material agencies to the person of another, either mediately or immediately."

And by by way of illustration: illustration: "Thus to strike the dress of a perSon assailed or the house in which he resides may be as much a battery as to strike his face."

While in the instant case the prosecutor was not thrown entirely from the car, nor struck in any part of his body, the physical jar necessarily produced by the collision described in evidence, caused by the unlawful use at the

Assault-jar

of vehicle by motor car.

ring of occupant time of defendant's car, is clearly sufficient as stated to justify a conviction for assault and battery.

It is further objected for error that, on the rendition of the verdict, defendant was sentenced to twelve months in the common jail and assigned to work on the roads in Iredell county. And the next day, when a motion for a new trial was made and overruled and appeal taken, the court struck out the first judgment and imposed a sentence of two years in jail, and assigned to work on the roads, etc. In this connection the case on appeal states

that the first sentence of twelve months was imposed on the coming in of the verdict; there being no motion for new trial or appeal, the court inferred that no further resistance to the prosecution or conviction was intended, and, in consideration of this fact, the sentence of twelve months was imposed, and that the lighter sentence would not have been given but for the fact that defendant had apparently acquiesced in the result and would not prosecute his appeal.

It is the accepted rule with us that, within the limits of the sentence permitted by the law, the character and extent of the punishment are committed to the sound discretion of the trial court, and may be reviewed by this court only in case of manifest and gross abuse. While the reasons for this change of sentence, and such a pronounced change, may not appear adequate or altogether satisfac- imprisonment tory, we do not feel justified in holding as a conclusion of law that the judgment is erroneous within the meaning of the principle.

No error.

Appeal-increase of term of -review.

This annotation, treating of manslaughter or assault in connection with the use of an automobile for an unlawful purpose or in violation of law, is supplementary to the annotations on the same subject which appear in 16 A.L.R. at page 914, and in 21 A.L.R. at page 1504, and reviews only the later cases.

The late cases are unanimously to the effect that, where one drives his automobile in such a manner as to violate the laws in respect thereto, and while so doing strikes another and causes his death, he is guilty of manslaughter. Anderson v. State (1922) 18 Ala. App. 429, 93 So. 68; People v. Seiler (1922) Cal. App. 207 Pac.

396; Hobbs v. State (1922) 83 Fla. 480, 91 So. 555; Com. v. Peach (1921) 239 Mass. 575, 132 N. E. 351; Com. v. Guillemette (1923) 243 Mass. 346, 137 N. E. 700; State v. Jessup (1922) 183 N. C. 771, 111 S. E. 523. See also the reported case (STATE v. SUDDERTH, ante, 1180), and Shorter v. State (1923) Tenn. -247 S. W. 985.

In Anderson v. State (Ala.) supra, the defendant was convicted of manslaughter for killing a person while driving an automobile. In discussing several of the charges refused to the defendant in the trial below, it was declared that the fact that the injury was accidental would not justify an acquittal; for, said the court, "the

law justifies conviction if the defendant was engaged in an unlawful act, or the doing of a lawful act in an unlawful manner." It was further said: "To be guilty of second-degree manslaughter, it was not necessary that the automobile be intentionally run over deceased, as stated in said charges. If the act had been intentionally committed, the offense would, of necessity, be a higher one than second-degree manslaughter."

Cal.

In People v. Seiler (1922) App., 207 Pac. 396, wherein the defendant was convicted of manslaughter for the death of one Doty, who was killed when the car which he was driving was struck by an automobile driven by the defendant, directly following a collision by the defendant with another car, there was evidence to prove that the defendant, at the time of the accident, was driving on the wrong side of the road, at a speed of 40 to 50 miles per hour, and operating his car in a careless manner and at an unreasonable rate of speed, having regard to the traffic and use of the highway. Under each of these circumstances the defendant would be guilty of a misdemeanor under the Motor Vehicle Act. It was held that, if the death of Doty was thus caused, the defendant might be convicted of manslaughter under the following definition thereof: "Manslaughter is the unlawful killing of a human being without malice. It is involuntary,-in the commission of an unlawful act not amounting to a felony."

It has been held that where the culpable negligence of the defendant, while operating his automobile at an unlawful rate of speed in a public street, causes the death of a person struck by such automobile, the unlawful speed forms the basis for a charge of manslaughter, irrespective of whether the defendant was intoxicated. Hobbs v. State (1922) 83 Fla. 480, 91 So. 555.

In Com. v. Peach (1921) 239 Mass. 575, 132 N. E. 351, wherein the defendant was found guilty of manslaughter on proof that death had been caused by his gross negligence

or wanton and reckless act in driving an automobile, it was held that the commonwealth was not obliged to prove any intent on the part of the defendant to commit the crime of manslaughter. "Nor," said the court, "was the judge required to instruct the jury in the words of the request, that in order to justify a conviction it was necessary to prove an intent consisting of an active state of mind amounting to reckless and wanton disregard for the lives of others." It was held, too, that one charged with manslaughter for causing the death of another by recklessly driving his automobile against a motor car in which the other was riding cannot excuse his recklessness by showing the negligence of the driver of that car, although the jury should consider the entire situation in determining whether the defendant was reckless. See to the same effect, Com. v. Guillemette (1923) 243 Mass. 346, 137 N. E. 700.

In State v. Jessup (1922) 183 N. C. 771, 111 S. E. 523, the defendant was convicted of manslaughter in causing the death of a person riding in a motor car with which the defendant's car collided. The court said: "The jury, accepting the state's version of the matter, have convicted the defendant of causing the death of O. N. Swanson, as charged in the bill of indictment, by his criminal negligence in driving his car on the wrong side of the road, and in operating the same without taking reasonable and proper care, contrary to the provisions of the statute applicable. C. S. 2617, 2618. Both of these sections were enacted as necessary to a proper protection of persons upon the highways of the state, and because, with the high-power vehicles now very generally in use, a violation of these regulations was not unlikely to result in serious and oftentimes in fatal injuries. In the recent case of State v. Rountree (1921) 181 N. C. 535, 106 S. E. 669, Associate Justice Stacy, in a clear and forcible opinion, deals with these statutes and the underlying reasons for their enactment; and it was there held, among other things, as pertinent to the facts of the

present record: 'Where one is tried for the reckless driving of an automobile made criminal by our statute (Consol. Stat. § 2618), and an unintentional killing has been established by him, evidence is sufficient for conviction of manslaughter, which tends to show such recklessness or carelessness as is incompatible with the proper regard for human life or limb, or that such injury was likely to occur under the circumstances. The commission of a dangerous act, in itself a violation of a statute intended to prevent injury to the person, when death to another ensues, renders the actor guilty of manslaughter, at least. Where an act makes reckless driving of automobiles upon the public highways, under certain conditions, a criminal offense, and there is a proviso fixing various speed limits thereon as to different localities and conditions criminal negligence per se, and indictable, the proviso as to the speed limits does not necessarily preclude conviction of the offense prescribed in the body of the act for recklessness, while driving at less speed.'"

In Shorter v. State (1923) — Tenn. -, 247 S. W. 985, wherein the defendant was convicted of an assault with intent to commit murder in the second degree, the court said: "However, if the motorist was running in excess of 20 miles an hour, without knowledge that he was endangering, or probably endangering, the lives of others, we think, under these conditions, he would only be guilty of manslaughter, if he ran down and killed a person."

In the reported case (STATE V. SUDDERTH, ante, 1180) it appeared that the prosecutor's car was struck by that of the defendant while the latter was violating the law as regards the operation of motor vehicles, in that he was driving on the wrong side of the road and at an improper rate of speed. It is pointed out that the party in default may be prosecuted for murder or manslaughter if a person on the highway

is killed as the result of such illegal driving, or for assault in case of personal injury. And while the prosecutor was not thrown from his car, nor was he struck in any part of his body, the physical jar resulting from the collision is held to be sufficient to warrant a conviction for assault and battery.

In Shorter v. State (1923) — Tenn. -, 247 S. W. 985, a conviction of assault with intent to commit murder in the second degree, based upon violation of the speed laws by a taxicab driver, was reversed, the court remarking: "To make a case of murder against a motorist exceeding the speed limit, we think it should appear that such conduct was directly perilous to human life, or that human life would probably be endangered thereby." Continuing, the court said: "We may infer negligence from the mere fact of the operation of an automobile on the public highway at an unlawful rate of speed. Lauterbach v. State (1915) 132 Tenn. 603, 179 S. W. 30. We cannot, however, infer malice from this fact alone. Our statutory definition of manslaughter is as follows: 'Manslaughter is the unlawful killing of another without malice, . . . which may be either voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act.' Thompson's Shannon's Code, § 6444 Bearing in mind this section of the Code, we do not see how there can be any question here of an assault with intent to commit voluntary manslaughter. There is no such crime known to our law as assault with intent to commit involuntary manslaughter. Stevens v. State (1892) 91 Tenn. 726, 20 S. W. 423. We, therefore, think there was no occasion to charge anything about assault with intent to commit manslaughter, either voluntary or involuntary. If the defendant had been acquitted of murder, then the next inquiry for the jury was whether or not he was guilty of assault and battery." R. S.

maintain an action at once for the damages occasioned by such anticipatory breach.

13 C. J. p. 651, § 725; Central Trust Co. v. Chicago Auditorium Asso. 240 U. S. 581, 60 L. ed. 811, L.R.A.1917B, 580, 36 Sup. Ct. Rep. 412; Roehm v. Horst, 178 U. S. 1, 44 L. ed. 953, 20 Sup. Ct. Rep. 780; Colorado Yule Marble Co. v. Collins, 144 C. C. A. 376, 230 Fed. 78; Roller v. George H. Leonard & Co. 143 C. C. A. 629, 229 Fed. 607; Donati v. Cleveland Grain Co. 137 C. C. A. 68, 221 Fed. 168; Allegheny Valley Brick Co. v. C. W. Raymond Co. 135 C. C. A. 189, 219 Fed. 477; Sperry & H. Co. v. O'Neill-Adams Co. 107 C. C. A. 337, 185 Fed. 231; H. T. Smith Co. v. Minetto-Meriden Co. 168 Fed. 777; Barker & S. Lumber Co. v. Edward Hines Lumber Co. 137 Fed. 300; Northrop v. Mercantile Trust & D. Co. 119 Fed. 969; Mutual Reserve Fund Life Asso. v. Taylor, 99 Va. 208, 37 S. E. 854; New Brunswick & C. R. Co. v. Wheeler, 12 Fed. 377, affirmed in 115 U. S. 29, 29 L. ed. 341, 5 Sup. Ct. Rep. 1061, 1160.

When a draft is made by an agent on his principal, in law it is already accepted, and can only be dishonored at payment date.

8 C. J. p. 182, § 309; Randolph v. Parish, 9 Port. (Ala.) 76; Hazard v. Cole, 1 Idaho, 276; Kaskaskia Bridge Co. v. Shannon, 6 Ill. 15; Burnheisel v. Field, 17 Ind. 609; Cunningham v. Wardwell, 12 Me. 466; Hasey v. White Pigeon Beet Sugar Co. 1 Dougl. (Mich.) 193.

The rule as to the measure of damages is that libellant is, so far as money can do it, to be placed in the same situation as if the contract had been performed.

Clark, Contr. 2d ed. p. 485; Hargrave v. Creighton, 1 Woods, 489, Fed. Cas. No. 6,064; 2 Dan. Neg. Inst. § 1145.

The payee of a bill of exchange drawn in blank on a foreign country has the right to fill in the amount in the currency of the country where payable in the drawee's name.

1 Dan. Neg. Inst. 3d ed. § 142, p. 145; Norton, Bills & Notes, 4th ed. p. 342; Frank v. Lilienfeld, 33 Gratt. 377; Violett v. Patton, 5 Cranch, 142, 3 L. ed. 61; 8 C. J. p. 182, § 313.

It is the custom to draw in the exchange of the country where the bill is payable.

The Wyandotte, 75 C. C. A. 117, 145 Fed. 321.

The draft having been drawn as evidence of a bunker coal bill, which bunkers were a "necessary," furnished a ship in distress in a foreign port, the draft is a lien on the ship in the nature of a bottomry bond.

The Wyandotte, 136 Fed. 470, affirmed in 75 C. C. A. 117, 145 Fed. 321; Hughes, Maritime Liens, 802; The Grapeshot, 9 Wall. 136, 19 L. ed. 654; The Emily Soudar (The Emily B. Soudar v. Pritchard) 17 Wall. 669, 21 L. ed. 684.

Messrs. Hughes, Little, & Seawell, for defendants:

The draft was payable at thirty days after sight, and acceptance was refused when presented for acceptance. By nonacceptance appellant's rights, if any, against the payee, immediately accrued, and its damages were fixed as of that time.

Watson v. Tarpley, 18 How. 517, 15 L. ed. 509.

Woods, Circuit Judge, delivered the opinion of the court:

The master of a vessel draws a bill of exchange in this country, for the purchase of bunker coal, on the vessel's owner in Norway, payable in kroner thirty days after sight. The bill is protested for refusal to accept. The holder retains the bill and presents it for payment upon maturity. The bill is protested for nonpayment thirty days afterwards. If the draft was authorized, is the owner liable for re-exchange at the current rate on the day of dishonor by nonaceeptance, or at the current rate thirty days thereafter, when payment was due and refused?

The Norwegian steamship Glittertind arrived in Hampton Roads in November, 1920. The master found it necessary to purchase bunker coal for her voyage to Argentine. Furness, Withy, & Company, a corporation, furnished the coal, the bill, with the trimming charges, amounting to $11,975.58. Expecting to leave before the exact amount of the bill could be made up, the master signed a blank draft and delivered it without instructions to Furness, Withy, & Com