not such as would usually and naturally arise solely from a breach of a contract of the defendant to carry the package safely to its destination, nor were they, within the reasonable contemplation of both parties to this contract, as likely to arise from such a breach. The fact that the plans had a special value to the plaintiff, and could not be purchased, does not touch the question of including in the damages the injury to the plaintiff occasioned by reason of other contracts which he had made, and of work which he had undertaken in expecta ing to be new and material, is it not obvious that the tribunal which is to pass upon the question should have a judicial element? As the plea of insanity is frequently raised, is it not expedient that the tribunal should contain an expert in mental disease? As men convicted of aggravated crimes are sometimes possessed of very considerable political influence, by reason of the votes which they or their friends can control, is it not in the highest degree important that the tribunal should be superior to all partisan considerations?" He disapproves the granting of pardons on account of the incurable ill-tion of having the plans for use immediately, or health of the prisoner, or the poverty of his family, or the apparent excessive severity of the sentence. He would demand the unaminous agreement of the pardoning tribunal. And he well sums up the theory of punishment as follows: "First. The object of imprisonment for crime is to protect society by confining and reforming the criminal. Second, Thorough moral reformation in a prison where there is no systematic, individual treatment, is more often superficial than genuine. Third. Society has a right to insist on adequate protection from convicted criminals. Fourth. The presumption of innocence does not survive a verdict of guilty. Fifth. The deterrent element of punishment resides mainly in its certainty.” IN NOTES OF CASES. 'N Mather v. American Express Co., Massachusetts Supreme Court, Nov., 1884, it was held that in an action against a common carrier for loss of an architect's plans, nothing can be awarded for delay in constructing the house. The court, by Field, J., said: "It is not denied that the defendant is liable in damages for the reasonable cost of the new plans, and for other expenses, if there were any reasonably incurred in procuring new ones; but it is denied that the defendant is liable in damages for the delay in constructing the house occasioned by the loss of the plans. It is assumed that the plans had no market value, and were only useful to the plaintiff. The rule of damages, then, is their value to the plaintiff. As new plans could not be bought in the market ready made, some time must necessarily be required in making them, and the plaintiff contends that the value of the plans for immediate use, or for use at the time he would have received them from Boston if the defendant had duly performed its contract, is their value to him, and that their value is made up of the costs of procuring the new plans, and the damages occasioned by the delay. Whatever he calls it, it is damages for the delay in constructing the house, caused by the loss of the original plans, that he It does not appear that the de- | fendant had notice of the contents of the package at the time it was delivered for transportation, or any notice or knowledge that the plaintiff needed the plans for the construction of a house which he had begun, The damages caused by the delay are seeks to recover. after the usual delay involved in sending the plans. to Boston, and in having them traced and returned to him. Damages for such injury are not given unless the circumstances are such as to show that the defendant ought fairly to be held to have assumed a liability therefor when he made the contract. We think that Hadley v. Baxendale, 9 Exch. 341, which has been cited with approval by this court, governs this case. Green v. Boston and Lowell R., 128 Mass. 221; S. C., 35 Am. Rep. 370, on which the plaintiff relies, was an action to recover for the value of an oil painting, the portrait of the plaintiff's father. The opinion attempts to lay down a rule for determining the value of such a painting when the plaintiff had no other portrait of his father, and which, so far as appears, had no market value; but the opinion does not discuss any question of damages not involved in determining the value of the portrait to the plaintiff. The plaintiff in that case made no claim for damages occasioned by a loss of the profitable use of the portrait." In Dietrich v. Inhabitants of Northampton, Massachusetts Supreme Court, Oct., 1884, a woman four or five months advanced in pregnancy fell by reason of a defect in a highway and miscarried. The child lived ten or fifteen minutes. Held that the mother could not maintain an action of damages under the statute for its death. The court, by Holmes, J., said: "The plaintiff founds his argument mainly on a statement by Lord Coke, which seems to have been accepted as law in England, to the effect that if a woman is quick with child, and takes a potion, or if a man beats her, and the child is born alive, and dies of the potion or battery, this is murder. 3 Inst. 50; 1 Hawk. P. C. 31, § 16; 1 Bl. Com. 129, 130; 4 id. 198; Beak v. Beak, 1 P.` Wms. 244; Burdet v. Hopegood, id. 486; Rex v. Senior, 1 Mood. C. C. 346; Rex v. West, 2 C. & K. 784; 2 Cox C. C. 500. We shall not consider how far Lord Coke's authority should be followed in this Commonweath if the matter were left to the common law, beyond observing that it was opposed to the case in 3 Ass pl. 2; S. C., Y. B., 1 Ed. III, 23 Pl. 18, which seems not to have been doubted by Fitzherbert or Brooke, and which was afterward cited as law by Lord Hale. Fitz. Abr. Indictment, pl. 4; Corone, pl. 146; Bro. Abr. Corone, pl. 68; 1 Hale P. C. 433. For even if Lord Coke's statement was the law of this Common ealth the question would remain whether the anogy could be relied on for determining the rule I civil liability. Some ancient books seem to have lowed the mother an appeal for the loss of her ild by a trespass upon her person. But no case, far as we know, has ever decided that if the innt survived it could maintain an action for injurs received by it while in its mother's womb. Yet at is the text of the principle relied on by the aintiff, who can hardly avoid contending that a etty large field of litigation has been left unexored until the present moment. If it should be gued that an action could be maintained in the .se supposed, and that on general principles an jury transmitted from the actor to a person rough his own organic substance, or through his other, before he became a person, stands on the me footing as an injury transmitted to an existg person through other intervening substances itside him, the argument in this general form is >t helped but hindered by the analogy drawn om Lord Coke's statement of the criminal law. or apart from the question of remoteness, the ariment would not be affected by the degree of marity reached by the embryo at the moment of the sion or wrongful act. Whereas Lord Coke's rule quires that the woman be quick with child, hich, as this court has decided, means more than regnant, and requires that the child shall have ached some degree of quasi independent life at le moment of the act. Commonwealth v. Parker, 9 et. 263; State v. Cooper, 2 Zabr. 52. If these genal difficulties could be got over, and if we should sume, irrespective of precedent, that a man ight owe a civil duty, and incur a conditional rospective liability in tort to one not yet in being, id if we should assume also that causing an infant › be born prematurely stands on the same footing a wound or poison, we should then be confronted y the question raised by the defendant whether an fant dying before it was able to live separated om its mother could be said to have become a erson recognized by the law as capable of having i locus standi in court, or of being represented ere by an administrator. Marcellis v. Thalheimer, But we Paige, 35; Harper v. Archer, 4 Sm. & M. 99. nd this question would not be disposed of by citg those cases where equity has recognized the inint provisionally while still alive en ventre, and erhaps not by showing that such an infant was ithin the protection of the criminal law. Ieed not go beyond the Massachusetts statute. ub. Stat., ch. 207, § 9. The section referred to unishes unlawful attempts to procure miscarriage, icts which of course have the death of the child or their immediate object, and while it greatly inreases the severity of the punishment if the woman ies in consequence of the attempt it makes no orresponding distinction if the child dies, even afer leaving the womb. This statute seems to us to estroy the whole foundation of the argument rawn from the criminal law, and no other occurs to us which has not been dealt with. Taking all the foregoing considerations into account, and further, that as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff's intestate within its meaning." THE OLD CASES REVIVED. THE KING'S TRIAL. HE Commons having resolved that "the people are, under God, the original of all just powers," and deducing therefrom the inference that themselves, as the people's representatives, were supreme in the nation, and that their enactments had the force of law without consent of king or peers, proceeded to apply their authority in the punishment of those guilty of the long troubles which had culminated in the civil war. The head and front of the offenders was the king himself, and with him they began. On January 4, 1649, an ordinance was passed erecting a High Court of Justice for his trial. Whether this precedent was in the minds of the framers of the Judicature Acts of our own time we cannot say, but designedly or not, the old title has been revived, and the High Court of Justice is to-day the style of the English court of first instance. Many names are to be found on the list of the 135 commissioners who were constituted the king's judges which have still a place in history. The roll commences with Oliver Cromwell, first in place as well as fame. Next comes the sturdy Ireton, whilst Waller, Skippon, Pride and Ludlow, remind us of the recent battles from which they came, hot with victory, to sit in judgment on their adversary. Amongst the men of the long robe we find Bradshaw, Thorp and Nicholas, all serjeants at law, and two names are there, which to our ears have oddly incongruous associations, to wit, Richard Ingoldsby and R. Tichborne. Not all the commissioners participated in the proceedings of the court, Fairfax and Whitlocke being the most notable absentees, but the majority were far from shrinking from responsibility. They knew their duty, and were willing to perform it. Moreover, they were determined to carry out their task in the most public and solemn manner. Many were the meetings and committees, elaborate were the preparations, but at length all was complete, and on January 20th the court assembled in Westminster Hall. Careful precautions had been taken against tumult and conspiracy. The vaults under the Painted Chamber had been searched to provide against a possible gunpowder plot. Guards were mounted upon the very leads of the roof. All privy means of access to the Hall were blocked up, including the "doors from the house called Hell," and "Mr. Squibb's gallery." The president, Mr. Serjeant Bradshaw, by way of extra safeguard, had provided himself with a thick, high-crowned beaver hat, lined with steel, to ward off blows, and stout barriers were erected between the seats of the court and the space reserved for the public. The Hall was hung with scarlet, and before the president lay the mace and sword of state. The judges being in place the king was brought in, amongst a confused murmur from the populace, which showed the divided state of public feeling. Looking around with a stern countenance, and not deiguing to remove his hat, he listened indifferently to the reading of the ordinance, and the call over of the commissioners' names. At the mention of Lord Fairfax, however, a woman's voice from the gallery cried out "he had more wit than to be here," a remark not forgotten doubtless by some of the commissioners, when after the restoration they found themselves arraigned as regicides. that no court would submit to have its authority disputed, to which the king replied that though he was no lawyer professed, yet he knew as much law as any gentleman in England (a saying which pop ular tradition has changed into the expression "that he knew as much law as any gentleman should know "), and that by any law that he had ever heard of delinquents might put in demurrer: against any proceedings as illegal, "and I demand to be heard with my reasons; if you deny that you deny reason." President" Sir, it is not for prisoners to require.' King - "Prisoners! Sir, I am not an ordinar prisoner." President "The court hath considered of thei jurisdiction, and they have already affirmed thei jurisdiction. If you will not answer we shall give order to record your default." King"You never heard my reasons yet." President "Your reasons are not to be heard against the highest jurisdiction." King"Show me that jurisdiction where rea son is not to be heard." oner, and the court adjourned. For the commonwealth Cook rose to open the charge. The king, laying his cane on the counsel's shoulder, bid him hold, but at the order of the president he proceeded, simply making the formal After a little more discussion of this sort, Brad complaint which had been previously settled by shaw, finding himself getting considerably th the commissioners themselves. After reciting that worst of the encounter, cut the matter short by or the king had, contrary to his limited power to gov-dering the sergeant-at-arms to take away the pris ern for the good and benefit of the people, and with a design to erect a tyrannical power, levied war against the parliament; the principal battles of the struggle were specified. The prisoner was charged with having acted "against the public interest, common right, liberty, justice and peace of the people of this nation, by and for whom he was intrusted with power." Finally he was impeached as "a tyrant, traitor, murderer, and public and implacable enemy to the commonwealth of England," at which words he insolently laughed. The president now called upon him for his answer, upon which he demanded by what lawful authority the court sat. Being referred to the authority of the people of England, by whom he was elected king, he promptly denied the certainly novel proposition of his elected sovereignty, and after some short passages of words the court adjourned till Monday, Bradshaw telling him that he would then be required to give his final answer. At the opening of the court on Monday Cook moved that in default of a positive answer the charge might be taken pro confesso. The president, without dealing with the motion directly, called upon the king for his answer to the charge, telling him " we do expect you should either confess or deny it; if you deny it, it is offered in behalf of the kingdom to be made good against you; our authority we do avow to the whole world, that the whole kingdom are to rest satisfied in, and you are to rest satisfied with it. And therefore you are to lose no more time, but to give a positive answer thereto." The king however stood to his objection, and proceeded to give reasons, in which he was interrupted by the president, who told him Next day Cook renewed his motion. The sam old ground was fought over, but the king was no to be entrapped, and the court at length ordered default to be recorded against him, much doubt less to Cook's disappointment, who having pre pared a long-winded speech in anticipation of plea of "not guilty," now found his chance of ora torical display gone. In this predicament he re sorted to an expedient which has in later time been adopted by various congressmen, and caused his great, undelivered oration to be printed, thus pre serving to posterity the most extraordinary speci men of bombast and bathos it has ever been ou ill fortune to peruse. In the midst of an opening passage of tremendous sound and fury occurs a execrable pun "Anglia hath been made an Akel dama, and her younger sister, Ireland, a land of ir and misery." "Yet what heart bu would cleave if it were a rock, melt if it were ice break if it were a flint, or dissolve if it were a dia mond, to consider, etc." Truly, here is a notabl selection from "the alms-basket of words," mad by a puritan Holofornes. - * * * No further proceedings occurred in open cour till the following Saturday, but sitting in th Painted Chamber, the commissiouers took the depo sitions of several witnesses, "ex abundanti only, as they expressed it. These were mostly soldiers present at the various engagements of the war, and simply proved the sufficiently notorious fact tha the king had borne arms in the recent struggle At length they resolved on the death sentence, and having settled the form thereof adjourned int open court. On Saturday, accordingly, January 27th, the last session of the court was held. As the king was brought into the Hall a cry was raised of "Execution! Justice! Execution!" Silence being restored, the king desired that before sentence be passed he might be heard in the Painted Chamber before lords and commons, having something to say which concerned both. This was denied. The president, in the course of his refusal stating that the charge against the prisoner was made by the people of England, the same voice which had been heard on the first day exclaimed "no, nor the hundredth part of them." This time the offender was detected, and proved to be no other than Lady Fairfax, who was summarily ejected. 66 66 After some further discussion, and a short adjournment, Bradshaw proceeded to pass sentence. He made a lengthy speech, telling the king that as the law is your superior, so, truly sir, there is something that is superior to the law, and that is, indeed, the parent or author of the law, and that is, the people of England. He quoted Bracton, rex habet superiorem, deum et legem, etiam et curiam; debent ei ponere franum - they ought to bridle him," And cited again from the same anthor "that parliaments were they that were to adjudge the plaints and wrongs done of the king and the queen." From this he passed to the long intermission of parliaments under the king, "and truly, sir, in that you the court, exclaiming "I may speak after the sentence. By your favor, sir, I may speak after the sentence, ever. By your favor! Hold the sentence, sir! I say, sir, I do-I am not suffered to speak- expect what justice other people will have!" Short respite was given between sentence and execution. On the following Tuesday, a cold, dull day, the king stepped through a window of the Banqueting House on to the scaffold, which was surrounded by such a force of soldiers that his voice could not be heard by the people. Addressing himself therefore to the bystanding officials he made a short and dignified speech, closing with the declaration that he died a christian according to the profession of the Church of England. He told the executioner not to strike till he should give a sign by stretching out his hands. Taking off his George he handed it to Bishop Saxon with the one word, "remember." Then settling his neck on the block he passed a few moments in silent prayer, and stretching out his hands gave the signal, at which the axe fell with one effective blow, and the tragedy was over. Certainly, nothing in Charles' life became him so well as his manner of leaving it. For moral upon the whole matter we close with the famous reply of the old Scotch laird to that zealous Tory, Doctor Johnson: Doctor Johnson "What did Cromwell do?" Auchinleck "Cromwell do! God, sir! He garr'd kings ken there was a lith in their necks!" PAYEES. SUPREME COURT OF NEVADA, MARCH 26, 1884. HAYDON V. NICOLETTI.* A note indorsed by one only of two joint payees is subject to any equities existing in favor of the maker, the same as if it had not been indorsed by either. did strike at all; that had been a sure way to have brought about your intention to subvert the fundamental laws of the land, for the great bulwark of the liberties of the people is the parliament, and to subvert and root up that, which your NEGOTIABLE INSTRUMENT — EQUITIES — TWO aim hath been to do, certainly at one blow you had confounded the liberties and property of England." Had he stopped here his argument would have been forcible, and befitting the occasion, but lawyer like, he must needs seek for precedents, even upon so unprecedented an occasion, and accordingly he adduced the depositions of Edward II, Richard II, and the king's own grandmother, Mary Queen of Scots, and by these ill examples sought to fortify a position which found its true and only justification in the broad principle of public right, with which he had commenced. After referring to the recent war he closed in high puritan strain, reminding the king that his sins were of so large dimension that if he did but seriously think of them they would drive him to a sad consideration, and might improve in him a serious repentance. dered the sentence to be read. He then or This was a full recital of the proceedings, fairly engrossed on parchment, and closing with the stern operative part, "for all which treasons and crimes this court doth adjudge that the said Charles Stu art as a tyrant, traitor, murderer and public enemy, shall be put to death by the severing his head from his body." The reading being finished the whole court rose whilst Bradshaw declared it to be their unanimous judgment. The king now demanded to be heard, but was peremptorily refused, and forcibly removed from A note made to two payees, but indorsed by one only, and hypothecated to secure a loan made to him individually, will not affect the interests of the other obligee, without proof of agency or partnership. A PPEAL from the Seventh Judicial District Court, R. M. Clarke, for appellants. Thomas E. Haydon, for respondent. LEONARD, J. Defendants appeal from the judgment and order denying their motion for a new trial. It is alleged in the complaint that on the 20th of December, 1878, defendant Nicoletti executed to defendants T. L. Lagomarsine and A. S. Lagomarsine his promissory notes, each for $925, payable in nine and twelve months from date, and to secure payment of the same gave a mortgage on land described. These averments are not denied. It is alleged further that T. L. Lagomarsine and A. S. Lagomarsine pledged and delivered the first of said notes to the Reno Savings Bank July 11, 1879, to secure a loan of $240, made on said date to T. L. Lagomarsine; that on July 14, 1879, at the request of T. L. and A. S. Lagomarsine the bank loaned to the former the further sum of $70, upon an agreement that *S. C., 3 Pac. Rep. 473. the said Nicoletti note, before pledged, should be'security therefor; that at the time of said loans T. L. Lagomarsine gave to the bank his individual notes for the same. In their answer defendants admitted that T. L. Lagomarsine borrowed the sums mentioned, and gave his note therefor, but denied that T. L. Lagomarsine and A. S. Lagomarsine pledged or delivered the Nicoletti note as security to the bank. Plaintiff alleged also that T. L. Lagomarsine indorsed and delivered the Nicoletti note to the bank as agent and partner of A. S. Lagomarsine by indorsing his own name thereon. Defendants admitted that T. L. Lagomarsine indorsed and delivered the note, but denied that he was agent or partner of A. S. Lagomarsine, or that he had any authority to act for or bind the latter in the premises; denied that A. S. Lagomarsiue agreed to indorse, assign or deliver as a pledge or otherwise said note, or that he did so. As new matter, defendants allege that Nicoletti paid the note pledged to the bank before the commencement of this action, and that T. L. and A. S. Lagomarsine, for value received, sold, assigned, indorsed and delivered the second note, due in twelve months from date, to J. C. Hampton and that said note is due and unpaid. These facts are undisputed, viz.: The note in question was payable to A. S. Lagomarsine and T. L. Lagomarsine or order. In July, 1879, before maturity, T. L. Lagomarsine pledged the note as security for a loan by the bank to himself, individually, of $240, and a few days thereafter he obtained $70 more on the same terms. A. S. Lagomarsine received no benefit from the money borrowed, and did not know of the assignment until April, 1881, when the note was sold by the sheriff under an execution issued upou a judgment in favor of the executor of Larcomb's estate. At the time of the loan by the bank T. L. Lagomarsine indorsed his name, and was about to indorse his brother's also, when the cashier refused to allow him to do so, saying he preferred to have the other payee indorse for himself. T. L. Lagomarsine promised to have his brother make his indorsement. The bank received the note in this condition, as collateral, and A. S. Lagomarsine never indorsed it. Nicoletti was not notified by the bank of the assign- | meut, and he had no knowledge thereof until April, 1881. At the time of the execution of the notes and mortgage by Nicoletti it was agreed between him and T. L. Lagomorsine that he might pay any of the debts of the latter in Virginia City and receive credit therefor upon the notes. In the fall of 1879 a settlement was had between them, and it was found that Nicoletti had paid $780. This amount T. L. Lagomarsine agreed to credit on the first note, the one in question, but failed to do so, for the reason that it was in possession of the bank. Another settlement was had in the fall of 1880, and it was found and agreed that Nicoletti had paid off T. L. Lagomarsine's debts, $430, during that year. It was agreed that this amount should be credited on the notes, and that the first should be given up as paid. T. L. Lagomarsine gave Nicoletti receipts for the amount stated, at the dates of settlement, but the credits were not placed upon the notes. The court finds that between the date of the note and July 11, 1879, when it was assigned to the bank, Nicoletti paid, of the debts of T. L. Lagomarsine, $320, but that the bank had no notice thereof at that time or subsequently; and that after the assignment Nicoletti paid the further sum of $890, making in all $1,210, none of which was indorsed on the note or mortgage. Special issues were submitted to the jury, and from the facts found by them and the court, the court declared as conclusions of law that the Nicoletti notes to T. L. Lagomarsine and A. S. Lagomarsine were nego tiable; that they were transferred in good faith and for a valuable consideration, before maturity, as pledges to secure the payment of loans made by the bank and Hampton; that T. L. Lagomarsine was authorized as a partner and agent of A. S. Lagomarsine to pledge them; that the delay of A. S. Lagomarsine to assert any rights in said notes and mortgage after he knew of their disposition by T. L. Lagomarsine operated as a legal ratification of the transfers; that the transfer to the bank protected the bank from all equities in favor of Nicoletti, and from all payments made by him, of which the bank had no notice, to the extent of the principal and interest of the loans made by the bank to T. L. Lagomarsine; that the bank was not obliged to notify Nicoletti of the assignment in order to protect itself from any payment or other equities existing or subsequently arising in his favor against T. L. and A. S. Lagomarsine; but that said payments beyond the bank's loans to T. L. Lagomarsine, with interest, were operative to prevent any judgment against Nicoletti beyond the amount of such loan and interest. A decree was entered accordingly. The principal question to be decided is, whether under the circumstances, Nicoletti is entitled as against plaintiff to receive credit upon the note in suit for all or any portion of the debts of T. L. Lagomarsine paid by him before knowledge of the assignment to the bank. For the purposes of this case, without discussing or deciding the question, we shall concede that plaintiff acquired, by purchase of this note at sheriff's sale, all the rights that the bank acquired by the assignment and loan; that if the bank would have been protected against Nicoletti's equities, then plaintiff is. It is admitted also that a party receiving a negotiable paper as collateral security is entitled to be protected as a bona fide holder to the same extent as one who becomes the absolute owner, and that he may bring suit in his own name, as the real party in interest. 2 Pars. Bills & Notes, 54; Bank v. Vanderhorst, 32 N. Y. 556; Brookman v. Metcalf, id. 595; Lindsay v. Chase, 104 Mass. 253; Bonaud v. Genesi, 42 Ga. 639. The only difference between the rights of an absolute bona fide owner for value and a bona fide holder as collateral security as against the maker is that the former may recover in full, and the latter, if there be equities, is restricted to the extent of his advances. Matthews v. Rutherford, 7 La. Ann. 225. The jury found, and the court adopted the finding, that T. L. Lagomarsine and A. S. Lagomarsine were 'partners in the two Nicoletti notes." We do not think there was the slightest evidence sustaining such conclusion, and if we are correct, the element of partnership should not be considered in our discussion. Let us test our conclusion by the record. In the first place, in the note itself, there was nothing to indicate a partnership. It was payable to the two payees named, jointly, or their order. In form and substance it was like any other negotiable note owned jointly by two or more individuals. The bank knew there was but one way to obtain the legal title to the note--but one mode of transfer-according to the law merchant, and that was by the indorsement of the payees. Acting upon that knowledge, the cashier refused to permit one of the payees to indorse for the other, preferring to have the latter indorse for himself, since, as he expressed it, "the note was made jointly to T. L. Lagomarsine and his brother." The bank evidently regarded the transfer as incomplete at that time, and trusted in the personal promise of T. L. Lagomarsine to get the indorsement of his brother to complete it. T. L. Lagomarsine did not claim that the note was owned by the payees in partnership, but on the contrary, said it belonged to him, and that he had the right to iudorse his brother's name. In the face of |