Thompson v. Bower. pation, or an action for mesne profits, it cannot be sustained. upon the evidence. The fact that actions of trespass for mesne profits were abolished in this State by the Revised Statutes, and another mode of recovering such damages adopted, does not affect the question we have been considering. The cases holding that, in order to entitle a party to recover for use and occupation, the relation of landlord and tenant must have existed between the parties, are very numerous in this State, and are quite uniform. The case of Sylvester v. Rawlston, (31 Barb. 286,) is quite in point, if not entirely decisive of this case. The court charged the jury that the agreement under which the defendant entered, for the purchase of the land, being void, the plaintiffs were entitled to recover the fair value of the use of the premises. This was error, and the exception to the charge was well taken. The right of action, either for use and occupation, or for mesne profits, as we have seen, depends upon other considerations. The exceptions are also well taken to the refusals of the court to charge as requested. Each request embodies a correct legal proposition, applicable to the case upon the evidence, and should have been complied with. The judgment must, therefore, be reversed, and a new trial ordered, in the county court, with costs to abide event. [FOURTH DEPARTMENT, GENERAL TERM, at Rochester, September 4, 1871. Mullin, P. J., and Johnson and Talcott, Justices.] 60 480 67 498 THE PEOPLE vs. LUCAS FOLMSBEE. A party convicted of a misdemeanor, and sentenced to imprisonment, has a H ABEAS CORPUS to admit to bail. This proceeding was taken under section 19 of the statue, (2 R. S. 765, § 19, Edm. ed.,) which provides for the issuing of a writ of habeas corpus after sentence, where a writ of error, with a stay of proceedings on the judgment, has been allowed with a view to let the prisoner to bail. The facts of the case are as follows: The prisoner, Folmsbee, with another person, LeBaron, was convicted in the court of sessions, in Saratoga county, under an indictment charging them with an assault and battery upon a constable while in the exercise of his duty in making an arrest. LeBaron was sentenced by the court to pay a fine of $250, which he paid; and Folmsbee was sentenced to imprisonment in the county jail, at hard labor, for the period of nine months. The prisoners made a bill of exceptions, and the same being duly settled, they sued out a writ of error, pursuant to article 2, chapter 2, part 4, title 6, of the Revised Statutes. (3 R. S. 1043, 5th ed.) In the meantime, and before the bill of exceptions was settled, and of course before the issuing of the writ of error, the prisoner Folmsbee had been removed to the penitentiary, at Albany, and was there serving his term, under the judgment pronounced against him. An application was then made for a writ of error, with a stay of proceedings on the judgment, and on examining the bill of exceptions, and after hearing counsel for the The People v. Folmsbee. prisoner, and the district attorney for the people, Justice. BOCKES granted the application, and ordered a stay of proceedings on the judgment, as authorized by the statute above cited. An application was then made, under section 19 of the statute, for a habeas corpus, with a view to have the prisoner let to bail, pending the decision of the court on the writ of error. The writ was granted, directed to the keeper of the penitentiary, and was made returnable before said justice, at Saratoga Springs. The keeper produced the prisoner, pursuant to the writ, and made return that he was detained and held under the judgment of the court of sessions, above set forth. On this state of facts the prisoner asked to be let to bail, pending the decision of the Supreme Court on the writ. L. Varney and L. B. Pike, for the prisoner. W. B. French, (district attorney,) and A. Pond, for the people. BOCKES, J. It is insisted on the part of the people, that the writ should be discharged for want of jurisdiction, inasmuch as it is not made to appear that there is no officer in the county of Albany, where the prisoner was detained, having authority to issue the writ. This objection. is based on section 24 of the statute applicable to habeas corpus. (3 R. S. 884, § 38, [24] 5th ed.) This objection was considered by Justice Harris, in The People v. Hanna, (3 How. 39,) in an elaborate and well considered opinion, and was overruled. It is here unnecessary to do more than refer to that case, as the question is there fully discussed; and the decision has been universally recognized as sound, so far as I am aware. It would doubtless have been very appropriate for me to have made the writ returnable before some officer in VOL. LX. 31 The People v. Folmsbee. the county where the prisoner was confined; and I should generally do so, but it was optional with me to do so or not, and there were considerations of convenience which I deemed of sufficient importance to require me to make the writ returnable in this county. It was much less troublesome to all parties interested in the proceeding, aud also much less expensive to have the question examined and decided here. The petition for the habeas corpus shows that the prisoner is, in fact, committed and detained by virtue of the final judgment of a competent court, having jurisdiction of the offense, and it is therefore insisted that the writ should be discharged. This proceeding is not taken under the general act in relation to writs of habeas corpus, with a view to the absolute discharge of the prisoner. But it is taken under a specific statute, (§ 19, above cited,) which authorizes the issuing of the writ, after judgment, with a view to let the party to bail, pending a writ of error. The proceeding is under a special provision of law, to which the general act has no application. It is true, in this case the petition states that the prisoner is not detained by virtue of the final judgment of any competent tribunal. But it also sets out the fact of the imprisonment, and the true cause, and shows all that is necessary to bring the case within the purview of the special provision under which it is claimed the party may be let to bail. Such being the fact, and the return to the writ being made, showing the true condition of the case, it should now be considered with a view to the question in regard to the relief demanded, to wit, whether the party is entitled to be bailed, pursuant to section 19, above cited. In matters involving the personal freedom of a party, justice demands that the facts of the case should control, and that errors of statement, accidentally or ignorantly made, should be disregarded. I think the case is before me in such form as to admit The People v. Folmsbee. of a decision on the application of the prisoner to be let to bail, under section 19, above cited. This section contemplates the admitting of a party to bail after sentence or judgment. Section 15 declares writs of error in criminal cases to be writs of right, except upon judgments rendered. on indictments for capital offenses. Section 16 declares. that no such writ of error shall stay or delay the execution of the judgment, or of sentence thereon, unless allowed by a justice of the Supreme Court, with an express direction that the same is to operate as a stay of proceedings on the judgment upon which the writ shall be brought. Section 17 provides for the filing of the writ. Section 18 provides for the case where the prisoner is in the custody of the sheriff where the stay is granted, and requires that officer to retain the prisoner in his custody, without executing the sentence, to abide such judgment as may be rendered upon the writ of error. Then comes section 19, which provides for the issuing of the writ of habeas corpus, when a stay of proceedings on the judgment shall have been directed, and authorizes the letting the prisoner to bail, pending the decision of the court on the writ of error. It is claimed and insisted that this section has application only to those cases where the prisoner still remains in the custody of the sheriff, and further, that the prisoner can not be let to bail under this section after execution of the sentence or judgment has commenced and is in progress But is there anything in the section itself, or in those pre ceding or following it, to support this position? The section is general in its terms, except as it is limited to cases where the offense charged is punishable by imprisonmen in the State prison or county jail. Nor is the application of this section otherwise limited by what precedes or follows. Nor do I perceive any reason or propriety in limiting its application in the way claimed. The purpose of the several sections relating to this subject is, first, to give the convicted and sentenced party a |