
    John Silvey v. The United States.
    
      On Motion for.-New- Trial.
    
    
      The defendants move.for a new trial under i7te-Acb 25th June, 1868, (15 Stat. L., p. 75, § 2,) on newly-discovered evidence. The motion is founded on the affidavit of one of their present law-officers. Tlie affidavit does not show that the evidence was unknown to the former law-officers who tiled the ease, nor that they exercised diligence to discover it.
    
    I. Tlie Government when a party litigant, like other suitors, is bound to use duo diligence. The officers of the Government on whom the obligation of diligence falls, are those whotii the láw makes officially cognizant of the suit, or those who are charged in law'or in fact with its prosecution or defense. They must he .deemed to stand in the stead of the ordinary party, so far as mere legal proceedings are involved, and be subject to his obligations of care and diligence. Therefore a new trial founded on newly-discovered evidence should not be allowed where the evidence might have been known to the 'former law-officers charged with the defence of the action.
    II. The official cognizance of certain officers of the Government is established, so far as suits against the Government in the Court of Claims are concerned, by the Act 25th June, 1868, (15 Stat. L., p. 75, § 6.)
    
      III. A new trial will not t>e allowed in favor of the Government whore tlie newly-discovered evidence is irrelevant and immaterial; nor where the only effect of it, if admitted, will be to contradict former witnesses of the claimant; nor where it will merely negative a finding now spread on the record of the appeal under the order of the appellate court.
    IY. A new trial in a suit under the Abandoned or captured property aot will not he granted on the Government’s motion because a subsequent Treasury report indicates that the proceeds of the captured property are not in the Treasury.
    
      Mr. Alexander Johnston for the motion.
    
      Mr. 0. IP. Peclc opposed.
   Nott, J.,

delivered the opinion of the court:

He who obtains a judgment in a court of law acquires property; which may be bought and sold; which the law regards as the highest evidence of debt; and which cannot be taken away from him through evidence newly discovered, unless the motion be in furtherance of justice and the evidence appear as conclusive as that through which the judgment was obtained. The granting of a new trial on newly-discovered evidence is, in one sense, discretionary with the court that awarded the judgment, for it is not the subject of judicial review. But to guard against the suspicions and prejudices of judges seizing upon trivial pretexts for the setting aside of judgments; to prevent the exercise of this irresponsible judicial power from degenerating into judicial abuse; to exact from litigants good faith and full endeavor when passing through the ordeal of a trial; and to carry into effect a salutary principle of public policy, that there must be an end of litigation even though injustice to individuals be done, all courts of the common law have united in restricting this administration of justice within a certain, clear, fixed, and unvarying rule. And in no place has this exceptional power to destroy the finality'of judgments been more clearly restricted or more guardedly exercised than in the Federal courts.

The legal principles which govern the granting of new trials nn newly-discovered evidence are neither new, unsettled, nor ■obscure. None are more clearly defined, more' certainly established, or more familiar to the lawyer’s mind. In the language of a standard text-book, “ To obtain a new trial on this ground, certain well-defined prerequisites are indispensable. The conditions, indeed, are so clear and well settled that courts scarcely ever need to doubt or hesitate as to their application. They are founded on solid reasons of utility as well as justice, and are so simple as to be easily understood and remembered by the practitioner. They are to be found differently stated in the books of reports — the same always in substance.” — (Graham & Waterman, 3,1021.)

The law of new trials in this court was supposed to have been settled by the decision of all the judges in the cases of Child, Pratt & Pox, (6 O. Cls. R., p. 44,) and Beeson, (id., p. 227;) yet since this motion has been made, notwithstanding those decisions, it may be advisable to restate briefly the law that is understood to prevail.

The Court of Claims Act, (10 Stat. L., p. 612, § 9,) establishing this court, also established as the law of new trials therein the (crules” which at “ common law or chancery in suits between individuals would furnish sufficient ground for granting a new trial;” a provision of which this court saicl, at the last term, in the opinion read by the Chief Justice and concurred in by all the judges, tc We consider that this section applies to cases in this■ court under its present organization, as well as under its original constitution under that act; and preeludes our granting a neio trial to claimants in any case where, by the rules of common law or chancery, it Mould not be granted.” — (Beeson’s Case.)

By the Amended Court of Claims Act, (12 Stat. L., p. 765, § 7,) reconstituting this court, it was provided that “ any final judgment rendered against the claimant on any claim prosecuted 'as aforesaid shall forever bar any further claim or demand against the United States arising out of the matters involved in the controversy a provision which we have held was - not u intended to do more than attach to the final judgments of this court the eonclusiveness ivhich the common law ascribes to the final judgments of all courts of competent jurisdiction.” — (Spicer'1 s Case, 4 C. Cls. R., p. 34.)

In 1867 this court recognized as the law of the court the well-established common-law “ rule by which the granting of neio trials is regulated,” and held the -moving party to the • strictest diligence, (Garrison’s Case, 2 C. Cls. R., p. 389 5) a decision which all the judges subsequently held to apply as well to the Government as to the individual, and of which as against the Government it was said, “ We adhere to the rule we have heretofore laid down, that a new trial toill not he granted where, by the use of due diligence, the evidence relied upon as a ground therefor might ha/oe been discovered in time to be produced at the trialP — (Per Drake, Gh. J., Child, Pratt cfc Pox Case, 6 0. Gis. R., p. 49.)

Snob being the law as established by statute and declared by this court in 1867, it could only be changed by the reversal of the Supreme Court or the enactment of Congress. It was, of course, within the power of Congress to sweep away the 'common-law rule entirely, or to change it; and in 1868 Congress did enact an alteration. The common-law rule is too well known and too certainly fixed to need investigation, being almost universally enunciated in the same terms by the English, Federal, and State courts. It is enough to say that it imposes on the moving party these conditions:

1. “ That tiie evidence has come to his knowledge since the trial.

2. u That it was not owing to the want of due diligence that it did not come sooner.

3. “ That it is so material that it would probably produce a different verdict if the new trial were granted.

4. “ That it is not cumulative.

5. To which is added, “ a new trial will not be granted if the only object of the newly-discovered evidence is to impeach the character or credit of a witness.” — (3 Graham & Waterman, p. 1021.)

The Act 25th June, 1868, (15 Stat. L., p. 75, § 2,) provides u That said Court of Claims, at any time while any stdt or claim is pending before, or on appeal from, said court, or within two years next after the final disposition of my suit or claim, may, on-motion on behalf of the United States, grant a new trial in any such suit or claim and stay the payment of any judgment therein, upon such evidence (although the smie may be cumulative -or other) as shall reasonably satisfy said court that any fraud, wrong, or injustice in the premises has been doné to the United States.” •By this the act. modifies the rule of the common law, and. abrogates some of its conditions:

1st. It gives to one party an advantage not common to the other.

2d. It enlarges the time within which a motion may be made by the favored party, and lest the maxim, nullum tempus oceurit ■regi, should be strained to make tbe time interminable, the act reduces it to a fixed period.

3d. It allows the motion to be made on behalf of the favored party, even though this court has lost jurisdiction of tbe action— a provision which the Supreme Court has characterized as an anomaly, but to which it has-given effect. — (.Ayers's Case, 9 Wall., p. 608.)

4th. It authorizes the motion to be founded upon evidence which “ may be cumulative,” an alteration which clearly refers to the rule of the common law, and recognizes and affirms — if recognition and affirmation be necessary — the existence of that ¡rule in the practice of this court.

Therefore, as to those particulars which were not by Congress abrogated, the rule received from Congress a legislative sanction. Congress, by enacting an exception to the rule, confirmed the rule. ¡Exeeptio probat regulam.

Finally, the act of 1868 has already received a judicial construction eminently applicable to. this case. In general terms, decisive, unambiguous, unmistakable, the Chief Justice said, and all the judges of the court concurred, “ The simple design of this section, as it appears to us, is to protect the Government against unconscionable advantages gained over it, without laches or mistake on the part of its officers; not to give it unconscionable advantages over claimants through such laches or mistake.” — (Child, Pratt & Fox Case, 6 C. Ols. It., p. 52.) And of this decision the leading counsel of the Government, on a similar motion in another case, has said that “no man-could quarrel with it;n and of the statute, that “ most assuredly it does nothing but change the common lato in two particulars, the time toithin which the motion may be made and the cumulative■ evidence on which it may be foundedP ■ ■

Therefore it is not open to-inquiry in this court whether the Government, like other suitors, is or is not bound to due diligence.

But it has not been definitively settled on what officers of the Government the obligation of diligence falls. “The United States ” appear as parties in courts, but tbe State is not an entity ; the Government is not a person. What are the United States, considered as defendants at law ? Who is the Government when it comes into a court-of justice?

Manifestly, all the citizens of the United States are not ■chargeable with the knowledge and duties of defendants in this suit. Manifestly, neither knowledge nor duty can be imputed to all the officers of the Government. Where, then, shall the weight of this obligation rest, when it would rest upon an ordinary litigant ?

We answer the inquiry by the enunciation of what appears to be the only just and appropriate rule: In suits where the Government is. a party plaintiff or defendant, those of its officers whom the law makes officially cognizant of the suit, or who are charged in law or in fact with its prosecution or defense, must be deemed to stand in the stead of the ordinary party so far as mere legal proceedings are involved, and be subject to his obligations of care and diligence. These officers are indicated and this official cognizance is established, so far as this court is concerned, by the same statute which authorizes the Government to seek a new trial on terms and conditions less strict than those which bind the opposing party. Act 26th'June, 1868, (15 Stat. L., p. 75, § 6.) First, it is made the duty of the “Attorney General and his assistants, in all cases brought against the United States in said Court of Claims, founded upon any- contract, agreement, or transaction with any Executive Department, or any Bureau, officer, or agent of such Department, or where the matter or thing on which the claim is based shall have been passed upon and decided by any Department, Bureau, or officer intrusted by law or Department regulations with the settlement and adjustment of such claims, demands, or accounts, to transmit to said Department, Bureau, or officer, as aforesaid, a printed copy of the petition filed by the claimant in such case, with a request that the-said Department, Bureau, or officer to whom the same shall be so transmitted as aforesaid, will furnish to said Attorney-General all facts, circumstances, and evidence touching-said claim as is or may be in the possession or knowledge of the said Department, Bureau, or officers.'’ Second, it is made the duty of the “Department, Bureau, or officer to whom such petition maybe transmitted and such request preferred as aforesaid, without delay and within a reasonable time, to furnish said Attorney-General with a full statement of all the facts, information, and proofs which are or may be within the Icnowledge or in the possession of said Department, Bureau, or officer, relating to the claim aforesaid. Such statement shall also contain a reference to or description of all official documents or papers, if any, as may or do furnish proof of facts referral to in said, statement, or that may he necessary and proper for the defenseP These provisions of the statute, and the proceeding under them, connect these officers, to a certain extent, as directly and decisively with the defense of a suit against the United States in this court as is the Attorney-G-eneral himself. And it is as much their responsibility as it would be his, if the defense for lack of diligence on their part failed, and their neglect, like his, would be the misfortune of the Government, and a.s fatal.

This requirement of diligence may appear, though a necessity, prejudicial to the interests of the Government. On the contrary, like all just requirements, it will redound to the welfare of the Government. And there could not be devised a more pernicious basis whereon rogues and sharpers might build up a business of suppressing evidence and black-mailing suitors than a doctrine that new trials may be allowed for the negligence or mistakes of these public officers. Under the rule that exacts diligence and maintains the duality of judgments, a subordinate clerk assigned to the work of searching for documents in the defense, may chance to stumble on an important paper, as a receipt or release. Occasionally, it is true, a fraudulent claimant may be at his elbow; but ordinarily he will have no time to find and treat -with a distant suitor; nor will one suitor in a hundred dare to put himself in the power of a stranger, nor care to risk any large sum in procuring the suppression of the paper. Under an opposite rule such a clerk, as a mere venture, would omit the paper from the record which he makes up. Watching the progress of the suit, and waiting till the claim should acquire the new value of a judgment, he would approach the party and threaten him with the .pains and penalties of a new trial and the loss of the property which it was supposed the judgment represented and assured. Men who would not advance anything toward attaining,a judgment future and remote, would pay roundly to retain one actually recovered. If the evidence were really important, the clerk might name his own terms. Failing to ñud a customer in this party, he would then, through an accomplice, try to find a customer in the other. The accomplice would approach some not too scrupulous officer of the Treasury, and, with sufficient assurances of fraud and wrong perpetrated by the claimant, make a “ contract,” as it .might be termed, for the production of evidence which should secure to the Government a new trial. Then the suppressed evidence would be discovered, and somenew Assistant Attorney-General would make affidavit that it was, as he believed, newly discovered, and a weak' and erring court would hold the affidavit and the document sufficient to overturn a judgment at law; and eventually honest suitors and honorable counsel would discover that the court was a tribunal that afforded them little else than boundless vexation and interminable delay.

When we come to the facts on which this motion is made, we find that the defendants have not complied with -one single condition of the law, (save the time within which such motions may be made,) nor presented a reason for a new trial entitled to consideration.

1. The moving affidavit is made by an assistant counsel of the Attorney-General, retained in the case long subsequent to the former trial, and in no way connected with the former defense. The affidavit implies nothing more than that the new evidence has come to the knowledge of this counsel sídcb the former trial, but when, how, or amid what circumstances it was discovered does not appear as is required by the law. (Palmer v. Fisk, 2 Curtis, C. Cls. R., p. 14.) The affidavit establishes nothing more than that a lawyer having nothing to do with a case on its trial, then knew nothing about the evidence relating; to it, (which is an ignorance probably shared by every lawyer in the world except the few employed on the trial or in some way connected with the case;) and that this lawyer has found some evidence which, for some reason or other unknown to> him, was not produced when the case was tried.

3. Neither the vigilance nor diligence of the former law-officers of the Government, previously charged with tbe defense of the action, is shown; nor can the testimony now sought to> be introduced be regarded as newly-discovered evidence. On the contrary, it appears that the witness now sought to be examined, Captain Hade, had been the defendants’ own officer and agent, and specially charged with the care and custody of captured cotton at Atlanta; being, of all witnesses in the world, the one that they were most bound to call, or, at least, confer with. Furthermore, it appears that there was another suit, then pending, brought by one Julius Hayden, likewise relating-to the Atlanta cotton, and, like this, seeking the proceeds of cotton which had not been receipted for, wherein this same Captain Hade was a witness. These two suits ran side by side with remarkable uniformity. Thus we find, on the 13th of January, 1868, notice was given to the solicitor of the Court of Claims that Captain Hade would be examined as a witness; on the 29th came the first trial in this suit. On the 3d of February, 1868, Captain Hade’s testimony was taken, the defendants appearing by counsel and cross-examining; on the 8th of June following this case was submitted on its second trial. On the 27th of January, 1869, the case of Hayden was tried, and the testimony of Captain Hade read and commented upon; on the 10th March following, this case was brought to its third and last trial. Thus, three times were the defendants directly notified of the existence of Captain Hade, of his residence, and ability to testify; and, most singularly, were they thus notified just before each of the three trials in the case. At the first trial the defendants were represented by the solicitor of the court and his assistants; at the last trial by counsel specially retained by the Treasury Department to defend the eaptured-property cases. The existence and residence of Captain Hade must have been known to all of these gentlémen, and all must have concurred in deeming him a needless or a dangerous witness. The casé is therefore precisely like that of Child, Pratt & Fox. There, the defendants’ counsel had in liis possession a document which he knew of, but did not put in evidence; here, he had within the jurisdiction of the court a witness, of whose connection with the case and residence he was likewise acquainted, but whom he did not see fit to examine. The special counsel of the Treasury was a lawyer, not only distinguished in general practice for learning and ability, but eminent at this bar for the earnestness, ingenuity, and ceaseless vigilance with which he maintained the interests of his clients, the defendants, and brought everything of fact or of law to the trial which could sustain their side of the case. Moreover, that counsel now represents the Government before one of the international commissions, .and he has actually appeared before this court at the present term as counsel for the defendants in other cases, yet his affidavit is not produced to show mistake, or ignorance, or to excuse in any way the non-production of this evidence at the proper time. The motion rests exclusively upon the affidavit of counsel, who knew nothing about the case when it was tried, and who still knows nothing about the knowledge and. views of his predecessors when they tried it. It is not newly-discovered evidence which supports the motion, but an excuse for a new trial, which appeals only to the suspicions of the court. Courts cannot grant new trials upon suspicion, nor are they invested with an immeasurable ' discretion that will enable them to destroy the finality of judgments on their mere pleasure.

3. The newly-discovered evidence, as it called, is irrelevant and immaterial, and would in nowise affect the result. The claimant did not allege any specific time or place of seizure, but generally that uabout the 10th day of September, 1864, after the occupation of said city by the'United States forces, all of the said cotton ivas seized and tahen possession of by the military forces,” and a was turned over by the officers seizing it to an agent of the Treasury Department, by whom it was sold.” In thus pleading the implied capture as of the time of the capture of the country in which the property was, the claimant proceeded in accordance with the decisions of this court and the uniform practice of the bar. On the first trial it did not appear that the cotton had come to the official custody of any military officer, and the court remanded the case for what was taken to be a defect of proof. On the last trial certain other facts were established. It was shown that almost immediately after the capture of Atlanta this claimant applied for and procured a pass to bring in his cotton from the surrounding country; that the cotton was brought in and placed in a warehouse under military surveillance ; that all the cotton in Atlanta was swept up by the military and shipped northward before the destruction of the city; that this cotton, identified by name and mark, came to the possession of a Treasury agent, and was sold at public sale in Cincinnati. On these facts the judgment of the court rested. It had been claimed by the defendants, and conceded by the claimant, that the captured cotton never came to the official custody of Captain Hade; but the court found that its proceeds had reached the Treasury through another channel. None of these conclusions is touched by the newly-discovered evidence. All that it can do will be to controvert certain proof as to the particular train on which the cotton left the city, and to overthrow a certain excuse volunteered by the claimant’s witnesses as to why he had not procured a receipt from Captain Hade for cotton which had never come to Captain Hade’s custody. The evidence is clearly irrelevant, like that which it seeks to contradict, and all of it would be stricken out of the record if properly objected to on-the trial.

4. The only effect of the newly-discovered evidence, if it were admitted, would be to contradict two of the claimant’s witnesses, and, as was insisted on the argument, to convict them, before this court, of perjury. .But the defendants have laid no foundation for doing any such thing. - The witnesses, on their direct examination, speak of Captain Hade as having “ gone,” as having “left the city,” when the cotton was delivered at the State depot,-and the defendants did not cross-examine upon that point. The testimony, therefore,- is of a kind which, though positive in terms, is always understood to be matter of report, belief, or reputation. When a witness testifies that a man is dead vrho is in fact alive, or that a man is in France who is in fact in Germany, no intentional falsehood is necessarily to be inferred. On the contrary, the. party seeking to impeach must bring the witness - down to specific facts-within his own knowledge — to time, place, and circumstances; a foundation which the defendants have wholly neglected to lay. But, if they had laid such a foundation, this evidence would not now avail them anything. UA new trial will not be granted “ to contradict a witness as to a fact of no considerable importance by negative evidence given nearly ten years after the event testified to ; nor to impeach a witness or disprove a statement which, did not materially affect the legal aspect of the case.'1' Oarr v.-Gale, (1 Curtis C. Ot. B.., p. 384.) And two of thé ablest of American judges (Curtis and Ware, J. J.,) have said, in a case remarkably like this, (id.:) uWe could not grant a neio trial' merely on account of the,contradiction of a witness, otherwise credible, upon a circumstance of .very slight importance in the cause, and! especially when that contradiction is by affidavits talcen in his absence.”

There are also two reasons urged for a new trial falling outside of the ordinary scope and. -effect of newly-discovered evidence, and which may be designated as grounds unknown to established law. The first of these is that this court has spread upon the record of the appeal as a fact that the reason why the claimant did not procure a receipt for his cotton from Captain Hade was because Captain Hade had left Atlanta, whereas the newly-discovered evidence shows conclusively that he had not. That finding was not volunteered by this court. After the case bad reached the Supreme Court (where it is still pending) an order was made by that court directing us to certify up the fact, and we thereupon returned the substance of the irrelevant testimony as the only appropriate response. That a fact which is irrelevant and immaterial will become relevant and material by being spread upon the records of an appellate court; or that a party may ask that a judgment against him be set aside, and the costs, delay, and harassment of a pending appeal be thrown upon his opponent because evidence has gone up as to which he, the moving party, never objected, cross-examined, or contradicted, are extraordinary propositions. New trials are notgranted, judgments are not vacated, litigation is not made perpetual, that a heedless and negligent party may modify and improve the record of his own appeal. The judges of this court have no power to take away a man’s property in a judgment except in those cases established by law. But it appeared, also, on the hearing that the irrelevant matter did not go up on the Supreme Court’s own motion after an examination of the original record, but did go up by the express consent of the same moving party, through a former Assistant Attorney-General. This court, therefore, is left freed from all responsibility as to its effect, and without apology should it attempt by indirect means to covertly withdraw it from the consideration of the appellate court.

Finally, a recent report from the Treasury Department relating to Atlanta cotton has been pressed upon us as a sufficient ground for granting a new trial, the object being to show that the proceeds of this particular cotton (sold by a Treasury agent at Cincinnati) are not, in fact, in the Treasury. The Supreme Court has held that the Government is but a trustee of this captured property, holding it for the benefit of its loyal owners. These reports of the Treasury, therefore, are little more in effect than the reports of a receiver as to the condition of assets within his hands. They are not conclusive upon a claimant, and he is at liberty to attack and supplement them. When they show his proceeds in the Treasury they are conclusive for him; when they are silent he may establish otherwise his interest in the captured-property fund. Unfortunately, they have not been found to be entitled to implicit reliance, and none has proved to be complete, much less conclusive. For example, the first of these Atlanta cotton reports showed the capture of twenty bales, and' no more; tbe fourth, of four hundred and sixty-seven. This fifth report now produced may vary from the others, but how do we know that there will not be a subsequent report which will show additional captures ?

The record of this case discloses that shortly before the capture of Atlanta a loyal citizen residing there, instead of sending his cotton to a southern market, or turning it over to the Confederate government, or removing it from beyond the possibilities of capture by the Union armies, on the contrary, secreted it by night to await their coming. Almost immediately after the occupation of Atlanta, this citizen went and reported his cotton hidden in the surrounding woods to this same Captain Hade, and procured from him an order to go beyond the lines and bring it in and deliver it up to the Government. He did this before there were detectives to find -it, or speculators to buy it; and he asked no present remuneration, but gave it up freely, trusting to the honor of his Government to ultimately refund to him its proceeds. After the war he brought his action — the only remedy that the law gave. The case was tried and retried, 'and again tried, before a final judgment was obtained, and then the claimant recovered neither costs nor interest, (for the law gives neither,) although the Government had used and invested his money and enjoyed an actual benefit theréfrom. But the. defendants appealed and payment of the judgment was stayed thereby. At the last term of the Supreme Court the case was reached on its docket, as we are informed, and then, after all the delays, harassments, and expenses of the litigation, it was continued for the term and thrown over another year in order that this motion, which we now find to be frivolous, might be heard here. Such a record cannot receive the approval of the nation, nor of Congress, nor of the law-officers of the Government. There must be an end of litigation; and legal justice, if it cannot be certain, may at least be prompt.

The order of the court is that the motion for a new trial be denied.

Peck, J.,

concurring:

I concur in the opinion of the court, but as I have some views in relation to the case not expressed in that opinion, I shall proceed to state them.

This is a motion for a new trial, for newly-discovered evidence, made by the defendants on the 13th day of December, A. D. 1871; the judgment in the case having been rendered on the 22d day of March, A. D. 1869. The case is now before the Supreme Court on an appeal, which was allowed and taken on the 3d day of June, A. D. 1869.

The motion is founded upon the second section of the act entitled “An act to provide for appeals from the Court of Claims, and other purposes,” approved June 25,1868.

The motion alleges that injustice has been done the United •States because the judgment was rendered against them for the proceeds of certain cotton, which cotton never came into the possession or under the control of any authorized agents of the defendants; and the proceeds of which are not and never were' in their Treasury.

Appended to the motion is filed the affidavit of Alexander Johnston, which states that he is employed in the Department of Justice to defend this suit in the Court of Claims; and that the motion for a new trial is based upon evidence (that is, affidavits) tending to show, that there was no officer or agent of the United States at Atlanta authorized to take or receive the claimant’s cotton at the time it is alleged to have been taken; which evidence he, Johnston, has reason to believe was discovered since the trial of the case. I have given the language of the motion- and of Johnston’s affidavit in, or almost in, their very words.

The affidavits in support of the motion Mr. Johnston calls “ evidence,” I suppose, because the statute under which he moves for the new trial requires that the motion should be sustained by u such evidence ” as shall reasonably satisfy the court that fraud, wrong, or injustice has been done to the United States by its judgment. Calling such an affidavit evidence does not ■make it so. Evidence is a word of technical force, and is considered by courts as differing from affidavits. Evidence authorizes us to render a judgment; affidavits never do. When it is considered that the favor which is granted by the act in question to the defendants extends to new trials in their behalf only, at any time within two years after final judgment, whether in this court or on appeal, I think it was contemplated that something more than ex-parte affidavits should be required to satisfy the court of the propriety of revoking a judgment, and compelling a claimant to a renewed contest, to continue perhaps for years.

To grant a new trial two years after judgment, the most conclusive evidence should be required, such as would raise a strong-presumption, if not an absolute conclusion, that a different judgment would certainly be the result of another trial.

This view is sustained by the late Attorney-General Hoar, who addressed a letter to the Senate, under date of July 2, 1870, in reference to the practice of the Court of Claims, in which he says that the section of the statute granting new trials, on motion in behalf of the United States while a case is pending on appeal, or within two years after judgment, “ does not, in terms, require the court to grant a new trial npon newly-discovered evidence simply affecting the merits of the case.”

Affidavits taken ex parte are not evidence, though for the purposes of a new trial in State and United States circuit courts, when the motion is interposed between a verdict and judgment, or is made at the same term of the trial, they are sometimes so regarded; but I do not believe they would be considered “ evidence,” or heard as such, in any court npon a motion made after the lapse of a term.

In the circuit courts of the United States conditions are often imposed npon the allowance of a new trial, especially when it is granted upon the ground of newly-discovered evidence. Costs have to be paid. The party having the judgment is permitted to be present and cross-examine the newly-discovered witnesses; he may offer countóí-depositions, &c. (See 1 Curtis • C. C. R., pages 19 and 20; 2 ditto, pages 386, 387, and 389; 3 Wood & Minot, page 349.)

I believe this court, where a ¡new trial is asked for by the defendants, on the ground of newly-discovered evidence after the lapse of a term, under a statute so partial and anomalous as that now invoked, should compel the mover to give the claimants a reasonable notice of the time and place where the new witness to support the motion is to be examined, so that he may be present and cross-examine. The motion should always be made in term time, or with the permission of a judge in vacation, and should state the new facts to be proved, with every material circumstantiality. •

Isay nothing about the question of diligence, as that question is discussed by Judge Nott. .

By what authority, under the law, Mr. Johnston or any other person is employed by the Department of Justice “to defend a suit” which has long since passed into judgment, I shall not stop to inquire, though I believe no other person than he who tried the case, or the Assistant Attorney-General assigned to the business of this court, can properly make an affidavit for the purposes of this motion which the court should consider.'

Mr. Johnston did not try the case, nor assist in the preparation of it, and cannot say what knowledge the gentleman who represented the defendants at the trial did or did not have in the premises. It is quite impossible he should.

Mr. Johnston says he has a belief, without naming any reason or fact for its foundation. This is not sufficient. His unsupported belief, under the circumstances, is mere opinion or conjecture. He does not even base his belief on hearsay, and his affidavit, as matter of proof, does not approach the dignity of hearsay evidence, poor and worthless as that is. I cannot credit him with infinite knowledge in judicial matters, and act upon that assumption. The law requires me to act upon facts, established by proof alone. Suppose an attempt were to be made to assign perjury upon such an affidavit, could it be so done as to convict the maker ? Has the affidavit any allegation of substance in it that can be disproved Ü Can any one say that the maker of the affidavit has no such belief as he asserts ? Had he sworn that he believed in some fable, while all might marvel at his credulity, no one could swear to contradict his assertion. This may be an absurd illustration, butilo more absurd than it would be for the court to grant a new trial'upon a showing so irrational as mere unfounded belief. It is said that, because the defendants are impersonal, they may be represented in court in any intangible way that their counsel may choose to resort to, and that nothing in particular should be required of them; in other words, that- the defendants are outside of the law and precedents, and that these are not to control against their convenience.

I do not understand that courts of justice- should vacate long-established judgments, and so deprive parties of their rights and interests upon such shadowy and flimsy pretensions.

If anything would justify this motion, it would be the testimony of Mr. Hale. That gentleman is now, as before, a legal adviser of the defendants, and has often been present in court before and during the pendency of this motion. He, if any person, knows why Mr. Hade was not examined in this as he was in other cases of a like character moving before the court at the same time. The absence: .of all testimony from Mr. Hale excites suspicion. He might explain many things, and give satisfactory reasons for his omission to take Hade’s evidence. Mr. Hale had the entire management of the trial. To use the language of Judge Curtis in one of the cases cited, “The defendants had the benefit of his honest judgment and acted on it. It is too late for them now to say he judged unwisely. Suppose counsel, having the means of proving a fact, judges it to be immaterial, or not useful to his client, and therefore does not exhibit'the evidence of it. -No one has supposed his client could have a new trial because it turns out that he was mistaken.”

Mr. Johnston can only tell us how great Ms belief is and Ms ignorance of facts; Mr. Hale,,could have- given his knowledge. It is not difficult to find witnesses in throngs who have large belief and but little of that knowledge which is useful-in establishing facts in the trial of a case or the hearing of a motion. Witnesses of this description are not often produced, unless it be to aid an impersonal client:

The defendants being impersonal, and therefore inc£fpable of deposing, I would apply the same rule that is applied to other corporations which are also impersonal, viz, that the best evidence which the nature of the case affords shall be produced, the same rule that the law applies to cases where the party should himself adjure. If the best evidence, such as the oath of the party, cannot be had, then substitute secondary evidence, which, in a case like -this,' should come from the person who tried the case or from the Attorney-General;- and not permit the rule to be so diluted that a person who is professed without information shall take the place of better testimony in the power of the defendants to produce.

There has not been any evidence offered to support that part of the motion which denies that the proceeds of the claimant’s cotton are in the defendants’ Treasury. This material fact appears to have dropped out of the case.

I now propose to examine the affidavit of Mr. Hade, and compare it witb bis deposition taken recently by tbe United States, to be used by them in tbe case of one Mattison, pending here. In bis affidavit, E. Hade states that be was tbe only person authorized to take or seize cotton at Atlanta from about tbe 8th of September, 1864, until be left that place, which was on tbe 12th of November following, and that neither claimant’s cotton, nor any other, was seized or taken bybim after tbe 26th of October in the. same year. He says be is assured of this fact, because be was at Atlanta from tbe 8th of September, 18Q4, “allthe time,” “and continuously bad bis office open for business.” Tbe last fact might be as be states it, though be was not present at bis office. The affidavit of Jacob Hade supports these statements, and is not otherwise material. On referring to tbe deposition of E. Hade, filed by tbe defendants witb bis affidavit, and taken on tbe 16th of October last, I find at the commencement of tbe deposition these questions and answers:

“Being interrogated by Alexander Johnston, for tbe United States, tbe witness says:

“ Question. What position, if any, did you occupy in tbe United States Army in 1864?

“ Answer. I was captain and assistant quartermaster.

“ Question. Where were you stationed in the months of September, October, and November, in the year 1864?

“ Answer. I was at Marietta and Atlanta, in Georgia, and at Chattanooga, in Tennessee, during tbe months of September, October, and November, 1864.

“ Question. When did you enter Atlanta, Georgia?

“ Answer. About tbe 4th of September. I went in on tbe first train that run in on the Western and Atlantic road after tbe evacuation by tbe rebels.”

Tbe question here arising is, how Mr. Hade could have been at Atlanta “all the time,” from tbe Sth of September until tbe 12th of November, if he was, as be states in bis deposition, a part of that lime at two other places, viz, Marietta, Georgia, and Chattanooga, Tennessee. I shall not attempt to explain what is unexplainable.

These contradictory statements may pass unheeded by those who desire to accomplish an end without regard to the obstacles interposed; but they cannot be explained consistently witb a proper regard for tbe truth. Test tbe witness by bis own statements, in the affidavit and the deposition, and be is unworthy of credit. He is so impeached that no court would be justified in granting a new trial and revoking a judgment rendered three terms since, and now on appeal, upon the affidavit of a man who swears so equivocally.

Many conjectures may be stated as to the reasons which may have influenced Mr. Hale not to examine this witness. It is possible he thought it would be imprudent to do so. He might have been unwilling to trust to his telling. He might have thought, as I do, that such testimony from him as is now offered would be only surplusage and of no value to his clients, the same facts, in substance, having been stated by the witnesses of the claimant. A cross-examination of Mr. Hade, Mr. Hale might have believed, would elicit facts dangerous to his side of the case; at best it could only establish a fact already abundantly proven by the witnesses of claimant.

The question of laches has been brought to the notice of the court, upon the assumption that the United States may wholly disregard all diligence and duties exacted in legal proceedings, without regard to the rules of the common law or of the court, as used and applied to the claimants. This preposterous theory cannot well be confuted by authority, for it has never before entered into the mind of any practitioner to advance a similar theory in any other court. If this theory of the law could by possibility be correct, this court has been acting ever since its organization under very erroneous impressions •, and if it should now be adopted in. practice, the defendants would be the masters of the court and could defy it. Justice, if it ever came to the claimants, would come by the favor of the Attorney-General, and not by the aid of this tribunal. The judges here, like the insensible pieces upon a chess-board, would be moved hither and thither by the representative of the United States as he should in his pleasure direct. The power, honor, and dignity of the court, by the recognition of such a principle as law, would be lost in obloquy.

The statute authorizing this motion refers to fraud, wrong, or injustice growing out of some act of the claimant. Here the injustice complained of is the decision of the court upon the law and facts of the case; the remedy, if any for that, is' by appeal.

There is no reason assigned in the motion for a new trial, except that injustice bas been, done; no word about fraud; and unless you confound the meaning of the words, to discuss fraud is irrelevant to the issue presented by the motion.

Diatribes against fra.ud in general, or frauds in particular, may show a mind addicted to moral tendencies, but they have no application to this motion. Fraud is not complained of or alluded to in the motion; and if it were, it could not be established by inference, but should be proved. It is nowhere stated or shown that the claimants attempted to practice any fraud, either before or on the finding of facts for an appeal, or subsequent to the appeal. The facts found after the appeal were found, if not at the instance of the defendants, at least by their consent.

The claimant made his proofs as other claimants have done, and there is no allegation that perjury was committed by his witnesses, or of fraud by himself. It is nowhere pretended by the claimant that Captain Hade entered the cotton on his books or receipted for it; of this omission he complains; his witnesses expressly depose to the contrary, and, as has already been stated, they conclusively establish the very facts in effect that Captain Hade says he would swear to. If any injustice exists in the case as it now stands on appeal, it was perpetrated by this court.

All assaults made upon the case because of injustice done, are assaults upon the integrity or capacity of. this court which decided the case. The defendants nowhere allege that the claimant of himself, or by collusion with others, acted fraudulently. This chimera is not theirs. ' Their argument and position is, that the court erred in giving judgment, because the cotton was not traced through Captain Hade, he being, as he says, the only officer at Atlanta authorized to act in that regard.

This was .the ground of defense when the case was last presented for hearing and judgment. A majority of the court disagreed with the defendants’ counsel, and being moreover satisfied that the United States had received the proceeds of claimant’s cotton into their Treasury, gave him a judgment.

The defendants’ counsel now seek by this motion, charging not fraud, but injustice, to obtain are-argument. This is to my mind the whole scope of the motion.

Fraud is deception practiced by the party; injustice is the fault or error of tbe court. They are not equivalent wprcls, in substance, or by tbeir context in the statute, and any attempt to give them that constructions futile. Injustice may be done to the claimant or defendants without anjr attempt at fraud by either. Fraud is always the result of contrivance and deception. Injustice may be done by the negligence, mistake, or omission of the court itself.

It may be that this court decided erroneously, by holding that it was not indispensable that the claimant should trace his cotton through the books of Captain Hade, provided they were otherwise satisfied that its proceeds reached the public Treasury. These questions are fairly presented on the record, and the Supreme Court will decide them, and so determine the right. If this motion should be granted, it would not change the character of the question, but would result in injurious delay to the claimant.

The presence of Captain Hade in or his absence from Atlanta is of no consequence, except as it tends to establish the fact that he did not receive the cotton. Of what consequence, then, is the proof as to his absence 1 Courts never grant new trials because of a conflict of testimony as to an immaterial fact, or even as to a material fact, for as to the weight or preponderance of evidence, the jury decides, and their decision is very seldom disturbed, and only in cases where they have acted flagrantly.

The design of the second section of the act discussed in this motion was to confer upon the court authority to grant new trials in certain cases. The act requires the court to be satisfied from evidence that fraud has been perpetrated, or that wrong and injustice have been done, and in such cases gives the court a discretion, to be exercised for the purposes of justice. The word u may ” is sometimes construed to mean shall ” when it is used in conferring authority upon ministerial officers, but no such construction obtains where the word is used in enlarging the powers of a court, for the reason that it is presumed that courts will exercise their powers for the promotion of justice so far as it is necessary so to do. This court might grant anew trial for the purpose of revising its own judgment, if satisfied it was erroneous, while an appeal therefrom was pending in the Supreme Court; but such an exercise of discretion would be unwarranted, as neither justice to the party nor the- public benefit would be promoted thereby. The power to grant new trials, like other' powers conferred upon courts, is exercised to further the ends of justice, and the court must be satisfied that the exercise of its power will have that effect before it will act. Such a power has no resemblance to a mandate, to be exercised without discretion.

That the Attorney-General did not believe that the word “ may,” in the statute now under consideration, meant “ shall,” is found in the fact that an application was made by him to Congress requesting that a law should be passed substituting “ shall” for “may,” in the law as it then existed and now exists in the statute allowing new trials. See this bill accompanying the letter of July 2, already referred to.

Loring, J.,

dissenting:

At the original trial of this case the petitioner alleged and made oath in his petition that 77 bales of his cotton were taken by the United States at Atlanta, and to support his allegations he adduced witnesses who testified that the cotton was delivered to the United States at Atlanta, and transported thence by the railroad to Chattanooga, and this testimony fixed the time of the delivery and transportation to be after Captain Hade had finally left Atlanta. This was the case proffered by the claimant.

On the motion for a new trial the United States offered evidence to prove, and which I think did prove prima facie, that after Captain Hade finally left Atlanta no cotton was delivered there to the United States, and transportation by the railroad to Chattanooga was impracticable. These facts, if proved, would of themselves have established that the judgment was procured by false testimony, however unimpeached that was at the trial, and however numerous the witnesses; and I think that the United States were entitled to an opportunity to prove the facts they alleged, and that their motion for a new trial should have been granted.

The petitioner objected that this evidence could, by reasonable diligence, have been produced at the original trial, and that therefore the defendants, by the laches of their officers, were precluded from its use on this motion.

In this I do not concur. I think it lies in no man’s mouth to say that it was laches to believe him and his witnesses under oatb. And laches in every ease are to be referred to its circumstances. In litigation between individuals each knows tbe facts of his case, and has that certain means of detecting false allegations, and can give them to bis counsel. But tbe United States can have no personal knowledge of facts, and can communicate none to tbeir counsel. And if a claimant here swears to bis petition, and adduce.s in support of it a mass of testimony direct and positive in its character, and which purports to be from personal knowledge, and is thus calculated to induce belief, and turn counsel to other grounds of defense, I think it is not laches in them if they forbear to impute perjury to a petitioner and bis witnesses, and fail to detect a conspiracy in a secret fraud. The law does not require that parties should be astute, but only that they should be diligent, and therefore where an elaborate deceit is practiced tbe laches that will forfeit its remedy must be after tbe deceit is discovered. And in this case the allegation was of such elaborate deceit, and tbe objection to the admission of tbe evidence was, that tbe alleged deceit was not sooner discovered — not that it bad been slept upon after it had been discovered; and I think tbe objection insufficient on tbe rules of tbe common law and tbeir reasons.

But tbe case here is not under tbe common law, but under a statute whose purpose is to defeat judgments procured by tbe fraud of judgment creditors; and which are, from tbeir fraud, legally and absolutely void. It is legislation for tbe protection of tbe public against criminals whose rights are those of perjury, and whose property, in tbeir judgments, is that of theft.

And if tbe provisions of the statute are extraordinary and exceptional, so is tbe mischief against which it provides. In litigation here the United States do not and cannot commit frauds against petitioners, while petitioners can and do commit frauds against tbe United States. They therefore are exposed to a peril to which petitioners are not exposed, and this inequality of peril authorizes inequality of protection; and of this no one can complain but tbe criminals, and the only cause of complaint they can have is that they are prevented from reaping the fruits of tbeir frauds.

Tbe statute for its purpose of public protection creates a special subject of jurisdiction here as far removed from our general jurisdiction as if it bad been vested in another court, for it includes not only judgments final here, but those removed from our jurisdiction by appeal to tbe Supreme Court, and pending there, or finally acted on there; and it authorizes us to stay the payments of such judgments, and direct new trials here.

It is manifest that neither these subjects of jurisdiction, nor the power conferred for our action on them, belong to our general jurisdiction, or are within its compass; and it is also manifest that the statute attaches, and did attach, in this case after all the litigation here had been fulfilled, to which the United States submitted themselves under our general jurisdiction, and after that was functus officio.

The special authority conferred by this statute made, therefore, no part of our general jurisdiction, and they are as wide apart as crime and contract, which are their respective subjects. Under our general jurisdiction the United States submit themselves to litigation here on contracts and debts; but they do not so submit themselves as to frauds against the public and upon the public Treasury. As to these they are free as sovereign to make what provision the public security may require; and they are bound to do so, for as so veri gn they can no more abandon the public protection than an individual can hold office without official duty and responsibility; and the United States, as sovereign, used their power to protect the public against frauds in the statutes, by which they submitted themselves to our general jurisdiction, for by the 11th section of the act of March 3,1863, they, for fraud in the petitioner, determine the litigation oh his claim, and forfeit that, whether due in part or in whole. This certainly is not a power incident to the status of defendant anywhere, but is the action of sovereign authority in its proper sphere; and the statute of 1868 is only the complement of the provision in the eleventh section of the act of 1863, extending it for the protection of the public so as to reach cases of fraud not only before, but after, their final judgment here, or in the Supreme Court; and neither the eleventh section nor this statute are defenses against a debt; but they seek to prevent and punish frauds j for whether the debt is due in part or in whole, if fraud is shown, the case is within the section and statute, because of the fraud. The issue, therefore, and the only issue here, is fraud; and to say that it might have been proved before does not disprove the fraud, or tend to, and therefore is irrelevant and immaterial, and no answer on this motion.

In courts of common law, actions for debt and prosecutions for fraud and their penalties are distinct proeéedings, the one of civil and the other of criminal jurisdiction. They are just as distinct here, for the staying of the judgment and the new trial of the claim on which it was recovered are but the form of trying the fraud alleged, and inflicting its penalty of forfeiture. And if in a court of common law a plaintiff had recovered a judgment on a note he had forged, could he, when prosecuted for the forgery, object that it might have been proved in his action for the -debt 1 Tet that defense, at the common law, would be analogous to that made here.

The statutes have put into the hands of the Attorney-G-eneral two means of defending the public against frauds and inflicting their penalties on their perpetrators — one, the eleventh section of the act of 1863; another, this statute of 1868 — and I know of no rule of law and no reason which prevents the Attorney-General from using his discretion as- to which he will use in the performance of his official duty. Many cases are conceivable in which such a discretion would be expedient, as, for example, in a class of fraudulent cases it might be expedient to go through the trial of one to elicit circumstances and testimony which may lead to the detection of the fraud common to the class, and to suppress all suggestions of that till its proof was ripe. And the perpetrator of a fraud has no right or equity on which he can complain that his fraud was not proved under the eleventh section of the act of 1863 instead of the statute of 1868; and if that, in any case, should be an omission of official duty in the Attorney-General, that is a matter between him and the Government only.

In courts of common law, the only purpose of a new trial of an action for debt is to put iu issue the indebtedness which was put in issue before, and as to which issue the party moving for the new trial had had his day in court. And that makes the reason of the rule urged here for the petitioner. But a new trial under the statute has reference not to the indebtedness put in issue before, but to .a fraud practiced in its recovery. And the purpose of the statute is to put in issue that fraud, which was never ptit in issue before; and to punish it by the forfeiture of the claim proved to be due. And, therefore, the rules of courts of common law, as to new trials, have no applicability under this statute, except where the fraud alleged has been put in issue before. And that is not the case here.

It was argued at the bar that, by the ninth section of the act of 1855, establishing this court, new trials here were to be governed by the rules of the common law and chancery.

But the ninth section of the act of 1855 is, by its express terms, confined to a class of cases which it specifies and minutely describes, viz, decisions adverse to the petitioner, and reported to Congress and confirmed there. And'these circumstances are the reasons of the provision for the class specified and described, and therefore the section could not include other cases if it were in force now. But it is a provision for cases reported to Congress, and those only; and the act of 3d March, 1863, reconstructing this court, abolished reports to Congress, and gave, instead of them, appeals to the Supreme Court, and its repealing section expressly repeals all provisions inconsistent with its own. It necessarily, therefore, repealed the ninth section, providing only for cases reported to Congress.

And the ninth section of the act of 1855, and the statute of 25th June, 1868, are not in pari materia; for the ninth section relates exclusively to decisions adverse to the petitioner, and on contracts and debts, and it does not relate to frauds at all; neither does the act of 1855; while the statute of 1868 relates exclusively to decisions adverse to the United States, and procured by fraud, wrong, or injustice, so that their subjects are as different as contract and crime, and they refer to different parties in litigation.

It was claimed at the bar that this statute referred to the rules of the common-law courts as to new trials, in its provision for the admission of cumulative evidence, and that this express exclusion of one rule of the common-law courts was the tacit adoption of the others.

But the argument rests on the misuse of the rule it refers to. The rule referred to is 11 expressio unites est exelusio alterius.” But the argument used its converse, for which it is no authority; for though the express’ adoption of one rule is the exclusion of others, it by no means follows that the express exclusion of one rule is the adoption of others which would counteract the effect of the exclusion. And here the express provision as to cumulative evidence is to extend the operation of tlie statute and increase its efficiency; and that can furnisb no inference for tbe adoption of rules which would restrict the operations of the statute and reduce its efficiency.

It was contended at the bar that, by the general rules of construction, the statute is to be construed according to the rules of the common law, and that it. was a rule of the common law that a new trial should not be granted on evidence that might by reasonable diligence have been adduced at the trial.

It is certainly true that the statute is to be construed by the rules of the common law, for the rules of the common law are the formula of its principles, which are the basis of our system of laws. But the rule under which it is claimed the evidence should be excluded is not a rule of the common law. It is merely a rule of practice of the courts of common law, and statutes are never construed by these, because they have not the fixedness or authority of the rules of common law. They have not their fixedness, for they vary in different courts of different jurisdictions and iu different courts of the like jurisdiction. Thus the rules of practice which prevail in England relative to new trials of issues out of chancery are held not to be applicable to the circuit courts of the United States where the same judges that direct, superintend the trial of such issues. (4 Wash. C. O., 32.) So in equity new trials are granted on issues .directed to try the soil, though the judge who tried the issue certifies in favor of the verdict, because in equity it requires two verdicts in the same way to bind the inheritance, while in courts of common law one verdict is enough. So a new trial is granted if the judge who tried the issue was dissatisfied with the verdict, while in the common-law courts there is no similar rule. And in the courts of common law in England the rule formerly was that new trials were not granted where there was evidence on both sides, (Buller’s N. P., vol.' 6, p. 325,) while their modern rule is that new trials will be granted if the rule*is against the weight .of evidence and the judge is dissatisfied with the verdict. (13 Bingh. N. C., 109; 3 Scott, 513.) And in our State courts and in some of the circuit courts of the United States the rule formerly was that new trials should be granted if the verdict was against the weight of evidence, (2 Or. C. Ct., 478 ; 4 ib., 206,) while in many of the State courts and in the circuit courts of the United States the modern rule is that new trials will not be granted because the • verdict is against the weight of evidence where there is evidence on both sides and it is contradictory.

And the rules of practice of the courts of common law have none of the authority of rules of law, for rules of practice are made by the j udges only, and have only their authority in their own courts, and there they may abrogate or alter them or qualify them according to the circumstances of the particular case, or the changes in society and the times. The maxim for rules of practice is “ Oursus curice est lex curice,n which Mr. Broome translates thus, p. 119, “ the practice of the court is the law of the court; ” and he adds the remark made and repeated in the cases he cites that u there is a material difference between those things which are required to be done by the common law or the statute law of the land and things required to be done by the rules and practice of the court;” and he continues thus: “in a court of equity, as in a court of law, the maxim cOursus curice est lex curice7 is frequently recognized and applied. The court will, however, as remarked in several recent cases, adapt its practice and course of proceeding to the existing state of society, and not, by too. strict an adherence to forms and rules established under different circumstances, decline to administher justice and to enforce rights for which there is no other remedy.”

Thus different in fixedness and authority are the rules of .the common law and the rules of practice of the courts of the common law. And so clear is it that the authority of the latter is confined to the courts that make and may unmake them that it has come to be a maxim, Oursus curice est lex curice — “ The practice of the court is the law of the court,” and not of other courts; for that is the effect of the words, and is necessarily the case ; for one court cannot make rules of practice for another court, over which it has no judicial authority, and which is of a different jurisdiction. Yet that is what is claimed here, and much more is claimed; for it is claimed that a statute shall be controlled by a rule of practice of courts in 'which the statute is not to be executed, and that when the effect of the rule would be to restrict the operation of the statute and pervert it to the protection of the frauds it was meant to prevent, and which are specified in it. I know of no authority for such a proposition, and I think it was never made before.

And there is no similitude between a new trial in the courts of common law and under this statute. A new trial in those courts is to-day what it was in the beginning; then no statute prescribed it, and it was not the right of a party who had had his day in court, but it was and is a mere application to the discretion of the court, in every stage of its proceeding. And because there was no statute making, by its purpose and provisions, its own rule for its execution, as all statutes do, the courts of common law made such rules for the exercise of their discretionary liower over the general .subject of new trials as they deemed expedient for their own practice; but their rules of practice are not ours, and they áre not obligatory or applicable here, for courts of common law have no rules for the cases for' which this statute provides; for those courts never contemplated new trials directed by a statute, and in the court where the suit originated, after it had passed from its jurisdiction by appeal and was pending in the appellate court, or had been finally acted on there.

And this court is of special jurisdiction; and the Supreme Court has expressly decided, what our own action had affirmed from the beginning, that we are not bound by the rules of pleading of the courts of common law; and if we are not bound by their rules of pleading, we cannot be bound by their rules of practice, for the two are inseparably interwoven.

But cases here are under 'a statute specifically providing for them, and that distinguishes them from all cases as to new trials, civil or criminal, in courts of common law; for new trials there are not under a statute, but subject to the discretion of the courts’, and that alone gives them their «power to make rules for new trials; and I know of no authority in any text-book, decision, or dictum, that holds or suggests that a court of common law can by its rules of practice as to new trials control a statute prescribing them. And the proposition would seem to be self-evident, that where a statute prescribes a new trial in a case it specifies, it leaves nothing to the discretion of the court, and cannot be defeated by mere rules of practice.

And this statute, by the rules of the common law belonging to the statutes, is to be construed according to the ordinary meaning of its terms; and, so construed, it leaves to us no discretion as to whether we will protect the public or protect the fraud, for that is the alternative. The implication of such a discretion is from its nature impossible, and it is precluded by tbe terms of tbe statute ; for by tbe rule that where a statute directs a thing to be done for justice’s sake, 11 may” means “ shall,” this statute imperatively directs that where, u ou evidence,” we are satisfied of the fraud, we shall direct a new trial of the suit or claim.

Now, what is a new trial in its technical sense "1 Its definition in the test-books and on judicial authority is “ a re-examination, before a court and jury, of an issue in fact which has been tried at least once before,” (1 Hilliard, 1;) and this is the whole meaning of the words t( new trialand they describe a judicial proceeding, a substantive thing, entirely distinct from the different rules of practice which different courts may make for their own use; and such re-examination may be under one set of rules in one court and under another set of rules in another court of a different or like jurisdiction; or it may be, as here, under a statute which prescribes that a new trial shall be granted on a fact found, and thus makes its own rule, against which no rule of practice of any court can prevail.

Under the provisions of the statute, it is certain that where, on the hearing of a motion for a new trial, we are satisfied of the fraud, we cannot refuse a new trial, because that would be to defeat the statute. And for precisely the same reason we cannot reject any evidence which, from its legal quality, is competent and is efficient to prove the fraud. Where a statute makes it the duty of a court to find a fact a on evidence,” it makes it its duty to receive any legal evidence competent to prove the fact. In the case of The United States v. Crussel, appealed from here and decided at the present term of the Supreme Court, they said that whatever the decision of this court, might be, under a motion for a new trial under this statute, it could be reversed in the Supreme Court. And that would be a necessary consequence of the fact that under this statute we are not using a discretionary power, but performing a judicial duty prescribed by statute.

And I think this statute, like all statutes, is to be construed by the rules of the common law as contradistinguished from the rules of practice of the courts of common law ; and that these latter cannot be adopted here to remove from the statute cases which it specifies, and which otherwise would be within it. Yet that is the only possible effect of the rule claimed if this judgment is fraudulent. And it is its only possible effect in any cases of.fraudulent judgments; and the statute relates to no other.

The statute is remedial and penal. It is remedial so far as its purpose is to prevent frauds, audit is penal so far as it inflicts their consequences on their perpetrators. And the rule of construction of the common law for such statutes is stated by Mr. Darwin (p. 653) as follows: Statutes against frauds are a satisfactory exception to the rule that penal statutes are to be taken strictly. There is no contradiction, except in terms, in holding that where the offense is to be punished by setting aside a fraudulent transaction or an instrument improperly obtained the fullest effect shall be given to the provision framed to suppress the mischief.” And he cites these words from Lord Keeper Wright: “Chancery will aid remedial laws, though they are called penal, not by making them more penal, but by letting them have their course

And I think this statute is to be let to have its course by giving to its words their full effect to .suppress the mischief, according to the rule of the common law. And I do not perceive that this encounters the objections urged against it, for the motion for a new trial must be founded on “ a fraud, wrong, or injustice,” specifically alleged, and which has not been put in issue before; and the fraud or wrong must be done by the judgment-creditor, and the injustice must be such as makes it bad faith in him to use his judgment. And a new trial can be ordered only on evidence which satisfies prima facie the mind of the court. Fraudulent judgments are in themselves void, and their frauds shock the public sense, for they are deliberate, elaborate, and involve perjury and the persistent abuse of judicial proceedings; and if the public is to be protected against these frauds, the means the statute provides would seem to be as little onerous as any efficient means could be.

The laches attributed to the officers of the Government were used in augment only as the foundation for the rule of practice claimed from the courts of common law, but the question as to such laches is to be taken in reference to the statute and this court; and then the question is whether there is any rule authoritative here by which such laches, if proved, would preclude the Government, under this statute, from proving frauds within its letter, and the mischief it was intended to prevent. For the reasons stated, I think there is not. No rule of our own could bar or restrict the execution of an act of Congress; and I think we can borrow none for any such purpose.

Objections were made to the sufficiency of the affidavit on which the motion was presented. I think none was necessary. All acts done here by the Attorney-General, or under his authority, are done under the sanction of his official oath. The fraud in question was specifically alleged; and thus the respondent was informed of that to which he was to answer; and the court were enabled to judge if the allegation sustained the motion, and this was all that was of any practical use.

All process, civil or criminal, may be perverted to means of prosecution. But that is not to be anticipated here; and I think the purpose of it has not been indicated.

For the reasons I have stated in this case of John Silvey, I think the motion for a new trial should have been granted in case of The United States v. Edward Laplante.

Drake, Ch. J.,

dissenting :

The importance of the questions involved in the defendants7 motion for a new trial, constrains me to a somewhat full expression of the views which lead to my dissent from the conclusions announced by the majority of the court.

This motion requires the consideration and construction oí the second section of the “Aet to provide for appeals from the Court of Claims, and for other purposes,v approved June 25, 1868, (15 Stat. L., 75,) which is in these words :

“ That said Court of Claims, at any time while any suit or claim is pending before or on appeal from said court, or within two years next after the final disposition of any such suit or claim, may, on motion on behalf of the United States, grant a new trial in any such suit or claim and stay the payment of any judgment therein, upon such evidence (although the same may be cumulative or other) as shall reasonably satisfy said 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.”

This section makes inroads upon the common-law rules in regard to new trials in the following points:

1. While at the common law a motion fora new trial must be made while the ease remains in the court where the trial was had, this section authorizes such a motion by the Government •after the case has been appealed to a higher jurisdiction.

2. It authorizes us, by granting anew trial, to oust the jurisdiction of the appellate court while the case is pending there; which that court very justly pronounced an anomaly. (United States v. Ayres, 9 Wall., 608.)

3. It authorizes us to grant a new trial oven after the Supreme Court has affirmed the judgment of this court; which, to the legal mind, is a greater anomaly.

4. While in common-law courts a motion fora new trial must be made during the term at which the trial was had, and within a prescribed number of days after the trial, a motion under this section may be made at any time within two years after the final disposition of the suit, whether that be by the judgment of this court unappealed from, or by the judgment of affirmance in the Supreme Court.

i>. The familiar and long-established rule of the common law, that a new trial wall not be granted on cumulative evidence, is .swept away, and upon such evidence wre may grant a new trial.

6. While at the common law the granting of a new trial rests ordinarily in the sound discretion of the court, the terms of this section leave us no such discretion, if we are, upon evidence, reasonably satisfied” as therein specified; for, though the language is that we “ may grant a new trial,” yet 1 cannot doubt that may,” there, was intended to mean shall, as it usually does in statutes, the object of which would, be defeated without that •construction. (Minor v. Mechanics’ Bank, 1 Peters, 46.) The object of this section would be, at least, constantly subject to ■defeat, if it would not be actually defeated, by holding it to be discretionary with us to grant anew trial or not where evidence is properly brought before ns sufficient to “ reasonably satisfy ” us “that fraud, wrong, or injustice in the premises has been done to the United States.”

This legislation contrasts strikingly with that regulating new trials in favor of claimants, which, in Beeson & Shaio’s Cases, (6. C. Ols. 11., 227,) this court held to apply, and which forbids a new'trial to a claimant, “ unless such reasons shall be pre•sented as, by the rules of the common law or chancery, in suits between individuals, would furnish sufficient ground for granting a new trial.” Thus the claimants are held to those rules, while the Government prescribes for itself different ones. Legislation so unusual in making one law for claimants and another for the Government, the latter so unprecedented as to be justly styled an anomaly, must have a special and unusual intent as to the subject-matter and also as to this court, which the court should diligently seek to discover and carry out. I have very earnestly so sought, and will now proceed to state my views of the questions involved in this case.

In the first place, as to the subject-matter, the intent to throw the door wide open for the investigation, detection, and defeat of every kind, shade, and degree of “ fraud, wrong, or injustice-to the United States,” is manifest. And this is not only consistent with justice and right, but in consonance with, and furtherance of, previous legislation directed to the same end. The-eleventh section of the act of March 3,1863, (12 Stat. L., 765,), provides as follows:

That any person or persons who shall corruptly practice, or attempt to practice, any fraud against the United- States, in the proof, statement, establishment, or allowance of any claim, or 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 give judgment that such claim is forfeited to the-Government, and that the claimant be forever barred from prosecuting the same.”

Those two provisions indicate clearly to my mind the legislative conviction, that the Government would be in danger of suffering fraud, wrong, or injustice,” through the prosecution here of claims seemingly honest and just, but in fact fraudulent, wrongful, or unjust, the base character of which it would, in the nature of things, be difficult for the Government officers or the court to detect; and for the defeat of which enlarged time, increased opportunity, greater freedom of action, and unusual authority were demanded.

It is equally manifest to me from those sections, considered either together or apart, that the legislature intended to devolve upon this court, in an express and-special manner, the protection of the United States against fraud, wrong, and injustice,” and to clothe it with powers to that end. And it is a significant -and noteworthy -fact, that this peculiar legislation began with the change in the character of this court which took place in March, 1863, under the act last cited. ' Prior to that time the court had no power to render judgments against the United States, but only to report upon claims to Congress• which revised its action, and paid the claim or not, as it saw fit. Simultaneously with the conferring of our present judicial powers, and the abandonment of direct congressional revision, the section last cited was enacted; designed, beyond doubt, to impose upon this court the duty (theretofore performed by the Congress itself) of guarding the Government against “ fraud in the proof, statement, establishment, or allowance of any claim.” As before remarked, the act of June 25,1868, was in furtherance of the purpose of the act of March 3,1863; and it laid upon this court the additional duty of protecting the Government (as the Congress had previously stood in a position to do) against“ wrong and injustice,” as well as fraud. No higher duty could be exacted of, no more eminent trust reposed by a government in, a judicial tribunal, than those laws exact from and repose in this court. Nor can be found elsewhere, so far as I know, such extraordinary and anomalous powers conferred upon a court as are therein delegated. To perform that duty and fulfill that trust the court is bound, regardless of interfering common law rules of practice. No such rule, as against that obligation, has, in my judgment, any force here.

These are my views of the general intent and purpose of the acts referred to, as to the subject-matter and as to this court. We will now look into the specific effect of the act of 1868 as our rule of action.

In the argument the claimant’s counsel cited, as the common law rules in regard to new trials for newly-discovered evidence, the following, viz: 1. That the evidence must be newly discovered. 2. That the party must show that he used due diligence to obtain the evidence before the trial. 3. That the evidence must, be relevant and material. 4. That the defense must be meritorious. 5. That the evidence must not be cumulative. 6. That the motion must be made in apt time.

The counsel admit that the fifth of these rules is superseded by the provisions of the act of 1868, and that the sixth is met, and the motion in “apt time.” Only the first four are claimed to have any bearing on this case.

As to the third and fourth, they are not peculiar to cases of this description, but apply equally to all defenses and the evidence supporting them. The defense sought to be let in here would undoubtedly, if established, defeat -the claimant’s suit, and it is, therefore, meritorious. The evidence tends to support .that defense, and it is, therefore, relevant and material. The requirements of the third and fourth rules are therefore met. Only the first and second of those rules remain to bear upon the case. Let us examine their bearing.

In regard to the second, I deny its applicability to the Government; for, in my view, the question of diligence cannot be. raised against the Government in this case, if it ever can in any. To challenge the Government’s diligence necessarily includes judicial right to hold it guilty of laches. But the settled law, as declared in repeated decisions by the Supreme Court, is, that laches cannot be imputed to the Government on account of its officers. If, then, we cannot impute laches to the Government, we may not inquire whether it has used due diligence. This rule is, therefore, as effectually abrogated in favor of the Government as that in regard to cumulative evidence is abrogated by the act of 1868.

Under ordinary circumstances it would be sufficient merely to refer to those decisions, but I deem it proper, in this connection, to present them more extendedly. ”

The first case was that of United States v. Kirkpatrick, (9 Wheaton, 720.) This was an action by the United States against the sureties in the official bond of a collector'of taxes and duties; and the question was whether laches could he imputed to the Government from the delay'of the proper officers to call the collector to account at the periods provided by law, from the year 1814 to 1818. The law required them to do so, and further, required the Comptroller of the Treasury, in case any collector should fail to collect, or to render his account, or to pay over quarterly, or sooner if required, the moneys by him collected, immediately after such delinquency, to issue a warrant of distress against the delinquent collector, to be levied upon his personal estate; and in case that should prove insufficient to satisfy the warrant, then upon his real estate. The Comptroller neglected to perform those duties. Upon the bearing of this neglect upon the case, the court said: u As to the point of laches, we are of opinion that the charge of the court below, which supposes that laches will discharge the bond, cannot be maintained as law. The general principle is that laches is not imputable to the Government, and this maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The Government can' transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities. On the other hand, the mischiefs to the agents and their sureties would be scarcely less tolerable.”

In United States v. Vanzandt, (11 Wheaton, 184,) the suit was upon the official bond of a paymaster of the United States Army. The law made it the duty of- the paymaster to make report to the Pay master-General once in two months, showing the disposition of the funds previously transmitted, with accurate estimates for the next payment; and farther provided that “whenever any paymaster shall fail to transmit such estimate, or neglect to render his vouchers to the Paymaster-General for 'the settlement of his accounts, more than six months after receiving funds, ho shall be recalled and another appointed in his place.” The paymaster neglected, for a period of more than six months after receiving funds, to make report and estimates, and was not recalled; but, notwithstanding, additional funds were placed in his hands. It was contended by the sureties that the law left no discretion in the proper officer of the Government to continue the paymaster in office after his delinquency, but that he ceased thereafter to be paymaster, and the responsibility of his sureties was terminated. In reference to this position the court said:

“It must be conceded that the iujunction on the proper officer of the Government to recall the delinquent paymaster is expressed in very strong language; but whether .the omission to perform the act amounts, under every possible circumstance, to a breach of official duty may admit of some doubt. * * * The officer whose duty it may be to recall him, acts upon his own responsibility to the Government by declining to do so; but, until he acts otherwise, the paymaster is authorized, notwithstanding his delinquency, to receive and to disburse the funds which may be placed in his hands.

“The attempt to distinguish this from Kirkpatrick’s case is made upon the ground that that was purely a case of laches; whereas, in this, an unauthorized act was done by the Government in confiding funds to the disposal of a public defaulter, whom the Government was bound by law to have dismissed from office. But will it be contended that the obligation to dismiss this officer was more imperative than that imposed upon the Comptroller to call the collector of direct taxes to account at the periods prescribed by law, and, in case of delinquency, to pursue the summary remedy which the same law provided for the safety of the public, and, consequently, for that of the surety % The neglect in the one case and in the other imputes laches to the officer whose duty it was to perform the acts which the law required; but, in a legal point of vieiv, the rights of the Government cannot be affected, by these laches.”

In United States v. Nicholl, (12 Wheaton, 505,) the court reaffirmed the doctrine declared in the cases of Kirkpatrick and Yanzandt, but without specifically applying it.

In Dox v. The Postmaster-General, (1 Peters, 318,) the question was again considered. This was an action against the sureties in the official bond of a postmaster. The defense set up was that the postmaster was removed from office on the 1st of July, 1816; that the Postmaster-General did not open an account against him, and make any claim and demand on him for the moneys received by him as postmaster until the 1st day of July, 1821; that at the time of his removal from office he was solvent and able to pay his debts, and continued so until the 1st day of July, 1819, after which he became insolvent and continued to be so; and that the Postmaster-General, well knowing that the postmaster had neglected and refused to pay over the moneys due from him at the end of every quarter, did not commence a suit until August, 1821.

These facts,” say the court, “ placed on the record, without explanation, must be admitted to show a gross neglect of duty on the part of the Postmaster-General. Does this neglect discharge the sureties from their obligations 1 The condition of the bond is broken, and the obligation has become absolute. Is the claim of the United States upon them released by the laches of the officer to whom the assertion of that claim was intrusted ? This question also has been settled in this court.”

The court then refer at length to the cases of Kirkpatrick and Yanzandt, and say, in conclusion:

“ These two cases seem to fix the principle that the laches of the officers of the Government, however gross, do not of themselves discharge the sureties in an official bond from the obligation it creates, as firmly as the decisions of this court can fix it.”

Finally, in Gibbons v. United States, (8 Wallace, 269,) the ■court referring to the cases of Kirkpatrick and Dox, say that they established the principle that even in regard to matters ■connected with the cause of action relied on by the United States, the Government is not responsible for the laches, however gross, of its officers.

The only case I have found which would seem to hold any ■other views than those expressed in the cases thus cited, is United States v. Barker, (12 Wheaton, 559,) decided at the same term at which, in Nicholas Case, the court re-affirmed the doctrine laid down in the cases of Kirkpatrick and Yanzandt. The presumption that the court would not be likely to antagonize its decisions at the same term is fully borne out by an examination of the case itself.

The action was by the United States, as indorsee, against Barker, as indorser of certain bills of exchange, and in. the language of the court, the question was “whether notice of the dishonor of the bills was transmitted to the party within the time prescribed by the general law in respect to bills ■of exchange.”

The court, in a very brief opinion, proceeding evidently upon •the ground that the Government, as a holder of a bill of exchange, is bound “by the general law in respect to bills of exchange,” and cannot charge the parties to such paper unless it comply with that law, decided that, because of the neglect to give timely notice to the indorser of the dishonor of the bills, the United States could not recover.

The difference between this case and the others cited is manifest. In them the attempt was to deprive the Government, through the laches of its officers, of a right of action which had, by law, accrued to it. In this case whether any right of action had accrued at all to the Government depended on the general law, and under that law the court held that it had not. The ■difference is clear, and the absence of conflict plain.

In the light of these repeated rulings of the Supreme Court, I am constrained to hold, that the question of due diligence on tbe part of tbe Government in finding and producing’ evidence in cases pending here, is not one to be considerered; for we may not consider a question wbicb we bave not the power to press to all legitimate conclusions, as we could not this. We might find, on the one band, that tbe Government bad used due diligence; but, on tbe other, we could not, without disregarding tbe decisions of tbe court whose decisions govern us, find that it bad not; or, in other words, that it had been guilty of laches.

True, those decisions were given in cases where tbe Government was prosecuting claims against individuals; but will it be questioned that tbe principle they establish is equally applicable to its defenses against the claims of individuals ? Or will it be contended that a principle of such high import may be invoked to control our judgment on the merits, but, upon a motion for anew trial, must yield to a rule of practice? If either is to be so held, then it seems to me the way is clear — a broad and alluring highway, for easy and indetectable collusion between corrupt officials and fraudulent claimants. If this court refuses to consider evidence of “fraud, wrong, or injustice to the United States,” because, in its opinion, due diligence was not used by some Department officer, or agent of the Government, to procure and present the evidence at the trial, is it not in danger of becoming a shield to wrong-doers 1 May it not, by such a course, some time find itself confronted with the maxim, old, at least, as the days of Lord Coke, Idem est f acere, et nolle prohibere cum possis — it is the same to do a thing, as not to prohibit it when in your power ? And can the court justify its inaction by appealing to a common-law rule of practice, not imposed upon it by any statute, but which il has the undoubted right to disregard at will, and which the universal conscience would say it ought to disregard, in favor of justice to the Government that looks to it for protection against “fraud, wrong, and injustice?”

I see no evidence anywhere in the laws of the United States of a purpose to stake the Government’s interests upon such a point. The act in question was passed many years after the Supreme Court had declared the principle of non-imputation of laches to the Government, and it must be considered to have been enacted with reference to that principle. So regarded, it leaves the matter of evidence, in such a ease as this, as entirely free from any question of due diligence or laches, as if the act itself had declared, in terms, that no such question should be raised. And if so, the plain, simple point upon which we are to be “reasonably satisfied” is whether “fraud, wrong, or injustice has been done to the United States.” If we find it has, then I hold it to be our imperative duty to rectify it by granting a new trial 5 and no rule of practice would impede me for a moment in the discharge of that duty. The legislation in regard, to this court clearly indicates to me — as do also the decisions of the Supreme Court — that we are not to be trammeled by technical rules, but are to look into the very right and justice of every case, and suffer no “ fraud, wrong, or injustice to the United States ” to prevail. Howsoever, through whatever instrumentality, from whatever cause it was done, it is, by express law, made our duty to see it undone.

■ This is no more than the simplest fairness and justice toward a Government which, of its own mere motion, unimpelled by any constitutional requirement, creates a tribunal in which itself may be sued by the citizen. And it works no detriment to any honest claimant, through the delay incident to a new trial, which is not far more than compensated by giving him here an appeal from adverse departmental decisions, which would otherwise be final, and saving him from the endless delays, perplexities, disappointments, and ruinous expenses which beset an application to the Congress for relief. He who, by the Government’s own beneficence, is provided with such a recourse against it, cannot justly complain if his case is required, by law, to be untainted with “ fraud, wrong, or injustice,” nor if this court administers the law with fidelity.

I am quite aware that the views thus stated do not coincide with some expressions in the opinion delivered by this court, through me, in the case of Child, Pratt <6 Fox, (6 C. Cls. It., 44,) but that is no reason for their suppression. Upon reconsideration, I am satisfied that in two points — one of doctrine, the other of language — that opinion needs rectification and restatement.

On the first point, that of doctrine, it is now clear to me that the rule in Garrisords Case, (2 C. Gis. B»., 382,) upon a motion by a claimant for a new trial, should not have been applied to such a motion by the Government. The difference between the statutory provisions applicable to the two cases was not there duly considered, nor was the doctrine of non-imputation of laehes to the Government.

The second point is connected with two short sentences in the opinion upon which, severed from the context, great stress has been laid; but which, when fairly examined with the context, are entitled to no such force as is attributed to them. The unguarded use there of the single word laches, in a connection not requiring, nor, indeed, justifying its use, has afforded opportunity for giving- to those sentences, and to the decision, a meaning not authorized by the facts. The sentences referred to are the two concluding ones of the following paragraph:

u But it is claimed that injustice, within the intent and meaning of that section, has been done to the defendants, and that this court is authorized, if not required, for that reason, to grant a new trial. This point, like the others, is connected with the evidence proposed to be introduced to prove the fact of a voluntary submission. Though, as we have shown, that evidence, so far as presented here, would be insufficient to establish that fact, yet we will consider it; and what do we find? Simply that the alleged injustice results solely from the omission of defendants’ counsel to offer at the trial the very evidence now sought to be introduced, though it was as well known to the defendants and their counsel then as now; was then, as now, in their possession; and could as well then have been introduced as it could now be on a new trial. If its non-introduction at the trial was an injustice to the defendants, it was inflicted by their own officers, and not in any measure by the claimants. We Tcnow of no law which would allow a party thus to talce advantage of his own laches. The simple design of this section, as it appears to us, is to protect the Government against unconscionable advantages gained over it, without laehes or mistake on the part of its officers; not to give it unconscionable advantages over claimants through such laches or mistake.”

An examination of this paragraph cannot fail to carry the conviction that the word laches was unguardedly and unadvisedly used there, as applicable to the omission by defendants’ counsel to produce at the trial evidence which was then in their possession. The simple substitution of omission for laches would make those sentences consistent with the previous part of the paragraph, where omission was used, and with the facts of the case; whereas, in their present shape, they are not consistent with either. There was, in fact, no question of laches in that case. Omission is not necessarily laches. Whether so or not, ■depends upon the circumstances under which it takes place. Laches is neglect to do,under given circumstances, what duty required to be then done. There, the defendants’ counsel had in their hands at the time of the trial certain evidence, which, in the exercise of their judgment as counsel, they saw proper to withhold, and afterwards sought a new trial to enable them to produce. No law made it their duty to offer it at the trial; that was left by the defendants to their discretion. In,discussing the subject, the expressions were used to which such great and undue importance has been attached; undue, because the law declared lay not in those sentences, but in a succeeding one, where the point decided was thus finally stated :

“ We do not, therefore, see in this section any authority— much less requirement — to award a new trial to the defendants on the ground of injustice, because at the trial their counsel held back evidence which was equally within their knowledge and their power to produce.”

This was the law declared by the court. The sentences in question were not given as the law of the case, were not at all necessary to the conclusion reached, could have been entirely omitted without affecting the conclusion, and cannot rightfully be regarded as more than the dictum — now seen to have been erroneously expressed — of him who wrote the opinion.

I am gratified at the opportunity of thus indicating the erroneous points in the opinion delivered in that case. Should any others hereafter appear to me, I shall not hesitate to make it known, as occasion may require. Opinionativeness has a low' place in my esteem as a judicial virtue, or as a refuge of truth.

Returning from this digression, 1 proceed to consider the bearing of the only remaining common-law rule urged by claimant’s counsel, viz, that the evidence in support of a motion for a new trial must be newdy discovered.

It is needless to discuss the question whether this is obligatory here as a common-law rule, for, in the case of Child, Pratt & Fox, it was, in effect, deduced from the section in question. We there, held two points: 1. That the evidence relied on must not have been before us at the trial; and 2. That it was not, at the time of the trial, known to the officer representing the defendants here. To these positions I adhere. But it will at once be perceived that they do not meet the requirement of the common-law rule. The difference between the two is in this, that under the common-law rule the evidence must have been newly discovered by the jparty moving for a new trial, but under the statutory rule we required only that it should not have been known to the defendants' counsel at the time of the trial. Upon this difference there is a question of importance, which should be considered.

The Government being a corporate body, an impersonal entity, it can, per se, know nothing, discover nothing. But it must, in some way, know and discover a great multitude of things, and must, when it assumes the character of a litigant, be in some way chargeable with knowledge. In a suit, therefore, between it and an individual; the question arises, Sow is the Government to be charged with knowledge of anything pertaining to the subject-matter of the litigation ? The answer is, only through the officers or agents upon whom, by law, rests the duty of acquiring and using such knowledge. In this court those officers are the Attorney-General and his assistants. What they know the Government knows; what they do not know the Government, pro hoc vice, must be held not to know.

When, therefore, the question is presented whether particular evidence is newly discovered, we have, in my judgment, but one point to determine, and that is, whether it was known to those officers at the time of the trial. If it was not, then, for the purposes of the case, it is as much newly discovered by the Government as if the Government Avere an individual and spoke from and of his individual knowledge. If, on the other hand, it was then known to those officers, the Government is, for the purposes of the case, chargeable with that knowledge.

Is it then, in this case, made to appear that the evidence relied on is newly discovered1? To show this the defendants rely upon the affidavit of Mr. Johnston, who is employed in the Department of Justice, and whose duty it is, in that employment, to defend this suit in this court; and he swears that he “has reason to believe, and does believe, that the evidence was discovered since the trial of this case.”

I admit that this is not such a statement as, under the common-law rule, would be required of an individual; but it is quite vain to attempt to subject the Government here to the same rules, in all things, as in common-law courts are applied to individuals. Its impersonal character makes that impossible. Upon such a motion as this the great question is, whether “ any fraud, wrong, or injustice has been done to the United States1?’ The statute requires us to decide that question “upon such evidence, although the same may he cumulative or other, as shall reasonably satisfy;” and it does riot say hoto it shall be got before us. It is admitted on all hands that those words entirely abrogate the old and well-established common-law rule against granting a new trial upon cumulative evidence. Is it supposáble that a law which thus establishes a new rule, contrary to the common law, as to the character of the evideuce, intends that we shall, as to its admission, stand upon the ceremony of a fit common-law introduction, in default of which the evidence, however conclusive, shall be shut out! I do not read there such an intent. On the contrary, my opinion is, that, no matter how the evidence gets before us, if its existence was, at the trial, unknown to the officers representing the Government here, we are bound to consider it. No statute makes any common-law rule of practice obligatory on this court, with the single exception of those applicable to motions by claimants for new trials. The court, by its amended organic act, u may prescribe rules and regulations for practice therein.” In the absence of an exercise of that authority, the court may, if it please, govern itself by common-law rales of practice; but it may also disregard them, partially or wholly, at its pleasure. On such points, it is, in iapt, with the single exception before stated, its own lawgiver. That was, in effect, established when it was held here, and also in the Supreme Court, that we are not bound by technical rales of pleading; for if we are not bound by technical rules of pleading, how and by what authority are we bound by technical rules of practice i I hold no such rule obligatory when it obstructs the investigation, to every needed extent, of “fraud, wrong, or injustice to the United States.” Therefore, though Mr. Johnston’s statement be not such as would, in a common-law court, be required of an individual, yet I consider it sufficient to authorize us to receive and consider the evidence in support of the motion.

The question, then, comes up, What kind and amount of evidence should be held sufficient, under the section in question, to “ reasonably satisfy the court that fraud, wrong, or injustice has been done to the United States!” This matter has been twice before this court, and should be regarded as settled. In Tait’s Case (5 O. Cls. B., 638) a new trial was granted, on motion of the Government, upon evidence which was considered, prima facie, sufficient to “reasonably satisfy” the court, as indicated in that section. In Ayers’s Case (5 0. Cls. B., 712) the evidence upon which the motion rested was, first, an official bond to the so-called Confederate States of America, given by an assistant quartermaster, in which Ayers was security; and, secondly, a written agreement between Ayers and a rebel captain, on behalf of the Confederate States, to do work in the Macon arsenal. Bo evidence whatever was given tending to prove the execution of either of those papers by Ayers. The claimant objected to their competency or sufficiency as proof, because no such evidence was given; but the court held that the proof was of the kind and character admitted by courts on the hearing of motions for new trial, and that it made out a prima-facie case sufficient for the purposes of the motion, and entitling the Government to a new trial; and in the syllabus of the case is found, what is not in the opinion of the court, this statement: “Hence it is not necessary for the defendants to prove a bond by the subscribing witness, but' to show a reasonable probability that they can prove it on the trial.”

That the doctrine of these decisions is correct, I have no doubt. In requiring only a prima-facie case to be made out by the Government — only a “reasonable probability” that on a new trial the alleged defense can be proved, the court was in the line of meeting the high responsibility devolved upon it, as set forth in the opening part of this opinion. I propose to follow that well-considered lead.

There is one other point of view in which I would set this whole matter.

Intrinsically, and aside from the evidence before us, the claim sued on is either just or unjust.

If it be in reality just, the claimant has nothing to fear from a new trial. Nor can he by any possibility lose his claim if a new trial be granted and he obtain judgment again. All that he would, in that event, lose, would be the use of the money until the new judgment should be paid.

On the other hand, if the claim be in reality unjust, our refusal of a new trial takes from the Treasury $27,715.38, besides interest, which ought not to be taken from it.

When the possible loss through our action is so greatly dis-proportioned between the parties, is it not more consonant with sound principles, with conscience, and with the probabilities of eventual justice, that, even though not as fully satisfied by the evidence as we might desire, we should lean toward protecting the public against so large a loss, rather than toward saving, the claimant from one so small ? A fundamental maxim, probably, in some form, as old as civilized society itself, is, That the law would rather tolerate a private loss than a public evil; and the legislation to which reference has been made is clearly conceived in that spirit. Can we safely disregard both the maxim and the legislation ? Not, in my opinion, without dereliction in duty to the public interests committed to our charge.

Finally, as to the evidence adduced in support of the motion, I do not propose to discuss it. In a dissenting opinion, which can have no controlling force or effect, such a discussion is not demanded. My object has been to state my views of the law. It is sufficient to say that, in my judgment, the evidence makes a prima-facie case, which -“reasonably satisfies” me that “wrong and injustice,” if not fraud, “have been done in the premises to the United States,” and that a new trial ought therefore to be granted.  