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material agencies to the person of that the first sentence of twelve another, either mediately or imme- months was imposed on the coming diately."

in of the verdict; there being no And by way of illustration: motion for new trial or appeal, the “Thus to strike the dress of a per- court inferred that no further resos assailed . or the house sistance to the prosecution or conin which he resides may be as much viction was intended, and, in cona battery as to strike his face." sideration of this fact, the sentence

While in the instant case the of twelve months was imposed, and prosecutor was not thrown entirely that the lighter sentence would not from the car, nor struck in any part have been given but for the fact of his body, the physical jar neces- that defendant had apparently acsarily produced by the collision de- quiesced in the result and would not scribed in evidence, caused by the prosecute his appeal.

unlawful use at the It is the accepted rule with us Assault-jarring of occupant

time of defend that, within the limits of the senant's car, is clearly tence permitted by the law, the char

sufficient as stated acter and extent of the punishment to justify a conviction for assault are committed to the sound discreand battery.

tion of the trial court, and may be It is further objected for error reviewed by this court only in case that, on the rendition of the verdict, of manifest and gross abuse. While defendant was sentenced to twelve the reasons for this change of senmonths in the common jail and as- tence, and such

a pronounced signed to work on the roads in Ire- change, may not apdell county. And the next day,

Appeal-inAnd the next day, pear adequate or alwhen a motion for a new trial was together satisfac- imprisonment

-review. made and overruled and appeal tory, we do not feel taken, the court struck out the first justified in holding as a conclusion judgment and imposed a sentence of of law that the judgment is erronetwo years in jail, and assigned to ous within the meaning of the prinwork on the roads, etc. In this con- ciple. nection the case on appeal states No error.

of vehicle by motor car.

crease of term of

ANNOTATION.

Manslaughter or assault in connection with use of automobile for unlawful

purpose or in violation of law. This annotation, treating of man- 396; Hobbs v. State (1922) 83 Fla. slaughter or assault in connection 480, 91 So. 555; Com. v. Peach (1921) with the use of an automobile for an 239 Mass. 575, 132 N. E. 351; Com. v. unlawful purpose or in violation of Guillemette (1923) 243 Mass. 346, 137 law, is supplementary to the annota- N. E. 700; State v. Jessup (1922) 183 tions on the same subject which ap- N. C. 771, 111 S. E. 523. See so pear in 16 A.L.R. at page 914, and in the reported case (STATE v. SUDDERTH, 21 A.L.R. at page 1504, and reviews ante, 1180), and Shorter v. State only the later cases.

(1923) Tenn. —, 247 S. W. 985. The late cases are unanimously to In Anderson v. State (Ala.) supra, the effect that, where one drives his the defendant was convicted of manautomobile in such a manner as to vio- slaughter for killing a person while late the laws in respect thereto, and driving an automobile. In discussing while so doing strikes another and several of the charges refused to the causes his death, he is guilty of man- defendant in the trial below, it was slaughter. Anderson v. State (1922) declared that the fact that the injury 18 Ala. App. 429, 93 So. 68; People v. was accidental would not justify an Seiler (1922) Cal. App. —, 207 Pac. acquittal; for, said the court, "the

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law justifies conviction if the defend- or wanton and reckless act in driving ant was engaged in an unlawful act, an automobile, it was held that the or the doing of a lawful act in an un- commonwealth was not obliged to lawful manner.” It was further said: prove any intent on the part of the "To be guilty of second-degree man- defendant to commit the crime of slaughter, it was not necessary that manslaughter. "Nor,” said the court, the automobile be intentionally run "was the judge required to instruct over deceased, as stated in said the jury in the words of the request, charges. If the act had been inten- that in order to justify a conviction it tionally committed, the offense would, was necessary to prove an intent conof necessity, be a higher one than sec- sisting of an active state of mind ond-degree manslaughter."

amounting to reckless and wanton disIn People v. Seiler (1922) Cal. regard for the lives of others.” It App. —, 207 Pac. 396, wherein the de- was held, too, that one charged with fendant was convicted of manslaugh- manslaughter for causing the death of ter for the death of one Doty, who another by recklessly driving his autowas killed when the car which he was mobile against a motor car in which driving was struck by an automobile the other was riding cannot excuse driven by the defendant, directly fol- his recklessness by showing the neglilowing a collision by the defendant gence of the driver of that car, alwith another car, there was evidence though the jury should consider the to prove that the defendant, at the entire situation in determining whethtime of the accident, was driving on er the defendant was reckless. See to the wrong side of the road, at a the same effect, Com. v. Guillemette speed of 40 to 50 miles per hour, and (1923) 243 Mass. 346, 137 N. E. operating his car in a careless man- 700. ner and at an unreasonable rate In State v. Jessup (1922) 183 N. C. of speed, having regard to the traffic, 771, 111 S. E. 523, the defendant was and use of the highway. Under convicted of manslaughter in causing each of these circumstances the de- the death of a person riding in a motor fendant would be guilty of a misde- car with which the defendant's car meanor under the Motor Vehicle Act. collided. The court said: “The jury, It was held that, if the death of Doty accepting the state's version of the was thus caused, the defendant might matter, have convicted the defendant be convicted of manslaughter under of causing the death of O. N. Swanson, the following definition thereof: as charged in the bill of indictment, “Manslaughter is the unlawful killing by his criminal negligence in driving of a human being without malice. It his car on the wrong side of the road, is involuntary,-in the commission of and in operating the same without takan unlawful act not amounting to a ing reasonable and proper care, confelony."

trary to the provisions of the statute It has been held that where the applicable. C. S. 2617, 2618. Both of culpable negligence of the defendant, these sections were enacted as neceswhile operating his automobile at an sary to a proper protection of persons unlawful rate of speed in a public upon the highways of the state, and street, causes the death of a person because, with the high-power vehicles struck by such automobile, the unlaw- now very generally in use, a violation ful speed forms the basis for a charge of these regulations was not unlikely of manslaughter, irrespective to result in serious and oftentimes in whether the defendant was intoxi- fatal injuries. In the recent case of cated. Hobbs v. State (1922) 83 Fla. State v. Rountree (1921) 181 N. C. 535, 480, 91 So. 555.

106 S. E. 669, Associate Justice Stacy, In Com. v. Peach (1921) 239 Mass. in a clear and forcible opinion, deals 575, 132 N. E. 351, wherein the de- with these statutes and the underfendant was found guilty of man- lying reasons for their enactment; slaughter on proof that death had and it was there held, among other been caused by his gross negligence things, as pertinent to the facts of the

of

present record: “Where one is tried is killed as the result of such illegal for the reckless driving of an automo- driving, or for assault in case of per. bile made criminal by our statute sonal injury. And while the prose(Consol. Stat. & 2618), and an uninten- cutor was not thrown from his car, nor tional killing has been established by was he struck in any part of his body, him, evidence is sufficient for convic- the physical jar resulting from the tion of manslaughter, which tends to collision is held to be sufficient to war. show such recklessness or careless- rant a conviction for assault and ness as is incompatible with the prop- battery. er regard for human life or limb, or In Shorter v. State (1923) Tenn that such injury was likely to occur 247 S. W. 985, a conviction of asunder the circumstances. The com- sault with intent to commit murder in mission of a dangerous act, in itself a the second degree, based upon viola. violation of a statute intended to tion of the speed laws by a taxicab prevent injury to the person, when driver, was reversed, the court redeath to another ensues, renders the marking: "To make a case of murder actor guilty of manslaughter, at least. against a motorist exceeding the speed Where an act makes reckless driving limit, we think it should appear that of automobiles upon the public high- such conduct was directly perilous to ways, under certain conditions, a human life, or that human life would criminal offense, and there is a proviso probably be endangered thereby." fixing various speed limits thereon as Continuing, the court said: “We may to different localities and conditions infer negligence from the mere fact of criminal negligence per se, and in- the operation of an automobile on the dictable, the proviso as to the speed public highway at an unlawful rate of limits does not necessarily preclude speed. Lauterbach v. State (1915) conviction of the offense prescribed in 132 Tenn. 603, 179 S. W. 30. We canthe body of the act for recklessness, not, however, infer malice from this while driving at less speed.'”

fact alone. Our statutory definition of In Shorter v. State (1923) Tenn. manslaughter is as follows: "Man-, 247 S. W. 985, wherein the defend- slaughter is the unlawful killing of ant was convicted of an assault with another without malice, ... which intent to commit murder in the second may be either voluntary upon a suddegree, the court said: "However, den heat, or involuntary, but in the if the motorist was running in excess commission of some unlawful act.' of 20 miles an hour, without knowl. Thompson's Shannon's Code, $ 6444. edge that he was endangering, or Bearing in mind this section of the probably endangering, the lives of Code, we do not see how there can be others, we think, under these condi- any question here of an assault with tions, he would only be guilty of intent to commit voluntary man. manslaughter, if he ran down and slaughter. There is no such crime killed a person."

known to our law as assault with inIn the reported case (STATE v. SUD- tent to commit involuntary manslaughDERTH, ante, 1180) it appeared that the ter. Stevens v. State (1892) 91 Tenn. prosecutor's car was struck by that of 726, 20 S. W. 423. We, therefore, the defendant while the latter was vio- think there was no occasion to charge lating the law as regards the opera- anything about assault with intent to tion of motor vehicles, in that he was commit manslaughter, either volun. driving on the wrong side of the road tary or involuntary. If the defendant and at an improper rate of speed. It had been acquitted of murder, then is pointed out that the party in default the next inquiry for the jury was may be prosecuted for murder or man- whether or not he was guilty of as. slaughter if a person on the highway sault and battery."

R, S.

(286 Fcd, 870.)

FURNESS, WITHY, & COMPANY, Limited,

V.
J. ROTHE et al.

United States Circuit Court of Appeals, Fourth Circuit

February 6, 1923.

(286 Fed. 870.)

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Bills and notes —time for fixing re-exchange.

1. The amount of re-exchange chargeable against the drawer of a bill on a foreign country, which is dishonored and returned, is fixed by the rate of exchange at the time it should have been paid, not when it should have been accepted.

[See note on this question beginning on page 1189.] --draft for supplies duty to ac- able and returned to the country in cept.

which it was made or indorsed, and 2. Where, by custom, the masters of there taken up. foreign vessels sign blank drafts for [See 3 R. C. L. 1339, 1340.] supplies, on the vessel owners, to be

Bills and notes basis for re-exfilled out by the seller for an amount

change. in the currency of the owner's country, equivalent to the purchase price

5. The basis for re-exchange is inin the country of the seller, the vessel

demnity to the holder of the bill for

the loss he sustains by the failure of owners cannot refuse to accept the draft on the theory that it should have

the drawee to pay the amount at the been drawn in the currency of the

time and place, and in the money,

called for in the bill. seller's country, because the rate of exchange gave the supplies a much Damages — for refusal to accept bill higher value in the currency of the

of exchange - when computed. owner's country.

6. The damages for refusal to ac- liability for re-exchange.

cept a bill of exchange will be com3. The owner of a vessel who re- puted as of the day payment would be fuses to honor a proper draft by the

due, not of the time of refusal to acmaster for supplies furnished in a

cept. foreign country is liable to the payee

[See 3 R. C. L. 1340.] for re-exchange.

Bills and notes -- necessity of acceptDefinition - "re-exchange."

ance of draft. 4. "Re-exchange" is the expense in- 7. An authorized draft by the mascurred by a bill being dishonored in ter of a vessel upon the owner for supa foreign country in which it was pay- plies needs no acceptance.

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CROSS APPEALS from a decree of the District Court of the United States for the Eastern District of Virginia in favor of plaintiff (Groner, J.) in an action brought to recover damages for nonpayment of a bill of exchange given for supplies furnished in a foreign country; plaintiff appealing from so much of the decree as allowed an insufficient amount; and defendant appealing from so much as allowed any amount. Modified.

The facts are stated in the opinion of the court. Argued before Woods and Waddill, J. p. 65, § 92; Norton, Bills & Notes, Circuit Judges, and Webb, District 4th ed. p. 223; Bowen v. Stoddard, 10 Judge.

Met. 377; Dan. Neg. Inst. 3d ed. p. 454. Messrs. Hughes, Vandeventer, & Where a party bound by an execuEggleston, for plaintiff:

tory contract repudiates his obligaDamages should not be fixed as of tion before the time for performance, nonacceptance date.

the obligee has an option to treat the Bigelow, Bills & Notes, 2d ed. p. 70; contract as ended so far as further 1 Dan. Neg. Inst. 2d ed. 8 502; 8 C. performance is concerned, and to

27 A.L.R.–75.

were

maintain an action at once for the The Wyandotte, 75 C. C. A. 117, 145 damages occasioned by such anticipa- Fed. 321. tory breach.

The draft having been drawn as 13 C. J. p. 651, $ 725; Central Trust evidence of a bunker coal bill, which Co. v. Chicago Auditorium Asso. 240 bunkers

a “necessary,” furU. S. 581, 60 L. ed. 811, L.R.A.1917B, nished a ship in distress in a foreign 580, 36 Sup. Ct. Rep. 412; Roehm v. port, the draft is a lien on the ship in Horst, 178 U. S. 1, 44 L. ed. 953, 20 the nature of a bottomry bond. Sup. Ct. Rep. 780; Colorado Yule The Wyandotte, 136 Fed. 470, afMarble Co. v. Collins, 144 C. C. A. 376, firmed in 75 C. C. A. 117, 145 Fed. 321; 230 Fed. 78; Roller v. George H. Leon- Hughes, Maritime Liens, 802; The ard & Co. 143 C. C. A. 629, 229 Fed. Grapeshot, 9 Wall. 136, 19 L. ed. 654; 607; Donati v. Cleveland Grain Co. The Emily Soudar (The Emily B. 137 C. C. A. 68, 221 Fed. 168; Alle- Soudar v. Pritchard) 17 Wall. 669, 21 gheny Valley Brick Co. v. C. W. Ray- L. ed. 684. mond Co. 135 C. C. A. 189, 219 Fed. Messrs. Hughes, Little, & Seawell, 477; Sperry & H. Co. v. O'Neill-Adams for defendants : Co. 107 C. C. A. 337, 185 Fed. 231; H. The draft was payable at thirty T. Smith Co. v. Minetto-Meriden Co. days after sight, and acceptance was 168 Fed. 777; Barker & S. Lumber Co. refused when presented for acceptv. Edward Hines Lumber Co. 137 Fed. ance. By nonacceptance appellant's 300; Northrop v. Mercantile Trust & rights, if any, against the payee, imD. Co. 119 Fed. 969; Mutual Reserve mediately accrued, and its damages Fund Life Asso. v. Taylor, 99 Va. 208, were fixed as of that time. 37 S. E. 854; New Brunswick & C. R. Watson v. Tarpley, 18 How. 517, 15 Co. v. Wheeler, 12 Fed. 377, affirmed L. ed. 509. in 115 U. S. 29, 29 L. ed. 341, 5 Sup.

Woods, Circuit Judge, delivered Ct. Rep. 1061, 1160. When a draft is made by an agent

the opinion of the court: on his principal, in law it is already

The master of a vessel draws a accepted, and can only be dishonored bill of exchange in this country, for at payment date.

the purchase of bunker coal, on the 8 C. J. p. 182, $ 309; Randolph v. vessel's owner in Norway, payable Parish, 9 Port. (Ala.) 76; Hazard v. in kroner thirty days after sight. Cole, 1 Idaho, 276; Kaskaskia Bridge The bill is protested for refusal to Co. v. Shannon, 6 Ill. 15; Burnheisel

accept. The holder retains the bill v. Field, 17 Ind. 609; Cunningham v.

and presents it for payment upon Wardwell, 12 Me. 466; Hasey v. White Pigeon Beet Sugar Co. 1 Dougl.

maturity. The bill is protested for (Mich.) 193.

nonpayment thirty

thirty days afterThe rule as to the measure of dam

wards. If the draft was authorized, ages is that libellant is, so far as

is the owner liable for re-exchange money can do it, to be placed in the at the current rate on the day of same situation as if the contract had dishonor by nonaceeptance, or at been performed.

the current rate thirty days thereClark, Contr. 2d ed. p. 485; Har- after, when payment was due and grave v. Creighton, 1 Woods, 489, Fed. refused ? Cas. No. 6,064; 2 Dan. Neg. Inst. S The Norwegian steamship Glit1145.

tertind arrived in Hampton Roads The payee of a bill of exchange in November, 1920. The master drawn in blank on a foreign country found it necessary to purchase has the right to fill in the amount in bunker coal for her voyage to Arthe currency of the country where

gentine. Furness, Withy, & Compayable in the drawee's name.

pany, a corporation, furnished the 1 Dan. Neg. Inst. 3d ed. § 142, p. 145; Norton, Bills & Notes, 4th ed.

coal, the bill, with the trimming

charges, amounting to $11,975.58. p. 342; Frank v. Lilienfeld, 33 Gratt. 377; Violett v. Patton, 5 Cranch, 142,

Expecting to leave before the exact 3 L. ed. 61; 8 C. J. p. 182, § 313.

amount of the bill could be made It is the custom to draw in the ex

up, the master signed a blank draft change of the country where the bill and delivered it without instrucis payable.

tions to Furness, Withy, & Com

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