TRIAL. TENDER. A tender is not good if the thing tendered was borrowed to make the tender, without the right or intention to transfer the thing to the party to whom it was tendered. Com. of App., 1871, Champion ɛ. Joslyn, 44 N. Y., 653. TIME (COMPUTATION OF). The publication of a sheriff's notice of sale of real estate under execution is sufficient if inserted once in each week for the six weeks before the sale, although six full weeks should not have elapsed between the date of the first publication and the day of sale. [21 N. Y., 151.] Ct. of App., 1871, Wood v. Morehouse, 45 N. Y., 369. TOWN BONDING LAW. MUNICIPAL CORPORATIONS, 6-14. TRADEMARKS. 1. An injunction lies to protect the prior right in this country of one who has first adopted here a word from a foreign language to designate an article of his manufacture, although a similar article was previously produced and known under such designation in the foreign country. Supreme Ct. Sp. T., 1870, Rillet v. Carter, Ante, 186. 2. Plaintiff made a syrup from promegranates which he sold under the name of "Grenade Syrup." Defendant sought to justify his subsequently adopting the same name for a rival article, by alleging that the word "Grenade," from the French language, signifying "Pomegranate," was used in France at and before its adoption by plaintiff here, as the name of a similar syrup sold there.-Held, that notwithstanding these facts, the plaintiff was entitled to an injunction. Ib. TRIAL. 1. In an action to abate a nuisance and recover the damages occasioned thereby, trial by jury is a matter of right, even if the complaint be for equitable relief against the continuance of the nuisance, and the prayer for damages incidental. Com. of App., 1871, Hudson v. Caryl, 44 N. Y., 553. 2. The act of 1862, giving a lien, and the means of enforcement thereof, against ships, for materials, supplies, &c., is not unconstitutional by reason of not providing a trial by jury; for such liens TRIAL. were, before the constitution, enforceable in equity. Ct. of App., 1870, Sheppard v. Steele, 43 N. Y., 52; affirming 3 Lans., 417. 3. The right of trial in the mode and by the tribunal prescribed by law, is a substantial right, and a party cannot be deprived of it in the discretion of the judge. Ct. of App., 1870, Kain v. Delano, Ante, 29. 4. Notice of trial served by mail is good, although the last (16th) 'day falls on Sunday before Monday for which the cause is noticed. Supreme Ct. Sp. T., 1871, Central Bank of Westchester Co. v. Alden, 41 How. Pr., 102. 5. Where one is indicted, as accessory to several principals, only one of whom has been convicted, the accessory may be tried and convicted as accessory to the convicted principal only; in the same manner as if the convicted principal only was named in the indictment. Ct. of App., 1871, Starin v. People, 45 N. Y., 333. 6. The provisions of the Revised Statutes relative to summoning jurors in criminal cases (2 Rev. Stat., 733, § 3), are not repealed by Laws of 1870, 952, ch. 409, relating to the same subject. There is no conflict between the two. The former relate to the summoning of talesmen to serve in a particular trial, the latter make provision for the summoning of jurors to serve as part of the regular panel, for the remainder of the term. Supreme Ct., 1870, People v. Mallon, 3 Lans., 224. 7. If an order entered under 2 Rev. Stat., 733, § 3, directs the summoning of additional persons to sit as jurors "from the county at large," there is substantial compliance with the terms of the statute; and it is not necessary that the venire should specify from whence such persons should be summoned. Supreme Ct., 1870, People v. Mallon, 3 Lans., 224. 8. A talesman may be summoned from the by-standers, after the regular panel has been exhausted. 1871, Ruloff's Case, Ante, 245. 9. A juror being challenged for favor testified that he had heard something as to the prisoner's character and was biased. His general opinion was that the prisoner's character was bad.-Held, that he was not absolutely incompetent. An objection for bias must be by challenge for principal cause; and on a challenge to the favor the question of competency belongs to the triers and not to the court. Ct. of App., 1870, People v. Allen, 43 N. Y., 28. 10. An opinion as to the prisoner's guilt, purely hypothetical, depending on the truth or falsity of accounts in newspapers, is not such an opinion as will disqualify a juror. Supreme Ct., 1870, People v. Mallon, 3 Lans., 224. 11. But where the proposed juror in a capital case stated upon chal TRIAL lenge for principal cause, that he had read accounts, and formed an opinion as to the prisoner's guilt or innocence, which was unaltered, and which it would require evidence to remove, and that he could not exactly sit indifferent from the facts which he had heard, and on cross-examination, stated that if sworn he would try to be governed by the evidence, but would have a little prejudice, and again, that he meant by his answer that he had read the evidence given in the newspapers, and assuming the statements to be true, he had formed an opinion, but that it would not affect his mind in determining the case on evidence,--Held, that it was inferable that the juror had formed an opinion, of which he had not been able to divest himself, and was disqualified. Ib. 12. Where a juror was sworn, and being challenged was examined as to whether he had formed or expressed an opinion as to the guilt or innocence of the prisoner, and no ground of challenge was specified, -Held, that it should be presumed that the challenge was upon the grounds indicated by the examination, viz: for principal cause, that being most favorable to the prisoner. Ib. 13. After the prisoner has pleaded "not guilty," and the impanneling of the jury has been commenced, the prisoner is not entitled, as matter of right, to interpose a special plea. Ct. of App., 1870, People v. Allen, 43 N. Y., 28. 14. On the trial of an indictment for murder, the order of proof, in admitting evidence as to accomplices, before the evidence connecting the prisoner with them has been adduced, is in the discretion of the court. Ruloff's Case, Ante, 245. 15. After a party has rested his case, whether for the prosecution or the defense, he is not entitled to introduce any testimony except what is clearly in answer or rebuttal of evidence introduced by the opposite party, before the party offering the testimony had resumed the case. N. Y. Superior Ct., 1870, Speyer v. Stern, 2 Sweeny, 516. 16. After the parties to an action have rested, the admission or exclusion of further testimony rests in the discretion of the judge or referee before whom the case is tried. [3 Duer, 453; affirmed, 14 N. Y. (4 Kern.), 497.] Supreme Ct., 1870, Barrett ɛ. Carter, 3 Lans., 68. 17. It is not error for the court to exclude an offer of evidence (as distinguished from a question to a witness) which seems to include all that the party proposes to offer, and which, with the evidence already given, would be insufficient to establish the fact which it is intended to prove. Ct. of App., 1871, Pepin v. Lachenmeyer, 45 N. Y., 27. TRIAL. 18. An objection to the admission of a copy, on the ground that it was "incompetent and immaterial," does not raise the question that the paper was improperly admitted, because a copy, and not the original. Ct. of App., 1871, Atkins v. Elwell, 45 N. Y., 753. 19. A question as to the usual method of constructing street railroads, prefaced by an inquiry whether the witness had observed the manner of construction, is not one calling for the special knowledge or skill of an expert. N. Y. Com. Pl., 1872, Carpenter v. Central Park, North & East River R. R. Co., Ante, 416. 20. It is error to suffer to go to the jury any evidence given by a witness on direct examination for the people, where by sudden illness or by death of such witness, or other cause without the fault of and beyond the control of the prisoner, he is deprived of his right of cross-examination. Ct. of App., 1871, People v. Cole, 43 N. Y., 508; affirming 2 Lans., 370. 21. In an action against a surgeon, for damages for malpractice in treatment of a dislocated limb, it is for the jury to say whether on the evidence, defendant used the means which experience has shown to be proper and necessary. A difference of opinions among surgeons does not necessarily preclude the jury from finding negligence. Supreme Ct. Sp. T., 1871, Carpenter v. Blake, 60 Barb., 488. 22. The propriety of various rulings in such a case, determined. 1b. 23. The rule that where the evidence of the defendant's negligence is conflicting, it is error to take it from the jury, and to determine as a matter of law that there is negligence,-applied. Belton v. Baxter, 2 Sweeny, 339. 24. The rule chat where the evidence before the jury is sufficient, if credited, to authorize them to find a verdict for plaintiff, it is error to direct a verdict for defendant, -applied in an action for fraud in sale of oil stock. Schanck v. Morris, 2 Sweeny, 464; reversing 7 Robt., 658. 25. The plaintiff, in attempting to enter the defendants' car, was thrown from the steps thereof and received injuries, for which she brought an action. It appeared that the train which the plaintiff had expected to take had moved over and was extended across the street by which she was approaching the railroad, intercepting her route to the place regularly provided by the defendants for passengers to enter the cars. There was evidence to show that when the plaintiff attempted to enter the car, the train was stationary; that no signal bell was rung or notice given for starting; that the car started with a sudden and violent jerk; that passengers were sometimes accustomed to take the cars at the same place when standing across the street, and there was no evidence that the defendants had ever objected or taken steps to prevent their doing so.-Held, that TRIAL. the question of contributory negligence on the part of the plaintiff was properly submitted to the jury. Supreme Ct., 1871, Keating e. N. Y. Central R. R. Co., 3 Lans., 469. 26. In an action against a railroad company for injuries by defendants' negligence, it appeared that their brakeman saw the plaintiff approach the train, and without looking to see whether she was about to get on the cars, gave the signal upon which the train was started; that a fireman and not the engineer was in charge of the train; and there was evidence to show that the jar in starting threw the plaintiff under the car as she was rising upon the lower step of the platform and holding on to the railing.--Held, that the question of defendant's negligence was properly submitted to the jury. Ib. 27. Evidence of good character is not only of value in doubtful cases, but also is entitled to be considered, when the testimony tends very strongly to establish guilt. It will sometimes of itself create a doubt, when without it none would exist. [16 N. Y., 501; 4 Park., 396; 5 Cush., 295.] It is therefore error to charge the jury, that it is only in cases of doubt arising upon the evidence, that "evidence of good character steps in." Ct. of App., 1870, Remsen v. People, 43 N. Y., 6; reversing 57 Barb., 324. 28. The defendant drove his horse upon the towing path of the canal where it became frightened at a boat rising in a canal lock, and ran away, coming in contact with the plaintiff's horses upon the highway and causing them to run away and injure themselves. In an action for damages, there was evidence to show that the defendant's horse was newly owned by him, and young, and driven on the tow path with full knowledge of the danger.-Held, to be error not to charge as requested by the plaintiff: "That although the defendant was rightfully upon the towing path of the canal, so far as incurring a penalty of the State was concerned, yet he assumed the risk in driving there, and the question, whether or not it was negligence in driving there, is a question for the jury upon the proof.” Supreme Ct., 1870, Smith v. Clark, 3 Lans., 208. 29. Negative testimony not to be disregarded. Ct. of App., 1871, Bradley v. Mutual Benefit Ins. Co., 45 N. Y., 422. 30. On an indictment for an assault and battery with intent to commit a rape, the evidence being insufficient to convict of anything more than a simple assault, the court submitted the question of attempt to commit rape to the jury, and they found the prisoner guilty of assault.—Held, that as the submission of the former question must have prejudiced the prisoner, the error was material. Supreme Ct., 1871, Reynolds . People, 41 How. Pr., 179. |