
    Wilson vs Durant.
    Opinion delivered October 30, 1897.
    
      i. Verdict — Form.—Surplusage.
    A single and simple issue of fact, not an issue of law, was mitted to the jury. The jury returned a verdict finding ‘ issues at law” in favor of the defendant. No objection made to the form of the verdict until the filing of the mo for a new trial. Held, That the trial court did not erro treating the words “at law” as surplusage, and in enterii judgment according to the verdict, viewed in that light.
    
      z. Record — Instructions Must be Set Out to be Considered.
    
    The appellate court will not entertain exceptions to instruc unless set forth in haec verba in the record.
    Appeal from the United States Court for the Cej District.
    Yancey Lewis, Judge.
    Suit upon a promissory note by Turner Wilsonl others, against W. A. Durant and others. Judgment defendant. Plaintiff appeals.
    Affirmed.
    On the 20th day of February, 1896, the appeJ (plaintiffs below) commenced an action against the appij ‘(deféndants below,) in the United States Court at Atol "rdcover'the sum of $405, with interest, on a note execui] the appellees, with one E. V. Malcom, to R. P. BowlesJ by said Bowles indorsed in blank, before maturity, appellants, as collateral security for an open account, past due, from Bowles and Colbert to the appellants. I appellees admitted the execution of the note and the imj at by Bowles, and, as a defense, alleged that the note was. Lvered to J. G. Ralls as agent and attorney for Bowles, L was never delivered to the appellants. On the trial of case, the appellants produced the dote, and introduced it ividence. The appellees then offered testimony in supt of their answer. The jury returned the following ver-“We, the jury, find the issues at law in favor of the mdants in the above-stated cause. W. 0. King, Fore-. 1. ” The plaintiffs filed a motion in arrest of judgment, also for a new trial, both of which the court overruled, plaintiffs excepting and praying an appeal, which was wed. The plaintiffs’ motion in arrest of judgment was id on but one ground, and that was the insufficiency of verdict of the jury. The motion for a new trial contain-nt three grounds, of which but one is urged here.
    
      Balls Bros., for appellants.
    1. The plaintiffs having alleged in their complaint the Isfer and indorsement of the note, and having produced. note with such indorsement on it, and offered and intro-, [id it in evidence had made a prima facia case and the. [en of proof was upon the defendants to show that the itiffs were not the owners of the note; and further to that the note had been indorsed and transfered to J. G. as agent for Bowles. Daniel on Neg. Inst. § 812; |ns vs Gilbert, 4 Otto 753; Hershy vs Latham, 46 Ark. 55.
    2. The verdict of the jury was a verdict on the law and wholly insufficient in law tobase a judgment upon. I jury must dispose of the parties in the case and the |s submitted them or the verdict is insufficient. 2 tt’s Gen. Prac. § 942. It matters not as to the number [ues submitted to the jury. If but one was submitted, rerdict, in order to be good, must have disposed of that one issue. Higdon vs Will,' 22 A. D. 84; Patterson vs U. 2 Wheat. 221.
    
      G. A. Pate and B. L. Williams, for appellees.
    1. There is nothing in the record to show that the coi instructed the jury as to the burden of proof as set out appellants brief. The fact that in the motion for a new tr this is one of the grounds set out, is not evidence that st instruction was ever given. Carroll ys Bowler, 40 Ark. 1 Cheatham vs Roberts, 23 Ark. 651; Werner vs State, 44 A 123; Cheaney vs State, 36 Ark. 74; Cogswell vs McKeo; 46 Ark. 524; Pry vs Ford, 38 Ark. 246; McKenzie vs Sta 26'Ark. 335; Imperial Life Insurance Co. vs Newcomb, U. S. Appeals 669.
    2. The pleadings in this case submitted only issue: fact and it is competent for a court to look at the pleadir in order to get the true meaning of the verdict of the ji 28 A. & E. Enc. of Law, 295; Harvey .vs Head, 68 Geor: 247. The court not only has the power, but it is its duty amend or modify a verdict so as to put it in proper legal f< or make it express the actual intent of the jury. 28 A. Enc. of Law, 370-373; Id. 286, 287. Verdicts are not h taken strictly like pleadings, but the court will collect] meaning of the jury if they give such a verdict that the a can understand them. Pickett vs Ritchie, 2 Bibb. (Ky) Boone vs Planters Bank, 3 Humphrey, (Tenn.) 84; 28 E. Enc. of Law, 288, 289; Stearns vs Barrett, 1 Mason,, S.) 153; Miller vs Shackelford, 4 Dana, (Ky.) 271; As vs Touey, 131 Mass. 26; 28 A. & E. Enc. of Law, 360-| Únited States vs Stereoscopic Slides, 1 Sprague, (U. S.) Glidden vs Street, 68 Ala. 600; 1 Chitty PL 705; Leg: Dunlevy, 10 Mo. App. 461. Appellant in order to be h should have objected to the form of the verdict when it ¡urned, and before the jury was discharged. Davis vs ople, 50 111. 199; Algier vs Maria, 14 Cal. 170; Alhambra iter Co., vs Richardson, 72 Cal. 598. If conclusions of ? are stated in the verdict, the court will disregard such íclusions and it is not error to refuse to strike them out. uisville Railroad Co. vs Frawley, 110 Ind. 18; Pittsburg ilroad Co. vs Adams, 105 Ind. 151; Indiana Railroad Co. IFinnell, 116 Ind. 414; U. S. vs Collier, 3 Blackf. (U. S.) ; Richmond vs Talmadge, 16 John. (N. Y.) 307; Conner Citizens Railroad Co., 55 A. R. 177. Words added to the diet may be rejected as surplusage. State vs Obrien, 22 Ann. 27; Armstrong vs People, 37111. 459; Wells vs Gar-I, 2 Ya. Cas. 479; People vs Ah Kim, 34 Cal. 189; Gover Turner, 28 Maryland, 600. The court may enter the ver- ¡ in such form as to give legal effect to what the jury un-takably finds. Koon vs Phenix Life Insurance Co., 104 3. 106.
   Springer, C. J.

(after stating the facts.) The ap-ants ’ motion in arrest of judgment was based upon the that the verdict of the jury, which is set forth in the going statement, found “the issues at law” in favor of defendants. No exception was taken when the verdict rendered, which was on March 14th, as to its form; and ¡court’s attention was not called to it until the motion in ■St of judgment was heard, March 18th. The trial judge |ched to the. bill of exceptions in this case an explanation e effect that the court “submitted to the jury a single simple issue of fact, not an issue of law; and it treated ¡words ‘at law, ’ in the verdict, as surplusage, involving a ake in wording, apparent on the face of the proceedings, if error, not any error that could have in any wise pre_ ed the plaintiffs.’’ The counsel for appellants in this insist that their clients are not in the attitude of persons sit silently by and permit the court to commit error, but, on the contrary, they contend that, by proper motic and in apt time, they did all in their power to prevent tl alleged hrror, and that the judgment should therefore 1 reversed. The record fails to disclose any objection to tb form of verdict until four days after it had been rendere If, at the time the verdict was rendered, counsel had call the attention of the court to the words ‘ ‘issues at law, ’ ’ t proper correction would doubtless have been promptly m a by striking out the words “at law,” and asking the ju whether the verdict as thus amended was their verdi This not having been done, the trial court, having, as t judge certifies in the bill of exceptions, submitted to the ju a single and simple issue of fact, not an issue of law, migl without prejudice to the plaintiffs, treat the words “at la as surplusage, and enter a judgment according to the verd viewed in this light. No error prejudicial to appellants ¶ committed by the trial court in pursuing this course.

Verdict Surplusage.

The motion for a new trial alleged but three grounl only one of which is insisted upon in this court, viz. tl ‘ ‘the court erred in instructing the jury that the burden proof was upon the plaintiffs on all the issues in the casj We have carefully examined the record in this case, an<J fails to show that any instructions whatever were giver the jury in the case. The first intimation as to the instr tions is found in the motion for a new trial, and in the mot there is nothing in the shape of instructions, except words just quoted above. The rule is that he who afibl any fact must prove it. “Affirmantis est probatio. ” Th| is nothing in the record which shows that the trial court regarded this rule. It is too late to raise such an object] as this, for the first time, in the motion for a new trial, cannot assume, on the mere statement of counsel, in] absence of any record to support it, that the trial court structed the jury, in effect, that the burden of proof waa ie plaintiffs to establish new matter alleged by the defend - lts in their answer; yet this is implied by appellants’ mo-in; otherwise, no error was committed. If counsel desire .is court to pass upon instructions, the record must set rth in hsec verba the instructions given and refused. If is is not done, no exceptions will be entertained. There no reversible error in the record, and the judgment is erefore affirmed.

Record must contain instruction complained oí

Clayton and Thomas, JJ., concur. Townsend, J., t being present, did not participate.  