Mr. Justice Brown
delivered the opinion of the court.
The first objection made by appellant to the judgment in this case is based on the position that1 the cause was improperly tried on the 11 Short Cause Calendar”: (a) because no such affidavit as the statute requires to warrant its being placed there was ever filed, and (b) because when there placed the cause was not at issue, and so placing it violated rule 23 of the Circuit Court. To this appellee answered, first, that it does not appear by the record that the cause was heard on the short cause calendar, and that even if it did there is no error, but merely an exercise of discretion in the trial of a cause out of its regular order, thus securing that prompt adjudication of differences which is supposed to be the ideal in court proceedings.
While certainly not disposed to be astute to find a reason for reversing a judgment in a case apparently tried fairly between the parties in the mere fact that a prompter trial was accorded to them than others less fortunate could obtain, we cannot, to sustain this judgment, reason so technically as to avoid finding ample evidence in the record that it was tried on the “ Short Cause Calendar,” so-called, against the protest of appellant. This court in various cases also is committed to the proposition that it is reversible error improperly to deny a -motion made in apt time to strike a cause from the short cause calendar and to proceed with its trial over the protest of the objecting party. Donnerstag v. Loewenthal, 77 Ill. App. 159; Casey v. Jordan, 94 Ill. App. 405; Parsley v. Halloran, 87 Ill. App. 581.
But the record here does not show a motion in apt time, or at least does not show enough about any motion in apt time to warrant this court in presuming that the motion made just before the beginning’ of the trial was the renewal of any motion made on the same grounds in such apt time. It has been decided by this court that a motion made several .weeks after the cause was placed on the calendar, and on the day the ease was called for trial, is not in apt time and is properly overruled. Freund v. Huylers, 102 Ill. App. 48G; Winterburn v. Parlow, 102 Ill. App. 368.
It is not claimed in the case at bar that any motion was made to strike the cause from the short cause calendar until several weeks had elapsed after it was placed there, and under the reasoning as to dilatory motions made in the cases cited, it might well be held that this alone showed the motion to have been properly overruled, especially when it is noted that the refusal by. another judge of the Circuit Court to remove the cause from the calendar, made four days before the trial (which refusal appears by an order in the common law record) is not by bill of exceptions shown to be on a motion on the same grounds, or supported by the same or any evidence.
But we place our decision also on the want of merit in the grounds urged in support of the motion.
The contention of appellant is based, first, on the assumption that a copy of an affidavit only, and not an original affidavit, was filed with the clerk as the ground for placing the case on the short cause calendar. The paper in question was dated the 21st day of March, 1904, and was filed the 21st day of March. As a part of the same document, and following the affidavit, is what purports to be a notice to the counsel for McDonald, which refers to the preceding part of the document as “a copy of an affidavit.” This is no part of the affidavit itself, and service of the “notice” is not acknowledged or-sworn to on this paper, but such notice as the statute makes sufficient appears by an entirely separate document made and filed the next day, March 22, 1904. Therefore, we think this so-called notice attached to the affidavit should be disregarded as surplusage.
Appellant’s counsel cite several cases in this court to show that a similar paper filed in the clerk’s office has been held insufficient, because the “affidavit” appears by the transcript of the record to have been a “copy.” jSTo case is stronger in this respect, however, than Parsley v. Hall oran, 87 111. App. 581, where the court says : “It is possible, of course, that what is, by appellee’s own counsel in his affidavit of service of notice, called a ‘copy’ may be in reality an original affidavit. - But if so, there is no evidence of it in the record, and we may not presume that counsel did not mean what he says when he swears it to be a copy.”
In the present case there is no “affidavit” or “swearing”' that the affidavit filed was a copy and not an original,— merely some superfluous words over the name of the plaintiff’s attorney. The transcript of the “affidavit” itself shows no reason for supposing it a copy beyond these words. In fact it is not a copy. Eule 13 of this court provides means for our inspection of original papers, and at our instance this original paper having been brought to the clerk of this court, has been inspected by us. The affidavit purports to be original, and bears an original notarial seal and signature to its jurat, of which things we take judicial notice. 1 Greenleaf on Evidence, parag. 5.
The second ground of appellant’s contention is that the case was not at issue when placed on the short cause calendar, and that rule 23 of the Circuit Court provides that, “Eo cause shall be noticed for trial on the short cause calendar until the same is at issue.” Of the various answers made to this objection by appellee, we think that one at least would be effective, even if the motion of the defendant had been shown to have been made in apt time. It is in effect that the rule must be given a reasonable construction and thus shown to be a reasonable addition to the statutory requirements, or it will be invalid, and that in this case it would be an unreasonable construction to hold that the cause was not by the condition of the pleadings so at issue as to warrant its being placed on the short cause calendar. To the declaration in debt in the ordinary form .on the bond, Brown made no answer, and McDonald filed ten pleas. The first was nil debet, a plainly and confessedly had plea to debt on a bond. The second was non estfactum, concluding to the country of course, but unverified, and therefore not a plea under which in this case, under our statute, (Rev. Statutes, chap. 110, sec. 34) any evidence could have been presented.
Of the other eight, four were pleas of performance concluding to the country, two of nul tiel record, one of non damnifioai-us concluding with a verification, and the last a plea that Brown did, with the advice, consent and connivance of .the parties for whom the suit was brought, convert the money coming into his hands as administrator to his own use. This plea concludes with a verification. To the pleas concluding to the country, except the first and second, the plaintiff filed a similiter, and traversed and took issue on the others. To the plea of nil debet it filed a general demurrer, and the second plea it moved to strike from the files. It is because this demurrer and motion were -not disposed of when the cause was noticed for the short cause calendar, that it is claimed the case was not at issue under the meaning of rule 23. Undoubtedly there is a sense in which it can be said that a cause is not at issue where such a demurrer and such a motion are pending, but as they plainly did not touch the merits of this case, or prevent its being ready for hearing, and as the only pleas under which evidence could be adduced had been formally put in issue, and ü the demurrer and motion were defeated, or by plaintiff’s proceeding to trial were to be held waived by him, there-were left the first and second pleas concluding to the country, with which a joinder of issue would be presumed by the mere fact of so going to trial, we do not think they were a bar to placing the case on the short cause calendar.
Ryan v. The People, 165 Ill. 143, where is found the opinion of this court and that of the Supreme Court approving it, is direct authority for the position that where pleas and replications do not affect the proof required of the appellee, or the evidence admissible for the appellant, the fact that they are not formally disposed of does not prevent the cause being “at issue” under the meaning of rule 23. We find, therefore, no error in the trial of this cause on the short cause calendar.
The second objection made to the judgment by appellant is that the suit was prematurely brought. Section 115 of chapter 3 of the Eevised Statutes—the Administration Act —is this: “If any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the County Court, lawfully made, within thirty days after demand made for such moneys or dividend, the court, upon application, may attach such delinquent executor or administrator, and may cause him to be imprisoned until he shall comply with the order aforesaid, or until such delinquent is discharged by due course of law; and moreover, such failure or refusal on the part of such executor or administrator shall be deemed and taken in law to amount to a devastavit, and an action upon such executor’s or administrator’s bond, and against his securities, may be forthwith instituted and maintained; and the failure aforesaid to pay such monej^s or dividend shall be a sufficient breach to authorize a recovery thereon.”
Because of this statute the appellant contends that a demand upon the administrator and a lapse of thirty days are necessary conditions to a suit upon an administrator’s bond, and that as the present suit was brought immediately after demand and ten days after the order for payment was entered, it was prematurely commenced. We do not agree with this contention. Section 13, chapter 103, Bevised Statutes, expressly provides that suits may be instituted on the official bond of an administrator against him and his sureties whenever the condition of the bond is violated, and that it shall not be necessary to a recovery that a devastavit should have been previously established against the principal. This statute was passed after the Administration Act of 1872, and the two laws are in pari materia and must be construed togóther. So construing them, it seems clear that the construction given to section 115 of the Administration Act in the case of Bayless v. The People, 56 Ill. App. 55, is correct, and that a demand thirty days before the suit is only necessary when the administrator is to be proceeded against by attachment of his person. The word “ forthwith ” in the second clause of the section refers to the “ failure or refusal ” to pay over moneys as soon as the order is made—not to a failure continued for thirty days after demand.
Tucker v. The People, 87 Ill. 76, holds such a failure ■ immediately to pay to be a breach of the bond. So do many other cases in Illinois. Curry v. The People, 54 Ill. 263; Bonham v. The People, 102 Ill. 434; McIntyre v. The People, 103 Ill. 142; Winslow v. The People, 117 Ill. 152; Nevitt v. Woodburn, 160 Ill. 203. The condition being broken, there is no reason why the suit should not then be brought.
The question raised here by appellant did not arise in Frank v. The People, 147 Ill. 105, nor in Nevitt v. Woodburn, supra, and we do not think that by any incidental language in those cases the Supreme Court meant to decide it adversely to the view we have indicated.
The third objection of the appellant is that the judgment is in any event excessive by the amount of $10,674, which, as the report of October 13, 1903, shows, was a charge for interest at 10 per cent, on the funds withheld by the adininistrator after March 15, 1895, and by the further sum of $310, the amount'allowed to James K. Glass as'attorney. How the exact figures of this first sum are reached, we do not know, as our computation from the accounts referred to would make it somewhat less. As", however, the amount of the interest would still be over $10,000, and our view of the matter makes the amount immaterial, it is not worth while to attempt a correction. Whatever the sum is, it is ten per cent, per annum on the amount in the administrator’s hands from March 15, 1895, a date two years and six months after his appointment up to the payment of such portions as were paid, and as to the balances left unpaid, up to November 20,1903. This is shown by the method of computation used in the account of November 13, 1903, the footings of which the order of January 4, 1904, follows. Counsel for appellant argue that the voluntary charge of such interest in the account of the administrator, particularly its charge to a date beyond the return of the account, is significant evidence of a conspiracy in which Brown was a factor, to mulct his bondsman. It is quite true, in any event, that Brown’s actions with the money involved have resulted in the appellant’s heavy loss, but we see no proof of any conspiracy with the beneficiaries of the estate in this charge. It was not made until after the account in which he undertook to justify an unauthorized loan resulting in loss had been rejected by the Probate Court, from, whose suggestions, rather than from any voluntary desire of his own, we think it probable that the form of the amended report had its origin. This, however, is entirely immaterial in this connection. The question for us is whether the order of January 4,1904, which determined and settled the sums due from the administrator to the various beneficiaries, determined and fixed also the amount for which his bondsmen became liable in the event of non-payment. We think it did.
The condition of the bond is, among other things, that the administrator
“All the rest of the said goods and chattels, rights and credits which shall be found remaining upon the account of said administrator, the same being at first examined and allowed by the court, shall deliver and pay unto such person or persons, respectively, as may be legally entitled thereto, * * * and shall in general do and perform all other acts which may at any time be required of him by law.”
There is a section of the Administration Act (section 114) which provides that: “All moneys, bonds, notes and credits which any administrator or executor may have in his possession or control as property or assets of the estate, at a period of two years and six months from the date of his letters testamentary or of administration, shall bear interest, and the executor or administrator shall be charged interest thereon from said period at the rate of ten per cent. * * * unless good cause is shown to the court why such should not be taxed.”
Therefore, while it is true that the interest on the sums due the distributees respectively was not a “chattel, right or interest” belonging to the deceased in his lifetime, it became a part of the estate of the deceased by force of the statute, since the court did not find good cause for releasing the same. Affirmative action of the court is not needed to make this interest a part of the estate. Such action is necessary, on the other hand, to lop it off. It was not the order of the court, but the force of the statute, therefore, which made this additional sum due to the distributees from the administrator. The court ordered the ad min is trator to pay the distributees what he owed under the law. He failed to do so. Whatever else this failure was, it was certainly a breach of the condition of the bond that he should do and perform all acts which might at any time be required of him by law. If this interest at ten per cent. Avere a penalty, the bondsman would nót be liable for it. That a bondsman of an administrator is not liable.for a penalty for the misfeasance in office of his principal Avas decided by this court in Salomon v. The People, 89 Ill. App. 371; but it was decided in the same case, and the Supreme Court (191 Ill. 290) approved the finding, that the sureties Avere liable for a certain amount of interest, on the portion of the estate withheld by the administrator.
The Supreme Court in Estate of Schofield, 99 Illinois 513, speaks thus of the section of the Administration Act in question: “Prior to 1872, in this State, xve have never had any statute requiring an administrator, in any case, to account for interest; but in the absence of a statute on the subject, under the common Iuav an administrator, as a general rule, has been held chargeable with interest Avhenever he receives interest, uses the money, or retains it an unreasonable time after he ought to pay it over to claimants or account to the court. * * * In 1872 the legislature passed an act in regard to the liability of administrators to pay interest, which is now sec. 113, chap. 3, Rev. Statutes. * * * Prior to the passage of this act we had no statute on the subject, and the common law rule applicable to trustees prevailed; but since this act has become the law of the State, we must look to it, and to it alone, as the law which creates the liability of an administrator or executor to pay interest if any exists. * * * It was, no doubt, intended * * * that the administrator or executor Avould during the two years after the grant of letters pay out the funds belonging to the estate about as fast as they were collected, and hence no provision was made requiring, in any case, the payment of interest until the expiration of two years and six months after the grant of letters. If, however, after that time, the administrator or executor retains money in his hands, it is right that he should account for interest, for the reason that by a proper discharge of his duty the estate might be settled before that time and the moneys paid over.- We are therefore of opinion that the legislature, in framing the section of the statute supra, intended that the statute so enacted should embrace all cases in which an administrator or executor should be chargeable with interest. * * * The Circuit Court charged the administrator with interest at ten per cent, on all moneys that he retained in his hands after the expiration of two years and six months from the date of his letters, and in our judgment this was correct.”
We think it is plain that the legislature and the Supreme Court regarded this section as providing, not for a penalty extraneous to the indebtedness of the administrator, but simply for the proper increment of the trust fund.
That the rate in 1872 was fixed at ten per cent., and has never been changed, does not, by virtue of the excess of such rate over the ordinarily legal rate, render it a penaltjn It merely makes it an unusually high rate of interest, probably so kept at that point to encourage prompt settlements. For illustration, it may be noted -that the rate of interest which by statute must be paid on the principal sum necessary to redeem real estate from an execution judgment or foreclosure sale in this State has always been.higher and is now higher than the legal rate on ordinary indebtedness. Yet it is not a penalty nor treated nor called so by the legislature or the courts.
That the interest for which a public officer or one appointed by the Probate Court is liable, is a proper charge against his bondsmen in a suit on his bond, has been expressly decided by the Supreme Court in several cases of suit upon such bonds, although the point was distinctly made that interest should not have been included in the judgment. Stearn v. People, 102 Ill. 540; Cassady v. The Trustee of Schools, 105 Ill. 560; Hughes v. People, 111 Ill. 457; Winslow v. People, 107 Ill. 152.
We do not think the inclusion of this interest in the verdict and judgment was erroneous. Nor was the inclusion of the §310 allowed to Glass as attorney’s fees. To that extent Glass was the beneficiary under the bond. The disbursement had been allowed by the court, but not paid. The amount was part of the fund which should have been in the hands of the administrator, and its allowance to Glass lessened by so much the amount which would otherwise have been .due to the other beneficiaries. Its allowance to'Glass did not increase the bondsmen’s burden, but rather decreased it to the extent of interest which would otherwise have been chargeable on it.
The final contention of the appellant is, that a new trial should have been granted on account of newly discovered evidence, brought to the attention of the trial court before the judgment was entered.
It is not necessary to discuss any question raised by delay in filing the affidavits in behalf of appellant or by the consideration of counter-affidavits, although as to the last matter we think that the case of Gilchrist Transportation Company v. Northern Grain Co., 204 Ill. 510, is authority for their introduction so far, at least, as they relate to the statements of John G. Brown on his examination before Justice Caverly. But on "the assumption that the affidavits on behalf of appellant are to be considered in this appeal as though filed before the motion for a new trial was disposed of, and entirely without reference to the counter-affidavits filed, the motion for a new trial on the ground of newly discovered evidence was properly denied. There is not a question even as to whether the discretion of the trial court could be interfered with by us, for we think that to have decided otherwise would have been an abuse pf its discretion.
Nothing is better settled than that the party moving for a new trial on the ground of newly discovered evidence is required to conform to very strict regulations, that such an application is regarded with great jealousy and construed with great strictness. It has been laid down that the affidavits in its support must be full, precise, detailed and circumstantial, that it must appear that the witness relied on is ready to testify, and that his own affidavit must be produced or good cause shown why it is not. Graham & Waterman on New Trials, vol. Ill, page 1021, et seq. How far the application in this case is defective in these particulars can be easily seen from the record.
But further and especially it must appear that there has been no negligence and no lack of diligence in not securing the testimony on the trial. The reports of our own Supreme Court have many statements of this rule, needless to cite here. See, for example, however, Wright v. Gould, 73 III. 56. A discovery after trial that a witness knew a material fact and did not disclose it, furnishes no excuse if he was not questioned. If the consequence of failing specifically to interrogate the witness be the concealment of-material evidence, it indicates such a lack of diligence as will deprive the person so failing of all claim for a new trial on the ground that such evidence was afterward newly discovered. Toledo W. & W. R. Co. v. Seitz, 53 Ill., 452; Fanning v. McCraney, 1 Morris 398; Houston v. Smith, 2 Smedes & Marshall 597; Graham & Waterman on New Trials, vol. 111, pp. 1029-1095.
In this case the alleged newly discovered evidence relied on, putting it most strongly for the appellant, is the statement of John G. Brown that the beneficiaries of the bond consented to the loan made by him to Hankins.
The allegation of “ consent, advice and connivance ” of these beneficiaries in the misappropriation of the funds was explicitly made by the appellant in pleas filed two months before the trial. This certainly showed at least that his attention.»had been directed to the possibility of such a defense. Knowledge as to the facts must have, been in the possession of John G. Brown himself and of the beneficiaries. There is nothing to show that the latter were interrogated or interviewed concerning it. John G. Brown was a witness at the trial. He was cross-examined by appellant’s counsel and asked, without objection, if he was short of the money which should have been paid to the beneficiaries—if he turned it over to anybody that was entitled to it—to whom he turned it over, and if the court told him so to turn it over; and he answered that he was so short, that he had let Hankins have the money, and that he did not know whether Hankins was entitled to it or not, but he was not asked whether this was with the consent of the distributees. This plainly was a lack of diligence fatal to a right to a new trial, on the ground that five days afterward Brown testified to defend himself in a criminal prosecution that such consent was given.
It is to be noted that a new trial should not be granted in any case on the ground of newly discovered evidence, if the evidence admitted would be untrustworthy and suspicious. Blake v. Blake, 70 Ill. 618; Laird v. Warren, 92 Ill. 204. But this is immaterial here, for the want of diligence is apparent.
The case is undoubtedly a hard one for appellant, and he is entitled to sympathy. But the misfortune which he suffers is the result of his own imprudence. According to his own statement he signed the bond of Brown, whom he did not know, at the request of Hankins, and then allowed twelve years to go by without any inquiry about the matter. Good naturedly to sign the bond of a stranger for $50,000, at the request of a friend, was dangerous; never to inquire about it thereafter was to the last degree imprudent. We have the authority of the wisest man in history, that suretyship for a stranger brings misfortune, and that one who is surety even for a friend should not give sleep to his eyes nor slumber to his eyelids.
The judgment in this case must be and is affirmed.
Affirmed: