Mr. Presiding Justice Brown
delivered the opinion of the court.
We have considered the points relied on by the plaintiff in error, and find no merit in any one of them.
The first position .taken by him is that the rule of the Circuit Court providing that “no case shall be noticed for trial (on the short cause calendar) until the same is at issue, ’ ’ was violated in this case, and that as this rule is shown in the record in an affidavit offered in support of the motion for a new trial, 'we should take notice thereof, and hold that the new trial was improperly refused.
It is not necessary for us to decide whether the fact that the special pleas were not replied to at the time of the notice, a replication traversing and tendering issue having been filed before the case was called for trial, would be in any case sufficient to warrant our reversing the judgment and remanding the cause, after a trial at which the defendant was present and in which he participated, simply because he had his day in court more promptly than the rules of court allowed. As the Supreme Court said in McDonald v. People, 222 Ill. 326: “In any event the motion to strike the cause from the short cause calendar came too late. A motion to strike a case from the short cause calendar is a dilatory motion, and should be made at the first opportunity. This was not done, but the cause was permitted, without objections, to remain upon the short cause calendar until it was reached for trial.” This was in a case where the chief argument that the trial upon the short cause calendar was erroneous, was that the case was not at issue when noticed. The distinction attempted to be made by plaintiff in error in this regard, therefore, between cases where the motion to strike a cause from the short cause calendar is based on the ground of the insufficiency of affidavits, and those in which the motion is based on the cause not being at issue, cannot be recognized.
In the present case it would appear from the uncontradicted statement of counsel to the court, that a postponement of one week had been arranged between the parties before this motion was made. However that may be, the motion was too late.
We do not think that the second objection made to the time of trial of the cause is more meritorious than the first. Counsel admit that it is within the discretion of the trial court to finish trying a short cause calendar case after the hour which it was expected to take has expired, but insists that the court, although it could have finished the trial on Monday, May 8th, could not adjourn it at,11 o’clock in the forenoon, and doing other business on Monday, take up the case and finish it in the first working hour of Tuesday-the 9th. Such a refined distinction does not commend itself to our common sense. The action of the trial judge was plainly within his discretion, and is justified by this court and by the Supreme Court in such cases as Griesheimer et al. v. Myers et al., 89 Ill. App. 665, and Armstrong v. Crilley, 152 Ill. 646, p. 649.
In the last case the Supreme Court say of a similar course to the one pursued here: “It is impossible to escape the conviction that the effort of the defendant by his several motions in the trial court was to accomplish the very thing the short cause calendar statute was designed to prevent.”
To the third point of the plaintiff in error, that the swearing of the same jurymen to try other cases in the interim between the adjournment of the case at bar on Monday, and the reconvening of the court and jury to consider it on Tuesday, worked a discharge of the jury, we can find no support in reason or authority. The jurymen were still under oath to try the issues in this case fairly and were excused at eleven o’clock Monday from its consideration until the next morning. What the court did with them, or they did with themselves in the meantime, was no concern of the parties to this case, provided they did nothing improper affecting it.
The fourth point urged by plaintiff in error is that discontinuing the cause at the trial as to two of the defendants entitled the remaining defendant to a continuance. Judge Breese said in Thompson v. Sornberger, 78 Ill. 353, in speaking of the effect of the liberal provisions of our Practice Act of 1872, sections 24 and 26: “It is hardly ever too late to amend' pleadings, whether before or after verdict, on such terms as justice may seem to demand. .Such a motion rests very much in the discretion of the court.” See, also, Cogshall v. Beesley, 76 Ill. 445.
We do not understand that this doctrine is questioned by the plaintiff in error, or that he denies that to entitle him to a continuance because of the dismissal as to the other defendants, and the statement of the court that an amendment of the declaration could be made and allowed, after verdict, he was obliged to bring himself within the terms of section 26 of the Practice Act; but he argues that.he has done this by requesting time (which was denied him) to set up his surprise and the grounds of it in an affidavit on his motion for a continuance at the time of the trial, and by his motion for a new trial and the affidavits supporting the same, in which is set forth the necessity, after the change in the suit, for testimony which before such change was not required.
It appears by the record that defendant Haines, after the dismissal of his co-defendants, did ask that the cause be continued, because he was taken by surprise, and further asked for time “to set it’’(presumably the surprise) up “in an affidavit.” Being asked in what he claimed to be taken by surprise, counsel replied: “Taken by surprise because it is a changed action entirely.” Whereupon the court denied his motion.
■Treating, however, in favor of plaintiff in error, the affidavits in support of the motion for a new trial as having the effect of affidavit for continuance, and the refusal of a new trial as though it were the refusal of a continuance—in other words, considering the objection here alleged to the judgment as disposed of on the motion for a new trial, which we understand the trial judge announced his intention at the time of trial of doing, we fail to see in the affidavits offered by plaintiff in error any ground for holding that any material evidence in this cause would have been available to plaintiff in error had the case been continued. The only evidence described is that the contract of indemnity marked “Plaintiff’s Exhibit B” was executed subsequently to, although dated contemporaneously . with, the note, and was executed without consideration, and that B. Magoon Barnes had stated to Haines (and would presumably testify) that he, Barnes, had loaned the $5,000 mentioned in the note to Lucius G-. Thompson, and that Thompson signed said note as maker and not as guarantor.
This, if all proved, would be far from making a defense to this action as we view the evidence for the plaintiff—the defendant in error here.
The plaintiff himself swore that Haines had admitted personally to him, in express words, that the testator had “gone security” fer him on the' note, and that he, Haines, had received the money, and was trying to raise money to pay it. Mr. Haines did not take the stand to contradict this. He was a competent witness to do this under the exceptions to the disqualification of interested persons in a suit by an executor.
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Mr. Presiding Justice Brown
delivered the opinion of the court.
We have considered the points relied on by the plaintiff in error, and find no merit in any one of them.
The first position .taken by him is that the rule of the Circuit Court providing that “no case shall be noticed for trial (on the short cause calendar) until the same is at issue, ’ ’ was violated in this case, and that as this rule is shown in the record in an affidavit offered in support of the motion for a new trial, 'we should take notice thereof, and hold that the new trial was improperly refused.
It is not necessary for us to decide whether the fact that the special pleas were not replied to at the time of the notice, a replication traversing and tendering issue having been filed before the case was called for trial, would be in any case sufficient to warrant our reversing the judgment and remanding the cause, after a trial at which the defendant was present and in which he participated, simply because he had his day in court more promptly than the rules of court allowed. As the Supreme Court said in McDonald v. People, 222 Ill. 326: “In any event the motion to strike the cause from the short cause calendar came too late. A motion to strike a case from the short cause calendar is a dilatory motion, and should be made at the first opportunity. This was not done, but the cause was permitted, without objections, to remain upon the short cause calendar until it was reached for trial.” This was in a case where the chief argument that the trial upon the short cause calendar was erroneous, was that the case was not at issue when noticed. The distinction attempted to be made by plaintiff in error in this regard, therefore, between cases where the motion to strike a cause from the short cause calendar is based on the ground of the insufficiency of affidavits, and those in which the motion is based on the cause not being at issue, cannot be recognized.
In the present case it would appear from the uncontradicted statement of counsel to the court, that a postponement of one week had been arranged between the parties before this motion was made. However that may be, the motion was too late.
We do not think that the second objection made to the time of trial of the cause is more meritorious than the first. Counsel admit that it is within the discretion of the trial court to finish trying a short cause calendar case after the hour which it was expected to take has expired, but insists that the court, although it could have finished the trial on Monday, May 8th, could not adjourn it at,11 o’clock in the forenoon, and doing other business on Monday, take up the case and finish it in the first working hour of Tuesday-the 9th. Such a refined distinction does not commend itself to our common sense. The action of the trial judge was plainly within his discretion, and is justified by this court and by the Supreme Court in such cases as Griesheimer et al. v. Myers et al., 89 Ill. App. 665, and Armstrong v. Crilley, 152 Ill. 646, p. 649.
In the last case the Supreme Court say of a similar course to the one pursued here: “It is impossible to escape the conviction that the effort of the defendant by his several motions in the trial court was to accomplish the very thing the short cause calendar statute was designed to prevent.”
To the third point of the plaintiff in error, that the swearing of the same jurymen to try other cases in the interim between the adjournment of the case at bar on Monday, and the reconvening of the court and jury to consider it on Tuesday, worked a discharge of the jury, we can find no support in reason or authority. The jurymen were still under oath to try the issues in this case fairly and were excused at eleven o’clock Monday from its consideration until the next morning. What the court did with them, or they did with themselves in the meantime, was no concern of the parties to this case, provided they did nothing improper affecting it.
The fourth point urged by plaintiff in error is that discontinuing the cause at the trial as to two of the defendants entitled the remaining defendant to a continuance. Judge Breese said in Thompson v. Sornberger, 78 Ill. 353, in speaking of the effect of the liberal provisions of our Practice Act of 1872, sections 24 and 26: “It is hardly ever too late to amend' pleadings, whether before or after verdict, on such terms as justice may seem to demand. .Such a motion rests very much in the discretion of the court.” See, also, Cogshall v. Beesley, 76 Ill. 445.
We do not understand that this doctrine is questioned by the plaintiff in error, or that he denies that to entitle him to a continuance because of the dismissal as to the other defendants, and the statement of the court that an amendment of the declaration could be made and allowed, after verdict, he was obliged to bring himself within the terms of section 26 of the Practice Act; but he argues that.he has done this by requesting time (which was denied him) to set up his surprise and the grounds of it in an affidavit on his motion for a continuance at the time of the trial, and by his motion for a new trial and the affidavits supporting the same, in which is set forth the necessity, after the change in the suit, for testimony which before such change was not required.
It appears by the record that defendant Haines, after the dismissal of his co-defendants, did ask that the cause be continued, because he was taken by surprise, and further asked for time “to set it’’(presumably the surprise) up “in an affidavit.” Being asked in what he claimed to be taken by surprise, counsel replied: “Taken by surprise because it is a changed action entirely.” Whereupon the court denied his motion.
■Treating, however, in favor of plaintiff in error, the affidavits in support of the motion for a new trial as having the effect of affidavit for continuance, and the refusal of a new trial as though it were the refusal of a continuance—in other words, considering the objection here alleged to the judgment as disposed of on the motion for a new trial, which we understand the trial judge announced his intention at the time of trial of doing, we fail to see in the affidavits offered by plaintiff in error any ground for holding that any material evidence in this cause would have been available to plaintiff in error had the case been continued. The only evidence described is that the contract of indemnity marked “Plaintiff’s Exhibit B” was executed subsequently to, although dated contemporaneously . with, the note, and was executed without consideration, and that B. Magoon Barnes had stated to Haines (and would presumably testify) that he, Barnes, had loaned the $5,000 mentioned in the note to Lucius G-. Thompson, and that Thompson signed said note as maker and not as guarantor.
This, if all proved, would be far from making a defense to this action as we view the evidence for the plaintiff—the defendant in error here.
The plaintiff himself swore that Haines had admitted personally to him, in express words, that the testator had “gone security” fer him on the' note, and that he, Haines, had received the money, and was trying to raise money to pay it. Mr. Haines did not take the stand to contradict this. He was a competent witness to do this under the exceptions to the disqualification of interested persons in a suit by an executor. There is no claim that Haines was absent or inaccessible at the trial, on account of the situation before the dismissal of Bandall and Challman, although it is strenuously contended that B. M. Barnes was for that reason absent.
Whether or not the contract—“Exhibit B”— was contemporaneously executed as its date indicates, or subsequently, as the affidavit of Haines states, and whether in the latter case any consideration contemporaneous with its execution passed or not, are immaterial questions. The paper was certainly competent evidence to prove a written admission of Haines corroborating the testimony of the defendant in error as to oral admissions. This was the evident object of its introduction. The suit was not brought on it.
The testimony of B. M Barnes, which it was said could be procured, that “he had loaned the $5,000 to L. G-. Thompson, and that L. G. Thompson signed said note as maker and not as guarantor,” was equally immaterial.
The note spoke for itself—that as between Barnes and Thompson, Thompson was a joint maker, and Barnes may well have given credit to Thompson, rather than to the other makers, and “loaned Thompson” the money, without that state of things negativing the theory that as between Thompson and Haines, and indeed as between Thompson and the other three makers, Haines alone, or Haines -and they, were principals and Thompson a guarantor, or surety, To that relation and to his right to recover under the circumstances of this case against Haines, his reíations on the note to Barnes, or to any other holder, were immaterial. We do not think the court erred in refusing the continuance.
The next objection made by the plaintiff in error to the judgment is, that the defendant in error did not pay out the money for which he sued Haines as executor, but as a voluntary payment in his individual capacity, and that, therefore, he could not recover' it suing as executor. This is based upon the proposition that there was no order of the Probate Court directing or allowing the payment. There is. no merit-in the point. Counsel say in their argument: “An executor or administrator, if he makes payment of the debts of an estate without requiring claims to be proved, makes such payment at his peril.” Certainly he does—at the peril of having the payment disallowed in his account with the estate, unless he can show it a proper and necessary one.
It might have been competent, had it been possible, for the defendant here to have proved that the estate of L. G. Thompson was not liable on the note, and that the payment of it by the defendant in error made no claim against the estate, and inflicted no loss on it. But no such attempt was made, presumably for the reason that it would have been hopeless. The prineipal contention of the deiendant indeed seemed to be that the estate of L. G. Thompson was not only liable on the note, but was liable primarily and as directly receiving the consideration for it.
We have already practically disposed of the sixth objection made by plaintiff in error to the judgment by what we have said concerning the fourth. The suit was not brought on the contract which was introduced as plaintiff’s exhibit B, and its consideration or want of it is immaterial. The plaintiff proved by competent. evidence, admitted and allowed to stand as against Haines on the understanding clearly appearing in the record, that the other defendants might be dismissed out of the case before it went to the jury; that L. G, Thompson made himself liable on a note for the accommodation and in effect as a surety for Haines; that the estate of said Thompson was called upon at the maturity of the note to pay it, and did pay it, and had not been able tonollect it from Haines. The considerati'on was ample to support the obligation of Haines, irrespective of exhibit B.
Consideration of the facts is also sufficient to show the answer to the final proposition of the plaintiff in error, that the payment to “May I. Barnes” as shown by the indorsement on the note, is no payment of the note—“not binding on the defendant, and for which no recovery can be had in this action.” The argument seems to be that the action is on the note, and that as the indorsements on the note do not show title to it in the defendant in error, he cannot recover against Haines.
Under the facts shown by the evidence in the cause, the verdict and judgment could be sustained under the common money count found in. the declarations before and after amendment for money paid out for the use of the defendant; and they could be sustained under the special count, in our opinion, without reference to the legal title to the note. The essential matter is that when recovery has been had against Haines by the defendant in error, no other recovery can be had against him on the note as unsatisfied. No pretense can be made that such a thing is possible. The note is in the hands of the defendant in error, overdue and marked paid. The record of this case shows that' Haines, primarily liable on it, has been held liable as the original payor.
E. M. Barnes, to whom the plaintiff in error attributes the legal title, can in no event lay any claim to the note, or its further proceeds. He has not possession of it; he has marked it paid, and the indorsement by which it is said to be paid to “May I. Barnes,” is in his own handwriting and signed by himself as agent of said May I. Barnes. He is completely estopped from any claim on it. And, indeed, he is equally bound by such a memorandum to the assertion of ownership of the note hi May I. Barnes at the time of payment as though he had regularly transferred the same by indorsement for such transfer.
Counsel makes his statement too broad by saying that “title to a negotiable instrument made payable to a specific payee can be transferred only by indorsement on the back thereof and delivery.” There is a difference recognized between the equitable and the legal title to negotiable paper. If an owner of such paper delivers it for value, unindorsed to another, the transferee gets the equitable title of the transferrer and the right to have his legal title completed by the the transferrer’s indorsement. Martin v. Martin, 174 Ill. 371.
It is plain that E. M. Barnes would be in no position at any time to deny May I. Barnes’ beneficial title to the note at the time the money on it was paid to him and he receipted for it as her agent. He thereby represented her to be the holder and owner of it.
We are convinced that substantial justice has been done in this case, and the judgment is affirmed.
Affirmed.