
    Burts v. Beard.
    1. Bill of Review. Practice. A bill of review lies where there are errors of law apparent on the face of the decree, or where some new matter of fact relevant to the case has arisen since the enrollment, which could not, with reasonable diligence, have been discovered before. Under our practice, the pleadings in the original case may be looked to, and if admitted facts show there is error of law in the conclusion drawn from these facts, the bill of review will lie. The question is, whether taking the facts as stated, there is error of law on the .face of the decree.
    2. Same. Military necessity. In this case the bill of review gives the substance of the pleadings in the original case, which the demurrer admits to be correctly set forth. The military order relied on as a defense is an exhibit to the answer. The decree complained of, is predicated upon the sufficiency of this defense. The order may be looked at in connection with the decree and pleadings. It appears to be simply a permit to cut timber upon the land of complainant, given by one styling himself “ wood agent,” and acting under the order of one styling himself “ superintendent.” There is error of law apparent upon the face of the decree, which concludes that this order is a justification. The order emanated from no known military authority, and upon its face imports no military necessity or compulsion. It is at most only a permission to do the acts complained of. The relief asked for in the bill of review is therefore granted.
    PROM WASHINGTON.
    Appeal from decree of the Chancery Court at Jones-boro, November Term, 1871, dismissing bill of review upon demurrer. H. C. Smith, Ch.
    Ingersoll, for complainant.
    J. G. Deaderick, for defendant, who said:
    
      Complainant filed his original attachment and injunction bill in the Chancery Court at Jonesboro, June 29, 1865, against W. M. Grisham, Jas. S. Beard Sol. Saylor and C. Sandford, to enjoin defendants from committing waste on his premises, etc., and attaching timber or wood already cut.
    Grisham disclaimed any connection with the trespassers.
    Beard answered, admitting" that he and Saylor had cut 155-J cords of wood, . but that they cut it as agents of the United States Government, and for military purposes, and under direction and authority of the military authorities; and denies other matters of aggravation stated in the bill; and states that at the time the timber was cut this State was under military rule, and files the order under which he acted; and that respondent had no interest in the matter — was simply paid by the Government for his labor.
    Saylor and Sanford did not answer.
    Proof was taken, and at the.November term, 1868, a decree was pronounced dismissing complainant’s bill, from which complainant prayed an appeal, but failed to execute the bond therefor as required. On the 7th of August, 1871, complainant filed his bill of review, to review and reverse said decree of November term, 1868, for errors apparent therein. On November 28, defendant Beard filed his demurrer to said bill. At the November term — to-wit, December 8, 1871 — the demurrer was argued and the bill of review dismissed, and complainant appealed to this court.
    
      It is insisted for defendant, that there is no error in the judgment or decree dismissing the bill. The original cause was tried and the bill dismissed, and complainant prayed and obtained an appeal, but failed to execute bond, etc., and thus by his own laches lost any rights he had, for the decree, if erroneous, could have been reversed in this court on appeal.
    A bill of ■ review may be brought upon an error of law apparent on the decree. But the error complained of must not be a. mere error in the decree, as on a mistaken judgment, which, in effect, would render a bill of review a mere substitute for an appeal; but it must be for an error apparent on the faee of the decree, as in the case of an absolute decree against an infant. See Adam’s Equity, 416; 2 Daniel’s Ch. Pr. and PL, 1632.
    The error of law complained of, and for which the decree is sought to be reviewed, is contained in the following clause thereof: “And it further appearing to the Chancellor, under the plea of justification under the laws of the United States, and by military authority acting thereunder, that the said defendants, James S. Beard, Solomon Saylor' and Charles Sanford, were acting under such authority from the military authorities, ... as provided for by the Acts of Congress in such cases made and provided.” This is-a Conclusion of fact, for which a bill of review will not lie; and this court cannot look to the evidence to ascertain whether that conclusion is correct or not. 2 Daniel’s Ch. PI. and Pr., 1631, note, and authorities there cited; Young v. Henderson, 4 Hay., 189. 
      Eaton v. Dickinson, 3 Sneed, 397; 5 Sneed, 661; Story’s Eq. PI., sec. 407.
    A bill of review will not lie to correct or alter a decree for costs. • Clark v. Clark, 4 Hay., 36.
    The .bill is defective because it does not embrace all the parties to the original bill.
   Sneed, J.,

delivered the opinion of the court.

The complainant, by bill of review, seeks to re-verse a decree rendered in the Chancery Court at Jonesboro, at the November term, 1868, for alleged errors of law on the face of said decree.

The original bill was filed on the 29th of June, 1865, against the defendants, alleging that they were unlawfully trespassing upon the complainant’s land by cutting his timber, a large quantity of which they had already cut, and prays an attachment and injunction, and that an account be ordered to ascertain the damage sustained by the complainant.

The defendants justified under an alleged military authority of the U. S. Government, which they say was in control of the railroad then being operated by the army, which was still occupying the country, and that the timber thus taken was for the use of the railroad.

It appears that the cause was heard upon the pleadings and proof. The complainant alleges that a portion of the costs were wrongfully adjudged against him, and complains of an error of law alleged to be contained in the following clause of the final decree in behalf of defendants, and for which he prays to have said decree reviewed. The clause is as follows: “And it further appearing to the Chancellor, under the plea of justification and the laws of the United States, and by military authority acting thereunder, that the said defendants were acting under such authority from the military authorities, . . as provided for by the Acts of Congress in such cases made and provided, it is therefore ordered, adjudged and decreed by the court that said bill be dismissed.” The decree goes on to apportion the costs between the parties, taxing one-half thereof to complainant. An appeal was thereupon prayed by complainant to this court, but he failed to give bond, and, on the 7th of August, 1871, filed this bill of review. A demurrer was allowed by the Chancellor, and the complainant has appealed.

The grounds of this jurisdiction in a court of chancery are well established. There must be errors of law apparent upon the fac.e of the decree, or some new matter of fact relevant to the case which has arisen since the enrollment, which could not with reasonable diligence have been discovered before. The error of law, as is held in some of the authorities, must appear in the body of the decree, without further explanation of matters of fact: 2 John’s Ch. R., 448; Cooper’s Eq. Pl., 89. But under our practice, the pleadings in the original cause may be looked to, and if admitted facts show that there is error of law in' the conclusions drawn from those facts, the bill of review will lie. It will not lie to correct the con-elusions of the court as to matters of fact as they appear upon the face of the decree: 5 Sneed, 661. The doctrine is thus stated in the standard authorities: “The error complained of must not be a mere error in the decree, as on a mistaken judgment, which in effect would render a bill _ of review a mere substitute for an appeal, but it must be for an error apparent on the face of the decree, as in the case of an absolute decree against an infant.” Adams’ Eq., 416; 2 Daniel’s Ch., 1632. “It will not lie simply to correct an error in the taxation of costs, and especially in a case where the taxation of costs is matter of discretion with the court rendering the decree.” Clark v. Clark, 4 Hay., 36. “The question, it is said, is not whether the cause is well decided, but whether the decree is right or wrong on the face of it.” 17 Ves., 178. “And taking the facts to be as stated on the face of the decree, it must appear that the conclusions of law are erroneous.” 3 Sneed, 400; 3 Daniel’s Ch., 1727; Story’s Eq. Pl., 407; Hicks’ Manual Ch. Pr., 420, et seq.

Applying these principles to the facts before us, was the demurrer in this case properly allowed?

The chief ground of demurrer is, that the bill seeks to correct the conclusions of the Chancellor as to matters of fact. The Act of 1835, ch. 20, sec. 15, which provides that in all .cases of bills of review filed to review the decision of a case in chancery, the depositions and exhibits that were read in the hearing of the cause shall be considered a part of the record, as if the same were transcribed and incorporated with the decree, has been construed by this court, and it was held that by that Act no new ground for a bill of review was introduced, nor does it modify or enlarge the grounds of review stated in Lord Bacon’s ordinance. Eaton v. Dickinson, 3 Sneed, 406. We will not question the authority of that case, which, whatever may be said of its boldness, is nevertheless to be commended for its exhibition of fealty and attachment for the safe and ancient landmarks of the law.

It must be conceded, that when there are so many ways provided for the correction of errors in the inferior tribunals and for their correction here, the policy of opening an entire case upon its merits under a bill of review is of questionable propriety, and such a practice could not but prove disastrous to the interests of public justice. Under the English practice the substance of all the pleadings was embodied in the decree, and under our own practice it is “admissible,” as this court has held, “to compare the decree with the pleadings in order to see whether the former is consistent with the latter; for if it be not so, this would constitute error on the face of the decree.” 3 Sneed, 401. Now, in this case, the substance of the pleadings in the original cause is given in the bill, and the demurrer admits that the pleadings are correctly given. The defense relied on by the defendants to the bill was, that they acted under military orders, and they justify under a paper, which is made an exhibit to their answer, in the words' following :

“Knoxville, Tenn., May 9, 1865.

- “ James S. Beard is hereby authorized to cut wood for the U. S. military railroad on the lands of Joseph Burts, John Lyle and Dillard Love, by order of the superintendent. D. Y. Brown, wood agent.”

This is the alleged “military order” under which the defendants justify, and this may be considered, in connection with the decree, as a part of the record. The decree assumes a justification for the defendants under military orders and the laws of war for an alleged trespass to complainant’s lands. The bill charges that no war actually existed within the borders of the State at that time; that peace prevailed, and the civil authority had resumed its sway. But we judicially know that the war had just closed, and it appears that the army of the United States still occupied the country and was operating the railroad. The ‘ transportation of large armies and military stores so near to the conflict of arms, made it necessary to continue the exercise of some of the powers and restraints of the laws of war, so far as the actual necessities of the army' demanded, in the country thus occupied. The decree assumes that such restraint did exist, and that the defendants were justified under military authority. Upon its face, therefore, the decree cannot be said to contain error of law, for the courts would be bound to recognize military compulsion as a valid defense. But the facts upon which the decree is founded are admitted by the demurrer to be correctly stated in the pleadings, and taking the decree and the pleadings together, we must determine whether there be error of law in the decree. In the ease of Merritt v. Nashville 5 Col., 100, it was said that permission to do an act is not compulsion, and that the Acts of Congress of May, 1866,, and March, 1863, afford no protection to those acting voluntarily and for their own benefit. And in a subsequent case it was held, that in time of peace, or at a distance from the scenes of military operations, no discretion to forcibly take and appropriate private property is confided to military commanders. They must buy like others: Taylor v. N. & C. R. R. Co., 6 Cold., 663. Now, there can be no pretense, upon the facts set forth in the pleadings, that any such thing as military compulsion existed in this case, for the paper only imports on its face a permission to do the act complained of, and even this is not a license to do it emanating from any recognized military authority. Hence we conclude that in the decree there is error of law in the conclusions of the Chancellor upon the facts.

The decree will be reversed, the demurrer disallowed, the decree in the original cause vacated and annulled, and the case remanded for an account as prayed.  