This is an appeal taken by Strother M. "Williams, from the rulings of the circuit court of Preston county, in an action of trespass on the case, instituted by Cars-kadon against him, for assault and battery, and false imprisonment.
The first question of error assigned is the overruling the demurrer to the declaration.
Technically, at common law, the declaration would not be strictly correct, but under the liberality of our statute, there is nothing omitted in the declaration “ so essential to the action (or defence,) that judgment, according lo law and the very right of the cause,” could not be given. It is sufficient, in substance, to make fully known the cause of action which the defendant is to answer to, and to enable the court to give judgment according to law and the very right of the cause. The demurrer ivas properly overruled.
To the declaration, the defendant, in addition to the plea of the general issue, filed two special pleas in writing, to which the plaintiff filed a special replication, and upon demurrer to the replication, by the defendant, the court, acting upon the principle of going back to the first fault in pleading, as insisted on by the plaintiff in the argument of the demurrer, held the special pleas insufficient in law, and quashed them. The pleas, no *18doubt, were intended to be, what have commonly been "designated in our courts, pleas of belligerent rights. They are not sufficiently specific for that purpose, but are defective in allegations material to a plea of that kind. The pleas do not indicate that he acted in, or was connected with the matters complained of, but allege that others committed the trespass complained of, namely: “The said Confederate soldiers, under the command of said Lieutenant Henry, did, at the time when, &c., in said declaration mentioned, from within the territory occupied by the said United States of America, take and carry away, as a prisoner, the said plaintiff, &c.” If the trespass was committed by other parties than the defendant, the fact could have been proven under the general issue — the plea of “not guilty •” and these two special pleas, framed as they are, amount to nothing more than general issue pleas; and as the proper form for the general issue to such complaint is “ not guilty,” and that plea had already been put in, the court did not err in quashing them.
Afterwards, leave having been given, by consent, to the defendant, to file additional pleas, the defendant, on the twenty-first day of April, 1866, filed two pleas, in writing, which were demurred to by the plaintiff, and the court sustained the demurrer, and the pleas were rejected.
The pleas were in bar of the action, and commonly called pleas of belligerent rights. They are proper in form and substance, and were rejected no doubt, under the rulings of the Supreme Court of Appeals in this State, which has heretofore held that such pleas were not admissable in actions’similar to this.
The concession of belligerent rights was made by the National Government, in all its departments, to those of the Confederate side, in the late civil war, and the recognition of that concession by the nations of the earth, together with acts of the Legislature and the provisions of the Constitution of this State to the same effect, *19■demand of the Judiciary of this State a similar recogni-. tion. Those rights having been recognized and actedupon by the Federal authorities in their struggle against the Confederate powers, must be recognized ■and admitted by the Judiciary of this State now. If the defendant acted in conformity with military authority and in execution of a military order, the act must be considered a belligerent act, in the legal import of the term, and he is not liable to a civil action.
The pleas being proper in themselves, but having been rejected in consequence of the rulings of the Supreme Court, which were wrong in principle, and which misled the circuit court, the defendant should be permitted to file the pleas.
As to the sixth error assigned, viz: That “ the court erred in swearing the jury * according to law/ and not to try the issue.’ ”
The proper way is to swear the jury to try the issue joined, and the record should show -it. But as the rec-cord in this case shows that the defendant was present at the time, it must be presumed that the jury were sworn to try the issue joined, as the defendant took no exception, then, to the mode of swearing, and the record says they were sworn according to law; the objection after verdict, comes too late.
The seventh assignment of error is to the rulings of the court as set out in the first bill of exceptions. The plaintiff introduced the witness Ashby and proposed to prove by him, that in the latter part of November, 1861, and about two or three o’clock in the afternoon, he fell in with some eight or ten men about fifteen miles from Moorefield, going in the direction of the residence of the plaintiff, among whom was the defendant, who was armed with a revolver, and that the witness traveled with them for about ten or twelve miles, and parted with them about that distance from the residence of the plaintiff, whom he left going in that direction, and that whilst the witness was so traveling along with such persons, one *20Charles Lobb, Joseph Vandever, and some other person 'of the party, but not the defendant, said they were going after the Carskadons, though at the time this was said the witness did not know where the defendant was, or whether ho heard or could have heard what they said, but that he was somewhere along the road with some of the party.
The defendant objected to the introduction and proof to the jury of the said statements of Lobb, Vandever and another, but the court admitted the proof of the statements.
The admission of such evidence was not proper, because no foundation had been laid, by proof, to establish, prima facie, the fact of conspiracy, or combination between the parties. Nor does it appear that the evidence was admitted by the court, for the sake of convenience, upon the prosecutor undertaking to furnish such proof in a subsequent stage of the cause.
I think the admission of the evidence of those declarations was not in accordance with the rules established in such cases, and the court therefore erred. 1 Green. Ev. sec. 111.
Had it been proper to have admitted proof of those declarations, then the court would have erred in its refusal to admit the declarations of defendant, afterwards asked for on the cross-examination, because in such a state of the case his declarations would have been part of the res gestee, and certainly necessary to his defence.
The court also erred in admitting proof of the kind and quality, &c., of the food furnished plaintiff while in prison; because there was no allegation in the declaration to give the defendant notice of such a special damage, and the law does not necessarily imply that the plaintiff sustained such damage from the acts as alleged in the declaration. In 1 Ch. Pl. 6 Am. ed. pp. 371, 440-444, it is said: “ Thus in an action of trespass and false imprisonment, where the plaintiff offered to give in evidence, that during his imprisonment, he was stinted in his allowance *21of food, he was not permitted to do so, because that fact was not, as it should have been, stated in his declara-' tionj” and in a similar action, it was held “that the plaintiff could not give evidence of his health being injured unless specially stated.” Mr. Greenleaf lays down the same doctrine in his Treatise on Evidence.
Note by ti-ie Reporter. — At the same term the principles adjudicated in the foregoing decision were affirmed in the case of John R. Carskadon®. same defendant, on an appeal, by defendant, from the judgment of the circuit court of said Preston county.I am therefore of opinion that the judgment of the circuit court is erroneous, and should be reversed with costs, the cause remanded and a new trial awarded, the demurrer to the belligerent rights pleas overruled and the plaintiff required to reply to the said pleas, and the cause to proceed under the principles here adjudicated.
The other Judges concurred.Judgment Reversed and Cause Remanded.