
    No. 1034.
    Bank of Kentucky v. Nathan Goodale.
    An endorser of a promissory note is not bound to go to the mortgage office to examine into the consideración of the note, although marked ne carUtur 14 A 177.
    It is not necessary to allege that the note was protested and notice given, in order to admit the protest in evidence. The act of protest and certificate of notice are proper evidence under the allegation to prove demand
    Where the evidence shows that there is no foundation for the appeal, damages will be awarded asfor frivolous appeal.
    PPEAL from the Eourth District Court of New Orleans, Théard, J.
    
      Given Campbell, for plaintiff and appellee.
    
      W. II. Hunt and Roselius <& Philips, for defendant and appellant.
   Labauve, J.

This suit is on a promissory note for $3,000, made by one Henry Miller to the order of defendant, who endorsed it in blank.

The defendant filed an answer pleading a general denial, and a failure of consideration, and alleging that the note was not negotiable, because of the notary’s paraph ne varietur across its face, identifying it with the act of lease annexed to the answer, and that this was sufficient to place the plaintiff on his guard, and on inquiries, etc.

The Court gave judgment for plaintiff, and the defendant appealed.

It is well settled that an endorsee or pledgee of a note, is not bound to go to the notary’s office to examine into the consideration of the note, although marked ne varietur. 12 Martin O. S. 235, Cawfield vs. Gibson. 1 Martin N. S. 143. See also 16 L. 207. 5 A. 364. 14 A. 177.

On the trial of the case below, plaintiff offered in evidence the protest and certificate of notice of protest; the defendant objected on the ground that no protest or notice of protest were alleged in the petition. The objections were overruled, for the reason that the allegation was immaterial.

We are of opinion that the Court did not err.

The petition alleges, that when said note became due, and payable according to its tenor and effect, payment was duly demanded of the same at the Eirst National Bank of this city, but the same was mot paid, and payment was refused, of all which facts the defendant had due and legal notice.

The protest and certificate of notice of protest, were proper evidence under the allegations to show demand and refusal of payment, and that the defendant had due notice.

The plaintiff and appellee has prayed for damages as for a frivolous appeal, and we are of opinion they should be allowed.

It is therefore ordered and decreed that the judgment be affirmed, with one hundred and twenty-five dollars as damages, the appellant to pay-costs.  