defendant was a resident was of equal force. In an action at law on contract, the defendant can not plead as a set-off his claim for unliquidated damages, and for this reason his failure to do so would not affect his right to bring an independent action at law against the plaintiff on his claim against the latter. Where the plaintiff is a nonresident, service of process in an independent action can not be had within the jurisdiction in which he is attempting to enforce his demand against a resident of this State, and it would be inequitable to allow him to enforce his demand and deny relief to a resident defendant in the same action. Here the defendants were non-residents. In the one case, the defendant was a non-resident corporation and in the other the defendants were non-resident persons. Hence there was an entire absence of equitable jurisdiction and the circuit court erred in transferring the cases to the chancery court. First National Bank of Lake Providence v. Reinman, 93 Ark. 376.

(2) The plaintiff made objections to the transfer and properly saved his exceptions to the orders of the court in transferring the case to equity. He then moved the chancery court to transfer the case back to the circuit court, and upon its refusal to do so saved his exceptions thereto. This brings us to the question of whether or not he was prejudiced by the action of the court; for it is well settled in this State that the judgment of the lower court will only be reversed for errors prejudicial to the rights of the party appealing.

It appears from the record that the plaintiff brought this suit to recover an amount alleged to be due him under a written contract with the defendants to raise a crop of rice on their lands. According to the testimony introduced by the plaintiff he in all respects complied with his contract and was entitled to recover from each of the defendants.

According to the testimony introduced by the defendants in each case, the plaintiff had failed to comply with the provisions of his written contract with them and they were entitled to recover against him on their counter

claims. Inasmuch as there were no grounds for the assertion of any right by the defendants in a court of equity, the plaintiff had a right to have the issues of fact raised by the pleadings and the testimony submitted to a jury.

It follows that the court erred in transferring the cases to the chancery court, and for that error the decree in each case will be reversed and the cause remanded with directions to transfer the cases back to the circuit court and for further proceedings according to law.

It is so ordered.

WEBBER V. RODGERS.

Opinion delivered March 5, 1917.

APPEALL AND ERROR-REQUEST BY ONE SIDE FOR INSTRUCTED VERDICT ONLY. Where only one of the litigating parties requested the court for a peremptory instruction without asking for other instructions on the issue, the trial court will not be justified in refusing to submit the issue to the jury.

Appeal from Washington Circuit Court; J. S. Maples, Judge; reversed.

John Mayes, for appellant.

1. The attachment should have been sustained. 76 Ark. 513. The gift was in fraud of creditors. 101 Ark. 578; 56 Id. 73; 50 Id. 46; 73 Id. 174; 76 Id. 509; 74 Id. 161.

2. It is error to direct a verdict where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed. 89 Ark. 368; 34 Id. 57; 62 Id. 63; 36 Id. 451.

3. The gift to the son was void as a fraud upon creditors. 56 Ark. 73, and cases cited, supra.

R. J. Wilson, for appellee.

1. Appellee was solvent and the property was exempt from legal seizure. The gift was not void. 52 Ark. 547; 54 Id. 193; 57 Id. 331; 21 Id. 387; 23 Id. 435; Ware (U. S.) 474; Wood on Master & Servant, 15-19, note 1, p. 19; 28 Ark. 82.

2. If a debtor's obligations are small in comparison with the property retained, sufficient to pay his debts, he may make a valid gift. 101 Ark. 573; 8 Id. 470; 23 Id. 494; 29 Id. 407; 56 Id. 73. The question of fraud depends on the circumstances of the case. 23 Ark. 494; Freeman on Ex., § 140; 26 Ark. 20.

3. A father may permit his son to use his own earnings. 23 Ark. 435. See also 10 Ark. 211; 66 Id. 409; 80 Id. 525; 91 Id. 122; 31 Id. 429.

4. There was no error in directing a verdict. Appellant moved the court for a verdict, and if there was any error it was invited. It was the duty of the court to pass upon the attachment.

SMITH, J. This suit was commenced in the court of a justice of the peace upon a promissory note, upon which, after allowing certain credits, there was a balance alleged to be due, with the interest thereon, of $77.67. Ancillary to this suit, there was an attachment against appellee, who was the defendant below, upon the ground that he was a nonresident of the State. It is admitted that appellee was then and is now a nonresident of the State, But the attachment was resisted upon the ground that appellee was not the owner of the horse, bridle and saddle which constituted the attached property. An interplea was filed by appellee's son, who claimed to be the owner of the property. The cause was tried in the court below before a jury, and, when the evidence was all in, appellant, who was the plaintiff below, asked the court to direct the jury to return a verdict in his favor for the amount sued for, and to sustain the attachment.

The defendant requested the court to give two instructions, the first of which related to the debt, and the second to the attachment, but both were refused. Thereupon the court charged the jury as follows: “Gentlemen of the Jury: After listening to this case as carefully as the court could, and taking into consideration all the evidence in this case, and all the facts surrounding the case, I feel it is the duty of this court to direct a verdict in this case. The court does not do it to invade the province of the jury, but I think it absolutely just and fair, under the facts in this case, for the court to direct a verdict in favor of the plaintiff, and against the defendant, upon this note sued on, for the balance, whatever it is. I think it is equally true and just for the court to direct the jury to dissolve this attachment. I do not believe the attachment could be sustained. I think the father gave this mare to his boy, just like he said, to encourage the boy and get him to be a better boy at home. He did that when he went home, I think. He did not know at that time there would be any trouble about this note. I say I think the attachment should be dissolved, and I direct you to dissolve the attachment, and direct you to find a verdict against the endorsers here for the balance you find due upon the note."

This record does not present the question of the trial of an attachment alone, but of the right of the interpleader to the attached property. It was held in the case of VonBerg v. Goodman, 85 Ark. 605, that the court, and not the jury, should pass upon an attachment, although it was there said that the court might submit the question to the jury and that it was not error so to do. But this practice does not obtain in the trial of an interplea. That is triable before the jury, and is usually tried as an issue independent of the attachment, in the trial of which the interpleader is given the right to open and close the argument, as having the burden of proof. Excelsior Mfg. Co. v. Owens, 58 Ark. 556.

The interpleader was a boy sixteen or seventeen years old, and testified that, with his own earnings, he had purchased the attached bridle and saddle, and that his father had given him the horse to induce him to remain at home and assist him in making and gathering his crop. The defendant corroborated this statement. It was contended, however, by appellant that the attached property belonged to the defendant, who was not only a nonresident, but that he was also insolvent, and that any gift of property by him to his son was presumptively

fraudulent. Defendant admitted that he was a nonresident, and the proof is sufficient to sustain a finding that he was also insolvent.

It is not denied that the record presents such a state of facts as that a jury might have found for the plaintiff upon the interplea; but it is said that, inasmuch as he requested the court to direct a verdict in his favor, and did not request the court to give any other instruction, he thereby consented to the submission of the trial of this question of fact to the court, and that the finding of the court will be treated as would have been the verdict of the jury, and that, inasmuch as there was evidence which would have sustained a verdict in favor of the interpleader, we must now affirm the court's direction to that effect. It is said that this is the effect of the decision of this court in the case of St. Louis Sw. Ry. Co. v. Mulkey, 100 Ark. 71, as applied to the facts of this case. In that case it was said: "It is also true that the parties had the right to waive a jury and submit the matter to the court for trial in the first instance, and, each having requested the court to direct a verdict in his favor, and not having requested any other instruction, they in effect agreed that the question at issue should be decided by the court, and waived the right to the decision of a jury, and the court's decision and direction has the same effect as would have been given to the verdict of the jury upon the question at issue, without such direction."

A number of cases are cited in that opinion to support that declaration of the law. Among the cases so cited is the case of Love v. Scatcherd, 77 C. C. A. 1, to which case there is appended a note collecting the cases upon this subject. This note cites a number of cases which support this declaration of the law. Chief among these are cases in the Federal courts and in the State of New York. It appears from this note, however, that the courts are not unanimous in so holding, and that courts of the highest authority hold that, though both parties move for a directed verdict, neither, as against the motion of the other, waives the right of submission to a jury. However,