#### ARNOLD ABRAHAM KULB v. THE UNITED STATES.

No. 12295

January 15, 1883.

*Motion to strike out deposition.*

The claimant moves to strike from the record the deposition of a witness who is not a party to the action, taken ky the defendants in the ordinary way, and not under the provisious of Revised Statutes, § 1080.

Held :

Upon the authority *of Bradley’s Case*(104 U. S. R., 442), affirming the decision of this court, the deposition of a witness who is not a party to the action, although interested therein, may he taken on the part of the United States, to *defeat a elaimh*

The deposition of a person interested in the claim but not a party to the suit thereon having been taken under Revised Statutes, § 1079, on behalf of the United States, to defeat the claim, the claimant moves to strike the deposition from the records, as not competent evidence under that section.

*Mr. James Ooleman*against the motion:

The question involved in the motion is settled by the decision in *Bradley’s Oase*(104 U. S. R., 442), affirming the judgment of the Court of Claims.

*Mr. If. B. Paine*for the motion:

In the decision in Bradley’s Case, the Supreme Court seems to have overlooked the last clause of the section providing that uno testimony given by such claimant or person [interested] shall be used except as provided in the next section.”

The witness’s deposition in order to be used should have been taken under the special provisions of section 1080 of the Revised Statutes.

OPINION.

Drake, Ch. J.,

delivered the opinion of the court:

' The claimant sues on a gold certificate for $5,000, issued by the Treasury of the United States, payable to the order of E. H. Birdsall, which he alleges that he bought in London, Eng*41land, in October, 1879, with Birdsall’s indorsement thereon *in Manic.*

The defendants toot the deposition of Burr S. Craft, to prove that in December, 1873, he owned and had in his possession the said certificate; upon which was then indorsed Birdsall’s name, under the words “Pay to the order of Burr S. Craft”; and that the certificate, with that indorsement on it, was stolen from him.

The deponent Craft then stands in the attitude of a witness directly interested in the title to the certificate. Under section 1079 of the Revised Statutes his testimony could not be used in *supporting*the claimant’s action; but it is taken with a view to *defeat*that action; which Craft is interested in doing. For that reason the claimant moves to suppress his deposition; relying, in support of his motion, solely on the words, at the close of that section, which we *italicize.*The section is as follows:

> Sec. 1079. No claimant, nor any person from or through, whom any such claimant derives his alleged title, claim, or right against the United States, nor any person interested in any such title, claim, or right, shall- he a competent witness in the Court of Claims in supporting the same, *and no testimony given hy such claimant or person shall he used except as provided in the next section.*

We consider this point settled by the Supreme Court of the United States in *Bradley*v. *United States*(104 U. S. R., 442), which went from this court, and in which we had admitted the evidence of a witness on behalf of the Government, who was interested in defeating the claimant’s action. That court said:

> We agree with the court below that this [section] does not prevent the United States from using as a witness to defeat the claim one whose interest is adverse to the claimant, and that, too, when a judgment in favor of the United States may have the effect of establishing the right of the witness to the same claim.

To avoid the effect of this the claimant urges that the Supreme Court does not seem to have considered the closing words of section 1079, and that therefore this court should not regard that decision as final and conclusive.

We have no inclination to assume that that court, when called on to interpret a statutory section of eight lines, constituting a single sentence, considered only six of the lines, and gave no attention to the remaining two. Every presumption is against such an assumption, and in favor of that court’s having carefully noticed and weighed every word of the section. *42If, in fact, it did omit to notice those two lines, and so made a decision which it would not have made if it had noticed them, it is for that court to say so, when it has opportunit5r, and not for us to assume the fact. We are bound to take its decision as rendered, and to follow it in our action. If the claimant should desire the Supreme Court to reconsider that ruling, he may do so in connection with this motion, if a-final judgment should be rendered against him, and he should appeal therefrom.

The motion to suppress the deposition of Burr S. Craft is overruled.