Mr. Merrick. If your Honor please, there is no evidence whatever as to whether S. W. Dorsey lost money on those routes, and the statement of counsel made in the opening, I respectfully submit, cannot be used as evidence by the counsel in the case.
The Court. Of course it is impossible for me to say after so long a time spent in receiving evidence what evidence has been given on a disputed question. I cannot say from recollection what evidence has been given on this subject, but I understand the remarks now made are not made upon evidence in the case, but in reply to remarks made in the opening in the case.
Mr. Ingersoll. Partially so.
Mr. Merrick. The opening by their counsel.
The Court. By their counsel.
Mr. Merrick. By their counsel, Mr. McSweeney.
Mr. Ingersoll. Let me just state it, and the Court will understand it perfectly. Mr. McSweeney, in his opening, said that these routes had been turned over to James W. Bosler; that he received the money and paid it out, and that S. W. Dorsey on these very routes had not made money, but lost money. Very well. But that statement was simply a statement. It was never proved afterwards. The Government said to us, "Why did you not bring James W. Bosler to prove that?"
The Court. Where did they say that?
Mr. Ingersoll. They said it in their speeches. Mr. Merrick said it.
Mr. Merrick. Not to prove as to the money.