Ordinarily, when none of the testimony, and only part of the charge is preserved, it will be impossible to say that any error has been committed prejudicial to the party complaining. Town of Leroy v. McConnell, 8 Kan. *273.

Another point presented is that the verdict is incomplete and insufficient to sustain any judgment, and that the judgment is for so much money, the value of the property, and not in the alternative for the return of the property, or the value thereof in case a return cannot be had. The bill of particulars alleged ownership and wrongful detention. The amended answer filed in the district court, besides a general denial, contained an allegation of ownership and right of possession. The verdict was, "We, the jury, find for the defendant, and we assess the value of the property replevied at $25, and we assess the defendant's damages at $1.163." No objection to the form or the completeness of the verdict was made at the time it was rendered. Under the justice's act (Gen. St. p. 790, § 64) it is the duty of the jury, finding for the defendant, to find whether he had the right of property, or right of possession only, and also the value of the property and of the possession. Counsel claims that this section controls the form of the verdict in the district court, and that a failure to follow it vitiates the verdict. When a verdict is supposed to be defective counsel ought to call the attention of the court to the defect at the time the verdict is returned, that if it be merely a defect of form the jury may correct it before they are discharged. But

we do not think that section controls. Section 124 of the same *106 act, (p. 801,) treating of appeals, pro*vides that "the plaintiff in

the court below shall be plaintiff in the district court; and the parties shall proceed in all respects in the same manner as though the action had been originally instituted in the said court." By this we understand that the provisions of the Civil Code control in all cases tried on appeal to the district court so far as they are applicable. Tarleston v. Brily, 3 Kan. *434. In the Civil Code there is no section prescribing in terms the form of the verdict. The form of the judgment is provided. for in section 185, p. 663: "Judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had." In so far as this indicates the form of the verdict necessary, it is satisfied by the verdict returned in this case.

Upon the verdict returned the judgment should have been in the alternative, "for the return of the property, or the value thereof in case a return cannot be had." Hall v. Jenness, 6 Kan. *356. The case will be remanded to the district court, with instructions thus to modify the judgment. Costs in this court will be divided between the parties. (All the justices concurring.)

R. P. GERMAN v. JOHN RITCHIE.

January Term, 1872.

1. Protest: Notary's Fees: Damages. The law does not require that a promissory note, negotiable in form, but remaining in the hands of the original payee, should be protested for non-payment, and therefore neither notarial fees for such protest nor statutory damages can be recovered.1

2. Justice's Court: Pleadings: Appeal. The statute only requires that the defendant file a bill of particulars before a justice of the peace, when thereto required by the plaintiff. And on appeal to the district court no new or amended bill of particulars or answer is necessary, unless, on motion or application of a party, the same is allowed by the court in furtherance of justice.2

*107 *3.

: Defenses. Where there is no bill of particulars filed by the defendant before a justice of the peace, and no demand therefor, and on appeal no new pleadings are made and no demand is made for any pleadings, the defendant may introduce in evidence any defense that he may have.

Error from Shawnee district court.

German brought suit before a justice of the peace to recover a balance due on a promissory note, the costs and fees of protesting said note, and the six per cent. damages given by section 14, c. 14, Gen. St. The following is a copy of the note.

"$600.

TOPEKA, October 4, 1870.

"Sixty days after date I will pay R. P. German, or order, at Topeka Bank and Savings Institution, six hundred dollars, for value received, with interest at the rate of twelve per cent. per annum until paid. "JOHN RITCHIE."

Plaintiff, in his bill of particulars, admitted sundry payments amounting to $593.50, and claimed a balance of $37.50, including interest, and the further sum of $1.80 as costs of protesting the note, and the sum of $36 damages by reason of non-payment. Ritchie filed no answer or bill of particulars, and none was demanded by plaintiff. The case was taken to the district court by appeal, and was there tried at the June term, 1871. The plaintiff offered in evidence the notary's certificate showing that on the sixth of December, 1870, (that being the third day of grace,)

1 Protest is not necessary to fix the liability of a guarantor, Woolley v. Van Volkenburg, 16 Kan. 20; when there is no indorser, though the note be protested, no damages can be recovered, Noyes v. White, post, *647; Cramer v. Eagle Manuf'g Co. 23 Kan. 400. Consult Laws 1875, c. 38, (Dassler's Comp. Laws, 2 552.)

Pleadings in justice's courts, see Kuhuke v. Wright, 22 Kan. 466; Seip v. Tilghman, 23 Kan. 291; Donnel v. Clark, 12 Kan. 160; Thomas v. Reynolds, 29 Kan. 310; Wagstaff v. Challiss, Id. 506; waiver of, Kansas Pac. Ry. Co. v. Taylor, 17 Kan. 569, and cases cited.

he had made due demand of payment of the note, and had protested the same for non-payment, etc. Defendant objected, and the evidence was excluded. Ritchie then gave evidence, over plaintiff's objection, tending to show that the contract between the parties to the note was usurious. The court found there was due the plaintiff the sum of six dollars and fifty cents, and gave judgment in his favor for that sum.

John H. Moss, for plaintiff in error.

The note was made payable to German, or order, and was by him in*108 dorsed to the bank for collection before maturity. It was thereBeing negotiable,

fore" negotiable." Section 1, c. 14, Gen. St. and remaining unpaid, it was subject to be protested for non-payment. Section 7, c. 14. The note being duly protested, Ritchie became liable for the notary's fees and for the six per cent. damages provided for in section 14 of said act. It was error therefore to refuse to receive the certificate of protest. An agent for collection is the "holder" of the note, and may dishonor it by protesting the same. Pars. Cont. 2, 242, 250, 264, and cases cited.

It is said that the words "legally protested," in section 14, c. 14, Gen. St., imply that there must be an indorser to be bound by the protesting before the "damages" allowed by the act can be recovered. It is not necessary to protest a promissory note, or an inland bill, in order to charge the indorser. 3 Kent, Comm. 129; Bayley, Bills, 167; 8 Dana, 135; Story, Bills, 333; 1 Pars. Notes, 643. Our statute does not change this rule. The "protest" is simply the officer's certificate of demand of payment, and that payment has not been made. Damages of protest allowed by said section 14 are given upon the principle which allows interest on money withheld after it is due and payable; the contract to pay is not expressed in the instrument, but the law providing for its payment is a part of the contract. The holder of a note is entitled to his money the day it is due; and the holder of any negotiable note in which default is made is entitled to compensation for waiting for his money, and he may have his note protested for the single purpose of charging the maker of the note with the damages allowed on protested paper, (Little v. Libby, 2 Greenl. 243; 3 Kent, Comm. 167, 176;) and this is what our statute contemplates.

It was error to receive Ritchie's testimony tending to show usury. Ritchie failed to file a bill of particulars as required by section 73 of the justice's act, which requires that such bill shall be filed "at or before the hour named for the appearance of the defendant." The defendant

wholly failed to file any answer (or bill of particulars) before the *109 justice, or *in the district court on appeal. Section 128 of the

Civil Code provides that "every material allegation of the petition not controverted by the answer," etc., "shall be taken as true." The defendant being in default for want of an answer, the plaintiff was entitled to judgment for the full amount claimed in his petition.

The act of 1870 (section 7, c. 88, p. 184) does not dispense with the necessity for proper pleadings. That act contemplates simply that the issues tried before the justice shall be the issues tried in the appellate court, and these issues are to be tried upon the original pleadings, unless in

9 KAN

furtherance of justice the court permits new or amended pleadings to be filed. But in no event are the original issues to be changed; and as there was no issue joined, (Ritchie being in default for want of an answer,) the plaintiff's petition should have been taken as confessed. And it was error to allow Ritchie to give evidence of an affirmative defense, of which he had given no notice by bill of particulars, answer, or otherwise.

Suppose A. brings suit before a justice against B. B. suffers judgment by default, and appeals the case to the district court. A. then must go to trial wholly in the dark as to B.'s defense; and B. on the trial in the district court sets up payment, unlawful consideration, usury, or whatever defense he may choose. Under rule 3 of the district court of Shawnee county, A. has no chance whatever to get witnesses at the trial of the cause to combat the defense of B.; and all this because A. was unfortunate enough to commence his case in the justice's court and not before the district court. Such a system of pleading is without a parallel. Even in the days when issues were made up by oral pleadings in court, a defendant must state his defense, and could not prove any defense not pleaded.

W. P. Douthitt, for defendant in error.

By the law-merchant no protest is required to be made of any *110 promissory note, but it is exclusively confined to *foreign bills of exchange. Burke v. McKay, 2 How. 66; Young v. Bryan, 6 Wheat. 146; Platt v. Drake, 1 Doug. 296. While a promissory note continues in its original form of a promise from one man to pay another, it bears no similitude to a bill of exchange; yet when it is indorsed the resemblance begins. This point of resemblance once fixed, the law relative to bills becomes applicable to promissory notes. Chit. Bills, 521. Our statute does not change this rule; and the note in this case not having been indorsed, the law relative to bills of exchange does not apply to it, and the same could not be "legally protested." Gen. St. 116, c. 14, § 14; Bank of Missouri v. Wright, 10 Mo. 719.

The law did not require the defendant to file any bill of particulars or other pleading before the justice unless demanded by the plaintiff. No such demand was made. Justice's Act, §71, (Gen. St. 791.) Section 7, c. 88, of Laws 1870, provides that on appeal the case shall be tried de novo in the district court on the original papers on which the case was tried before the justice, unless the appellate court, in furtherance of justice, allow amended.pleadings to be made, or new pleadings to be filed. No application to file amended or new pleadings was made in the district court; hence there was no error in trying the case in that court on the original papers.

KINGMAN, C. J. Three questions are presented in this case:

1. Does the law require a promissory note, negotiable in form, but remaining in the hands of the original payee, to be protested for nonpayment? Clearly not. The protest serves no purpose. It fixes no liability not previously existing, and is not required either by the lawmerchant or by statute. In this case the action is brought by the original payee, he averring that he indorsed it to the Topeka Bank for collec

tion only. Upon its maturity no protest for non-payment was necessary, either to relieve from responsibility or fix a liability. The law *111 not *requiring a protest, the notarial charges were not a legal charge against the maker of the note. 1 Pars. Notes, 646. Nor was the maker of the note liable for damages for non-payment provided for by section 14 of chapter 14, Gen. St. That section only gives the damages where there is a legal protest, and that can only be made where there is some necessity for it, or where it is required by law to determine some person's liability, or relieve from responsibility. Therefore, there was no error in refusing to admit the protest in evidence.

2. The law did not require the defendant to file any bill of particulars or other pleadings before the justice of the peace unless demanded by the plaintiff. No such demand was made. Justice's Act, Gen. St. 791, § 71. Section 73, same page, fixing the time when the bill of particulars of defendant must be filed, does not pretend to define when such a paper is required. That is pointed out in section 71. If the plaintiff anticipates any of those manifold inconveniences suggested in his argument that might arise from his being surprised by an unanticipated ground of defense being sprung upon him by the defendant, he can guard against such perils by requiring a written bill of particulars of defendant, if it is such a case as is provided for in section 71.

Upon the appeal the cause was tried on the original papers. No demand was made on defendant for any pleading. The defense was usury. It is contended that it was error to admit testimony tending to show such a defense, as there was no bill of particulars or other pleading setting it up. There was no pleading of any kind filed by the defendant, either before the justice or in the district court. We have seen that none was required before the justice, unless required by the plaintiff. The law— section 7, p. 184, Laws 1870, [Dassler's Comp. Laws, § 4400]-provides that the case shall be tried de novo in the district court, upon the original papers, on which the cause was tried before the justice, un

less the appellate court in furtherance of justice allow amended *112 *pleadings to be made, or new pleadings to be filed. When no demand was made that the defendant should state his defense in writing, we cannot see that the court erred in trying the case as the law provides.

3. It is claimed that from the evidence the judgment is too small. If the plaintiff in error desired an examination of this point, he should have asked that the court make separate findings of fact, and then this court could have determined whether the district court erred in applying the law. If we were to decide the judgment too small upon the points made, we should have to weigh testimony, determine to whom credit should be given, and ascertain where the preponderance of evidence was. It has been repeatedly decided that this court is not in as good a situation to settle such questions as the tribunal that saw the witnesses and heard their testimony. Finding no error, the judgment is affirmed. (All the justices concurring.)

'This section amended. See Dassler's Comp. Laws, ? 552.