
    Montgomery, Executor, v. Myers.
    Where in an action against a drawer of a bill of exchange endorsed in Manic, plaintiff sues as executor, proof of his being ox ecu, tor is unnecessary, though specially denied. Per Curiam: The bill being payable to bearer, whether the plaintiff chose to stylo himself executor, or to -sue in his own name, was immaterial. The only effect of the allegation would be to estop him from denying it, and to bind him by any defence which the drawer could set up against the succession he pretended to represent.
    Appeal from the District Court of East Feliciana, Johnson, J.
    
      Z. S. Lyons| for the appellant. Muse and Merrick, for the defendant.
   The judgr meat of the court was pronounced by

Slidell, J.

This suit is brought by Montgomery, styling himself executor of Nott, upon a bill of exchange drawn by the defendant to his own order, and ■by him endorsed in blank, upon, and accepted by Bullitt, Shipp Co., and duly •protested'at maturity for non-payment. The defendant, in his answer, denied specially the alleged capacity of Montgomery, as executor of Nott; the plaintiff did not prove such executorship ; and upon this ground he was non-suited in the court below.

'Wo think it-was not necessary to enable the plaintiff to recover, that ho should prove that allegation. If tho note had been specially endorsed .to Nott, such proof might have been necessary; but here the bill was endorsed in blank, and became thereby payable to bearer; and whether the bearer chose to style himself executor of Nott, or to sue in his own name, was immaterial. The only effect of this allegation was that, if the defendant could prove the existence of a valid defence as against Nott or his succession, the plaintiff would have been estopped by his own assertion that he represented Nott’s succession, and bound by such defence.

As to tho merits, the record presents a ease so confused and anomalous, that it is very difficult to apply to it the familiar principles which govern contracts of ■this nature. Each party claims a final judgment in his favor. The court is unanimous, that the defendant is pot entitled to judgment in his favor. Ee speaks vaguely in his answer and brief of ail equitable defence, growing out of a certain shipment of cotton to the drawees, but has utterly failed to establish any defence of that kind. He has rested his cause upon the omission of the plaintiff to answer certain interrogatories, which, being taken as confessed, show a state of facts which is partially contradicted by other evidence in tho cause.

There is a difference of opinion with the court as to the right of plaintiff to final judgment in his favor; and, under the circumstances, we have concluded to •remand the case for a .new trial, with leave to the plaintiff to answer the inte.iv •rogatories propounded.

It is therefore decreed that the judgment of the court below be reversed, and the order pro confesso be set aside, and that this cause be remanded for a newtrial and for further proceedings according to law, with leavo to the plaintiff to answer the interrogatories propounded by tho defendant; the costs of this appeal to be paid by tho defendants.  