delivered the opinion.of the court: ■
We will first consider the contention of appellant that ■ a peremptory instruction should have been given by the trial court directing a verdict in his favor.
The record shows that after the evidence was all in and while counsel were discussing motions before the court, defendant’s counsel stated that he desired to enter a motion for a verdict for the defendant, which motion the court denied. Counsel then insisted upon being heard upon the motion, but the court refused to hear arguments concerning it. Some other argument was indulged in, and then the defendant offered twelve instructions in a series, the third of which was: “Upon the evidence in this case your verdict must be for the defendant.” This is the first offer of an instruction to find for the defendant so far as is shown by the record, and as we have frequently held, it was not in apt time, and was therefore properly refused. (Peirce v. Walters, 164 Ill. 560; Chicago Great Western Railway Co. v. Mohan, 187 id. 281; West Chicago Street Railroad Co. v. Liderman, id. 463.) Moreover, we have already passed upon that identical question in this case on a former appeal, (Wilbor v. Ewen, 183 Ill. 626,) in which we said (p. 632): “The Appellate Court, however, bases its judgment of reversal on the ground, as appears from the recitation found in its judgment, that the circuit court erred in refusing an instruction to find for the defendant. If the evidence introduced on the trial in the circuit court, with all proper inferences to be drawn therefrom, fairly tended to prove plaintiff’s cause of action, the circuit court did not err in-refusing to give the instructions to find for the defendant. Upon looking into the record, which is proper to be done in a *500question of this character, it will be found there is ample evidence tending to prove the plaintiff’s cause of action.” The cause being again considered in the Appellate Court, it rendered its judgment affirming the judgment of the circuit "court, and this appeal is prosecuted from that judgment. It is clear, then, so far as the facts are con-' cerned or so far as the record was made up at the time the cause was considered by this court, it is now in the same condition as then, the record not having- been re: turned at any time to the trial court, and there can be no reason for this court changing its views then expressed.
Complaint is made by appellant of instructions Nos. 1 and 2 given for appellee. Instruction No. 1 in substance told the jury that in a suit upon a note, if the defendant sets up a failure of consideration of the note, either in whole or in part, he must establish such failure by a preponderance of the evidence, and that the burden in proving any defense to the note is upon the defendant. The word “any” in this instruction appears to have been underscored. Instruction No. 2 told the jury that “by a preponderance of the evidence is meant the greater weight of the evidence.” The complaint seems to be that ■ there were other defenses than the failure of consideration, and that the word “any" must have been understood by the "jury as synonymous with “every.” It is not urged that the definition of the term “preponderance of the evidence” is wrong, and this court has held it correct. (Schroeder v. Walsh, 120 Ill. 403.) In fact, it is said that it states an abstract principle of law accurately, but that by the arrangement of the two instructions the court practically told the jury they must render the verdict they did. - The action was upon a note, and pleas of failure of consideration were interposed. Instruction No. 1 spoke of no other pleas or defenses, and we do not - think the jury were misled by the word “any” to believe that it referred to every other defense than those talked! fibout in the instructions.
*501Appellant contends that the action was not upon the note, and that the burden was upon appellee. It is certain that the declaration contains two special counts in effect declaring upon the note. It also contained the consolidated common counts, but the special pleas all began by stating that the causes of action in the several counts are one and the same, to-wit, that stated in the first count, and the evidence all related to the special counts.
The position of appellant is, that as there was a contemporaneous written contract between Warren Ewen, Jr., the maker of the note in question, and appellee, and which is set out in the statement in this case, and which referred to the note in question, and which was specially pleaded by appellee, it therefore follows the suit is upon both the written contract and the note. We do not think so. In our view, the suit was “an action on a note,” within section 9 of chapter 98, (2 Starr & Cur. Stat. p. 2802,) notwithstanding the contemporaneous agreement, and none the less so because of the fact that the suit is against the guarantor and not against the maker of the note. The note was a commercial instrument, governed by the rules of practice relating to such instruments. It was complete in itself, .and there cannot be the slightest question but had default been made a judgment upon the note would have stood any test to which it could have been subjected. The special contract was a matter of special defense interposed by the appellant, and while it might be that, being a contemporaneous agreement, it should be considered together with the note when offered in evidence and the final consideration of the case being at hand, we think it cannot be said that the suit was upon anything except the note. The execution of the note was not put in issue in any way. When it was admitted in evidence it made a prima facie case for the plaintiff. The fact that appellee had set up special defenses did not prevent its having that effect. (Boudinot v. Winter, *502190 Ill. 394; Stocks v. Scott, 188 id. 266; Miller v. Balthasser, 78 id. 302.) The defenses set up by the special pleas were affirmative defenses, and they were the only defenses which any of the evidence tended to prove. The burden of those special defenses was upon appellant, and the court so properly told the jury.
The note had been protested, and .when it was offered the plaintiff also offered the notary’s certificate of protest. When this was offered appellant’s counsel said: “I object to the protest. The suit is not against Warren Ewen, the maker of the note, but it is against the guarantor, and the protest is not competent evidence.” The protest was attached to the note and the note was offered in evidence without objection. It is now sought to raise the question that the protest could only be proved by a certified copy of the record required by the statute to be kept by notaries in such matters. That is not the question that was presented to the trial court. The distinction between the objection to evidence because of its competency and because of its sufficiency is well defined. Had the objection now insisted upon been urged at the trial, appellee could doubtless have had the notary make the certificate it is now said was necessary, (Herrick v. Baldwin, 17 Minn. 209,) and to allow appellant to urge one objection upon the trial and" another in this court would be to place appellee at an unfair advantage. The objection that the certificate of protest related to matter between other parties than those to the suit, and therefore incompetent, which was the one urged, is not within the contention that the certificate was. insufficient Appellant having urged the single and specific objection, thereby waived all other objections. Garrick v. Chamberlain, 97 Ill. 620; Walcott v. Gibbs, id. 118; Newell v. Woolfolk, 91 Hun, 211; Lallman v. Hovey, 92 id. 419.
It is further insisted that the note in question, being an inland bill, was not the subject of protest; that by the law merchant only foreign bills could be protested. *503This court is committed to the view that the statute in relation to the duties of a notary public has changed the common law in this particular, and that inland bills are now the subject of protest. Montelius v. Charles, 76 Ill. 303.
Appellant offered instructions 4, 5, 6 and 7. By the fourth instruction the court was asked to hold that appellee could not maintain his suit unless demand for payment had been made on Warren Ewen, Jr., the maker, and that there was no evidence of such demand, and appellee could not recover. By the fifth instruction the court was asked to hold that appellee could not recover unless prior to the suit he had demanded of Warren Ewen, Jr., the special deposit of $1250 mentioned in the contract of November 15,1892, and that there was no evidence of such demand. The sixth instruction stated that the appellant was sued as guarantor, and his liability must be found in the strict letter and precise terms of the contract and cannot be extended by construction or implication. The seventh instruction was predicated on the sixth, and stated that the note sued on is payable on demand after six months from its date, and that appellant is not liable unless such demand was made upon Warren Ewen, Jr., the maker, and that suit against appellant was no evidence of a demand against the maker. These instructions were refused, and the jury were instructed that “a demand on the note in evidence is a sufficient demand by the plaintiff for a return of the deposit under the contract." It was the duty of the court to refuse the fourth and fifth instructions offered, for the reason that the certificate of protest, which strongly tended to show a demand on Warren Ewen, Jr., the maker, and notice to appellant thereof, and his default, was in evidence. The sufficiency of that evidence was a question for the jury in the first instance, and as it found for appellee under a proper instruction on that point, and that judgment was affirmed by the Appellate Court, the question of the sufficiency of the evidence in that regard is not open for *504our consideration. The sixth and seventh instructions might properly have been given, but we do not think, under the whole record, the result could have been different had they been given, and their refusal was not reversible error.
Appellant urges that a demand on the note was'not a' sufficient demand, and urges that there was no personal demand made on Warren Ewen, Jr., on the note, and that a demand at the place and time of payment that would be sufficient under the law merchant, as applied to commercial paper, was not enough to fix the liability of appellant, which, he says, was controlled by the written agreement of November 15, 18Ó2, between appellee and Warren Ewen, Jr. Whether personal demand for the payment of the note was made on Warren Ewen, Jr., was a question of fact, and we think there was evidence tending to show such demand, and the findings of the jury and the Appellate Court settled that question so far as this court is concerned. It is our opinion that a demand for the payment of the $1250 note, made upon Warren Ewen, Jr., and his failure or refusal tp pay, was a sufficient demand, as the parties by the written agreement expressly stipulated that the note for the payment of the $1250 should be given and that appellant should guarantee its payment, which was done. We cannot accept the view that appellant’s liability is dependent entirely upon the provisions of the written agreement, or that his guaranty is simply a guaranty of his brother’s obligations to appellee as the same are expressed in said agreement. To so hold would be to disregard the note entirely and create a contract for the parties that they never entered into. Neither can we accept appellant’s theory .that the note is to be construed as a collateral security for the performance by his brother of the promises set forth in said agreement to return the special deposit in controversy when demanded. We hold that said note, instead of being intended to be subsidiary or col*505lateral to the special agreement, was, in fact, a step in the direction of carrying out one of its provisions, and that the execution of said note operated to extinguish and render nugatory all that portion of the said written agreement providing for the return of said deposit upon demand by appellee. This view disposes of appellant’s third and fourth special pleas.
Appellant by his fifth special plea set up that appellee had $3000 in his hands which he owed Warren Ewen, Jr., and which he should have applied on the debt secured by the note sued"on, and for the purpose of fraudulently collecting the amount of the note in question from appellant, appellee and said Warren Ewen, Jr., fraudulently entered into an agreement without consideration and for the fraudulent purpose aforesaid, by which said Warren Ewen, Jr., who was insolvent, released appellee from the payment thereof, to the injury of appellant, as surety. Issue was joined on this plea, and to support it appellant offered in evidence other written contracts made prior to the contract of November 15,1892, by which the parties undertook to work and extend the use of the process of Warren Ewen, Jr., in other fields and in a different manner from the provisions of the contract of November 15, 1892, and in no way relating to it, and then showed by Warren Ewen., Jr., who is appellant’s brother, that he released appellee from certain liabilities under those contracts. The transactions to which that settlement related were in no part the contract of November 15, 1892, and the allegation that appellee had the right to apply or hold the moneys owing to Warren Ewen, Jr., by appellee, if any, on the payment of or as security for the special deposit or note sued on, was the mere conclusion of the pleader. The record shows that at the time the release was made the note in suit was not only not due, but by the express terms of the contract of November 15, 1892, it was dischargeable by means other than the payment of money, at the option of the defendant, *506Warren Ewen. In the light of these facts appellee not only had no rig'ht to apply the money he may have owed appellant’s brother to the discharge of this note, but he would have violated a positive legal duty by doing so. To have given appellant the benefit of his plea he must have shown, or offered to show, that the demand released was for money that, as between appellee and himself, appellee had a right to apply, and as to appellant it was his duty to apply, upon the note in question. This the evidence did not even tend to establish. In our opinion appellee’s alleged liability to Warren Ewen for material, etc., under the contracts of July and September, 1892, was not a “security,” within the doctrine qf subrogation, and that appellant’s remedy on this branch of the case, if he has a remedy, is a proceeding in equity in the nature of a creditor’s bill.
Appellant, by his seventh- plea, pleaded a set-off of moneys due from appellee to Warren Ewen, Jr., alleged by appellant to have been assigned to him on September 1, 1893, by said Warren Ewen, Jr., and to support that plea relied in part on the same evidence offered under the fifth plea and other evidence offered, among which was a written assignment from Warren Ewen, Jr., dated September 1, 1893. Appellee’s counsel asked leave to inquire about the paper offered, when the witness Warren Ewen, Jr., said the assignment was made on the day of the trial. This writing, upon objection, the court excluded from the evidence. Appellant offered no witness except Warren Ewen, Jr., who testified that the real consideration for the execution by him of the release of August 30, 1893, was a parol promise by appellee to bear one-half the expenses incurred and to be incurred by him in trying to get the government to ado’pt his patent process. This claim is the foundation of appellant’s set-off. The written assignment having been made after the suit was brought, and on the day of the trial, was inadmissible as evidence proving a sale of the account, as *507the claim sought to be set off must have been held by appellant at the time the suit was brought. (Pettis v. Westlake, 3 Scam. 535.) That was the only evidence offered of the assignment of the debt, or tending to show that said plea of set-off had been filed by appellant with the knowledge and consent of Warren Ewen, the maker of the note sued on.
But waiving this point, all the evidence touching this set-off might have been properly excluded had the court been requested to do so. It is fundamental that unliquidated damages arising out of contracts, or covenants disconnected from the subject matter of the plaintiff’s claim, are not such claims or demands as constitute the subject matter of set-off, under the statute. (Hawks v. Lands, 3 Gilm. 227; Sargeant v. Kellogg, 5 id. 273.) The set-off claimed in this case was for alleged moneys expended by Warren Ewen, Jr., under and upon an entirely distinct contract from that under which the. note was given and in no way related to it, upon a common project between appellee and said Warren Ewen, Jr., in which the latter claims appellee was to bear half the_ expense, and in which he testifies there was never any accounting or settlement or agreement as to the amount expended or the amount to be paid by the appellee. Had the suit been against Warren Ewen, Jr., directly, and not against the appellant, the plea of set-off should have failed.
Errors are assigned upon the action of the court below in excluding certain testimony of the witness Warren Ewen, offered in support of his plea of no consideration, being the first, second and sixth special pleas. We have examined the record on this point, and are of the opinion that appellant was in no way prejudiced in the presentation of his defense of no consideration by the action of the court in this regard.
All that we said in our former opinion as to the irregular manner in which the case was argued by counsel fpr appellant was fully justified by the facts, and the *508petition for rehearing cannot be regarded in any other light than as a re-argument of the case in violation of our rules. We have, however, re-examined the questions involved, and are satisfied with our former conclusion that the judgment of the Appellate Court should be affirmed.
Judgment affirmed.
Mr. Justice Magruder, dissenting.