
    Case 13 — PETITION ORDINARY
    Sept. 21.
    Huffaker, &c. v. National Bank of Monticello.
    APPEAL FROM JEFFERSON COMMON PLEAS COURT.
    1. A PROMISE OR AGREEMENT MUST BE AVERRED to make the petitioV^ good in an action on a promissory note or bill of exchange.
    2. The exhibition of the note sued on will not obviate the necessity of setting out the undertaking, promise, or agreement to pay the sum of money sought to be recovered.
    3. A petition founded on a promissory note must so set out the promise, its terms,'and its breach as to enable the court to render a judgment, upon the failure of the payors to make defense, without being compelled to resort to the note on file to ascertain these facts.
    4. The organization of a national bank under the national currency act of congress may be put in issue by a party who has not estopped himself.
    But a party who has accepted as payee a promissory note payable at a banking institution which the parties to the note style a national bank, and has sold and transferred the note to such banking institution, can not be allowed to raise that issue by merely averring want of knowledge or information sufficient to form a belief as to whether the institution is a body corporate, etc.
    5. “ Want of knowledge or information sufficient to form a belief as to whether the note sued on was at its maturity duly presented at the counter of said National Bank of Monticello and payment demanded and refused,” is not a sufficient denial where the protest itself was on file with the petition.
    
      The protest on file imparted information to the defendants, and if they refused, with that information, to form a belief, their pertinacity in that regard can not be allowed to operate to the prejudice of the plaintiff.
    6. A denial that the note was duly protested is not sufficient.
    7. The official signature of the notary is all that is required to the protest to make it valid. The notarial seal is not requisite.
    
      Gibson & Gibson,........For Appellants,
    CITED
    Civil Code, section 125.
    Revised Statutes, 1 Stanton, p. 185.
    General Statutes, p. 677, p. 252, sec. 21.
    7Bush, 474, Young, McDowell & Co. v. Bennett.
    2 M. & B. Statute Laws, 1228.
    3 Mon. 238, Bank of Kentucky v. Pursley.
    1Bruse (111. Rep.) 84.
    4 Ad. & EL 786, Wise v. Charlton.
    10 Bush, 216, Kellar v. Williams.
    106 Mass. 559-60.
    J. S. Vanwinkle, . . . Alexander & Dickinson, For Appellees,
    cited
    Civil Code, secs. 144, 166, 156, 145, 161.
    1 Bush, Benton, &c. v. White’s adm’r.
    8 Bush, 583, Wing, &c. v. Dugan.
    2 Metcalfe, 88.
    3 Met. 28, Dodds v. Combs.
    3 Mon. 238, Bank of Kentucky v. Pursley.
    1 Ohitty’s PL, pp. 301, 362.
    2 Metcalfe, 279.
    3 Mass. 100, Avery v. Inhabitants of Tyringham. 1 Jacobs’s Law Die., “Bill of Exchange.”
    4 J. J. Mar. 157, Fleming v. Kenny.
    1 Bush, 200.
    1 Mon. 237, Hackwith v. Damron.
    4 Littell’s Laws of Kentucky, 383. 1 J. J. Marshall, 381.
    5 Littell, 196, Hudson v. Wilkins.
    3 Statute Laws (Loughborough), p. 491.
    5Littell, 45.
    1 Duvall, 59, Gregory v. McFarland.
    1 Duvall, 326, Harmon v. Hicks, &c.
    9 Ben Monroe, 71.
    2 Met. 275, Totten v. Cooke.
    1 Bush, 9, Burton v. White’s adm’r.
    7 Bush, 639.
    4 Met. 284, Skillman v. Muir’s adm’r.
    4 Ben Monroe, 203.
    
      6 Bush, 602, Bradley v. Mason.
    16 Ben Monroe, 5.
    14 Ben Monroe, 213.
    In this action the petition is as follows:
    Jefferson Court of Common Pleas.
    The National Bank of Monticello,.......Plaintiff,
    
    J- Petition.
    R H. Edelen, Jo. A. Huffaker, and J. F. Shy, . . Defendants.
    
    The plaintiff, the National Bank of Monticello, a body corporate, organized and doing business at Monticello, Ky., as a national bank, under and pursuant to an act of congress known as the national currency act and amendments thereto, states that the defendants, R H. Edelen, Jo. A. Huffaker, and J. F. Shy, doing business as dealers in hats, caps, etc., in Louisville, Ky., under the name and firm style of Edelen, Huffaker & Shy, are indebted to plaintiff in the sum of one thousand eight hundred dollars upon the note of said Edelen, Huffaker & Shy, No. 337, date May 2, 1874, payable ninety days thereafter to Walton & Bros., and discounted and transferred to plaintiff by indorsement of said Walton & Bros, on the back thereof, of all which defendants hath due notice, yet said debt remains unpaid.
    That said defendants are indebted to plaintiff in the further sum of one thousand eight hundred dollars upon the note of Walton & Bros., No. 339, executed May 2, 1874, payable ninety days after said date to the order of the defendants, and indorsed by the defendants, Edelen, Huffaker & Shy. Said notes were at their maturity, to wit, on the 3d day of August, 1874, presented at the counter of the National Bank of Monticello, payment demanded, and, being refused, were duly protested, and notice of said protest given in due time to defendants.
    Said notes, and a copy of the protest of each, are herewith filed as part hereof, and no part of either of said notes has been paid, nor any part thereof been paid; wherefore plaintiff prays judgment for each of its debts, $3.61 costs of protest, and for all other proper relief.
    T. T. Alexander and John W. Tuttle, Atty’s.
    
    In the amendment to the second paragraph of the foregoing petition it is .alleged “ that heretofore, to wit, on the 2d day of May, 1874, at the state and circuit aforesaid, Walton & Brothers executed their promissory note to the order of the defendants, Edelen, Huffaker & Shy, ninety days after date, for the sum of eighteen hundred dollars, negotiable and payable at the National Bank, of Monticello, Ky. It was agreed by the parties to said note, including the defendants, that said bank (plaintiff), in discounting this note, might reserve interest at the rate of ten per cent per annum, and in default of payment at maturity the note was to bear ten per centum per annum. The plaintiffs allege that Walton & Brothers were merely accommodation drawers of said note, and the defendants, Edelen, Huffaker & Shy, were the real parties to said note as obligors; that it was contemplated at the time of the making of said note, and so agreed by defendants, Edelen, Huffaker & Shy, that plaintiffs were to discount said note, and that the same was then and there agreed to be and was discounted by plaintiffs at their bank in Monticello, Ky., whereby plaintiffs became and are the owners thereof, and the said note was then and there placed upon the footing of a foreign bill of exchange, and the like remedies and rights then and there accrued to plaintiffs as on foreign bills of exchange. Plaintiffs aver that at the maturity of said bill or note it was presented at the place at which it was negotiable and payable, and payment thereof demanded, which was refused, and the same was then and there protested for non-payment, and due notice given of such demand and non-payment and protest to the defendants. Said note or bill is here referred to and filed and made part hereof, together with the notice of protest, which is also made part hereof.
    “The plaintiffs aver that they paid the protest fees on said note, amounting to $1.81, which, together with the amount of said note, principal, interest, and costs, is now due and owing from the said defendants ; wherefore plantiffs pray judgment for their said note, interest at ten per cent per annum thereon, protest fees, and all proper relief.
    “Alexander & Dickinson, for Plaintiffs.”
    
    Edelen was not served with process. Judgment was rendered against Huffaker & Shy for the debt set forth in the first paragraph of the petition. That judgment is reversed because of the defect in the petition as set forth in the opinion of the court.
   CHIEF JUSTICE LINDSAY

delivered the opinion oe the court.

In declaring in assumpsit upon a promissory note, it was necessary at the common law to aver that the defendant promised to pay the sum of money sought to be recovered. (1 Chitty’s Pleading, 301, 302.)

If the declaration was in debt the averment should be either that the defendant agreed or that he promised to pay, etc. (Ibid. p. 363, and vol. 2, p. 388.)

Under our Code of Practice a promise or agreement must be averred to make the petition good, and the exhibition of the note sued on will not obviate the necessity of setting out the undertaking, promise, or agreement. In this case neither the petition or the amendment sets out even in the most general terms a promise, agreement, or undertaking by the makers of the note exhibited to pay to the payees the sum of money named therein. A petition founded on a promissory note must so set out the promise, its terms, and its breach as to enable the court to render a judgment, upon the failure of the payors to make defense, without being compelled to resort to the note on file to ascertain these facts.

The pleader declares that the payors made and executed to the payees a paper which he denominates a promissory note. Whether or not that paper contains a promise, agreement, or undertaking to pay an ascertained sum of money, or indeed any sum of money, does not appear from any fact stated in the pleadings of the appellee. The fact that the paper is a promissory note can not be ascertained by the court unless it either accepts as correct the legal conclusions of the pleader or resorts to the paper on file to supply the averment omitted from the petition. The demurrer to the second paragraph of the petition as amended should have been sustained.

The demurrer to the first paragraph of the appellants’ answer was properly sustained. We do not doubt the right of a party who has not estopped himself from so doing to put in issue the organization of a corporation professing to have organized and to be doing business under the provisions of the act of congress known as the national currency act. But when, as in this case, the party attempting to raise such an issue has accepted as payee a promissory note made payable at a banking institution which the parties to the note style a national bank, and has sold and transferred said note to said banking institution, he can not be allowed to raise the issue by merely averring want of knowledge or information sufficient to form a belief as to whether the institution is a body corporate organized and doing business under the act of congress. Whilst he is not estopped to make the defense, he has placed himself in an attitude which makes it his duty to ascertain from an examination of the public records of the treasury department of the general government whether the association with which he has been voluntarily dealing has authority to do business as a national bank.

We are of opinion that the second paragraph of the answer is also insufficient. The petition shows that the note sued on had been protested, and that appellants had been duly notified of such protest. The protest itself was on file with the petition. They do not deny that they received the notices of protest, and they were bound to take notice of the exhibits filed with the petition. They could not therefore be heard to say that they had not knowledge or information sufficient to form a belief “as to whether the note sued on in said paragraph was at its maturity duly presented at the counter of said National Bank of Monticello, and payment demanded and refused.” The protest on file imparted information to them; and if they refused with that information to form a belief, their pertinacity in that regard can not be allowed to operate to the prejudice of their creditor.

Nor are the concluding denials made in said paragraph sufficient. It was not enough to deny that the note was duly protested. This was in effect an admission that it was protested, or at least that it was attempted to be protested, and an averment, that some legal defect in the action of the notary rendered the protest ineffectual. This denial is no better than a denial of “ legal notice,” which was held to be insufficient in the case of Young, McDowell & Co. v. Bennett (7 Bush, 474).

But even if the plea was treated as good, the appellee’s cause of action was fully made out. The protest proves all the facts the bank was required to establish. The notary being an officer of this state, his official signature is all that is required to the protest. This court in 1826, in the case of The Bank of Kentucky v. Pursley (3 T. B. Monroe), held that the notarial seal was not requisite to make the protest valid. There is nothing in the subsequent legislation on the subject indicative of an intention to change the rule announced in said case.

But for the defect in the petition the judgment must be reversed and the cause remanded for further proceedings consistent with this opinion.  