
    Craighead vs. The State Bank.
    WITNESS. Competency — Bail. Prosecution surety or bail may be made a competent witness for the party for whom he stands bound, by releasing him of record and substituting another in his stead.
    Constitutional Law. Release of bail. It is nota violation of the obligation of contracts to release prosecution surety or bail, and substitute another instead of the first — there being no contract on part of him for whose indemnity the surety was taken.
    Same. Bank of the State. The charter of the late Bank of Ténnessee, it seems, was constitutional, according to Briscoe vs. The Bank of the Commonwealth of Kentucky. 11 Peters, 257.
    Evidence. Admission. On presenting his account to a defendant, if he admit the correctness of the charges, but say he believed he owed the plaintiff" nothing, and had paid him all he ever owed him, yet give no reason for his belief, and show nothing in support of it, the whole must be left to the jury, who may reject the explanation, and give their verdict on the admission.
    SAME. Expressio unius, íce. Claiming a credit as to one item of an account, and remaining silent as to the rest, is a strong circumstantial proof of the correctness of the rest.
    Debt. Extinguishment. Taking a bill single in consideration of a simple contract demand extinguishes it, and no action can be maintained founded upon the consideration.
    Promissory Note. The word note, or phrase 2>romissory note, in a bill of exceptions, will be presumed, without more, to mean a security not under seal.
    The plaintiff in error having been a customer of the Bank of the State of Tennessee, his account remained open and unsettled from its commencement, about the 27th of November, 1824, till the 18th of July, 1829, the day of the last entry therein. When Nicholas Hobson became cashier of the Bank, in January, 1830, finding the account in this condition, he stated it from what appeared on the Bank books, and from the notes and checks of the plaintiff in error, which he found in the Bank. According to the custom of the Bank, in making out said account, he treated Craig-head’s prior notes as checks, and charged him with the discount upon each successive note given to the Bank for loans, considering that said account had not been paid by him at the time of giving the notes. After he had thus made out the account, he cancelled the notes by impressing upon them the mark denoting payment being the letter P cut through them. The book was then put into the hands of Craighead, who, after keeping it several days, called at the Bank and demanded a credit for one Richmond’s note, to which, upon examination ^e wag fülin¿¡ erititied, and it was allowed. The account as first stated exhibited a balance in favor of the Bank of $404. 22 cents, which, after allowing'him Richmond’s note, was reduced to $104 22 cents. In endeavoring to effect a settlement with him, Craighead never admitted to the officers that he owed the Bank any thing; on the contrary, he seemed to think he had paid up all he had ever owed, but did not explain how to their satisfaction. His account was therefore placed in the hands of the Bank Attorneys, Anderson and Clark, with the latter of whom, on his presenting the account for settlement, Craighead examined it item by item. Upon going into the examination, he said he did not believe he owed the Bank any thing, and if he could be convinced he did, he was willing to pay it. Upon completing the examination, he said the items of the account were correct, but he did believe he owed the Bank nothing, and that he had paid it all he ever owed it.
    Refusing, therefore, to pay the balance claimed, suit was instituted in Davidson county court on the 27th of June, 1831, Anderson and Clark executing the ordinary bond for its prosecution. The declaration was in indebitatus assumpsit for 250 dollars loaned and advanced, paid, laid out and expended. The defendant pleaded — non assumpsit, non assumpsit within three years, and actio non accrevit within three years; and issues were thereupon joined.
    On the trial in the county court, at January session, 1832, the plaintiff offered James P. Clark as a witness, but it being objected by Washington, attorney for the defendant, that being surety for the prosecution of the suit, he could not be examined as a witness, the court ordered his bond to be cancelled, and a new bond with other surety to be substituted, and Mr. Clark was examined, to which the defendant excepted on the ground that the court had no power to refuse the first bond and receive another without his consent. The Bank had judgment, and the defendant appealed to the circuit court, where, at January term, 1833, the judgment of the county court was affirmed. The defendant now appealed to the supreme court, and, at March term, 1835, the judgment of the circuit court was reversed, the court deciding the circuit court had erroneously permitted the items of the account, which Were within three years next before the commencement of the suit, to draw after them and take oüt of the bar df the statute of limitations those items which were nbt within three years. 7 Yerger, 399.
    The cause was remanded to the circuit court, where it was tried again before his Honor the late Judge Stewart, and a jury of Davidson, át Novémber term, 1835. Upon the production of the first witness by the Bank, the defendant' objected, that no evidence could be received upon the plea of non assumpsit, because it appeared from the act of Assembly establishing the Bank, that it had been established for the purpose df erhitting bills of credit; and that all its other powers being subsidiary to the main purpose, which was contrary td the constitution of the United States arid against law, no valid contract could be made with such a corporation. The court admitted thé evidence; and then James P. dark was bfferéd ás d witness, to whose competency the defendant objected, that hairing been surety for the prosecution of the Suit arid entered into bond as such, he fcould riot be discharged from liability thereupon, and had ndt been, becáiise the order df the county court above recited, which assumed to cancel his bond and substitute another in its stead, was a nullity. But the court overruled thé objectión, and the witness gave testimony; and by him, arid Hobsdri, and Berryhill, who had been a clerk in the Bank, the facts above stated having been proved and submitted to the jury, the defendant requested the court, among other things, to charge them — -
    That it required a inatter of account to support the declaration; that the notes mentioned in the account filed were matters of special contract, and not matters of account; thatthe suit was not founded upon the notes or either of them; and that a matter of special contract could not be converted by bne party into á riiatter of account, merely by stating it as an account.
    But the court charged the jury, that a note was a matter of special contract, and so ldng as it was in existence, it must be sued upon and the consideration of the note could not be sued upon as matter of account; but if there was an agree-xnent, that the note should be delivered up and canceled, and' in consideration of the delivery up and cancelation of the note, the maker promises to pay the amount of the note, that-promise would be matter of account, and would support the declaration in this case; that if, from the evidence, the jury presumed, as they might do, that there had been an agreement that the last note contained in said account, should be delivered up and canceled, and that it was delivered up and can-' celed, and that the defendant promised, in consideration thereof, that he would pay the amount of said note, then they could find a verdict for the amount of said note, against the" defendant, and also for such items of discount in said account as were within three years before the commencement of the suit.
    The jury found a verdict for the plaintiff for $104 22 cents, and they had judgment therefor and 12$ per cent. interest from the 20th of January, 1832, the time the judgment was rendered in the county court. The defendant moved for a new trial which the court refused to grant, and he thereupon filed his bill of exceptions, from which- the above statement is extracted, and appealed in‘error.
    Washington, for the plaintiff in error
    said — upon examination of the document, called an account, it will be found,that the only items of charge contained in it, against Craighead, which are within three years before the commencement of the suit, are all notes; the first bearing date on the 17th of July, 1828, for 84 dollars; the next bearing date on the 19th of October, 1828, for 76 dollars; the next bearing date'the 17th--of January, 1829, for 69 dollars; the next bearing date on the 18th of April, 1829, for 63 dollars; and the last bearing date on the 18th of July, 1829, for 67 dollars.
    It will be further found, from an examination of that side of the account wherein the Bank debits itself, that each of the above mentioned notes, is a renewal of the one immediately preceeding it; and that the difference in amount, results frorp the Calls made at each successive renewal, and also, that thi@ difference constituting the call, was invariably paid by Craig-head. It will also appear, that upon such renewal, instead of crediting Craighead with the exact amount of the renewed ¡note, .he was merely credited with the proceeds, minus the •discount.
    Therefore, when this suit was commenced, there was no subsisting note, or other charge, against Craighead, but the said last note of 57 dollars; and, if Craighead paid the discount upon that, there was only due 56 dollars 13 cents.
    Giving the testimony of Clark ail the favor that it can possibly have, and still it will produce no effect. The admission of Craighead, of which he speaks, merely establishes the account; for it relates to nothing else. And, the account, upon its face, exhibits the result above stated, from which, there is no escape.
    The plaintiff in therefore, error relies upon the following grounds:—
    1. This is an action of assumpsit, upon the common counts; and cannot be maintained, becanse it should have been brought upon said last mentioned note of 57 dollars.
    2. The jury found against Craighead, for the amount of the note of 84 dollars, being the one dated on the 19th off July, 1828, and interest; that being the first note executed within three years before the commencement of the suit. That note was extinguished by payment, when the next succeeding one was given; and all the other notes, were extinguished in like manner, in succession, down to the last one of 57 dollars.
    3. The note of 57 dollars, had the bank mark which indicated payment upon it, put there by the officer of the Bank, which was a cancelment by the holder. No suit, therefore, could be maintained upon it at all.
    4. The circuit Junge charged the jury, that no suit could be maintained, where there was a note, except upon the note; but that, a suit might be maintained upon the consideration of a note, which had been destroyed by the holder; provided, it had been agreed between the holder and maker, that if the latter would destroy it, the former would pay the consideration; and that they, the jury, were authorized to presume such an agreement.
    In this case, there was not a particle of proof relating to any such agreement; and therefore, the charge of the court was, in effect, that the jury might guess at a case, without evidence.
    December 16.
    Besides, to recover upon such an agreement, would require a special declaration, founded upon it. Here there is nothing but the common counts, for money lent, and money paid, laid out and expended.
    Meigs, for the Bank,
    argued that from the fact that Craig-head had kept the account several days and then returned it and claimed a specific credit, the jury might lawfully infer, not only that the rest of the account was just, but also, an acquiescence on part of plaintiff in error, in the mode of stating the account, equivalent to an agreement that the notes should Jje cancelled, and to a promise to pay the balance as mattef of account upon the original consideration.
    2. That the securities executed by the plaintiff in error for loans were denominated, throughout the record, “notes,” gnd if taken in their technical sense, they were not under seal, and therefore did not extinguish the implied undertaking to repay the money loaned, for which, of course, indebitatus assumpsit would lie. Tomlin’s Law Die. Debt, III.
   Turley, J.

delivered the opinion pf the epurt.

The first cause of error assigned in this case is, that James P. Clark, who was original surety fer the prcsecuticn of the suit, was discharged by the court, and other surety taken in his stead, and he permitted to be examined as a witness.

It is said that the court had not power to release him from his liability incurred as surety for costs, and that he was therefore interested in the event of the suit and an incompetent witness.

We do not think sq. Surety for the prosecution of spits, appeals, and bail, are taken by the officers of court under the provisions of the law, and it has always been the practice in this state, upon a proper case made out, to substitute other security in the place of the original; and, this being done under the inspection of the court, no harm can be done tp the person, for whose use the surety was given, as the court will be careful to take none but what is amply sufficient to secure the end designed.

The exercise pf this power is not a violation of the obligation pf contacts under the provision of the constitution of the United States and the State of Tennessee. For there is no .contract on the part of the person intended to be benefited by taking the surety. The law takes the surety to protect him from loss, and he has no right to ask more, at the hands of the court, than that this shall be done; he has acquired no right by a contract to hold any particular person liable, provided the court will substitute another, who can equally protect him, from loss.

This question has been thus adjudicated in England, and all the states of the union, where it seems to have been made; at least we have not been able to find an authority to the contrary. In England, when the testimony of bail is necessary, the party on application to the court, may substitute other in his place. Collett vs. Jinnis, R. T. Hardwicke, 133; Piesly vs. Von Esch. 1 Espinasse’s Cases, 604; Tidds Prac. 264; 1 Starkie, 120, 135, 6.

In North Carolina, sureties for appeals have been released, in order to become witnesses, and others substituted in their stead. 2 Hay. 337; 2 Hawks, 336. The same thing has been done in Pennsylvania, 3 Serg. & Rawles Rep. 314; and in this case, the supreme cpurt of the State of Tennessee, op a former hearing, likewise determined the same way, 7 Yer. Rep. 399.

2. It is said, that the charter of the bank of the State of Tennessee, is yoid, because the legislature of the State of Tennessee was prohibited by the constitution of the United States from granting it.

This would be a very grave question, and worthy pf all consideration, bad it not been already determined by the supreme court of the United States in favor of the power in the case of Briscoe vs. The Bank of the Commonwealth, 11 Peters, 257. We feel ourselves bound by that authority; and that it. would be perfectly useless for us to determine otherwise, if such were our opinion, in as much as the supreme court of the United States can exercise a control over our decisions upon questions of this character,

3. It is said, that'the proof does not justify the verdict of "the jury in the court below.

We have always said, that we will not scrutinize testimony in this court. The evidence of Clark shows, that when he presented the account to the plaintiff in error, he admitted that the items were correct, hut said, that he did believe that he owed the Bank nothing, and that he had paid all he ever owed it. This of itself would be sufficient to sustain the verdict; for although, where a man admits the justice of an account, but contends, that he has paid it, all his statements must go to the jury; yet if he can give no reason for his belief, nor show anything in support of it, the jury are not bound to believe it, and may give judgment on the ad* mission. — The evidence of Hobson shows that the plaintiff in error, having had the account upon which the suit is brought, in his possession for his revisal, in a few days afterwards, called at the bank, and claimed and obtained a credit for one Richmond’s note, which had been overlooked by the bank, in stating the account; that he took no further exceptions thereto, and did not pretend to say that he had been charged with items, not justly due. This of itself is a strong circumstance against him.

Upon the whole, we cannot hesitate in saying, that there was testimony upon which' the jury might act, and cannot therefore reverse upon this ground.

Affirm the judgment.  