— The Circuit Court did not err in suppressing parts of the depositions of the witnesses Griffin and" Pierson. The answers suppressed were not given on knowledge, but were simply statements by the witnesses of what the books contain. They are not legal evidence. — Crawford v. Br. Bank Mobile, 8 Ala. 79; Weeden, Adm’r Acklen v. Hickman, at last term.

*138The defendant had, before the trial, served notice on the plaintiff to produce on the trial “the letters received in answer to several letters written by A. C. Pickens, Esq., for and in behalf of Mr. John Egger to the North America Life Insurance Company of New York, in relation to a note of $100, dated at New York, July 22d, 1878, and payable sixty days after its date to the order of the North America Life Insurance Company. Said letters are not less in number than two, nor more than four, and were written between the dates, January 25th, 1876, and April 1st, 1876.” It will be observed that this notice called for the production, not of-letters written to the North America Life Insurance Company. The demand was for letters written in reply to such letters. The notice did not call for the production of letters to the North America Life Insurance Company; and if it did, there is neither presumption nor proof that such letters ever went into the hands of Egger, the plaintiff. Pickens was on the stand as a witness, and was asked by defendant “about the contents of certain letters written in the spring of 1876 to the North America Life Insurance Company, in relation to said note of $100 of John Egger.” The bill of exceptions then states in parentheses, as follows : “(Which letters were exhibited to, and read by said John Egger before they were mailed, and the answers to which were handed to said John Egger.)” This was an offer to prove the contents, not of the reply letters the notice called for, but of the letters written to the North America Life Insurance Company. This was only secondary evidence of the contents of letters, with no predicate for its introduction, not covered by the notice to produce, and not shown to be material. The letters not being traced to, nor presumed to be in Egger’s possession, their production was the highest and best evidence of their contents ; and proof of their loss or destruction was a necessary preliminary to all evidence of their contents. In any aspect, this evidence was properly excluded.

The amount of money received on the policy by the defendant company from the New York company, was no proper criterion which defendant could invoke, as defining the measure of its liability to Egger. It was res inter alios ; and it is not shown Egger had any thing to do with the settlement made. Defendant might accept less than was due, and could not, on that account, hold Egger to account for the deficiency.

The rulings of the court raise no question on the plea of set-off — Code of 1876, § 2996.

In the complaint in this cause there are common counts, but there is also a special count on what is called the binding *139receipt. That receipt is also a contract to repay the money on a certain contingency, -which the complaint avers has happened. This receipt and contract is in the name of plaintiff, and purports to be a contract made with him alone. To let in the defense that John Egger, the plaintiff, is not the party really interested in the contract, and therefore not entitled to sue, the defendant must have put in a sworn plea, denying such intent or ownership, under Buie 29, of practice in the Circuit Court. The Circuit Court committed no reversible error in its rulings on John Egger’s right to maintain this suit. Whether the money was the statutory separate estate of Mrs. Egger, or not, was wholly immaterial under the pleadings in this cause, and therefore appellant can not complain of the rulings on that question. They did him no injury. The last two charges asked were rightly refused. The Mobile Life Insurance Company bound itself to issue to Mr. Egger a policy for two thousand dollars, or, failing, to refund the money. Befusing to do the former, it bound itself to do the latter.

Affirmed.