Fitzpatrick, Mr. Tarsney's partner. A temporary injunction restraining the sale of the bonds was issued. Mr. Applebaum filed an answer and moved to dissolve the injunction. The hearing on this motion was delayed for some time, and the case was set down for trial on the merits. The trial was had before Judge Hosmer, who, after listening to the testimony, ordered the injunction dissolved, stating at the same time that the same should not have been issued in the first place. Mr. Sullivan testified on that trial that he commenced the suit primarily to gain time, and also that his arrangement with regard to the 10 per cent. commission was with Mitshkun, and that he had offered to pay Mitshkun this sum if he would procure the loan. The injunction was dissolved on September 26, 1906. Sullivan then went to Saginaw and employed James H. Davitt to file a bill of complaint in the Saginaw circuit court in the name of Father Reiss (who held a small amount of the Detroit, Flint & Saginaw Railroad bonds), which bill set up substantially the same matters which had been litigated and decided in the suit before Judge Hosmer. He had Mr. Tarsney and himself made defendants in this last suit along with Mr. Applebaum. All the information necessary to the drafting of the bill was furnished by Sullivan to Mr. Davitt. The question sought to be litigated was the same identically as had been decided by Judge Hosmer, to wit, the charging of usury and including thereof in the note of $69,125.95.

"(13) Sullivan about the same time made an application to the Supreme Court for an order staying the sale of the bonds held by Applebaum, during the pendency of an appeal to that court, and also that he be allowed to file a bond on appeal in a much smaller sum than that ordered by Judge Hosmer. In his petition to the Supreme Court which was drafted by Mr. Fitzpatrick and Mr. Moore, he swore that Mr. Tarsney was a necessary witness in his behalf; that he, Tarsney, had been away from Detroit during the trial of the case in the Wayne circuit court, and that consequently his testimony could not be taken during the trial, and that Judge Hosmer had indicated that on his return his testimony might be given and considered a part of the record.

"(14) Mr. Tarsney was sworn as a witness in the trial of the foreclosure case of the Detroit Trust Company v. The Detroit, Flint & Saginaw Railway (which will be

hereafter referred to) and testified that he never had questioned the $69,125.95 note; that he negotiated the loan through Mr. Mitshkun; that he did not know what Sullivan's motive was in starting the suit against Applebaum; that he knew the bonds could be sold under the pledge.

"(15) I find from the proofs that the suit commenced by Sullivan in the Wayne circuit court, according to his own testimony, was for the purpose of gaining time and was an imposition on that court; that the petition filed in the Supreme Court did not truthfully state the facts concerning that litigation, and that the statement contained therein to the effect that Sullivan desired Mr. Tarsney's testimony was a misrepresentation of the fact, and a fraud upon the court; that the commencement of the suit in Saginaw county through the use of Father Reiss' name as complainant, and the naming of himself and Mr. Tarsney as defendants therein, when he knew that the question involved had just been adversely decided in the Wayne circuit court, constituted a fraud upon the court.

"(16) On November 24, 1905, Timothy E. Tarsney and Thomas G. Sullivan gave their note to the Home Savings Bank of Detroit for $4,000, payable in four months. On the same day they executed another note to this bank for $5,287.57, payable in four months, and on March 21, 1906, they gave their note to the same bank for $7,691.62, payable in 60 days. These notes bore 6 per cent. interest and were secured by 67 bonds of the Detroit, Flint & Saginaw Railway Company, 960 shares of Yarnell Gold Cure stock, and also all equity of Tarsney and Sullivan in and to bonds in possession of Isaac Applebaum and also by an unrecorded third mortgage on some land owned by T. G. Sullivan.

"(17) The proofs established that during the trial of the case of Sullivan v. Applebaum in the Wayne circuit court, and before its decision, Mr. Applebaum negotiated with the Home Savings Bank for the purpose of buying these notes; that on September 28, 1906, he gave said bank a check for $500 to bind the bargain, he having agreed to pay for same the amount of the principal and interest due thereon. It was conclusively proven that he did this entirely for his own protection and because Mr. Sullivan was disputing his right to sell the bonds that were up as collateral to the $69,125.95 note.

"(18) The proofs show that on or about October 1, 1906, said Thos. G. Sullivan applied to Mr. Applebaum

and his attorneys for an extension of time, and wanting to know if there was not some agreement that Mr. Applebaum would make which would give him time to work on a settlement of the company's affairs. He was told flatly there was not; that Mr. Applebaum intended to reduce these bonds to his ownership and possession. Later, and in the evening of October 1, 1906, Mr. Tarsney and Mr. Sullivan stated that they would transfer whatever equity they had in the bonds to Mr. Applebaum; Mr. Tarsney saying that he did not want them sold at public auction because of personal reasons.

"(19) An assignment of the $147,000 bonds which were up as collateral to the note of $69,125.95 was then made by Tarsney and Sullivan to Applebaum. This assignment was absolute in form. The proofs in this case show clearly and conclusively that before Mr. Applebaum took this assignment both he and his attorneys told Mr. Tarsney and Mr. Sullivan that, if either of them ever intended to claim any interest of any kind in and to the bonds so assigned, Mr. Applebaum would not take the assignment, but would go ahead and sell at public auction. Both Tarsney and Sullivan said they understood this perfectly, and that the assignment transferred all interest they or either of them had in the bonds.

"(20) I find as a matter of fact, and the proof is overwhelming on this question, that it was then and there expressly agreed and understood on the part of Tarsney and Sullivan with Mr. Applebaum that in the taking of the assignment of these bonds that the same was unconditional, and that Mr. Applebaum assumed no legal, moral, or equitable obligation to either Mr. Tarsney or Mr. Sullivan with reference thereto. I find as a matter of fact that the testimony of said Sullivan, wherein he stated that Mr. Henderson (one of Applebaum's attorneys) stated at said time that Mr. Applebaum would have to be a trustee for Tarsney and Sullivan, is not established by the proofs.

"(21) I also find as a fact that the allegation in the bill of complaint to the effect that Mr. Applebaum agreed to purchase the Home Savings Bank bonds on October 1, 1906, is not in accordance with the facts. The uncontradicted proofs show that Mr. Applebaum had arranged for their purchase before the dismissal of the bill of complaint and the dissolution of the injunction by Judge Hosmer in the Sullivan v. Applebaum case on September 26, 1906. "(22) I also find as a fact that said Sullivan's testimony

to the effect that Mr. Applebaum agreed on October 1, 1906, to build and complete the road between Saginaw and Flint, and to turn over to Tarsney and Sullivan anything he had left after so doing is unqualifiedly false and unsupported by any other testimony in the case, or by any of the circumstances surrounding the transaction, and is in direct conflict with his own testimony given in the suit of the Detroit Trust Company v. Detroit, Flint & Saginaw Railway Company, wherein he repeatedly stated that Mr. Applebaum would make no agreement with him or Mr. Tarsney and that he assumed no liability of any kind whatever either toward Tarsney and Sullivan, or any other person.

"(23) The testimony also shows, and I find the fact to be, that the purchase by Mr. Applebaum of the eight bonds held by James B. Peter of Saginaw had no connection whatever with the assignment of October 1, 1906, of the $147,000 worth of bonds made by Tarsney and Sullivan to Applebaum; that it was a separate transaction entirely.

"(24) At the time Mr. Peter assigned these bonds to Mr. Applebaum complainant Sullivan gave Mr. Applebaum a letter in which he stated that he made no claims upon the Peter bonds, and that Mr. Applebaum took the same free from any equity or other claim on his part. His explanation of this letter on the stand as shown by the testimony does not appeal to me.

"(25) At the time the $147,000 worth of bonds were assigned to Mr. Applebaum under the circumstances herein stated, there was some talk had concerning the capital stock of the corporation. It was stated to Mr. Tarsney and Mr. Sullivan by Mr. Applebaum's attorneys that the other stockholders, and particularly Nesters, claimed that Sullivan and Tarsney were responsible for the insolvency of the corporation; that the Nesters and other interests represented by them were willing that the bondholders and creditors should have the property, and that they would wipe out or cancel their stock if Tarsney and Sullivan would do the same, and that they (the Nesters) had proposed to turn their stock over to Mr. Applebaum for these purposes if Tarsney and Sullivan would do likewise. Both Tarsney and Sullivan said they would do this, and I find that within a few days thereafter assignments of the stock were made by practically all the stockholders to Applebaum.

"(26) The facts as developed by the testimony show conclusively that these assignments were made by Tarsney, Sullivan, and the Nesters for the reason that they desired this stock, which they had paid nothing for, gotten out of the way so that if the road could be sold or new capital interested, there would be no outstanding stock which could be used for the purpose of holding up or preventing its consummation. I find as a fact that Mr. Applebaum and his attorneys stated clearly and unequivocally to all these stockholders, that in the taking or holding of the stock he would assume no legal, equitable or moral obligation to them or to any other persons or to the company itself; that he wanted his money, and that if these parties and other bondholders and creditors would co-operate with him he would attempt to bring order out of chaos, and see if there was not some way that the creditors and bondholders could get at least a part of their money back; that whatever he did in the matter must be left to his own discretion and judgment, and that in no event would he assume any liability or obligation of any kind or nature to any one. The proofs are conclusive that complainants fully understood the matter in this way-as did all other stockholders.

"(27) I further find that while Mr. Applebaum was under no obligation so to do, yet he did undertake to get the bondholders and creditors to join and assist in untangling the company's affairs and to this end that he and his attorneys spent considerable time in attempting to obtain their co-operation; that he was unsuccessful because of no fault of his own. I find as a fact that all efforts made by him were met in a hostile and antagonistic spirit by the bondholders and creditors, and that nothing in consequence thereof along the line of effecting a settlement of the company's affairs could be accomplished; that said Applebaum then determined to ask the Detroit Trust Company, trustee, to foreclose the mortgage; that he made known his determination to said Sullivan, who said he was adverse to a foreclosure. Mr. Applebaum's attorneys informed Sullivan that he could join in the request or not as he chose. Sullivan then did join in requesting the trust company to foreclose the mortgage. At that time Sullivan was the owner of but $3,500 of the company's bonds. It is alleged in paragraph 10 of the bill of complaint that $3,000 of the $3,500 worth of bonds so owned by Sullivan were up as collateral to an