The People v. Folmsbee. review in all cases; second, a stay of the execution of the judgment in case a justice of the Supreme Court shall so direct; and third, to let the party to bail pending the decision of the court on the writ of error, where a stay shall be so ordered. This purpose commends itself to one's sense of right, and is both reasonable and humane. No person should suffer actual punishment until legally convicted; and the direction of a stay of judgment by a justice of the Supreme Court is, and should be, sufficient evidence of illegality and error to warrant delay; and in offenses of minor importance, the party should in such cases be allowed his freedom on good and sufficient security, to abide such judgment as should ultimately be pronounced. The right to let to bail after sentence, where a stay is ordered under section 19, is not disputed. Such right has been often asserted and exercised. (See note on Habeas Corpus, 3 Hill, 674, [47]; The People v. Lohman, 2 Barb. 450; The People v. Restell, 3 How. 251; Yates v. The People, 6 John. 335, and on pages 280, 281, 282.) But it is insisted that this right exists, under section 19, only in case the application be made before execution of the sentence has commenced. The section does not so declare. And the reasoning of the learned judge in The People v. Lohman, above cited, makes no such distinction. The syllabus of this case is to the effect that an application to let to bail under section 19, in all cases of a like character to this now under consideration, was appropriate, and the letting to bail became and was a matter of discretion, to be granted or denied, as the judge should deem proper. If it be true, as claimed, that there is no power to bail after execution of the sentence has commenced, the prisoner, however erroneous or illegal may be his conviction. and sentence, is very much at the mercy of the district attorney. It must of necessity occupy some considerable The People v. Folmsbee. time after conviction and sentence, to obtain the settlement of the bill of exceptions, the writ of error and the stay of judgment. In the meantime the district attorney, if so inclined, may have his subject in prison under the sentence, after which, as is claimed, the prisoner is wholly without redress. Then a stay of proceedings is valueless to him, for his prayer to be let to bail cannot be heard; and, if judgment be thereafter reversed, he is put in a condition. to be retried and again sentenced. On this point Judge Edmonds pertinently remarks as follows, in the case above cited: "It is impossible that even the best regulated court should always be certain that its judgments are right. The imperfection of human testimony; the haste and excitement of a trial, and the want of familiarity with the questions of law which suddenly arise, all operate, at times, to throw doubts around the decisions of our very best courts. In such cases it is always wise that time and opportunity for a calm review should be taken, for the administration of justice wins confidence only when it is discreetly and dispassionately performed. For such a review our statutes have amply provided, in such manner, that in cases like this, it is a matter of absolute right, of which the prisoner cannot be deprived." The learned judge adds: "Of what avail would this right be if the execution of judgment could not be stayed until the completion of the review? What sort of justice would it be to reverse the judgment of conviction, after the prisoner had served his time, in whole or in part in the prison?" The learned judge further adds: "And it is by no means an unfrequent occurrence that prisoners are discharged from State prison by a reversal of the judgments against them." "These things," he says, "are, if possible, to be avoided, if respect for the administration of justice is to be preserved." I do not think the provisions of the law which confers on a party the right of reviewing his trial and sentence, were intended as a sham and mockery; nor should those The People v. Folmsbee. provisions be so construed as to permit a ministerial officer to nullify their just and humane purpose. So I think the right to let to bail should accompany the right to, and allowance of, a stay of proceedings on the judg ment, in all cases and under all circumstances where a direction for such stay is authorized, (excepting, always, capital cases;) and I think the provisions of the statute, relating to a review or writ of error in criminal cases, contemplates the exercise of such right, to be exercised, of course, in the discretion of the officer to whom the application is made. It is said that the effect of this construction of the law is to confer on the justices of the Supreme Court the right to pardon, inasmuch as the time of imprisonment runs during the operation of the stay. But the law confers this power on those officers; and the delay, whatever may be its effect, is a legal delay, and the exercise of their power to direct a stay of the execution of the judgment is confided to those officers. Undoubtedly it should be carefully and cautiously exercised. But the power exists by law, and this, too, as well in cases where the execution of judgment has commenced as in those where its execution has not commenced. And it is further said that if this construction be adopted, it is in the power of justices of the Supreme Court to open wide the prison doors to all convicted offenders against the laws. Undoubtedly it is within the power of those officers so to do, in many cases. This power is confided to the judgment and judicial discretion of those officers. And it is but right, and the commonest justice, that they should exercise this power, when it is made to appear on bill of exceptions that the conviction is illegal or erroneous. Even the admitted guilty must be legally tried and convicted according to the rules and forms of law, before they should be punished. I have arrived at the conclusion that a party has a right to be heard on an application to be let to bail, under sec The People v. Folmsbee. tion 19, above cited, even after the execution of judgment has commenced, where a writ of error has been allowed. in his case, with a direction that it shall operate as a stay of the execution of the judgment. I think in this case, too, that the prisoner should be let to bail pending the decision of the court on the writ of error. I think I ought so to exercise my discretionary power. It must be assumed on this application that there is probable error in the conviction and sentence, inasmuch as the writ of error is granted with a stay of proceedings. The granting of the stay may have been improvident, and a mistake of judgment on my part, but that point cannot be considered on this motion, as that question is not before me for review. The prisoner must, therefore, be let to bail on comply. ing with the provision of section 19, above cited. The order will determine the amount of bail and condition. [Before Bockes, J., at Chambers, Saratoga Springs, September 5, 1871. Af firmed at a GENERAL TERM, for the THIRD DEPARTMENT, held at Schenectady, November 14, 1871. Miller, P. J., and Daniels and Parker, Justices.] 60 488 50a 696 LEVANTIA S. CARPENTER vs. ZARA H. BLAKE, In an action against a physician and surgeon, to recover damages for negli- Where, after a dislocated arm has been attempted to be set, there is a protuber- If writers on the treatment of dislocations, or if, in the absence of such authority, If, in case of dislocatioff of the elbow joint, it is enough for the physician to replace the bones and to put the arm on a pillow, with the part below the joint at a right angle with that above it, and directing the application of cold water, it would seem to be proper, if not necessary, that the attending surgeon should inform the patient, or those in charge, of the necessity of maintaining that position; and if there is a tendency in the limb to become straight, or if there is great pain, rendering the patient nervous and restless, the danger should be disclosed, to the end that all proper precaution may be taken to prevent it. An omission to give the warning, in such a case, is culpable negligence. Although it is the right of a surgeon to give up the care of a dislocated limb at any time, especially with the patient's assent, yet if he insists upon that assent as a shield from liability for any negligence of which he may have been guilty, or for any malpractice committed, it is competent for the plaintiff to show, if she can, that her consent was obtained by representations that were false, and if shown to be false, the consent is no protection to the defendant against liability for damages that had occurred before the consent was given. In order to meet any defense resting on the plaintiff's consent to the defendant's discharge, it is not necessary to allege the falsity of the representations, in the complaint. But if the plaintiff intends to recover damages resulting |