By the Court,

We hold that the bond was properly executed. Badgett, as well as McLain was entitled to have his costs secured; and although none could accrue to him after the discontinuance, still he may, from aught that appears on the record, have taken out subpoenas for his defence and have had his witness in court, and this may have been the reason the suit was discontinued as to him. The new bond being substituted in lieu of the original one, its execution necessarily related back to the time of filing the first bond, and secured Badgett in his costs as well as McLain. When one thing is substituted for another, it stands in its place and secures all antecedent rights, that have previously accrued. The court, in permitting the substitution, acted within its discretion; for unless it possess such power, there might occur in many cases an entire failure of justice. The plaintiffs were entitled to examine the witness who was security on the first bond; this the authorities in the brief prove, and it is the constant practice of the court to allow such substitution in a case where no injury is produced. The defendants have not been prejudiced by this act, for they are placed by it in no worse situation than they were in before its filing. It has secured to them their costs and that is all they have a right to under either bond. The objection to the new bond seems to be general, at least to point to nothing except that it wasgivento both defendants instead of one. Had the objection gone to any other matter, it should have been suggested and shown to the court, such for instance, as the insolvency of the security, and the like; and had the party in such case stood upon his exceptions, and asked leave to withdraw his plea to the merits, or refused to proceed any further in the trial, and the exception been well founded, it might been taken advantage of on error. But here he waived his exception by going on with the trial, and after verdict bad against him he will not be permitted to return to his objection, and insist on it to reverse the judgment..

There is no assignment on the note to the plaintiffs, but they endorse it to McLain. There is no proof in the cause showing that the plaintiffs are the legal holders or endorsees of the note except the statement in the bill of particulars, and the legal inference that arises in favor of the verdict and judgment below. It must be presumed that fact was proven on the trial, or plaintiffs should have been non-suited for want of a good cause of action. The presumption then is, that the plaintiffs are the legal holders of the note, or rather that they are legally entitled to its proceeds, and that the defendant collected the amount charged against him at their special instance and request, and for their use and benefit. It was indispensable for the plaintiffs to prove these facts, or some important one of them to sustain their cause of action on this itemof the account, and when they had done so, it was unquestionably competent for the defendant to produce the note and show the assignment, which prima facie vested the legal interest in himself, and this testimony was entitled to be weighed against the plaintiffs’ proof. It was not conclusive of the matter, but it was legal evidence proper to be heard and considered by the jury. This pri-ma facie testimony surely went to defeat the plaintiff’s right of recovery; but it did not destroy it, provided the plaintiffs could prove that the assignment was made to the defendant as their mere agent to facilitate the collection of the note, or that he agreed specially to collect the money for them and promised to pay it over. AH the evidence in regard to the true and legal interest in the note was proper testimony and it should have been heard, and the jury left free to pass on the whole proof, and to say how the matter stood, and their finding would then have been conclusive on the point. Having shown that the testimony offered by the defendant was lawful and important evidence, and that it was improperly excluded on the trial, of course the judg-snent must be reversed.