delivered the opinion of the Court:
This ease was submitted at the same time with that of Garfield v. United States, No. 1941, [ante, 109], and Garfield v. United States, No. 1951 [post, 153], and all were argued together upon motions to dismiss the several appeals, and upon the merits. The motions to dismiss are overruled for reasons given at length in the opinion delivered in Garfield v. United States, No. 1941; and the general questions raised on the merits are also settled by the opinion in that case.
There is but one substantial difference between the facts in that case and this, which needs to be considered. It appears in this case that the depositions of Andrews and son, taken by *152the Commissioner of Pensions, without notice to relator, were used by him in making his recommendation to the Secretary, and by the latter in coming to his conclusion. The use of such testimony without the knowledge, or over the protest, of the relator, would'undoubtedly amount to a denial of a necessary element in a hearing that responds to the constitutional requirement of due process of law. But it appears that copies of these depositions were delivered to the relator by the Pension Commissioner, and that they were submitted by him in his statement and argument subsequently made before the Secretary pending the consideration of his case. As stated in the Secretary’s answer, the relator not only did not object to the consideration of this testimony, but also commented upon the same in his argument. This answer is admitted by the demurrer to be true; and it may be added that it is borne out by an inspection of the said statement and argument which was filed as an exhibit to the petition. There had been no meeting of relator and Andrews. Consequently, the entire transaction was contained in their coiTespondence. This correspondence had been stated or copied in relator’s answer to the charge, and showed all of the facts of the transaction. It is probable that relator’s failure to object to the consideration of the depositions was due to this fact. No matter what the reason may have been, he did not object to the testimony, and discussed it in his final statement of defense. If this were an appellate proceeding to review the decision of the Secretary in the premises, on the ground of the admission of incompetent testimony, the appellant would, under the conditions stated, be estopped by his own action to raise the question. We cannot, therefore, in a case where we have no such supervisory power, say that the taking and consideration of the testimony, under such circumstances, amounted to a denial of due process of law, and authorized the intervention of a court of law. The Secretary having jurisdiction of the case made in conformity with the law and the regulations governing the same, and having acted within that jurisdiction, the exercise of his judgment and discretion cannot be questioned by a court having no supervisory jurisdiction.
*153For the reasons here given and others to be found in the opinion in No. 1941, the order will be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.
A petition by the appellee for a rehearing was denied January 6, 1909.