Opinion of the Court.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The note which is the subject of controversy in this action was purchased by appellant after maturity, and hence he took it subject to any defense that could be made to it had the suit been brought in the name of the original payee. The defense interposed is, that the payee was indebted to appellee at the date of the assignment in a sum greater than the amount due on the note. The fact of the indebtedness does not seem to be controverted, and the amount which appellee seeks to have set off exceeds any sum claimed to be due on the note in controversy.

Appellant, however, insists, that after the note came to his hands he had an interview with appellee, in which it was agreed, if he would forbear the collection for a stated period, appellee would pay the note. Appellee most positively denies making any such agreement.

On this question the evidence was flatly contradictory, and it was the province of the jury to reconcile it as well as they could. This they have done, and their finding being against appellant we are not at all dissatisfied with the verdict. Indeed, the weight of the evidence seems to be with appelleecertainly the equities of the case are all with him. The contract, as alleged, is itself absurd and unreasonable. What possible motive can be assigned for making the agreement to pay the note in consideration of extension of time, when no indebtedness whatever existed? It would simply be an undertaking to pay appellant a certain sum of money if he would forbear to institute a suit on a note that had been previously fully satisfied and discharged while in the hands of the payee. A party may buy his peace at any price he may see fit to pay, but a contract like the one insisted upon ought to be proved by a clear preponderance of evidence before a court would undertake to enforce it. There is no evidence in the record that overcomes the express denial of appellee that he ever made such a contract.

Syllabus.

The instructions asked by appellant, which the court refused to give, were not based on the evidence, and were for that reason, if for no other, properly refused. The effect, if given, would have been to mislead the jury, and direct their attention to an immaterial issue. The law, so far as the principle sought to be announced in the instructions was at all applicable to the facts of the case, was stated in an instruction given for appellee, quite as liberally as appellant could ask to have it. In view of that instruction appellant was, in nowise, prejudiced by the refusal of the court to give those asked by himself.

It is so apparent from all the evidence that justice has been done, that we are unwilling to disturb the judgment of the circuit court, although some trivial errors might be detected in the record.

The judgment must be affirmed.

Judgment affirmed.

THE NATIONAL INSURANCE COMPANY

V.

THE CHAMBER OF COMMERCE.

1. APPEAL-appeal must be taken at same term the judgment, etc., is rendered. Where a judgment is rendered by default, and at the same term a motion is made to set aside the judgment and default, and allow a defense to be put in, which motion is continued to a succeeding term, at which it is overruled, and an appeal is then prayed and allowed, it will not bring in question the propriety of the judgment entered at the preceding term, but only the order overruling the motion.

2. JUDGMENT-vacating at a succeeding term. After the term has expired at which a judgment is rendered, the court has no power to vacate the same and allow a defense, even though a motion for the same was entered at the same term the judgment was entered, and continued over.

3. DEFAULT-assessment of damages by the court. Under sec. 40 of the Practice act of 1871-2, upon a default in an action at law, the court has

Statement of the case.

full power to assess the plaintiff's damages without a jury, unless a jury is demanded by one of the parties.

4. AMENDMENT—of sheriff”s return at succeeding term. The sheriff may amend his return of service upon the defendant by leave of the court after the term at which judgment or decree is rendered, upon notice to the party to be affected by it, and if the record shows that such other party is present in court at the time of granting such leave, this will dispense with the necessity of a notice.

5. DECLARATION—sufficiency of, not drawn in question on appeal from simple order refusing to vacate judgment. The sufficiency of a declaration to support a judgment by default, can only arise on an appeal or writ of error to the original judgment itself, and even then this must be assigned for error. It can not arise on an appeal from a supplemental order denying a motion to vacate the judgment and allow a defense to be put in, decided at a subsequent term.

APPEAL from the Superior Court of Cook county; the Hon. WILLIAM A. PORTER, Judge, presiding.

This was assumpsit, brought by appellee against appellant, to the October term, 1872, of the Superior Court of Cook county, based upon a policy of insurance by the latter to the former. Summons was issued September 25, 1872, to the sheriff of Cook county. The return of the sheriff shows service on the president of appellant September 26, 1872, by reading and delivering a copy thereof to him on that day, but does not say that he left a copy with the president. The record shows, however, that by leave of the court the return was amended, and the amended return is set out in full, showing the reading of the writ to the president, and the delivering and leaving with him a copy thereof, on the 26th day of September, 1872.

October 25, 1872, a declaration was filed, which was ten days before the first day of the November term. November 7, 1872, the defendant's default for want of appearance was entered, and on the 19th of same month plaintiff's damages were assessed by the court at $5218.67, and judgment rendered for that amount, with costs. On the 27th of same month and at the same term, the defendant filed its motion,

Opinion of the Court.

supported by affidavits, to set aside the default and judgment in the cause. No action was taken by the court upon the motion, except to continue it to the next term. On the 17th of January, 1873, at that same term, the motion of defendant to set aside the default and judgment taken and rendered at the previous November term of said court, was heard and overruled by the court, whereupon defendant prayed an appeal to this court, which was allowed upon condition that defendant file an appeal bond and bill of exceptions within twenty days, which was done. The bill of exceptions sets forth simply the motion to set aside the default and judgment, as above set forth, the affidavit in support thereof, the decision of the court overruling such motion, and defendant's exception thereto.

Mr. E. W. EVANS, for the appellant.

Messrs. HUTCHINSON & LUFF, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

We have given this case a careful consideration, and must rule against the appellant upon all the points made.

The errors assigned are

1. In entering the judgment at the term and for the amount, on the proof submitted to the court, without the intervention of a jury.

2. In overruling defendant's motion to vacate the judgment and set aside the default.

3. In allowing the sheriff to amend his return after defendant had made the want of due service a reason for setting aside the default.

4. In assessing the damages without legal proof before the court of the amount of damages.

5. The same as 4th.

It will be perceived that the first, third, fourth and fifth assignments of error question the propriety of the judgment

Opinion of the Court.

as originally entered. Counsel for appellant seems to treat this as an appeal from that judgment. In this he is clearly mistaken. Final judgment was rendered at the November term, 1872, of the court below. This appeal was not prayed for at that term, but at the subsequent January term, 1873. The 67th section of the Practice act (Pub. Laws 1871-2, p. 348,) in giving the right of appeal, contains this proviso: "Provided such appeals shall be prayed for and allowed at the term at which the judgment, decree or order was rendered." This appeal, therefore, brings before us for review merely the propriety of the court's ruling upon the motion to vacate the judgment and set aside the default.

It is true, that, if the court had assessed the damages without any evidence, or upon illegal or insufficient evidence, that would afford a material ground upon which to base a motion to have the inquisition set aside. But we are met here with the insuperable difficulty that, at the January term, when the motion of defendant was called up for argument, the court had no power to vacate the final judgment rendered at the previous November term. The 39th section of the Practice act, (Pub. L. 1871–2, p. 344,) is in harmony with the common law. "The court may, in its discretion, before final judgment, set aside any default, and may, during the term, set aside any judgment upon good and sufficient cause, upon affidavit, upon such terms and conditions as shall be deemed reasonable."

The law on this subject was settled by this court in Cook v. Wood et al. 24 Ill. 295. It was there decided that after the term at which final judgment was rendered had expired, the court had no discretion or authority, at a subsequent term, to set the judgment aside.

By the express provisions of the 40th section, page 344 of the act above referred to, the court had full authority to assess the damages without a jury, unless a jury was demanded by one of the parties to the suit. The language of the act is: "In all suits in courts of record, in this State, upon default,