
    MINTER TRUITT v. THE UNITED STATES ET AL.
    [Indian Depredation, 1886.
    Decided January 7, 1895.]
    
      On the claimants Motion.
    
    The Attorney-General seeks to examine the claimant in an Indian depredation case under the Revised Statutes, section 1080, and procures an order. The claimant moves to vacate and set it aside.
    I.The provision of the Revised Statutes, section 1080, which authorizes the court to order any claimant to he examined on oath at the instance of the attorney appearing' in behalf of the United States, and provides that such deposition “may, at the discretion of the attorney or solicitor of the United States appearing in the ease, he read and used as evidence on the trial," is not repealed by the Indian Depredation Act, 1S91 (26 Stat. L., p. 851), and is applicable to oases arising under it.
    II.The right of the Government to examine a claimant before trial and withhold or use his deposition, is a statutory prerogative which is not taken away by a subsequent statute except by special and particular words.
    III.The order may be granted on an ex parte application, it being within the discretion of the court to grant or refuse it.
    
      IV. No special ground for the application need be set fortli by the Attorney-General. It is sufficient that the application satisfy the court that the interests of justice and the proper defense of the Government will be furthered by the examination of the party. The history of the legislation relating to witnesses in suits against the United States and the examination of claimants examined and set forth.
    
      The Reporters’ statement of the case:
    The attorneys for the United States first procured an order for the examination for the claimant. This order the claimant’s attorneys moved to vacate and set aside. The motion was sent to the Law Calendar and fully argued upon the right of the Government to the order first granted.
    
      Mr. Assistant Attorney-General Howry for the motion.
    No reason can be conceived why the provisions of section 1080 should be omitted in the Indian depredation cases. Of all the cases within the jurisdiction of the court there are none in which the provisions of section 1080 are more necessary for the ends of justice. Cases brought under the act of March 3, 1891, are not founded on any liability of the Government growing out of the acts of public officers as to which the facts were originally and might still be within their knowledge, but are instituted for the recovery of compensation under special statutory provisions, assuming liability for damages committed by Indians remote from the place of trial and of which those representing the Government can have no possible information.
    The Act of June 25,1868 (sec. 1080, Eev. Stat.), was designed for protection of the Government, and is a statutory bill of discovery. The statute is in fact a substitute for the power in chancery to compel the claimant to make discovery in order that the Government may properly defend. The disadvantages to which the United States are subjected and the policy of the statute to obviate some of these disadvantages is aptly explained by Mr. Justice Bradley in the case of JSx parte Russell (13 Wall, 668).
    There is no . inconsistency with the privilege allowed the Government to examine the claimant in advance as a precautionary measure with the general competency of the claimant as a witness for the Government. The statute had its origin in the necessities of the case.
    
      It is contended that tbe act of March 3, 1891, under wbicb this suit is brought, regulated the manner of taking testimony which excluded, by implication, the right to proceed under section 1080. There is nothing to sustain this contention. The law does not favor the repeal of a statute by implication. Section 1080 is in full force upon the statute book for use by the Government in all proper cases, of which the court shall judge.
    
      Mr. William B. King opposed.
    1. The history of the legislation in regard to the admissibility of the evidence of claimants in this court is set forth in McCauley v. The United States (11 C. Ols. R., 577). When the Court of Claims was created, February 24,1855 (10 Stat. L., 612), and its power increased, March 3,1863 (12 Stat. L., 765), the common law rule that parties could not appear as witnesses was in force in courts of the United States. (Stein v. Bowman, 13 Peters, 219; Smyth v. Strader, 4 How., 417.)
    By section 8 of the latter act provision was made as now appears in Revised Statutes, section 1080. The section, as originally passed, was therefore the conferring of a right not allowed at common law by making an exception to the rule that a party might appear as a witness. It was intended to form a part of a system especially applicable to the Court of Claims, wherein the ordinary rule of exclusion should prevail, but permitting the Government, if it desired, to secure the testimony of a party.
    ■ The law continued in this way until by the Aet of March 2, 1867 (14 Stat. L., 457), the right was given to claimants to testify. This was almost immediately taken away by the Act of June 25,1868 (15 Stat. L., 75), which provides for the exclusion of testimony of claimants in the language of Revised Statutes, section 1069, followed by a proviso giving the United States a right to examine a witness in the manner now appearing in Revised Statutes, section 1080. This again reestablished the old system which had prevailed from 1863 to 1867.
    It was a complete system in itself, preserving the Government from the evil, as then thought, of a party testifying, but giving it a right to obtain his testimony when needed.
    That system continued in force until the Act of March 3, 1887, section 8 (1 Supp. Rev. Stat., 561). This made parties competent and gave an express righb to tbe Government to examine a party as a witness.
    Had tbe act stopped here, section 1080 would have been repealed. This formed a part of a system founded on tbe exclusion of parties. When parties were declared competent, not only in tbeir own bebalf, but as witnesses for the Government, tbe incident to tbe system — tbeir examination under section 1080 — fell with tbe system. Tbe general competence of a party as a witness for tbe Government is possible to coexist with the special privilege under section 1080, but it is inconsistent with it. For this reason, when Congress desired to preserve tbe privilege of section 1080, it was npcessary to do so expressly.
    When tbe Indian depredation act of 1891 was passed, provision (section 5, 1 Supp. Rev. Stat., 915) was inserted giving parties tbe right to testify. It is notable that tbe language of section 5 bearing on this subject is directly taken from tbe act of 1887, omitting tbe first line. That this is no simple coincidence of language is very plain, from tbe fact that by omitting . the first line, which refers to “ any suit brought” under tbe act, no antecedent appears in tbe sentence for tbe word “said” contained in tbe phrase “interested in said suit.” No one would have written that sentence independently in that way. It is an incorrect sentence as it stands. Its presence in tbe act of 1891 is explained only by discovering that it is taken from tbe act of 1887. That tbe act of 1887 was before tbe framer of tbe act of 1891 is very apparent also, by a comparison of section 9 of tbe act of 1887 and section 10 of tbe act of 1891.
    But tbe act of 1891 entirely omits any saving clause as to section 1080. A right is given for tbe claimant to testify in bis own bebalf, or to be called on tbe part of tlie Government, but when the framer of tbe act of 1891 bad before him tbe act of 1887 and inserted these provisions from it be omitted to insert tbe provision allowing tbe testimony to be taken under section 1080. His intention is therefore plain that tbe preservation of a right under section 1080 by tbe act of 1887 should not extend to cases under tbe act of 1891. It is a clear case for tbe application of tbe principle expressio unius est exclusio alterius. Had it been desired by Congress that this right should have been preserved, tbe same course to preserve it would bave been followed as was adopted in the very section which Congress had before it in framing this provision of the act of 1891.
    It ought therefore to be held that section 1080 is not in force in regard to cases under the act of 1891.
    Why Congress made this provision is not very clear. It is enough that the intention of the Legislature is clearly indicated by what it omitted to do. The probable reason of the omission is that Congress saw that section 1080 might become very burdensome on the claimants. The only additional right which the Government has under section 1080 is its election to read or hot to read the deposition as evidence in the trial. That is undoubtedly a very severe provision, and one which might under ordinary circumstances be characterized as essentially unfair as between the parties. Congress did not desire to extend any further such a provision. The legislation then before Congress was in regard to Indian depredations. It would not have been proper to incorporate in this statute a complete repeal of section 1080 in regard to all cases. Its effect was therefore limited by omitting its application in cases under this statute.
    2. But if it is decided by the court that this section is not repealed, the motion in this case ought not to be granted, because no special ground has been shown for granting it. Section 1080 does not give an absolute right to the United States to examine the claimants under its provisions, but merely authorizes the court to permit such examination by a special order in each case.
    In the case of the Atchison, Topelca and Santa Fe Railroad (15 C. Cls. R., p. 1) the court declared that this was a matter entirely within its discretion, and that it would use the discretion to prevent any abuse of the process. The power is one which has been seldom exercised, and we think ourselves warranted in saying that it has never been exercised without special cause shown.
    The defendants have now moved in probably as many as a hundred Indian depredation claims for leave to examine the claimants without assigning any reason therefor. These motions are made in cases in which no proof has been taken by the claimants, not yet ready for proof to be taken by the defendants, and without any knowledge of whether the claimant proposes to present bimself as a witness in Ms own bebalf or not.
    The ordinary rule in courts is that tbe defendant lias no right to begin to take Ms proof until the claimant’s proof is closed. That rule is applicable to this court, although with other rules of practice it has been considerably relaxed. Yet, when the Government desires to do contrary to judicial procedure what it has no right to do except by the discretion of the court, it ought to give some strong reason why so unusual a privilege should be granted.
    If the claimant offers himself as a witness at the offset of the case there is no reason why the Government should examine him under section 1080. They ought to exhaust all of his knowledge upon cross-examination. If they can show subsequently that there are other facts upon which they could not have examined him when called in his own behalf, a future case may be made for examination under this section. If the claimant is examined by the Government before offering himself in his own behalf it will not relieve him from the necessity of testifying in his own. behalf, because if he did not do so he would be subject to the exclusion of his testimony, at the election of the Government. If he has already been examined in his own behalf, an examination under this section should not be permitted without special cause shown.
    In the case already cited (15 C. Gis. R., p. 5) it is said that the discretion of the court under section 1080 would be exercised “just as the court of equity would exercise its discretion in the case of an application for a ñshing bill of discovery.” The meaning of a “ fishing bill ” appears in section 325 of Story’s Equity Pleading, cited. The reading of this shows that the object of a fishing bill and the object of the examination of claimants now asked for are substantially the. same.
   Richardson, Oh. J.,

delivered the opinion of the court:

A motion is made under Revised Statutes, section 1080, by the attorney on behalf of the United States, for an order directing the claimant to appear, upon reasonable notice, before a commissioner of the court, and be examined on oath touching matters pertaining to the claim set up in this case.

“Sec. 1080. The court may, at the instance of the attorney or solicitor appearing in behalf of the United States, make an order in any case pending therein, directing any claimant in such case to appear, upon reasonable notice, before any commissioner of the court, and be examined on oath touching any or all matters pertaining to said claim.
“ Such examination shall be reduced to writing by the said commissioner, and be returned to and filed in the court; and may, at the discretion of the attorney or solicitor of the United States appearing in the case, be read and used as evidence on the trial thereof.
“And if any claimant, after such order is made, and due and reasonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge material to the issue, the court may, in its discretion, order that the said cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises.”

The claimant’s attorney resists the motion for the following reasons set out in his brief:

“First. That section 1080 has been repealed so far as it applies to Indian depredation claims by the act of March 3, 1891. (1 Supp. B.. S., 2d ed., 915.)
“Second. That even if still in force the motion is not one grantable as of course, but one which should be allowed only under special conditions shown by the Attorney-General.”

An able argument has been made by the claimant’s attorney to show on two grounds that the section has been repealed indirectly and incidentally, there being no express repeal by subsequent statutes.

The first ground is that the policy of Congress in relation to witnesses out of which it is claimed the provisions of the section arose, and to which it is an incident, has been changed, that it is not only no longer a necessity, but is inconsistent with the present law as to the admissibility of parties to testify, and that the' section is therefore superseded and practically repealed.

When the provision was first enacted in 1863 (12 Stat. L., 766), the common law prevailed that parties could not be witnesses in their own favor. It is argued in the brief for the claimant that as the section conferred a right not allowed at common law, “it was intended to form a part of a system especially applicable to the Court of Claims, wherein the ordinary rule of exclusion should prevail, but permitting the Government, if it desired, to secure the testimony of a party.” The brief then proceeds:

“It was a complete system in itself, preserving the Government from the evil, as then thought, of a party testifying, but giving it a right to obtain his testimony when needed.
“That system continued in force until the Act of March 3, 1887, section 8 (1 Supp. Rev. Stat., 561). This made parties competent and gave an express right to the Government to examine a party as a witness.
“Had the act stopped here, section 1080 would have been repealed. This formed a part of a system founded on the exclusion of parties. When parties were declared competent not only in their own behalf but as witnesses for the Government the incident to the system — their examination under section 1080 — fell with the system.
“The general competence of a party as a witness for the Government is possible to coexist with the special privilege, under section 1080, but it is inconsistent with it.”

In our opinion the provision was made principally for an entirely different and much more important purpose than that assigned by the learned attorney for the claimant. It first appeared in an act passed by Congress when it entered upon a policy never before tried, and which. in the beginning was experimental, of allowing public creditors to maintain actions and recover judgment against the United States. (12 Stat. L., 765.)

It was the only provision in the act in relation to witnesses, and therefore must be held to have reference to the general policy of that act,-rather than to the rule of the common law excluding parties as ivitnesses in their own behalf.

It was undoubtedly foreseen that the United States, being a body politic and acting only through public officers, would be able to defend suits commenced by creditors all over the country at great disadvantage and embarrassment. The claimants, having direct and personal interests at stake, and knowing all the facts and the witnesses, would be earnest, active, and vigilant, while the officers of the Government might frequently be obliged to grope their way in the dark, without knowledge of the facts and the witnesses, and with no personal client to assist them.

To compensate, to some extent, for these disadvantages and as a protection against fraud, as far as practicable, Congress-made this provision enabling attorneys charged with the duties, of defending tbe United States to learn something about the facts relied upon otherwise than by the ordinary method of examining the pleadings and waiting till the claimants had selected their witnesses and taken their depositions. Such depositions would be little more than ex parte, as the defendant’s attorneys could not be fully informed as to the facts in advance, andmustbe without knowledge sufficient for a searching cross-examination. Nor could the latter, in many cases, even know Avho were witnesses to the transactions.

The course of legislation on the subject is as follows:

By the act of July 2, 1861 (13 Stat. L., 351), Congress first legislated on the subject of witnesses, and provided that “in courts of the United States there shall be no exclusion of any witness * * * in civil actions because he is a party to or interested in the issue tried.” By the Act of March 2, 1867 (14 Stat. L., 457), this provision was to be construed to embrace all suits to which the United States was a party in the Court of Claims, this court having construed it otherwise. (Macauley’s Case, 11 C. Cls. R., 577.)

By Act of June 25, 1868 (15 Stat. L., 75), parties were again excluded from testifying in their own behalf in the Court of Claims, with a proviso that they might still be examined under the provisions of what is now Revised Statutes, section 1080.

So by the Act of March 3, 1887, chapter 359 (1 Supp., R. S., 2d ed., 559), parties were made competent witnesses with a repeal of Bevised Statutes, section 1079, by which they had been excluded, and this section, 1080, was expressly made applicable to all cases under that act.

Much stress is laid upon the fact that while Congress in providing for the admissibility of parties as witnesses in the acts of 1808 and 1887, they expressly saved the provisions of this section, yet in the Indian depredation act of March 3, 1891, chapter 538, section 5, it made parties competent without any reference to that section. From this it is argued that when Congress desires to preserve the privilege of section 1080, it is necessary to do so expressly.

The claimant’s brief admits that the general competency of a party as a witness for the Government is possible to coexist with the special privilege under this section, but alleges that it is inconsistent with it.

In tbis last conclusion we can not concur. The provisions of the section in question are in no way inconsistent with the other statutes in relation to the admissibility of witnesses. They originated from an independent necessity, as we have shown. They are granted, in the nature of a prerogative, in consideration of the peculiar privilege allowed to public creditors, of instituting suits against the Government, and of the manifold embarrassments it is under thereby.

This court held in Jones and Brown's Case (1 C. Cls. R., 383) that “An act of Congress does not take away a prerogative of the Government, except by special and particular words,” and while the decision in that case ivas with special reference to common-law prerogatives, we think it applies with equal force to privileges granted by statute.

Holding, as we do, that the saving clauses were entirely unnecessary in the acts of 1868 and 1887, they may be attributed to a superabundance of caution to prevent the question ever being raised by ingenious attorneys, and its omission from the act of 1891 was either for that cause or from mere inadvertence. Ho reason can be conceived why the provisions should not apply to Indian depredation cases.

Besides the embarrassments to which the attorneys for the defendants are subject in other cases, there are many and very great additional ones in cases under that act.

These latter are not founded on any liability of the Government growing out of acts of public officers as to which the facts were originally and might still be within their knowledge, but are instituted for the recovery of compensation under special statute provisions assuming liability for damages committed by Indians on the borders of civilization all along the line from Texas to Oregon, hundreds and thousands of miles from Washington, where the officers of the Department of Justice, charged with the duty of defending the United States in a great number of cases thrown upon them all at once, are required by law to be located, and of the facts of which, in the first instance, no public officer ever had any cognizance. Many of the depredations, probably one-half, were committed from twenty to forty years ago, and tbe claimants are granted the extraordinary privilege, not usually accorded to other creditors of the Government, of a waiver of all questions of limitations as to the time and manner of presenting their claims, except the three-year limitation for bringing actions in this court, and that upon cases originating before July 1,1865, not already presented.

It must be assumed that after this lapse of time and under the peculiar circumstances the claimants alone know the living witnesses, while in ordinary suits between individuals of recent origin the witnesses are supposed to be known to both parties alike. The difficulties the defendants are subjected to in ascertaining whom they might or should call for the defense are almost insurmountable, in addition to the great expense attending the investigation.

The disadvantage to which the United States are subjected in the defense of suits is well described by Mr. Justice Bradley in the case of Ex parte Russell (13 Wall., 668).

In commenting upon the act of June 25, 1868, now Bevised Statutes, section 1088, which provides that “The Court of Claims, at any time while any claim is pending before it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion on behalf of the United States, grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States,’7 the learned justice says:

“ The policy of this act was undoubtedly dictated by the fact that the Government agents are at a great disadvantage in defending suits in the Court of Claims on account of their personal ignorance of the facts, and of the witnesses and evidence necessary to rebut the petitioners’ case; for all which they have to depend on distant and uninterested parties, or parties whose sympathies and, perhaps, whose interests are with the claimants, whilst the claimants have had years to prepare and get up their cases and to select the most favorable proofs to sustain them. From these causes, no doubt, the Government is often greatly defrauded, and claims are proved and adjudged against it which have really no. just grounds or which have long since been settled and paid.”

The claimant’s attorney still further urges in his brief that, “if it is decided by the court that this section is not repealed, the motion in this case ought not to be granted, because no special ground has been shown for granting it. Section 1080 does not give an absolute right to the United States to examine the claimants under its provisions, but merely authorizes the court to permit such examination by a special order in the case.” It has heretofore been held that it is entirely within the discretion of the court to grant or refuse a motion by the defendants under this section. (Atchison R. R. Co., 15 C. Cls. R., 10.)

The court is of opinion that where a statute authorizes a thing to be done in the discretion of the court on motion of either party, the adverse party has no absolute light to be heard in the first instance. If the court should see any reason why he should be heard, the motion would be ordered to the calendar for argument, or after being allowed, such party might make a motion to set aside the allowance, and on that he would have a hearing in open court in a proper case. There are rules on the subject of motions by which it is provided that they will be ordered to the calendar when the court desires to hear argument thereon (rule 33 and last paragraph of rule 73). Nor do we think it is necessary that the motion under this section should set out any special reasons. The court is presumed to be familiar enough with the general class of business to which the motion relates to know whether it should be granted, and if reasons are thought necessary they may be required before the motion is acted upon.

The court might refuse to grant the motion if there should appear any special circumstances to indicate that it was made for ulterior purposes or even that it was in order to delay the trial of the case, as for instance, if the claimant had already been examined and the defendants were present by attorney, and he had been fully cross-examined, the motion might notbe allowed without some reason for it being set out and the adverse party notified with an opportunity to be heard. But nothing of that kind appears in this case. There is no indication that the motion is made for the purpose of delay. The claimant has not been examined in his own behalf, and the defendants have a right to his testimony in order to gain some definite knowledge of the facts and circumstances relied upon and the names and residence of witnesses to the transaction before entering upon the preparation of the defense, and without waiting and delaying until the claimant should elect to present himself or not for examination.

We consider tbe provisions of tbe section admirably adapted for tbe advancement of tbe preparation of cases, for tbe furtherance of justice, and for tbe expediting of tbe trial and disposition of cases equally advantageous to both parties.

We think tbe motion was rightly allowed, and its allowance must stand.  