Hedges v. Price , 2 W. Va. 192 ( 1867 )

BROWN, President.

These arc three several actions of trespass de bonis aspor-tatis, in which Enoch G. Hedges, the defendant in the court below, who is the plaintiff in error here, pleaded the general issue, and filed four special pleas of justification in bar in each case — except one.

The special pleas in each case were the same respectively, and were all demurred to, and the demurrers sustained.

And the only question is whether the three special pleas constituted a bar to the action.

Several objections have been taken to the form of the pleas, even upon the hypothesis that a rebel soldier may plead his rebellion in justification.

Now, that several, though perhaps not all of these objections, are well taken, I am sufficiently satisfied — but have not given them the consideration I should have done had the cases turned upon them — nor do I deem them of sufficient importance to justify a longer delay of the decision of the main and great question involved in these contests, upon which the rights of the parties must ultimately turn, and yet they are too important, as questions of pleading, to be determined hastily.

I think it proper, therefore, to express no opinion upon these objections — that shall conclude an impartial reconsideration when a similar objection may arise, but have directed my attention to the main question which lies at the bottom of all these cases, and in its effects reaches far beyond them.

The plaintiff in error makes six points for the consideration of the Court — which may be reduced in substance to three, viz:

1. That the late rebellion was a civil war.

2. That during the war the same belligerent rights which pertained to the United States, likewise pertained to the Confederate States, so-called.

3. That a soldier of the latter is responsible only to the former, and not to the private pai’ty injured by him, and that liability ended with pardon.

The first proposition is not controverted by the opposite side, nor can there be any doubt of its correctness, whether tested by the facts of the case, the various writers on International law, or the decisions of the Supreme Court of the United States and several of the State Courts. , "

The third proposition is not equally admissible.

If the second be true, it is difficult to see how the third can be correct, for it seems to be in direct conflict with it.

By what principle of International law is the soldier of one belligerent power held individually responsible to the other? To his own master he standeth or falleth.

If the soldier of one belligerent sovereign enter the territory of a neutral power and commit a breach of the municipal law of such neutral, or violate the rights of its citizens, he is personally responsible, whether he acted under the authority and orders of his sovereign or not, and whether the act done was done in furtherance of the object of the war; and that, too, even though the citizen had been a parti-eeps in the hostilities against the sovereign whose authority was vouched for the offending soldier. People vs. McLeod, 25 Wendell, 483. And here I feel constrained to say, that notwithstanding the criticisms of this case in Wendell, in the argument at this bar, and notwithstanding the opinion of Mr. Jay and Mr.'Webster, I think the correct views of the case are declared and maintained by Mr. Forsythe and Judge Cowan, who delivered the opinion of the Supreme Court of the State of Few York in that case.

Upon the principle contended for, of the equality of belligerent rights, the rebel soldier, as such, could owe no responsibility to the United States which the Union soldier did not owe to the Confederate States, so-called, but as a citizen, subject to the sovereign power, which he sought in vain to'subvert, the rebel-soldier most unquestionably owed responsibility to the United States, which the Union soldier never owed to the so-called Confederacy. The difference is great.

But as respects the third proposition, it may be remarked further, that the same act may be, and often is, a private injury and a public offence, and the latter no less because of the former.

If one assault another, or commit a trespass upon his property, which the statute declares to be a public offence, no one would pretend that the offender’s liability to the State for the public offence would destroy the right of the party to redress for the private injury. Neither would a pardon for the public offence defeat, or in anywise affect, the private right to redress in the courts of the sovereign granting the pardon, nor in any other courts.

Admitting, then, as the proposition seems to suppose, the rebel soldier to have offended against the United States, and to he responsible therefor to the government, it is not perceived on what principle that offence and responsibility can be made a ground to defeat the right of the injured citizen to redress, or release the offender from liability for his acts. It is certainly very competent for the government to pardon the public offence, but I know of no way by which it can discharge the obligation or liability of the party to malee restitution for the damages he has done to a private citizen, but by paying the damage done by the person pardoned. It is certain the pardon has no such effect.

By the law of nature, as well as by the civil law, the right of personal security and private property exists, and whoever invades those rights inflicts an injury upon the owner which it is the duty of the government, through the forms of law, to redress.

In every well ordered government these rights are sacredly guarded, and a complete remedy furnished by action in the courts for their violation.

Jfrom those rights spring duties which are correlative. The law therefore is but the mandate of the Government, commanding what is right and prohibiting what is wrong, addressed to those who are bound to obey it. The parties were both citizens, and as such, both subject to the same law.

This right of property in the citizen has been violated, and the party who did it, to avoid making restitution or compensation, justifies the act upon the ground that he was a citizen and soldier of another government, viz: of the Confederate States, so-called, and acted under its authority.

According to the principles laid down by this court in the case of Hood vs. Maxwell, 1 West Virginia Reports, 219, there could be no rightful or lawful government of the description pretended, and that all who aided and abetted it were in the wrong, and that wrong-doers cannot screen each other from the consequences of their wrongful acts by setting up their pretended or usurped authority. Nor has the government of the United States, by word or act, ever acknowledged, or recognized the so-called confederacy as a government, or nation — nor in any other way than as a powerful combination of citizens in a state of insurrection and rebellion against their lawful government. And the above views are corroborated by the reasoning and principles of the following cases: Luther vs. Borden, 7 Howard, 1; Mitchell vs. Harmony, 13 Howard, 128; Rose vs. Himely, 4 Cranch, 241; Filkins vs. Hawkins, decided by the Circuit Court of Arkansas, January number, 1866, American Law Register; 1 J. J. Marshall, 206.

It is claimed by the plaintiff in error that by the law of nations the soldier is not responsible for his acts done fla-grante hello between two sovereignties which are the belligerents, and which must both be taken to be in the right. And this is not controverted.

But it is further claimed that in a civil war the same rules apply, and inasmuch as the late rebellion swelled to the proportions and assumed the character of civil war, upon a grand scale, that, therefore, the acts of the party in question wore right, and whether right or wrong, he is not responsible, because the acts were done by him as a soldier, in a civil war, by order of an officer, under the authority of the so-called confederate government.

Now if it he true that the same rules are to be applied in civil wars and international wars, or rather, if the same rules are to be applied to the established and rightful government — in a civil war resulting from the effort to suppress a rebellion declared to be unjust and wicked, and by the result proved to be so, and the rebels thus suppressed, then unquestionably would the party here stand justified upon the proposition assumed by the plaintiff in error.

And this brings us to the consideration of the second proposition, which is the question of great interest now perplexing the minds of the people, bar, and bench, more particularly in the border States.

But is it true, that the same rules apply as supposed, in the sense and to the extent claimed?

Yattel and other authors are cited, stating the doctrine in general terms. The former says, b. 8, ch. 18, sec. 294, that “the common laws of war, those maxims of humanity, moderation, and probity, which we have before enumerated and recommended, are in civil wars, to be observed on both sides.” And again, “should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations and all the conventions made with his enemies, they will no longer rely on his word; should he burn and destroy, they will follow his example; the war will become cruel and horrid; its calamities will increase on the nation.”

But here it may be well to bear in mind the remark of Chief Justice Marshall in delivering the opinion of the court in the case of Rose vs. Himely, 4 Cranch, 241, in which he said: “In support of this argument the doctrines of Yattel have been particularly referred to. But the language of that writer is obviously addressed to sovereigns, not to courts.”

But, it is equally true that Yattel and other elementary writers on the law of nations, also lay down the doctrine with equal clearness, that when a rebellion is suppressed, the sovereign or established government may punish the insurgents and make examples of the instigators or ringleaders and such others as it may be thought proper to reward with the punishment due to their deserts; in the words of Yattel, “may bring them to legal trial, and on conviction, punish them.” This would be strange language to hold of soldiers or prisoners in an International war, and utterly inconsistent with, the doctrines he had laid down with regard to them. He says again, “it will be wise in the Prince to secure his prisoners till, having restored tranquility, he is in a condition of having, them tried according to the laws.” But who ever tried prisoners of war according to the laws in any but a civil war of insurrection? Hone. lie also says, “As to the other effects which the law of nations attributes to public war, (see chapter 12, of this book), and particularly the acquisition of things taken in war; subjects who take arms against their sovereign without ceasing to acknowledge him, cannot pretend to these effects.”

Such is the rule in reference to rebels who take arms against their sovereign without ceasing to acknowledge him; and the same rule equally applies to those who, repudiating the sovereign authority, take arms and fail at establishing attempted independence — at least after the suppression of the rebellion.

And the Supreme Court of the United States has said expressly in the Prize cases — 2 Black, 673 — that the rebels, because enemies in a civil war, were not the less traitors.

bfothing, therefore, can he clearer from the’ authorities than that the same rules do not always apply, nor the same rights and immunities appertain, in both wars.

The law of nations does not subject the- parties to the same liabilities, nor does it screen traitors and rebels from the punishment of their crimes because they are also enemies. On the contrary, the law of nations recognizes the distinction between International and civil wars, and applies the rules iu the one ease to the other so far, and so far only, as reason and necessity require, and the two conditions harmonize, hut never so far as to make those who are only enemies, guilty of treason, nor to purge out the treason of those who have also become enemies.

The assumption, therefore, that all the same rules apply in civil as well as International Avar, is not true, but only partially so, and the question is still open whether the same rule applies in the ease at the bar.

If the plaintiff in error had been the citizen or subject of a foreign or independent power, and had clone the acts in question by order of his superior, as a soldier, in an Inter-' national war, no one questions the fact of his immunity from personal liability.

But where has the case been decided that has applied the same rule to the rebel in a civil war?

Yes, one has been cited from Kentucky, and while this court regards the courts of Kentucky as high persuasive authority, but by no means binding, only as the decision shall be sustained by principle or authority.

And tried by this rule, I feel constrained to say that a review of the ease has failed to satisfy me of its correctness-in principle or in accordance with the authorities on which it purports to be based.

On the contrary, the converse is rather established by the counter decisions of some of the courts of the same State, viz: Lucas vs. Bruce, Ky. chy, et,, 4 Amer. Law Register, (new series), 95; Norris vs. Doniphan, reported in Am. Law Register, June number, 1864, new series. In the Supreme Court of South Carolina, in the case of White vs. McNeily and others, 1 Bay, 11; and also in the ease of Administrator of Whitaker vs. English, 1 Bay, 15; by the Circuit Court of the United States tor the District of Pennsylvania, in the Jeff. Davis piracy eases/ and for the District of New York, in the Savamah piracy cases; by the District Court of the United States for the District of Massachusetts, in the case of the Amy Warwick; by the Supreme Court of Maine in the case of Dole vs. Merchants’ Mutual Marine Insurance Co., 51 Maine Sep., 465: and by this court in the ease of Hood vs. Maxwell; and by the’ Supreme Court of the United States in the Prize cases, 2 Black, 673.

And Judge Bullitt, delivering the opinion of the court of appeals of Kentucky, in the case of Norris vs. Doniphan, says: “The law of nations has no obligatory force upon the ‘sovereign’ in dealing'with his subjects. He may disregard and establish a differentrule; and if he does so, those within Lis jurisdiction must observe the rule so established, how-•ever it may conflict with, the usage of nations.” And again he says: “Civil wars, being in many respects of the same nature as public wars, the right to treat armed rebels, in many respects, as if they were alien enemies, necessarily results from the power to make war upon them. The facts, that prisoners are exchanged, that flags of truce are respected by the opposing forces, that armed rebels may be lawfully slain in battle, that their arms, ammunition, and stores may be lawfully taken and used or destroyed, that'articles contraband of war being sent to them, may be lawfully confiscated, that their ports may be lawfully blockaded, and that their property on the high seas may he lawfully seized as prizes of war, these facts prove that civil wars are, in many respeets, the same as wars between separate nations; and they prove nothing more.” ,

We have said the sanie rule applies in both wars — so far, and so far only, as the reason and necessity of the case require.

What then 'is the reason that the soldier in an International war is not responsible personally? We answer, because the war is not his quarrel hut his sovereign’s, and he a humble instrument in the hands of that sovereign whom he is in duty bound to obey.

It would be contrary, therefore, to the first principles of justice, to punish him instead of the sovereign.

Again, the sovereign in prosecuting the war, or treating for peace, is supposed to secure indemnity for his injured subjects as well as himself, from the other State. But no such reason can apply in the ease of rebels against their lawful government, when they have been reduced by force to obedience. Instead of the law supposing the rebel to he influenced by duty and constrained by rightful authority to take up arms, it supposes him to be guilty of treason in doing so, which the law regards as the highest crime.

And when the rebellion is suppressed, the sovereign and his injured subjects have no chance of redress or indemnity as from a hostile State. In the eye of the law the success of the sovereign establishes beyond controversy, in all his courts, the criminality of the rehellion, whatever salvo the rebels may choose to lay to their consciences.

And if there was no personal responsibility, then there would be a wrong without a remedy, a government without protection to its people, but rather a screen to its enemies. It would be to give immunity to crime and every species of robbery, encouragement to traitors, and punishment to patriotism. The reason and necessity, therefore, which required immunity in the one case, not only do not require it in the other, but absolutely forbid it. And since such a rule would violate the principle on which all rightful authority in government is maintained, and justice enforced, it would seem to require an express ratification by all the nations of the earth to make it obligatory as a part of the jus gentium.

Again, much has been said in the agument about sovereign and belligerent rights. I take it to be a fact not controverted, that every government deserving the name, has the sovereign right to suppress rebellion by all the machinery of its civil power, and when that fails, the belligerent right to do it, by military force: in other words, by war. That the latter is cumulative and not a limitation of the former, and may be both exercised at the same time, and often are.

And farther, that the established government in asserting its belligerent rights in suppressing a rebellion, thereby gives to the rebels no rights which they did not have before, further than that government may choose to accord corresponding privileges to those rebels.

ÍTor does the law of nations confer any rights upon such rebels which the established government refuses to concede, either in express terms or by necessary implication, from its course and dealings in the war.

By appealing to its belligerent powers the established government may obtain rights it did not have before, but does not lose any of its sovereign powers that it had before.

For instance, by war the property of a loyal man in the hostile territory, would be liable to capture, whether the owner resided in the hostile district or in a loyal State, and so likewise the property of a loyal citizen wherever resident, going to, or coming from the hostile district. 8 Cranch, 110; 2 Wallace; Mrs. Alexander’s case, 2 Black, 673.

But even this right of capture, the established government may not choose to exercise, and until so clone, the right of property of an enemy would not be divested.

But for a state of war, the government could have no such right to seize and appropriate the property of a loyal citizen so situated, any more than the property of any one else so situated.

The law of nations regulates the relations of independent States, and cannot be changed by either; but not so with an established government and its own citizens, (whether in rebellion or not). Bor every nation may change or modify the lawT of nations as it chooses, as respects its own citizens or subjects.

The truth is, that no sovereignty in suppressing an insurrection or rebellion, is bound by the laws of nations to yield its sovereign rights farther than humanity and the necessity of the case require, and they mainly relate to the treatment and exchange of prisoners. The government of the United States throughout the late rebellion, never acknowledged, nor recognized by word or deed, the so-called Confederacy, as a political power, or as having right or authority to command the obedience of any one. Neither has the political department of the government, in its legislative or executive branches, ever acknowledged the said Confederacy as a belligerent power. On the contrary, such recognition is expressly denied or purposely and manifestly withheld and avoided.

The proclamation of the President, of April 15th, 1861, which was the first on the subject, expressly declares that the laws are opposed and their execution obstructed — in the States of South Carolina, &c., by combinations too ,powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by law, and called forth the militia of the several States, to the number of 75,000, to suppress said combinations and canse the laws to be executed, and to repossess the forts, places and property which had been seized from the Union, &c.

The proclamation of April 19th, 1861, establishing a blockade of the ports in the States where this insurrection exis-isted, recited that an-insurrection against the Government had broken out in the States of South Carolina, &c., and that the laws for the collection of revenue could not be executed, and that the combination of persons engaged in such insurrection had threatened to grant letters of marque, &c., and that an executive proclamation had been issued, requiring the persons engaged in these disorderly proceedings to desist therefrom, calling out a military force for the purpose of repressing the same, and convening Congress in extra session to deliberate thereon.

And finally the executive proclamation issued on the 16th day of August, 1861, in pursuance of the act of Congress, approved July 13th, 1861, after reciting the facts set forth in the preceding proclamations, and the refusal of the insurgents to disperse, as commanded, and also, that the insurgents in all of said States claimed to act under the authority thereof, and that the claim was not disclaimed by the persons exercising the functions of Government in such States, &e., nor had such insurrections been suppressed by such States, &e. Declared that the inhabitants of said States were in a state of insurrection against the United States, and that all commercial intercourse with the same was unlawful, except, &c., and the property to be forfeited, except, &c.

So also the act of Congress approved August 6th, 1861, levying a direct tax of twenty millions of dollars and apportioning it among the several States of the Union, not among the loyal States only — but upon the disloyal also, in express terms.

So also, the act to confiscate property, especially slaves used in aid of the rebellion.

These acts and proclamations, with numerous others, equally positive and plain, assert the jurisdiction of the Government over the insurrectionists in the States mentioned, which precludes the idea of a recognition of any other or foreign government having jurisdiction there.

So Mr. Seward, the Secretary of State, in his official dispatches to our foreign ministers, expressly repudiates the pretension that the Confederacy, so-called, was to be regarded as a belligerent power. See Diplomatic Correspondence.

Upon any other hypothesis than the exercise of sovereign rights over the insurrectionary district, it would be difficult to reconcile the legislation referred to, with the doctrines declared hy Chief Justice Marshall in the case of Rose vs. Himely, where he said, “It is conceded that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens. It is not easy to conceive a power to execute a municipal law, or to enforce obedience to that law without the circle in which that law operates. A power to seize for the infraction of a law is derived from the sovereign, and must be exercised, it would seem, within those limits which circumscribe the sovereign power.”

Thus, then, the government of the United States, in its political department, in both branches thereof, viz: legislative and executive, has declared the late war an insurrection, which was suppressed by military force.

Several of the great nations of the earth, acknowledged the said Confederacy as a belligerent power, and in part, though not in whole, treated it accordingly. They chose to extend to it many rights and privileges of an independent power which our government never extended or admitted, and yet, those very nations stopped short of admitting the rebel claims to independence and nationality, and refused to receive or send ambassadors to or from them. They did not in this refusal, extend all the same rules to these belligerents alike, else, why send and receive ambassadors on one side and not on the other ?

But what boots it, if those nations did acknowledge the so-called Confederacy to be a belligerent power, and in part so treat it, did that in any wise change the relation of the insurgents to the lawful government — or give their unlawful combination, by whatever name called — any rightful or political existence? Hot in the least.

As well hold the United States bound to get the consent of foreign nations to enforce its laws against the insurgents.

"Where a sovereign has to resort to war to suppress insurrection against his authority among a portion of his subjects, what motive can possibly be assigned to induce him to limit his sovereign rights, to deal with his insurgents, otherwise than as his laws require? Humanity and necessity ? In obedience to these, he treats and exchanges as prisoners of war his captured subjects, not because he recognizes any right in the insurgents to demand it of him, but because they having by the fortunes of war got some of his loyal subjects in their power, may execute them in like manner by way of retaliation. Humanity and necessity, therefore, induce him to stay his hand, and forbear to do what in the particular instance he otherwise might lawfully do. But since humanity and necessity induced this concession, it cannot be extended any further than they require, unless the sovereign so expressly declares.. And such was precisely the case and course with the United States in the late rebellion. Insurgents who were captured and fully and fairly tried and convicted of piracy and sentenced by the courts for the crime, were not executed, but exchanged as prisoners of war by the government which repudiated the right of the rebels to require it. Yet it was done to save the lives of our own officers and soldiers and citizens who had been seized by the insurgents, and threatened with execution if the pirates were not released.

Humanity and necessity, and not right or justice, nor any principle of the law of nations, induced compliance with the rebel demand, for the latter would have induced acquittal as well as discharge or exchange, had they borne upon the case.

And for the same reasons, the treatment and exchange of prisoners generally was conceded and settled by cartel between the belligerents.

Thus far and to tbat extent, and to that extent only, did the government of the United States concede belligerent rights to the insurgents, and recognized and treated them as belligerents and not as traitors. Indeed, it would be most unreasonable by any rule of interpretation to extend the concession further than the reason and necessity required which induced it, and further than the express terms of the cartel would allow. Yet such would be the ease to say that all the rights of belligerents in an international war were to be applied to civil war.

No cartel was ever made by which the insurgent soldier was to be relieved from responsibility in damages from any injury he might do to the person or property of any citizen whose rights were under the protection of the laws, and since no such immunity was declared or expressed, none can be presumed, since, as we have shown, no sufficient reason can be assigned for it; but on the contrary, reason and justice require otherwise.

Upon this principle it is also clear that the concession of belligerent l'ights, sub modo, and to a limited and particular extent, did not extend their operation either in effect or duration further than the reason and necessity required. Therefore, an exchange and discharge of a culprit, did not, like a pardon, discharge the guilt of the prisoner, nor bar the government from prosecuting and punishing the insurgents, or such of them as it might choose to make an example of, after the insurrection was suppressed.

And with this view accord the writers on national law, and likewise the practice of all nations; for instance: England, in her domestic wars with the Scots and Irish, and Canadian Eenian rebels. So the United States, in putting Davis on his trial for treason and rebellion, and in pardoning ■all the rest of their guilt in that behalf. For why pardon if not guilty (and if not true)? Who of all the high-spirited and chivalrous thousands, would have accepted the boon, and acknowledged it with an oath, if it had been an insult and a falsehood, and they as innocent without it as with it?

Since writing the above I have seen the newspaper reports of the speech of Hon. Reverdy Johnson, delivered before the Supreme Court of the United States, in the case of Virginia vs. West Virginia, and the opinion of Chief Justice Chase, concurred in by the district Judge, Brooks, at Raleigh, North Carolina, delivered in the case of Shortridge & Co. vs. Macon.

And Mr. Johnson, in the speech referred to, states to the court that made the decision in the Prize cases, what he understood that decision to mean, without correction or suggestion of error in his construction from the court; and since it so accords with the views I have long entertained of that ease, and as bearing on this case, it may be referred to as tending to show the proper and recognized construction of the Prize cases, which have been pressed and strained very hard to countenance the rebel pretension to belligerent rights and personal immunity. He said: “ My impression is that the decision in this respect has been misunderstood. I understand the court as holding that if the war terminated in the success of the government, that the parties engaged in it, although treated as enemies during the conflict in order to mitigate its horrors, might then be treated as traitors.”

Again, “All I suppose that the court meant was, that upon the grounds of humanity during the progress of the war, the insurgents were to be considered as enemies, but that when defeated by the total suppression of the rebellion, they became subject to the laws of the country, and might be punished under them.”

The opinion of Chief Justice Chase also corroborates many of the views and conclusions above expressed; among others, that the government at no time acknowledged or recognized the self-styled Confederacy.

That the national Government constantly asserted sovereign rights and jurisdiction over the people and States in insurrection; that the belligerent rights were concessions by the government to the rebels, by cartel, &c., for the sake of humanity — the Chief Justice says: “Those who engage in rebellion must expect the consequences. If they succeed, rebellion becomes revolution, and the new government will justify its founders, If they fail, all their acts, hostile to the rightful government, are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority or existence have been alike assailed. "We hold, therefore, that compulsory payment under the sequestration acts to the rebel receiver of the debt due to the plaintiffs from the defendant, was no discharge.” And he also distinguishes between international and civil war, in respect to the suspension of iuterest on a debt — admitting the suspension in the former, but not in the latter.

lie also controverts the construction given there and here to the decision in the Prize eases, and asserts that “there is nothing in that opinion which gives countenance to the doctrine which counsel endeavor to deduce from it; that the insurgent States, by the act of rebellion, aud by levying war against the nation, became foreign States, and their inhabitants alien enemies.”

“This proposition being denied, it must result that in compelling debtors to pay to receivers, for the support of the rebellion, debts due to any citizen of the United States, the insurgent authorities committed illegal violence, by Which tío obligation of debtors to creditors could be can-celled or in any respect affected.”

From tbe foregoing, I am led to the conclusion that the plaintiff in error is not justified by the facts stated in his pleas, or in either of them, in committing the trespasses complained of; that his acts were unlawful and a violation of the rights of the defendants in error, who, being under the protection of the government and laws, are entitled to the redress which the laws afforded for the injury sustained, as in all other cases of like character arising between two citi-> zens; and that those facts, however formally pleaded, can-hot justify the trespass, nor bar the action.

I am of opinion, therefore, to affirm the judgment, with costs and damages to the defendant in error.