Court of Errors and Appeals, Rogersville.
November Term, 1817.
[S. C. ante, 10.]
A bill of review will not lie to correct a decree in a formal or immaterial matter, as, for example, to direct the surrender of papers, where the decree settled the rights of the parties in regard to them.
Nor to correct an error in the calculation of costs, for that may be done by a new calculation, on motion.
Nor for drawing erroneous conclusions from the evidence, which should be rectified when the decree is read, or by rehearing.
Nor for newly discovered evidence, where the negligence of the party was the cause of its not being sooner discovered.
A bill of review for errors of law may be filed without leave of the court; but not as to matters of fact.
[Cited in: 1 Heis., 762; 2 Chy., 87; 3 Chy., 213; 1 Lea, 60; 5 Lea, 170.]A bill of review was now presented in this cause, which was decided at the last term, and a decree then made. It contained a charge of errors of the Court in
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matters of law, in not directing the articles to be returned to Forgey which had been executed between him and Henderson, and which he bad assigned to Young.
Per Curiam.
Henderson, Young, and Forgey, all being parties to the decree, are bound by it, so that Forgey can never sue Henderson upon these articles. And he. Forgey, could not be benefitted by the possession of them. Another assignment of error was, that a greater sum had been allowed in calculating costs than ought to have been, and the Court said such errors might be corrected by a new calculation by the direction of the Court without a bill of review. Also the bill of review stated that the Court had erred in drawing conclusions from the evidence given in the cause. And the Court said that ought to have been rectified when the decree was read to the Court in presence of the opposite counsel for correction, before it was received as a decree to be entered; and also again by rehearing if the mistake was not discovered till after the decree was received and entered. Another statement was, that new proof has been discovered since the trial which shows that the plaster which was so injurious to the negro, who was the subject of the suit, was not put on by Forgey; and to this the Court answered that the decree did not proceed at ail upon that fact, but upon the neglect of Forgey to administer medical aid when needful. It was further stated in this bill that proof has been discovered since the trial to show that the negro was well after he went to Young; and the Court answered to this, that new evidence, as to the fact which was in issue before, is receivable, but the matter now stated, if proved, would not overturn the testimony the decree was founded on; also, negligence was the cause of not discovering this testimony in time, for the deponents, at least the most material of them, reside in the neighborhood of Forgey, and one of them is his brother. Forgey can file his bill so far as it respects errors in law,
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notwithstanding any opinion of the Court therein at this time. But as to the matters of fact, he can not tile it without the consent of the Court, and that assent in this instance is withheld.