delivered the opinion of the Court:

This cause and No. 2437 (First Nat. Bank of Dexter v. Fox, ante, p. 477) were tried together, this suit being upon another of the notes given Staples for the purchase price of the Yacht Idler.

A motion was also made in this case to strike out the bill of exceptions and dismiss the appeal. Sec. 4 of rule 5 of this court is more flagrantly violated in this case'than in No. 2437. The evidence of about forty witnesses is identically the same in both cases, but instead of referring in the record in this case to the evidence preserved in the bill of exceptions in the companion case, the whole mass of evidence, a large part of which is equally useless in both cases on appeal, is embraced in a separate bill of exceptions.

The motion to strike the hill of exceptions from the record is sustained.

On January 8, 1913, appellee moved to affirm judgment.

January 13, 1913, appellant moved to postpone action on motion to affirm.