#### James M. Swan, Defendant in Error, v. William K. Loofbourrow, Plaintiff in Error.

Gen. No. 6,147.

(Not to be reported in full.)

Error to the Circuit Court of Kendall county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed February 8, 1916.

Rehearing denied April 6, 1916. ■

Statement of the Case.

Action by James M. Swan, plaintiff, against William K. Loofbourrow, defendant, to recover upon two notes. After judgment by default for plaintiff and denial of a motion by defendant to set aside the default, defendant brings error.

*117Abstract of the Decision.

1. Judgment, § 145 * —when affidavit in support of motion to set aside default insufficient to show defense. An affidavit of meritorious defense in support of a motion to set aside a default in an action on two promissory notes which related to “this note,” without indicating which note was meant, and alleged that the note was given in compliance with a contract for the exchange of lands, but did not give the terms of the contract nor state with whom it was made, but stated that plaintiff did not comply with his part of the contract and that, because of his failure to do so, plaintiff had not received any consideration “for the above mentioned note,” and denied that he was indebted to plaintiff in any amount, but did not disclose what plaintiff was required to do by the contract nor that he in any respect failed to comply therewith, held to state a mere conclusion and to be insufficient to show a defense to either note.

2. Judgment, § 145*—when affidavit in support of motion to set aside default insufficiently discloses right of set-off. An affidavit of meritorious defense in support of a motion to set aside a default in an action on two promissory notes, which stated that plaintiff was indebted to affiant in a certain sum but which did not disclose how the indebtedness arose nor what the facts were, held to state a legal conclusion and to be insufficient to show the right of set-off.

3. Judgment, § 153*—when default not vacated to let in plea of set-off. As a general rule a default will not be vacated on affidavits merely to let in a plea of set-off, as the defendant has a perfect remedy by bringing suit, against the plaintiff on the set-off.

4. Appeal and ebbob, § 413*—when question as to insufficiency of sheriffs return upon summons not considered on appeal. A defendant who enters his appearance to make a motion to set aside a. judgment by default cannot raise* for the first time on appeal the question as. to a.defect in the return of the sheriff upon the summons.

Benjamin F. Herrington, for plaintiff in error.

C. A. Darnell, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same ' topic and section number.

Mr. Presiding Justice Dibell

delivered the opinion of the court.