assertion of title brought home to the other party." Williams v. Young, 71 Ark. 164, 71 S. W. 669; Whittington v. Flint, 43 Ark. 504, 51 Am. Rep. 572; Ringo v. Woodruff, 43 Ark. 469; Coleman v. Hill, 44 Ark. 452; Duke v. State, 56 Ark. 485, 20 S. W. 600. It being shown that the original possession of Clayton was subordinate to the rights of his vendor, the law presumes that it continued in subordination thereto until some hostile act is shown, and that notice thereof was brought home to the vendor. No act of hostility is shown in this case either by C. C. Clayton or his heirs after his

death, and the plea of adverse possession is not sustained by the proof.

Counsel for appellees contend that appellant is not entitled to the relief sought for the additional reason that he failed to tender a deed with his complaint. This would have been a good defense if it had been pleaded, but appellees failed to plead the omission, and based their defense on other grounds inconsistent with that plea. It is too late now for them to object here for the first time that no deed was tendered.

Computing interest upon the purchase price agreed upon in the original sale to C. C. Clayton from the date of that sale, would make that amount to more than the notes executed by L. A. Clayton; but appellant elected to sell to L. A. Clayton for the reduced amount, and that reduction inures to the benefit of the other heirs of C. C. Clayton. Appellant asks for a foreclosure for the amount of the L. A. Clayton notes and interest, and he is entitled to decree therefor, but must execute and tender in court a deed in proper form conveying the land to appellees, as widow and heirs of C. C. Clayton, according to their respective rights as such.

The decree is therefore reversed, and the cause remanded, with directions to enter a decree of forclosure in favor of appellant in accordance with this opinion.

BATTLE, J., absent.

SHORTER UNIVERSITY v. FRANKLIN BROS.

(Supreme Court of Arkansas. July 22, 1905.) APPEARANCE-CORPORATIONS.

Where, in a suit on an account against a corporation, the summons ran to an officer thereof, but the corporation took a change of venue, and on trial the evidence was solely on the issue as to whether the corporation or another was debtor, which issue was sent to the jury on instructions given at the instance of the attorney for the corporation, the court properly found that the corporation had appeared.

On petition for rehearing. Denied.
For former opinion, see 88 S. W. 587.

HILL, C. J. On petition for rehearing the appellant has filed an abstract and presented anew the questions raised on the hearing. The case should be affirmed on the merits as well as for the reasons heretofore given. The principal contention is that the court erred in amending the judgment so as to make it against Shorter University, instead of T. H. Jackson, superintendent of Shorter University. The account on which the suit was instituted was against Shorter University, but the summons ran to T. H. Jackson, superintendent of Shorter University. The university took a change of venue from one justice court to another, and on the trial in the circuit court the evidence was solely on the issue whether the university was the debtor, or whether one Cox, super

intendent of the boarding department, was the debtor. This issue was sent to the jury on instructions given at the instance of the attorney of the university precluding a recovery against it unless the evidence showed the goods were purchased under authority of the board of trustees. The question that the university was not the real defendant was not raised until after verdict. The court properly found on the facts that the university had appeared. There is a conflict in the evidence on the authority of Cox that has gone to the jury under instructions drawn by appellant's counsel, and the verdict has settled it.

The motion is overruled.

BYRD V. STATE.

(Supreme Court of Arkansas. July 8, 1905.) 1. CRIMINAL LAW EVIDENCE- INSANITY OPINIONS OF NONEXPERTS.

In a prosecution for murder, witnesses who have detailed the acts of defendant may properly state whether they considered him insane or not.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1045.]

2. SAME-VOLUNTARY DRUNKENNESS.

Voluntary drunkenness, though producing temporary mental aberration, is no excuse for crime.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 65-67, 70.]

3. SAME-ARGUMENT TO JURY-HARMLESS ERBOB.

In a prosecution for murder, a statement by the prosecuting attorney in argument that the case was so cruel and barbarous that it was without a parallel in the history of crime was merely an expression of his opinion on the gravity of the crime as shown by the evidence, and was not cause for reversal.

Appeal from Circuit Court, Ouachita County; Charles W. Smith, Judge.

Tom Byrd was convicted of murder, and appeals. Affirmed.

C. S. Poole and J. S. McKnight, for appellant. Robert L. Rogers, Atty. Gen., for the State.

RIDDICK, J. This is an appeal from the judgment of the Ouachita circuit court convicting the defendant, Tom Byrd, of murder in the second degree for killing one Mr. Burnsides in Calhoun county, the venue having been changed to the former county before trial. The evidence shows that on the 4th day of September, 1904, at the town of Woodbury, the defendant, Tom Byrd, became intoxicated from drinking whisky. While in this condition he met Mr. Burnsides on the street. Burnsides was a man 59 years old, weighed about 115 pounds, and was very weak, even for a man of his age, while the defendant was 28 years old, weighed about 170 pounds, and was a strong man physically. Byrd was cursing at the time he met Burnsides, and one of the witnesses testified that Burnsides requested him "to have respect for the ladies if not for the men," whereupon Byrd caught Burnsides by the

collar, and said to him, "You God damned old son of a bitch, you told a lie on me, and caused me to pay out $27, and I am going to kill you." Burnsides asked him not to strikę him, but the defendant struck him, and then threw him to the ground, and sat down astride him, and commenced to beat and pound him in the face with his hands and fists, occasionally catching him by the neck or shoulders, and then raising his head from the ground and pounding it back against the ground. Some moments intervened before any one attempted to interfere and stop the furious and brutal attack of the defendant upon the helpless old man. When they did attempt to separate them, Byrd frustrated their attempt by putting his hand in his pocket as if he was about to draw a pistol and threatening to kill any one who should interfere. After he had pounded Burnsides into unconsciousness, some one went to him, told him he had killed the old man, and induced him to desist and leave. Byrd went home. When he reached home he met his wife, and told her that he had killed Burnsides. Soon after that he left his home, and was a fugitive from justice for several days, when he surrendered to the officers. His victim was also taken home, where he lingered from Sunday afternoon, the time of the assault, until early on the morning of the following Wednesday, and then died without having regained consciousness. The only excuse for the assault that caused his death, presented at the trial, was that the defendant was insane. But the testimony on this point shows, in our opinion, nothing more than that the defendant occasionally drank intoxicating liquors to excess, and that when he did so he was more than ordinarily violent and unreasonable, even for a drunken man. When in this condition he sometimes threatened to kill himself, and acted in a fitful, unreasonable way, as drunken men often do. Several of the witnesses who detailed these acts of the defendant were then asked by his counsel whether they considered him insane or not, but the presiding judge refused to permit these questions to be answered. In this ruling we think the judge erred, for such testimony has often been held to be competent by this court. Green v. State, 64 Ark. 523, 43 S. W. 973; Shaeffer v. State, 61 Ark. 241, 32 S. W. 679. But if we assume that these witnesses would have answered that the defendant was insane, this testimony would have shown nothing more than that the use of intoxicating liquors had a very bad effect on the defendant, and that they produced in him a species of temporary insanity; but this kind of insanity is ordinarily no excuse for crime. "The law," says Mr. Bishop, "deems it wrong for a man to cloud his mind or excite it to evil by the use of intoxicating drinks; and one who does this, then, moved by the liquor, while too drunk to know what he is about, performs what is ordinarily criminal, subjects himself

to punishment; for the wrongful intent to drink coalesces with the wrongful act done while drunk, and makes the offense complete." He goes on to say that there is an exception to this rule where a necessary ingredient in the offense charged is a specific intent, and the intoxication is to such an extent as to render the defendant incapable of forming such an intent. In other words, when it is necessary to show a specific intent to make out the crime, anything that rebuts the fact that there was such an intent is competent evidence to be considered. If the man was too drunk to form such an intent, that may be considered. Bishop's New Crim. Law, §§ 398-400. In this case the fact that the defendant was intoxicated at the time he assaulted Burnsides may have raised in the minds of the jury a reasonable doubt as to whether there was a specific intent to kill, and led them to reduce the crime to murder in the second degree. But no specific intent to kill is necessary to constitute the crime of murder in the second degree under our statute, and the law is that "the intention to drink may fully supply the plea of malice aforethought"; so that, if one voluntarily becomes too drunk to know what he is about, and then without provocation assaults and beats another to death, he commits murder, the same as if he was sober. 1 Bishop, New Crim. Law, § 401. Now, in this case defendant was not at the time of the killing laboring under delirium tremens, or other forms of more or less fixed insanity caused by continued intoxication. The insanity that he was laboring under, if any, was the immediate result. of the intoxicating liquor he drank on the day of the homicide. In other words, he was simply drunk from the effects of liquor which he had voluntarily taken. While in that condition he met this infirm old man, towards whom it seems that he entertained some grudge on account of a suspicion that the old man had instigated a prosecution against him, and with passions inflamed and excited by the drink he had taken he assaulted him, and beat him into unconsciousness, without any provocation whatever. It is no doubt true that if he had been sober this deed would not have been done. While his passions were inflamed by drink, his subsequent conduct shows that defendant was not so drunk that he did not know what he was doing. The fact that a few minutes afterward he told his wife what he had done, and made preparations to escape, and did elude the officers for several days, shows that he at once appreciated the gravity of the crime he had committed. But if we concede that he was insane, it was not delirium tremens, but only his ordinary condition when drunk. He voluntarily drank the whisky and became drunk. The books are full of cases holding that such insanity, which is only another word for drunkenness, is no excuse for crime. Casat v. State, 40 Ark.