"The opinion of the court was delivered by
Kingman, C. J.:
1 protest when •Notaíy’safeés .ana damages. Three questions are presented in this -case: 1st, 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 seryes n0 purpose,. It fixes no liability not previomsly existing, and is not required either by ^ law-merchant .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 collection only. Upon its maturity no protest for nonpayment -was necessary, either tto relieve from .responsibility or fix a .liability. The law not *111requiring a protest the notarial charges were not a legal •charge against the maker of the note. 1 Parsons on Notes, >646. Nor Avas the maker of the note liable for damages for nonpayment provided, for by § 14 of ch. 14, Gen. Stat. That section only gives- tlie damages Avhere there is a legal protest, and that" can only be made Avhere there is some necessity for it, or Avhere it is required by law to determine some person’s liability, or relieve from responsibility. Therefore there Avas no error in refusing to admit the protest in evidence.
2. Defendant's SfwSeni™' qun-ed. II. The laAV 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 vras made. Justice’s act, Gen. Stat., 791, § 71. Section 73, same page, fixing the time Avlien the bill of particulars of defendant must be filed, docs not pretend to define when 7 J such a paper is required. That is pointed out in 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 Avritten bill of particulars of defendant, if it is such a case as is provided for in §71.
3. When answer áffl\-nm«vedefsiisc may "bs proven. Upon the appeal the cause AAras tried on the original papers. No demand Avas made on defendant for any pleading. The defense Avas usury. It is contended that it Avas error to admit testimony tending to shoAv such a defense, as there AA'as no bill of particulars or other pleading setting it up. There Avas no pleading of any kind filed by the defendant either before the justice or in tlie district court. We have seen that none AAras required before the justice, unless required by the plaintiff. The laAV (§ 7, p. 184, laAvs of 1870,) provides that the case shall be tried de novo in the district court, upon the original papers, on Avhich the cause Avas tried before the justice; unless the appellate ,court in furtherance of justice alloAV amended *112pleadings 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.
III. It is claimed that from the evidence the judgment is too small. If the plaintiff in error desired aii examination of this point he should have asked that the court make separate1 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. Ithas 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.