#### ELLEN BURLESON v. THE UNITED STATES AND THE COMANCHE INDIANS.

[Indian Depredations, 6302.

Decided March 31, 1913.]

*On the claimant's Motion.*

The petition alleges that the depredation was committed in 1867 (when the Indians were in amity) ; the claimant’s witnesses testify that the depredation was in 1868 (when the Indians were not in amity) ; the court dismisses the petition; the claimant moves for a new trial.

I. On a motion for a new trial, it requires more than a mere assertion of witnesses that they were mistaken as to the date stated in their depositions when the mistakejs of vital importance and judgment has been rendered adversely to the party on their testimony.

*261II. Where it appears by contemporaneous letters and papers that the claimant acted in good faith when she alleged that the depredation was committed during a year when the Indians were in amity, and that her witnesses may have been mistaken when giving the date of the year, and that the fact can probably be rendered certain, the court will grant a new trial for that purpose.

*The Reporters’*statement of the case:

The facts relating to the motion appear in the opinion of the court.

*Mr. Harry Peyton*for the motion.

*Mr. Assistant Attorney General WilUam H. Lewis*opposed.

BaeNey, J.,

delivered the opinion of the court:

This is a motion of the plaintiff for a rehearing of a former motion for a new trial, the same having been- denied on the former hearing. In effect it is a second motion for á new trial, and which this court is unwilling under ordinary circumstances to entertain, much more to grant; but the peculiar features of this case have taken it out of the ordinary, and after mature consideration a new trial has been granted.

The single question involved in this case is the date of the depredations. That the loss occurred in either 1867 or 1868 is beyond question. The original petition, filed December 24, 1891, alleged that the loss occurred in the month of October, 1867. The first depositions filed in this court in support of the claim showed that the loss occurred in October, 1868. Shortly thereafter, and before this case was brought to trial, this court decided the defendant Indians to have been in amity in October, 1867, but in a state of nonamity in October, 1868. Thereupon the plaintiff filed revised and new depositions purporting to show that a mistake as to dates had been made in the .original depositions, and that the depredation actually occurred in October, 1867, as alleged in the petition filed. It is unnecessary to say that the presumption or suspicion aroused that this revision of memory was brought about by the decision of this court on the question of amity had much to do with the dismissal of the petition when this case was brought to trial. It took much more than the evidence offered to remove such presumption — much more than *262the mere assertion that the witnesses were mistaken as to dates.

Upon the hearing of this motion some facts and circumstances (more convincing than the mere assertion of witnesses) were produced which have tended to remove this presumption. Among others, an affidavit made by the plaintiff in January, 1891, in which she says that the depredation occurred in October, 1867; a letter from Isaac It. Hitt, her attorney at that time, written in November, 1896, calling her attention to the discrepancy in her petition .and deposition, but with no intimation as to the decisions of this court upon the question of amity; and her reply thereto shortly thereafter, in which she says that the depredation was in 1867. It also appears that at the time of the depredation a man by the name of Devine was killed by the Indians; and although this fact appeared upon the former trial, no effort seems to have been made to prove the date of his death independent of the depredation. It appears to us that such an effort might prove fruitful.

Of course, this court is anxious not to do an injustice to the plaintiff which might arise out of .an honest mistake, and upon the showing at the rehearing was inclined to give the plaintiff another opportunity to show the date of the loss. As already stated, the said showing has only tended to remove the presumption which naturally arises from the suspicious circumstances of the case, and proofs presented upon the new trial must be proportionately strong to effectually remove it.

A new trial is granted accordingly.