1. In rejecting the proof of Wilson, the justice, the county court but affirmed the incontestable rule of evidence that the party, who is to prove a fact, must do it by the highest evidence of which the nature of the thing is capable, and which it is in his power to produce. True, justices’ courts are not courts of record, yet, a party is not permitted to prove by secondary evidence what appears in writing in their offices, without first laying the predicate by showing the loss, or destruction of the better evidence. In the case of Kennedy v. Dear, 9 Por. 90, the court rule, the justice who was offered as a witness, would not be permitted to speak of the papers connected with the suit, unless they were produced.
2. In the admission of the note sued on, after the plaintiff in error had proved the assignment to Saunders, and that it •existed at the time of the trial before the justice, the county court mistook the law. In Hunt, use, &c. v. Stewart, 7 Ala. R. 525, this court decide, that where a suit is brought in the *349name of a payee of a promissory note for the use of a third person, to whom it appears to have been regularly indorsed, the form of the action is an acknowledgement that the indorsee is the proprietor of the paper, and the suit cannot be supported by the payee.
The case at bar, was in this precise category when tried before the justice : Does the fact of the erasure of the indorsement, after the trial of the chaise before the justice, and before trial in the county court, alter the case ? We are clear, that it does not. The assignee of the note at the time of the commencement of the suit, had the legal interest in it, as well as the equitable. He alone had the right to sue upon it. The striking out of the assignment, pending the suit, if it had the effect of re-vesting the legal title in the nominal plaintiff, would be but the acquisition of a right to sue after action brought. It is needless to add, that such title cannot sustain the action; therefore, the evidence offered to prove it, should have been excluded. Jones and Parsons’s heirs v. Mardis’s heirs, 5 Por. 327.
3. It appears that the note was given for a supposed demand, due from the son-in-law of the maker to Ogburn the payee, and that such demand did not in fact exist. The facts disclosed in the bill of exceptions do not show a failure of the consideration, but the total absence of it. The pleas of the defendant, being adapted to the defence, the court should have given to the jury the charge asked for — that if they believed no debt was due from the son-in-law (Stan-field) to Ogburn, at the time of the making of the contract, they should find for the defendant.
For the errors we have noticed, the judgment of the county court is reversed, and the cause remanded.