the petition had been filed with the county court and had been taken up for consideration it was not within the province of the petitioners to withdraw their names from the petition without leave of the court, and that such leave could not be granted except for good reasons, because the petitioners had inaugurated a proceeding for a salutary police regulation for the preservation of morals and protection of the peace of the citizens. Here the petitioners were seeking to do precisely the opposite of what the petitioners were asking in those cases. Here the petitioners were asking that licenses be granted to sell intoxicating liquors and the remonstrants were objecting to that, and when the petition was withdrawn it was equivalent, as before stated, to giving the remonstrants what they were asking for. In the language of the learned circuit judge: "The withdrawal of the petition defeated all application for saloon licenses, which was precisely what the remonstrants desired." The petition became functus officio, so far, at least, as that case was concerned. As to whether or not a petition, after having been once filed and thereafter by the permission of the court withdrawn, could have other names added thereto and then be refiled as an original application for the granting of licenses under the provisions of the "Going law," and as to whether or not such petition has completely performed all of its functions as a petition for the granting of licenses when it has been once filed and taken up for consideration under the provisions of the "Going law," are questions not now before us. These are questions upon which we expressly reserve decision. The judgment of the circuit court denying the writ of mandamus is in all things correct, and it is affirmed. 1. 2. 3. 4. 5. BANK OF MIDLAND V. HARRIS. Opinion delivered June 29, 1914. ABATEMENT-MONEY DEPOSITED AND DUE COUNTY-EFFECT OF PAYMENT TO COUNTY BY OFFICER.-Where liability has accrued to a county by reason of a deposit of county funds in a bank, and the failure or refusal of the bank to pay over on demand, and suit is brought by the proper officer to recover on behalf of the county, such action is not abated by the payment of the funds to the county by the officer who is secondarily liable. BANKS-DEPOSIT OF PUBLIC FUNDS-LIABILITY—ABATEMENT.-Under SUBROGATION-TRIAL AT LAW-REVERSAL.-Where a cause involving 6. BANKS-DEPOSIT OF PUBLIC FUNDS-LIABILITY OF STOCKHOLDERS.-The liability of a stockholder for public funds attaches at the time of the failure or refusal of the bank to pay over on demand. 7. BANKS-DEPOSIT OF PUBLIC FUNDS LIABILITY OF STOCKHOLDER— TRANSFER OF STOCK.-Although the legal liability of a stockholder of a bank in which are deposited public funds under Kirby's Digest, § 1990, attaches only to stockholders at the time the liability arises, yet, if, after the deposit is made in the bank, and the inchoate statutory obligation is thus incurred, if a stockholder transfers his stock, not in good faith, but for the purpose of escaping 8. 9. liability and with knowledge of insolvency on the part of the bank, he will be treated as a stockholder at the time of the default, and accordingly held liable. STOCK-RECORD-LIABILITY OF BANKS-STOCKHOLDERS-TRANSFER OF STOCKHOLDER.-A transfer of stock, without the same being recorded on the books of the corporation, is efficacious to sever the relation between a stockholder and the corporation, if the sale has been made honestly and in good faith, and the vendor has done all that can be required of a careful and prudent business man in order to make such transfer. CORPORATIONS-STOCKHOLDERS-CERTIFICATE OF PRESIDENT AND SECRETARY. The list of stockholders of a corporation certified by the president and secretary, on file in the county clerk's office is competent evidence for the purpose of showing who are stockholders of the corporation, and is prima facie evidence of that fact. 10. CORPORATIONS-COMPLIANCE WITH STATUTE DE JURE AND DE FACTO EXISTENCE.—A strict compliance with the requirements of the statute is essential to create a corporation de jure, but a strict compliance is not essential to the de facto existence of a corporation. 11. CORPORATION DE FACTO-LIABILITY OF STOCKHOLDERS.-Where there is a de facto corporation, the stockholders thereof are estopped to dispute its legal corporate existence for the purpose of escaping liability. 12. CORPORATIONS-DE FACTO EXISTENCE-LIABILITY OF STOCKHOLDERS.Where an attempt was made to organize a banking corporation according to law, and the articles of incorporation were drawn up and filed with the county clerk, but were not filed with the Secretary of State, and the corporation undertook thereafter to do business as a corporation, it will be held to be a corporation de facto, and the stockholders thereof will be held for public funds deposited therein, and will be estopped to deny the legal existence of the corporation. Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed in part, affirmed in part. Read & McDonough, for appellants, Dyke Bros. 1. The alleged articles of incorporation in the clerk's office were inadmissible. Acts 1905, p. 319; Kirby's Dig., § 845. The stockholders did not become a corporation until after the articles were filed as prescribed by law. 35 Ark. 144; Ib. 365. The proper way to prove the corporate existence is by the certificate of the Secretary of State. 35 Ark. 144; Ib. 365; 132 Fed. 41; 62 Pac. 386; 70 N. W. 302; 55 Mo. 310; 55 Barb. 45; 46 Ind. 142, etc. 2. The court erred in admitting the minutes of the meetings. Kirby's Dig., § 837; 91 Ark. 445; 71 Kan. 558; 140 Fed. 385; 79 Id. 906; 123 Id. 659; 88 Id. 207; 126 N. Y. 113; 26 N. E. 1046; 12 L. R. A. 473; 22 Am. St. 816; Thomp. on Corp., § 1924. 3. The hearsay evidence of Denman was incompetent and prejudicial. C. E. & H. P. Warner, for W. T. Quinley. 1. Plaintiff having settled with the county in full, and having ceased to be county treasurer, can not recover. Kirby's Dig., § § 1990-3; Cook on Corp. (7 ed.), §§ 214-218; 192 U. S. 386; 63 Mass. 192; 185 Fed. 192; 97 Id. 297; 94 N. Y. 515; 139 S. W. 801. The doctrine of subrogation can not be invoked. 25 Miss. 73; 29 W. Va. 673; 76 Fed, 673. But if it could, the right is purely equitable. Sheldon on Subrogation, § 4; 6 Pom. Eq. Jur., 922; 33 Ala. 706; 4 Cal. 256; 54 Miss. 683; 60 S. E. 509; 33 Atl. 705. 2. Quinley was not a stockholder at the time the deposit was made, nor when the bank made default. 97 Ark. 374; Kirby's Dig., § 841; 132 N. Y. 250; 30 N. E. 644; 28 Atl. 719; 75 Pac. 798; 10 Cyc. 738. 3. It was error to give instruction 6. An assignment of stock in blank is good. 4 Thomp. on Corp. (2 ed.), § 4317. 4. The practice of giving conflicting instructions has been repeatedly condemned. 104 Ark. 67; 93 Id. 140. Winchester & Martin, for McEachin and Weir. 1. The best evidence is always required, and secondary evidence is never admissible unless it is the best to be had. 2. The county had been paid, and Harris was no longer treasurer, and there was no liability. 3. These appellants were not stockholders when the deposit was made. Kirby's Dig., § 1990. See cases cited, supra, in appellants' briefs. G. C. Hardin, for appellee, Johnson. 97 Ark. 387, settles appellee's nonliability. Kirby's Dig., 849. He was not a stockholder. A. A. McDonald, for appellee, Harris. 1. Warren v. Nix, 97 Ark. 374, settles the question as to the right of plaintiff to recover. 51 Ark. 260; 75 Id. 288. 2. The incorporation was duly proven. 58 Ark. 98; 71 Id. 379; 25 Miss. 73; Kirby's Dig., § § 841-4; 73 Fed. 136. MCCULLOCH, C. J. The plaintiff, as treasurer of Sebastian County, instituted this action against the Bank of Midland, a domestic corporation engaged in the banking business, and its stockholders, to recover the sum of $1,367.51, alleged to have been deposited by plaintiff as treasurer in said bank and which the bank failed or refused to pay over on demand. The case was tried before a jury, and a verdict was returned against all of the defendants save one, and they appealed to this court. The plaintiff appealed from the judgment in favor of defendant, Johnson. Plaintiff was elected as treasurer of Sebastian County, and served for the term of two years, ending October 31, 1912. During the time for collection of taxes the tax collector deposited part of his collections in the Bank of Midland, and when he made his settlement with the county court and paid over the county funds to the treasurer he gave that officer a check on the Bank of Midland for the sum of $1,437.51, which the treasurer turned over for credit and deposit in that bank. This occurred on or about the 1st day of July, 1912, and the bank failed on August 7, 1912. A few days thereafter plaintiff, as treasurer, made demand for the funds, and upon failure to pay, he instituted this action before the expiration of his term. He made his settlement with the county, and paid over all the funds due the county, including the amount involved in this controversy, after the expiration of his term, but before the trial of this |