#### JARIB L. SANDERSON v. THE UNITED STATES AND THE CHEYENNE INDIANS.

[Not reported in the Court of Claims; 210 U. S. R., 168.]

*On the claimants Appeal.*

On June 8, 1891, the claimant herein filed his petition in the Court of Claims under the Indian depredation act of March 3, 1891 (26 Stat. L., 851), alleging the taking of certain property from the firm by the Cheyenne Indians and that at the time of said depredations said Indians were in amity with the United States.

Subsequently to such depredations two of the members of the firm died, and at the time of the filing of the petition the claimant was left as the sole surviving partner.

Under the acts of Congress of March 3, 1885 (23 Stat. L., p. 362, chap. 341), and May 15,1886 (24 Stat. L., p. 44, chap. 333), the claim had been submitted to the Secretary of the Interior for investigation, who reported to Congress that the *591firm had a just and equitable claim upon the United States for $7,740.

After the filing of the petition the parties agreed on the facts as to the taking of the property by the Cheyenne Indians and also that at the time of the depredations said Indians were in amity with the United States, and thereupon the case was submitted to the court and judgment was entered in favor of the claimant October 11, 1892, for the sum of $7,740, the amount which had theretofore been reported to Congress by the Secretary of the Interior.

On October 6, 1894, while the court was in recess Assistant Attorney-General Howry filed a motion for a new trial in accordance with the provisions of section 1088 of the Revised Statutes, on the ground that at the time of said depredations the Cheyenne Indians were not in amity with the United States.

On April 13,1896, the Court of Claims granted the motion for a new trial and upon the new trial found as a fact that at the time of the several depredations complained of the defendant Indians were hostile, and thereupon, on April 23, 1906, dismissed the petition.

On September 17, 1906, the claimant moved to vacate the judgment entered upon the new trial dismissing the petition and asked that the original judgment of October 11, 1892, be reinstated and affirmed. The motion was denied and on December 24, 1906, the claimant appealed to the Supreme Court of the United States.

The decision of the court below is affirmed.

The Supreme Court holds:

“A motion for a new trial on behalf of the United States in the Court of Claims under the provisions of section 1088, Revised Statutes, may be made any time within two years after final disposition of the claim, and, if so made, the motion may be decided by the court after the expiration of the two years’ period.

“ While ordinarily a court has no power to grant a new trial after the adjournment of the term if no application was made previous to the adjournment, the power so to do can be given by statute, and where a government consents to be sued, as the United States have in the Court of Claims, *592it may attach whatever conditions it sees fit to the consent and give to itself distinct advantages, such as right to apply for new trial after the term, although such right is not given to claimants.”

Mr. Justice Peckham

delivered the opinion of the Supreme Court May 18, 1908.

Judge Howry, having been of counsel for the United States in this cause in having the original judgment set aside, took no part in the decision.