§ 454. New trials. "When a judgment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common law or chancery, in suits between individuals, would furnish sufficient ground for granting a new trial."1

"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; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law." 2

"A new trial will not be granted where, upon the whole case, justice has been done between the parties and the judg ment is substantially right, although there may have been some mistakes committed at the trial. In cases transmitted to the court by Congress, or a committee thereof, or by the head of a Department, under the acts of March 3, 1883, ch. 116, and March 3, 1887, ch. 359; and in cases under the French Spoliation Act of January 20, 1885, ch. 25, new trials will not be granted on motion of claimant after the findings have been reported as required by law. But new trials may be granted, on motion of defendants, for the causes and within the time. specified in section 1088 of the Revised Statutes." 3

"A motion by a claimant for a new trial may be founded upon one or more of the following grounds: 1. Error of fact; 2. Error of law; and 3. Newly discovered evidence. It must be made at the term in which the judgment is rendered, and before the commencement of the long vacation. In case of judgment entered within thirty days before the summer adjournment, then such motion may be made before the end of the vacation." 4 "A motion founded upon an error of fact must specify with minuteness the fact or facts which are regarded as erroneously found or erroneously omitted to be found by the court, with full reference to the evidence which is re

$454. U. S. R. S., § 1087.

2 U. S. R. S., § 1088.

3 Ct. Cl. Rule 76.

4 Ct. Cl. Rule 77.

lied on to support the motion." "A motion founded upon error of law must specify with like minuteness the points upon which the court is supposed to have erred, with references to the authorities relied upon to support the motion." "A motion upon the ground of newly-discovered evidence will not be entertained unless it appear that the newly-discovered evidence came to the knowledge of the claimant or his attorney after the trial and before the motion was made; that it was not for want of due diligence that it did not sooner come to his knowledge; that it is so material that it would probably produce a different judgment if the new trial were granted; and that it is not cumulative. Such motion must be accompanied by the affidavit of the claimant or his attorney of record, setting forth

"1st. The facts in detail which the claimant expects to be able to prove, and whether the same are to be proved by witnesses or by documentary evidence. 2d. The name, occupation, and residence of each and every witness whom it is proposed to call to prove said facts. 3d. That the said facts were unknown to either the claimant or his attorney of record, and, if other counsel was employed at the trial, were unknown to such counsel, until after the close of the trial. 4th. The reasons why the claimant and his attorney of record and his said counsel could not have discovered said evidence before the trial, if due diligence had been used."

"If the court desires to hear argument upon a motion by a claimant for a new trial, the motion will be ordered to the law docket; otherwise, decision will be announced from the bench without hearing."8

A misunderstanding as to a supposed agreement to have a case abide the result of an appeal from another judgment is a ground for granting a new trial."

It has been held that a delay of three years is a sufficient reason for denying a motion for a new trial.10 The court may grant a new trial after an appeal, provided the record has been returned." The fact that the amount involved in a cause pre

5 Ct. Cl. Rule 78.

6 Ct. Cl. Rule 79.

7 Ct. Cl. Rule 80.

8 Ct. Cl. Rule 81.

9 Belknap v. U. S., 150 U. S. 588.

10 Figh v. U. S., 3 Ct. Cl. 97.

11 Roberts v. U. S., 92 U. S. 41; Belknap v. U. S., 150 U. S. 588.

cludes an appeal is no reason for a new trial.12 A new trial will not be granted because a party failed to communicate to his attorney essential evidence; 13 nor, if new evidence could have been discovered with due diligence before the first trial; 14 nor because the claimant was insane at the first trial, and has since been restored to health, in the absence of other sufficient reasons; 15 nor for new evidence which is merely cumulative; 18 nor if the new evidence is merely such as impeaches the character or credit of the witness; 17 nor for an omission of the court to find a fact, which, if found, would not control the case.18 Motions analogous to motions to set aside a verdict because contrary to the weight of evidence, will not be allowed as a matter of right.19 A rehearing on a point presented and considered in the argument and disposition of the case, will not be granted unless desired by one of the judges who rendered judgment.20

If it appears that newly discovered evidence may change the basis of the judgment and entitle the party to a review on the law, a new trial may be granted; " or if a motion because of newly discovered evidence appeals to the court's sense of justice, and shows the existence of strong prima facie reasons for doubting the correctness of a finding, a rehearing will be granted on that point," and the findings may be amended for the better information of the Supreme Court without changing the result below.23 When the claimant's affidavit on the motion for a new trial shows that the witness on whom he relies is in the government employ, he may be excused for not presenting his affidavit.24 When a case has been dismissed for want of prosecution, it will not be reinstated unless the petition states a cause of action.25

A new trial may be granted on motion of the United States, within two years after the "final disposition" of the claim,

12 Deeson v. U. S., 5 Ct. Cl. 626. 13 Armstrong v. U. S., 6 Ct. Cl. 26. 14 Garrison v. U. S., 2 Ct. Cl. 382; 8. C., 7 Wall. 688.

15 Bramhall v. U. S., 6 Ct. Cl. 238. 16 Silvey v. U. S., 7 Ct. CL. 305; Payan v. U. S., 15 Ct. Cl. 56.

17 Payan v. U. S., 15 Ct. Cl. 56. 18 Rhine v. U. S., 15 Ct. Cl. 59.

19 Calhoun v. U. S., 14 Ct. Cl. 193. 20 Fendall v. U. S., 12 Ct. Cl. 305. 21 Murphy v. U. S., 15 Ct. Cl. 217. 22 Ibid.

23 Jaeger v. U. S., 33 Ct. Cl. 214. 24 Murphy v. U. S., 15 Ct. Cl. 217. 25 Whitney v. U. S., 18 Ct. Cl. 19; Flores v. U. S., 18 Ct. Cl. 352; Wade v. U. S., 21 Ct. Cl. 141.

although the judgment of the court has been affirmed and the mandate of affirmance filed. The words "final disposition" mean the final determination on appeal, if taken, or if there is none, then its final determination in the Court of Claims."7 The Court of Claims has the right to determine whether or not the motion for a new trial was made in time, and its decision is not subject to review if it has jurisdiction to act.28 A motion on behalf of the United States need not be disposed of within two years.29 A motion for a new trial on behalf of the United States may be made while an appeal is pending in the Supreme Court, and that court will not dismiss an appeal because of such motion; unless the motion is granted and a new trial ordered. The right of the United States to move for a new trial is analogous to the right of an individual to file a bill of review in chancery to set aside a former decree, or a bill impeaching a decree for fraud. Neither the lack of diligence nor the laches of the officers of government is sufficient ground for a new trial.32 A new trial on motion of the United States will be granted, if it appears prima facie that wrong had been done the government.33

30

34

Ex parte testimony admitted on the hearing of a motion is sufficient to warrant the granting of a new trial.3 If an unsatisfied judgment which might have been pleaded as a set-off existed, but was unknown to the defendant's attorney at the trial, it is cause for a new trial. A new trial cannot be granted to the United States, because certain evidence which was not deemed material was not offered on the first trial; nor if allowed, it will enable the defendant to interpose a technical defense against a just claim.36 An error of law which may be corrected on appeal is not a ground for a new trial.37

§ 455. Judgments in Court of Claims.-"Any person who corruptly practices or attempts to practice any fraud against

26 Ex parte U. S., 16 Wall. 699. 27 Ex parte Russell, 13 Wall. 664. 28 Young v. U. S., 95 U. S. 641; U. S. v. Crusell, 12 Wall. 175.

29 Bellocq v. U. S., 13 Ct. Cl. 195. 30 U. S. v. Ayres, 9 Wall. 608; s. c. as Ayers v. U. S., 5 Ct. Cl. 712; U. S. v. Young, 94 U. S. 258.

31 Ex parte Russell, 13 Wall. 664. See supra, $$ 353-358.

the United States in the proof, statement, establishment, or allowance of any claim, or of any part of any claim against the United States, shall ipso facto forfeit the same to the Government; and it shall be the duty of the Court of Claims, in such cases, to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judgment that such claim is forfeited to the Government, and that the claimant be forever barred from prosecuting the same." Such a finding may be made upon a new trial, although the original judgment has been paid, and the claimant fails to appear.2

"No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest." 3

"In cases where the judgment appealed from is in favor of the claimant, and the same is affirmed by the Supreme Court, interest thereon at the rate of five per centum shall be allowed from the date of its presentation to the Secretary of the Treasury for payment as aforesaid, but no interest shall be allowed subsequent to the affirmance, unless presented for payment to the Secretary of the Treasury as aforesaid."

Where a claim was referred under a special act to the Court of Claims to be determined according to the rules and regulations heretofore adopted by the United States in settlement of like cases, in which interest had been allowed, it was held that interest might be allowed when previously allowed by Congress in the adjustment of like cases. Where a factor had filed a claim against the proceeds of captured or abandoned property, which exceeded his original claim, it was held that he might be allowed interest up to the time of the rendition of the judgment.

Interest on a judgment begins to run when a certified copy is presented for payment, and ceases when the mandate of affirmance is issued or ordered to be issued. It has been held

§ 455. 1U. S. R. S., § 1086. For a form of a judgment in such a case, see Peychaud v. U. S., 16 Ct. Cl. 601, and U. S. v. Moore, 3 MacA. 226, 233. 2 Peychaud v. U. S., 16 Ct. Cl. 601. 3 U.S. R. S., § 1091; Hobbs v. U. S., 19 Ct. Cl. 220; Tilson v. U. S., 100 U. S. 43; Harvey v. U. S., 113 U. S. 243.

4 U. S. R. S., § 1090.

5 U. S. v. McKee, 91 U. S. 442; S. c. as McKee v. U. S., 10 Ct. Cl. 208 and 231.

Villalonga v. U. S., 10 Ct. Cl. 428; s. c. as U. S. v. Villalonga, 23 Wall. 35. Hobbs v. U. S., 19 Ct. Cl. 220. Interest was allowed under the general