Page:United States Reports, Volume 209.djvu/304

 OCTOBER TERM, 1907. Opinion of the Court, 09 U. . Thereafter the question came up again, and the record shows these facts: "The ComT: The defendant will be permitted to ameml the general denial by striking out those words (the words here- tofore referred to) by the payment of half of the coets of court to this date, except the witnesses of the plaintiff--the. fees; that is, provided, however, that if a continuance by reaoa of this amendment is taken by the plaintiff, the defendant  be taxed with all the costs, unless the court should continue it on account of some showing made by the plaintiff, then o course the costs occasioned by the amendment would follow. "Mr. KEATOIq: COuel for plaintiff here states that if it is permitted to show by testimony that the McCabe & Steen Construction Company were not building this road and not building the bridge, then the plaintiff will have to make a showing and ask for a continuance of the case in order to re- form the pleadings. "Mr.. MOSEL.Y: Well, we have not offered that testimony yet. "The Coun?: You gentlemen have heard my statement that if a continuance should be made necessary, then all the costs will follow. "Whereupon the defendant amends its answer by striking out certain words, the same being 'in manner and form as therein set forth,' which appeared between the word 'petition' and the word 'and' in the third line of first paragraph of said answer," It will be observed that counsel for the plaintiff stated that he had not yet offered testimony to show that the McCabe & Steen Construction Company was not building the road and the bridge, and the record shows that thereafter there was no testimony in any form offered to establish that fact. Now whatever might have been competent testimony under the answer as amended, it appears by the statement of counsel that no testimony respecting the matter had b,n offered, and the record shows that none was thereafter offered. It must

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