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Robertson v. State.

NOTE BY THE REPORTER. — The liability of a person for homicide unintentionally committed in the perpetration of a practical joke has been several times adjudged. Thus, in Fenton's Case, 1 Lewin C. C. 179, where the prisoners, in sport, threw heavy stones into a mine, breaking a scaffold, which fell against and upset a corf, in which a miner was descending into the mine, whereby he was killed, they were held guilty of manslaughter. TINDAL, Ch. J., said: "In the present instance the act was one of mere wantonness and sport, but still the act was wrongful, it was a trespass. The only question, therefore, is, whether the death of the party is to be fairly and reasonably considered as a consequence of such wrongful act; if it followed from such wrongful act, as an effect from a cause, the offense is manslaughter; if it is altogether unconnected with it, it is accidental death." The prisoners were sentenced to three months' impris onment. In Rex v. Powell, 7 C. & P. 641, a lad, as a frolic, without any intent to harm anyone, took the trap-stick out of the front part of a cart, in consequence of which it was upset, and the carman who was in it, loading it, was pitched backward on the stones and killed. Held, manslaughter. The prisoner was fined one shilling and discharged. In Ewington's Case, 2 Lewin C. C. 217, the prisoners covered and surrounded a drunken man with straw, and threw a shovel of hot cinders upon his belly, whereby he was burned to death. PATERSON, J., charged that “if they believed the prisoners really intended to do any serious injury to the deceased, though not to kill him, it was murder; but if they believed their intention to have been only to frighten him in sport, it was manslaughter." Verdict, manslaughter. In State v. Roane, 2 Dev. 58, the defendant carelessly discharged a gun, intending only to frighten a supposed trespasser, really the servant of the prisoner, but killing him. Held, manslaughter. This case, although cited by Wharton under "practical jokes," does not answer that description; as also is the case cited in 1 East P. C. 236, where the prisoner ducked a thief, who had picked his pocket, and accidentally drowned him. In Rex v. Martin, 3 C. & P. 211, the prisoner ordered a quartern of gin to drink, and asked a child present if he would have a drop, at the same time putting the glass to the child's mouth, whereupon the child snatched the glass and drank the whole contents, which caused his death. VAUGHAN, B., said, as this was the act of the child, there must be an acquittal, "but if it had appeared that the prisoner had willingly given a child of this tender age a quartern of gin, out of a sort of brutal fun, and had thereby caused its death, I should, most decidedly, have held that to be manslaughter." Giving one physic, in sport, if fatal, is marlaughter. 1 East P. C. 264. So, if one in shooting at another's fowls, in mere wanton sport, kills a human being. Id. 255.

In Rex v. Conrahy, 2 Crawf. & Dix, 86, the prisoner and the deceased had been piling turf together, and the former, in sport, threw a piece of turf at the latter, hitting and killing him. Held, no crime. In Rex v. Waters, 6 C. & P. 328, there was testimony that the prisoner, in the course of rough and drunken joking, pushed a boat with his foot, whereby the deceased fell overboard and was drowned. There was also testimony that the push was given by another person. PARK, J., said, "if the case had rested on the evidence of the first witness it would not have amounted to manslaughter," and there must be an acquittal.

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Lee v. State, 1 Col. 62, cited in the principal case, was a case of killing by careless driving, criminal want of caution and circumspection." This is distinguishable from the principal case, because the driver must have known he was committing a careless act and it was inevitably careless. In State v. Smith, 2 Humph. 457, it was held that an indictment for assault by threatening with a pistol need not allege that the pistol was loaded. In Ann v. State, 11 Humph. 159, an indictment of a nurse for murder of an infant by administering laudanum, a charge that if the drug was administered to produce unnecessary sleep, and contrary to expectation it produced death, this would be murder, was held erroneous.

The remark in the latter part of the opinion in the principal case, that if the killing had occurred in an attempt merely to frighten, it would have been manslaughter, is supported by State v. Hardie, 47 Iowa, 647; S. C., 29 Am. Rep. 496.

Muse v. Swayne.

MUSE V. SWAYNE,

(2 Lea, 251.)

Damages-measure of -penalty.

A shop-keeper sold out his stock, and bound himself in a penalty of $500 not to engage in that business again in the same place for ten months, nor rent his house for that purpose, during that time. On a breach of this agreement, held, that the measure of damages was $500.*

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CTION on a bond. The opinion states the case. had judgment below.

I. R. & S. W. Hawkins, for defendant.

M. D. Cardwell and W. 8. Stephens, for plaintiff.

The plaintiff

MCFARLAND, J. Muse sold out to Swayne his stock of liquors, etc., in the town of McKenzie, and agreed not to engage in the business himself, nor rent his house for the purpose, for ten months. He violated this agreement, and this action is upon his bond, and the question is, whether Swayne is entitled to recover the amount specified as the penalty of the bond, or only such damages as he actually sustained.

The bond is substantially as follows: "I, George W. Muse, for the consideration of eight hundred dollars, am held and firmly bound to C. R. Swayne, in the penal sum of five hundred dollars, to be void on condition the said Muse shall not to his own account sell, vend or deal in whiskeys or such articles as are usually kept in a tipplinghouse, in the town of McKenzie, for a space of ten months. Nor shall said Muse rent or lease his grocery-house in the town of McKenzie, known as the 'Farmer's Exchange,' for the purposes of a saloon, or permit the same to be so used for a like term."

Whether the sum specified in such case shall be treated as liquidated damages, or as a penalty to secure actual damages, depends upon the intention of the parties, to be gathered from the bond and the nature of the transaction, and in all doubtful cases it is to be

* See note, 30 Am. Rep. 28.

Muse v. Swayne.

regarded as a penalty. The fact that the sum is specified in the bond as "liquidated damages or as a penalty," is to be considered, but is not conclusive either way.

The controlling consideration in a case like this, seems to be, that it would be difficult, if not impossible, to ascertain the damages actually sustained by the plaintiff, by reason of the defendant's violation of the terms of the obligation.

What damage the plaintiff suffered by the defendant's again entering into business in the town of McKenzie, or renting his house for the purpose, within ten months, would be a question in the highest degree speculative and uncertain; so that the sum specified in the bond must be regarded as the damages, when not unconscionable and unreasonable in itself, as otherwise no measure of recovery could be fixed upon.

Such seems to be the result of the authorities, English and Ameri can, as collected by Mr. Field, in his work on the Law of Damages, sections 142 and 143. Section 155, an English case cited by the author, is precisely parallel. Where the defendant contracted not to practice as a surgeon or apothecary within seven miles of a certain place under a penalty of £500, the sum was held to be liquidated damages, for the reason already indicated.

Another consideration is, that the bond specified only two alternatives; that is, not to engage in the business or rent his house for the purpose, or pay the $500. There is no stipulation that he may, in case he violate the agreement, pay the damages sustained, in discharge of the penalty of his bond.

We are not aware of any decision of this court that has been adverse to this view.

It does not seem unreasonable or unconscionable to allow the plaintiff to recover the full sum in this case. According to the proof, he gave the defendant $800 for a stock of liquors worth a little more than hålf the sum, with the stipulations referred to, which were violated in both particulars very soon afterwards.

Judgment affirmed.

Taylor v. French.

TAYLOR V. FRENCH.

(2 Lea, 257.)

Negotiable instruments — evidence to vary indorser's liability.

As between the immediate parties to a note, evidence is admissible to show an agreement at the time of execution that the liability of an apparent indorser should be only that of a surety, guarantor or co-maker.*

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CTION on notes. The opinion states the case. The defendant had judgment below.

Greer & Adams and McKisick & Turley, for plaintiff.

Craft, Estes & Ellett and E. J. & J. C. Read, for defendants.

COOPER, J. The mother of the plaintiffs, then infants, loaned $12,000 of their funds to Partee & Harbert, a firm composed of C. C. Partee and B. F. Harbert, taking therefor two notes of the firm, dated June 1st, 1870, payable twelve months after date, to Jno. Harbert and H. Partee, indorsed by them severally, and by James H. French.

The two notes were alike, except that the name of H. Partee preceded the name of John Harbert in the body and on the back of one of them. The money was paid to B. F. Harbert. The notes were not presented for payment at maturity, nor were the indorsers noti fied of their dishonor. The firm paid interest at the end of the first year. This suit was brought on the 15th April, 1872, against all parties to the paper.

Pending the suit Partee & Harbert received a discharge in bankruptcy, and their plea to that effect was admitted and allowed. The suit abated as to H. Partee, by his death.

The remaining defendants, John Harbert and James H. French, demurred to the plaintiff's declaration, and the demurrer was sustained as to all the counts except two. Issue was joined on these

• To same effect, Cole v Smith (29 La. Ann. 551), 29 Am. Rep. 343. Vol. XXXI — 77

Taylor v. French.

counts, and a trial had, resulting in a verdict and judgment for the defendants, and the plaintiff appealed in error.

The second and third counts of the declaration sought a recovery against the defendants simply as indorsers, without averring demand and notice, and were clearly bad. The fifth count was for money Icaned and advanced, and the eighth count averred an extension of the time of payment for one year after the maturity of the note, with the knowledge and consent of the indorsers.

The trial was on the fifth and eighth counts. The other counts, after making profert of the notes showing that the indorsements were in blank, averred that the indorsers had agreed to be bound, at the inception of the paper, as sureties, guarantees or comakers.

The learned circuit judge was of the opinion that parol evidence was inadmissible to show a different obligation on the part of the indorsers at the execution and delivery of the paper, from which the law would imply from the indorsements.

The point for consideration, and which has been argued with marked ability, is the admissibility of parol evidence to show the real contract as averred in the declaration. The general rule that parol evidence is not admissible to contradict or vary terms of a written instrument, applies to promissory notes, as has been repeatedly held by this court. Campbell v. Upshaw, 7 Humph. 185; Hancock v. Edwards, 7 id. 349; Blackmore v. Wood, 3 Sneed, 470; Ellis v. Hamilton, 4 id. 512.* The rule also, perhaps, applies to regular indorsements, as against a bona fide holder for value before maturity.t And some courts have applied it even between the immediate parties. Lake v. Stetson, 13 Gray, 310, note. The tendency of recent decisions seems to be in that direction, upon the ground that the contract is as fully expressed by the simple indorsement as if written out in full over the signature. 1 Dan. Neg. Instr., § 717. The rule is clearly otherwise when the indorsements are irregular, as, for example, when the indorser puts his name on the paper before the payee, or for the benefit of the payee. Id., § 710; Rivers v. Thomas, 1 Lea, 649. And many courts allow parol evidence in all cases of blank indorsements, because the right to demand and notice arises by implication of law, and may be waived directly or indirectly by conduct and circumstances. Dick v. Martin, 7 Humph. 263; Ross v. Espy, 66 Penn. St. 487; S. C., 5 Am. Rep. 394; Davis v. Morgan, 64 N. C. 381;

To same effect, Rodney v. Wilson (67 Mo. 123), 29 Am. Rep. 499. REP.

To same effect, Hill v. Shields, ante, 199. REP.

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