This was an action on a promissory note executed and delivered by Booth, the appellee, to F. H. Green, calling for the payment of eleven hundred and twelve dollars and thirty cents, dated January 1,1863, due one day after date, and by its terms to bear ten per cent, interest per annum until paid; certain payments are endorsed upon said note..

Knight, the appellant, sued in his own name. Booth, the appellee, by an amended answer filed February 18, 1870, alleges that the note sued on was transferred after the same became due, for a valuable consideration, to Mrs. Eliza Knight, then residing in Liberty county, in the State of Texas, but who afterwards removed her residence to the territory of Utah; that-whilst the said Mrs. Knight held said note, she became indebted to the appellee in the sum of one hundred and sixty-seven dollars, which was a good and valid offset to so much *13of the note sued on. He further alleges- that said Mrs. Eliza Knight'is still the bona fide owner and holder of: said note, and that the pretended transfer to the appellant is fraudulent and a mere pretense to deprive him. of liis offset of one hundred and sixty seven dollars.

The appellee filed interrogatories for the appellant to-answer, by which he evidently expected to prove the allegations of his amended answer. The appellant saw7 proper to take the legal consequences of a failure to. answer the interrogatories. On the trial the parties waived a jury, and submitted the- law and the facts to the court, by whom it was “ considered, ordered and, decreed,” that the plaintiff take nothing by his suit,, and that the defendant recover his costs, etc. The-appellant moved for a new trial, which motion was-overruled by the court. An affidavit was filed by A. B„. Trowel, the attorney of the- appellant, in support of the motion for new trial, in which it is averred that the note sued on is held by the plaintiff partly as his own property and partly as the agent of a brother, who-owned an interest in the note..

We find in the record the following

' “John Knigiit v. E. A. Booth.—Opinion- of the Judge.—It is confessed that plaintiff has no interest whatever in the note, the cause of action. Our courts-, certainly will not allow of such a party a naked possessor without interest, to maintain an action in his name..

“ Seymour White, Judge presiding.”

This so-called opinion of the district judge is not only uncalled for, but must be regarded as highly improper; it is rather a brief thrown into, the record by the judge before whom the case wTas tried, than any necessary or proper part of- the proceedings therein had. It is true in law, that the failure of the plaintiff to answer the defendant’s interrogatories- was equiva.*14lent to an affirmative answer, if the matter were left unexplained; and it is also true, that the law will not ¡allow the fraudulent holder of a promissory note to maintain an action on it. But the only evidence we have that the plaintiff below is a fraudulent holder of the note sued on, is furnished by his failure to answer the interrogatories propounded to him in the amended ¡answer. This kind of confession is not that which the party freely makes, but is that which the law imposes on failure to answer, and may be the result of mistake, or bad practice on the part of an attorney. The .affidavit of the plaintiff’s attorney, in support of his motion for a new, trial, came late, it is true, at that period of the proceedings; but especially in view of the fact that the plaintiff offered to allow the offset claimed by the defendant, of one hundred and sixty-seven dollars, we are of opinion that the court below should have granted the motion for new trial, or given the plaintiff judgment for the balance due on the note after ¡allowing all proper credits and offsets. The parties having waived a jury below, and having, as we believe, .all the material facts before us, this court will allow the appellant a judgment for whatever amount (to be calculated by the clerk of this court) remains due upon the note sued on, after deducting the credits endorsed upon the same, and an offset of one hundred and sixty - ¡seven dollars, together with interest at the rate of ten per cent, per annum, as well as his costs in this and the (District Court.

Reversed and rendered.