VERDICT. company or its duly authorized agent, or a waiver of such pay ment. This statement of the law upon this point is fully sustained by the case of Weisman et al. vs. Fire Insurance Company, 3 Pennewill, 224, tried in this Court about two years ago. As a general rule, the payment of a debt by a note, if accepted as such, is a good payment. In Joyce on Insurance, Vol. 1, Sec. 73, it is said: "Where a policy is delivered to an agent with authority to deliver it to the insured and receive the premium, and the agent delivers the policy and accepts a note for the premium, and discounts it on his own account, but does not pay the amount to the principal, the company is liable, although the policy provides that such agent shall be deemed the agent of the insured, and that the insurer shall not be liable until he actually receives the premium." You are the sole judges of the evidence, and if in the statement of it by the Court for the purpose of presenting to you the issues to be determined by you, there is any error or omission, you should not rely upon such statement, but be governed solely by the evidence as it was delivered to you in the course of the trial. If you find a verdict for the plaintiff, it should be for the value of the property destroyed, not exceeding $900 for the first class of property described in the policy, and $100 for the second class of property so described, and not exceeding $1,000 for the whole, with interest thereon from a date ninety days after the delivery of the preliminary proofs of loss to the defendant compay. Verdict for plaintiff for $1,069.62. SYLLABUS. STATE v8. HOWARD LEWIS. Criminal Law-Assault and Battery-Driving Horse against a I. An assault is an attempt to do violence to the person of another with the means at hand of carrying that intention into execution. The battery is the actua] infliction of the injury, however slight that may be. 2. If a horse which is attached to a wagon is wilfully or intentionally driven into, or forced in contact with a person, walking in the public highway, by some person, that would constitute an assault and battery; and the person at the time having the control and management of the horse and wagon, or who is present aiding, procuring, commanding, counseling or assisting the person who actually had hold of the lines and who was managing the horse and wagon, would be guilty of the offense. 3. The public highway is open in all its length and breadth to the reasonable, common and equal use of the people on foot or on horseback, or in vehicles. 4. Where one undertakes to pass another, he who passes undertakes to go by at his peril. See case of McLain vs. Sharp, 2 Harr., 483. 1903. (May 18, 1903.) LORE, C. J., and GRUBB and PENNEWILL, J. J., sitting. Herbert H. Ward, Attorney-General, for the State. J. Frank Ball for the defendant. Court of General Sessions, New Castle County, May Term, The prisoner was indicted at this term for ASSAULT AND BATTERY. At the trial proof was offered tending to show that on March 14, 1903, while the prosecuting witness, Mrs. Lucy Hallett, with her husband and her sister, were walking along a public road between Middletown and Odessa, a team containing the defendant (a colored man) and five colored women, and being either driven FACTS-PRAYERS. by or under the control of the defendant (the testimony being conflicting upon the point as to who was driving at the time of the accident), came up behind the prosecuting witness and that the horse's head struck her upon the shoulder. The testimony further showed that the three persons had been, a short time before the collision, walking along a side-path, but, owing to the wet condition of the same, had stepped out into the road and were walking along the extreme right-hand side thereof when the collision occurred; that the road was wide enough at that point for three teams to go abreast; that the horse was in a walk at the time of striking the prosecuting witness; and that the prisoner made no attempt to drive around the persons who were walking, but asked them to get out of the way so that he could pass. This the husband of the prosecuting witness refused to do, and when his wife stepped aside, told her to come back behind him, which she did, and immediately the collision occurred. The Attorney-General asked the Court to charge the jury : First-That as all the persons had an equal right to the use of the road, and that as the pedestrians were on the right-hand side of the road-the proper side-going in the same direction as the team, it was the duty of the persons coming behind them in the vehicle to avoid colliding with the persons walking in front. Second-That if the jury believe that Howard Lewis had hold of the lines, or that he had charge of the team and should have had control, he would be responsible for colliding with the prosecuting witness on the ground that he was present, aiding and abetting. Counsel for defendant asked the Court to charge the jury: First-That where a loaded wagon and foot passengers are passing along a public highway, and there is a footpath, it is the CHARGE. duty of the foot passenger to keep to the footpath rather than the wagon road, and if he goes out of the footpath on account of the wet condition of the same (as the testimony shows in the present case) into the wagon road, it is the duty of the foot passenger to give the right of way to the loaded wagon, rather than the loaded wagon to drive out of the way to accommodate the foot passenger. If anyone has to yield in such case it is the foot passenger, because it is more easy for him to get out of the road than for the loaded wagon. Second-That the jury, in order to convict the defendant, Howard Lewis, must believe, beyond a reasonable doubt, that he had charge of or control of the horse when the collision happened. (No authorities were cited in support of the prayers on either. side.) LORE, C. J., charging the jury: Gentlemen of the jury:-Howard Lewis, the defendant in this case, is charged with an assault and battery. An assault is an attempt to do violence to the person of another with the means at hand of carrying that intention into execution. The battery is the actual infliction of the injury, however slight that may be. If you should find from the evidence in this case that the horse which was attached to the wagon was wilfully or intentionally driven into, or forced in contact with, the person of Mrs. Lucy Hallet on the occasion which is charged in this indictment, by some person, we say to you that that would constitute an assault and battery in law. If at the time the horse's head came in contact with the person of Mrs. Lucy Hallett the horse and wagon were under the control and management of Howard Lewis, the defendant, then he would be the person who would be liable. He would be equally so, VERDICT. gentlemen, although he did not have hold of the lines or the immediate guidance of the horse and wagon, if he was there present aiding, procuring, commanding, counseling or assisting the person who had hold of the lines and who was managing the horse and wagon. We have been asked to charge you with respect to the right of way of a foot passenger and a loaded team upon a public highway. It is conceded that the road between Middletown and Odessa is a public highway. That highway is open, gentlemen, in all its length and breadth to the reasonable common and equal use of people on foot and on horseback or in vehicles. The law upon this question has been very clearly laid down in the case of McLain vs. Sharp, 2 Harr., 483: "Where one undertakes to pass another, he who passes undertakes to go by at his own peril, if the other carriage leaves him road enough; and even and even when a horse in a gig has balked or stopped on the highway, the driver of a carriage behind, wishing to pass, is bound to stop if there be not road enough left for both carriages. For although every man has a right to pass on the public road, yet he must take reasonable care to exercise that right so as not to injure another." Having stated to you what constitutes the offense of assault and battery, and also the law as it relates to the highway, it is now for you, from the evidence before you, to inquire whether the defendant is guilty of assault and battery or not guilty. If, after a careful consideration of the evidence, there is a reasonable doubt in your minds as to the guilt of the defendant, that doubt should innure to the benefit of the accused. Verdict, not guilty. |