#### Joseph T. Delfosse, Appellee, v. Anna N. Kendall, Appellant.

Gen. No. 22,744.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed April 16, 1917.

Statement of the Case.

Action by Joseph T. Delfosse, plaintiff, against Anna N. Kendall, defendant, to recover on a promissory note for $1,575 signed by defendant, made payable to herself and by her indorsed. From a judgment for plaintiff for $1,737.49, on a directed verdict, defendant appeals.

*315Abstract of the Decision.

1. Bills and notes, § 371 * —when evidence of fraud properly excluded as not within defenses made in affidavits of merits. In an action on an assigned note to which the defendant filed an affidavit of merits that the note was without consideration and was transferred to plaintiff merely for collection and. to avoid a defense of fraud, and an amended affidavit of merits denying the execution, indorsement and delivery of the note, evidence that defendant signed the note by trickery and fraud by being led to believe it was a note for a less amount, held to be properly excluded as not within the defenses made in the affidavits of merits.

2. Bills and notes, § 260*—what defense is not available against bona fide purchaser before maturity. A defense to a note sued on by an assignee that it had been transferred in violation of an agreement made when it was signed that it would not be assigned, held to be unavailable in an action on the note brought by one who procured it for a valuable consideration before maturity and without notice of such defense.

3. Bills and notes, § 371*—when affidavit of merits is insufficient to warrant admission of evidence of fraud in procuring signature. An averment in an affidavit of merits that the defendant had not executed or indorsed the note sued on, held insufficient to warrant the admission of evidence that defendant had signed and indorsed the note as the result of fraudulent conduct on the part of the party procuring its execution.

4. Appeal and errob, § 1361*—what does not constitute abuse of discretion warranting reversal. Refusal of the court to permit the defendant during the course of trial to file an additional affidavit of merits, held under the circumstances not such abuse of judicial discretion as to warrant reversal.

5. New trial, § 102*—when affidavit as to discovery of new facts filed on motion to vacate judgment is insufficient. An affidavit of defendant’s counsel, filed on motion to vacate a judgment, that he *316had discovered new facts which if introduced on another trial would contradict certain statements of plaintiff, held to be insufficient to show why such facts were not introduced at the trial or before judgment, or to materially aid in determining plaintiff’s right to recover. 4

*315Samuel B. Hill and William Scott Stewart, for appellant.

George L. Schein, for appellee.

*

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

Mr. Justice Dever

delivered the opinion of the court.