supra. In accord with the courts of the states of California, Colorado, Texas, and North Dakota, we have reached the conclusion that a national bank in Arizona is privileged to charge and collect any rate of interest which may be agreed upon, and is as free to act in this regard as are banks organized under local laws or as individuals living in the territory. The second assignment of error, as made by plaintiffs in error, reads: "The court erred in overruling the plaintiffs' in error motion for judgment on the pleadings, for the reason that there was no reply to plaintiffs' in error verified counterclaims." The latter part of this assignment would appear to indicate that what is intended is, that the court erred in not rendering judgment for the plaintiffs in error for the amounts of the counterclaims pleaded, because they were not denied under oath by the defendant in error in its reply to the amended answers filed by plaintiffs in error. The general denial made by the defendant in error by way of reply to the counterclaims set up in the answers of the plaintiffs in error was sufficient, although not verified, to put the plaintiffs in error upon proof, except as to any matter pleaded therein which by paragraph 735 of the Revised Statutes is required to be denied under oath. An examination of the matters pleaded by way of counterclaim in the answers of plaintiffs in error discloses that none of those are matters which are required to be verified by said paragraph, except the allegation contained in the first counterclaim attempted to be set up, founded upon the assignment of the note by P. P. and W. A. Daggs to A. J. Daggs. It is alleged that the note was assigned by the bank to Daggs by an instrument in writing. As to this allegation, possibly, under subdivision 5 of said paragraph 735, under the general denial, unverified by the oath of the defendant in error, the assignment should properly be taken as admitted. To warrant a recovery, however, something more than the proof of the assignment of the note to Daggs was needed. While our statutes recognize the right of an assignee to hold the indorser of a non-negotiable chose in action as surety for the payment of the same, no recovery is authorized without it be shown that the assignee had used due diligence to collect the same. Rev. Stats., pars. 123, 124. Again, an examination of this pleading shows that it fails to state a cause of action. A counterclaim must, to be good, contain every allegation which would be needed in a complaint founded on the same cause of action. The only allegations which are made in this counterclaim are, that the bank assigned a non-negotiable promissory note, past due, to A. J. Daggs, and that at the time of the assignment the makers were insolvent, and were still insolvent, and that the same had not been paid. No allegation is made that due diligence was used, as required by the statute, or that any effort was made to collect the same. This omission in the pleadings is doubly fatal for the reason that the note appears from an indorsement upon its face to have been secured by chattel mortgage of even date therewith. With this indorsement thereon, the mere allegation of the insolvency of the makers of the note was not sufficient to charge the indorser as a surety without an allegation of the exercise of due diligence to collect the same and to enforce the security, and a failure after such effort to collect the same. The motion for judgment upon this counterclaim was not only properly denied by the court below, but, had no reply been filed by the defendant in error, the facts pleaded were not sufficient to support a judgment thereon. The judgment of the lower court is affirmed. Street, C. J., Doan, J., and Davis, J., concur. |